Sept. 30, 2005 CODE OF FEDERAL REGULATIONS 43 Parts 1 to 999 Revised as of October 1, 2005 Public Lands: Interior Containing a codification of documents of general applicability and future effect As of October 1, 2005 With Ancillaries

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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 585 Finding Aids: Material Approved for Incorporation by Reference 687 Table of CFR Titles and Chapters 689 Alphabetical List of Agencies Appearing in the CFR 707 List of CFR Sections Affected 717

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. 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

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 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.

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The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal agencies to display an OMB control number with their information collection request. 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 202-741-6010.

 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.

 REPUBLICATION OF MATERIAL

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 INQUIRIES

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 Raymond A. Mosley, Director, Office of the Federal Register. October 1, 2005. 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, 2005.

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.

For this volume, Carol A. Conroy was Chief Editor. The Code of Federal Regulations publication program is under the direction of Frances D. McDonald, assisted by Alomha S. Morris.

 <LRH>43 CFR Subtitle A (10-1-05 Edition)</LRH> <RRH>Office of the Secretary, Interior</RRH> <CFRTITLE> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 43—Public Lands: Interior</HD> <P>(This book contains parts 1 to 999)</P> </TITLEHD> <CFRTOC> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT>SUBTITLE A—<E T="04">Office of the Secretary of the Interior</E> </SUBJECT> <PG>1</PG> </CHAPTI> <SUBTI> <HD SOURCE="HED">SUBTITLE B—<E T="04">Regulations Relating to Public Lands</E> </HD> </SUBTI> <CHAPTI> <SUBJECT> <E T="04">chapter i</E>—Bureau of Reclamation, Department of the Interior</SUBJECT> <PG>402</PG> </CHAPTI> </CFRTOC> </CFRTITLE> <SUBTITLE> <PRTPAGE P="3"/> <HD SOURCE="HED">Subtitle A—Office of the Secretary of the Interior</HD> <TOC> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1</PT> <SUBJECT>Practices before the Department of the Interior</SUBJECT> <PG>5</PG> <PT>2</PT> <SUBJECT>Records and testimony; Freedom of Information Act</SUBJECT> <PG>6</PG> <PT>3</PT> <SUBJECT>Preservation of American antiquities</SUBJECT> <PG>56</PG> <PT>4</PT> <SUBJECT>Department hearings and appeals procedures</SUBJECT> <PG>58</PG> <PT>5</PT> <SUBJECT>Making pictures, television productions or sound tracks on certain areas under the jurisdiction of the Department of the Interior</SUBJECT> <PG>190</PG> <PT>6</PT> <SUBJECT>Patent regulations</SUBJECT> <PG>191</PG> <PT>7</PT> <SUBJECT>Protection of archaeological resources</SUBJECT> <PG>200</PG> <PT>8</PT> <SUBJECT>Joint policies of the Departments of the Interior and of the Army relative to reservoir project lands</SUBJECT> <PG>216</PG> <PT>9</PT> <SUBJECT>Intergovernmental review of Department of the Interior programs and activities</SUBJECT> <PG>217</PG> <PT>10</PT> <SUBJECT>Native American graves protection and repatriation regulations</SUBJECT> <PG>220</PG> <PT>11</PT> <SUBJECT>Natural resource damage assessments</SUBJECT> <PG>246</PG> <PT>12</PT> <SUBJECT>Administrative and audit requirements and cost principles for assistance programs</SUBJECT> <PG>306</PG> <PT>13</PT> <SUBJECT>Vending facilities operated by blind persons</SUBJECT> <PG>368</PG> <PT>14</PT> <SUBJECT>Petitions for rulemaking</SUBJECT> <PG>370</PG> <PT>15</PT> <SUBJECT>Key Largo Coral Reef Preserve</SUBJECT> <PG>371</PG> <PT>16</PT> <SUBJECT>Conservation of helium</SUBJECT> <PG>372</PG> <PT>17</PT> <SUBJECT>Nondiscrimination in federally assisted programs of the Department of the Interior</SUBJECT> <PG>373</PG> <PT>18</PT> <SUBJECT>New restrictions on lobbying</SUBJECT> <PG>412</PG> <PT>19</PT> <SUBJECT>Wilderness preservation</SUBJECT> <PG>423</PG> <PT>20</PT> <SUBJECT>Employee responsibilities and conduct</SUBJECT> <PG>426</PG> <PT>21</PT> <SUBJECT>Occupancy of cabin sites on public conservation and recreation areas</SUBJECT> <PG>437<PRTPAGE P="4"/> </PG> <PT>22</PT> <SUBJECT>Administrative claims under the Federal Tort Claims Act and indemnification of Department of the Interior employees</SUBJECT> <PG>441</PG> <PT>23</PT> <SUBJECT>Surface exploration, mining and reclamation of lands</SUBJECT> <PG>443</PG> <PT>24</PT> <SUBJECT>Department of the Interior fish and wildlife policy: State-Federal relationships</SUBJECT> <PG>451</PG> <PT>26</PT> <SUBJECT>Grants to States for establishing Youth Conservation Corps programs</SUBJECT> <PG>456</PG> <PT>27</PT> <SUBJECT>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</SUBJECT> <PG>461</PG> <PT>28</PT> <SUBJECT>Fire protection emergency assistance</SUBJECT> <PG>473</PG> <PT>29</PT> <SUBJECT>Trans-Alaska Pipeline Liability Fund</SUBJECT> <PG>473</PG> <PT>32</PT> <SUBJECT>Grants to States for establishing Young Adult Conservation Corps (YACC) program</SUBJECT> <PG>480</PG> <PT>33</PT> <SUBJECT>Allocation of duty-free watches from the Virgin Islands, Guam, and American Samoa [Note]</SUBJECT> <PG>490</PG> <PT>34</PT> <SUBJECT>Requirements for equal opportunity during construction and operation of the Alaska Natural Gas Transportation System</SUBJECT> <PG>490</PG> <PT>35</PT> <SUBJECT>Administrative remedies for fraudulent claims and statements</SUBJECT> <PG>501</PG> <PT>36</PT> <SUBJECT>Transportation and utility systems in and across, and access into, conservation system units in Alaska</SUBJECT> <PG>516</PG> <PT>37</PT> <SUBJECT>Cave management</SUBJECT> <PG>526</PG> <PT>38</PT> <SUBJECT>Pay of U.S. Park Police—interim geographic adjustments</SUBJECT> <PG>529</PG> <PT>39</PT> <SUBJECT>Collection of debts by administrative wage garnishment</SUBJECT> <PG>530</PG> <PT>41</PT> <SUBJECT>Nondiscrimination on the basis of sex in education programs or activities receiving Federal financial assistance</SUBJECT> <PG>531</PG> <PT>42</PT> <SUBJECT>Government-wide debarment and suspension (Nonprocurement)</SUBJECT> <PG>547</PG> <PT>43</PT> <SUBJECT>Governmentwide requirements for drug-free workplace (Financial assistance)</SUBJECT> <PG>570</PG> <PT>44</PT> <SUBJECT>Financial assistance, local governments</SUBJECT> <PG>576</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="5"/> <EAR>Pt. 1</EAR> <HD SOURCE="HED">PART 1—PRACTICES BEFORE THE DEPARTMENT OF THE INTERIOR</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.3</SECTNO> <SUBJECT>Who may practice.</SUBJECT> <SECTNO>1.4</SECTNO> <SUBJECT>Disqualifications.</SUBJECT> <SECTNO>1.5</SECTNO> <SUBJECT>Signature to constitute certificate.</SUBJECT> <SECTNO>1.6</SECTNO> <SUBJECT>Disciplinary proceedings.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 5, 23 Stat. 101; 43 U.S.C. 1464.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>29 FR 143, Jan. 7, 1964, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part the term:</P> <P>(a) <E T="03">Department</E> 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;</P> <P>(b) <E T="03">Solicitor</E> means the Solicitor of the Department of the Interior or his authorized representative;</P> <P>(c) <E T="03">Practice</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.3</SECTNO> <SUBJECT>Who may practice.</SUBJECT> <P>(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.</P> <P>(b) Unless disqualified under the provisions of § 1.4 or by disciplinary action taken pursuant to § 1.6:</P> <P>(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.</P> <P>(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.</P> <P>(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</P> <P>(i) A member of his family;</P> <P>(ii) A partnership of which he is a member;</P> <P>(iii) A corporation, business trust, or an association, if such individual is an officer or full-time employee;</P> <P>(iv) A receivership, decedent's estate, or a trust or estate of which he is the receiver, administrator, or other similar fiduciary;</P> <P>(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;</P> <P>(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</P> <P>(vii) An association or class of individuals who have no specific interest that will be directly affected by the disposition of the particular matter.</P> </SECTION> <SECTION> <SECTNO>§ 1.4</SECTNO> <SUBJECT>Disqualifications.</SUBJECT> <P>No individual may practice before the Department if such practice would violate the provisions of 18 U.S.C. 203, 205, or 207.</P> </SECTION> <SECTION> <PRTPAGE P="6"/> <SECTNO>§ 1.5</SECTNO> <SUBJECT>Signature to constitute certificate.</SUBJECT> <P>When an individual who appears in a representative capacity signs a paper in practice before the Department, his signature shall constitute his certificate:</P> <P>(a) That under the provisions of this part and the law, he is authorized and qualified to represent the particular party in the matter;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.6</SECTNO> <SUBJECT>Disciplinary proceedings.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </PART> <PART> <EAR>Pt. 2</EAR> <HD SOURCE="HED">PART 2—RECORDS AND TESTIMONY; FREEDOM OF INFORMATION ACT</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Information</HD> <SECHD>Sec.</SECHD> <SECTNO>2.1</SECTNO> <SUBJECT>What do the regulations cover?</SUBJECT> <SECTNO>2.2</SECTNO> <SUBJECT>What is DOI's policy regarding release of records under the FOIA?</SUBJECT> <SECTNO>2.3</SECTNO> <SUBJECT>What terms do I need to know?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Information Routinely Available to the Public Without Filing a FOIA Request</HD> <SECTNO>2.4</SECTNO> <SUBJECT>How do I obtain information routinely available to the public?</SUBJECT> <SECTNO>2.5</SECTNO> <SUBJECT>Does DOI maintain an index of its reading room materials?<PRTPAGE P="7"/> </SUBJECT> <SECTNO>2.6</SECTNO> <SUBJECT>Will the Department accept written requests, including fax, e-mail, or telephone requests, for routinely available information?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Requests for Records Under the FOIA</HD> <SECTNO>2.7</SECTNO> <SUBJECT>What do I need to know before filing a FOIA request?</SUBJECT> <SECTNO>2.8</SECTNO> <SUBJECT>What information do I include in my request?</SUBJECT> <SECTNO>2.9</SECTNO> <SUBJECT>May I specify the form or format of disclosure?</SUBJECT> <SECTNO>2.10</SECTNO> <SUBJECT>Where do I send my request?</SUBJECT> <SECTNO>2.11</SECTNO> <SUBJECT>Why is it important to send my request to the right office?</SUBJECT> <SECTNO>2.12</SECTNO> <SUBJECT>When can I expect the response?</SUBJECT> <SECTNO>2.13</SECTNO> <SUBJECT>When may the bureau take a time extension to respond to my request?</SUBJECT> <SECTNO>2.14</SECTNO> <SUBJECT>When can I get expedited processing?</SUBJECT> <SECTNO>2.15</SECTNO> <SUBJECT>Will I be charged fees?</SUBJECT> <SECTNO>2.16</SECTNO> <SUBJECT>How are fees determined?</SUBJECT> <SECTNO>2.17</SECTNO> <SUBJECT>How will my requester category affect the fees that I am charged?</SUBJECT> <SECTNO>2.18</SECTNO> <SUBJECT>How are fees assessed and collected?</SUBJECT> <SECTNO>2.19</SECTNO> <SUBJECT>When will bureaus waive fees?</SUBJECT> <SECTNO>2.20</SECTNO> <SUBJECT>When will bureaus grant discretionary fee waivers?</SUBJECT> <SECTNO>2.21</SECTNO> <SUBJECT>How will the bureau respond to my request?</SUBJECT> <SECTNO>2.22</SECTNO> <SUBJECT>What happens if a bureau receives a request for records it does not have or did not create?</SUBJECT> <SECTNO>2.23</SECTNO> <SUBJECT>How will a bureau handle a request for commercial or financial information that it has obtained from a person or entity outside the Federal Government?</SUBJECT> <SECTNO>2.24</SECTNO> <SUBJECT>Is a submitter required to designate information that is commercially or financially sensitive?</SUBJECT> <SECTNO>2.25</SECTNO> <SUBJECT>How will a bureau handle a request for Federally-funded research data in the possession of a private entity?</SUBJECT> <SECTNO>2.26</SECTNO> <SUBJECT>Does the bureau provide multitrack processing of FOIA requests?</SUBJECT> <SECTNO>2.27</SECTNO> <SUBJECT>How will a bureau handle a request for information that is contained in a Privacy Act system of records? (See DOI's Privacy Act regulations (Subpart G of this part) for additional information)</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—FOIA Appeals</HD> <SECTNO>2.28</SECTNO> <SUBJECT>When may I file an appeal?</SUBJECT> <SECTNO>2.29</SECTNO> <SUBJECT>How long do I have to file an appeal?</SUBJECT> <SECTNO>2.30</SECTNO> <SUBJECT>How do I file an appeal?</SUBJECT> <SECTNO>2.31</SECTNO> <SUBJECT>How will DOI respond to my appeal?</SUBJECT> <SECTNO>2.32</SECTNO> <SUBJECT>How long does DOI have to respond to my appeal?</SUBJECT> <SECTNO>2.33</SECTNO> <SUBJECT>How will the Department notify you and the submitter of commercial or financial information when it makes an appeal decision concerning such information?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—FOIA Annual Report</HD> <SECTNO>2.34</SECTNO> <SUBJECT>Where can I get a copy of DOI's FOIA annual report?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Declassification of Classified Documents</HD> <SECTNO>2.41</SECTNO> <SUBJECT>Declassification of classified documents.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Privacy Act</HD> <SECTNO>2.45</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>2.46</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>2.47</SECTNO> <SUBJECT>Records subject to Privacy Act.</SUBJECT> <SECTNO>2.48</SECTNO> <SUBJECT>Standards for maintenance of records subject to the Act.</SUBJECT> <SECTNO>2.49</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2.50</SECTNO> <SUBJECT> <E T="04">Federal Register</E> notices describing systems of records.</SUBJECT> <SECTNO>2.51</SECTNO> <SUBJECT>Assuring integrity of records.</SUBJECT> <SECTNO>2.52</SECTNO> <SUBJECT>Conduct of employees.</SUBJECT> <SECTNO>2.53</SECTNO> <SUBJECT>Government contracts.</SUBJECT> <SECTNO>2.54-2.55</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2.56</SECTNO> <SUBJECT>Disclosure of records.</SUBJECT> <SECTNO>2.57</SECTNO> <SUBJECT>Accounting for disclosures.</SUBJECT> <SECTNO>2.58-2.59</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2.60</SECTNO> <SUBJECT>Request for notification of existence of records: Submission.</SUBJECT> <SECTNO>2.61</SECTNO> <SUBJECT>Requests for notification of existence of records: Action on.</SUBJECT> <SECTNO>2.62</SECTNO> <SUBJECT>Requests for access to records.</SUBJECT> <SECTNO>2.63</SECTNO> <SUBJECT>Requests for access to records: Submission.</SUBJECT> <SECTNO>2.64</SECTNO> <SUBJECT>Requests for access to records: Initial decision.</SUBJECT> <SECTNO>2.65</SECTNO> <SUBJECT>Requests for notification of existence of records and for access to records: Appeals.</SUBJECT> <SECTNO>2.66</SECTNO> <SUBJECT>Requests for access to records: Special situations.</SUBJECT> <SECTNO>2.67-2.69</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2.70</SECTNO> <SUBJECT>Amendment of records.</SUBJECT> <SECTNO>2.71</SECTNO> <SUBJECT>Petitions for amendment: Submission and form.</SUBJECT> <SECTNO>2.72</SECTNO> <SUBJECT>Petitions for amendment: Processing and initial decision.</SUBJECT> <SECTNO>2.73</SECTNO> <SUBJECT>Petitions for amendments: Time limits for processing.</SUBJECT> <SECTNO>2.74</SECTNO> <SUBJECT>Petitions for amendment: Appeals.</SUBJECT> <SECTNO>2.75</SECTNO> <SUBJECT>Petitions for amendment: Action on appeals.</SUBJECT> <SECTNO>2.76</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2.77</SECTNO> <SUBJECT>Statements of disagreement.</SUBJECT> <SECTNO>2.78</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>2.79</SECTNO> <SUBJECT>Exemptions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Legal Process: Testimony by Employees and Production of Records</HD> <SUBJGRP> <HD SOURCE="HED">General Information</HD> <SECTNO>2.80</SECTNO> <SUBJECT>What does this subpart cover?</SUBJECT> <SECTNO>2.81</SECTNO> <SUBJECT>What is the Department's policy on granting requests for employee testimony or Department records?</SUBJECT> </SUBJGRP> <SUBJGRP> <PRTPAGE P="8"/> <HD SOURCE="HED">Responsibilities of Requesters</HD> <SECTNO>2.82</SECTNO> <SUBJECT>How can I obtain employee testimony or Department records?</SUBJECT> <SECTNO>2.83</SECTNO> <SUBJECT>If I serve a subpoena <E T="03">duces tecum,</E> must I also submit a <E T="03">Touhy</E> Request?</SUBJECT> <SECTNO>2.84</SECTNO> <SUBJECT>What information must I put in my <E T="03">Touhy</E> Request?</SUBJECT> <SECTNO>2.85</SECTNO> <SUBJECT>How much will I be charged?</SUBJECT> <SECTNO>2.86</SECTNO> <SUBJECT>Can I get an authenticated copy of a Department record?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Responsibilities of the Department</HD> <SECTNO>2.87</SECTNO> <SUBJECT>How will the Department process my <E T="03">Touhy</E> Request?</SUBJECT> <SECTNO>2.88</SECTNO> <SUBJECT>What criteria will the Department consider in responding to my <E T="03">Touhy</E> Request?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Responsibilities of Employees</HD> <SECTNO>2.89</SECTNO> <SUBJECT>What must I, as an employee, do upon receiving a request?</SUBJECT> <SECTNO>2.90</SECTNO> <SUBJECT>Must I get approval before testifying as an expert witness on a subject outside the scope of my official duties?</SUBJECT> <APP>Appendix A to Part 2—Department of the Interior FOIA/Public Affairs Contacts and Reading Rooms</APP> <APP>Appendix B to Part 2—Internet Addresses</APP> <APP>Appendix C to Part 2—Fee Schedule</APP> <APP>Appendix D to Part 2—Fee Waiver Criteria</APP> <APP>Appendix E to Part 2—FOIA Exemptions</APP> <APP>Appendix F to Part 2—Mineral Leasing Act and Mineral Leasing Act for Acquired Lands—Special Rules</APP> </SUBJGRP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 552 and 552a; 31 U.S.C. 9701 and 43 U.S.C. 1460-1461. Appendix F to Part 2 also is issued under 30 U.S.C. 201-209; 30 U.S.C. 351-360.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>40 FR 7305, Feb. 19, 1975, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Information</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>67 FR 64530, Oct. 21, 2002, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2.1</SECTNO> <SUBJECT>What do the regulations cover?</SUBJECT> <P>(a) The regulations implement the Freedom of Information Act (FOIA), 5 U.S.C. 552, and contain the procedures by which the public may inspect and obtain copies of Department of the Interior (DOI or Department) records through the FOIA or by other means.</P> <P>(b) They apply to all agency records as defined in § 2.3(c).</P> <P>(c) The policy and procedures set forth in these regulations apply to all bureaus and offices of the Department.</P> <P>(d) Nothing in the regulations will entitle you to any service or any record that is not required to be provided under the FOIA.</P> <P>(e) These regulations do not apply to records that fall under the law enforcement exclusions contained in 5 U.S.C. 552(c).</P> </SECTION> <SECTION> <SECTNO>§ 2.2</SECTNO> <SUBJECT>What is DOI's policy regarding release of records under the FOIA?</SUBJECT> <P>It is our policy to make records of the Department available to the public consistent with the spirit of the FOIA and the Privacy Act.</P> </SECTION> <SECTION> <SECTNO>§ 2.3</SECTNO> <SUBJECT>What terms do I need to know?</SUBJECT> <P>For the purposes of this part, the following definitions apply:</P> <P>(a) <E T="03">Act</E> and <E T="03">FOIA</E> mean the Freedom of Information Act, 5 U.S.C. 552, as amended.</P> <P>(b) <E T="03">Agency</E> means any executive department, military department, Government corporation, Government-controlled corporation, or other establishment in the executive branch of the Federal Government, or any independent regulatory agency.</P> <P>(c) <E T="03">Agency record</E> means any documentary material which is either created or obtained by an agency in the transaction of agency business and under agency control. See §§ 2.21 and 2.25.</P> <P>(1) Agency records include:</P> <P>(i) Books, papers, maps, charts, plats, plans, architectural drawings, photographs, and microfilm;</P> <P>(ii) Machine-readable materials such as magnetic tape and disks;</P> <P>(iii) Electronic records (including e-mail messages);</P> <P>(iv) Audiovisual material such as still pictures, sound and video recordings; and</P> <P>(v) All other documentary materials, regardless of physical form, format or characteristics.</P> <P>(2) This definition generally does not cover records of an individual which are:</P> <P>(i) Created and maintained primarily for an individual's convenience;</P> <P>(ii) Not subject to agency creation or retention requirements; and</P> <P>(iii) Not distributed to other agency employees for their official use.</P> <P>(d) <E T="03">Bureau</E> means any major component of the Department administering its own FOIA program. A list of these <PRTPAGE P="9"/>components is contained in Appendix A to this part.</P> <P>(e) <E T="03">Commercial-use request</E> means a request from or on behalf of a person who seeks information for a use or purpose that furthers the commercial, trade or profit interests of the requester or the person on whose behalf the request is made. In determining whether a requester falls into this category, the bureau will consider the identity of the requester and intended use of the records in addition to any other available information about the requester.</P> <P>(f) <E T="03">Direct costs</E> means those expenses that a bureau actually incurs in searching for and duplicating (and in the case of commercial-use requests, reviewing) records to respond to a FOIA request. Direct costs include, for example, the salary and benefits of the employee performing the work and the cost of operating duplicating equipment. Not included in direct costs are overhead expenses such as the costs of space and heating or lighting of the facility in which the records are kept.</P> <P>(g) <E T="03">Duplication</E> means making a copy of a record, or the information contained in it, to respond to a FOIA request. Copies can take the form of paper, microform, photographs, audiovisual materials, or electronic records (for example, magnetic tape or disk), among others.</P> <P>(h) <E T="03">Educational institution</E> means a preschool, a public or private elementary or secondary school, or an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education, which operates a program of scholarly research. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scholarly research.</P> <P>(i) <E T="03">Expedited processing</E> means giving a FOIA request priority, and processing it ahead of other requests pending in the bureau because a requester has shown an exceptional need or urgency for the records (see § 2.14).</P> <P>(j) <E T="03">FOIA request</E> means a written request (this includes facsimile (fax) and electronic mail (e-mail)) made by any member of the public for Federal agency records.</P> <P>(k) <E T="03">Free-lance journalist</E> means a representative of the news media who is able to 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.</P> <P>(l) <E T="03">Frequently requested documents</E> means documents that have been requested at least three times under the FOIA. It also includes documents the agency anticipates would likely be the subject of three or more requests.</P> <P>(m) <E T="03">Multitrack processing</E> means placing simple requests, requiring relatively minimal review, in one processing track and more voluminous and complex requests in one or more other tracks. Requests in each track are processed on a first-in/first-out basis.</P> <P>(n) <E T="03">Noncommercial scientific institution</E> means an institution that is not operated for commerce, trade or profit, and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scientific research.</P> <P>(o) <E T="03">Privacy Act</E> request means a written request (paper copy with an original signature) made by an individual for information about himself or herself that is contained in a Privacy Act system of records. The Privacy Act applies only to U.S. citizens and aliens lawfully admitted for permanent residence. Therefore, only those individuals may make Privacy Act requests.</P> <P>(p) <E T="03">Published research findings</E> means research findings that are either:</P> <P>(1) Published in a peer-reviewed scientific or technical journal; or</P> <P>(2) Publicly and officially cited by a Federal agency in support of an agency action that has the force and effect of law.<PRTPAGE P="10"/> </P> <P>(q) <E T="03">Reading room materials</E> means records (paper or electronic) that are required to be made available to the public under 5 U.S.C. 552(a)(2), as well as other records that a bureau, at its discretion, makes available to the public for inspection and copying without requiring the filing of a FOIA request.</P> <P>(r) <E T="03">Representative of the news media</E> means 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, newspapers, 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. To be in this category, a requester must not be seeking the requested records for a commercial use. Further, a bureau normally will not consider requests for records involving news dissemination to be commercial-use requests.</P> <P>(s) <E T="03">Research data</E> means the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not such things as trade secrets, commercial information, personnel and medical information and any similar information which is protected under law.</P> <P>(t) <E T="03">Review</E> means the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. It also includes the deletion of exempt material or other processing necessary to prepare the record(s) for disclosure, including routine consultation among bureau staff and attorneys regarding the applicability of exemptions; and time spent considering any formal objection to disclosure made by a submitter under § 2.23(f).</P> <P>(u) <E T="03">Search</E> means the process of looking for and retrieving agency records and information responsive to a request (manually or by automated means).</P> <P>(v) <E T="03">Submitter</E> means any person or entity outside the Federal Government from whom the Department directly or indirectly obtains commercial or financial information. The term includes, but is not limited to individuals, corporations, and state, local, tribal, and foreign governments.</P> <P>(w) <E T="03">Workday</E> means a regular Federal workday. It does not include Saturdays, Sundays, or Federal legal public holidays.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Information Routinely Available to the Public without Filing a FOIA Request</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>67 FR 64530, Oct. 21, 2002, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2.4</SECTNO> <SUBJECT>How do I obtain information routinely available to the public?</SUBJECT> <P>A great deal of information is available to the public without filing a FOIA request. Examples are Departmental policies, procedures, and organizational descriptions. The following guidance will help you obtain this information. [<E T="04">Note:</E> For copies of records that are not routinely available, you must submit a FOIA request to the DOI office where the records are located. Procedures for requesting records under the FOIA are provided in Subpart C of this part.]</P> <P>(a) <E T="03">General.</E> (1) General information about DOI or one of its bureaus may be obtained by visiting DOI's home page (see Appendix B to this part for a list of Internet addresses) or by contacting the Office of Public Affairs/Communications for the appropriate bureau (see Appendix A to this part for a list of DOI contacts). Many documents are made available to the public through DOI's reading rooms. Some documents also may be available in DOI's electronic reading rooms on the Internet.</P> <P>(2) Information on DOI's FOIA Program and a Reference Guide to assist you in obtaining various types of information are available in DOI's reading rooms, through the FOIA home page, or by contacting the Departmental FOIA Officer.</P> <P>(3) To obtain information about specific records in DOI, you also may refer to:</P> <P>(i) The index of documents frequently requested under the FOIA, which is available in DOI's reading rooms, <PRTPAGE P="11"/>through the FOIA home page, or by contacting one of the bureau FOIA Officers; and</P> <P>(ii) The index and description of DOI's major information and record locator systems, which are available in DOI's reading rooms, through the FOIA home page, or by contacting one of the bureau FOIA Officers.</P> <P>(4) Another source of information is DOI's Library, which contains over one million holdings dealing with a broad range of matters pertaining to the Department's mission. You may wish to visit the Library, which is located at the C Street entrance of the Main Interior Building, 1849 C Street, NW., Washington, DC 20240 (see Appendix A to this part). The Library is open to the public for on-site reference use from 7:45 a.m.-5:00 p.m., Monday-Friday (excluding Federal legal public holidays). Additional information regarding the Library's holdings and services may be obtained by visiting its home page (see Appendix B to this part).</P> <P>(b) <E T="03">Published information and rules.</E> Under 5 U.S.C. 552(a)(1), bureaus are required to publish certain information in the <E T="04">Federal Register</E> for the guidance of the public, such as descriptions of their central and field organizations, functions, procedures, substantive rules, and statements of general policy.</P> <P>(c) <E T="03">Reading room materials.</E> (1) Under 5 U.S.C. 552(a)(2), each bureau is responsible for making the information listed in paragraphs (c)(1)(i) through (v) of this section available for public inspection and copying unless the materials are promptly published and copies offered for sale. Bureaus must make any such records created on or after November 1, 1996, available by the Internet or by other computer telecommunication methods or electronic means as quickly as practicable.</P> <P>(i) Final opinions rendered in the adjudication of cases.</P> <P>(ii) Policy statements and interpretations which have been adopted by DOI and are not published in the <E T="04">Federal Register.</E> </P> <P>(iii) Administrative staff manuals and instructions affecting the public.</P> <P>(iv) Copies of records that have been or are likely to become the subject of frequent FOIA requests and an index of those documents.</P> <P>(v) A subject-matter index of its reading room records (see § 2.5).</P> <P>(2) Bureaus may, at their discretion, make other records available for inspection and copying in reading rooms or via their home pages.</P> <P>(d) <E T="03">Inspection and copying of reading room materials.</E> (1) Reading room materials are available for inspection and copying at the locations listed in Appendix A to this part and, in some cases, through the Internet; however, not all records may be available in all locations.</P> <P>(i) If you need assistance in determining the location and availability of the records you are seeking, contact the appropriate reading room or FOIA Contact listed in Appendix A to this part.</P> <P>(ii) If you file a FOIA request for reading room materials and the information you request is available on the Internet, the FOIA Contact should refer you to the appropriate Web site. If the reading room materials are not available electronically, the FOIA Contact may either send you the materials, or forward your request to the appropriate reading room and provide the name and telephone number of a staff member you may contact. You may, nevertheless, ask the bureau to process your request as any other FOIA request.</P> <P>(2) A bureau may delete exempt information from some records before making them available for inspection and copying in a reading room. (See § 2.21(c)). You may not appeal a bureau's decision to delete exempt information from a document it places in a public reading room. If you would like access to the entire record, you must submit a FOIA request under the procedures in Subpart C of this part. However, this does not guarantee that the entire record will be released. If you submit such a FOIA request and are not satisfied with the response, you may file an appeal as described in § 2.28.</P> <P>(3) There is no charge to inspect reading room materials. Copying services will be provided at the fees specified in Appendix C to this part. However, other fees may apply where a bureau has a statute that specifically requires the bureau to set fees for particular types of records.<PRTPAGE P="12"/> </P> <P>(4) If you submit a fee waiver request for information in a reading room, it will be processed under the procedures in § 2.19.</P> </SECTION> <SECTION> <SECTNO>§ 2.5</SECTNO> <SUBJECT>Does DOI maintain an index of its reading room materials?</SUBJECT> <P>Each bureau will maintain and make available for public inspection and copying a current subject-matter index of its reading room materials (5 U.S.C. 552(a)(2)). The index will be available in the bureau's reading room(s) and in their electronic reading rooms on the Internet. Each index will be updated regularly.</P> </SECTION> <SECTION> <SECTNO>§ 2.6</SECTNO> <SUBJECT>Will the Department accept written requests, including fax, e-mail, or telephone requests, for routinely available information?</SUBJECT> <P>Yes. Although a request for this type of information is not a FOIA request, the bureau will send you the requested information and charge you for the copies, according to the fee schedule in Appendix C to this part. While the bureau will attempt to respond to oral requests (those made by telephone or otherwise) for routinely available information, you should submit complex requests in writing to avoid any risk of misunderstanding.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Requests for Records under the FOIA</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>67 FR 64530, Oct. 21, 2002, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2.7</SECTNO> <SUBJECT>What do I need to know before filing a FOIA request?</SUBJECT> <P>(a) If the records you are seeking are not routinely available as described in Subpart B of this part, you must submit a FOIA request to the FOIA Contact at the bureau office where you believe the records are maintained (see Appendix A to this part). FOIA requests must be submitted in writing (this includes fax and e-mail)—DOI does not accept oral FOIA requests. Before submitting a request, you may find it useful to contact the appropriate bureau FOIA Contact or the Departmental FOIA Officer for additional information concerning DOI's FOIA Program. You may find the Department's Reference Guide, which is available electronically through the FOIA home page and in paper form as well, helpful in making your request.</P> <P>(b) The FOIA requires that we release records unless they are protected by one of nine exemptions (see Appendix E to this part).</P> <P>(c) The Act does not require a bureau to answer questions that may be asked in a FOIA request.</P> <P>(d)(1) In order for a record to be considered subject to your FOIA request, it must be in the bureau's possession and control at the time the bureau begins its search for responsive records. There is no obligation for the bureau to create or compile a record to satisfy a FOIA request (for example, by combining or compiling selected items from manual files, preparing a new computer program, calculating proportions, percentages, frequency distributions, trends and comparisons, or creating maps). Normally if a bureau is extracting information from an existing computer database, this would not constitute the creation of a new record. However, a bureau has the option of creating a new record if—</P> <P>(i) Doing so will provide a more useful response to the requester,</P> <P>(ii) It is less burdensome than providing the existing records, and</P> <P>(iii) The newly created record is fully responsive to the request.</P> <P>(2) The fee in this case will not be more than the fee for the individual records. Fees will be charged consistent with the schedule in Appendix C to this part.</P> </SECTION> <SECTION> <SECTNO>§ 2.8</SECTNO> <SUBJECT>What information do I include in my request?</SUBJECT> <P>(a) Description of records.</P> <P>(1) You must describe the requested records in enough detail to enable an employee familiar with the subject area of the request to locate the record(s) with a reasonable amount of effort. Be as specific as possible in describing the records you are seeking. For example, whenever possible:</P> <P>(i) Identify the date, title or name, author, recipient, and the subject of the record; the office that created it, the present custodian of the record and the geographical location (<E T="03">e.g.,</E> headquarters or a regional/field office); the timeframe for which you are seeking <PRTPAGE P="13"/>records; and any other information that will assist the bureau in locating the material.</P> <P>(ii) If the request involves a matter in litigation, state the case name and docket number as well as the court in which the case was filed.</P> <P>(2) The bureau will not begin processing your request until any issues regarding the scope or nature of your request are resolved. When a request is overly broad, unclear, involves an extremely voluminous amount of records, or a burdensome search, the bureau will contact you to identify and clarify the records you are seeking. It will work with you to define the subject matter, clarify terms that are used, or narrow the scope of your request.</P> <P>(3) The time limit for responding to your request will not start until the bureau receives a request reasonably describing the records or clarifying the initial request. If the bureau asks you for additional clarification and does not hear from you within 20 workdays, it will assume that you are no longer interested in pursuing your request and will close the file on your request.</P> <P>(b) Fee information.</P> <P>(1) Unless you request a fee waiver (see paragraph (b)(2) of this section), you should state that you are willing to pay all fees associated with processing your request or that you are willing to pay up to a specified amount. The bureau will not begin processing your request until this written assurance has been received. If the bureau anticipates that the fees for processing your request exceed the amount you have indicated you are willing to pay, the bureau will notify you that it needs your assurance of payment of fees as high as are anticipated, or an advance payment (see § 2.18(b) and (c)). If the bureau does not hear from you within 20 workdays, it will assume that you are no longer interested in this matter and will close the file on your request.</P> <P>(2) You may request a fee waiver. If you are seeking a fee waiver, you must provide sufficient justification to support your fee waiver request (see the criteria in § 2.19 and in Appendix D to this part). Failure to provide adequate justification will result in a denial of your fee waiver request. Remember that if you are requesting a fee waiver, the burden is on you to demonstrate in your request that you are entitled to it. The bureau will not begin processing your request until the fee issues are resolved. As an option, at the same time you request a fee waiver you may state your willingness to pay regardless of whether a fee waiver is granted. This will permit the bureau to process your request for records at the same time it is considering the fee waiver request. If you are required to pay a fee, and it is later determined on appeal that you are entitled to a full or partial fee waiver, an appropriate refund will be made.</P> <P>(3) You should indicate what fee category you are in, <E T="03">i.e.,</E> if you are a commercial-use requester, news media, educational institution/noncommercial scientific institution, or other requester (see §§ 2.3 and 2.17(a)). If you submit a FOIA request on behalf of another person or organization (for example, if you are an attorney submitting a request on behalf of a client), it is the underlying requester's identity and intended use that determines the fee category. If your fee category is unclear to the bureau, the 20-workday statutory time limit for processing your request will not begin to run (see § 2.12(b)) until this matter has been resolved. If the bureau requests additional clarification and does not hear from you within 20 workdays, it will assume that you are no longer interested in this matter and will close the file on your request.</P> <P>(c) Mailing address information: Your postal address is required for the bureau to mail any responsive documents to you.</P> <P>(d) The following information will assist the bureau in processing your request:</P> <P>(1) The words “FOIA REQUEST” (prominently displayed) on the request letter and the envelope, or subject line of a request sent via e-mail or fax, or “PRIVACY ACT REQUEST” when requesting records pertaining to yourself that you believe are covered by the Privacy Act, as well as citing the appropriate act in your letter;</P> <P>(2) Your telephone number (where you can be reached during normal business hours), e-mail address and fax <PRTPAGE P="14"/>number, if available, in case the bureau, or the Department needs to communicate with you about your request. This information is very important.</P> <P>(3) A list of all the bureau FOIA Contacts to which you are sending your request. For the quickest possible handling, you should address a separate copy of your request to each bureau FOIA Contact where you believe the records are maintained.</P> <P>(4) When making a request for personal records about another individual, a written authorization from that individual and any other information required by the Privacy Act system of records notice; or proof that the individual is deceased (for example, a copy of a death certificate or an obituary) as the Privacy Act does not apply to a deceased individual. (<E T="04">Note:</E> Information about a deceased individual may be subject to protection under exemption (6) of the FOIA if the release of the information could result in an invasion of the privacy of a living individual.)</P> </SECTION> <SECTION> <SECTNO>§ 2.9</SECTNO> <SUBJECT>May I specify the form or format of disclosure?</SUBJECT> <P>Generally, you may choose the form or format of disclosure for records that you request under the FOIA (5 U.S.C. 552(a)(3)(B)). Bureaus must provide the record in the requested form/format if the office responding to the request can readily reproduce the record in that form/format with reasonable efforts. However, if the process of providing the information in the requested format would damage or destroy an original document, it may not be possible to honor your format request. Bureaus must make reasonable efforts to maintain their records in forms or formats that are reproducible. You may be charged the direct costs involved in converting information to the requested format if the bureau normally does not maintain the information in that format.</P> </SECTION> <SECTION> <SECTNO>§ 2.10</SECTNO> <SUBJECT>Where do I send my request?</SUBJECT> <P>(a) DOI does not have a central location where you may submit your FOIA request nor does it maintain a central index or database of documents in its possession. DOI's files are decentralized and are maintained by various bureau offices throughout the country.</P> <P>(b) Submit your request in writing to the FOIA Contact at the bureau office where you believe the records are maintained. If it is unclear where to send your request, seek assistance from the FOIA Contact of the bureau that manages the programs whose records you are requesting or the Departmental FOIA Officer. You may have to do a little research to find the proper office to handle your inquiry, but you will save time in the long run if you send your request directly to the FOIA Contact at the appropriate bureau office. The bureau will process your request as follows:</P> <P>(1) A request to a bureau headquarters office may be presumed to seek only records from the headquarters office, unless the request specifies otherwise.</P> <P>(2) A request to a regional/field office of a bureau may be presumed to seek only records at that office, unless the request specifies otherwise.</P> <P>(3) If a request to a bureau states that it seeks records located at another specific office of the same bureau, the appropriate FOIA Contact will refer the request to the other office. If the request states that it seeks records from other unspecified offices within the same bureau, the FOIA Contact will send the request to the Bureau FOIA Officer who will refer it to those offices that, to the best of his/her knowledge, have or are likely to have responsive records.</P> <P>(4) If a request to a bureau states that it seeks records of another specified bureau, the bureau will refer the request to the appropriate bureau for response. If the request states that it seeks records from other unspecified bureaus, the FOIA Contact will send the request to the Bureau FOIA Officer who will ensure that the request is referred to those bureaus which, to the best of his/her knowledge, have or are likely to have responsive records. In either case, the Bureau FOIA Officer will notify you of the referral in writing and provide the name of a contact in the other bureau(s) to which the referral was made.</P> </SECTION> <SECTION> <PRTPAGE P="15"/> <SECTNO>§ 2.11</SECTNO> <SUBJECT>Why is it important to send my request to the right office?</SUBJECT> <P>The bureau and office FOIA Contacts listed in Appendix A to this part have primary responsibility for responding to FOIA requests. Failure to send your request to the FOIA Contact at the appropriate bureau office may delay processing, because the time limit for the bureau to respond will not begin to run until a request complying with §§ 2.8 and 2.10 is received by the bureau office where the records are maintained. The processing of your request may be delayed if you send it to the Secretary of the Interior (or other high-level officials), the Office of Public Affairs/Communications, the DOI FOIA Officer, or the Department/bureau's webmaster.</P> </SECTION> <SECTION> <SECTNO>§ 2.12</SECTNO> <SUBJECT>When can I expect the response?</SUBJECT> <P>(a) <E T="03">Basic time limit.</E> Ordinarily, a bureau has 20 workdays from the date of receipt to determine whether to grant or deny your FOIA request (see paragraph (b) of this section). The bureau will notify you immediately upon reaching its decision. If you have not received a response within 20 workdays, or 30 workdays if an extension has been taken (see § 2.13) (be sure to allow for mailing time), you may contact the bureau to ask about the delay (see Appendix A to this part). You also have the right to consider any nonresponse within these time limits as a denial of records and file a formal appeal (see § 2.28(a)(3)) or lawsuit. These time limits do not apply to requests for expedited processing (see § 2.14).</P> <P>(b) <E T="03">Running of basic time limit.</E> The 20 workday time limit begins to run when a request complying with the procedures in §§ 2.8 and 2.10 is received by the FOIA contact at the bureau office that has the records you are seeking. This means that all issues regarding fees and the scope of your request must be resolved before the bureau will begin processing your request.</P> </SECTION> <SECTION> <SECTNO>§ 2.13</SECTNO> <SUBJECT>When may the bureau take a time extension to respond to my request?</SUBJECT> <P>(a) The bureau may extend the 20-workday time limit for 10 more workdays when it needs to:</P> <P>(1) Search for and collect the requested records from multiple offices; or</P> <P>(2) Search for, collect, and examine a voluminous amount of separate and distinct records sought in a single request; or</P> <P>(3) Consult with another agency having a substantial interest in the determination of the request or with one or more bureaus of the Department having substantial subject-matter interest in the request.</P> <P>(b) If the bureau intends to take an extension under this subsection, it will notify you in writing and provide the reason for the extension and the date it expects to make a determination on your request.</P> <P>(c) If an extension is necessary and the bureau is unable to respond to your request within 30 workdays, it will notify you in writing when you may expect a final response and advise you of your appeal rights. If an extension is taken and you have not received a response in 30 workdays, you may consider the request denied and file an appeal under § 2.28(a)(3) or file a lawsuit.</P> <P>(d) A bureau may not take an extension of time to decide whether to grant a request for a fee waiver.</P> </SECTION> <SECTION> <SECTNO>§ 2.14</SECTNO> <SUBJECT>When can I get expedited processing?</SUBJECT> <P>(a) When requested, a bureau will provide expedited processing if you demonstrate to the satisfaction of the bureau that the request involves:</P> <P>(1) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;</P> <P>(2) An urgency to inform the public about an actual or alleged Federal Government activity if the request is made by a person primarily engaged in disseminating information. In most situations, a person primarily engaged in disseminating information will be a representative of the news media. The requested information must be the type of information which has particular value that will be lost if not disseminated quickly, and ordinarily <PRTPAGE P="16"/>refers to a breaking news story of general public interest. However, information of historical interest only, or information sought for litigation or commercial activities would not qualify, nor would a news media deadline unrelated to breaking news; or</P> <P>(3) The loss of substantial due process rights.</P> <P>(b) A request for expedited processing should be submitted with your FOIA request. For a prompt determination, you must submit a request complying with the requirements of §§ 2.8 and 2.10 to the FOIA Contact at the bureau office that maintains the records you are seeking.</P> <P>(c) If you are seeking expedited processing, you must submit a statement explaining in detail the basis for your request. You must certify in your letter that your need for expedited processing is true and correct to the best of your knowledge and belief. For example, a requester within the category of paragraph (a)(2) of this section, if not a full time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his/her sole occupation.</P> <P>(d) Within 10 calendar days of receipt of your request, the bureau will notify you whether it will grant expedited processing. If expedited processing is granted, the bureau will give priority to that FOIA request and process the request as soon as practicable. If expedited processing is denied, the bureau will notify you of your right to appeal the decision on expedited processing. Appeals of denials of requests for expedited processing will be processed ahead of other appeals (see § 2.32(b)). If the bureau has not responded to your request for expedited processing within 10 calendar days, you have a right to file an appeal for nonresponse (see § 2.28(a)(7)).</P> </SECTION> <SECTION> <SECTNO>§ 2.15</SECTNO> <SUBJECT>Will I be charged fees?</SUBJECT> <P>Bureaus will charge fees consistent with the provisions in §§ 2.16 and 2.17. The fee schedule in Appendix C to this part applies to all bureaus of the Department.</P> </SECTION> <SECTION> <SECTNO>§ 2.16</SECTNO> <SUBJECT>How are fees determined?</SUBJECT> <P>(a) <E T="03">Authority.</E> Bureaus are authorized to charge fees to recover the direct costs of searching for, reviewing (commercial-use requesters only) and duplicating documents to respond to a FOIA request. However, nothing in this subsection will supersede any statutory authority which requires the bureau to charge specific fees for certain types of records.</P> <P>(b) <E T="03">Policy.</E> (1) Unless waived under the criteria in §§ 2.19 or 2.20, bureaus will charge fees for responding to FOIA requests consistent with the provisions of this section and the fee schedule in Appendix C.</P> <P>(2) A bureau normally will not charge a fee where the fee would be $30 or less. However, if the bureau has a reasonable basis to conclude that a requester or group of requesters has divided a request into a series of requests on a single subject or related subjects to avoid fees, the requests may be aggregated and fees charged accordingly. Bureaus may presume that multiple requests of this type that are made within a 30-day period have been made in order to avoid fees. Where requests are separated by a longer period, bureaus will aggregate them only where there exists a solid basis for determining that aggregation is warranted under all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.</P> <P>(3) Where a bureau responds to a request on behalf of more than one bureau, the fees that would be chargeable by all bureaus involved will be considered in determining whether the total FOIA processing fee is $30 or less. If a bureau is responding on behalf of more than one bureau, and you fall under one of the fee categories in § 2.17(a)(2) or (a)(3), you will be entitled to receive up to a total of 100 pages of duplication without charge (there is no charge for searching for responsive records). If a bureau is responding on behalf of more than one bureau, and you fall under the fee category in § 2.17(a)(4), you will be entitled to receive up to a total of 100 pages of duplication and two hours of search time without charge.</P> <P>(4) If a bureau obtains research data solely in response to your FOIA request, it may charge you a reasonable <PRTPAGE P="17"/>fee equaling the full cost of obtaining the research data from the recipient.</P> <P>(c) <E T="03">Searches.</E> Searches will be conducted in the most efficient and least expensive manner, so as to minimize costs for both you and the bureau. Except where provided in §§ 2.17(a)(2) and (a)(3), bureaus will charge for time spent in the following search activities:</P> <P>(1) Time spent in trying to locate records which come within the scope of the request, whether or not documents responsive to the request are located or the records located are exempt from disclosure; and</P> <P>(2) Direct costs involving the use of computer time to locate requested records.</P> <P>(d) <E T="03">Reviews (Commercial-use requests only).</E> (1) Bureaus will charge commercial-use requesters (see § 2.17(a)(1)) for time spent by bureau staff and attorneys in reviewing requested records for releasability. (See § 2.3(e).)</P> <P>(2) Review costs will be assessed even if a record ultimately is not disclosed.</P> <P>(e) <E T="03">Duplication.</E> Bureaus will charge duplication fees according to the fee schedule in Appendix C to this part.</P> <P>(f) <E T="03">Categories of requesters.</E> There are four categories of requesters for the purposes of determining fees—commercial-use, educational and noncommercial scientific institutions, news media, and all others. (See §§ 2.3 and 2.17.)</P> </SECTION> <SECTION> <SECTNO>§ 2.17</SECTNO> <SUBJECT>How will my requester category affect the fees that I am charged?</SUBJECT> <P>(a) When you submit a FOIA request, you must specify your fee category. Based on the information you provide, the bureau office processing your request will decide your fee category and charge as follows:</P> <P>(1) Commercial-use requesters are charged fees for costs incurred in document search, review, and duplication.</P> <P>(2) Educational/noncommercial scientific institutions are 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) will be provided without charge. The bureau will not charge such requesters for document search and review.</P> <P>(3) News media requesters are 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) will be provided without charge. The bureau will not charge such requesters for document search and review.</P> <P>(4) Requesters not covered by paragraphs (a)(1) through (a)(3) of this section—“other requesters” are charged fees for document search and duplication, except that they are entitled to the first two hours of search time and the first 100 pages of paper copies without charge (or the equivalent cost thereof if the records are in some other form). The bureau will not charge such requesters for document review.</P> <P>(b) If you do not submit sufficient information in your FOIA request for the bureau to determine your fee category (see paragraphs (a)(1) through (a)(4) of this section), the bureau may ask you to provide additional clarification. This applies to all requesters. The bureau will notify you promptly when additional information is needed. In these circumstances, the 20-workday statutory time limit for responding to your request will not begin to run until you provide sufficient information. If the bureau requests additional clarification and does not hear from you within 20 workdays, it will assume that you are no longer interested in this matter and will close the file on your request.</P> <P>(c) The following table summarizes the chargeable fees for each category of requester.</P> <GPOTABLE CDEF="s100,xs60,xs60,xs70" COLS="4" OPTS="L2"> <BOXHD> <CHED H="1">Category</CHED> <CHED H="1">Search fees</CHED> <CHED H="1">Review fees</CHED> <CHED H="1">Duplication fees</CHED> </BOXHD> <ROW> <ENT I="01">Commercial Use</ENT> <ENT>Yes</ENT> <ENT>Yes</ENT> <ENT>Yes.</ENT> </ROW> <ROW> <ENT I="01">Educational Institution</ENT> <ENT>No</ENT> <ENT>No</ENT> <ENT>Yes (100 pages free).</ENT> </ROW> <ROW> <ENT I="01">Non-Commercial Scientific Institution</ENT> <ENT>No</ENT> <ENT>No</ENT> <ENT>Yes (100 pages free).</ENT> </ROW> <ROW> <ENT I="01">News Media</ENT> <ENT>No</ENT> <ENT>No</ENT> <ENT>Yes (100 pages free).</ENT> </ROW> <ROW> <ENT I="01">All other</ENT> <ENT>Yes (2 hours free)</ENT> <ENT>No</ENT> <ENT>Yes (100 pages free).</ENT> </ROW> </GPOTABLE> <PRTPAGE P="18"/> <CITA>[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58324, Sept. 30, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.18</SECTNO> <SUBJECT>How are fees assessed and collected?</SUBJECT> <P>(a) <E T="03">Threshold for charging fees.</E> Except in those situations covered by § 2.16(b)(2), the bureau will not charge you if the fee is $30 or less.</P> <P>(b) <E T="03">Notice of anticipated fees.</E> (1) Unless you have been granted a fee waiver or have previously agreed to pay all the fees associated with your request, or the anticipated fee is $30 or less, the bureau will:</P> <P>(i) Promptly notify you of the estimated costs and ask you to provide written assurance of payment of all fees or fees up to a designated amount; and</P> <P>(ii) Give you an opportunity to modify your request at that time to reduce the fee.</P> <P>(2) After the bureau begins processing your request, if it finds that the actual cost will exceed the amount you previously agreed to pay, the bureau will:</P> <P>(i) Stop processing your request;</P> <P>(ii) Promptly notify you of the higher amount and ask you to provide written assurance of payment; and</P> <P>(iii) Give you an opportunity to modify your request to reduce the fee.</P> <P>(c) <E T="03">Advance payment.</E> (1) The bureau will require advance payment when the estimated fee is over $250 and—</P> <P>(i) You have never made a FOIA request to DOI requiring you to pay fees; or</P> <P>(ii) You did not pay a previous FOIA fee promptly.</P> <P>(2) If you have previously failed to pay a fee within 30 calendar days of the date of billing, the bureau will require you to:</P> <P>(i) Pay the full amount owed plus any applicable interest penalties (see paragraph (g) of this section) and to make an advance payment of the full amount of the estimated fee of the new request; or</P> <P>(ii) Demonstrate that you have, in fact, paid the prior fee.</P> <P>(3) At the same time the bureau notifies you that an advance payment is due, it will give you an opportunity to modify your request to reduce the fee.</P> <P>(d) <E T="03">Resolving the fee issue.</E> The bureau will not start processing your request until the fee issue has been resolved (see §§ 2.8(b) and 2.12(b)). If the bureau seeks clarification from you about a fee issue and does not hear from you within 20 workdays, it will assume that you are no longer interested in this matter and will close the file on your request.</P> <P>(e) <E T="03">Billing procedures.</E> If you are required to pay a fee associated with your request, the bureau that processes your request will send you a bill for collection.</P> <P>(f) <E T="03">Form of payment.</E> You should submit a check or money order made 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. Some bureaus accept payment by credit card. Contact the bureau to determine what forms of payment it accepts.</P> <P>(g) <E T="03">Failure to pay fees.</E> The bill for collection or the response letter will include a statement that interest will be charged in accordance with 31 U.S.C. 3717 and implementing regulations, if the fees are not paid within 30 calendar days of the date of the bill. This requirement does not apply if the requester is a State, local, or tribal government. The Debt Collection Improvement Act of 1996 will be used, as appropriate, to collect the fees (see Public Law 104-134).</P> <CITA>[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58324, Sept. 30, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.19</SECTNO> <SUBJECT>When will bureaus waive fees?</SUBJECT> <P>(a) Fees for processing your request may be waived if you meet the criteria listed in paragraph (b) of this section and Appendix D to this part. The burden is on you to justify entitlement to a fee waiver. Requests for fee waivers are decided on a case-by-case basis. The fact that you have received a fee waiver in the past does not mean you are automatically entitled to a fee waiver for every request you may submit, because the essential element of any fee waiver determination is whether the release of the particular documents sought in the request will likely <PRTPAGE P="19"/>contribute significantly to public understanding of the operations or activities of the Government. The bureau will rely on the fee waiver justification you have submitted in your request letter. If you do not submit sufficient justification, your fee waiver request will be denied. The bureau may, at its discretion, communicate with you to request additional information if necessary. However the bureau must make a determination on the fee waiver request within the statutory time limit, even if the agency has not received such additional information. In certain circumstances, a partial fee waiver may be appropriate, if some, but not all, of the requested records are likely to contribute significantly to public understanding of the operations and activities of the Government.</P> <P>(b) Bureaus will waive fees (in whole or part) if disclosure of all or part of the information is in the public interest because its release—</P> <P>(1) Is likely to contribute significantly to public understanding of the operations or activities of the Government; and</P> <P>(2) Is not primarily in the commercial interest of the requester.</P> <P>(c) If a bureau denies your request for a fee waiver, it will notify you, in writing, of the following:</P> <P>(1) The basis for the denial, including a full explanation of why your fee waiver request did not meet DOI's fee waiver criteria (see paragraph (b) of this section and Appendix D to this part);</P> <P>(2) The name(s) and title(s) or position(s) of each person responsible for the denial;</P> <P>(3) The name and title of the Office of the Solicitor attorney consulted; and</P> <P>(4) A statement that the denial may be appealed within 30 workdays after the date of the denial letter to the FOIA Appeals Officer (see Appendix A to this part) under the procedures in § 2.30.</P> </SECTION> <SECTION> <SECTNO>§ 2.20</SECTNO> <SUBJECT>When will bureaus grant discretionary fee waivers?</SUBJECT> <P>(a) A bureau may waive fees at its discretion if a request involves:</P> <P>(1) Furnishing a copy of a document that the bureau has reproduced for free distribution;</P> <P>(2) Furnishing one copy of a personal document (<E T="03">e.g.,</E> a birth certificate) to a person who has been required to furnish it for retention by the Department;</P> <P>(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;</P> <P>(4) Furnishing records to donors with respect to their gifts;</P> <P>(5) Furnishing records to individuals or private nonprofit organizations having an official, voluntary or cooperative relationship with the Department to assist the individual or organization in working with the Department;</P> <P>(6) Furnishing a reasonable number records to members of the U.S. Congress, 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;</P> <P>(7) Furnishing records when to do so is in conformance with generally established business custom (<E T="03">e.g.,</E> furnishing personal reference data to prospective employers of former Department employees); or</P> <P>(8) Furnishing one copy of a single record in order to assist the requester in obtaining financial benefits to which he or she may be entitled (<E T="03">e.g.,</E> veterans or their dependents, employees with Government employee compensation claims).</P> <P>(b) You cannot appeal the denial of a discretionary fee waiver.</P> </SECTION> <SECTION> <SECTNO>§ 2.21</SECTNO> <SUBJECT>How will the bureau respond to my request?</SUBJECT> <P>(a) After all the criteria in §§ 2.8 and 2.10 have been met, the bureau will make a reasonable effort to search for records responsive to your request. In determining which records are responsive to your request, the bureau will include any records in its possession and control as of the date it begins its search. This will include searching for records in an electronic form/format, except where it would interfere significantly with the bureau's automated information systems.<PRTPAGE P="20"/> </P> <P>(b) In response to your request, the bureau will do one of two things:</P> <P>(1) Include the requested records with the response letter or notify you of how, when, and where the records will be made available; or</P> <P>(2) Deny part or all of your request, except that the bureau may, consistent with Departmental policy, determine that a discretionary release is appropriate under the particular circumstances. Your request will be denied or partially denied only if one of the nine statutory exemptions listed in Appendix E to this part applies to all or part of the records you have requested.</P> <P>(c) Where a document contains both exempt and nonexempt material, the bureau will generally separate and release the nonexempt information. When disclosing a record in part, the bureau will indicate on the released portion of the record how much information was deleted, unless doing so would harm an interest protected by the exemption used to withhold the information. Further, if technically feasible, the amount of information deleted and the exemption used to withhold the information will be indicated where the deletion is made. If the nonexempt material is so intertwined with the exempt material that disclosure of it would leave only meaningless words and phrases, the entire portion may be withheld.</P> <P>(d) If a bureau denies your request for records in whole or in part, the bureau's response will include:</P> <P>(1) A reference to the specific exemption or exemptions authorizing the withholding;</P> <P>(2) An explanation of the reason(s) for the denial;</P> <P>(3) An estimate of the volume of information being withheld. The bureau will make a reasonable effort to estimate the volume of any records denied, or portions of records (<E T="03">e.g.,</E> 100 pages, 4 Federal Record Center boxes, 1,000 kilobytes, etc.), unless such an estimate would harm an interest protected by the exemption used to withhold the information.</P> <P>(4) The name(s) and title(s) of the person(s) responsible for the denial;</P> <P>(5) The name and title of the Office of the Solicitor attorney consulted; and</P> <P>(6) A statement that the denial may be appealed to the FOIA Appeals Officer (see Appendix A to this part), within 30 workdays of the date of the denial letter or 30 workdays after the records have been released under the procedures in § 2.30.</P> <P>(e) If records do not exist within DOI, cannot be located, are not reasonably described, or if a procedural issue remains unresolved (<E T="03">e.g.,</E> a fee issue), the bureau will respond to you in writing, including the following information, as applicable:</P> <P>(1) An explanation of the basis of the decision;</P> <P>(2) The name(s) and title(s) of the person(s) responsible for the decision; and</P> <P>(3) A statement that the matter may be appealed within 30 workdays of the date of the response, to the FOIA Appeals Officer under the procedures in § 2.30.</P> <P>(f) The bureau must consult with the Office of the Solicitor if it is considering withholding a requested record or denying a fee waiver.</P> <P>(g) If any fees are due, the bureau will notify you in writing of the amount.</P> <P>(h) All bureau responses will include the name and telephone number of a contact person in case you have questions concerning the response.</P> <P>(i) Requests for information concerning coal under the Mineral Leasing Act or the Mineral Leasing Act for Acquired Lands are subject to special rules (see Appendix F to this part).</P> </SECTION> <SECTION> <SECTNO>§ 2.22</SECTNO> <SUBJECT>What happens if a bureau receives a request for records it does not have or did not create?</SUBJECT> <P>(a) <E T="03">Consultations/referrals within DOI.</E> (1) If a bureau receives a request for records not in its possession, but which it knows another bureau has or is likely to have, it will refer the request to that bureau(s) for response. It also will notify you of the referral in writing and provide the name of a contact in the other bureau(s) to which the referral was made. The time limit for responding to your request starts when the request reaches the bureau office that has the records.</P> <P>(2) If a bureau (other than the Office of Inspector General) receives a request <PRTPAGE P="21"/>for records in its possession that another bureau created or is substantially concerned with, it will consult with the other bureau before deciding whether to release or withhold the records. As an alternative, the bureau may refer the request along with the records to that bureau for direct response. It will notify you of the referral in writing and provide the name of a contact in the other bureau(s) to which the referral was made. Such a referral does not restart the statutory time limit for responding to your request.</P> <P>(b) <E T="03">Consultations/referrals with agencies outside DOI.</E> (1) If a bureau receives a request for records not in its possession, but which the bureau believes may be in the possession of another Federal agency, the bureau will return your request and advise you to submit it directly to the other agency. If you still believe that the records exist within DOI, you should notify the bureau FOIA contact of any additional information which leads you to believe the records exist and where they might be found. Alternatively, you may treat such a response as a denial of records and file an appeal.</P> <P>(2) If, in response to a request, a bureau locates documents that originated with another Federal agency, it will refer the request, along with any responsive document(s), to that agency for a release determination and direct response. If the bureau refers the documents to another agency, it will notify you of the referral in writing and provide the name of a contact at the other agency. You may treat such a response as a denial of records and file an appeal. However, in the following situations, the bureau will make the release determination, after consulting with the originating agency.</P> <P>(i) When the record is of primary interest to DOI (a record is of primary interest to DOI if it was developed or prepared according to DOI regulations or directives, or in response to a DOI request);</P> <P>(ii) If DOI is in a better position than the originating agency to assess whether the record is exempt from disclosure;</P> <P>(iii) If the originating agency is not subject to the FOIA; or</P> <P>(iv) When it is more efficient or practical depending on the circumstances.</P> <P>(3) If a bureau receives a request for records which have been classified by another agency under Executive Order 12958, Classified National Security Information, or superseding Executive order, it must refer the request to that agency for response.</P> <CITA>[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58324, Sept. 30, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.23</SECTNO> <SUBJECT>How will a bureau handle a request for commercial or financial information that it has obtained from a person or entity outside the Federal Government?</SUBJECT> <P>(a) If a bureau receives a FOIA request for records containing commercial or financial information submitted by a person or entity outside the Federal Government, under Executive Order 12600, Predisclosure Notification Procedures for Confidential Commercial Information, or superseding Executive order, the bureau must provide the submitter with prompt written notice of the request, except as provided in paragraph (h) of this section, whenever:</P> <P>(1) The submitter has designated the information as confidential commercial or financial information, or</P> <P>(2) The bureau has reason to believe that the information may be protected under exemption (4).</P> <P>(b) The notice to the submitter will—</P> <P>(1) Include a copy of the FOIA request.</P> <P>(2) Describe the information requested or include copies of the pertinent records.</P> <P>(3) Advise the submitter of the procedures for objecting to the release of the requested material and specify the time limit for responding.</P> <P>(4) Give the submitter no less than 10 workdays, from receipt (or publication as set forth in paragraph (c) of this section) of the bureau's notice, to object to the release and to explain the basis for the objection, if any.</P> <P>(5) Advise the submitter that:</P> <P>(i) Information contained in his/her objections may be subject to disclosure under the FOIA if the bureau receives a FOIA request for it; and<PRTPAGE P="22"/> </P> <P>(ii) If the submitter's objections contain commercial or financial information and a requester asks for the objections under the FOIA, the notification procedures of this subsection will apply.</P> <P>(6) Advise the submitter that it is the bureau, rather than the submitter, that is responsible for deciding whether the information will be released or withheld.</P> <P>(7) If the submitter designated the material as confidential commercial or financial information 10 or more years before the request, request the submitter's views on whether he/she still considers the information to be confidential.</P> <P>(c) Where a large number of submitters is involved, the bureau may, rather than providing written notice to each submitter, publish a notice in a manner reasonably calculated to reach the attention of the submitters (<E T="03">e.g.,</E> in newspapers/newsletters, the bureau's Web site, or the <E T="04">Federal Register</E>).</P> <P>(d) Whenever a bureau notifies a submitter that it may be required to disclose information in response to a FOIA request, the bureau also will notify you that it is giving the submitter an opportunity to review and comment on the material.</P> <P>(e) If the submitter has any objection to disclosure he/she must submit a detailed written statement including the following:</P> <P>(1) The justification for withholding any portion of the information under any exemption of the FOIA. In the case of exemption (4), there must be a specific and detailed discussion of:</P> <P>(i) Whether the Government required the information in question to be submitted, and if so, how substantial competitive or other business harm would likely result from release; or</P> <P>(ii) Whether the submitter provided the information voluntarily and, if so, how the information in question fits into a category of information that the submitter customarily does not release to the public.</P> <P>(2) A certification that the information is confidential, has not been disclosed to the public by the submitter, and is essentially non-public because it is not routinely available to the public from other sources.</P> <P>(3) If not already provided, a telephone number (where the submitter can be reached during normal business hours), an e-mail address, and a fax number (if available) is important information that will help the bureau or Department communicate with the submitter.</P> <P>(f) The bureau will review and consider all objections to release that are received within the time specified in the notice to the submitter. However, it is the bureau, rather than the submitter, that is responsible for deciding whether the information should be released or withheld. If a submitter fails to respond to the bureau within the time limits specified in the notice, the bureau will presume that the submitter has no objection to disclosure of the information.</P> <P>(g) If the bureau decides to release records over the submitter's objections, it will inform the submitter and you in writing. The notice to the submitter will be sent by certified mail, return receipt requested, to the submitter's last known address and will include copies of the records the bureau intends to release and the bureau's reasons for deciding to release them. The notice also will inform the submitter that it intends to release the records 10 workdays after receipt of the notice by the submitter.</P> <P>(h) The bureau will not consult with the submitter if:</P> <P>(1) The bureau responsible for the decision determines that the information is exempt from disclosure;</P> <P>(2) The information has been lawfully published or otherwise made available to the public, such as in response to an earlier FOIA request or if the submitter has made the information public;</P> <P>(3) Disclosure of the information is required by statute (other than the FOIA) or regulation (other than this subpart);</P> <P>(4) Disclosure of the information is prohibited by statute; or</P> <P>(5) The designation of confidentiality made by the submitter appears obviously frivolous. However, the bureau will notify the submitter of any final decision to disclose the information 15 workdays prior to releasing it.<PRTPAGE P="23"/> </P> <P>(i) The bureau will inform the submitter within 10 workdays of the Department's receipt of a court complaint if you file a lawsuit for access to any of the withheld records. Similarly, the bureau will notify you within 10 workdays of the Department's receipt of a court complaint if the submitter files a lawsuit to prohibit the bureau from disclosing the records.</P> <P>(j) If the bureau determines that the requested information is protected from release by exemption (4) of the FOIA, the bureau has no discretion to release the information as doing so would violate the Trade Secrets Act, a criminal provision found at 18 U.S.C. 1905.</P> <CITA>[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58325, Sept. 30, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.24</SECTNO> <SUBJECT>Is a submitter required to designate information that is commercially or financially sensitive?</SUBJECT> <P>No. If in the course of responding to a FOIA request, a bureau cannot readily determine whether the information obtained from a person is commercially or financially sensitive information, the bureau will obtain and consider the views of the submitter of the information and provide the submitter an opportunity to object to any decision to disclose the information.</P> </SECTION> <SECTION> <SECTNO>§ 2.25</SECTNO> <SUBJECT>How will a bureau handle a request for Federally-funded research data in the possession of a private entity?</SUBJECT> <P>In accordance with OMB Circular A-110, when published research findings are produced under a grant or other Federal assistance awarded to institutions of higher education, public and private hospitals, and other quasi-public and private nonprofit organizations, and the findings are used by a bureau in developing an agency action, <E T="03">e.g.</E>, a policy or regulation, research data related to such findings are considered agency records. This applies even if the bureau's data are in the possession of the recipient of the Federal financial assistance (recipient).</P> <P>(a) If you submit a FOIA request for such research data, the bureau will require the recipient to provide the information to it within a reasonable amount of time, so the bureau can consider the data for release to the public under the FOIA.</P> <P>(b) The bureau will notify you that it may charge you for any additional fees incurred as a result of obtaining the research data from the recipient. This fee is in addition to any fees the bureau may charge to process your request under the FOIA.</P> <P>(c) The bureau will forward a copy of the request to the recipient, who is responsible for searching for and reviewing the requested information in accordance with DOI's FOIA regulations (43 CFR part 2). The recipient will forward a copy of any responsive records that are located, along with his/her recommendations concerning the releasability of the data, and the total cost incurred in searching for, reviewing, and providing the data to the appropriate bureau FOIA contact.</P> <P>(d) The bureau will review and consider the recommendations of the recipient regarding the releasability of the requested data. However, it is the bureau, rather than the recipient, that is responsible for deciding whether the information will be released or withheld.</P> <CITA>[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58325, Sept. 30, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.26</SECTNO> <SUBJECT>Does the bureau provide multitrack processing of FOIA requests?</SUBJECT> <P>(a) A bureau may use two or more processing tracks to distinguish between simple and complex requests based on the amount of work and/or time needed to process the request, including the number of pages involved.</P> <P>(b) If a bureau uses multitrack processing, it will advise requesters in its slower track(s) of the criteria of its faster track(s). For example, a bureau using multitrack processing may provide requesters in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the bureau's faster track(s). A bureau doing so will contact the requester by telephone or in writing, whichever is more efficient in each case.</P> </SECTION> <SECTION> <PRTPAGE P="24"/> <SECTNO>§ 2.27</SECTNO> <SUBJECT>How will a bureau handle a request for information that is contained in a Privacy Act system of records? (See DOI's Privacy Act regulations (Subpart G of this part) for additional information.)</SUBJECT> <P>(a) When you request information pertaining to yourself that is contained in a Privacy Act system of records applicable to you (<E T="03">i.e.,</E> the information contained in the system of records is retrieved by the bureau using your name or other personal identifier), the request will be processed under both the FOIA and the Privacy Act. If you request information about yourself, you must submit certain identifying information, usually an original signature (see the appropriate Privacy Act system notice and, Subpart G of this part) before the bureau will process your request. (Note: If you request information about yourself that is not covered by the Privacy Act, <E T="03">e.g.,</E> the information may be filed under another subject, such as an organization, activity, event, or an investigation not retrievable by a name or personal identifier, the request will be treated only as a FOIA request.)</P> <P>(b) The Privacy Act never prohibits disclosure of material that the FOIA requires to be released. Both a Privacy Act and a FOIA exemption must apply to withhold information from you if the information you seek is contained in a Privacy Act system of records applicable to you.</P> <P>(c) Sometimes a request for Privacy Act information is submitted by a “third party” (an individual other than the person who is the subject of the Privacy Act record). If you request Privacy Act information about another individual, the material will not be disclosed without prior written approval by that individual unless—</P> <P>(1) The release is provided for under one of the Privacy Act conditions of disclosure (5 U.S.C. 552a(b)), one of which is that Privacy Act information is releasable if it is required to be released under the FOIA, or</P> <P>(2) In most circumstances, if the individual is deceased. See § 2.8(d)(4).</P> <P>(d) In handling a request covered by paragraph (a) of this section, the fee provisions and time limits under the FOIA will apply, except that with regard to information that is subject to the Privacy Act, the bureau will charge only for duplication and not for search and review time (see Appendix C to this part). There will be no charge if the fee for processing the request is $30 or less.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—FOIA Appeals</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>67 FR 64530, Oct. 21, 2002, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2.28</SECTNO> <SUBJECT>When may I file an appeal?</SUBJECT> <P>(a) You may file an appeal when:</P> <P>(1) Records or parts of records have been withheld;</P> <P>(2) The bureau informs you that you have not adequately described the records you are seeking, or that it does not possess responsive records and you have reason to believe it does or you question the adequacy of the bureau's search for responsive records;</P> <P>(3) A decision has not been made on your request within the time limits provided in § 2.12;</P> <P>(4) The bureau did not address all aspects of your request for records;</P> <P>(5) You believe there is a procedural deficiency (<E T="03">e.g.,</E> fees are improperly calculated);</P> <P>(6) A fee waiver has been denied; or</P> <P>(7) A request for expedited processing has been denied or not responded to on time. (Special procedures apply to this type of appeal (see §§ 2.14, 2.29(c), and 2.32(b)). An appeal of this type relates only to the request for expedited processing and does not constitute an appeal of your underlying request for records.</P> <P>(b) Before filing an appeal, you may wish to communicate with the contact person listed in the FOIA response or the bureau's FOIA Officer to see if the issue can be resolved informally. Informal resolution of your concerns may be appropriate where the bureau has not responded to your request or where you believe the search conducted was not adequate. In this latter instance, you may be able to provide additional information that may assist the bureau in locating records. However, if you wish to file an appeal, it must be received by the FOIA Appeals Officer within the time limits in § 2.29.</P> </SECTION> <SECTION> <PRTPAGE P="25"/> <SECTNO>§ 2.29</SECTNO> <SUBJECT>How long do I have to file an appeal?</SUBJECT> <P>(a) Appeals covered by §§ 2.28(a)(1), (2), and (4) thru (6). Your appeal must be received by the FOIA Appeals Officer no later than 30 workdays after the date of the final response or 30 workdays after receipt of any records that are provided to you.</P> <P>(b) Appeals covered by § 2.28(a)(3). You may file an appeal any time after the time limit for responding to your request has passed.</P> <P>(c) Appeals covered by § 2.28(a)(7). You should file an appeal as soon as possible.</P> </SECTION> <SECTION> <SECTNO>§ 2.30</SECTNO> <SUBJECT>How do I file an appeal?</SUBJECT> <P>(a) You must submit your appeal in writing, <E T="03">i.e.,</E> by mail, fax or e-mail, to the FOIA Appeals Officer, U.S. Department of the Interior (see Appendix A for the address). Your appeal must include the information specified in paragraph (b) of this section. Failure to send your appeal directly to the FOIA Appeals Officer may result in a delay in processing.</P> <P>(b) Your appeal must contain copies of all correspondence between you and the bureau, including your request and the bureau's response (if there is one). DOI will not begin processing your appeal and the time limits for responding to your appeal will not begin to run until these documents are received.</P> <P>(c) You also should include in as much detail as possible any reason(s) why you believe the bureau's response was in error.</P> <P>(d) Include your name and daytime telephone number (or the name and telephone number of an appropriate contact), e-mail address and fax number (if available), in case DOI needs additional information or clarification of your appeal.</P> <P>(e) If you file an appeal concerning a fee waiver denial or a denial of expedited processing, you should, in addition to complying with paragraph (b) of this section, demonstrate fully how the criteria in § 2.19(b) (see Appendix D) or § 2.14(a) are met. You also should state in as much detail as possible why you believe the initial decision was incorrect.</P> <P>(f) All communications concerning your appeal should be clearly marked with the words: “FREEDOM OF INFORMATION APPEAL.”</P> </SECTION> <SECTION> <SECTNO>§ 2.31</SECTNO> <SUBJECT>How will DOI respond to my appeal?</SUBJECT> <P>(a) Appeals will be decided by the FOIA Appeals Officer. When necessary, the FOIA Appeals Officer will consult other appropriate offices, including the Office of the Solicitor (in the case of all denials of information and fee waivers, and other technical issues as necessary).</P> <P>(b) The final decision on an appeal will be in writing and will state the basis for DOI's decision as follows:</P> <P>(1) <E T="03">Decision to release or withhold records.</E> (i) If the FOIA Appeals Officer decides to release the withheld records or portions thereof, he/she will make the records available or instruct the appropriate bureau to make them available as soon as possible.</P> <P>(ii) If the FOIA Appeals Officer decides to uphold in whole or part the denial of a request for records, he/she will advise you of your right to obtain judicial review.</P> <P>(2) <E T="03">Non-possession of records.</E> If the FOIA Appeals Officer decides that the requested records exist, the bureau that has the records will issue a response to you promptly and the FOIA Appeals Officer will close the file on your appeal. If the FOIA Appeals Officer decides that the requested records cannot be located or do not exist, he/she will advise you of your right to treat the decision as a denial and seek judicial review.</P> <P>(3) <E T="03">Non-response to a FOIA request.</E> If a bureau has not issued an appropriate response to your FOIA request within the 20-workday statutory time limit, the FOIA Appeals Officer will direct the bureau to issue a response directly to you as soon as possible. If the bureau responds to your request within 20-workdays after receipt of the appeal, the FOIA Appeals Officer will close the file on your appeal. Otherwise, the FOIA Appeals Officer will advise you that you may treat the lack of a response by the bureau as a denial of your appeal and seek judicial review.</P> <P>(4) <E T="03">Incomplete response to a FOIA request.</E> If a bureau has not issued a complete response to your FOIA request, the FOIA Appeals Officer will direct <PRTPAGE P="26"/>the bureau to issue a complete response directly to you as soon as possible, and provide you with the name and telephone number of a contact person. The FOIA Appeals Officer will close your FOIA appeal and advise you that you may treat the incomplete response by the bureau as a denial of your appeal and seek judicial review.</P> <P>(5) <E T="03">Procedural deficiencies.</E> If the FOIA Appeals Officer decides that the bureau was in error, he/she will instruct the bureau to correct the error and advise you accordingly. If the FOIA Appeals Officer decides that the bureau acted properly, he/she will deny your appeal and advise you of your right to seek judicial review.</P> <P>(6) <E T="03">Fee waiver denials.</E> If the decision is to grant your request for a fee waiver, the FOIA Appeals Officer will advise the appropriate bureau of the Department's decision and instruct the bureau to proceed with processing the request or to refund any monies you have paid. If the decision is to deny the fee waiver request, the Department will advise you of your right to seek judicial review. You also should contact the bureau office to make further arrangements to process your request if you still wish to obtain the records.</P> <P>(7) <E T="03">Denial of expedited processing.</E> If the FOIA Appeals Officer decides to grant expedited processing, he/she will direct the bureau to process your request as soon as practicable. If your request for expedited processing is denied on appeal, the FOIA Appeals Officer will advise you of your right to seek judicial review of the denial of expedited processing.</P> </SECTION> <SECTION> <SECTNO>§ 2.32</SECTNO> <SUBJECT>How long does DOI have to respond to my appeal?</SUBJECT> <P>(a) The statutory time limit for responding to an appeal is 20 workdays after receipt of an appeal meeting the requirements of § 2.30.</P> <P>(b) If you request expedited processing of your appeal, you must demonstrate to the Department's satisfaction that the appeal meets one of the criteria under § 2.14(a). The FOIA Appeals Officer will advise you whether the Department will grant expedited processing within 10 calendar days of its receipt of your appeal. If the FOIA Appeals Officer decides to grant expedited processing, he/she will give your appeal priority and process it ahead of other pending appeals.</P> <P>(c) If you have not received a decision on your appeal within 20 workdays, you have the right to seek review in a District Court of the United States (see 5 U.S.C. 552(a)(4) and (6)). In the event that the Department is unable to reach a decision within the given time limits, the FOIA Appeals Officer will notify you of the reason for the delay and the right to seek judicial review.</P> </SECTION> <SECTION> <SECTNO>§ 2.33</SECTNO> <SUBJECT>How will the Department notify you and the submitter of commercial or financial information when it makes an appeal decision concerning such information?</SUBJECT> <P>(a) <E T="03">Notice of appeal decision.</E> If the Department decides on appeal to release records over the objections of a submitter who has advised DOI that the information is protected from release by exemption (4), the Department will advise you and the submitter that it intends to release the records 10 workdays after the notice to the submitter regarding the appeal decision.</P> <P>(b) <E T="03">Notice of litigation.</E> </P> <P>(1) The Department will notify the submitter within 10 workdays of receipt of the court complaint if you file a lawsuit seeking access to any records found on appeal to be protected from release by exemption (4).</P> <P>(2) The Department will notify you within 10 workdays of receipt of the court complaint if the submitter files a lawsuit requesting the court to prohibit the Department from releasing information it alleges qualifies for protection under exemption (4).</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—FOIA Annual Report</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>67 FR 64530, Oct. 21, 2002, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 2.34</SECTNO> <SUBJECT>Where can I get a copy of DOI's FOIA annual report?</SUBJECT> <P>Under 5 U.S.C. 552(e), DOI is required to prepare an annual report regarding its FOIA activities. The report includes information about FOIA requests, appeals, and litigation against the Department. Copies of DOI's annual FOIA <PRTPAGE P="27"/>report may be obtained from the Departmental FOIA Officer or by contacting DOI's Library which is located at the C Street entrance of the Main Interior Building (MIB), 1849 C Street, NW., Washington, DC 20240 (see Appendix A to this part). You may access the annual reports electronically by visiting DOI's FOIA home page (see Appendix B to this part for the Internet address).</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Declassification of Classified Documents</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>40 FR 7305, Feb. 19, 1975, unless otherwise noted. Redesignated at 67 FR 64530, Oct. 21, 2002.</P> </SOURCE> <SECTION> <SECTNO>§ 2.41</SECTNO> <SUBJECT>Declassification of classified documents.</SUBJECT> <P>(a) <E T="03">Request for classification review.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Action on requests for classification review.</E> (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.</P> <P>(2) If the requester does not receive a decision on his request within sixty (60) days from the date of receipt of his request, or from the date of his most recent response to a request for more particulars, he may apply to the Department of the Interior Oversight Committee for Security, U.S. Department of the Interior, Washington, DC 20240, for a decision on his request. The Committee must render a decision within thirty (30) days.</P> <P>(c) <E T="03">Form of decision and appeal to Oversight Committee for Security.</E> 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 <PRTPAGE P="28"/>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.</P> <P>(d) <E T="03">Appeal to Interagency Classification Review Committee.</E> 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.</P> <P>(e) <E T="03">Suggestions and complaints.</E> 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.</P> <CITA>[40 FR 7305, Feb. 19, 1975, as amended at 47 FR 38327, Aug. 31, 1982]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Privacy Act</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>40 FR 44505, Sept. 26, 1975, unless otherwise noted. Redesignated at 67 FR 64530, Oct. 21, 2002.</P> </SOURCE> <SECTION> <SECTNO>§ 2.45</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>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.</P> <CITA>[48 FR 56583, Dec. 22, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.46</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Act.</E> As used in this subpart, “Act” means section 3 of the Privacy Act, 5 U.S.C. 552a.</P> <P>(b) <E T="03">Bureau.</E> 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.</P> <P>(c) <E T="03">Individual.</E> As used in this subpart, “individual” means a citizen of the United States or an alien lawfully admitted for permanent residence.</P> <P>(d) <E T="03">Maintain.</E> As used in this subpart, the term “maintain” includes maintain, collect, use or disseminate.</P> <P>(e) <E T="03">Record.</E> As used in this subpart, “record” means any item, collection, or grouping of information about an individual that is maintained by the Department or a bureau thereof, including, but not limited to, education, financial transactions, medical history, and criminal or employment history and that contains the individual's name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print, or a photograph.</P> <P>(f) <E T="03">System of records.</E> 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.</P> <P>(g) <E T="03">Medical records.</E> 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.</P> <P>(h) <E T="03">Office of Personnel Management personnel records.</E> As used in the subpart, “Office of Personnel Management personnel records” means records maintained for the Office of Personnel Management by the Department and <PRTPAGE P="29"/>used for personnel management programs or processes such as staffing, employee development, retirement, and grievances and appeals.</P> <P>(i) <E T="03">Statistical records.</E> 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.</P> <P>(j) <E T="03">Routine use.</E> 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.</P> <P>(k) <E T="03">System notice.</E> 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 <E T="04">Federal Register</E> upon establishment or revision of the system of records.</P> <P>(l) <E T="03">System manager.</E> As used in this subpart, “system manager” means the official designated in a system notice as having administrative responsibility for a system of records.</P> <P>(m) <E T="03">Departmental Privacy Act Officer.</E> 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.</P> <P>(n) <E T="03">Bureau Privacy Act Officer.</E> 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.</P> <P>(o) <E T="03">Working day.</E> As used in this subpart, “working day” means a regular Federal work day. It does not include Saturdays, Sundays or public legal holidays.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.47</SECTNO> <SUBJECT>Records subject to Privacy Act.</SUBJECT> <P>The Privacy Act applies to all “records,” as that term is defined in § 2.46(e), which the Department maintains in a “system of records,” as that term is defined in § 2.46(f).</P> </SECTION> <SECTION> <SECTNO>§ 2.48</SECTNO> <SUBJECT>Standards for maintenance of records subject to the Act.</SUBJECT> <P>(a) <E T="03">Content of records.</E> 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.</P> <P>(b) <E T="03">Standards of accuracy.</E> 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.</P> <P>(c) <E T="03">Collection of information.</E> (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.</P> <P>(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:</P> <P>(i) Whether the nature of the information sought is such that it can only be obtained from a third party;</P> <P>(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;</P> <P>(iii) Whether there is a risk that information collected from third parties, if inaccurate, could result in an adverse determination to the individual concerned;</P> <P>(iv) Whether the information, if supplied by the individual, would have to be verified by a third party; or</P> <P>(v) Whether provisions can be made for verification, by the individual, of information collected from third parties.</P> <P>(d) <E T="03">Advice to individuals concerning uses of information.</E> (1) Each individual who is asked to supply information about him or herself which will be <PRTPAGE P="30"/>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.</P> <P>(2) At a minimum, the notice to the individual must state:</P> <P>(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;</P> <P>(ii) The principal purpose or purposes for which the information is intended to be used;</P> <P>(iii) The routine uses which may be made of the information; and</P> <P>(iv) The effects on the individual, if any, of not providing all or any part of the requested information.</P> <P>(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.</P> <P>(ii) When information is collected by an interviewer, the interviewer shall provide the individual with a written notice which the individual may retain. If the interview is conducted by telephone, however, the interviewer may summarize the notice for the individual and need not provide a copy to the individual unless the individual requests a copy.</P> <P>(iii) An individual may be asked to acknowledge, in writing, that the notice required by this section has been provided.</P> <P>(e) <E T="03">Records concerning activity protected by the First Amendment.</E> 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.</P> <CITA>[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56583, Dec. 22, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.49</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 2.50</SECTNO> <SUBJECT>Federal Register notices describing systems of records.</SUBJECT> <P>(a) The Privacy Act requires publication of a notice in the <E T="04">Federal Register</E> 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).</P> <P>(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.</P> <P>(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.</P> <CITA>[48 FR 56583, Dec. 22, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.51</SECTNO> <SUBJECT>Assuring integrity of records.</SUBJECT> <P>(a) <E T="03">Statutory requirement.</E> The Privacy Act requires that records subject to the Act be maintained with appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained, 5 U.S.C. 552a(e)(10).</P> <P>(b) <E T="03">Records maintained in manual form.</E> 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:</P> <P>(1) Areas in which the records are maintained or regularly used shall be posted with an appropriate warning stating that access to the records is limited to authorized persons. The warning also shall summarize the requirements of § 2.52 and state that the <PRTPAGE P="31"/>Privacy Act contains a criminal penalty for the unauthorized disclosure of records to which it applies.</P> <P>(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.</P> <P>(3) During non-working hours, access to the records shall be restricted by their storage in locked metal file cabinets or a locked room.</P> <P>(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.</P> <P>(c) <E T="03">Records maintained in computerized form.</E> 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.</P> <P>(d) <E T="03">Office of Personnel Management personnel records.</E> 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.</P> <P>(e) <E T="03">Bureau responsibility.</E> (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.</P> <P>(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.</P> <CITA>[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56583, Dec. 22, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.52</SECTNO> <SUBJECT>Conduct of employees.</SUBJECT> <P>(a) <E T="03">Handling of records subject to the Act.</E> 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.</P> <P>(b) <E T="03">Disclosure of records.</E> No employee of the Department may disclose records subject to the Privacy Act unless disclosure is permitted under § 2.56 or is to the individual to whom the record pertains.</P> <P>(c) <E T="03">Alteration of records.</E> No employee of the Department may alter or destroy a record subject to the Privacy Act unless (1) such alteration or destruction is properly undertaken in the course of the employee's regular duties or (2) such alteration or destruction is required by a decision under §§ 2.70 through 2.75 or the decision of a court of competent jurisdiction.</P> <P>(d) <E T="03">Bureau responsibility.</E> The bureau responsible for a system of records shall be responsible for assuring that employees with access to the system are made aware of the requirements of this section and of 5 U.S.C. 552a(i)(1), which imposes criminal penalties for knowingly and willfully disclosing a record about an individual without the written request or consent of that individual unless disclosure is permitted under one of the exceptions listed in § 2.56 (b) and (c).</P> </SECTION> <SECTION> <SECTNO>§ 2.53</SECTNO> <SUBJECT>Government contracts.</SUBJECT> <P>(a) <E T="03">Required contract provisions.</E> 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.</P> <P>(b) <E T="03">System manager.</E> The head of the bureau responsible for the contract shall designate a regular employee of <PRTPAGE P="32"/>the bureau to be the manager for a system of records operated by a contractor.</P> </SECTION> <SECTION> <SECTNO>§§ 2.54-2.55</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 2.56</SECTNO> <SUBJECT>Disclosure of records.</SUBJECT> <P>(a) <E T="03">Prohibition of disclosure.</E> 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.</P> <P>(b) <E T="03">General exceptions.</E> The prohibition contained in paragraph (a) does not apply where disclosure of the record would be:</P> <P>(1) To those officers or employees of the Department who have a need for the record in the performance of their duties; or</P> <P>(2) Required by the Freedom of Information Act, 5 U.S.C. 552.</P> <P>(c) <E T="03">Specific exceptions.</E> The prohibition contained in paragraph (a) of this section does not apply where disclosure of the record would be:</P> <P>(1) For a routine use as defined in § 2.46(j) which has been described in a system notice published in the <E T="04">Federal Register</E>;</P> <P>(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.</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(9) Pursuant to the order of a court of competent jurisdiction; or</P> <P>(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)).</P> <P>(d) <E T="03">Reviewing records prior to disclosure.</E> (1) Prior to any disclosure of a record about an individual, unless disclosure is required by the Freedom of Information Act, reasonable efforts shall be made to assure that the records are accurate, complete, timely and relevant for agency purposes.</P> <P>(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.</P> <CITA>[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983; 50 FR 45114, Oct. 30, 1985]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.57</SECTNO> <SUBJECT>Accounting for disclosures.</SUBJECT> <P>(a) <E T="03">Maintenance of an accounting.</E> (1) Where a record is disclosed to any person, or to another agency, under any of the specific exceptions provided by § 2.56 (c), an accounting shall be made.<PRTPAGE P="33"/> </P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Access to accountings.</E> (1) Except for accountings of disclosures made under § 2.56(c)(5), accountings of all disclosures of a record shall be made available to the individual to whom the record relates at the individual's request.</P> <P>(2) An individual desiring access to an accounting of disclosures of a record pertaining to the individual shall submit a request by following the procedures of § 2.63.</P> <P>(c) <E T="03">Notification of disclosure.</E> When a record is disclosed pursuant to § 2.56(c)(9) as the result of the order of a court of competent jurisdiction, reasonable efforts shall be made to notify the individual to whom the record pertains as soon as the order becomes a matter of public record.</P> <CITA>[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§§ 2.58-2.59</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 2.60</SECTNO> <SUBJECT>Request for notification of existence of records: Submission.</SUBJECT> <P>(a) <E T="03">Submission of requests.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Form of request.</E> (1) An inquiry to determine whether a system of records contains records pertaining to an individual shall be in writing.</P> <P>(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.”</P> <P>(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.</P> <P>(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.</P> <CITA>[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.61</SECTNO> <SUBJECT>Requests for notification of existence of records: Action on.</SUBJECT> <P>(a) <E T="03">Decisions on request.</E> (1) Individuals inquiring to determine whether a system of records contains records pertaining to them shall be promptly advised whether the system contains records pertaining to them unless (i) the records were compiled in reasonable anticipation of a civil action or proceeding or (ii) the system of records is one which has been excepted from the notification provisions of the Privacy Act by rulemaking (§ 2.79).</P> <P>(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.</P> <P>(b) <E T="03">Authority to deny requests.</E> A decision to deny a request for notification of the existence of records shall be <PRTPAGE P="34"/>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.</P> <P>(c) <E T="03">Form of decision.</E> (1) No particular form is required for a decision informing individuals whether a system of records contains records pertaining to them.</P> <P>(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:</P> <P>(i) State the basis for denial of the request.</P> <P>(ii) Advise the individual that an appeal of the declination may be made to the Assistant Secretary—Policy, Budget and Administration pursuant to § 2.65 by writing to the Privacy Act Officer, Office of the Assistant Secretary—Policy, Budget and Administration, U.S. Department of the Interior, Washington, DC 20240.</P> <P>(iii) State that the appeal must be received by the foregoing official within twenty (20) working days of the date of the decision.</P> <P>(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:</P> <P>(i) State the reasons for the denial.</P> <P>(ii) Include the name, position title, and address of the official responsible for the denial.</P> <P>(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.</P> <P>(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.</P> <CITA>[48 FR 56584, Dec. 22, 1983, as amended at 53 FR 3749, Feb. 9, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.62</SECTNO> <SUBJECT>Requests for access to records.</SUBJECT> <P>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.</P> <CITA>[48 FR 56584, Dec. 22, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.63</SECTNO> <SUBJECT>Requests for access to records: Submission.</SUBJECT> <P>(a) <E T="03">Submission of requests.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Form of request.</E> (1) A request for access to records subject to the Privacy Act shall be in writing.</P> <P>(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.”</P> <P>(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 <PRTPAGE P="35"/>the individual are sought, the request shall reasonably describe the specific record or records sought.</P> <P>(4) If the requester seeks to have copies of the requested records made, the request shall state the maximum amount of copying fees which the requester is willing to pay. A request which does not state the amount of fees the requester is willing to pay will be treated as a request to inspect the requested records. Requesters are further notified that under § 2.64(d) the failure to state willingness to pay fees as high as are anticipated by the Department will delay processing of a request.</P> <P>(5) The request shall supply such identifying information, if any, as is called for in the system notice describing the system.</P> <P>(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.</P> <CITA>[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.64</SECTNO> <SUBJECT>Requests for access to records: Initial decision.</SUBJECT> <P>(a) <E T="03">Decisions on requests.</E> A request made under this subpart for access to a record shall be granted promptly unless (1) the record was compiled in reasonable anticipation of a civil action or proceeding or (2) the record is contained in a system of records which has been excepted from the access provisions of the Privacy Act by rulemaking (§ 2.79).</P> <P>(b) <E T="03">Authority to deny requests.</E> 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.</P> <P>(c) <E T="03">Form of decision.</E> (1) No particular form is required for a decision granting access to a record. The decision shall, however, advise the individual requesting the record as to where and when the record is available for inspection or, as the case may be, where and when copies will be available. If fees are due under § 2.64(d), the individual requesting the record shall also be notified of the amount of fees due or, if the exact amount has not been determined, the approximate amount of fees due.</P> <P>(2) A decision denying a request for access, in whole or part, shall be in writing and shall:</P> <P>(i) State the basis for denial of the request.</P> <P>(ii) Contain a statement that the denial may be appealed to the Assistant Secretary—Policy, Budget and Administration pursuant to § 2.65 by writing to the Privacy Act Officer, Office of the Assistant Secretary—Policy, Budget and Administration, U.S. Department of the Interior, Washington, DC 20240.</P> <P>(iii) State that the appeal must be received by the foregoing official within twenty (20) working days of the date of the decision.</P> <P>(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:</P> <P>(i) State the reasons for the denial.</P> <P>(ii) Include the name, position title, and address of the official responsible for the denial.</P> <P>(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.</P> <P>(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.</P> <P>(d) <E T="03">Fees.</E> (1) No fees may be charged for the cost of searching for or reviewing a record in response to a request made under § 2.63.</P> <P>(2) Fees for copying a record in response to a request made under § 2.63 shall be charged in accordance with the <PRTPAGE P="36"/>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.</P> <P>(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.</P> <CITA>[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983; 53 FR 3749, Feb. 9, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.65</SECTNO> <SUBJECT>Requests for notification of existence of records and for access to records: Appeals.</SUBJECT> <P>(a) <E T="03">Right of appeal.</E> 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.</P> <P>(b) <E T="03">Time for appeal.</E> (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.</P> <P>(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.</P> <P>(c) <E T="03">Form of appeal.</E> (1) An appeal shall be in writing and shall attach copies of the initial request and the decision on the request.</P> <P>(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.</P> <P>(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.</P> <P>(d) <E T="03">Action on appeals.</E> (1) Appeals from decisions on initial requests made pursuant to §§ 2.61 and 2.63 shall be decided for the Department by the Assistant Secretary—Policy, Budget and Administration or an official designated by the Assistant Secretary after consultation with the Solicitor.</P> <P>(2) The decision on an appeal shall be in writing and shall state the basis for the decision.</P> <CITA>[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983; 53 FR 3749, Feb. 9, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.66</SECTNO> <SUBJECT>Requests for access to records: Special situations.</SUBJECT> <P>(a) <E T="03">Medical records.</E> (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.</P> <P>(2) If it is determined that disclosure of medical records directly to the individual to whom they pertain could have an adverse effect on that individual, the individual may designate a medical doctor to receive the records and the records will be disclosed to that doctor.</P> <P>(b) <E T="03">Inspection in presence of third party.</E> (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.</P> <P>(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.</P> <CITA>[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§§ 2.67-2.69</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 2.70</SECTNO> <SUBJECT>Amendment of records.</SUBJECT> <P>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 <PRTPAGE P="37"/>shall be submitted in accordance with the procedures in this subpart.</P> <CITA>[48 FR 56585, Dec. 22, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.71</SECTNO> <SUBJECT>Petitions for amendment: Submission and form.</SUBJECT> <P>(a) <E T="03">Submission of petitions for amendment.</E> (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.</P> <P>(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.</P> <P>(b) <E T="03">Form of petition.</E> (1) A petition for amendment shall be in writing and shall specifically identify the record for which amendment is sought.</P> <P>(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.</P> <P>(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.</P> <CITA>[48 FR 56585, Dec. 22, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.72</SECTNO> <SUBJECT>Petitions for amendment: Processing and initial decision.</SUBJECT> <P>(a) <E T="03">Decisions on petitions.</E> In reviewing a record in response to a petition for amendment, the accuracy, relevance, timeliness and completeness of the record shall be assessed against the criteria set out in § 2.48. In addition, personnel records shall be assessed against the criteria for determining record quality published in the Federal Personnel Manual and the Departmental Manual addition thereto.</P> <P>(b) <E T="03">Authority to decide.</E> 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.</P> <P>(c) <E T="03">Acknowledgement of receipt.</E> 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.</P> <P>(d) <E T="03">Inadequate petitions.</E> (1) If a petition does not meet the requirements of § 2.71, the petitioner shall be so advised and shall be told what additional information must be submitted to meet the requirements of § 2.71.</P> <P>(2) If the petitioner fails to submit the additional information within a reasonable time, the petition may be rejected. The rejection shall be in writing and shall meet the requirements of paragraph (e) of this section.</P> <P>(e) <E T="03">Form of decision.</E> (1) A decision on a petition for amendment shall be in writing and shall state concisely the basis for the decision.</P> <P>(2) If the petition for amendment is rejected, in whole or part, the petitioner shall be informed in a written response which shall:</P> <P>(i) State concisely the basis for the decision.</P> <P>(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.</P> <P>(iii) State that the appeal must be received by the foregoing official within twenty (20) working days of the decision.<PRTPAGE P="38"/> </P> <P>(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:</P> <P>(i) State concisely the basis for the decision.</P> <P>(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.</P> <P>(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.</P> <P>(f) <E T="03">Implementation of initial decision.</E> If a petition for amendment is accepted, in whole or part, the bureau maintaining the record shall:</P> <P>(1) Correct the record accordingly and,</P> <P>(2) Where an accounting of disclosures has been made pursuant to § 2.57, advise all previous recipients of the record that the correction was made and the substance of the correction.</P> <CITA>[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983; 53 FR 3750, Feb. 9, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.73</SECTNO> <SUBJECT>Petitions for amendments: Time limits for processing.</SUBJECT> <P>(a) <E T="03">Acknowledgement of receipt.</E> The acknowledgement of receipt of a petition required by § 2.72(c) shall be dispatched not later than ten (10) working days after receipt of the petition by the system manager responsible for the system containing the challenged record, unless a decision on the petition has been previously dispatched.</P> <P>(b) <E T="03">Decision on petition.</E> 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.</P> <P>(c) <E T="03">Suspension of time limit.</E> The thirty (30) day time limit for a decision on a petition shall be suspended if it is necessary to notify the petitioner, pursuant to § 2.72(d), that additional information in support of the petition is required. Running of the thirty (30) day time limit shall resume on receipt of the additional information by the system manager responsible for the system containing the challenged record.</P> <P>(d) <E T="03">Extensions of time.</E> (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:</P> <P>(i) A decision on the petition requires analysis of voluminous record or records;</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56586, Dec. 22, 1983; 53 FR 3750, Feb. 9, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.74</SECTNO> <SUBJECT>Petitions for amendment: Appeals.</SUBJECT> <P>(a) <E T="03">Right of appeal.</E> 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.</P> <P>(b) <E T="03">Time for appeal.</E> (1) An appeal must be received no later than twenty (20) working days after the date of the decision on a petition.</P> <P>(2) The Assistant Secretary—Policy, Budget and Administration may, for good cause shown, extend the time for <PRTPAGE P="39"/>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.</P> <P>(c) <E T="03">Form of appeal.</E> (1) An appeal shall be in writing and shall attach copies of the initial petition and the decision on that petition.</P> <P>(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.</P> <P>(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.</P> <CITA>[40 FR 44505, Sept. 26, 1975, as amended at 47 FR 38328, Aug. 31, 1982; 53 FR 3750, Feb. 9, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.75</SECTNO> <SUBJECT>Petitions for amendment: Action on appeals.</SUBJECT> <P>(a) <E T="03">Authority.</E> 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.</P> <P>(b) <E T="03">Time limit.</E> (1) A final determination on any appeal shall be made within thirty (30) working days after receipt of the appeal.</P> <P>(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.</P> <P>(c) <E T="03">Form of decision.</E> (1) The final determination on an appeal shall be in writing and shall state the basis for the determination.</P> <P>(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:</P> <P>(i) Of his or her right to file a concise statement of the reasons for disagreeing with the decision of the agency;</P> <P>(ii) Of the procedure established by § 2.77 for the filing of the statement of disagreement;</P> <P>(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;</P> <P>(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</P> <P>(v) Of his or her right to seek judicial review of the Department's refusal to amend the record.</P> <P>(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:</P> <P>(i) Amend the challenged record accordingly; and</P> <P>(ii) If an accounting of disclosures has been made, advise all previous recipients of the record of the amendment and its substance.</P> <CITA>[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56586, Dec. 22, 1983; 53 FR 3750, Feb. 9, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.76</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 2.77</SECTNO> <SUBJECT>Statements of disagreement.</SUBJECT> <P>(a) <E T="03">Filing of statement.</E> If the determination of the Assistant Secretary—Policy, Budget and Administration under § 2.75 rejects in whole or part, a petition for amendment, the individual submitting the petition may file with the system manager for the system containing the challenged record a concise written statement setting forth the reasons for disagreement with the determination of the Department.</P> <P>(b) <E T="03">Disclosure of statements.</E> 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 <PRTPAGE P="40"/>amendments may also be provided to the recipient.</P> <P>(c) <E T="03">Maintenance of statements.</E> 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.</P> <CITA>[48 FR 56586, Dec. 22, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.78</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 2.79</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <P>(a) <E T="03">Criminal law enforcement records exempt under 5 U.S.C. 552a(j)(2).</E> 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:</P> <P>(1) Investigative Case File System, Interior/FWS-20.</P> <P>(2) Law Enforcement Services System, Interior/BIA-18.</P> <P>(3) Law Enforcement Statistical Reporting System, Interior/NPS-19.</P> <P>(4) Investigative Records, Interior/Office of Inspector General—2.</P> <P>(b) <E T="03">Law enforcement records exempt under 5 U.S.C. 552a(k)(2).</E> 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:</P> <P>(1) Investigative Records, Interior/Office of Inspector General—2.</P> <P>(2) Permits System, Interior/FWS-21.</P> <P>(3) Criminal Case Investigation System, Interior/BLM-18.</P> <P>(4) Civil Trespass Case Investigations, Interior/BLM-19.</P> <P>(5) Employee Conduct Investigations, Interior/BLM-20.</P> <P>(6)-(7) [Reserved]</P> <P>(8) Employee Financial Irregularities, Interior/NPS-17.</P> <P>(9) Trespass Cases, Interior/Reclamation-37.</P> <P>(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.</P> <P>(11) Endangered Species Licenses System, Interior/FWS-19.</P> <P>(12) Investigative Case File, Interior/ FWS-20.</P> <P>(13) Timber Cutting and Trespass Claims Files, Interior/BIA-24.</P> <P>(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:</P> <P>(1) [Reserved]</P> <P>(2) National Research Council Grants Program, Interior/GS-9</P> <P>(3) Committee Management Files, Interior/Office of the Secretary—68.</P> <SECAUTH>(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)</SECAUTH> <CITA>[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]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Legal Process: Testimony by Employees and Production of Records</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>65 FR 46369, July 28, 2000, unless otherwise noted. Redesignated at 67 FR 64530, Oct. 21, 2002.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">General Information</HD> <SECTION> <SECTNO>§ 2.80</SECTNO> <SUBJECT>What does this subpart cover?</SUBJECT> <P>(a) This subpart describes how the Department of the Interior (including all its bureaus and offices) responds to requests or subpoenas for:</P> <P>(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;</P> <P>(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;<PRTPAGE P="41"/> </P> <P>(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;</P> <P>(4) Official records or certification of such records for use in Federal, State, territorial or Tribal judicial, legislative or administrative proceedings.</P> <P>(b) In this subpart, “employee” means a current or former Department employee, including a contract or special government employee.</P> <P>(c) This subpart does not apply to:</P> <P>(1) Congressional requests or subpoenas for testimony or records;</P> <P>(2) Federal court civil proceedings in which the United States is a party;</P> <P>(3) Federal administrative proceedings;</P> <P>(4) Federal, State and Tribal criminal court proceedings;</P> <P>(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. <E T="03">See</E> 5 CFR §§ 2635.702(b), 2635.807 (b).</P> <P>(6) Testimony by employees as expert witnesses on subjects outside their official duties, except that they must obtain prior approval if required by § 2.90.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2.81</SECTNO> <SUBJECT>What is the Department's policy on granting requests for employee testimony or Department records?</SUBJECT> <P>(a) Except for proceedings covered by § 2.80(c) and (d), it is the Department's general policy not to allow its employees to testify or to produce Department records either upon request or by subpoena. However, if you request in writing, the Department will consider whether to allow testimony or production of records under this subpart. The Department's policy ensures the orderly execution of its mission and programs while not impeding any proceeding inappropriately.</P> <P>(b) No Department employee may testify or produce records in any proceeding to which this subpart applies unless authorized by the Department under §§ 2.80 through 2.90 <E T="03">United States ex rel. Touhy</E> v. <E T="03">Ragen,</E> 340 U.S. 462 (1951).</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Responsibilities of Requesters</HD> <SECTION> <SECTNO>§ 2.82</SECTNO> <SUBJECT>How can I obtain employee testimony or Department records?</SUBJECT> <P>(a) To obtain employee testimony, you must submit:</P> <P>(1) A written request (hereafter a “<E T="03">Touhy</E> Request;” <E T="03">see</E> § 2.84 and <E T="03">United States ex rel. Touhy</E> v. <E T="03">Ragen,</E> 340 U.S. 462 (1951)); and</P> <P>(2) A statement that you will submit a check for costs to the Department of the Interior, in accordance with § 2.85, if your <E T="03">Touhy</E> Request is granted.</P> <P>(b) To obtain official Department records, you must submit:</P> <P>(1) A <E T="03">Touhy</E> Request; and</P> <P>(2) A Statement that you agree to pay the costs of duplication in accordance with 43 CFR Part 2, appendix A, if your <E T="03">Touhy</E> Request is granted.</P> <P>(c) You must send your <E T="03">Touhy</E> Request to:</P> <P>(1) The employee's office address;</P> <P>(2) The official in charge of the employee's bureau, division, office or agency; and</P> <P>(3) The appropriate unit of the Solicitor's Office.</P> <P>(d) To obtain employee testimony or records of the Office of Inspector General, you must send your <E T="03">Touhy</E> Request to the General Counsel for the Office of Inspector General.<PRTPAGE P="42"/> </P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2.83</SECTNO> <SUBJECT>If I serve a subpoena <E T="7462">duces tecum,</E> must I also submit a <E T="7462">Touhy</E> request?</SUBJECT> <P>Yes. If you serve a subpoena for employee testimony, you also must submit a request under <E T="03">United States ex rel. Touhy</E> v. <E T="03">Regan,</E> 340 U.S. 462 (1951)? If you serve a subpoena <E T="03">duces tecum</E> for records in the possession of the Department, you also must submit a <E T="03">Touhy</E> Request.</P> </SECTION> <SECTION> <SECTNO>§ 2.84</SECTNO> <SUBJECT>What information must I put in my <E T="7462">Touhy</E> Request?</SUBJECT> <P>Your <E T="03">Touhy</E> Request must:</P> <P>(a) Identify the employee or record;</P> <P>(b) Describe the relevance of the desired testimony or records to your proceeding and provide a copy of the pleadings underlying your request;</P> <P>(c) Identify the parties to your proceeding and any known relationships they have to the Department's mission or programs;</P> <P>(d) Show that the desired testimony or records are not reasonably available from any other source;</P> <P>(e) Show that no record could be provided and used in lieu of employee testimony;</P> <P>(f) Provide the substance of the testimony expected of the employee; and</P> <P>(g) Explain why you believe your <E T="03">Touhy</E> Request complies with § 2.88.</P> </SECTION> <SECTION> <SECTNO>§ 2.85</SECTNO> <SUBJECT>How much will I be charged?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2.86</SECTNO> <SUBJECT>Can I get an authenticated copy of a Department record?</SUBJECT> <P>Yes. We may provide an authenticated copy of a Department record, for purposes of admissibility under Federal, State or Tribal law. We will do this only if the record has been officially released or would otherwise be released under § 2.13 or this Subpart.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Responsibility of the Department</HD> <SECTION> <SECTNO>§ 2.87</SECTNO> <SUBJECT>How will the Department process my <E T="7462">Touhy</E> Request?</SUBJECT> <P>(a) The appropriate Department official will decide whether to grant or deny your <E T="03">Touhy</E> 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 <E T="03">Touhy</E> Request. When necessary, the Solicitor's Office or, in the case of the Office of Inspector General, its General Counsel, also will coordinate with the Department of Justice to file appropriate motions, including motions to remove the matter to Federal court, to quash, or to obtain a protective order.</P> <P>(b) We will limit our decision to allow employee testimony to the scope of your <E T="03">Touhy</E> Request.</P> <P>(c) If you fail to follow the requirements of this Subpart, we will not allow the testimony or produce the records.</P> <P>(d) If your <E T="03">Touhy</E> Request is complete, we will consider the request under § 2.88.</P> </SECTION> <SECTION> <SECTNO>§ 2.88</SECTNO> <SUBJECT>What criteria will the Department consider in responding to my <E T="7462">Touhy</E> Request?</SUBJECT> <P>In deciding whether to grant your <E T="03">Touhy</E> Request, the appropriate Department official will consider:</P> <P>(a) Your ability to obtain the testimony or records from another source;</P> <P>(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</P> <P>(c) Our ability to:</P> <P>(1) Conduct our official business unimpeded;</P> <P>(2) Maintain impartiality in conducting our business;<PRTPAGE P="43"/> </P> <P>(3) Minimize the possibility that we will become involved in issues that are not related to our mission or programs;</P> <P>(4) Avoid spending public employee's time for private purposes;</P> <P>(5) Avoid the negative cumulative effect of granting similar requests;</P> <P>(6) Ensure that privileged or protected matters remain confidential; and</P> <P>(7) Avoid undue burden on us.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Responsibilities of Employees</HD> <SECTION> <SECTNO>§ 2.89</SECTNO> <SUBJECT>What must I, as an employee, do upon receiving a request?</SUBJECT> <P>(a) If you receive a request or subpoena that does not include a <E T="03">Touhy</E> 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.</P> <P>(b) If you receive a <E T="03">Touhy</E> 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 <E T="03">Touhy</E> Request under § 2.88.</P> <P>(c) All decisions granting or denying a <E T="03">Touhy</E> 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.</P> <P>(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:</P> <P>(1) Consult your delegated authority to determine if you can grant a request for authentication of records; and</P> <P>(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).</P> </SECTION> <SECTION> <SECTNO>§ 2.90</SECTNO> <SUBJECT>Must I get approval before testifying as an expert witness on a subject outside the scope of my official duties?</SUBJECT> <P>(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:</P> <P>(1) You must obtain the written approval of your Deputy Ethics Official;</P> <P>(2) You must be in an approved leave status if you testify during duty hours; and</P> <P>(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.</P> <P>(b) If you testify as an expert witness on a matter outside the scope of your official duties, and which is not covered by paragraph (a) of this section, you must comply with 5 CFR 2635.802 and 5 CFR 3501.105.</P> </SECTION> </SUBJGRP> <APPENDIX> <PRTPAGE P="44"/> <EAR>Pt. 2, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 2—Department of the Interior FOIA/Public Affairs Contacts and Reading Rooms</HD> <GPH DEEP="450" SPAN="2"> <GID>ER30SE04.000</GID> </GPH> <GPH DEEP="474" SPAN="2"> <PRTPAGE P="45"/> <GID>ER30SE04.001</GID> </GPH> <GPH DEEP="474" SPAN="2"> <PRTPAGE P="46"/> <GID>ER30SE04.002</GID> </GPH> <GPH DEEP="467" SPAN="2"> <PRTPAGE P="47"/> <GID>ER30SE04.003</GID> </GPH> <GPH DEEP="460" SPAN="2"> <PRTPAGE P="48"/> <GID>ER30SE04.004</GID> </GPH> <GPH DEEP="460" SPAN="2"> <PRTPAGE P="49"/> <GID>ER30SE04.005</GID> </GPH> <GPH DEEP="450" SPAN="2"> <PRTPAGE P="50"/> <GID>ER30SE04.006</GID> </GPH> <GPH DEEP="450" SPAN="2"> <PRTPAGE P="51"/> <GID>ER30SE04.007</GID> </GPH> <GPH DEEP="450" SPAN="2"> <PRTPAGE P="52"/> <GID>ER30SE04.008</GID> </GPH> <NOTE> <HD SOURCE="HED">Note:</HD> <P>For more information on FOIA, including the most current listing of FOIA Contacts, visit DOI's FOIA home page at <E T="03">http://www.doi.gov/foia/</E>.</P> </NOTE> <CITA>[69 FR 58325, Sept. 30, 2004]</CITA> </APPENDIX> <APPENDIX> <PRTPAGE P="53"/> <EAR>Pt. 2, App. B</EAR> <HD SOURCE="HED">Appendix B to Part 2—Internet Addresses</HD> <P>1. Department of the Interior (DOI) Home Page: <E T="03">http://www.doi.gov</E> </P> <P>2. DOI FOIA Home Page: <E T="03">http://www.doi.gov/foia/</E> </P> <P>3. DOI Reference Guide for Obtaining Information: <E T="03">http://www.doi.gov/foia/foitabl.htm</E> </P> <P>4. List of DOI Public Affairs Offices: <E T="03">http://www.doi.gov/foia/list.html</E> </P> <P>5. DOI FOIA Contacts: <E T="03">http://www.doi.gov/foia/contacts.html</E> </P> <P>6. DOI FOIA Regulations (43 CFR, Part 2, Subparts A and B): <E T="03">http://www.doi.gov/foia/foiaregs.html</E> </P> <P>7. DOI FOIA Policy and Guidance: <E T="03">http://www.doi.gov/foia/policy.html</E> </P> <P>8. Electronic Reading Room: <E T="03">http://www.doi.gov/foia/readroom.html</E> </P> <P>9. Index of Frequently Requested Documents: <E T="03">http://www.doi.gov/foia/freq.html</E> </P> <P>10. DOI's Frequently Requested Documents: <E T="03">http://www.doi.gov/foia/frrindex.html</E> </P> <P>11. FOIA Annual Reports to Congress: <E T="03">http://www.doi.gov/foia/report.html</E> </P> <P>12. DOI's Library: <E T="03">http://library.doi.gov</E> </P> <P>13. General Records Schedule 14, Information Services Records: <E T="03">http://ardor.nara.gov/grs/grs14.html</E> </P> <P>14. DOI Records Management Program: <E T="03">http://www.doi.gov/ocio/records/</E> </P> <P>15. DOI Privacy Act Program: <E T="03">http://www.doi.gov/ocio/privacy/</E> </P> <P>16. DOI Privacy Act Officers: <E T="03">http://www.doi.gov/ocio/privacy/doi_privacy_act_officers.htm</E> </P> <P>17. DOI Privacy Act Regulations: <E T="03">http://www.doi.gov/foia/43cfrsub.html</E> </P> <P>18. DOI Privacy Act Systems of Records Notices: <E T="03">http://www.access.gpo.gov/su_docs/aces/1999_pa.html</E> </P> <P>19. FirstGov Portal: <E T="03">http://www.firstgov.gov</E> </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>See DOI's FOIA home page at <E T="03">http://www.doi.gov/foia/</E> for the most current listing of FOIA-related website addresses.</P> </NOTE> <CITA>[67 FR 64541, Oct. 21, 2002]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 2, App. C</EAR> <HD SOURCE="HED">Appendix C to Part 2—Fee Schedule</HD> <P>If you submit a FOIA request, the bureau will charge you to search for, review, and duplicate the requested records according to your fee category (see §§ 2.16 and 2.17) and the following fee schedule. In addition, the bureau will charge you for any special handling or services performed in connection with processing your request and/or appeal under Subparts C and D of this part. The following fees will be used by all bureaus of the Department; these fees apply to services performed in making documents available for public inspection and copying under Subpart B of this part as well. The duplicating fees also are applicable to records provided in response to requests made under the Privacy Act. Fees will not be charged under either the FOIA or the Privacy Act where the total amount of fees for processing the request is $30 or less (see § 2.16(b)(2)), where the requester has met the requirements for a statutory fee waiver, or where the bureau has granted a discretionary fee waiver (see §§ 2.19 and 2.20).</P> <P>(1) <E T="03">Search and review (review applies to commercial-use requesters only).</E> Fees are based on: the average hourly salary (base salary plus DC locality payment), plus 16 percent for benefits, of employees in the following three categories. The average grade was established by surveying the bureaus to obtain the average grade of employees conducting FOIA searches and reviews. Fees will be increased annually consistent with Congressionally approved pay increases. Fees are charged in quarter hour increments.</P> <P>(a) Clerical—Based on GS-6, Step 5, pay (all employees at GS-7 and below)</P> <P>(b) Professional—Based on GS-11, Step 7, pay (all employees at GS-8 through GS-12)</P> <P>(c) Managerial—Based on GS-14, Step 2, pay (all employees at GS-13 and above) </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>Fees for the current fiscal year are posted on DOI's FOIA home page (see Appendix B). If you do not have access to the Internet, please call the Departmental FOIA Officer (see Appendix A) for a copy of the fee schedule.</P> </NOTE> <GPOTABLE CDEF="s100,r75" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1"/> <CHED H="1">Fee</CHED> </BOXHD> <ROW> <ENT I="22">(2) Duplication:</ENT> </ROW> <ROW> <ENT I="01">Pages no larger than 8.5 × 14 inches, when reproduced by standard office copying machines</ENT> <ENT>$.13 per page ($.26 for double-sided copying)</ENT> </ROW> <ROW> <ENT I="01">Color copies of pages no larger than 8.5 × 11 inches</ENT> <ENT>$.90 per page</ENT> </ROW> <ROW> <ENT I="01">Pages larger than 8.5 × 14 inches</ENT> <ENT>Direct cost to DOI</ENT> </ROW> <ROW> <ENT I="01">Color copies of pages no larger than 11 × 17 inches</ENT> <ENT>$1.50 per page</ENT> </ROW> <ROW> <ENT I="01">Photographs and records requiring special handling (e.g., because of age, size, or format)</ENT> <ENT>Direct cost to DOI</ENT> </ROW> <ROW> <ENT I="22">(3) Electronic records:</ENT> </ROW> <ROW> <ENT I="01">Charges for services related to processing requests for electronic records</ENT> <ENT>Direct cost to DOI</ENT> </ROW> <ROW> <ENT I="01">(4) Certification</ENT> <ENT>Fee</ENT> </ROW> <ROW> <ENT I="01">Each certificate of verification attached to authenticate copies of records</ENT> <ENT>$.25</ENT> </ROW> <ROW> <ENT I="22">(5) Postage/Mailing:</ENT> </ROW> <ROW> <PRTPAGE P="54"/> <ENT I="01">Charges that exceed the cost of first class postage. Examples of such charges are express mail or overnight delivery</ENT> <ENT>Postage or Delivery charge</ENT> </ROW> <ROW> <ENT I="22">(6) Other Services:</ENT> </ROW> <ROW> <ENT I="01">Cost of special services or materials, other than those provided for by this fee schedule, when requester is notified of such costs in advance and agrees to pay them</ENT> <ENT>Direct cost to DOI</ENT> </ROW> </GPOTABLE> <CITA>[67 FR 64541, Oct. 21, 2002]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 2, App. D</EAR> <HD SOURCE="HED">Appendix D to Part 2—Fee Waiver Criteria</HD> <P>If you are seeking a fee waiver, it is your responsibility to provide detailed information to support your request. You must submit this information with your FOIA request. You should explain the significance of the release of the information to the public's understanding of the Government's operations and activities based on your understanding of the type of information that you are requesting. Each fee waiver request is judged on its own merit—we do not grant “blanket” fee waivers, <E T="03">i.e.,</E> obtaining a fee waiver once does not mean you will obtain a subsequent fee waiver. Please note that inability to pay is not sufficient to justify a fee waiver.</P> <P>(a) The statutory requirement for granting a fee waiver is that release of the information must be in the public interest because it—</P> <P>(1) Is likely to contribute significantly to public understanding of the operations and activities of the Government; and</P> <P>(2) Is not primarily in your commercial interest.</P> <P>(b) In deciding whether you are entitled to a fee waiver, the bureau will consider the criteria in paragraphs (1) through (4), below. Your request for a fee waiver must address each of these criteria.</P> <P>(1) How do the records concern the operations or activities of the Government?</P> <P>(2) If the records concern the operations or activities of the Government, how will disclosure likely contribute to public understanding of these operations and activities?</P> <P>(i) How are the contents of the records you are seeking meaningfully informative on the Department's or a bureau's operations and activities? Is there a logical connection between the content of the records and the operations or activities you are interested in?</P> <P>(ii) Other than enhancing your knowledge, how will disclosure of the requested records contribute to the understanding of the public at large or a reasonably broad audience of persons interested in the subject?</P> <P>(iii) Your identity, vocation, qualifications, and expertise regarding the requested information (whether you are affiliated with a newspaper, college or university, have previously published articles, books, etc.) may be relevant factors. However, merely stating that you are going to write a book, research a particular subject, or perform doctoral dissertation work, is insufficient, without demonstrating how you plan to disclose the information in a manner which will be informative to a reasonably broad audience of persons interested in the subject.</P> <P>(iv) Do you have the ability and intention to disseminate the information to the general public or a reasonably broad audience of persons interested in the subject?</P> <P>(A) How and to whom do you intend to disseminate the information?</P> <P>(B) How do you plan to use the information to contribute to public understanding of the Government's operations or activities?</P> <P>(3) If there is likely to be a contribution to public understanding, will release of the requested records contribute significantly to public understanding?</P> <P>(i) Is the information being disclosed new?</P> <P>(ii) Does the information being disclosed confirm or clarify data which has been released previously?</P> <P>(iii) How will disclosure increase the level of public understanding of the operations or activities of the Department or a bureau that existed prior to disclosure?</P> <P>(iv) Is the information already publicly available? If the Government previously has published the information you are seeking or it is routinely available to the public in a library, reading room, through the Internet, or as part of the administrative record for a particular issue (<E T="03">e.g.,</E> the listing of the spotted owl as an endangered species), it is less likely that there will be a significant contribution from release.</P> <P>(4) Would disclosure be primarily in your commercial interest?</P> <P>(i) Do you have a commercial interest that would be furthered by disclosure? A commercial interest is a commercial, trade, or profit interest as these terms are commonly understood. Your status as “profitmaking” or “non-profitmaking” is not the deciding factor. Not only profitmaking entities, but other organizations or individuals may have a commercial interest to be served by disclosure, depending on the circumstances involved.</P> <P>(ii) If you do have a commercial interest that would be furthered by disclosure, would disclosure be primarily in that interest? <PRTPAGE P="55"/>Would the public interest in disclosure be greater than any commercial interest you or your organization may have in the documents? If so, how would it be greater?</P> <P>(iii) Your identity, vocation, and the circumstances surrounding your request are all factors to be considered in determining whether disclosure would be primarily in your commercial interest. For example:</P> <P>(A) If you are a representative of a news media organization seeking information as part of the news gathering process, we will presume that the public interest outweighs your commercial interest.</P> <P>(B) If you represent a business/corporation/association or you are an attorney representing such an organization, we will presume that your commercial interest outweighs the public interest unless you demonstrate otherwise.</P> <P>(c) If the bureau cannot make a determination based on the information you have provided, it may ask you for additional justification regarding your request.</P> <CITA>[67 FR 64541, Oct. 21, 2002]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 2, App. E</EAR> <HD SOURCE="HED">Appendix E to Part 2—FOIA Exemptions</HD> <P>Under the FOIA (5 U.S.C. 552(b)), there are <E T="03">nine exemptions</E> which may be used to protect information from disclosure. The Department has paraphrased the exemptions, below, for your information. The paraphrases are not intended to be interpretations of the exemptions.</P> <P>(1) National security information concerning national defense or foreign policy, provided that such information has been properly classified, in accordance with an Executive Order;</P> <P>(2) Information related solely to the internal personnel rules and practices of an agency;</P> <P>(3) Information specifically exempted from disclosure by statute (other than the Privacy Act or the Trade Secrets Act), provided that such statute:</P> <P>(A) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or</P> <P>(B) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;</P> <P>(4) Trade secrets and commercial or financial information which is obtained from a person and is privileged or confidential;</P> <P>(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;</P> <P>(6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;</P> <P>(7) Records or information compiled for law enforcement purposes, the release of which:</P> <P>(A) Could reasonably be expected to interfere with enforcement proceedings;</P> <P>(B) Would deprive a person of a right to a fair trial or an impartial adjudication;</P> <P>(C) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;</P> <P>(D) Could reasonably be expected to disclose the identity of a confidential source;</P> <P>(E) Would disclose techniques, procedures, or guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or</P> <P>(F) Could reasonably be expected to endanger the life or physical safety of any individual.</P> <P>(8) Information contained in or related to examination, operating, or condition reports, prepared by, or on behalf of, or for the use of an agency responsible for regulating or supervising financial institutions; and</P> <P>(9) Geological and geophysical information and data, including maps, concerning wells.</P> <CITA>[67 FR 64541, Oct. 21, 2002]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 2, App. F</EAR> <HD SOURCE="HED">Appendix F to Part 2—Mineral Leasing Act and Mineral Leasing Act for Acquired Lands—Special Rules</HD> <P>(a) <E T="03">Definitions.</E> As used in the section:</P> <P>(1) <E T="03">Exploration license</E> means a license issued by the Secretary of the Interior to conduct coal exploration operations on land subject to the Mineral Leasing Act, under 30 U.S.C. 201(b), or subject to the Mineral Leasing Act for Acquired Lands, under 30 U.S.C. 351-360.</P> <P>(2) <E T="03">Fair-market value of coal to be leased</E> means the minimum amount of a bid the Secretary is willing to accept in leasing coal within leasing tracts offered in general lease sales or reserved and offered for lease to public bodies, including Federal agencies, rural electric cooperatives, or non-profit corporations controlled by any of such entities, under 30 U.S.C. 201(a)(1) or 30 U.S.C. 351-360.</P> <P>(3) <E T="03">Information</E> means data, statistics, samples and other facts, whether analyzed or processed or not, pertaining to Federal coal resources.</P> <P>(b) <E T="03">Applicability.</E> This Appendix applies to the following categories of information:</P> <P>(1) <E T="03">Category A.</E> Information provided to or obtained by a bureau under 30 U.S.C. 201(b)(3) (and corresponding information under 30 U.S.C. 351-360) from the holder of an exploration license;</P> <P>(2) <E T="03">Category B.</E> Information acquired from commercial or other sources under service <PRTPAGE P="56"/>contract with United States Geological Survey (USGS) under 30 U.S.C. 208-1(b) (and corresponding information under 30 U.S.C. 351-360), and information developed by USGS under an exploratory program authorized by 30 U.S.C. 208-1 (and corresponding information under 30 U.S.C. 351-360);</P> <P>(3) <E T="03">Category C.</E> Information obtained from commercial sources which the commercial source acquired while not under contract with the United States Government;</P> <P>(4) <E T="03">Category D.</E> Information provided to the Secretary by a Federal department or agency under 30 U.S.C. 208-1(e) (and corresponding information under 30 U.S.C. 351-360); and</P> <P>(5) <E T="03">Category E.</E> The fair-market value of coal to be leased and comments received by the Secretary with respect to such value.</P> <P>(c) <E T="03">Availability of information.</E> Information obtained by the Department from various sources will be made available to the public as follows:</P> <P>(1) <E T="03">Category A—Information.</E> Category A information must not be disclosed to the public until after the areas to which the information pertains have been leased by the Department, or until the Secretary determines that release of the information to the public would not damage the competitive position of the holder of the exploration license, whichever comes first.</P> <P>(2) <E T="03">Category B—Information.</E> Category B information must not be withheld from the public; it will be made available by means of and at the time of open filing or publication by USGS.</P> <P>(3) <E T="03">Category C—Information.</E> To the extent Category C information is proprietary, such information must not be made available to the public until after the areas to which the information pertains have been leased by the Department.</P> <P>(4) <E T="03">Category D—Information.</E> To the extent Category D information is proprietary, the Department will withhold the information from the public for the length of time the department or agency providing the information agreed to when it obtained the information.</P> <P>(5) <E T="03">Category E—Information.</E> Category E information must not be made public until the lands to which the information pertains have been leased, or until the Secretary has determined that its release prior to the issuance of a lease is in the public interest.</P> <CITA>[67 FR 64541, Oct. 21, 2002]</CITA> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 3</EAR> <HD SOURCE="HED">PART 3—PRESERVATION OF AMERICAN ANTIQUITIES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>3.1</SECTNO> <SUBJECT>Jurisdiction.</SUBJECT> <SECTNO>3.2</SECTNO> <SUBJECT>Limitation on permits granted.</SUBJECT> <SECTNO>3.3</SECTNO> <SUBJECT>Permits; to whom granted.</SUBJECT> <SECTNO>3.4</SECTNO> <SUBJECT>No exclusive permits granted.</SUBJECT> <SECTNO>3.5</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>3.6</SECTNO> <SUBJECT>Time limit of permits granted.</SUBJECT> <SECTNO>3.7</SECTNO> <SUBJECT>Permit to become void.</SUBJECT> <SECTNO>3.8</SECTNO> <SUBJECT>Applications referred for recommendation.</SUBJECT> <SECTNO>3.9</SECTNO> <SUBJECT>Form and reference of permit.</SUBJECT> <SECTNO>3.10</SECTNO> <SUBJECT>Reports.</SUBJECT> <SECTNO>3.11</SECTNO> <SUBJECT>Restoration of lands.</SUBJECT> <SECTNO>3.12</SECTNO> <SUBJECT>Termination.</SUBJECT> <SECTNO>3.13</SECTNO> <SUBJECT>Report of field officer.</SUBJECT> <SECTNO>3.14</SECTNO> <SUBJECT>Examinations by field officer.</SUBJECT> <SECTNO>3.15</SECTNO> <SUBJECT>Persons who may apprehend or cause to be arrested.</SUBJECT> <SECTNO>3.16</SECTNO> <SUBJECT>Seizure.</SUBJECT> <SECTNO>3.17</SECTNO> <SUBJECT>Preservation of collection.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Secs. 3, 4, 34 Stat. 225, as amended; 16 U.S.C. 432.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>19 FR 8838, Dec. 23, 1954, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 3.1</SECTNO> <SUBJECT>Jurisdiction.</SUBJECT> <P>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:</P> <P>(a) By the Secretary of Agriculture over lands within the exterior limits of forest reserves;</P> <P>(b) By the Secretary of the Army over lands within the exterior limits of military reservations;</P> <P>(c) By the Secretary of the Interior over all other lands owned or controlled by the Government of the United States, <E T="03">Provided,</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 3.2</SECTNO> <SUBJECT>Limitation on permits granted.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.3</SECTNO> <SUBJECT>Permits; to whom granted.</SUBJECT> <P>Permits for the examination of ruins, the excavation of archeological sites, <PRTPAGE P="57"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.4</SECTNO> <SUBJECT>No exclusive permits granted.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.5</SECTNO> <SUBJECT>Application.</SUBJECT> <P>Each application for a permit should be filed with the Secretary having jurisdiction, and must be accompanied by a definite outline of the proposed work, indicating the name of the institution making the request, the date proposed for beginning the field work, the length of time proposed to be devoted to it, and the person who will have immediate charge of the work. The application must also contain an exact statement of the character of the work, whether examination, excavation, or gathering, and the public museum in which the collections made under the permit are to be permanently preserved. The application must be accompanied by a sketch plan or description of the particular site or area to be examined, excavated, or searched, so definite that it can be located on the map with reasonable accuracy.</P> </SECTION> <SECTION> <SECTNO>§ 3.6</SECTNO> <SUBJECT>Time limit of permits granted.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.7</SECTNO> <SUBJECT>Permit to become void.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.8</SECTNO> <SUBJECT>Applications referred for recommendation.</SUBJECT> <P>Applications for permits shall be referred to the Smithsonian Institution for recommendation.</P> </SECTION> <SECTION> <SECTNO>§ 3.9</SECTNO> <SUBJECT>Form and reference of permit.</SUBJECT> <P>Every permit shall be in writing and copies shall be transmitted to the Smithsonian Institution and the field officer in charge of the land involved. The permitee will be furnished with a copy of the regulations in this part.</P> </SECTION> <SECTION> <SECTNO>§ 3.10</SECTNO> <SUBJECT>Reports.</SUBJECT> <P>At the close of each season's field work the permitee shall report in duplicate to the Smithsonian Institution, in such form as its secretary may prescribe, and shall prepare in duplicate a catalogue of the collections and of the photographs made during the season, indicating therein such material, if any, as may be available for exchange.</P> </SECTION> <SECTION> <SECTNO>§ 3.11</SECTNO> <SUBJECT>Restoration of lands.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.12</SECTNO> <SUBJECT>Termination.</SUBJECT> <P>All permits shall be terminable at the discretion of the Secretary having jurisdiction.</P> </SECTION> <SECTION> <SECTNO>§ 3.13</SECTNO> <SUBJECT>Report of field officer.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.14</SECTNO> <SUBJECT>Examinations by field officer.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="58"/> <SECTNO>§ 3.15</SECTNO> <SUBJECT>Persons who may apprehend or cause to be arrested.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.16</SECTNO> <SUBJECT>Seizure.</SUBJECT> <P>Any object of antiquity taken, or collection made, on lands owned or controlled by the United States, without a permit, as prescribed by the act and this part, or there taken or made, contrary to the terms of the permit, or contrary to the act and this part, may be seized wherever found and at any time, by the proper field officer or by any person duly authorized by the Secretary having jurisdiction, and disposed of as the Secretary shall determine, by deposit in the proper national depository or otherwise.</P> </SECTION> <SECTION> <SECTNO>§ 3.17</SECTNO> <SUBJECT>Preservation of collection.</SUBJECT> <P>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 4</EAR> <HD SOURCE="HED">PART 4—DEPARTMENT HEARINGS AND APPEALS PROCEDURES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General; Office of Hearings and Appeals</HD> <SECHD>Sec.</SECHD> <SECTNO>4.1</SECTNO> <SUBJECT>Scope of authority; applicable regulations.</SUBJECT> <SECTNO>4.2</SECTNO> <SUBJECT>Membership of appeals boards; decisions, functions of Chief Judges.</SUBJECT> <SECTNO>4.3</SECTNO> <SUBJECT>Representation before appeals boards.</SUBJECT> <SECTNO>4.4</SECTNO> <SUBJECT>Public records; locations of field offices.</SUBJECT> <SECTNO>4.5</SECTNO> <SUBJECT>Power of the Secretary and Director.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—General Rules Relating to Procedures and Practice</HD> <SECTNO>4.20</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>4.21</SECTNO> <SUBJECT>General provisions.</SUBJECT> <SECTNO>4.22</SECTNO> <SUBJECT>Documents.</SUBJECT> <SECTNO>4.23</SECTNO> <SUBJECT>Transcript of hearings.</SUBJECT> <SECTNO>4.24</SECTNO> <SUBJECT>Basis of decision.</SUBJECT> <SECTNO>4.25</SECTNO> <SUBJECT>Oral argument.</SUBJECT> <SECTNO>4.26</SECTNO> <SUBJECT>Subpoena power and witness provisions generally.</SUBJECT> <SECTNO>4.27</SECTNO> <SUBJECT>Standards of conduct.</SUBJECT> <SECTNO>4.28</SECTNO> <SUBJECT>Interlocutory appeals.</SUBJECT> <SECTNO>4.29</SECTNO> <SUBJECT>Remands from courts.</SUBJECT> <SECTNO>4.30</SECTNO> <SUBJECT>Information required by forms.</SUBJECT> <SECTNO>4.31</SECTNO> <SUBJECT>Request for limiting disclosure of confidential information.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Special Rules of Practice Before the Interior Board of Contract Appeals</HD> <SECTNO>4.100</SECTNO> <SUBJECT>General rules and guidelines.</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Prehearing Procedure Rules</HD> <SECTNO>4.101</SECTNO> <SUBJECT>Who may appeal.</SUBJECT> <SECTNO>4.102</SECTNO> <SUBJECT>Appeals—how taken.</SUBJECT> <SECTNO>4.103</SECTNO> <SUBJECT>Forwarding and docketing of appeals.</SUBJECT> <SECTNO>4.104</SECTNO> <SUBJECT>Preparation, organization, transmittal, and status of appeal file.</SUBJECT> <SECTNO>4.105</SECTNO> <SUBJECT>Dismissal for lack of jurisdiction.</SUBJECT> <SECTNO>4.106</SECTNO> <SUBJECT>Representation and appearances.</SUBJECT> <SECTNO>4.107</SECTNO> <SUBJECT>Pleadings.</SUBJECT> <SECTNO>4.108</SECTNO> <SUBJECT>Amendments of pleadings or record.</SUBJECT> <SECTNO>4.109</SECTNO> <SUBJECT>Hearing—election.</SUBJECT> <SECTNO>4.110</SECTNO> <SUBJECT>Prehearing briefs.</SUBJECT> <SECTNO>4.111</SECTNO> <SUBJECT>Prehearing or presubmission conference.</SUBJECT> <SECTNO>4.112</SECTNO> <SUBJECT>Submission without a hearing.</SUBJECT> <SECTNO>4.113</SECTNO> <SUBJECT>Optional small claims (expedited) and accelerated procedures. (See § 4.100(a)(2).)</SUBJECT> <SECTNO>4.114</SECTNO> <SUBJECT>Settling of the record.</SUBJECT> <SECTNO>4.115</SECTNO> <SUBJECT>Discovery—depositions.</SUBJECT> <SECTNO>4.116</SECTNO> <SUBJECT>Interrogatories to parties; inspection of documents; admission of facts.</SUBJECT> <SECTNO>4.117</SECTNO> <SUBJECT>Service of papers.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearing Procedure Rules</HD> <SECTNO>4.118</SECTNO> <SUBJECT>Hearings—where and when held.</SUBJECT> <SECTNO>4.119</SECTNO> <SUBJECT>Notice of hearings.</SUBJECT> <SECTNO>4.120</SECTNO> <SUBJECT>Subpoenas. (See § 4.100(a)(2).)<PRTPAGE P="59"/> </SUBJECT> <SECTNO>4.121</SECTNO> <SUBJECT>Unexcused absence of a party.</SUBJECT> <SECTNO>4.122</SECTNO> <SUBJECT>Nature of hearings.</SUBJECT> <SECTNO>4.123</SECTNO> <SUBJECT>Examination of witnesses.</SUBJECT> <SECTNO>4.124</SECTNO> <SUBJECT>Submission of briefs.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Posthearing Procedure Rules</HD> <SECTNO>4.125</SECTNO> <SUBJECT>Decisions.</SUBJECT> <SECTNO>4.126</SECTNO> <SUBJECT>Motions for reconsideration.</SUBJECT> <SECTNO>4.127</SECTNO> <SUBJECT>Dismissals.</SUBJECT> <SECTNO>4.128</SECTNO> <SUBJECT>Remands from courts.</SUBJECT> <APP>Appendix I to Subpart C—Suggested Form of Notice of Appeal</APP> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Rules Applicable in Indian Affairs Hearings and Appeals</HD> <SUBJGRP> <HD SOURCE="HED">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</HD> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Scope of Subpart; Definitions</HD> <SECTNO>4.200</SECTNO> <SUBJECT>How to use this subpart.</SUBJECT> <SECTNO>4.201</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Determination of Heirs; Approval of Wills; Settlement of Indian Trust Estates</HD> <SECTNO>4.202</SECTNO> <SUBJECT>General authority of deciding officials.</SUBJECT> <SECTNO>4.203</SECTNO> <SUBJECT>Determination as to nonexistent persons and other irregularities of allotments.</SUBJECT> <SECTNO>4.204</SECTNO> <SUBJECT>Presumption of death.</SUBJECT> <SECTNO>4.205</SECTNO> <SUBJECT>Escheat.</SUBJECT> <SECTNO>4.206</SECTNO> <SUBJECT>Determinations of nationality, citizenship, or status affecting character of land titles.</SUBJECT> <SECTNO>4.207</SECTNO> <SUBJECT>Settlement agreement.</SUBJECT> <SECTNO>4.208</SECTNO> <SUBJECT>Renunciation of interest.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Commencement of Probate Proceedings</HD> <SECTNO>4.210</SECTNO> <SUBJECT>Commencement of probate.</SUBJECT> <SECTNO>4.211</SECTNO> <SUBJECT>Assignment to deciding official.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Summary and Informal Probate Proceedings</HD> <SECTNO>4.212</SECTNO> <SUBJECT>Summary process for estates containing only trust cash estates of less than $5,000.</SUBJECT> <SECTNO>4.213</SECTNO> <SUBJECT>Informal process for cases that do not require a formal hearing.</SUBJECT> <SECTNO>4.214</SECTNO> <SUBJECT>Written decision of attorney decision maker.</SUBJECT> <SECTNO>4.215</SECTNO> <SUBJECT>De novo review following decision of attorney decision maker.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Formal Probate Proceedings</HD> <HD SOURCE="HD1">Notice</HD> <SECTNO>4.216 </SECTNO> <SUBJECT>Notice.</SUBJECT> <SECTNO>4.217</SECTNO> <SUBJECT>Contents of notice.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Depositions, Discovery, and Prehearing Conference</HD> <SECTNO>4.220</SECTNO> <SUBJECT>Production of documents for inspection and copying.</SUBJECT> <SECTNO>4.221</SECTNO> <SUBJECT>Depositions.</SUBJECT> <SECTNO>4.222</SECTNO> <SUBJECT>Written interrogatories; admission of facts and documents.</SUBJECT> <SECTNO>4.223</SECTNO> <SUBJECT>Objections to and limitations on production of documents, depositions, and interrogatories.</SUBJECT> <SECTNO>4.224</SECTNO> <SUBJECT>Failure to comply with discovery.</SUBJECT> <SECTNO>4.225</SECTNO> <SUBJECT>Prehearing conference.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Formal Hearings</HD> <SECTNO>4.230</SECTNO> <SUBJECT>Authority and duties of the administrative law judge or Indian probate judge.</SUBJECT> <SECTNO>4.231</SECTNO> <SUBJECT>Formal hearings.</SUBJECT> <SECTNO>4.232</SECTNO> <SUBJECT>Evidence; form and admissibility.</SUBJECT> <SECTNO>4.233</SECTNO> <SUBJECT>Proof of wills, codicils, and revocations.</SUBJECT> <SECTNO>4.234</SECTNO> <SUBJECT>Witnesses, interpreters, and fees.</SUBJECT> <SECTNO>4.235</SECTNO> <SUBJECT>Supplemental hearings.</SUBJECT> <SECTNO>4.236</SECTNO> <SUBJECT>Record.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Decisions in Formal Proceedings</HD> <SECTNO>4.240</SECTNO> <SUBJECT>Decision of the administrative law judge or Indian probate judge and notice thereof.</SUBJECT> <SECTNO>4.241</SECTNO> <SUBJECT>Rehearing.</SUBJECT> <SECTNO>4.242</SECTNO> <SUBJECT>Reopening.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Claims</HD> <SECTNO>4.250</SECTNO> <SUBJECT>Filing and proof of creditor claims; limitations.</SUBJECT> <SECTNO>4.251</SECTNO> <SUBJECT>Priority of claims.</SUBJECT> <SECTNO>4.252</SECTNO> <SUBJECT>Property subject to claims.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Wills</HD> <SECTNO>4.260</SECTNO> <SUBJECT>Making of a will; review as to form; revocation.</SUBJECT> <SECTNO>4.261</SECTNO> <SUBJECT>Anti-lapse provisions.</SUBJECT> <SECTNO>4.262</SECTNO> <SUBJECT>Felonious taking of testator's life.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Custody and Distribution of Estates</HD> <SECTNO>4.270</SECTNO> <SUBJECT>Custody and control of trust estates.</SUBJECT> <SECTNO>4.271</SECTNO> <SUBJECT>Omitted property.</SUBJECT> <SECTNO>4.272</SECTNO> <SUBJECT>Improperly included property.</SUBJECT> <SECTNO>4.273</SECTNO> <SUBJECT>Distribution of estates.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SECTNO>4.281</SECTNO> <SUBJECT>Claims for attorney fees.</SUBJECT> <SECTNO>4.282</SECTNO> <SUBJECT>Guardians for incompetents.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Tribal Purchase of Interests Under Special Statutes</HD> <SECTNO>4.300</SECTNO> <SUBJECT>Authority and scope.</SUBJECT> <SECTNO>4.301</SECTNO> <SUBJECT>Valuation report.</SUBJECT> <SECTNO>4.302</SECTNO> <SUBJECT>Conclusion of probate and tribal exercise of statutory option.</SUBJECT> <SECTNO>4.303</SECTNO> <SUBJECT>Notice by surviving spouse to reserve a life estate.</SUBJECT> <SECTNO>4.304</SECTNO> <SUBJECT>Rehearing.</SUBJECT> <SECTNO>4.305</SECTNO> <SUBJECT>Hearing on tribal option to purchase interests.<PRTPAGE P="60"/> </SUBJECT> <SECTNO>4.306</SECTNO> <SUBJECT>Time for payment.</SUBJECT> <SECTNO>4.307</SECTNO> <SUBJECT>Title.</SUBJECT> <SECTNO>4.308</SECTNO> <SUBJECT>Disposition of income.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General Rules Applicable to Proceedings on Appeal Before the Interior Board of Indian Appeals</HD> <SECTNO>4.310</SECTNO> <SUBJECT>Documents.</SUBJECT> <SECTNO>4.311</SECTNO> <SUBJECT>Briefs on appeal.</SUBJECT> <SECTNO>4.312</SECTNO> <SUBJECT>Board decisions.</SUBJECT> <SECTNO>4.313</SECTNO> <SUBJECT>Amicus Curiae; intervention; joinder motions.</SUBJECT> <SECTNO>4.314</SECTNO> <SUBJECT>Exhaustion of administrative remedies.</SUBJECT> <SECTNO>4.315</SECTNO> <SUBJECT>Reconsideration of a Board decision.</SUBJECT> <SECTNO>4.316</SECTNO> <SUBJECT>Remands from courts.</SUBJECT> <SECTNO>4.317</SECTNO> <SUBJECT>Standards of conduct.</SUBJECT> <SECTNO>4.318</SECTNO> <SUBJECT>Scope of review.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeals to the Board of Indian Appeals in Probate Matters</HD> <SECTNO>4.320</SECTNO> <SUBJECT>Who may appeal.</SUBJECT> <SECTNO>4.321</SECTNO> <SUBJECT>Notice of transmittal of record on appeal.</SUBJECT> <SECTNO>4.322</SECTNO> <SUBJECT>Docketing.</SUBJECT> <SECTNO>4.323</SECTNO> <SUBJECT>Disposition of the record.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">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</HD> <SECTNO>4.330</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>4.331</SECTNO> <SUBJECT>Who may appeal.</SUBJECT> <SECTNO>4.332</SECTNO> <SUBJECT>Appeal to the Board; how taken; mandatory time for filing; preparation assistance; requirement for bond.</SUBJECT> <SECTNO>4.333</SECTNO> <SUBJECT>Service of notice of appeal.</SUBJECT> <SECTNO>4.334</SECTNO> <SUBJECT>Extensions of time.</SUBJECT> <SECTNO>4.335</SECTNO> <SUBJECT>Preparation and transmittal of record by official of the Bureau of Indian Affairs.</SUBJECT> <SECTNO>4.336</SECTNO> <SUBJECT>Docketing.</SUBJECT> <SECTNO>4.337</SECTNO> <SUBJECT>Action by the Board.</SUBJECT> <SECTNO>4.338</SECTNO> <SUBJECT>Submission by administrative law judge of proposed findings, conclusions and recommended decision.</SUBJECT> <SECTNO>4.339</SECTNO> <SUBJECT>Exceptions or comments regarding recommended decision by administrative law judge.</SUBJECT> <SECTNO>4.340</SECTNO> <SUBJECT>Disposition of the record.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">White Earth Reservation Land Settlement Act of 1985; Authority of Administrative Judges; Determinations of the Heirs of Persons Who Died Entitled to Compensation</HD> <SECTNO>4.350</SECTNO> <SUBJECT>Authority and scope.</SUBJECT> <SECTNO>4.351</SECTNO> <SUBJECT>Commencement of the determination process.</SUBJECT> <SECTNO>4.352</SECTNO> <SUBJECT>Determination of administrative judge and notice thereof.</SUBJECT> <SECTNO>4.353</SECTNO> <SUBJECT>Record.</SUBJECT> <SECTNO>4.354</SECTNO> <SUBJECT>Reconsideration or rehearing.</SUBJECT> <SECTNO>4.355</SECTNO> <SUBJECT>Omitted compensation.</SUBJECT> <SECTNO>4.356</SECTNO> <SUBJECT>Appeals.</SUBJECT> <SECTNO>4.357</SECTNO> <SUBJECT>Guardians for minors and incompetents.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Special Rules Applicable to Public Land Hearings and Appeals</HD> <SUBJGRP> <HD SOURCE="HED">Appeals Procedures</HD> <HD SOURCE="HD1">Appeals Procedures; General</HD> <SECTNO>4.400</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>4.401</SECTNO> <SUBJECT>Documents.</SUBJECT> <SECTNO>4.402</SECTNO> <SUBJECT>Summary dismissal.</SUBJECT> <SECTNO>4.403</SECTNO> <SUBJECT>Finality of decision; reconsideration.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeals to the Board of Land Appeals</HD> <SECTNO>4.410</SECTNO> <SUBJECT>Who may appeal.</SUBJECT> <SECTNO>4.411</SECTNO> <SUBJECT>Appeal; how taken, mandatory time limit.</SUBJECT> <SECTNO>4.412</SECTNO> <SUBJECT>Statement of reasons, statement of standing, written arguments, briefs.</SUBJECT> <SECTNO>4.413</SECTNO> <SUBJECT>Service of notice of appeal and of other documents.</SUBJECT> <SECTNO>4.414</SECTNO> <SUBJECT>Answers.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Actions by Board of Land Appeals</HD> <SECTNO>4.415</SECTNO> <SUBJECT>Request for hearings on appeals involving questions of fact.</SUBJECT> <SECTNO>4.416</SECTNO> <SUBJECT>Appeals of wildfire management decisions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearings Procedures</HD> <HD SOURCE="HD1">Hearings Procedures; General</HD> <SECTNO>4.420</SECTNO> <SUBJECT>Applicability of general rules.</SUBJECT> <SECTNO>4.421</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>4.422</SECTNO> <SUBJECT>Documents.</SUBJECT> <SECTNO>4.423</SECTNO> <SUBJECT>Subpoena power and witness provisions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearings on Appeals Involving Questions of Fact</HD> <SECTNO>4.430</SECTNO> <SUBJECT>Prehearing conferences.</SUBJECT> <SECTNO>4.431</SECTNO> <SUBJECT>Fixing of place and date for hearing; notice.</SUBJECT> <SECTNO>4.432</SECTNO> <SUBJECT>Postponements.</SUBJECT> <SECTNO>4.433</SECTNO> <SUBJECT>Authority of the administrative law judge.</SUBJECT> <SECTNO>4.434</SECTNO> <SUBJECT>Conduct of hearing.</SUBJECT> <SECTNO>4.435</SECTNO> <SUBJECT>Evidence.</SUBJECT> <SECTNO>4.436</SECTNO> <SUBJECT>Reporter's fees.</SUBJECT> <SECTNO>4.437</SECTNO> <SUBJECT>Copies of transcript.</SUBJECT> <SECTNO>4.438</SECTNO> <SUBJECT>Summary of evidence.</SUBJECT> <SECTNO>4.439</SECTNO> <SUBJECT>Action by administrative law judge.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Contest and Protest Proceedings</HD> <SECTNO>4.450</SECTNO> <SUBJECT>Private contests and protests.</SUBJECT> <SECTNO>4.450-1</SECTNO> <SUBJECT>By whom private contest may be initiated.</SUBJECT> <SECTNO>4.450-2</SECTNO> <SUBJECT>Protests.</SUBJECT> <SECTNO>4.450-3</SECTNO> <SUBJECT>Initiation of contest.</SUBJECT> <SECTNO>4.450-4</SECTNO> <SUBJECT>Complaints.</SUBJECT> <SECTNO>4.450-5</SECTNO> <SUBJECT>Service.</SUBJECT> <SECTNO>4.450-6</SECTNO> <SUBJECT>Answer to complaint.</SUBJECT> <SECTNO>4.450-7</SECTNO> <SUBJECT>Action by manager.</SUBJECT> <SECTNO>4.450-8</SECTNO> <SUBJECT>Amendment of answer.<PRTPAGE P="61"/> </SUBJECT> <SECTNO>4.451</SECTNO> <SUBJECT>Government contests.</SUBJECT> <SECTNO>4.451-1</SECTNO> <SUBJECT>How initiated.</SUBJECT> <SECTNO>4.451-2</SECTNO> <SUBJECT>Proceedings in Government contests.</SUBJECT> <SECTNO>4.452</SECTNO> <SUBJECT>Proceedings before the administrative law judge.</SUBJECT> <SECTNO>4.452-1</SECTNO> <SUBJECT>Prehearing conferences.</SUBJECT> <SECTNO>4.452-2</SECTNO> <SUBJECT>Notice of hearing.</SUBJECT> <SECTNO>4.452-3</SECTNO> <SUBJECT>Postponements.</SUBJECT> <SECTNO>4.452-4</SECTNO> <SUBJECT>Authority of administrative law judge.</SUBJECT> <SECTNO>4.452-5</SECTNO> <SUBJECT>Conduct of hearing.</SUBJECT> <SECTNO>4.452-6</SECTNO> <SUBJECT>Evidence.</SUBJECT> <SECTNO>4.452-7</SECTNO> <SUBJECT>Reporter's fees.</SUBJECT> <SECTNO>4.452-8</SECTNO> <SUBJECT>Findings and conclusions; decision by administrative law judge; submission to Board for decision.</SUBJECT> <SECTNO>4.452-9</SECTNO> <SUBJECT>Appeal to Board.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Grazing Procedures (Inside and Outside Grazing Districts)</HD> <SECTNO>4.470</SECTNO> <SUBJECT>How to appeal a final BLM grazing decision to an administrative law judge.</SUBJECT> <SECTNO>4.471</SECTNO> <SUBJECT>How to petition for a stay of a final BLM grazing decision.</SUBJECT> <SECTNO>4.472</SECTNO> <SUBJECT>Action on an appeal and petition for a stay.</SUBJECT> <SECTNO>4.473</SECTNO> <SUBJECT>Time and place of hearing; notice; intervenors.</SUBJECT> <SECTNO>4.474</SECTNO> <SUBJECT>Authority of administrative law judge.</SUBJECT> <SECTNO>4.475</SECTNO> <SUBJECT>Service.</SUBJECT> <SECTNO>4.476</SECTNO> <SUBJECT>Conduct of hearing; reporter's fees; transcript.</SUBJECT> <SECTNO>4.477</SECTNO> <SUBJECT>Findings of fact and decision by administrative law judge: Notice; submission to Board of Land Appeals for decision.</SUBJECT> <SECTNO>4.478</SECTNO> <SUBJECT>Appeals to the Board of Land Appeals; judicial review.</SUBJECT> <SECTNO>4.479</SECTNO> <SUBJECT>Effectiveness of decision during appeal.</SUBJECT> <SECTNO>4.480</SECTNO> <SUBJECT>Conditions of decision action.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Implementation of the Equal Access to Justice Act in Agency Proceedings</HD> <SUBJGRP> <HD SOURCE="HED">General Provisions</HD> <SECTNO>4.601</SECTNO> <SUBJECT>Purpose of these rules.</SUBJECT> <SECTNO>4.602</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>4.603</SECTNO> <SUBJECT>Proceedings covered.</SUBJECT> <SECTNO>4.604</SECTNO> <SUBJECT>Applicability to Department of the Interior proceedings.</SUBJECT> <SECTNO>4.605</SECTNO> <SUBJECT>Eligibility of applicants.</SUBJECT> <SECTNO>4.606</SECTNO> <SUBJECT>Standards for awards.</SUBJECT> <SECTNO>4.607</SECTNO> <SUBJECT>Allowable fees and expenses.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Information Required From Applicants</HD> <SECTNO>4.608</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <SECTNO>4.609</SECTNO> <SUBJECT>Net worth exhibit.</SUBJECT> <SECTNO>4.610</SECTNO> <SUBJECT>Documentation of fees and expenses.</SUBJECT> <SECTNO>4.611</SECTNO> <SUBJECT>Time for submission of application.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures for Considering Applications</HD> <SECTNO>4.612</SECTNO> <SUBJECT>Filing and service of documents.</SUBJECT> <SECTNO>4.613</SECTNO> <SUBJECT>Answer to application.</SUBJECT> <SECTNO>4.614</SECTNO> <SUBJECT>Settlement.</SUBJECT> <SECTNO>4.615</SECTNO> <SUBJECT>Extensions of time and further proceedings.</SUBJECT> <SECTNO>4.616</SECTNO> <SUBJECT>Decision on application.</SUBJECT> <SECTNO>4.617</SECTNO> <SUBJECT>Appeals Board review.</SUBJECT> <SECTNO>4.618</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <SECTNO>4.619</SECTNO> <SUBJECT>Payment of award.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Special Rules Applicable to Other Appeals and Hearings</HD> <SECTNO>4.700</SECTNO> <SUBJECT>Who may appeal.</SUBJECT> <SECTNO>4.701</SECTNO> <SUBJECT>Notice of appeal.</SUBJECT> <SECTNO>4.702</SECTNO> <SUBJECT>Transmittal of appeal file.</SUBJECT> <SECTNO>4.703</SECTNO> <SUBJECT>Pleadings.</SUBJECT> <SECTNO>4.704</SECTNO> <SUBJECT>Decisions on appeals.</SUBJECT> </SUBPART> <SUBPART> <RESERVED>Subpart H [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">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</HD> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTNO>4.800</SECTNO> <SUBJECT>Scope and construction of rules.</SUBJECT> <SECTNO>4.801</SECTNO> <SUBJECT>Suspension of rules.</SUBJECT> <SECTNO>4.802</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>4.803</SECTNO> <SUBJECT>Computation of time.</SUBJECT> <SECTNO>4.804</SECTNO> <SUBJECT>Extensions of time.</SUBJECT> <SECTNO>4.805</SECTNO> <SUBJECT>Reduction of time to file documents.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Designation and Responsibilities of Administrative Law Judge</HD> <SECTNO>4.806</SECTNO> <SUBJECT>Designation.</SUBJECT> <SECTNO>4.807</SECTNO> <SUBJECT>Authority and responsibilities.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appearance and Practice</HD> <SECTNO>4.808</SECTNO> <SUBJECT>Participation by a party.</SUBJECT> <SECTNO>4.809</SECTNO> <SUBJECT>Determination of parties.</SUBJECT> <SECTNO>4.810</SECTNO> <SUBJECT>Complainants not parties.</SUBJECT> <SECTNO>4.811</SECTNO> <SUBJECT>Determination and participation of amici.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Form and Filing of Documents</HD> <SECTNO>4.812</SECTNO> <SUBJECT>Form.</SUBJECT> <SECTNO>4.813</SECTNO> <SUBJECT>Filing and service.</SUBJECT> <SECTNO>4.814</SECTNO> <SUBJECT>Certificate of service.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures</HD> <SECTNO>4.815</SECTNO> <SUBJECT>How proceedings are commenced.</SUBJECT> <SECTNO>4.816</SECTNO> <SUBJECT>Notice of hearing and response thereto.</SUBJECT> <SECTNO>4.817</SECTNO> <SUBJECT>Notice of opportunity to request a hearing and response thereto.</SUBJECT> <SECTNO>4.818</SECTNO> <SUBJECT>Answer.</SUBJECT> <SECTNO>4.819</SECTNO> <SUBJECT>Amendment of notice or answer.</SUBJECT> <SECTNO>4.820</SECTNO> <SUBJECT>Consolidated or joint hearings.</SUBJECT> <SECTNO>4.821</SECTNO> <SUBJECT>Motions.</SUBJECT> <SECTNO>4.822</SECTNO> <SUBJECT>Disposition of motions.</SUBJECT> <SECTNO>4.823</SECTNO> <SUBJECT>Interlocutory appeals.<PRTPAGE P="62"/> </SUBJECT> <SECTNO>4.824</SECTNO> <SUBJECT>Exhibits.</SUBJECT> <SECTNO>4.825</SECTNO> <SUBJECT>Admissions as to facts and documents.</SUBJECT> <SECTNO>4.826</SECTNO> <SUBJECT>Discovery.</SUBJECT> <SECTNO>4.827</SECTNO> <SUBJECT>Depositions.</SUBJECT> <SECTNO>4.828</SECTNO> <SUBJECT>Use of depositions at hearing.</SUBJECT> <SECTNO>4.829</SECTNO> <SUBJECT>Interrogatories to parties.</SUBJECT> <SECTNO>4.830</SECTNO> <SUBJECT>Production of documents and things and entry upon land for inspection and other purposes.</SUBJECT> <SECTNO>4.831</SECTNO> <SUBJECT>Sanctions.</SUBJECT> <SECTNO>4.832</SECTNO> <SUBJECT>Consultation and advice.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Prehearing</HD> <SECTNO>4.833</SECTNO> <SUBJECT>Prehearing conferences.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearing</HD> <SECTNO>4.834</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>4.835</SECTNO> <SUBJECT>Evidence.</SUBJECT> <SECTNO>4.836</SECTNO> <SUBJECT>Official notice.</SUBJECT> <SECTNO>4.837</SECTNO> <SUBJECT>Testimony.</SUBJECT> <SECTNO>4.838</SECTNO> <SUBJECT>Objections.</SUBJECT> <SECTNO>4.839</SECTNO> <SUBJECT>Exceptions.</SUBJECT> <SECTNO>4.840</SECTNO> <SUBJECT>Offer of proof.</SUBJECT> <SECTNO>4.841</SECTNO> <SUBJECT>Official transcript.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Posthearing Procedures</HD> <SECTNO>4.842</SECTNO> <SUBJECT>Proposed findings of fact and conclusions of law.</SUBJECT> <SECTNO>4.843</SECTNO> <SUBJECT>Record for decision.</SUBJECT> <SECTNO>4.844</SECTNO> <SUBJECT>Notification of right to file exceptions.</SUBJECT> <SECTNO>4.845</SECTNO> <SUBJECT>Final review by Secretary.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Special Rules Applicable to Appeals Concerning Federal Oil and Gas Royalties and Related Matters</HD> <SECTNO>4.901</SECTNO> <SUBJECT>What is the purpose of this subpart?</SUBJECT> <SECTNO>4.902</SECTNO> <SUBJECT>What appeals are subject to this subpart?</SUBJECT> <SECTNO>4.903</SECTNO> <SUBJECT>What definitions apply to this subpart?</SUBJECT> <SECTNO>4.904</SECTNO> <SUBJECT>When does my appeal commence and end?</SUBJECT> <SECTNO>4.905</SECTNO> <SUBJECT>What if a due date falls on a day the Department or relevant office is not open for business?</SUBJECT> <SECTNO>4.906</SECTNO> <SUBJECT>What if the Department does not issue a decision by the date my appeal ends?</SUBJECT> <SECTNO>4.907</SECTNO> <SUBJECT>What if an IBLA decision requires MMS or a delegated State to recalculate royalties or other payments?</SUBJECT> <SECTNO>4.908</SECTNO> <SUBJECT>What is the administrative record for my appeal if it is deemed decided?</SUBJECT> <SECTNO>4.909</SECTNO> <SUBJECT>How do I request an extension of time?</SUBJECT> </SUBPART> <SUBPART> <RESERVED>Subpart K [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart L—Special Rules Applicable to Surface Coal Mining Hearings and Appeals</HD> <SUBJGRP> <HD SOURCE="HED">General Provisions</HD> <SECTNO>4.1100</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>4.1101</SECTNO> <SUBJECT>Jurisdiction of the Board.</SUBJECT> <SECTNO>4.1102</SECTNO> <SUBJECT>Construction.</SUBJECT> <SECTNO>4.1103</SECTNO> <SUBJECT>Eligibility to practice.</SUBJECT> <SECTNO>4.1104</SECTNO> <SUBJECT>General rules relating to procedure and practice.</SUBJECT> <SECTNO>4.1105</SECTNO> <SUBJECT>Parties.</SUBJECT> <SECTNO>4.1106</SECTNO> <SUBJECT>Hearing sites.</SUBJECT> <SECTNO>4.1107</SECTNO> <SUBJECT>Filing of documents.</SUBJECT> <SECTNO>4.1108</SECTNO> <SUBJECT>Form of documents.</SUBJECT> <SECTNO>4.1109</SECTNO> <SUBJECT>Service.</SUBJECT> <SECTNO>4.1110</SECTNO> <SUBJECT>Intervention.</SUBJECT> <SECTNO>4.1111</SECTNO> <SUBJECT>Voluntary dismissal.</SUBJECT> <SECTNO>4.1112</SECTNO> <SUBJECT>Motions.</SUBJECT> <SECTNO>4.1113</SECTNO> <SUBJECT>Consolidation of proceedings.</SUBJECT> <SECTNO>4.1114</SECTNO> <SUBJECT>Advancement of proceedings.</SUBJECT> <SECTNO>4.1115</SECTNO> <SUBJECT>Waiver of right to hearing.</SUBJECT> <SECTNO>4.1116</SECTNO> <SUBJECT>Status of notices of violation and orders of cessation pending review by the Office of Hearings and Appeals.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Evidentiary Hearings</HD> <SECTNO>4.1120</SECTNO> <SUBJECT>Presiding officers.</SUBJECT> <SECTNO>4.1121</SECTNO> <SUBJECT>Powers of administrative law judges.</SUBJECT> <SECTNO>4.1122</SECTNO> <SUBJECT>Conduct of administrative law judges.</SUBJECT> <SECTNO>4.1123</SECTNO> <SUBJECT>Notice of hearing.</SUBJECT> <SECTNO>4.1124</SECTNO> <SUBJECT>Certification of interlocutory ruling.</SUBJECT> <SECTNO>4.1125</SECTNO> <SUBJECT>Summary decision.</SUBJECT> <SECTNO>4.1126</SECTNO> <SUBJECT>Proposed findings of fact and conclusions of law.</SUBJECT> <SECTNO>4.1127</SECTNO> <SUBJECT>Initial orders and decisions.</SUBJECT> <SECTNO>4.1128</SECTNO> <SUBJECT>Effect of initial order or decision.</SUBJECT> <SECTNO>4.1129</SECTNO> <SUBJECT>Certification of record.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Discovery</HD> <SECTNO>4.1130</SECTNO> <SUBJECT>Discovery methods.</SUBJECT> <SECTNO>4.1131</SECTNO> <SUBJECT>Time for discovery.</SUBJECT> <SECTNO>4.1132</SECTNO> <SUBJECT>Scope of discovery.</SUBJECT> <SECTNO>4.1133</SECTNO> <SUBJECT>Sequence and timing of discovery.</SUBJECT> <SECTNO>4.1134</SECTNO> <SUBJECT>Supplementation of responses.</SUBJECT> <SECTNO>4.1135</SECTNO> <SUBJECT>Motion to compel discovery.</SUBJECT> <SECTNO>4.1136</SECTNO> <SUBJECT>Failure to comply with orders compelling discovery.</SUBJECT> <SECTNO>4.1137</SECTNO> <SUBJECT>Depositions upon oral examination or upon written questions.</SUBJECT> <SECTNO>4.1138</SECTNO> <SUBJECT>Use of depositions.</SUBJECT> <SECTNO>4.1139</SECTNO> <SUBJECT>Written interrogatories to parties.</SUBJECT> <SECTNO>4.1140</SECTNO> <SUBJECT>Production of documents and things and entry upon land for inspection and other purposes.</SUBJECT> <SECTNO>4.1141</SECTNO> <SUBJECT>Admissions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Petitions for Review of Proposed Assessments of Civil Penalties</HD> <SECTNO>4.1150</SECTNO> <SUBJECT>Who may file.</SUBJECT> <SECTNO>4.1151</SECTNO> <SUBJECT>Time for filing.</SUBJECT> <SECTNO>4.1152</SECTNO> <SUBJECT>Contents of petition; payment required.</SUBJECT> <SECTNO>4.1153</SECTNO> <SUBJECT>Answer.</SUBJECT> <SECTNO>4.1154</SECTNO> <SUBJECT>Review of waiver determination.</SUBJECT> <SECTNO>4.1155</SECTNO> <SUBJECT>Burdens of proof in civil penalty proceedings.</SUBJECT> <SECTNO>4.1156</SECTNO> <SUBJECT>Summary disposition.</SUBJECT> <SECTNO>4.1157</SECTNO> <SUBJECT>Determination by administrative law judge.</SUBJECT> <SECTNO>4.1158</SECTNO> <SUBJECT>Appeals.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Review of Section 521 Notices of Violation and Orders of Cessation</HD> <SECTNO>4.1160</SECTNO> <SUBJECT>Scope.<PRTPAGE P="63"/> </SUBJECT> <SECTNO>4.1161</SECTNO> <SUBJECT>Who may file.</SUBJECT> <SECTNO>4.1162</SECTNO> <SUBJECT>Time for filing.</SUBJECT> <SECTNO>4.1163</SECTNO> <SUBJECT>Effect of failure to file.</SUBJECT> <SECTNO>4.1164</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <SECTNO>4.1165</SECTNO> <SUBJECT>Answer.</SUBJECT> <SECTNO>4.1166</SECTNO> <SUBJECT>Contents of answer.</SUBJECT> <SECTNO>4.1167</SECTNO> <SUBJECT>Notice of hearing.</SUBJECT> <SECTNO>4.1168</SECTNO> <SUBJECT>Amendments to pleadings.</SUBJECT> <SECTNO>4.1169</SECTNO> <SUBJECT>Failure to state a claim.</SUBJECT> <SECTNO>4.1170</SECTNO> <SUBJECT>Related notices or orders.</SUBJECT> <SECTNO>4.1171</SECTNO> <SUBJECT>Burden of proof in review of section 521 notices or orders.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expedited Review of Section <E T="01">521(a)(2)</E> or <E T="01">521(a)(3)</E> Orders of Cessation</HD> <SECTNO>4.1180</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>4.1181</SECTNO> <SUBJECT>Who may file.</SUBJECT> <SECTNO>4.1182</SECTNO> <SUBJECT>Where to file.</SUBJECT> <SECTNO>4.1183</SECTNO> <SUBJECT>Time for filing.</SUBJECT> <SECTNO>4.1184</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <SECTNO>4.1185</SECTNO> <SUBJECT>Computation of time for decision.</SUBJECT> <SECTNO>4.1186</SECTNO> <SUBJECT>Waiver of the 30-day decision requirement.</SUBJECT> <SECTNO>4.1187</SECTNO> <SUBJECT>Procedure if 30-day decision requirement is not waived.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Proceedings for Suspension or Revocation of Permits Under Section <E T="01">521(a)(4)</E> of the Act</HD> <SECTNO>4.1190</SECTNO> <SUBJECT>Initiation of proceedings.</SUBJECT> <SECTNO>4.1191</SECTNO> <SUBJECT>Answer.</SUBJECT> <SECTNO>4.1192</SECTNO> <SUBJECT>Contents of answer.</SUBJECT> <SECTNO>4.1193</SECTNO> <SUBJECT>Notice of hearing.</SUBJECT> <SECTNO>4.1194</SECTNO> <SUBJECT>Burden of proof in suspension or revocation proceedings.</SUBJECT> <SECTNO>4.1195</SECTNO> <SUBJECT>Determination by the administrative law judge.</SUBJECT> <SECTNO>4.1196</SECTNO> <SUBJECT>Summary disposition.</SUBJECT> <SECTNO>4.1197</SECTNO> <SUBJECT>Appeals.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Applications for Review of Alleged Discriminatory Acts Under Section 703 of the Act</HD> <SECTNO>4.1200</SECTNO> <SUBJECT>Filing of the application for review with the Office of Hearings and Appeals.</SUBJECT> <SECTNO>4.1201</SECTNO> <SUBJECT>Request for scheduling of a hearing.</SUBJECT> <SECTNO>4.1202</SECTNO> <SUBJECT>Response to request for the scheduling of a hearing.</SUBJECT> <SECTNO>4.1203</SECTNO> <SUBJECT>Application for temporary relief from alleged discriminatory acts.</SUBJECT> <SECTNO>4.1204</SECTNO> <SUBJECT>Determination by administrative law judge.</SUBJECT> <SECTNO>4.1205</SECTNO> <SUBJECT>Appeals.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Applications for Temporary Relief</HD> <SECTNO>4.1260</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>4.1261</SECTNO> <SUBJECT>When to file.</SUBJECT> <SECTNO>4.1262</SECTNO> <SUBJECT>Where to file.</SUBJECT> <SECTNO>4.1263</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <SECTNO>4.1264</SECTNO> <SUBJECT>Response to application.</SUBJECT> <SECTNO>4.1265</SECTNO> <SUBJECT>Determination on application concerning a notice of violation issued pursuant to section 521(a)(3) of the Act.</SUBJECT> <SECTNO>4.1266</SECTNO> <SUBJECT>Determination on application concerning an order of cessation.</SUBJECT> <SECTNO>4.1267</SECTNO> <SUBJECT>Appeals.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeals to the Board From Decisions or Orders of Administrative Law Judges</HD> <SECTNO>4.1270</SECTNO> <SUBJECT>Petition for discretionary review of a proposed civil penalty.</SUBJECT> <SECTNO>4.1271</SECTNO> <SUBJECT>Notice of appeal.</SUBJECT> <SECTNO>4.1272</SECTNO> <SUBJECT>Interlocutory appeals.</SUBJECT> <SECTNO>4.1273</SECTNO> <SUBJECT>Briefs.</SUBJECT> <SECTNO>4.1274</SECTNO> <SUBJECT>Remand.</SUBJECT> <SECTNO>4.1275</SECTNO> <SUBJECT>Final decisions.</SUBJECT> <SECTNO>4.1276</SECTNO> <SUBJECT>Reconsideration.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeals to the Board From Decisions of the Office of Surface Mining</HD> <SECTNO>4.1280</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>4.1281</SECTNO> <SUBJECT>Who may appeal.</SUBJECT> <SECTNO>4.1282</SECTNO> <SUBJECT>Appeals; how taken.</SUBJECT> <SECTNO>4.1283</SECTNO> <SUBJECT>Service.</SUBJECT> <SECTNO>4.1284</SECTNO> <SUBJECT>Answer.</SUBJECT> <SECTNO>4.1285</SECTNO> <SUBJECT>Summary dismissal.</SUBJECT> <SECTNO>4.1286</SECTNO> <SUBJECT>Request for hearings.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Petitions for Award of Costs and Expenses Under Section <E T="01">525(e)</E> of the Act</HD> <SECTNO>4.1290</SECTNO> <SUBJECT>Who may file.</SUBJECT> <SECTNO>4.1291</SECTNO> <SUBJECT>Where to file; time for filing.</SUBJECT> <SECTNO>4.1292</SECTNO> <SUBJECT>Contents of petition.</SUBJECT> <SECTNO>4.1293</SECTNO> <SUBJECT>Answer.</SUBJECT> <SECTNO>4.1294</SECTNO> <SUBJECT>Who may receive an award.</SUBJECT> <SECTNO>4.1295</SECTNO> <SUBJECT>Awards.</SUBJECT> <SECTNO>4.1296</SECTNO> <SUBJECT>Appeals.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Petitions for Review of Proposed Individual Civil Penalty Assessments Under Section <E T="01">518(f)</E> of the Act</HD> <SECTNO>4.1300</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>4.1301</SECTNO> <SUBJECT>Who may file.</SUBJECT> <SECTNO>4.1302</SECTNO> <SUBJECT>Time for filing.</SUBJECT> <SECTNO>4.1303</SECTNO> <SUBJECT>Contents and service of petition.</SUBJECT> <SECTNO>4.1304</SECTNO> <SUBJECT>Answer, motion, or statement of OSM.</SUBJECT> <SECTNO>4.1305</SECTNO> <SUBJECT>Amendment of petition.</SUBJECT> <SECTNO>4.1306</SECTNO> <SUBJECT>Notice of hearing.</SUBJECT> <SECTNO>4.1307</SECTNO> <SUBJECT>Elements; burdens of proof.</SUBJECT> <SECTNO>4.1308</SECTNO> <SUBJECT>Decision by administrative law judge.</SUBJECT> <SECTNO>4.1309</SECTNO> <SUBJECT>Petition for discretionary review.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Request for Hearing on a Preliminary Finding Concerning a Demonstrated Pattern of Willful Violations Under Section <E T="01">510(c)</E> of the Act, <E T="01">30 U.S.C. 1260(c)</E> (Federal Program; Federal Lands Program; Federal Program for Indian Lands)</HD> <SECTNO>4.1350</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>4.1351</SECTNO> <SUBJECT>Preliminary finding by OSM.</SUBJECT> <SECTNO>4.1352</SECTNO> <SUBJECT>Who may file; where to file; when to file.</SUBJECT> <SECTNO>4.1353</SECTNO> <SUBJECT>Contents of request.</SUBJECT> <SECTNO>4.1354</SECTNO> <SUBJECT>Determination by the administrative law judge.</SUBJECT> <SECTNO>4.1355</SECTNO> <SUBJECT>Burden of proof.</SUBJECT> <SECTNO>4.1356</SECTNO> <SUBJECT>Appeals.</SUBJECT> </SUBJGRP> <SUBJGRP> <PRTPAGE P="64"/> <HD SOURCE="HED">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)</HD> <SECTNO>4.1360</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>4.1361</SECTNO> <SUBJECT>Who may file.</SUBJECT> <SECTNO>4.1362</SECTNO> <SUBJECT>Where to file; when to file.</SUBJECT> <SECTNO>4.1363</SECTNO> <SUBJECT>Contents of request; amendment of request; responses.</SUBJECT> <SECTNO>4.1364</SECTNO> <SUBJECT>Time for hearing; notice of hearing; extension of time for hearing.</SUBJECT> <SECTNO>4.1365</SECTNO> <SUBJECT>Status of decision pending administrative review.</SUBJECT> <SECTNO>4.1366</SECTNO> <SUBJECT>Burdens of proof.</SUBJECT> <SECTNO>4.1367</SECTNO> <SUBJECT>Request for temporary relief.</SUBJECT> <SECTNO>4.1368</SECTNO> <SUBJECT>Determination by the Administrative Law Judge.</SUBJECT> <SECTNO>4.1369</SECTNO> <SUBJECT>Petition for discretionary review; judicial review.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Review of OSM Decisions Proposing To Suspend or Rescind or Suspending or Rescinding Improvidently Issued Permits</HD> <SECTNO>4.1370</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>4.1371</SECTNO> <SUBJECT>Who may file, where to file, when to file.</SUBJECT> <SECTNO>4.1372</SECTNO> <SUBJECT>Contents of request for review, response to request, amendment of request.</SUBJECT> <SECTNO>4.1373</SECTNO> <SUBJECT>Hearing.</SUBJECT> <SECTNO>4.1374</SECTNO> <SUBJECT>Burdens of proof.</SUBJECT> <SECTNO>4.1375</SECTNO> <SUBJECT>Time for initial decision.</SUBJECT> <SECTNO>4.1376</SECTNO> <SUBJECT>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.</SUBJECT> <SECTNO>4.1377</SECTNO> <SUBJECT>Petition for discretionary review of initial decision.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Review of Office of Surface Mining Written Decisions Concerning Ownership or Control Challenges</HD> <SECTNO>4.1380</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>4.1381</SECTNO> <SUBJECT>Who may file; when to file; where to file.</SUBJECT> <SECTNO>4.1382</SECTNO> <SUBJECT>Contents of request for review; response to request; amendment of request.</SUBJECT> <SECTNO>4.1383</SECTNO> <SUBJECT>Hearing.</SUBJECT> <SECTNO>4.1384</SECTNO> <SUBJECT>Burdens of proof.</SUBJECT> <SECTNO>4.1385</SECTNO> <SUBJECT>Time for initial decision.</SUBJECT> <SECTNO>4.1386</SECTNO> <SUBJECT>Petition for temporary relief from decision; appeals from decisions granting or denying temporary relief.</SUBJECT> <SECTNO>4.1387</SECTNO> <SUBJECT>Petition for discretionary review of initial decisions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Request for Review of OSM Determinations of Issues Under 30 CFR Part 761 (Federal Program; Federal Lands Program; Federal Program for Indian Lands)</HD> <SECTNO>4.1390</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>4.1391</SECTNO> <SUBJECT>Who may file; where to file; when to file; filing of administrative record.</SUBJECT> <SECTNO>4.1392</SECTNO> <SUBJECT>Contents of request; amendment of request; responses.</SUBJECT> <SECTNO>4.1393</SECTNO> <SUBJECT>Status of decision pending administrative review.</SUBJECT> <SECTNO>4.1394</SECTNO> <SUBJECT>Burden of proof.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart M—Special Procedural Rules Applicable to Appeals of Decisions Made Under OMB Circular A-76</HD> <SECTNO>4.1600</SECTNO> <SUBJECT>Purpose and nature of the appeal process.</SUBJECT> <SECTNO>4.1601</SECTNO> <SUBJECT>Basis for appeal.</SUBJECT> <SECTNO>4.1602</SECTNO> <SUBJECT>Who may appeal under this procedure.</SUBJECT> <SECTNO>4.1603</SECTNO> <SUBJECT>Appeal period.</SUBJECT> <SECTNO>4.1604</SECTNO> <SUBJECT>Method of filing an appeal.</SUBJECT> <SECTNO>4.1605</SECTNO> <SUBJECT>Action by the Office of Hearings and Appeals.</SUBJECT> <SECTNO>4.1606</SECTNO> <SUBJECT>Department representation.</SUBJECT> <SECTNO>4.1607</SECTNO> <SUBJECT>Processing the appeal.</SUBJECT> <SECTNO>4.1608</SECTNO> <SUBJECT>Oral presentations.</SUBJECT> <SECTNO>4.1609</SECTNO> <SUBJECT>Multiple appeals.</SUBJECT> <SECTNO>4.1610</SECTNO> <SUBJECT>Decision of the appeals official.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 43 U.S.C. 1201.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>36 FR 7186, Apr. 15, 1971, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General; Office of Hearings and Appeals</HD> <SECTION> <SECTNO>§ 4.1</SECTNO> <SUBJECT>Scope of authority; applicable regulations.</SUBJECT> <P>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:</P> <P>(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</P> <P>(b) Appeals Boards, shown below, with administrative jurisdiction and special procedural rules as indicated. <PRTPAGE P="65"/>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.</P> <P>(1) <E T="03">Board of Contract Appeals.</E> 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.</P> <P>(2) <E T="03">Board of Indian Appeals.</E> The Board decides finally for the Department appeals to the head of the Department pertaining to:</P> <P>(i) Administrative actions of officials of the Bureau of Indian Affairs, issued under 25 CFR chapter I, except as limited in 25 CFR chapter I or § 4.330 of this part, and</P> <P>(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.</P> <P>(3) <E T="03">Board of Land Appeals.</E> 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.</P> <P>(4) <E T="03">Ad Hoc Board of Appeals.</E> Appeals to the head of the Department which do not lie within the appellate review jurisdiction of an established Appeals Board and which are not specifically excepted in the general delegation of authority to the Director may be considered and ruled upon by the Director or by Ad Hoc Boards of Appeals appointed by the Director to consider the particular appeals and to issue decisions thereon, deciding finally for the Department all questions of fact and law necessary for the complete adjudication of the issues. Jurisdiction of the Boards would include, but not be limited to, the appellate and review authority of the Secretary referred to in parts 13, 21, and 230 of this title, and in 36 CFR parts 8 and 20. Special regulations applicable to proceedings in such cases are contained in subpart G of this part.</P> <SECAUTH>(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)</SECAUTH> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.2</SECTNO> <SUBJECT>Membership of appeals boards; decisions, functions of Chief Judges.</SUBJECT> <P>(a) The Appeals Boards consist of regular members, who are hereby designated Administrative Judges, one of <PRTPAGE P="66"/>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.</P> <P>(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.</P> <P>(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.</P> <CITA>[39 FR 7931, Mar. 1, 1974]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.3</SECTNO> <SUBJECT>Representation before appeals boards.</SUBJECT> <P>(a) <E T="03">Appearances generally.</E> Representation of parties in proceedings before Appeals Boards of the Office of Hearings and Appeals is governed by Part 1 of this subtitle, which regulates practice before the Department of the Interior.</P> <P>(b) <E T="03">Representation of the Government.</E> 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.</P> <P>(c) <E T="03">Appearances as amicus curiae.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.4</SECTNO> <SUBJECT>Public records; locations of field offices.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.5</SECTNO> <SUBJECT>Power of the Secretary and Director.</SUBJECT> <P>(a) <E T="03">Secretary.</E> 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:</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">The Director.</E> 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.</P> <P>(c) <E T="03">Exercise of reserved power.</E> If the Secretary or Director assumes jurisdiction of a case or reviews a decision, the <PRTPAGE P="67"/>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.</P> <CITA>[50 FR 43705, Oct. 29, 1985, as amended at 52 FR 46355, Dec. 7, 1987; 52 FR 47097, Dec. 11, 1987]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—General Rules Relating to Procedures and Practice</HD> <SECTION> <SECTNO>§ 4.20</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.21</SECTNO> <SUBJECT>General provisions.</SUBJECT> <P>(a) <E T="03">Effect of decision pending appeal.</E> Except as otherwise provided by law or other pertinent regulation:</P> <P>(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;</P> <P>(2) A decision will become effective on the day after the expiration of the time during which a person adversely affected may file a notice of appeal unless a petition for a stay pending appeal is filed together with a timely notice of appeal; a petition for a stay may be filed only by a party who may properly maintain an appeal;</P> <P>(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.</P> <P>(b) <E T="03">Standards and procedures for obtaining a stay.</E> Except as otherwise provided by law or other pertinent regulation:</P> <P>(1) A petition for a stay of a decision pending appeal shall show sufficient justification based on the following standards:</P> <P>(i) The relative harm to the parties if the stay is granted or denied,</P> <P>(ii) The likelihood of the appellant's success on the merits,</P> <P>(iii) The likelihood of immediate and irreparable harm if the stay is not granted, and</P> <P>(iv) Whether the public interest favors granting the stay;</P> <P>(2) The appellant requesting the stay bears the burden of proof to demonstrate that a stay should be granted;</P> <P>(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;</P> <P>(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;</P> <P>(c) <E T="03">Exhaustion of administrative remedies.</E> 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.</P> <P>(d) <E T="03">Finality of decision.</E> No further appeal will lie in the Department from a decision of the Director or an Appeals <PRTPAGE P="68"/>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.</P> <CITA>[36 FR 7186, Apr. 15, 1971, as amended at 58 FR 4942, Jan. 19, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.22</SECTNO> <SUBJECT>Documents.</SUBJECT> <P>(a) <E T="03">Filing of documents.</E> 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.</P> <P>(b) <E T="03">Service generally.</E> A copy of each document filed in a proceeding before the Office of Hearings and Appeals must be served by the filing party on the other party or parties in the case, except as otherwise provided by § 4.31. In all cases where a party is represented by an attorney, such attorney will be recognized as fully controlling the case on behalf of his/her client, and service of any document relating to the proceeding shall be made upon such attorney in addition to any other service specifically required by law or by order of a presiding official or an appeals board. Where a party is represented by more than one attorney, service upon one of the attorneys shall be sufficient.</P> <P>(c) <E T="03">Retention of documents.</E> 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 § 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.</P> <P>(d) <E T="03">Record address.</E> 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.</P> <P>(e) <E T="03">Computation of time for filing and service.</E> 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.<PRTPAGE P="69"/> </P> <P>(f) <E T="03">Extensions of time.</E> (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.</P> <P>(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.</P> <CITA>[36 FR 7186, Apr. 15, 1971, as amended at 53 FR 49660, Dec. 9, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.23</SECTNO> <SUBJECT>Transcript of hearings.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.24</SECTNO> <SUBJECT>Basis of decision.</SUBJECT> <P>(a) <E T="03">Record.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(4) In any case, no decision after a hearing or on appeal shall be based upon any record, statement, file, or similar document which is not open to inspection by the parties to the hearing or appeal, except for documents or other evidence received or reviewed pursuant to § 4.31(d).</P> <P>(b) <E T="03">Official notice.</E> 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.</P> <CITA>[36 FR 7186, Apr. 15, 1971, as amended at 53 FR 49660, Dec. 9, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.25</SECTNO> <SUBJECT>Oral argument.</SUBJECT> <P>The Director or an Appeals Board may, in their discretion, grant an opportunity for oral argument.</P> </SECTION> <SECTION> <SECTNO>§ 4.26</SECTNO> <SUBJECT>Subpoena power and witness provisions generally.</SUBJECT> <P>(a) <E T="03">Compulsory attendance of witnesses.</E> 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.</P> <P>(b) <E T="03">Application for subpoena.</E> 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.</P> <P>(c) <E T="03">Fees payable to witnesses.</E> (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 <PRTPAGE P="70"/>the party at whose instance the witness appears.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.27</SECTNO> <SUBJECT>Standards of conduct.</SUBJECT> <P>(a) <E T="03">Inquiries.</E> 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.</P> <P>(b) <E T="03">Ex parte communication</E>—(1) <E T="03">Prohibition.</E> Except to the extent required for the disposition of <E T="03">ex parte</E> matters as authorized by law, there shall be no communication concerning the merits of a proceeding between any party to the proceeding or any person interested in the proceeding or any representative of a party or interested person and any Office personnel involved or who may reasonably be expected to become involved in the decisionmaking process on that proceeding, unless the communication, if oral, is made in the presence of all other parties or their representatives, or, if written, is furnished to all other parties. Proceedings include cases pending before the Office, rulemakings amending this Part 4 that might affect a pending case, requests for reconsideration or review by the Director, and any other related action pending before the Office. The terms “interested person” and “person interested in the proceeding” include any individual or other person with an interest in the agency proceeding that is greater than the interest that the public as a whole may have. This regulation does not prohibit communications concerning case status or advice concerning compliance with procedural requirements unless the area of inquiry is in fact an area of controversy in the proceeding. Any oral communication made in violation of this regulation shall be reduced to writing in a memorandum to the file by the person receiving the communication and shall be included in the record. Any written communication made in violation of this regulation shall be included in the record. In proceedings other than informal rulemakings copies of the memorandum or communication shall be provided to all parties, who shall be given an opportunity to respond in writing.</P> <P>(2) <E T="03">Sanctions.</E> 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.</P> <P>(c) <E T="03">Disqualification.</E> (1) An Office of Hearings and Appeals deciding official must withdraw from a case if circumstances exist that would disqualify a judge in such circumstances under the recognized canons of judicial ethics.</P> <P>(2) A party may file a motion seeking the disqualification of a deciding official, setting forth in detail the circumstances that the party believes require disqualification. Any supporting facts must be established by affidavit or other sufficient evidence. A copy of the motion should be sent to the Director.</P> <P>(3) The head of the appropriate unit within the Office or the Director may decide whether disqualification is required if the deciding official does not withdraw under paragraph (c)(1) of this section or in response to a motion under paragraph (c)(2) of this section.</P> <P>(4) For purposes of this section, “deciding official” includes an attorney decision maker or Indian probate judge as defined in § 4.201, an administrative <PRTPAGE P="71"/>law judge, an administrative judge, or a member of any Board.</P> <CITA>[36 FR 7186, Apr. 15, 1971, as amended at 50 FR 43705, Oct. 29, 1985; 53 FR 49660, Dec. 9, 1988; 70 FR 11812, Mar. 9, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.28</SECTNO> <SUBJECT>Interlocutory appeals.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.29</SECTNO> <SUBJECT>Remands from courts.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.30</SECTNO> <SUBJECT>Information required by forms.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.31</SECTNO> <SUBJECT>Request for limiting disclosure of confidential information.</SUBJECT> <P>(a) If any person submitting a document in a proceeding under this part claims that some or all of the information contained in that document is exempt from the mandatory public disclosure requirements of the Freedom of Information Act (5 U.S.C. 552), is information referred to in section 1905 of title 18 of the United States Code (disclosure of confidential information), or is otherwise exempt by law from public disclosure, the person:</P> <P>(1) Must indicate in the document that it is exempt, or contains information which is exempt, from disclosure;</P> <P>(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:</P> <P>(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;</P> <P>(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:</P> <P>(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).</P> <P>(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.</P> <P>(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:<PRTPAGE P="72"/> </P> <P>(1) Not to use or disclose the information except in the context of the proceeding conducted pursuant to this part; and</P> <P>(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.</P> <P>(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:</P> <P>(1) Must indicate in the original document that it contains information of which disclosure is prohibited;</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[53 FR 49661, Dec. 9, 1988]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Special Rules of Practice Before the Interior Board of Contract Appeals</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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)).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>46 FR 57499, Nov. 24, 1981, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.100</SECTNO> <SUBJECT>General rules and guidelines.</SUBJECT> <P>(a) <E T="03">Effective date and applicability—</E>(1) <E T="03">Effective date and general applicability.</E> 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.</P> <P>(2) <E T="03">Special applicability.</E> The rule set forth in § 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 §§ 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.</P> <P>(3) <E T="03">When an appeal is subject to the Contract Disputes Act of 1978.</E> 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.</P> <P>(b) <E T="03">Jurisdiction for considering appeals.</E> 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 <PRTPAGE P="73"/>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.</P> <P>(c) <E T="03">Location and organization of the Board.</E> (1) The Board's address is 801 North Quincy Street, Arlington, Virginia 22203. Its telephone number is (703) 235-3813.</P> <P>(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.</P> <P>(d) <E T="03">Time extensions and computations.</E> (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.</P> <P>(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.</P> <P>(e) <E T="03">General guidelines—</E>(1) <E T="03">Place of filings.</E> 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.</P> <P>(2) <E T="03">Representation of parties.</E> 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 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.</P> <P>(3) <E T="03">Interpretation of these rules.</E> These rules will be interpreted so as to secure a just and inexpensive determination of appeals without unnecessary delay.</P> <P>(4) <E T="03">Decisions on questions of law.</E> 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.</P> <P>(f) <E T="03">Ex parte communications.</E> 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.</P> <P>(g) <E T="03">Sanctions.</E> 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.</P> <CITA>[46 FR 57499, Nov. 24, 1981, as amended at 50 FR 8325, Mar. 1, 1985; 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SUBJGRP> <HD SOURCE="HED">Prehearing Procedure Rules</HD> <SECTION> <SECTNO>§ 4.101</SECTNO> <SUBJECT>Who may appeal.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.102</SECTNO> <SUBJECT>Appeals—how taken.</SUBJECT> <P>(a) <E T="03">Notice of appeal.</E> Notice of an appeal must be in writing (a suggested <PRTPAGE P="74"/>form of notice appears as appendix I to subpart C herein following § 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.</P> <P>(b) <E T="03">Contents of notice of appeal.</E> 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 § 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.</P> <P>(c) <E T="03">Failure of CO to issue decision on claims of $50,000 or less.</E> 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. (<E T="03">See</E> § 4.100(a)(2).)</P> <P>(d) <E T="03">Failure of CO to issue decision on claims in excess of $50,000.</E> 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. (<E T="03">See</E> § 4.100(a)(2).)</P> <P>(e) <E T="03">Optional stay of proceeding.</E> Upon docketing of appeals filed pursuant to 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. (<E T="03">See</E> § 4.100(a)(2).)</P> </SECTION> <SECTION> <SECTNO>§ 4.103</SECTNO> <SUBJECT>Forwarding and docketing of appeals.</SUBJECT> <P>(a) <E T="03">Forwarding of appeal.</E> 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.</P> <P>(b) <E T="03">Docketing of appeals.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.104</SECTNO> <SUBJECT>Preparation, organization, transmittal, and status of appeal file.</SUBJECT> <P>(a) <E T="03">Preparation and transmittal of appeal file.</E> 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.)</P> <P>(b) <E T="03">Composition of appeal file.</E> The appeal file shall include the following:<PRTPAGE P="75"/> </P> <P>(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;</P> <P>(2) The contract, and pertinent plans, drawings, specifications, amendments, and change orders;</P> <P>(3) All correspondence between the parties pertinent to the appeal; and</P> <P>(4) Such additional information as may be considered pertinent and material.</P> <P>(c) <E T="03">Organization of appeal file.</E> 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 identify 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.</P> <P>(d) <E T="03">Opportunity for appellant to supplement appeal file.</E> 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.</P> <P>(e) <E T="03">Burdensome documents.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.105</SECTNO> <SUBJECT>Dismissal for lack of jurisdiction.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.106</SECTNO> <SUBJECT>Representation and appearances.</SUBJECT> <P>(a) <E T="03">The Appellant.</E> 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.</P> <P>(b) <E T="03">The Government.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.107</SECTNO> <SUBJECT>Pleadings.</SUBJECT> <P>(a) <E T="03">Complaint.</E> 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 <PRTPAGE P="76"/>such service shall be made in accordance with § 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.</P> <P>(b) <E T="03">Answer.</E> 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 § 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.108</SECTNO> <SUBJECT>Amendments of pleadings or record.</SUBJECT> <P>(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.</P> <P>(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 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 it 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: <E T="03">Provided, however,</E> That the objecting party may be granted a continuance if necessary to enable him to meet such evidence.</P> </SECTION> <SECTION> <SECTNO>§ 4.109</SECTNO> <SUBJECT>Hearing—election.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.110</SECTNO> <SUBJECT>Prehearing briefs.</SUBJECT> <P>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 § 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.111</SECTNO> <SUBJECT>Prehearing or presubmission conference.</SUBJECT> <P>Whether the case is to be submitted without a hearing, or heard pursuant to §§ 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 <PRTPAGE P="77"/>hearing officer of the Board for a conference to consider:</P> <P>(a) The simplification or clarification of the issues;</P> <P>(b) The possibility of obtaining stipulations, admissions, agreements on documents, understandings on matters already of record, or similar agreements which will avoid unnecessary proof;</P> <P>(c) The limitation of the number of expert witnesses, or avoidance of similar cumulative evidence, if the case is to be heard;</P> <P>(d) The possibility of agreement disposing of all or any of the issues in dispute; and</P> <P>(e) Such other matters as may aid in the disposition of the appeal.</P> <FP>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.</FP> </SECTION> <SECTION> <SECTNO>§ 4.112</SECTNO> <SUBJECT>Submission without a hearing.</SUBJECT> <P>Either party may elect to waive a hearing and to submit his case upon the Board record, as settled pursuant to § 4.114. Such waiver shall not affect the other party's rights under § 4.109. In the event of such election (see the time limitations for election in § 4.109), the submission may be supplemented by oral argument (transcribed if requested) and by briefs.</P> </SECTION> <SECTION> <SECTNO>§ 4.113</SECTNO> <SUBJECT>Optional small claims (expedited) and accelerated procedures. (See § 4.100(a)(2).)</SUBJECT> <P>(a) The procedures set forth in this rule are available solely at the election of the appellant.</P> <P>(b) <E T="03">Elections to utilize small claims (expedited) and accelerated procedure.</E> (1) In appeals where the amount in dispute is $10,000 or less, the appellant may elect 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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">The SMALL CLAIMS (EXPEDITED) procedure.</E> (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.</P> <P>(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 <PRTPAGE P="78"/>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 § 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 § 4.112 without a hearing.</P> <P>(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.</P> <P>(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 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 § 4.126.</P> <P>(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.</P> <P>(d) <E T="03">The ACCELERATED procedure.</E> (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.</P> <P>(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 necessary 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.</P> <P>(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 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 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 § 4.126.</P> <P>(e) <E T="03">Motions for reconsideration in cases arising under § 4.113.</E> Motions for reconsideration of cases decided under either the SMALL CLAIMS (EXPEDITED) <PRTPAGE P="79"/>procedure or the ACCELERATED procedure need not be decided within the time period prescribed by this § 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.114</SECTNO> <SUBJECT>Settling of the record.</SUBJECT> <P>(a) A case submitted on the record pursuant to § 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.</P> <P>(b) The Board record shall consist of the appeal file described in § 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.</P> <P>(c) This record will at all times be available for inspection by the parties at an appropriate time and place. In 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.115</SECTNO> <SUBJECT>Discovery—depositions.</SUBJECT> <P>(a) <E T="03">General policy and protective orders.</E> 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.</P> <P>(b) <E T="03">When depositions permitted.</E> 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 deposition is discovery or for use as evidence.</P> <P>(c) <E T="03">Orders on depositions.</E> 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.</P> <P>(d) <E T="03">Use as evidence.</E> 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.</P> <P>(e) <E T="03">Expenses.</E> Each party shall bear its own expenses associated with the taking of any deposition.</P> </SECTION> <SECTION> <SECTNO>§ 4.116</SECTNO> <SUBJECT>Interrogatories to parties; inspection of documents; admission of facts.</SUBJECT> <P>Under appropriate circumstances, but not as a matter of course, the Board will entertain applications for <PRTPAGE P="80"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.117</SECTNO> <SUBJECT>Service of papers.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearing Procedure Rules</HD> <SECTION> <SECTNO>§ 4.118</SECTNO> <SUBJECT>Hearings—where and when held.</SUBJECT> <P>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. Hearings 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 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.119</SECTNO> <SUBJECT>Notice of hearings.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.120</SECTNO> <SUBJECT>Subpoenas. (See § 4.100(a)(2).)</SUBJECT> <P>(a) <E T="03">General.</E> 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:</P> <P>(1) <E T="03">Testimony at a deposition—</E> 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;</P> <P>(2) <E T="03">Testimony at a hearing—</E> the attendance of a witness for the purpose of taking testimony at a hearing; and</P> <P>(3) <E T="03">Production of books and papers—</E> 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.</P> <P>(b) <E T="03">Voluntary cooperation.</E> 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.</P> <P>(c) <E T="03">Requests for subpoenas.</E> (1) A request for a subpoena shall normally be filed at least:</P> <P>(i) 15 days before a scheduled deposition where the attendance of a witness at a deposition is sought;</P> <P>(ii) 30 days before a scheduled hearing where the attendance of a witness at a hearing is sought.</P> <FP>In its discretion the Board may honor requests for subpoenas not made within these time limitations.</FP> <P>(2) A request for a subpoena shall state the reasonable scope and general <PRTPAGE P="81"/>relevance to the case of the testimony and of any books and papers sought.</P> <P>(d) <E T="03">Request to quash or modify.</E> 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.</P> <P>(e) <E T="03">Forms—issuance.</E> (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.</P> <P>(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.</P> <P>(f) <E T="03">Service.</E> (1) The party requesting issuance of subpoena shall arrange for service.</P> <P>(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 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.</P> <P>(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.</P> <P>(g) <E T="03">Contumacy or refusal to obey a subpoena.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.121</SECTNO> <SUBJECT>Unexcused absence of a party.</SUBJECT> <P>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 § 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.122</SECTNO> <SUBJECT>Nature of hearings.</SUBJECT> <P>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 <PRTPAGE P="82"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.123</SECTNO> <SUBJECT>Examination of witnesses.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.124</SECTNO> <SUBJECT>Submission of briefs.</SUBJECT> <P>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.</P> <HD SOURCE="HD1">posthearing procedure rules</HD> </SECTION> <SECTION> <SECTNO>§ 4.125</SECTNO> <SUBJECT>Decisions.</SUBJECT> <P>Decisions of the Board will be made upon the record, as described in § 4.114(b). Copies thereof will be forwarded simultaneously to both parties by certified mail.</P> </SECTION> <SECTION> <SECTNO>§ 4.126</SECTNO> <SUBJECT>Motions for reconsideration.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.127</SECTNO> <SUBJECT>Dismissals.</SUBJECT> <P>(a) <E T="03">Dismissal without prejudice.</E> 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.</P> <P>(b) <E T="03">Dismissal for failure to prosecute or defend.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.128</SECTNO> <SUBJECT>Remands from courts.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <APPENDIX> <EAR>Pt. 4, Subpt. C, App. I</EAR> <HD SOURCE="HED">Appendix I to Subpart C of Part 4—Suggested Form of Notice of Appeal</HD> <FP SOURCE="FP-1">Interior Board of Contract Appeals, 801 North Quincy Street, Arlington, VA 22203</FP> <FP SOURCE="FP-DASH">(Date)</FP> <FP SOURCE="FP-DASH">(Name of Contractor)</FP> <FP SOURCE="FP-DASH">(Address)</FP> <FP SOURCE="FP-DASH">Contract No.</FP> <FP SOURCE="FP-DASH">(Invitation No.)</FP> <FP SOURCE="FP-DASH">Specifications No.</FP> <FP SOURCE="FP-DASH">(Name and Location of Project)</FP> <FP SOURCE="FP-DASH">(Name of Bureau or Office)</FP> <P>The undersigned contractor appeals to the Board of Contract Appeals from decision or findings of fact dated ____, by:</P> <FP SOURCE="FP-DASH">(Name of Contracting Officer)</FP> <P>The decision or findings of fact is erroneous because: (State specific facts and circumstances and the contractual provisions involved.)</P> <FP SOURCE="FP-DASH">(Signature)</FP> <FP SOURCE="FP-DASH">(Title)</FP> <CITA>[46 FR 57499, Nov. 24, 1981, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </APPENDIX> </SUBPART> <SUBPART> <PRTPAGE P="83"/> <HD SOURCE="HED">Subpart D—Rules Applicable in Indian Affairs Hearings and Appeals</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; Pub. L. 99-264, 100 Stat. 61, as amended.</P> </AUTH> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>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.</P> </CROSSREF> <SUBJGRP> <HD SOURCE="HED">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</HD> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Scope of Subpart; Definitions</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>66 FR 67656, Dec. 31, 2001, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.200</SECTNO> <SUBJECT>How to use this subpart.</SUBJECT> <P>(a) The following table is a guide to the contents of this subpart by subject matter.</P> <GPOTABLE CDEF="s100,r100" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">For provisions relating to . . .</CHED> <CHED H="1">consult . . .</CHED> </BOXHD> <ROW> <ENT I="01">(1) All proceedings in subpart D</ENT> <ENT>§§ 4.200 and 4.201.</ENT> </ROW> <ROW> <ENT I="01">(2) The probate of trust estates of Indians who die possessed of trust property</ENT> <ENT>§§ 4.202 through 4.282 and 4.310 through 4.323.</ENT> </ROW> <ROW> <ENT I="01">(i) Probate matters generally</ENT> <ENT>§§ 4.202, 4.206, 4.208, 4.210, 4.211, 4.250 through 4.270, 4.273 through 4.282, and 4.310 through 4.323.</ENT> </ROW> <ROW> <ENT I="01">(ii) Informal probate proceedings before an attorney decision maker</ENT> <ENT>§§ 4.212 through 4.215.</ENT> </ROW> <ROW> <ENT I="01">(iii) Formal probate proceedings before an administrative law judge or Indian probate judge</ENT> <ENT>§§ 4.203 through 4.205, 4.207, 4.216 through 4.242, 4.271, and 4.272.</ENT> </ROW> <ROW> <ENT I="01">(3) Tribal purchase of certain property interests of decedents under special laws applicable to particular tribes</ENT> <ENT>§§ 4.300 through 4.308.</ENT> </ROW> <ROW> <ENT I="01">(4) Appeals to the Board of Indian Appeals from actions or decisions of BIA</ENT> <ENT>§§ 4.330 through 4.340.</ENT> </ROW> <ROW> <ENT I="01">(5) Determinations under the White Earth Reservation Land Settlement Act</ENT> <ENT>§§ 4.350 through 4.357.</ENT> </ROW> </GPOTABLE> <P>(b)(1) Except as provided in paragraph (b)(2) of this section, the regulations referred to in paragraph (a)(2) of this section 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 such tribe may be inconsistent with this subpart.</P> <P>(2) The regulations referred to in paragraph (a)(2) of this section do apply to trust or restricted property inherited by such deceased Indian or member of such tribe from someone who was a member of a tribe not included in paragraph (b)(1) of this section.</P> <P>(c) Except as limited by the provisions in this subpart, the rules in subparts A and B of this part apply to these proceedings.</P> <CITA>[70 FR 11812, Mar. 9, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.201</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P> <E T="03">Administrative law judge</E> means an administrative law judge with the Office of Hearings and Appeals (OHA) appointed pursuant to the Administrative Procedure Act, 5 U.S.C. 3105.</P> <P> <E T="03">Agency</E> means the Bureau of Indian Affairs (BIA) 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 that has contracted or compacted BIA probate function under 25 U.S.C. 450f or 458cc.</P> <P> <E T="03">Attorney decision maker</E> means an attorney with OHA who conducts an informal hearing and renders a decision in any probate case that does not require a formal hearing and a decision by an administrative law judge or Indian probate judge.</P> <P> <E T="03">Beneficiary</E> means any individual who is designated in a decedent's will to receive trust or restricted property or <PRTPAGE P="84"/>money. The term includes both a devisee (someone who receives real property in a will) and a legatee (someone who receives personal property in a will).</P> <P> <E T="03">Bequeath</E> means to give personal property to someone in a will.</P> <P> <E T="03">Bequest</E> (or <E T="03">legacy</E>) means a gift of personal property in a will.</P> <P> <E T="03">BIA</E> means the Bureau of Indian Affairs within the Department of the Interior.</P> <P> <E T="03">Board</E> means the Board of Indian Appeals within OHA, 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 § 4.1(b)(2).</P> <P> <E T="03">Child</E> or <E T="03">children</E> includes any child adopted by the decedent.</P> <P> <E T="03">Codicil</E> means a supplement or addition to a will, executed with the same formalities as a will. It may explain, modify, add to, or revoke provisions in an existing will.</P> <P> <E T="03">Creditor</E> means any individual or entity that submits a claim for payment from a decedent's estate.</P> <P> <E T="03">Day</E> means a calendar day, unless otherwise stated.</P> <P> <E T="03">Decedent</E> means a person who is deceased.</P> <P> <E T="03">Deciding official</E> means an administrative law judge, Indian probate judge, or attorney decision maker.</P> <P> <E T="03">Decision</E> or <E T="03">order</E> means a written document issued by a deciding official making determinations as to heirs, wills, beneficiaries, and creditors' claims, and ordering distribution of property and money.</P> <P> <E T="03">De novo review</E> means a process in which an administrative law judge or Indian probate judge will, without regard to the decision previously issued in the case by an attorney decision maker:</P> <P>(1) Take a fresh look at a probate case;</P> <P>(2) Conduct a formal hearing as necessary or appropriate; and</P> <P>(3) Issue a decision.</P> <P> <E T="03">Department</E> means the Department of the Interior.</P> <P> <E T="03">Devise</E> when used as a verb means to give real property to someone in a will. When used as a noun, it means a gift of real property in a will.</P> <P> <E T="03">Estate</E> means the trust cash assets, restricted or trust lands, and other trust property owned by the decedent at the time of his or her death.</P> <P> <E T="03">Formal hearing</E> means a trial-type proceeding, conducted by an administrative law judge or Indian probate judge, in which interested parties present evidence through the testimony of witnesses and the introduction of relevant documents.</P> <P> <E T="03">Heir</E> means any individual who receives trust or restricted property or money from a decedent in an intestate proceeding.</P> <P> <E T="03">IIM account</E> means funds held in an individual Indian money (IIM) account by the Office of the Special Trustee for American Indians (OST) or by a tribe performing this function under a contract or compact.</P> <P> <E T="03">Indian probate judge</E> means an employee of OHA, other than an administrative law judge or attorney decision maker, to whom the Secretary has delegated authority to conduct hearings in probate cases.</P> <P> <E T="03">Informal hearing</E> means a meeting convened by an attorney decision maker in which interested parties present relevant information on uncontested issues.</P> <P> <E T="03">Interested party</E> means:</P> <P>(1) Any probable or actual heir;</P> <P>(2) Any beneficiary under a will;</P> <P>(3) Any party asserting a claim against a deceased Indian's estate; and</P> <P>(4) Any tribe having a statutory option to purchase the trust or restricted property interest of a decedent.</P> <P> <E T="03">Intestate</E> means the decedent died without a valid will.</P> <P> <E T="03">LTRO</E> means the Land Titles and Records Office within BIA.</P> <P> <E T="03">Minor</E> means an individual who has not reached the age of majority as defined by the applicable tribal or state law.</P> <P> <E T="03">OHA</E> means the Office of Hearings and Appeals, Department of the Interior.</P> <P> <E T="03">OST</E> means the Office of the Special Trustee for American Indians, Department of the Interior.<PRTPAGE P="85"/> </P> <P> <E T="03">Probate</E> means the legal process by which applicable tribal law, State law, or Federal law that affects the distribution of a decedent's estate is applied to:</P> <P>(1) Determine the heirs;</P> <P>(2) Determine the validity of wills and determine beneficiaries;</P> <P>(3) Determine whether claims against the estate will be paid from trust funds; and</P> <P>(4) 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 entitled by law to receive it.</P> <P> <E T="03">Probate specialist</E> means a BIA or tribal employee who is trained in Indian probate matters.</P> <P> <E T="03">Restricted property</E> means real or personal property held by an Indian that he or she cannot alienate or encumber without the consent of the Secretary. In this subpart, restricted property is treated as if it were trust property. Except with respect to § 4.200(b)(1), 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.</P> <P> <E T="03">Secretary</E> means the Secretary of the Interior or an authorized representative.</P> <P> <E T="03">Solicitor</E> means the Solicitor of the Department of the Interior or an authorized representative.</P> <P> <E T="03">Superintendent</E> means a BIA Superintendent or other BIA official having jurisdiction over an estate, including an area field representative or one holding equivalent authority.</P> <P> <E T="03">Testate</E> means the decedent executed a valid will before his or her death.</P> <P> <E T="03">Trust cash assets</E> means the funds held in an IIM account that had accumulated or were due and owing to the decedent as of the date of death.</P> <P> <E T="03">Trust property</E> means real or personal property, or an interest therein, which the United States holds in trust for the benefit of an individual Indian.</P> <P> <E T="03">Will</E> or <E T="03">last will and testament</E> means a written testamentary document that was signed by the decedent and attested to by two disinterested adult witnesses, and that states who will receive the decedent's trust or restricted property.</P> <CITA>[70 FR 11812, Mar. 9, 2005]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Determination of Heirs; Approval of Wills; Settlement of Indian Trust Estates</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 11812, Mar. 9, 2005, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.202</SECTNO> <SUBJECT>General authority of deciding officials.</SUBJECT> <P>(a) An attorney decision maker may conduct an informal hearing and render a decision in any probate case that does not require a formal hearing and a decision by an administrative law judge or Indian probate judge.</P> <P>(b) Cases that require a formal hearing and a decision by an administrative law judge or Indian probate judge are those that meet one or more of the following criteria:</P> <P>(1) A probable heir or beneficiary requests a formal hearing at any time before the attorney decision maker renders a decision;</P> <P>(2) A will exists that is complex, ambiguous, of questionable validity, or contested;</P> <P>(3) An interested party contests a claim from a creditor or family member;</P> <P>(4) Questions exist about family relationships, including questions about adoption of an heir or paternity;</P> <P>(5) The case involves a minor heir whose rights might be jeopardized;</P> <P>(6) Prior probate orders conflict on an issue relevant to the case;</P> <P>(7) The jurisdiction of any court that issued an order that has been used as a supporting document in the case is challenged;</P> <P>(8) Questions exist concerning the decedent's domicile;</P> <P>(9) There are other problems with the case requiring an evidentiary hearing;</P> <P>(10) The case requires a determination as to a nonexistent person or other allotment irregularity under § 4.203;</P> <P>(11) The case involves a presumption of death under § 4.204;</P> <P>(12) The case requires a determination of escheat under § 4.205;<PRTPAGE P="86"/> </P> <P>(13) The case requires a determination of nationality, citizenship, or status affecting the character of land titles under § 4.206(a)(2);</P> <P>(14) The interested parties reach a settlement agreement under § 4.207; or</P> <P>(15) The case involves a tribal purchase of a decedent's interest under § 4.300 <E T="03">et seq.</E> </P> <P>(c) For probate cases within their respective jurisdictions, deciding officials will:</P> <P>(1) Determine the heirs of any Indian who dies intestate possessed of trust property;</P> <P>(2) Approve or disapprove the will of a deceased Indian disposing of trust property;</P> <P>(3) Accept or reject any full or partial renunciation of interest in both testate and intestate proceedings;</P> <P>(4) Allow or disallow creditors' claims against the estate of a deceased Indian; and</P> <P>(5) Decree the distribution of trust property to heirs and beneficiaries.</P> <P>(d) “Distribution” under paragraph (c)(5) of this section includes partial distribution to known heirs or beneficiaries where one or more potential heirs or beneficiaries are missing but not presumed dead. In these cases, the deciding official will first attribute to and set aside for the missing person or persons the share or shares that the missing person or persons would be entitled to if living.</P> <P>(e) In any case in which de novo review is sought following a decision by an attorney decision maker under § 4.215, an administrative law judge or Indian probate judge will review the case de novo, hold hearings as necessary or appropriate, and issue a decision.</P> </SECTION> <SECTION> <SECTNO>§ 4.203</SECTNO> <SUBJECT>Determination as to nonexistent persons and other irregularities of allotments.</SUBJECT> <P>(a) An administrative law judge or Indian probate judge will hear and determine:</P> <P>(1) Whether trust patents covering allotments of land were issued to nonexistent persons; and</P> <P>(2) 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.</P> <P>(b) The administrative law judge or Indian probate judge will proceed as provided in § 4.202(c) if he or she determines under paragraph (a) of this section that:</P> <P>(1) A trust patent was issued to an existing person, or separate persons received the allotments under consideration; and</P> <P>(2) Any such person is deceased without having had his or her estate probated.</P> <P>(c) The administrative law judge or Indian probate judge will issue a decision setting forth his or her determination, and will provide notice thereof to interested parties under § 4.240(b), if he or she determines under paragraph (a) of this section that either:</P> <P>(1) A person did not exist; or</P> <P>(2) More than one allotment was issued to the same person.</P> </SECTION> <SECTION> <SECTNO>§ 4.204</SECTNO> <SUBJECT>Presumption of death.</SUBJECT> <P>(a) An administrative law judge or Indian probate judge will receive evidence on and determine the issue of whether any person, by reason of unexplained absence, is to be presumed dead.</P> <P>(b) If an administrative law judge or Indian probate judge determines that an Indian person possessed of trust property is to be presumed dead, the administrative law judge or Indian probate judge will proceed as provided in § 4.202(c).</P> </SECTION> <SECTION> <SECTNO>§ 4.205</SECTNO> <SUBJECT>Escheat.</SUBJECT> <P>An administrative law judge or Indian probate judge will determine whether any Indian holder of trust property died intestate without heirs and—</P> <P>(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; or</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="87"/> <SECTNO>§ 4.206</SECTNO> <SUBJECT>Determinations of nationality, citizenship, or status affecting character of land titles.</SUBJECT> <P>(a) In cases where the right and duty of the Government to hold property in trust depends thereon:</P> <P>(1) A deciding official will determine the Indian or non-Indian status of heirs or beneficiaries; and</P> <P>(2) An administrative law judge or Indian probate judge will determine the nationality or citizenship of heirs or beneficiaries, or whether Indian heirs or beneficiaries of U.S. citizenship are of a class as to whose property the Government's supervision and trusteeship have been terminated.</P> <P>(b) Determinations under paragraph (a) of this section will be made either in current probate proceedings or in completed estates after reopening such estates under, but without regard to the 3-year limit in, § 4.242.</P> </SECTION> <SECTION> <SECTNO>§ 4.207</SECTNO> <SUBJECT>Settlement agreement.</SUBJECT> <P>(a) An administrative law judge or Indian probate judge may approve a settlement agreement between interested parties resolving any issue in the probate proceeding if he or she finds that:</P> <P>(1) All parties to the agreement are fully advised as to all material facts;</P> <P>(2) All parties to the agreement are fully cognizant of the effect of the agreement on their rights; and</P> <P>(3) It is in the best interest of the parties to settle rather than to continue litigation.</P> <P>(b) In considering the proposed settlement agreement, the administrative law judge or Indian probate judge 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.</P> <P>(c) If the administrative law judge or Indian probate judge approves the settlement agreement under paragraph (a) of this section, he or she will issue a final order approving the settlement agreement and distributing the estate in accordance with its provisions. This order will be construed as any other order of distribution establishing title in heirs and beneficiaries and will not be construed as a partition or sale transaction within the provisions of 25 CFR part 152.</P> <P>(1) If land titles are to be transferred, the necessary deeds must be prepared and executed at the earliest possible date.</P> <P>(2) Upon failure or refusal of any interested party to execute and deliver any deed necessary to accomplish the settlement, the administrative law judge or Indian probate judge will settle the issues and enter an order as if no agreement had been attempted.</P> <P>(d) Administrative law judges or Indian probate judges are authorized to approve all deeds or conveyances necessary to accomplish a settlement under this section.</P> </SECTION> <SECTION> <SECTNO>§ 4.208</SECTNO> <SUBJECT>Renunciation of interest.</SUBJECT> <P>(a) Any probable heir or beneficiary, not a minor, may wholly or partially renounce intestate succession or a devise or bequest of trust or restricted property, including the retention of a life estate. To do this, the probable heir or beneficiary must file a signed and acknowledged declaration of renunciation with the deciding official before entry of the final order.</P> <P>(b) No interest in property renounced under paragraph (a) of this section is considered to have vested in the heir or beneficiary, and the renunciation is not considered a transfer by gift of the property renounced. Rather, the renounced property passes as if the person renouncing the interest had predeceased the decedent.</P> <P>(c) A renunciation filed in accordance with this section will be considered accepted when implemented in an order by a deciding official and will be irrevocable thereafter.</P> <P>(d) All disclaimers or renunciations previously filed with and implemented in an order by a deciding official are hereby ratified as valid and effective.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Commencement of Probate Proceedings</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 11815, Mar. 9, 2005, unless otherwise noted.</P> </SOURCE> <SECTION> <PRTPAGE P="88"/> <SECTNO>§ 4.210</SECTNO> <SUBJECT>Commencement of probate.</SUBJECT> <P>(a) The probate of a trust estate before a deciding official will commence when the probate specialist files with OHA all information shown in the records relative to the family of the deceased and his or her property.</P> <P>(1) The information must include the complete probate package described in 25 CFR 15.203 and any other relevant information.</P> <P>(2) If OHA determines that the probate package is not complete, it may request the missing information from BIA or return the case to BIA for further processing.</P> <P>(b) The agency must promptly transmit to the deciding official any creditor's or other claims that are received after the case is transmitted to OHA, for a determination of their timeliness, validity, priority, and allowance under §§ 4.250 and 4.251.</P> </SECTION> <SECTION> <SECTNO>§ 4.211</SECTNO> <SUBJECT>Assignment to deciding official.</SUBJECT> <P>Within 30 days after OHA receives the complete probate package, OHA will assign the case to an attorney decision maker, administrative law judge, or Indian probate judge, as shown in the following table:</P> <GPOTABLE CDEF="s50,r50,r50,r50" COLS="4" OPTS="L2,il"> <BOXHD> <CHED H="1">The case will be assigned to . . .</CHED> <CHED H="1">for . . .</CHED> <CHED H="1">if . . .</CHED> <CHED H="1">and if . . .</CHED> </BOXHD> <ROW> <ENT I="01">(a) An attorney decision maker</ENT> <ENT>summary processing under §§ 4.212 and 4.214</ENT> <ENT>as of the date of the decedent's death, the estate contained only trust cash assets of less than $5,000</ENT> <ENT>the case meets the other criteria in § 4.212(a).</ENT> </ROW> <ROW> <ENT I="01">(b) An attorney decision maker</ENT> <ENT>an informal hearing and decision under §§ 4.213 and 4.214</ENT> <ENT>as of the date of the decedent's death, the estate contained trust cash assets of $5,000 or more or other trust property</ENT> <ENT>the case meets the other criteria in § 4.213(a).</ENT> </ROW> <ROW> <ENT I="01">(c) An administrative law judge or Indian probate judge</ENT> <ENT>a formal hearing and decision under §§ 4.216 through 4.240</ENT> <ENT>the case does not meet the criteria in paragraphs (a) or (b) of this section</ENT> </ROW> <ROW> <ENT I="01">(d) An administrative law judge or Indian probate judge</ENT> <ENT>Summary or informal processing under §§ 4.212 through 4.214</ENT> <ENT>no attorney decision maker is available to handle a case under paragraphs (a) or (b) of this section</ENT> </ROW> </GPOTABLE> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Summary and Informal Probate Proceedings</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 11815, Mar. 9, 2005, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.212</SECTNO> <SUBJECT>Summary process for estates containing only trust cash estates of less than $5,000.</SUBJECT> <P>(a) A decedent's estate may be processed summarily by an attorney decision maker if:</P> <P>(1) The estate contained only trust cash assets of less than $5,000 as of the date of the decedent's death;</P> <P>(2) The case does not meet the criteria in § 4.202(b);</P> <P>(3) Federal law or a tribal inheritance code approved by the Secretary does not provide otherwise.</P> <P>(b) Any interested party may request a formal hearing before an administrative law judge or Indian probate judge to determine the proper distribution of the trust cash assets. This request for a formal hearing, if desired, must be made before the attorney decision maker renders a decision. Upon receiving a request for a formal hearing, OHA will assign or transfer the case to an administrative law judge or Indian probate judge.</P> <P>(c) Within 60 days after OHA receives the complete probate package, if no interested party has requested a formal hearing before an administrative law judge or Indian probate judge, the attorney decision maker to whom the case has been assigned will:</P> <P>(1) Provide notice equivalent to that required for a formal hearing under §§ 4.216-4.217;</P> <P>(2) Assemble the probable heirs and beneficiaries; and</P> <P>(3) Hold an informal hearing to determine the distribution of the trust cash assets.<PRTPAGE P="89"/> </P> <P>(d) The attorney decision maker may schedule a supplemental informal hearing as necessary, in accordance with § 4.235.</P> <P>(e) Within 30 days after the informal hearing, if no interested party has requested a formal hearing before an administrative law judge or Indian probate judge, the attorney decision maker will issue a written order in accordance with § 4.214.</P> <P>(f) Any interested party may seek de novo review of the case following the decision of the attorney decision maker in accordance with § 4.215.</P> <P>(g) If de novo review has not been sought within 60 days of the date of the written order, the attorney decision maker must submit:</P> <P>(1) The complete original record to the LTRO;</P> <P>(2) A complete duplicate copy of the record to the agency that prepared the probate package; and</P> <P>(3) A copy of any relevant portions of the record to any other affected agency.</P> </SECTION> <SECTION> <SECTNO>§ 4.213</SECTNO> <SUBJECT>Informal process for cases that do not require a formal hearing.</SUBJECT> <P>(a) A decedent's estate may be processed informally by an attorney decision maker if:</P> <P>(1) The estate contained trust cash assets of $5,000 or more as of the date of the decedent's death or contained other trust property;</P> <P>(2) The case does not meet the criteria in § 4.202(b);</P> <P>(3) Federal law or a tribal inheritance code approved by the Secretary does not provide otherwise.</P> <P>(b) Any interested party may request a formal hearing before an administrative law judge or Indian probate judge to determine the proper distribution of the estate. This request for a formal hearing, if desired, must be made before the attorney decision maker renders a decision. Upon receiving a request for a formal hearing, OHA will assign or transfer the case to an administrative law judge or Indian probate judge.</P> <P>(c) Within 120 days after OHA receives the complete probate package, if no interested party has requested a formal hearing before an administrative law judge or Indian probate judge, the attorney decision maker to whom the case has been assigned will:</P> <P>(1) Provide notice equivalent to that required for a formal hearing under §§ 4.216-4.217;</P> <P>(2) Assemble the probable heirs and beneficiaries; and</P> <P>(3) Hold an informal hearing to determine the distribution of the trust assets.</P> <P>(d) The attorney decision maker may schedule a supplemental informal hearing as necessary, in accordance with § 4.235.</P> <P>(e) Within 60 days after the informal hearing, if no interested party has requested a formal hearing before an administrative law judge or Indian probate judge, the attorney decision maker will issue a written order in accordance with § 4.214.</P> <P>(f) Any interested party may seek de novo review of the case following the decision of the attorney decision maker in accordance with § 4.215.</P> <P>(g) If de novo review has not been sought within 60 days of the date of the written order, the attorney decision maker must submit:</P> <P>(1) The complete original record to the LTRO;</P> <P>(2) A complete duplicate copy of the record to the agency that prepared the probate package; and</P> <P>(3) A copy of any relevant portions of the record to any other affected agency.</P> </SECTION> <SECTION> <SECTNO>§ 4.214</SECTNO> <SUBJECT>Written decision of attorney decision maker.</SUBJECT> <P>Following the informal hearing in § 4.212 or 4.213, the attorney decision maker will issue a written decision that:</P> <P>(a) In all cases, lists the names, identifying numbers as assigned by BIA, birth dates, relationships to the decedent, and shares of the heirs, or finds that the decedent died leaving no legal heirs, and provides citations to the law of descent and distribution in accordance with which the decision is made;</P> <P>(b) In testate cases, approves or disapproves a will, interprets provisions of the approved will, provides the names, identifying numbers as assigned by BIA, and relationships of the beneficiaries to the decedent, and describes <PRTPAGE P="90"/>the property each beneficiary is to receive;</P> <P>(c) Allows or disallows claims against the estate in accordance with §§ 4.250-4.251, and orders the amount of payment for all approved claims;</P> <P>(d) States whether the heirs or beneficiaries are Indian or non-Indian;</P> <P>(e) Determines any rights of dower, curtesy, or homestead that may constitute a burden upon the interest of the heirs;</P> <P>(f) Attaches a certified copy of the inventory of trust or restricted lands, if any; and</P> <P>(g) Advises all interested parties of their right to seek de novo review in accordance with § 4.215, and that, if they fail to do so, the decision of the attorney decision maker will become final upon expiration of the 60-day period provided in § 4.215(c).</P> </SECTION> <SECTION> <SECTNO>§ 4.215</SECTNO> <SUBJECT>De novo review following decision of attorney decision maker.</SUBJECT> <P>(a) Any interested party who is adversely affected by a written decision of an attorney decision maker under § 4.214 may seek de novo review of the case by an administrative law judge or Indian probate judge by filing a request with the attorney decision maker.</P> <P>(b) The request for de novo review must be in writing and signed, and must contain the following information:</P> <P>(1) The name of the decedent;</P> <P>(2) A description of the appellant's relationship to the decedent;</P> <P>(3) An explanation of how the appellant is adversely affected by the decision of the attorney decision maker; and</P> <P>(4) An explanation of what errors the appellant believes the attorney decision maker made.</P> <P>(c) The request for de novo review by an administrative law judge or Indian probate judge must be sent or delivered to the attorney decision maker within 60 days after the date that appears on the decision. If the request is mailed, it must be postmarked within 60 days after the date of the decision.</P> <P>(d) After the 60-day period has expired, an interested party who is adversely affected by a written decision of an attorney decision maker under § 4.214 may file with the attorney decision maker a request for de novo review by an administrative law judge or Indian probate judge for one or more of the following reasons:</P> <P>(1) The party did not receive notice of the probate;</P> <P>(2) The party obtained new evidence or information after the decision was made; or</P> <P>(3) The party has evidence that was known at the time of the probate proceeding but was not included in the probate package.</P> <P>(e) Within 10 days of receiving the request for de novo review, the attorney decision maker will notify the Superintendent and all other interested parties of the request, and OHA will assign the case to an administrative law judge or Indian probate judge.</P> <P>(f) The administrative law judge or Indian probate judge will review the merits of the case de novo, conduct a formal hearing as necessary or appropriate pursuant to the regulations in this subpart, and issue a new decision in accordance with § 4.240.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Formal Probate Proceedings</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 11816, Mar. 9, 2005, unless otherwise noted.</P> </SOURCE> <HD SOURCE="HD1">Notice</HD> <SECTION> <SECTNO>§ 4.216</SECTNO> <SUBJECT>Notice.</SUBJECT> <P>(a) Before conducting a formal hearing to determine the heirs of a deceased Indian or probate his or her will, the administrative law judge or Indian probate judge must cause notice of the time and place of the hearing to be posted.</P> <P>(1) The notice must be posted at least 20 days before the hearing date in five or more conspicuous places in the vicinity of the designated place of hearing.</P> <P>(2) The administrative law judge or Indian probate judge may cause postings in such other places and reservations as he or she deems appropriate.</P> <P>(3) A certificate showing the date and place of posting must be signed by the person or official who performs the act.</P> <P>(b) The administrative law judge or Indian probate judge must serve or cause to be served a copy of the notice on each interested party known to the <PRTPAGE P="91"/>administrative law judge or Indian probate judge and on each attesting witness if a will is offered:</P> <P>(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</P> <P>(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 administrative law judge or Indian probate judge must cause a certificate, as to the date and manner of the mailing, to be made on the record copy of the notice.</P> <P>(c) All interested parties, known and unknown, including creditors, will be bound by the decision based on the hearing if they lived near any place of posting during the posting period, whether or not they had actual notice of the hearing. With respect to interested parties not living near the place of posting, a rebuttable presumption of actual notice will arise upon the mailing of the notice at a reasonable time before the hearing, unless the notice is returned by the postal service to the office of the administrative law judge or Indian probate judge unclaimed by the addressee.</P> <P>(d) When a record reveals that a tribe has a statutory option to purchase interests of a decedent:</P> <P>(1) The administrative law judge or Indian probate judge must notify the tribe of the pendency of a proceeding; and</P> <P>(2) 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 that the tribe had notice of the decedent's death and of the probate proceedings.</P> </SECTION> <SECTION> <SECTNO>§ 4.217</SECTNO> <SUBJECT>Contents of notice.</SUBJECT> <P>(a) In the notice of a formal hearing, the administrative law judge or Indian probate judge must:</P> <P>(1) Specify that, at the stated time and place, the administrative law judge or Indian probate judge will take testimony to determine the heirs of the decedent (naming him or her) and, if a will is offered for probate, testimony as to the validity of the will (describing it by date);</P> <P>(2) Name all known probable heirs of the decedent, and, if a will is offered for probate, the beneficiaries under the will and the attesting witnesses to the will;</P> <P>(3) Cite this subpart as the authority and jurisdiction for holding the hearing;</P> <P>(4) Inform all persons having an interest in the estate of the decedent, including persons having claims against the estate, to be present at the hearing or their rights may be lost by default; and</P> <P>(5) State that the hearing may be continued to another time and place.</P> <P>(b) A continuance may be announced either at the original hearing by the administrative law judge or Indian probate judge or by an appropriate notice posted at the announced place of hearing on or before the announced hearing date and hour.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Depositions, Discovery, and Prehearing Conference</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 11817, Mar. 9, 2005, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.220</SECTNO> <SUBJECT>Production of documents for inspection and copying.</SUBJECT> <P>(a) An interested party may make a written demand to produce documents for inspection and copying or photographing. This demand:</P> <P>(1) May be made at any stage of the proceeding before the conclusion of the formal hearing;</P> <P>(2) May be made upon any other party to the proceeding or upon a custodian of records on Indians or their trust property;</P> <P>(3) Must be made in writing, and a copy must be filed with the administrative law judge or Indian probate judge; and</P> <P>(4) May demand any documents, papers, records, letters, photographs, or other tangible things that are:</P> <P>(i) Relevant to the issues;</P> <P>(ii) In the other party's or custodian's possession, custody, or control; and</P> <P>(iii) Not privileged.</P> <P>(b) Upon failure of prompt compliance, the administrative law judge or <PRTPAGE P="92"/>Indian probate judge may issue an appropriate order upon a petition filed by the requesting party.</P> <P>(c) On his or her own motion, the administrative law judge or Indian probate judge may issue an order to any interested party or custodian of records for the production of material or information that is relevant to the issues and not privileged. The administrative law judge or Indian probate judge may do this after notifying all parties at any time before closing the record.</P> <P>(d) Custodians of official records will furnish and reproduce documents, or permit their reproduction, in accordance with the rules governing the custody and control of such records.</P> </SECTION> <SECTION> <SECTNO>§ 4.221</SECTNO> <SUBJECT>Depositions.</SUBJECT> <P>(a) <E T="03">Stipulation.</E> Depositions in connection with a formal hearing may be taken upon stipulation of the parties. Failing an agreement therefor, depositions may be ordered under paragraphs (b) and (c) of this section.</P> <P>(b) <E T="03">Application for taking deposition.</E> When an interested party files a written application, the administrative law judge or Indian probate judge 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 formal hearing. The application must be in writing and must set forth:</P> <P>(1) The name and address of the proposed deponent;</P> <P>(2) The name and address of the person, qualified under paragraph (d) of this section to take depositions, before whom the proposed examination is to be made;</P> <P>(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</P> <P>(4) The reasons why the deposition should be taken.</P> <P>(c) <E T="03">Order for taking deposition.</E> If after examination of the application, the administrative law judge or Indian probate judge determines that the deposition should be taken, he or she will order its taking. The order must be served upon all interested parties and must state:</P> <P>(1) The name of the deponent;</P> <P>(2) The time and place of the examination, which must be at least 15 days after the date of the order except as stipulated otherwise; and</P> <P>(3) The name and address of the officer before whom the examination is to be made. The officer and the time and place need not be the same as those requested in the application.</P> <P>(d) <E T="03">Qualifications of officer.</E> The deponent must appear before the administrative law judge or Indian probate judge 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.</P> <P>(e) <E T="03">Procedure on examination.</E> The deponent must be examined under oath or affirmation and must be subject to cross-examination. The deponent's testimony 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.</P> <P>(f) <E T="03">Submission to witness; changes; signing.</E> (1) 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 examination and reading are waived by the deponent or by all other interested parties.</P> <P>(2) Any changes in form or substance that 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.</P> <P>(3) The deposition must then be signed by the deponent, unless the interested parties by stipulation waive the signing, or the witness is ill or cannot be found or refuses to sign.</P> <P>(4) If the deposition is not signed by the deponent, the officer must sign it and state on the record the fact of the waiver, the illness or absence of the deponent, or the refusal to sign together with the reason, if any, given therefore. The deposition may then be used as fully as though signed, unless the administrative law judge or Indian probate judge holds that the reason given for refusal to sign requires rejection of the deposition in whole or in part.<PRTPAGE P="93"/> </P> <P>(g) <E T="03">Certificates by officer.</E> 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 administrative law judge or Indian probate judge.</P> <P>(h) <E T="03">Use of depositions.</E> (1) A deposition ordered and taken in accordance with the provisions of this section may be used in a hearing if the administrative law judge or Indian probate judge finds that:</P> <P>(i) The witness is absent;</P> <P>(ii) The witness's presence cannot be readily obtained;</P> <P>(iii) The evidence is otherwise admissible; and</P> <P>(iv) Circumstances make it desirable in the interest of fairness to allow the deposition to be used.</P> <P>(2) If the interested party on whose application a deposition was taken refuses to offer the deposition, or any part thereof, in evidence, any other interested party or the administrative law judge or Indian probate judge may introduce the deposition or any portion thereof on which he or she wishes to rely.</P> </SECTION> <SECTION> <SECTNO>§ 4.222</SECTNO> <SUBJECT>Written interrogatories; admission of facts and documents.</SUBJECT> <P>(a) An interested party may serve upon any other interested party written interrogatories and requests for admission of facts and documents. The interested party may do this only if:</P> <P>(1) The interrogatories and requests are served in sufficient time to permit answers to be filed before the hearing;</P> <P>(2) A copy of the interrogatories and requests is filed with the administrative law judge or Indian probate judge; and</P> <P>(3) The interrogatories and requests are drawn with the purpose of defining the issues in dispute between the parties and facilitating the presentation of evidence at the hearing.</P> <P>(b) A party receiving interrogatories or requests served under paragraph (a) of this section must:</P> <P>(1) Serve answers upon the requesting party within 30 days from the date of service of the interrogatories or requests, or within another deadline agreed upon by the parties or prescribed by the administrative law judge or Indian probate judge; and</P> <P>(2) File a copy of the answers with the administrative law judge or Indian probate judge.</P> <P>(c) 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.223</SECTNO> <SUBJECT>Objections to and limitations on production of documents, depositions, and interrogatories.</SUBJECT> <P>The administrative law judge or Indian probate judge may limit the time, place, and scope of discovery under §§ 4.220, 4.221, and 4.222. The administrative law judge or Indian probate judge may do this:</P> <P>(a) Upon timely motion by any interested party, if that party also gives proper notice and shows good cause; or</P> <P>(b) Upon his or her own motion if a party's dilatory tactics or unreasonable demands will delay the orderly progress of the proceeding or cause unacceptable hardship to a party or witness.</P> </SECTION> <SECTION> <SECTNO>§ 4.224</SECTNO> <SUBJECT>Failure to comply with discovery.</SUBJECT> <P>(a) If a party fails to comply with discovery under §§ 4.220 through 4.223, without showing a satisfactory excuse or explanation, the administrative law judge or Indian probate judge may:</P> <P>(1) 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 interested party or in accordance with other evidence available to the administrative law judge or Indian probate judge; or</P> <P>(2) Make such other ruling as the administrative law judge or Indian probate judge determines just and proper.</P> <P>(b) For purposes of paragraph (a) of this section, failure to comply with discovery includes failure to:</P> <P>(1) Comply with a request for the production of a document under § 4.220;</P> <P>(2) Appear for examination under § 4.221;<PRTPAGE P="94"/> </P> <P>(3) Respond to interrogatories or requests for admissions under § 4.222; or</P> <P>(4) Comply with an order of the administrative law judge or Indian probate judge issued under § 4.223.</P> </SECTION> <SECTION> <SECTNO>§ 4.225</SECTNO> <SUBJECT>Prehearing conference.</SUBJECT> <P>Before a formal hearing, the administrative law judge or Indian probate judge may, upon his or her own motion or upon the request of any interested party, call upon the parties to appear for a conference to:</P> <P>(a) Simplify or clarify the issues;</P> <P>(b) Obtain stipulations, admissions, agreements on documents, understandings on matters already of record, or similar agreements that will avoid unnecessary proof;</P> <P>(c) Limit the number of expert or other witnesses to avoid excessively cumulative evidence;</P> <P>(d) Effect possible agreement disposing of all or any of the issues in dispute; and</P> <P>(e) Resolve such other matters as may simplify and shorten the hearing.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Formal Hearings</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 11818, Mar. 9, 2005, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.230</SECTNO> <SUBJECT>Authority and duties of the administrative law judge or Indian probate judge.</SUBJECT> <P>(a) The authority of the administrative law judge or Indian probate judge in all formal hearings in probate proceedings includes, but is not limited to authority:</P> <P>(1) To administer oaths and affirmations;</P> <P>(2) 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 interested party, to any person whose testimony he or she believes to be material to a hearing;</P> <P>(3) To permit any interested party to cross-examine any witness;</P> <P>(4) To appoint a guardian ad litem to represent any minor or incompetent interested party at hearings;</P> <P>(5) To rule upon offers of proof and receive evidence;</P> <P>(6) To take and cause depositions to be taken and to determine their scope; and</P> <P>(7) To otherwise regulate the course of the hearing and the conduct of witnesses, interested parties, and attorneys at law appearing therein.</P> <P>(b) Upon the failure or refusal of any person upon whom a subpoena has been served to appear at a hearing or to testify, the administrative law judge or Indian probate judge 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.231</SECTNO> <SUBJECT>Formal hearings.</SUBJECT> <P>(a) All testimony in formal Indian probate hearings must be under oath and must be taken in public, except in circumstances that, in the opinion of the administrative law judge or Indian probate judge, justify all but interested parties to be excluded from the hearing.</P> <P>(b) The proceedings of hearings must be recorded verbatim.</P> <P>(c) The record must include a showing of the names of all interested parties and attorneys who attended such hearing.</P> </SECTION> <SECTION> <SECTNO>§ 4.232</SECTNO> <SUBJECT>Evidence; form and admissibility.</SUBJECT> <P>(a) Interested parties may offer at a formal 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 administrative law judge's or Indian probate judge's supervision as to the extent and manner of presentation of such evidence.</P> <P>(b) The administrative law judge or Indian probate judge 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 is within the discretion of the administrative law judge or Indian probate judge, taking into consideration all the circumstances of the particular case.</P> <P>(c) Stipulations of fact and stipulations of testimony that would be given by witnesses were such witnesses present, agreed upon by the interested parties, may be used as evidence at the hearing.<PRTPAGE P="95"/> </P> <P>(d) The administrative law judge or Indian probate judge may in any case require evidence in addition to that offered by the interested parties.</P> </SECTION> <SECTION> <SECTNO>§ 4.233</SECTNO> <SUBJECT>Proof of wills, codicils, and revocations.</SUBJECT> <P>(a) <E T="03">Self-proved wills.</E> A will executed as provided in § 4.260 may, at the time of its execution, be made self-proved, and testimony of the witnesses in the probate thereof may be made unnecessary by the affidavits of the testator and attesting witnesses.</P> <P>(1) These affidavits must be made before an officer authorized to administer oaths, must be attached to the will, and must be in substantially the following form and content: </P> <EXTRACT> <FP>State of ____</FP> <FP>County of ____ss.</FP> <FP>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__/20__, I requested ____ to prepare a will for me; that the attached will was prepared; that 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; that 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.</FP> <FP SOURCE="FP-DASH"/> <FP>Testator/Testatrix</FP> <FP>We, _________ and ________, each being first duly sworn, on oath, depose and state: That on the ______ day of ______, 19__/20__, ________, 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.</FP> <FP SOURCE="FP-DASH"/> <FP>Witness</FP> <FP SOURCE="FP-DASH"/> <FP>Witness</FP> <FP>Subscribed and sworn to before me this _______ day of _______, 19__ 20__, by _________ testator/testatrix, and by _________ and _________, attesting witnesses.</FP> <FP SOURCE="FP-DASH"/> <FP SOURCE="FP-DASH"/> <FP>(Title)</FP> </EXTRACT> <P>(2) If uncontested, a self-proved will may be approved and distribution may be ordered thereunder with or without the testimony of any attesting witness.</P> <P>(b) <E T="03">Self-proved codicils and revocations.</E> 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.</P> <P>(c) <E T="03">Will contest.</E> 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.</P> <P>(1) If none of the attesting witnesses resides near the place of hearing at the time appointed for proving the will, the administrative law judge or Indian probate judge may:</P> <P>(i) Admit the testimony of other witnesses to prove the testamentary capacity of the testator and the execution of the will; and</P> <P>(ii) As evidence of the execution, admit proof of the handwriting of the testator and of the attesting witnesses, or of any of them.</P> <P>(2) The provisions of § 4.232 are applicable with respect to remaining issues.</P> </SECTION> <SECTION> <SECTNO>§ 4.234</SECTNO> <SUBJECT>Witnesses, interpreters, and fees.</SUBJECT> <P>(a) Interested parties who desire a witness to testify or an interpreter to serve at a formal hearing must make their own financial and other arrangements therefor, and subpoenas will be issued where necessary and proper.</P> <P>(b) The administrative law judge or Indian probate judge 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.<PRTPAGE P="96"/> </P> <P>(c) In hardship situations, the administrative law judge or Indian probate judge may order payment of per diem and mileage for indispensable witnesses and interpreters called for the parties. In the order for payment, the administrative law judge or Indian probate judge 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.</P> <P>(d) Costs of administration allowed against the estate under paragraphs (b) or (c) of this section will have a priority for payment greater than that for any creditor claims allowed. Upon receiving an order, the Superintendent must immediately initiate payment of these sums from the estate account, or if funds are insufficient, then out of funds as they are received in the estate account before closure of the estate, with the proviso that these costs must be paid in full with a later allocation against the interest of a party, if the administrative law judge or Indian probate judge has so ordered.</P> </SECTION> <SECTION> <SECTNO>§ 4.235</SECTNO> <SUBJECT>Supplemental hearings.</SUBJECT> <P>After the matter has been submitted but before the time the deciding official has rendered his or her decision, the deciding official may upon his or her own motion or upon motion of any interested party 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 interested parties in the manner provided in § 4.216. Where the need for such supplemental hearing becomes apparent during any hearing, the 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.236</SECTNO> <SUBJECT>Record.</SUBJECT> <P>(a) After the completion of the formal hearing, the administrative law judge or Indian probate judge will make up the official record containing:</P> <P>(1) A copy of the posted public notice of hearing showing the posting certifications;</P> <P>(2) A copy of each notice served on interested parties with proof of mailing;</P> <P>(3) The record of the evidence received at the hearing, including any transcript made of the testimony;</P> <P>(4) Claims filed against the estate;</P> <P>(5) Will and codicils, if any;</P> <P>(6) Inventories and valuations of the estate;</P> <P>(7) Pleadings and briefs filed;</P> <P>(8) Special or interim orders;</P> <P>(9) Data for heirship findings and family history;</P> <P>(10) The decision and the notices thereof; and</P> <P>(11) Any other material or documents deemed material by the administrative law judge or Indian probate judge.</P> <P>(b) The administrative law judge or Indian probate judge must lodge the original record with the designated LTRO in accordance with 25 CFR part 150. A duplicate copy must be lodged with the Superintendent originating the probate. A partial record must also be furnished to the Superintendents of other affected agencies. When a hearing transcript has not been prepared:</P> <P>(1) The verbatim recording of the hearing must be retained in the office of the administrative law judge or Indian probate judge issuing the decision until the time allowed for rehearing or appeal has expired; and</P> <P>(2) The original record returned to the LTRO must contain a statement indicating that no transcript was prepared.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Decisions in Formal Proceedings</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 11820, Mar. 9, 2005, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.240</SECTNO> <SUBJECT>Decision of the administrative law judge or Indian probate judge and notice thereof.</SUBJECT> <P>(a) The administrative law judge or Indian probate judge must decide the issues of fact and law involved in any formal proceedings and must incorporate the following in his or her decision:</P> <P>(1) In all cases, the names, identifying numbers as assigned by BIA, birth dates, relationships to the decedent, and shares of heirs, with citations to the law of descent and distribution in accordance with which the <PRTPAGE P="97"/>decision is made, or the fact that the decedent died leaving no legal heirs;</P> <P>(2) In testate cases, approval or disapproval of the will with construction of its provisions, and the names, identifying numbers as assigned by BIA, and relationships to the testator of all beneficiaries and a description of the property which each is to receive;</P> <P>(3) Allowance or disallowance of claims against the estate;</P> <P>(4) Whether heirs or beneficiaries are non-Indian, exclusively alien Indians, or Indians whose property is not subject to Federal supervision; and</P> <P>(5) A determination of any rights of dower, curtesy, or homestead that may constitute a burden upon the interest of the heirs.</P> <P>(b) When the administrative law judge or Indian probate judge issues a decision, he or she must:</P> <P>(1) Issue a notice of the decision to all parties who have or claim any interest in the estate; and</P> <P>(2) Must mail a copy of the notice, together with a copy of the decision, to the Superintendent and to each interested party simultaneously.</P> <P>(c) 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 § 4.241.</P> </SECTION> <SECTION> <SECTNO>§ 4.241</SECTNO> <SUBJECT>Rehearing.</SUBJECT> <P>(a) Any person aggrieved by the decision of the administrative law judge or Indian probate judge may, within 60 days after the date on which notice of the decision is mailed to the interested parties, file with the administrative law judge or Indian probate judge a written petition for rehearing.</P> <P>(1) The petition must:</P> <P>(i) Be under oath; and</P> <P>(ii) State specifically and concisely the grounds on which it is based.</P> <P>(2) If the petition is based on newly-discovered evidence, it must:</P> <P>(i) Be accompanied by affidavits or declarations of witnesses stating fully what the new testimony is to be; and</P> <P>(ii) State justifiable reasons for the failure to discover and present that evidence, tendered as new, at the formal hearings held before the issuance of the decision.</P> <P>(b) The administrative law judge or Indian probate judge, 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 administrative law judge or Indian probate judge.</P> <P>(c) 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 law judge or Indian probate judge will:</P> <P>(1) Issue an order denying the petition and setting forth his or her reasons therefor; and</P> <P>(2) Furnish copies of the order to the petitioner, the Superintendent, and the interested parties.</P> <P>(d) If the petition appears to show merit, the administrative law judge or Indian probate judge must:</P> <P>(1) 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;</P> <P>(2) Allow all persons served a reasonable, specified time in which to submit answers or legal briefs in opposition to the petition; and</P> <P>(3) Reconsider, with or without a 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.</P> <P>(e) Upon entry of a final order, the administrative law judge or Indian probate judge must lodge the complete record relating to the petition with the designated LTRO under § 4.236(b), and furnish a duplicate record thereof to the Superintendent.</P> <P>(f) 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 administrative law judge or Indian probate judge terminates upon the issuance of a decision finally disposing of a petition for rehearing. Nothing herein prevents the Board from remanding a case for further hearing or rehearing after appeal.<PRTPAGE P="98"/> </P> <P>(g) At the time the final decision is entered following the filing of a petition for rehearing, the administrative law judge or Indian probate judge must direct a notice of such action with a copy of the decision to the Superintendent and to the interested parties and must mail the same by regular mail to the said parties at their addresses of record.</P> <P>(h) No distribution may be made under such order for a period of 75 days following the mailing of a notice of decision pending the filing of a notice of appeal by an aggrieved party as provided in this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 4.242</SECTNO> <SUBJECT>Reopening.</SUBJECT> <P>(a) A person claiming an interest in an estate may file a petition in writing for reopening of the case if he or she:</P> <P>(1) Had no actual notice of the original proceedings;</P> <P>(2) Was not on the reservation or otherwise in the vicinity at any time while the public notices of the hearing were posted; and</P> <P>(3) Files the petition within 3 years after the date of a final decision issued by an administrative law judge, Indian probate judge, or the Board, except as provided in §§ 4.203 and 4.206 and paragraph (i) of this section.</P> <P>(b) The petition must be addressed to the administrative law judge or Indian probate judge and filed at his or her office. The petitioner must also furnish a copy of the petition 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.</P> <P>(c) If the administrative law judge or Indian probate judge finds that proper grounds are not shown, he or she will issue an order denying the petition and giving the reasons for the denial. Copies of the administrative law judge's or Indian probate judge's decision must be mailed to the petitioner, the Superintendent, and to those persons who share in the estate.</P> <P>(d) If the petition appears to show merit, the administrative law judge or Indian probate judge 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.</P> <P>(1) These persons may resist the petition by filing answers, cross-petitions, or briefs. The filings must be made within the time periods set by the administrative law judge or Indian probate judge.</P> <P>(2) The administrative law judge or Indian probate judge will then reconsider, with or without a hearing as he or she may determine, prior actions taken in the case and may either adhere to, modify, or vacate the original decision.</P> <P>(3) Copies of the administrative law judge's or Indian probate judge's decision must be mailed to the petitioner, to all persons who received copies of the petition, and to the Superintendent.</P> <P>(e) To prevent manifest error, an administrative law judge or Indian probate judge may reopen a case within 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 administrative law judge's or Indian probate judge's decision must be mailed to all interested parties and to the Superintendent.</P> <P>(f) The administrative law judge or Indian probate judge may suspend distribution of the estate or the income therefrom during the pendency of reopening proceedings by order directed to the Superintendent.</P> <P>(g) The administrative law judge or Indian probate judge must lodge the record made in disposing of a reopening petition with the designated LTRO under § 4.236(b) and must furnish a duplicate record thereof to the Superintendent.</P> <P>(h) No distribution may be made under a decision issued under paragraph (c), (d), or (e) of this section for 75 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.</P> <P>(i) A petition for reopening filed more than 3 years after the entry of a final decision in a probate proceeding will be allowed only upon a showing that:</P> <P>(1) A manifest injustice will occur;</P> <P>(2) A reasonable possibility exists for correction of the error;<PRTPAGE P="99"/> </P> <P>(3) The petitioner had no actual notice of the original proceedings; and</P> <P>(4) The petitioner was not on the reservation or otherwise in the vicinity at any time while the public notices were posted.</P> <P>(j) The administrative law judge or Indian probate judge may deny a petition filed under paragraph (i) of this section on the basis of the petition and available BIA records. No such petition will be granted unless the administrative law judge or Indian probate judge:</P> <P>(1) Has caused copies of the petition and all other 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; and</P> <P>(2) Has allowed those persons an opportunity to resist the petition by filing answers, cross petitions, or briefs as provided in paragraph (d) of this section.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Claims</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 11821, Mar. 9, 2005, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.250</SECTNO> <SUBJECT>Filing and proof of creditor claims; limitations.</SUBJECT> <P>(a) All claims against the estate of a deceased Indian must be filed with the agency:</P> <P>(1) 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</P> <P>(2) Within 20 days from the date the creditor is chargeable with notice of the decedent's death, whichever of these dates is later, unless all of the heirs and/or beneficiaries agree to waive the applicable time limit and allow a late claim to be filed.</P> <P>(b) No claim will be paid from trust or restricted assets when the deciding official is aware that the decedent's non-trust estate may be available to pay the claim.</P> <P>(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.</P> <P>(1) Each claim must show the names and addresses of all parties in addition to the decedent from whom payment might be sought.</P> <P>(2) Each claim must be supplemented by an affidavit, in triplicate, of the claimant or someone on his or her behalf that:</P> <P>(i) The amount claimed is justly due from the decedent;</P> <P>(ii) No payments have been made on the account which are not credited thereon as shown by the itemized statement; and</P> <P>(iii) There are no offsets to the knowledge of the claimant.</P> <P>(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.</P> <P>(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.</P> <P>(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 deciding official.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.251</SECTNO> <SUBJECT>Priority of claims.</SUBJECT> <P>(a) Upon motion of the Superintendent or an interested party, the deciding official may authorize payment of the costs of administering the estate as they arise and before the allowance of any claims against the estate.</P> <P>(b) After the costs of administration, the deciding official may authorize payment of priority claims as follows:</P> <P>(1) Claims for funeral expenses (including the cemetery marker);</P> <P>(2) Claims for medical expenses for the last illness;</P> <P>(3) Claims for nursing home or other care facility expenses;</P> <P>(4) Claims of an Indian tribe; and</P> <P>(5) Claims reduced to judgment by a court of competent jurisdiction.</P> <P>(c) After the priority claims, the deciding official may authorize payment <PRTPAGE P="100"/>of all remaining claims, referred to as general claims.</P> <P>(d) The deciding official has the discretion to decide that part or all of an otherwise valid claim is unreasonable, reduce the claim to a reasonable amount, or disallow the claim in its entirety.</P> <P>(1) If a claim is reduced, the deciding official will order payment only of the reduced amount.</P> <P>(2) A deciding official may reduce or disallow both priority claims and general claims.</P> <P>(e) If, as of the date of the initial informal or formal hearing, there is not enough money in the IIM account to pay all claims, the 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.</P> <P>(f) If, as of the date of the initial informal or formal 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.</P> <P>(g) The unpaid balance of any claims will not be enforceable against the estate after the estate is closed.</P> <P>(h) Interest or penalties charged against either priority or general claims after the date of death will not be paid.</P> </SECTION> <SECTION> <SECTNO>§ 4.252</SECTNO> <SUBJECT>Property subject to claims.</SUBJECT> <P>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 or beneficiary remains in or passes out of trust.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Wills</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 11822, Mar. 9, 2005, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.260</SECTNO> <SUBJECT>Making of a will; review as to form; revocation.</SUBJECT> <P>(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 this property by a will executed in writing and attested by two disinterested adult witnesses.</P> <P>(b) When an Indian executes a will and submits it 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 before the death of the testator.</P> <P>(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.</P> <P>(d) A will, codicil, or revocation may be made self-proved in the manner provided in § 4.233(a)-(b).</P> </SECTION> <SECTION> <SECTNO>§ 4.261</SECTNO> <SUBJECT>Anti-lapse provisions.</SUBJECT> <P>(a) This section applies when:</P> <P>(1) An Indian testator devises or bequeaths trust property to any of his or her grandparents or to the lineal descendant of a grandparent; and</P> <P>(2) The beneficiary dies before the testator leaving lineal descendants.</P> <P>(b) The lineal descendants referred to in paragraph (a)(2) of this section take the right, title, or interest so given by the will per stirpes.</P> <P>(c) Relationship by adoption is equivalent to relationship by blood.</P> </SECTION> <SECTION> <SECTNO>§ 4.262</SECTNO> <SUBJECT>Felonious taking of testator's life.</SUBJECT> <P>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 bequest under deceased's <PRTPAGE P="101"/>will. All right, title, and interest existing in such a situation will vest and be determined as if the person convicted never existed, notwithstanding § 4.261.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Custody and Distribution of Estates</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 11822, Mar. 9, 2005, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.270</SECTNO> <SUBJECT>Custody and control of trust estates.</SUBJECT> <P>(a) The Superintendent may:</P> <P>(1) Assume custody or control of all tangible trust personal property of a deceased Indian; and</P> <P>(2) Take such action, including sale of the property, as in his or her judgment is necessary for the benefit of the estate, the heirs, and the beneficiaries, pending entry of the decision provided for in §§ 4.214, 4.240, 4.241, or 4.312.</P> <P>(b) All expenses, including expenses of roundup, branding, care, and feeding of livestock, are chargeable against the estate and may be paid from:</P> <P>(1) Those funds of the deceased that are under the Department's control; or</P> <P>(2) The proceeds of a sale of the property or a part thereof.</P> <P>(c) If a deciding official has been assigned to adjudicate the estate, his or her approval is required before payment can be made under paragraph (b)(2) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 4.271</SECTNO> <SUBJECT>Omitted property.</SUBJECT> <P>(a) This section applies when, after issuance of a decision under §§ 4.214, 4.240, or 4.312, it is found that trust property or interest therein belonging to a decedent has not been included in the inventory.</P> <P>(1) The inventory can be modified to include the omitted property for distribution under the original decision.</P> <P>(2) Modification may be made either administratively by BIA or by a modification order prepared by him or her for the approval and signature of a deciding official.</P> <P>(3) Copies of all modifications must be furnished to the Superintendent and to all those persons who share in the estate.</P> <P>(b) When the property to be included takes a different line of descent from that shown in the original decision, BIA must notify the deciding official, who will proceed to hold an informal or formal hearing if necessary and issue a decision under §§ 4.214 or 4.240. The record of any such proceeding must be lodged with the designated LTRO under § 4.236(b).</P> </SECTION> <SECTION> <SECTNO>§ 4.272</SECTNO> <SUBJECT>Improperly included property.</SUBJECT> <P>(a) When, after a decision under §§ 4.214, 4.240, or 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 interested party.</P> <P>(b) An administrative law judge or Indian probate judge 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 formal hearing, the administrative law judge or Indian probate judge 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.</P> <P>(c) Where appropriate, the administrative law judge or Indian probate judge may conduct a formal hearing at any stage of the modification proceeding. The hearing must be scheduled and conducted in accordance with the rules of this subpart. The administrative law judge or Indian probate judge will enter a final decision based on his or her findings, modifying or refusing to modify the property inventory. His or her decision will become final at the end of 60 days from the date it is mailed, unless an aggrieved party files a notice of appeal within such period. Notice of entry of the decision must be given in accordance with § 4.240(b).</P> <P>(d) A party aggrieved by the deciding official's decision may appeal to the Board under §§ 4.310 through 4.323.</P> <P>(e) The record of all proceedings must be lodged with the designated LTRO under § 4.236(b).</P> </SECTION> <SECTION> <SECTNO>§ 4.273</SECTNO> <SUBJECT>Distribution of estates.</SUBJECT> <P>(a) The Superintendent must initiate payment of allowed claims, distribution of the estate, and all other actions required by the deciding official's final <PRTPAGE P="102"/>order 75 days after a final order has been issued, unless he or she has received:</P> <P>(1) A copy of a request for de novo review filed under § 4.215;</P> <P>(2) A copy of a petition for rehearing filed under § 4.241(a); or</P> <P>(3) A copy of a notice of appeal filed under § 4.320(b).</P> <P>(b) The Superintendent must not initiate the payment of claims or distribution of the estate during the pendency of proceedings under §§ 4.215, 4.241, or 4.242, unless the administrative law judge or Indian probate judge orders otherwise in writing. The Board may, at any time, authorize the administrative law judge or Indian probate judge to issue interim orders for payment of claims or for partial distribution during the pendency of proceedings on appeal.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Miscellaneous</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 11823, Mar. 9, 2005, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.281</SECTNO> <SUBJECT>Claims for attorney fees.</SUBJECT> <P>(a) The deciding official may allow fees for attorneys representing Indians in proceedings under this part.</P> <P>(1) At the discretion of the deciding official, these fees may be chargeable against the interests of the party represented or may be taxed as a cost of administration.</P> <P>(2) Petitions for allowance of fees must be filed before the close of the last hearing and must be supported by whatever proof the deciding official requires.</P> <P>(3) 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 interested parties.</P> <P>(b) Nothing in this section 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 attorney fees is subject to a petition for rehearing and to an appeal.</P> </SECTION> <SECTION> <SECTNO>§ 4.282</SECTNO> <SUBJECT>Guardians for incompetents.</SUBJECT> <P>Minors and other legal incompetents who are interested parties must be represented at all hearings by legally appointed guardians, or by guardians ad litem appointed by the deciding official.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Tribal Purchase of Interests Under Special Statutes</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 11823, Mar. 9, 2005, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.300</SECTNO> <SUBJECT>Authority and scope.</SUBJECT> <P>(a) Sections 4.300 through 4.308 apply to formal proceedings in Indian probate that relate to the tribal purchase of a decedent's interests in the trust and restricted land shown in the following table.</P> <GPOTABLE CDEF="s75,r75" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">Location of trust or restricted land</CHED> <CHED H="1">Legislation governing purchase</CHED> </BOXHD> <ROW> <ENT I="01">(1) Yakima Reservation or within the area ceded by the Treaty of June 9, 1855 (12 Stat. 1951)</ENT> <ENT>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).</ENT> </ROW> <ROW> <ENT I="01">(2) Warm Springs Reservation or within the area ceded by the Treaty of June 25, 1855 (12 Stat. 37)</ENT> <ENT>The Act of August 10, 1972 (Pub. L. 92-377; 86 Stat. 530).</ENT> </ROW> <ROW> <ENT I="01">(3) Nez Perce Indian Reservation or within the area ceded by the Treaty of June 11, 1855 (12 Stat. 957)</ENT> <ENT>The Act of September 29, 1972 (Pub. L. 92-443; 86 Stat. 744).</ENT> </ROW> </GPOTABLE> <P>(b) In the exercise of probate authority, an administrative law judge or Indian probate judge will determine—</P> <P>(1) The entitlement of a tribe to purchase a decedent's interests in trust or restricted land under the statutes;</P> <P>(2) The entitlement of a surviving spouse to reserve a life estate in one-half of the surviving spouse's interests that have been purchased by a tribe; and</P> <P>(3) The fair market value of such interests, including the value of any life estate reserved by a surviving spouse.</P> <P>(c) In making a determination under paragraph (b)(1) of this section, the following issues will be determined by the official tribal roll, which is binding upon the administrative law judge or Indian probate judge:</P> <P>(1) Enrollment or refusal of the tribe to enroll a specific individual; and<PRTPAGE P="103"/> </P> <P>(2) Specification of blood quantum, where pertinent.</P> <P>(d) For good cause shown, the administrative law judge or Indian probate judge 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.301</SECTNO> <SUBJECT>Valuation report.</SUBJECT> <P>(a) In all probates, at the earliest possible stage of the proceeding before issuance of a probate decision, BIA must furnish a valuation of the decedent's interests when the record reveals to the Superintendent:</P> <P>(1) That the decedent owned interests in land located on one or more of the reservations designated in § 4.300; and</P> <P>(2) That one or more of the probable heirs or beneficiaries who may receive the interests either:</P> <P>(i) Is not enrolled in the tribe of the reservation where the land is located; or</P> <P>(ii) Does not have the required blood quantum in the tribe to hold the interests against a claim made by the tribe.</P> <P>(b) 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.</P> <P>(c) BIA must include the valuation report in the probate package submitted to OHA. Interested parties may examine and copy, at their expense, the valuation report at the office of the Superintendent or the administrative law judge or Indian probate judge.</P> </SECTION> <SECTION> <SECTNO>§ 4.302</SECTNO> <SUBJECT>Conclusion of probate and tribal exercise of statutory option.</SUBJECT> <P>(a) <E T="03">Conclusion of probate; findings in the probate decision.</E> (1) When a decedent is shown to have owned land interests in any one or more of the reservations designated in § 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 §§ 4.216 through 4.282 and §§ 4.310 through 4.323. This decision is referred to in this section as the “probate decision.”</P> <P>(2) At the formal probate hearing, a finding must be made on the record showing those interests in land, if any, that are subject to the tribal option.</P> <P>(i) The finding must be included in the probate decision setting forth the apparent rights of the tribe as against affected heirs or beneficiaries 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.</P> <P>(ii) If the finding is that there are no interests subject to the tribal option, the decision must so state.</P> <P>(iii) A copy of the probate decision, to which must be attached a copy of the valuation report, must be distributed to all interested parties in accordance with § 4.240.</P> <P>(b) <E T="03">Tribal exercise of statutory option.</E> (1) A tribe may purchase all or a part of the available interests specified in the probate decision within 60 days of the probate decision unless a petition for rehearing or a demand for hearing has been filed under §§ 4.304 or 4.305.</P> <P>(2) 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.</P> <P>(3) The tribe must file a written notice of purchase with the Superintendent, together with the tribe's certification that copies have been mailed on the same date to the administrative law judge or Indian probate judge and to the affected heirs or beneficiaries. Upon failure to timely file a notice of purchase, the right to distribution of all unclaimed interests will accrue to the heirs or beneficiaries.</P> </SECTION> <SECTION> <SECTNO>§ 4.303</SECTNO> <SUBJECT>Notice by surviving spouse to reserve a life estate.</SUBJECT> <P>When the heir or beneficiary whose interests are subject to the tribal option is a surviving spouse, the spouse may reserve a life estate in one-half of <PRTPAGE P="104"/>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 administrative law judge or Indian probate judge and the tribe. Failure to timely file a notice to reserve a life estate will constitute a waiver thereof.</P> </SECTION> <SECTION> <SECTNO>§ 4.304</SECTNO> <SUBJECT>Rehearing.</SUBJECT> <P>Any interested party aggrieved by the probate decision may, within 60 days from the date of the probate decision, file with the administrative law judge or Indian probate judge a written petition for rehearing in accordance with § 4.241.</P> </SECTION> <SECTION> <SECTNO>§ 4.305</SECTNO> <SUBJECT>Hearing on tribal option to purchase interests.</SUBJECT> <P>(a) <E T="03">Demand for hearing.</E> Any interested party 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 file with the administrative law judge or Indian probate judge a written demand for hearing. The demand must:</P> <P>(1) Be filed within 60 days from the date of the probate decision or 60 days from the date of the decision on rehearing, or within 20 days from the date the tribe exercises its option to purchase available interests, whichever is applicable;</P> <P>(2) Include a certification that copies of the demand have been mailed on the same date to the Superintendent and to each interested party; and</P> <P>(3) State specifically and concisely the grounds upon which it is based.</P> <P>(b) <E T="03">Notice of hearing.</E> The administrative law judge or Indian probate judge must, upon receiving a demand for hearing:</P> <P>(1) Set a time and place for the hearing after expiration of the 60-day period fixed for the filing of the demand for hearing as provided in § 4.305(a); and</P> <P>(2) Mail a notice of the hearing to all interested parties not less than 30 days in advance.</P> <P>(c) <E T="03">Burden of proof at the hearing.</E> 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.</P> <P>(d) <E T="03">Decision after hearing; appeal.</E> (1) Upon conclusion of the hearing, the administrative law judge or Indian probate judge will issue a decision that determines all of the issues including, but not limited to:</P> <P>(i) The fair market value of the interests purchased by the tribe; and</P> <P>(ii) Any adjustment of the fair market value made necessary by the surviving spouse's decision to reserve a life estate in one-half of the interests.</P> <P>(2) 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 §§ 4.310 through 4.323.</P> <P>(3) The administrative law judge or Indian probate judge must lodge the complete record relating to the demand for hearing with the LTRO as provided in § 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 interested party.</P> </SECTION> <SECTION> <SECTNO>§ 4.306</SECTNO> <SUBJECT>Time for payment.</SUBJECT> <P>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 § 4.305, whichever is applicable. Payment must be made within 2 years from the date of decedent's death or within 1 year from the date of notice of purchase, whichever is later.</P> </SECTION> <SECTION> <SECTNO>§ 4.307</SECTNO> <SUBJECT>Title.</SUBJECT> <P>(a) Upon payment by the tribe of the interests purchased, the Superintendent must:</P> <P>(1) Issue a certificate to the administrative law judge or Indian probate judge that payment has been made; and</P> <P>(2) File with the certificate all supporting documents required by the administrative law judge or Indian probate judge.</P> <P>(b) After receiving the certificate and supporting documents, the administrative law judge or Indian probate judge will:<PRTPAGE P="105"/> </P> <P>(1) Issue an order that the United States holds title to the interests in trust for the tribe;</P> <P>(2) File the complete record, including the decision, with the LTRO as provided in § 4.236(b);</P> <P>(3) Furnish a duplicate copy of the record to the Superintendent; and</P> <P>(4) Mail a notice of the action together with a copy of the decision to each interested party.</P> </SECTION> <SECTION> <SECTNO>§ 4.308</SECTNO> <SUBJECT>Disposition of income.</SUBJECT> <P>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 § 4.307, all income received or accrued from the land interests purchased by the tribe will be credited to the estate.</P> <P>Cross Reference: See 25 CFR part 2 for procedures for appeals to Area Directors and to the Director of the Bureau of Indian Affairs.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General Rules Applicable to Proceedings on Appeal Before the Interior Board of Indian Appeals</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 11825, Mar. 9, 2005, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.310</SECTNO> <SUBJECT>Documents.</SUBJECT> <P>(a) <E T="03">Filing.</E> The effective date for filing a notice of appeal or other document with the Board during the course of an appeal is:</P> <P>(1) For most documents, the date of mailing or the date of personal delivery; or</P> <P>(2) For a motion for the Board to assume jurisdiction over an appeal under 25 CFR 2.20(e), the date that the Board receives the motion.</P> <P>(b) <E T="03">Serving notices of appeal and pleadings.</E> Any party filing a notice of appeal or pleading before the Board must serve copies on all interested parties in the proceeding. Service must be accomplished by personal delivery or mailing.</P> <P>(1) Where a party is represented in an appeal by an attorney or other representative authorized under 43 CFR 1.3, service of any document on the attorney or representative is service on the party.</P> <P>(2) Where a party is represented by more than one attorney, service on any one attorney is sufficient.</P> <P>(3) The certificate of service on an attorney or representative must include the name of the party whom the attorney or representative represents and indicate that service was made on the attorney or representative.</P> <P>(c) <E T="03">Computation of time for filing and service.</E> Except as otherwise provided by law, in computing any period of time prescribed for filing and serving a document:</P> <P>(1) The day upon which the decision or document to be appealed or answered was served or the day of any other event after which a designated period of time begins to run is not to be included;</P> <P>(2) The last day of the period is to be included, unless it is a nonbusiness day (<E T="03">e.g.</E>, Saturday, Sunday, or Federal holiday), in which event the period runs until the end of the next business day; and</P> <P>(3) When the time prescribed or allowed is 7 days or less, intermediate Saturdays, Sundays, Federal holidays, and other nonbusiness days are excluded from the computation.</P> <P>(d) <E T="03">Extensions of time.</E> (1) The Board may extend the time for filing or serving any document except a notice of appeal.</P> <P>(2) A request to the Board for an extension of time must be filed within the time originally allowed for filing.</P> <P>(3) For good cause the Board may grant an extension of time on its own initiative.</P> <P>(e) <E T="03">Retention of documents.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.311</SECTNO> <SUBJECT>Briefs on appeal.</SUBJECT> <P>(a) The appellant may file an opening brief within 30 days after receiving the notice of docketing. The appellant must serve copies of the opening brief upon all interested parties or counsel <PRTPAGE P="106"/>and file a certificate with the Board showing service upon the named parties. Opposing parties or counsel will have 30 days from receiving the appellant's brief to file answer briefs, copies of which must be served upon the appellant or counsel and all other interested parties. A certificate showing service of the answer brief upon all parties or counsel must be attached to the answer filed with the Board.</P> <P>(b) The appellant may reply to an answering brief within 15 days from its receipt. A certificate showing service of the reply brief upon all parties or counsel must be attached to the reply filed with the Board. Except by special permission of the Board, no other briefs will be allowed on appeal.</P> <P>(c) BIA is considered an interested party in any proceeding before the Board. The Board may request that BIA submit a brief in any case before the Board.</P> <P>(d) An original only of each document should be filed with the Board. Documents should not be bound along the side.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.312</SECTNO> <SUBJECT>Board decisions.</SUBJECT> <P>Decisions of the Board will be made in writing and will set forth findings of fact and conclusions of law. The decision may adopt, modify, reverse, or set aside any proposed finding, conclusion, or order of an administrative law judge, Indian probate judge, or BIA official. Distribution of decisions must be made by the Board to all parties concerned. Unless otherwise stated in the decision, rulings by the Board are final for the Department and must be given immediate effect.</P> </SECTION> <SECTION> <SECTNO>§ 4.313</SECTNO> <SUBJECT>Amicus curiae; intervention; joinder motions.</SUBJECT> <P>(a) Any interested person or Indian tribe desiring to intervene, to join other parties, to appear as amicus curiae, or to obtain an order in an appeal before the Board must apply in writing to the Board stating the grounds for the action sought. The Board may grant the permission or relief requested for specified purposes and subject to limitations it established. This section will be liberally construed.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.314</SECTNO> <SUBJECT>Exhaustion of administrative remedies.</SUBJECT> <P>(a) No decision of an administrative law judge, Indian probate judge, or BIA official that at the time of its rendition is subject to appeal to the Board, will be considered final so as to constitute agency action subject to judicial review under 5 U.S.C. 704, unless it has been made effective pending a decision on appeal by order of the Board.</P> <P>(b) No further appeal will lie within the Department from a decision of the Board.</P> <P>(c) The filing of a petition for reconsideration is not required to exhaust administrative remedies.</P> </SECTION> <SECTION> <SECTNO>§ 4.315</SECTNO> <SUBJECT>Reconsideration of a Board decision.</SUBJECT> <P>(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.</P> <P>(b) A party may file only one petition for reconsideration.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.316</SECTNO> <SUBJECT>Remands from courts.</SUBJECT> <P>Whenever any matter is remanded from any Federal court to the Board for further proceedings, the Board will remand the matter to an administrative law judge, an Indian probate judge, or BIA. In the alternative, to the extent the court's directive and time limitations permit, the parties will be allowed an opportunity to submit to the <PRTPAGE P="107"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.317</SECTNO> <SUBJECT>Standards of conduct.</SUBJECT> <P>(a) <E T="03">Inquiries about cases.</E> All inquiries about any matter pending before the Board must be made to the Chief Administrative Judge of the Board or the administrative judge assigned the matter.</P> <P>(b) <E T="03">Disqualification.</E> An administrative judge may withdraw from a case in accordance with standards found in the recognized canons of judicial ethics if the judge deems this action appropriate. If, before a decision of the Board, a party files an affidavit of personal bias or disqualification with substantiating facts, and the administrative judge concerned does not withdraw, the OHA Director will determine the matter of disqualification.</P> </SECTION> <SECTION> <SECTNO>§ 4.318</SECTNO> <SUBJECT>Scope of review.</SUBJECT> <P>An appeal will be limited to those issues that were before the administrative law judge or Indian probate judge upon the petition for rehearing, reopening, or regarding tribal purchase of interests, or before the BIA official on review. However, except as specifically limited in this part or in title 25 of the Code of Federal Regulations, the Board will not be limited in its scope of review and may exercise the inherent authority of the Secretary to correct a manifest injustice or error where appropriate.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeals to the Board of Indian Appeals in Probate Matters</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 11826, Mar. 9, 2005, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.320</SECTNO> <SUBJECT>Who may appeal.</SUBJECT> <P>(a) <E T="03">Right of appeal.</E> An interested party has a right to appeal to the Board from an order of an administrative law judge or Indian probate judge on a petition for rehearing or petition for reopening or regarding tribal purchase of interests in a deceased Indian's trust estate.</P> <P>(b) <E T="03">Notice of appeal.</E> Within 60 days from the date of the decision, an appellant must file a written notice of appeal signed by the appellant, the 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.</P> <P>(1) 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.</P> <P>(2) The notice of appeal must include the names and addresses of parties served.</P> <P>(3) A notice of appeal not timely filed will be dismissed for lack of jurisdiction.</P> <P>(c) <E T="03">Service of copies of notice of appeal.</E> The appellant must personally deliver or mail the original notice of appeal to the Board of Indian Appeals.</P> <P>(1) A copy must be served upon the administrative law judge or Indian probate judge whose decision is appealed as well as all interested parties.</P> <P>(2) The notice of appeal filed with the Board must include a certification that service was made as required by this section.</P> <P>(d) <E T="03">Action by the administrative law judge or Indian probate judge; record inspection.</E> The administrative law judge or Indian probate judge, upon receiving a copy of the notice of appeal, must notify the Superintendent concerned to return the duplicate record filed under §§ 4.236(b), 4.241(d), or 4.242(f) to the LTRO designated under § 4.236(b). The duplicate record must be conformed to the original by the LTRO and will thereafter be available for inspection either at the LTRO or at the office of the Superintendent. If a transcript of the hearing was not prepared, the administrative law judge or Indian probate judge will have a transcript prepared that must be forwarded to the Board within 30 days from receiving a copy of the notice of appeal.</P> </SECTION> <SECTION> <SECTNO>§ 4.321</SECTNO> <SUBJECT>Notice of transmittal of record on appeal.</SUBJECT> <P>The original record on appeal must be forwarded by the LTRO to the Board by certified mail. Any objection to the record as constituted must be filed <PRTPAGE P="108"/>with the Board within 15 days of receiving the notice of docketing issued under § 4.332.</P> </SECTION> <SECTION> <SECTNO>§ 4.322</SECTNO> <SUBJECT>Docketing.</SUBJECT> <P>The appeal will be docketed by the Board upon receiving the administrative record from the LTRO. 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.323</SECTNO> <SUBJECT>Disposition of the record.</SUBJECT> <P>(a) After the Board makes a decision other than a remand, it must forward to the LTRO designated under § 4.236(b):</P> <P>(1) The record filed with the Board; and</P> <P>(2) All documents added during the appeal proceedings, including any transcripts prepared because of the appeal and the Board's decision.</P> <P>(b) The LTRO must conform the duplicate record required by § 4.320(d) to the original sent under paragraph (a)(1) of this section and forward the conformed record to the Superintendent concerned.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">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</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 6487, Feb. 10, 1989, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.330</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>(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.</P> <P>(b) Except as otherwise permitted by the Secretary or the Assistant Secretary—Indian Affairs by special delegation or request, the Board shall not adjudicate:</P> <P>(1) Tribal enrollment disputes;</P> <P>(2) Matters decided by the Bureau of Indian Affairs through exercise of its discretionary authority; or</P> <P>(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).</P> </SECTION> <SECTION> <SECTNO>§ 4.331</SECTNO> <SUBJECT>Who may appeal.</SUBJECT> <P>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—</P> <P>(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;</P> <P>(b) Where the decision has been approved in writing by the Secretary or Assistant Secretary—Indian Affairs prior to promulgation; or</P> <P>(c) Where otherwise provided by law or regulation.</P> </SECTION> <SECTION> <SECTNO>§ 4.332</SECTNO> <SUBJECT>Appeal to the Board; how taken; mandatory time for filing; preparation assistance; requirement for bond.</SUBJECT> <P>(a) A notice of appeal shall be in writing, signed by the appellant or by his attorney of record or other qualified representative as provided by 43 CFR 1.3, and filed with the Board of Indian Appeals, Office of Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy Street, Arlington, Virginia 22203, within 30 days after receipt by the appellant of the decision from which the appeal is taken. A copy of the notice of appeal shall simultaneously be filed with the Assistant Secretary—Indian Affairs. As required by § 4.333 of this part, the notice of appeal <PRTPAGE P="109"/>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:</P> <P>(1) A full identification of the case;</P> <P>(2) A statement of the reasons for the appeal and of the relief sought; and</P> <P>(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.</P> <P>(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.</P> <P>(c) When the appellant is an Indian or Indian tribe not represented by counsel, the official who issued the decision appealed shall, upon request of the appellant, render such assistance as is appropriate in the preparation of the appeal.</P> <P>(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.</P> <CITA>[54 FR 6487, Feb. 10, 1989, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.333</SECTNO> <SUBJECT>Service of notice of appeal.</SUBJECT> <P>(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.</P> <P>(b) The notice of appeal will be considered to have been served upon the date of personal service or mailing.</P> </SECTION> <SECTION> <SECTNO>§ 4.334</SECTNO> <SUBJECT>Extensions of time.</SUBJECT> <P>Requests for extensions of time to file documents may be granted upon a showing of good cause, except for the time fixed for filing a notice of appeal which, as specified in § 4.332 of this part, may not be extended.</P> </SECTION> <SECTION> <SECTNO>§ 4.335</SECTNO> <SUBJECT>Preparation and transmittal of record by official of the Bureau of Indian Affairs.</SUBJECT> <P>(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.</P> <P>(b) The administrative record shall include a Table of Contents noting, at a minimum, inclusion of the following:</P> <P>(1) The decision appealed from;</P> <P>(2) The notice of appeal or copy thereof; and</P> <P>(3) Certification that the record contains all information and documents utilized by the deciding official in rendering the decision appealed.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.336</SECTNO> <SUBJECT>Docketing.</SUBJECT> <P>An appeal shall be assigned a docket number by the Board 20 days after receipt of the notice of appeal unless the <PRTPAGE P="110"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.337</SECTNO> <SUBJECT>Action by the Board.</SUBJECT> <P>(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.</P> <P>(b) Where the Board finds that one or more issues involved in an appeal or a matter referred to it were decided by the Bureau of Indian Affairs based upon the exercise of discretionary authority committed to the Bureau, and the Board has not otherwise been permitted to adjudicate the issue(s) pursuant to § 4.330(b) of this part, the Board shall dismiss the appeal as to the issue(s) or refer the issue(s) to the Assistant Secretary—Indian Affairs for further consideration.</P> </SECTION> <SECTION> <SECTNO>§ 4.338</SECTNO> <SUBJECT>Submission by administrative law judge of proposed findings, conclusions and recommended decision.</SUBJECT> <P>(a) When an evidentiary hearing pursuant to § 4.337(a) of this part is concluded, the administrative law judge shall recommend findings of fact and conclusions of law, stating the reasons for such recommendations. A copy of the recommended decision shall be sent to each party to the proceeding, the Bureau official involved, and the Board. Simultaneously, the entire record of the proceedings, including the transcript of the hearing before the administrative law judge, shall be forwarded to the Board.</P> <P>(b) The administrative law judge shall advise the parties at the conclusion of the recommended decision of their right to file exceptions or other comments regarding the recommended decision with the Board in accordance with § 4.339 of this part.</P> </SECTION> <SECTION> <SECTNO>§ 4.339</SECTNO> <SUBJECT>Exceptions or comments regarding recommended decision by administrative law judge.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.340</SECTNO> <SUBJECT>Disposition of the record.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">White Earth Reservation Land Settlement Act of 1985; Authority of Administrative Judges; Determinations of the Heirs of Persons Who Died Entitled to Compensation</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 61383, Dec. 3, 1991, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.350</SECTNO> <SUBJECT>Authority and scope.</SUBJECT> <P>(a) The rules and procedures set forth in §§ 4.350 through 4.357 apply only to the determination through intestate succession of the heirs of persons who died entitled to receive compensation under the White Earth Reservation Land Settlement Act of 1985, Public Law 99-264 (100 Stat. 61), amended by Public Law 100-153 (101 Stat. 886) and Public Law 100-212 (101 Stat. 1433).</P> <P>(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.<PRTPAGE P="111"/> </P> <P>(c) As used herein, the following terms shall have the following meanings:</P> <P>(1) The term <E T="03">Act</E> means the White Earth Reservation Land Settlement Act of 1985 as amended.</P> <P>(2) The term <E T="03">Board</E> means the Board of Indian Appeals in the Office of Hearings and Appeals, Office of the Secretary.</P> <P>(3) The term <E T="03">Project Director</E> 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.</P> <P>(4) The term <E T="03">party (parties) in interest</E> 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.</P> <P>(5) The term <E T="03">compensation</E> means a monetary sum, as determined by the Project Director, pursuant to section 8(c) of the Act.</P> <P>(6) The term <E T="03">administrative judge</E> means an administrative judge or an administrative law judge, attorney-advisor, or other appropriate official of the Office of Hearings and Appeals to whom the Director of the Office of Hearings and Appeals has redelegated his authority, as designee of the Secretary, for making heirship determinations as provided for in these regulations.</P> <P>(7) The term <E T="03">appellant</E> 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.</P> <CITA>[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991, as amended at 64 FR 13363, Mar. 18, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.351</SECTNO> <SUBJECT>Commencement of the determination process.</SUBJECT> <P>(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.</P> <P>(b) The data shall include but are not limited to:</P> <P>(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.</P> <P>(2) Data for heirship finding and family history, certified by the Project Director. Such data shall contain:</P> <P>(i) The facts and alleged facts of the decedent's marriages, separations and divorces, with copies of necessary supporting documents;</P> <P>(ii) The names and last known addresses of probable heirs at law and other known parties in interest;</P> <P>(iii) Information on whether the relationships of the probable heirs at law to the decedent arose by marriage, blood, or adoption.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991]</CITA> </SECTION> <SECTION> <PRTPAGE P="112"/> <SECTNO>§ 4.352</SECTNO> <SUBJECT>Determination of administrative judge and notice thereof.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(1) Upon issuing a preliminary determination, the administrative judge shall issue a notice of such action and shall mail a copy of said notice, together with a copy of the preliminary determination, to each party in interest allowing forty (40) days in which to show cause in writing why the determination should not become final. The administrative judge shall cause a certificate to be made as to the date and manner of such mailing.</P> <P>(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: </P> <EXTRACT> <FP SOURCE="FP-1">The White Earth Band, Box 418, White Earth, Minnesota 56591</FP> <FP SOURCE="FP-1">The Minnesota Chippewa Tribe, Box 217, Cass Lake, Minnesota 56633</FP> <FP SOURCE="FP-1">Minnesota Agency, Bureau of Indian Affairs, Room 418, Federal Building, 522 Minnesota Avenue, NW, Bemidji, Minnesota 56601-3062</FP> </EXTRACT> <FP>and in such other sites as may be deemed appropriate by the Project Director. Such other sites may include, but not be limited to:</FP> <EXTRACT> <FP SOURCE="FP-1">Elbow Lake Community Center, R.R. #2, Waubun, Minnesota 56589</FP> <FP SOURCE="FP-1">Postmaster, Callaway, Minnesota 56521</FP> <FP SOURCE="FP-1">Community Center, Route 2, Bagley, Minnesota 56621</FP> <FP SOURCE="FP-1">Community Center, Star Route, Mahnomen, Minnesota 56557</FP> <FP SOURCE="FP-1">Postmaster, Mahnomen, Minnesota 56557</FP> <FP SOURCE="FP-1">Rice Lake Community Center, Route 2, Bagley, Minnesota 56621</FP> <FP SOURCE="FP-1">Postmaster, Ogema, Minnesota 56569</FP> <FP SOURCE="FP-1">Pine Point Community Center, Ponsford, Minnesota 56575</FP> <FP SOURCE="FP-1">Postmaster, White Earth, Minnesota 56591</FP> <FP SOURCE="FP-1">White Earth IHS, White Earth, Minnesota 56591</FP> <FP SOURCE="FP-1">Postmaster, Ponsford, Minnesota 56575</FP> <FP SOURCE="FP-1">American Indian Center, 1113 West Broadway, Minneapolis, Minnesota 55411</FP> <FP SOURCE="FP-1">American Indian Center, 1530 East Franklin Avenue, Minneapolis, Minnesota 55404</FP> <FP SOURCE="FP-1">American Indian Center, 341 University Avenue, St. Paul, Minnesota 55103</FP> <FP SOURCE="FP-1">Little Earth of United Tribes Community Services, 2501 Cedar Avenue South, Minneapolis, Minnesota 55404</FP> <FP SOURCE="FP-1">Naytahwaush Community Center, Naytahwaush, Minnesota 56566</FP> </EXTRACT> <P>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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="113"/>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.</P> <P>(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.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.353</SECTNO> <SUBJECT>Record.</SUBJECT> <P>(a) The administrative judge shall lodge the original record with the Project Director.</P> <P>(b) The record shall contain, where applicable, the following materials:</P> <P>(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.</P> <P>(2) A copy of each notice served on parties in interest, with proof of mailing;</P> <P>(3) The record of evidence received, including any transcript made of testimony;</P> <P>(4) Data for heirship finding and family history, and data supplementary thereto;</P> <P>(5) The final order determining the heirs of the decedent and the administrative judge's notices thereof; and</P> <P>(6) Any other material or documents deemed relevant by the administrative judge.</P> </SECTION> <SECTION> <SECTNO>§ 4.354</SECTNO> <SUBJECT>Reconsideration or rehearing.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.355</SECTNO> <SUBJECT>Omitted compensation.</SUBJECT> <P>When, subsequent to the issuance of a final order determining heirs under § 4.352, it is found that certain additional compensation had been due the decedent and had not been included in <PRTPAGE P="114"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.356</SECTNO> <SUBJECT>Appeals.</SUBJECT> <P>(a) A party aggrieved by a final order of an administrative judge under § 4.352, or by a final order upon reconsideration of an administrative judge under § 4.354, may appeal to the Board (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.</P> <P>(b) The notice of appeal must be filed with the Board no later than thirty (30) days from the date on which the final order of the administrative judge was mailed, or, if there has been a petition for reconsideration or rehearing filed, no later than thirty (30) days from the date on which the final order upon reconsideration of the administrative judge was mailed. A notice of appeal that is not timely filed will be dismissed.</P> <P>(c) The Project Director shall ensure that the record is expeditiously forwarded to the Board.</P> <P>(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.</P> <P>(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.</P> <CITA>[56 FR 61383, Dec. 3, 1991, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.357</SECTNO> <SUBJECT>Guardians for minors and incompetents.</SUBJECT> <P>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 <E T="03">ad litem</E> appointed by the administrative judge.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Special Rules Applicable to Public Land Hearings and Appeals</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sections 4.470 to 4.480 also issued under the authority of 43 U.S.C. 315a.</P> </AUTH> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>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.</P> </CROSSREF> <SUBJGRP> <HD SOURCE="HED">Appeals Procedures</HD> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeals Procedures; General</HD> <SECTION> <SECTNO>§ 4.400</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this subpart:</P> <P>(a) <E T="03">Secretary</E> means the Secretary of the Interior or his authorized representatives.</P> <P>(b) <E T="03">Bureau</E> means Bureau of Land Management.</P> <P>(c) <E T="03">Board</E> means the Board of Land Appeals in the Office of Hearings and Appeals, Office of the Secretary. The terms <E T="03">office</E> or <E T="03">officer</E> as used in this subpart include <E T="03">Board</E> where the context requires.</P> <P>(d) <E T="03">Administrative law judge</E> 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.</P> </SECTION> <SECTION> <PRTPAGE P="115"/> <SECTNO>§ 4.401</SECTNO> <SUBJECT>Documents.</SUBJECT> <P>(a) <E T="03">Grace period for filing.</E> 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.</P> <P>(b) <E T="03">Transferees and encumbrancers.</E> Transferees and encumbrancers of land the title to which is claimed or is in the process of acquisition under any public land law shall, upon filing notice of the transfer or encumbrance in the proper land office, become entitled to receive and be given the same notice of any appeal, or other proceeding thereafter initiated affecting such interest which is required to be given to a party to the proceeding. Every such notice of a transfer or encumbrance will be noted upon the records of the land office. Thereafter such transferee or encumbrancer must be made a party to any proceedings thereafter initiated adverse to the entry.</P> <P>(c) <E T="03">Service of documents.</E> (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.</P> <P>(2) At the conclusion of any document that a party must serve under the regulations in this part, the party must sign a written statement certifying that service has been or will be made in accordance with the applicable rules and specifying the date and manner of such service.</P> <P>(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.</P> <CITA>[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 68 FR 33803, June 5, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.402</SECTNO> <SUBJECT>Summary dismissal.</SUBJECT> <P>An appeal to the Board will be subject to summary dismissal by the Board for any of the following causes:</P> <P>(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;</P> <P>(b) If the notice of appeal is not served upon adverse parties within the time required; and</P> <P>(c) If the statement of reasons, if not contained in the notice of appeal, is not served upon adverse parties within the time required.</P> <P>(d) If the statement of standing required by § 4.412(b) is not filed with the Board or is not served upon adverse parties within the time required.</P> <CITA>[36 FR 7186, Apr. 15, 1971, as amended at 47 FR 26392, June 18, 1982]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.403</SECTNO> <SUBJECT>Finality of decision; reconsideration.</SUBJECT> <P>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.</P> <CITA>[52 FR 21308, June 5, 1987]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="116"/> <HD SOURCE="HED">appeals to the board of land appeals</HD> <SECTION> <SECTNO>§ 4.410</SECTNO> <SUBJECT>Who may appeal.</SUBJECT> <P>(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—</P> <P>(1) As otherwise provided in Group 2400 of chapter II of this title,</P> <P>(2) To the extent that decisions of Bureau of Land Management officers must first be appealed to an administrative law judge under § 4.470 and part 4100 of this title,</P> <P>(3) Where a decision has been approved by the Secretary, and</P> <P>(4) As provided in paragraph (e) of this section.</P> <P>(b) A party to a case, as set forth in paragraph (a) of this section, is one who has taken action that is the subject of the decision on appeal, is the object of that decision, or has otherwise participated in the process leading to the decision under appeal, <E T="03">e.g.,</E> by filing a mining claim or application for use of public lands, by commenting on an environmental document, or by filing a protest to a proposed action.</P> <P>(c) Where BLM provided an opportunity for participation in its decisionmaking process, a party to the case, as set forth in paragraph (a) of this section, may raise on appeal only those issues:</P> <P>(1) Raised by the party in its prior participation; or</P> <P>(2) That arose after the close of the opportunity for such participation.</P> <P>(d) A party to a case is adversely affected, as set forth in paragraph (a) of this section, when that party has a legally cognizable interest, and the decision on appeal has caused or is substantially likely to cause injury to that interest.</P> <P>(e) For decisions rendered by Departmental officials relating to land selections under the Alaska Native Claims Settlement Act, as amended, any party who claims a property interest in land affected by the decision, an agency of the Federal Government or a regional corporation shall have a right to appeal to the Board.</P> <CITA>[47 FR 26392, June 18, 1982, as amended at 68 FR 33803, June 5, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.411</SECTNO> <SUBJECT>Appeal; how taken, mandatory time limit.</SUBJECT> <P>(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 <E T="04">Federal Register,</E> 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.</P> <P>(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 § 4.412(b), and any arguments the appellant wishes to make.</P> <P>(c) No extension of time will be granted for filing the notice of appeal. If a notice of appeal is filed after the grace period provided in § 4.401(a), the notice of appeal will not be considered and the case will be closed by the officer from whose decision the appeal is taken. If the notice of appeal is filed during the grace period provided in § 4.401(a) and the delay in filing is not waived, as provided in that section, the notice of appeal will not be considered and the appeal will be dismissed by the Board.</P> <SECAUTH>(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.)</SECAUTH> <CITA>[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 49 FR 6373, Feb. 21, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.412</SECTNO> <SUBJECT>Statement of reasons, statement of standing, written arguments, briefs.</SUBJECT> <P>(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: <PRTPAGE P="117"/>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.</P> <P>(b) Where the decision being appealed relates to land selections under the Alaska Native Claims Settlement Act, as amended, the appellant also shall file with the Board a statement of facts upon which the appellant relies for standing under § 4.410(b) within 30 days after filing of the notice of appeal. The statement may be included with the notice of appeal filed pursuant to § 4.411 or the statement of reasons filed pursuant to paragraph (a) of this section or may be filed as a separate document.</P> <P>(c) Failure to file the statement of reasons and statement of standing within the time required will subject the appeal to summary dismissal as provided in § 4.402, unless the delay in filing is waived as provided in § 4.401(a).</P> <CITA>[47 FR 26392, June 18, 1982, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.413</SECTNO> <SUBJECT>Service of notice of appeal and of other documents.</SUBJECT> <P>(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 § 4.401(c) of this title not later than 15 days after filing the document.</P> <P>(b) Failure to serve within the time required will subject the appeal to summary dismissal as provided in § 4.402 of this title.</P> <P>(c)(1)(i) If the appeal is taken from a decision of the Director, Minerals Management Service, the appellant will serve the Associate Solicitor, Division of Mineral Resources, Office of the Solicitor, U.S. Department of the Interior, Washington, D.C. 20240.</P> <P>(ii) If the appeal is taken from a decision of the Director, Bureau of Land Management, the appellant will serve:</P> <P>(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;</P> <P>(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.</P> <P>(c)(2) If the appeal is taken from a decision of other Bureau of Land Management (BLM) offices listed below (see § 1821.2-1(d) of this title), the appellant shall serve the appropriate official of the Office of the Solicitor as identified:</P> <P>(i) BLM Alaska State Office, including all District and Area Offices within its area of jurisdiction: </P> <EXTRACT> <FP SOURCE="FP-1">Regional Solicitor, Alaska Region, U.S. Department of the Interior, 4230 University Drive, Suite 300, Anchorage, AK 99508-4626;</FP> </EXTRACT> <P>(ii) BLM Arizona State Office, including all District and Area Offices within its area of jurisdiction: </P> <EXTRACT> <FP SOURCE="FP-1">Field Solicitor, U.S. Department of the Interior, One Renaissance Square, Two North Central, Suite 1130, Phoenix, AZ 85004-2383;</FP> </EXTRACT> <P>(iii) BLM California State Office, including all District and Area Offices within its area of jurisdiction: </P> <EXTRACT> <FP SOURCE="FP-1">Regional Solicitor, Pacific Southwest Region, U.S. Department of the Interior, 2800 Cottage Way, Room E-2753, Sacramento, CA 95825-1890;</FP> </EXTRACT> <P>(iv) BLM Colorado State Office, including all District and Area Offices within its area of jurisdiction: </P> <EXTRACT> <FP SOURCE="FP-1">Regional Solicitor, Rocky Mountain Region, U.S. Department of the Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215;</FP> </EXTRACT> <P>(v) BLM Eastern States Office, including all District and Area Offices within its area of jurisdiction:</P> <P>(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;<PRTPAGE P="118"/> </P> <P>(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.</P> <P>(vi) BLM Idaho State Office, including all District and Area Offices within its area of jurisdiction: </P> <EXTRACT> <FP SOURCE="FP-1">Field Solicitor, U.S. Department of the Interior, Federal Building & U.S. Courthouse, 550 West Fort Street, MSC 020, Boise, ID 83724;</FP> </EXTRACT> <P>(vii) BLM Montana State Office, including all District and Area Offices within its area of jurisdiction: </P> <EXTRACT> <FP SOURCE="FP-1">Regular U.S. Mail: Field Solicitor, U.S. Department of the Interior, P.O. Box 31394, Billings, MT 59107-1394;</FP> <FP SOURCE="FP-1">Other Delivery Services: Field Solicitor, U.S. Department of the Interior, 316 North 26th Street, Room 3004, Billings, MT 59101;</FP> </EXTRACT> <P>(viii) BLM Nevada State Office, including all District and Area Offices within its area of jurisdiction: </P> <EXTRACT> <FP SOURCE="FP-1">Regional Solicitor, Pacific Southwest Region, U.S. Department of the Interior, 2800 Cottage Way, Room E-2753, Sacramento, CA 95825-1890;</FP> </EXTRACT> <P>(ix) BLM New Mexico State Office, including all District and Area Offices within its area of jurisdiction: </P> <EXTRACT> <FP SOURCE="FP-1">Regular U.S. Mail: Field Solicitor, U.S. Department of the Interior, P.O. Box 1042, Santa Fe, NM 87504-1042;</FP> <FP SOURCE="FP-1">Other Delivery Services: Field Solicitor, U.S. Department of the Interior, 150 Washington Avenue #207, Santa Fe, NM 87501;</FP> </EXTRACT> <P>(x) BLM Oregon State Office, including all District and Area Offices within its area of jurisdiction: </P> <EXTRACT> <FP SOURCE="FP-1">Regional Solicitor, Pacific Northwest Region, U.S. Department of the Interior, Lloyd 500 Building, Suite 607, 500 N.E. Multnomah Street, Portland, OR 97232;</FP> </EXTRACT> <P>(xi) BLM Utah State Office, including all District and Area Offices within its area of jurisdiction: </P> <EXTRACT> <FP SOURCE="FP-1">Field Solicitor, U.S. Department of the Interior, 6201 Federal Building, 125 South State Street, Salt Lake City, UT 84138-1180;</FP> </EXTRACT> <P>(xii) BLM Wyoming State Office, including all District and Area Offices within its area of jurisdiction: </P> <EXTRACT> <FP SOURCE="FP-1">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;</FP> <FP SOURCE="FP-1">Other Delivery Services: Regional Solicitor, Rocky Mountain Region, U.S. Department of the Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215;</FP> </EXTRACT> <P>(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.</P> <P>(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.</P> <P>(d) Proof of such service as required by § 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.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.414</SECTNO> <SUBJECT>Answers.</SUBJECT> <P>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 <PRTPAGE P="119"/>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 § 4.401(c), not later than 15 days thereafter. Proof of such service as required by § 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 § 4.401(a).</P> <CITA>[36 FR 7186, Apr. 15 1971, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">actions by board of land appeals</HD> <SECTION> <SECTNO>§ 4.415</SECTNO> <SUBJECT>Request for hearings on appeals involving questions of fact.</SUBJECT> <P>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 §§ 4.430 to 4.439, and the general rules in subpart B of this part.</P> </SECTION> <SECTION> <SECTNO>§ 4.416</SECTNO> <SUBJECT>Appeals of wildfire management decisions.</SUBJECT> <P>The Board must decide appeals from decisions under § 4190.1 and § 5003.1(b) of this title within 60 days after all pleadings have been filed, and within 180 days after the appeal was filed.</P> <CITA>[68 FR 33803, June 5, 2003]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearings Procedures</HD> <HD SOURCE="HD1">Hearings procedures; general</HD> <SECTION> <SECTNO>§ 4.420</SECTNO> <SUBJECT>Applicability of general rules.</SUBJECT> <P>To the extent they are not inconsistent with these special rules, the general rules of the Office of Hearings and Appeals in subpart B of this part are also applicable to hearings, procedures.</P> </SECTION> <SECTION> <SECTNO>§ 4.421</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this subpart:</P> <P>(a) <E T="03">Secretary</E> means the Secretary of the Interior or his authorized representatives.</P> <P>(b) <E T="03">Director</E> means the Director of the Bureau of Land Management, the Associate Director or an Assistant Director.</P> <P>(c) <E T="03">Bureau</E> or <E T="03">BLM</E> means the Bureau of Land Management.</P> <P>(d) <E T="03">Board</E> 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.</P> <P>(e) <E T="03">Administrative law judge</E> 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.</P> <P>(f) <E T="03">State Director</E> means the supervising Bureau of Land Management officer for the State in which the particular range lies, or his authorized agent.</P> <P>(g) <E T="03">District manager</E> means the supervising Bureau of Land Management officer of the grazing district in which the particular range lies, or his authorized agent.</P> <P>(h) <E T="03">Person named in the decision</E> means any of the following persons identified in a final BLM grazing decision: an affected applicant, permittee, lessee, or agent or lienholder of record, or an interested public as defined in § 4100.0-5 of this title.</P> <CITA>[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 68 FR 68770, Dec. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.422</SECTNO> <SUBJECT>Documents.</SUBJECT> <P>(a) <E T="03">Grace period for filing.</E> Whenever a document is required under this subpart to be filed within a certain time <PRTPAGE P="120"/>and it is not received in the proper office during that time, the delay in filing will be waived if the document is filed not later than 10 days after it was required to be filed and it is determined that the document was transmitted or probably transmitted to the office in which the filing is required before the end of the period in which it was required to be filed. Determinations under this paragraph shall be made by the officer before whom is pending the appeal or contest in connection with which the document is required to be filed. This paragraph does not apply to requests for postponement of hearings under §§ 4.452-1 and 4.452-2.</P> <P>(b) <E T="03">Transferees and encumbrancers.</E> 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.</P> <P>(c) <E T="03">Service of documents.</E> (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.</P> <P>(2) At the conclusion of any document that a party must serve under the regulations in this part, the party or its representative must sign a written statement certifying that service has been or will be made in accordance with the applicable rules and specifying the date and manner of such service.</P> <P>(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.</P> <P>(d) <E T="03">Extensions of time.</E> The Manager or the administrative law judge, as the case may be, may extend the time for filing or serving any document in a contest.</P> <CITA>[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 68 FR 33803, June 5, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.423</SECTNO> <SUBJECT>Subpoena power and witness provisions.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">hearings on appeals involving questions of fact</HD> <SECTION> <SECTNO>§ 4.430</SECTNO> <SUBJECT>Prehearing conferences.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="121"/> <SECTNO>§ 4.431</SECTNO> <SUBJECT>Fixing of place and date for hearing; notice.</SUBJECT> <P>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.</P> <CITA>[47 FR 26392, June 18, 1982]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.432</SECTNO> <SUBJECT>Postponements.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.433</SECTNO> <SUBJECT>Authority of the administrative law judge.</SUBJECT> <P>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 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 §§ 4.423 and 4.26 of the general rules of subpart B of this part.</P> </SECTION> <SECTION> <SECTNO>§ 4.434</SECTNO> <SUBJECT>Conduct of hearing.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.435</SECTNO> <SUBJECT>Evidence.</SUBJECT> <P>(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.</P> <P>(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 <PRTPAGE P="122"/>statement of the substance of the excluded evidence and the objecting party may then make an offer of proof in rebuttal.</P> </SECTION> <SECTION> <SECTNO>§ 4.436</SECTNO> <SUBJECT>Reporter's fees.</SUBJECT> <P>Reporter's fees shall be borne by the Bureau.</P> </SECTION> <SECTION> <SECTNO>§ 4.437</SECTNO> <SUBJECT>Copies of transcript.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.438</SECTNO> <SUBJECT>Summary of evidence.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.439</SECTNO> <SUBJECT>Action by administrative law judge.</SUBJECT> <P>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.</P> <HD SOURCE="HD1">contest and protest proceedings</HD> </SECTION> <SECTION> <SECTNO>§ 4.450</SECTNO> <SUBJECT>Private contests and protests.</SUBJECT> </SECTION> <SECTION> <SECTNO>§ 4.450-1</SECTNO> <SUBJECT>By whom private contest may be initiated.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.450-2</SECTNO> <SUBJECT>Protests.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.450-3</SECTNO> <SUBJECT>Initiation of contest.</SUBJECT> <P>Any person desiring to initiate a private contest must file a complaint in the proper land office (see § 1821.2-1 of chapter II of this title). The contestant must serve a copy of the complaint on the contestee not later than 30 days after filing the complaint and must file proof of such service, as required by § 4.422(c), in the office where the complaint was filed within 30 days after service.</P> </SECTION> <SECTION> <SECTNO>§ 4.450-4</SECTNO> <SUBJECT>Complaints.</SUBJECT> <P>(a) <E T="03">Contents of complaint.</E> The complaint shall contain the following information, under oath:</P> <P>(1) The name and address of each party interested;</P> <P>(2) A legal description of the land involved;</P> <P>(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:</P> <P>(4) A statement in clear and concise language of the facts constituting the grounds of contest;</P> <P>(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;</P> <P>(6) A statement that the proceeding is not collusive or speculative but is insitituted and will be diligently pursued in good faith;</P> <P>(7) A request that the contestant be allowed to prove his allegations and <PRTPAGE P="123"/>that the adverse interest be invalidated;</P> <P>(8) The office in which the complaint is filed and the address to which papers shall be sent for service on the contestant; and</P> <P>(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.</P> <P>(b) <E T="03">Amendment of complaint.</E> 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.</P> <P>(c) <E T="03">Corroboration required.</E> 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.</P> <P>(d) <E T="03">Filing fee.</E> 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.</P> <P>(e) <E T="03">Waiver of issues.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.450-5</SECTNO> <SUBJECT>Service.</SUBJECT> <P>The complaint must be served upon every contestee in the manner provided in § 4.422(c)(1). Proof of service must be made in the manner provided in § 4.422(c)(2). In certain circumstances, service may be made by publication as provided in paragraph (b)(1) of this section. When the contest is against the heirs of a deceased entryman, the notice must be served on each heir. If the person to be personally served is an infant or a person who has been legally adjudged incompetent, service of notice must be made by delivering a copy of the notice to the legal guardian or committee, if there is one, of such infant or incompetent person. If there is no guardian or committee, then service must be by delivering a copy of the notice to the person having the infant or incompetent person in charge.</P> <P>(a) <E T="03">Summary dismissal; waiver of defect in service.</E> If a complaint when filed does not meet all the requirements of § 4.450-4(a) and (c), or if the complaint is not served upon each contestee as required by this section, the complaint will be summarily dismissed by the manager and no answer need be filed. However, where prior to the summary dismissal of a complaint a contestee answers without questioning the service or proof of service of the complaint, any defect in service will be deemed waived as to such answering contestee.</P> <P>(b) <E T="03">Service by publication</E>—(1) <E T="03">When service may be made by publication.</E> 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:</P> <P>(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;</P> <P>(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;</P> <P>(iii) State the last known address of the contestee; and</P> <P>(iv) State in detail the efforts and inquiries made to locate the party sought to be served.</P> <P>(2) <E T="03">Contents of published notice.</E> 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 <PRTPAGE P="124"/>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.</P> <P>(3) <E T="03">Publication, mailing and posting of notice.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">Proof of service.</E> (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.</P> <P>(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.</P> <P>(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.</P> <CITA>[36 FR 7186, Apr. 15, 1971, as amended at 68 FR 33803, June 5, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.450-6</SECTNO> <SUBJECT>Answer to complaint.</SUBJECT> <P>Within 30 days after service of the complaint or after the last publication of the notice, the contestee must file in the office where the contest is pending an answer specifically meeting and responding to the allegations of the complaint, together with proof of service of a copy of the answer upon a contestant as provided in § 4.450-5(b)(3). The answer shall contain or be accompanied by the address to which all notices or other papers shall be sent for service upon contestee.</P> </SECTION> <SECTION> <SECTNO>§ 4.450-7</SECTNO> <SUBJECT>Action by manager.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.450-8</SECTNO> <SUBJECT>Amendment of answer.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.451</SECTNO> <SUBJECT>Government contests.</SUBJECT> </SECTION> <SECTION> <SECTNO>§ 4.451-1</SECTNO> <SUBJECT>How initiated.</SUBJECT> <P>The Government may initiate contests for any cause affecting the legality or validity of any entry or settlement or mining claim.</P> </SECTION> <SECTION> <SECTNO>§ 4.451-2</SECTNO> <SUBJECT>Proceedings in Government contests.</SUBJECT> <P>The proceedings in Government contests shall be governed by the rules relating to proceedings in private contests with the following exceptions:</P> <P>(a) No corroboration shall be required of a Government complaint and the complaint need not be under oath.</P> <P>(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.</P> <P>(c) No filing fee or deposit toward reporter's fee shall be required of the Government.<PRTPAGE P="125"/> </P> <P>(d) Any action required of the contestant may be taken by any authorized Government employee.</P> <P>(e) The statements required by § 4.450-4(a) (5) and (6) need not be included in the complaint.</P> <P>(f) No posting of notice of publication on the land in issue shall be required of the Government.</P> <P>(g) Where service is by publication, the affidavits required by § 4.450-5(b)(1) need not be filed. The contestant shall file with the manager a statement of diligent search which shall state that the contestee could not be located after diligent search and inquiry, the last known address of the contestee and the detail of efforts and inquiries made to locate the party sought to be served. The diligent search shall be concluded not more than 15 days prior to the filing of the statement.</P> <P>(h) In lieu of the requirements of § 4.450-5(b)(3)(ii) the contestant shall, as part of the diligent search before the publication or within 15 days after the first publication send a copy of the complaint by certified mail, return receipt requested, to the contestee at the last address of record. The return receipts shall be filed in the office in which the contest is pending.</P> <P>(i) The affidavit required by § 4.450-5(c)(3) need not be filed.</P> <P>(j) The provisions of paragraph (e) of § 4.450-4(e) shall be inapplicable.</P> </SECTION> <SECTION> <SECTNO>§ 4.452</SECTNO> <SUBJECT>Proceedings before the administrative law judge.</SUBJECT> </SECTION> <SECTION> <SECTNO>§ 4.452-1</SECTNO> <SUBJECT>Prehearing conferences.</SUBJECT> <P>(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:</P> <P>(1) The simplification of the issues,</P> <P>(2) The necessity of amendments to the pleadings,</P> <P>(3) The possibility of obtaining stipulations, admissions of facts and agreements to the introduction of documents,</P> <P>(4) The limitation of the number of expert witnesses, and</P> <P>(5) Such other matters as may aid in the disposition of the proceedings.</P> <P>(b) The administrative law judge shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made as to any of the matters considered, and which limits the issues for hearing to those not disposed of by admission or agreements. Such order shall control the subsequent course of the proceedings before the administrative law judge unless modified for good cause, by subsequent order.</P> </SECTION> <SECTION> <SECTNO>§ 4.452-2</SECTNO> <SUBJECT>Notice of hearing.</SUBJECT> <P>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.</P> <CITA>[47 FR 26392, June 18, 1982]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.452-3</SECTNO> <SUBJECT>Postponements.</SUBJECT> <P>(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.</P> <P>(b) The request for a postponement must state in detail the reasons why a <PRTPAGE P="126"/>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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.452-4</SECTNO> <SUBJECT>Authority of administrative law judge.</SUBJECT> <P>The administrative law judge is vested with general authority to conduct the hearing in an orderly and judicial manner, including authority to subpoena witnesses and to take and cause depositions to be taken for the purpose of tasking testimony but not for discovery in accordance with the act of January 31, 1903 (43 U.S.C. 102-106), to administer oaths, to call and question witnesses, and to make a decision. The issuance of subpoenas, the attendance of witnesses and the taking of depositions shall be governed by §§ 4.423 and 4.26 of the general rules in subpart B of this part.</P> </SECTION> <SECTION> <SECTNO>§ 4.452-5</SECTNO> <SUBJECT>Conduct of hearing.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.452-6</SECTNO> <SUBJECT>Evidence.</SUBJECT> <P>(a) All oral testimony shall be under oath and witnesses shall be subject to cross-examination. The administrative law judge may question any witness. Documentary evidence may be received if pertinent to any issue. The administrative law judge will summarily stop examination and exclude testimony which is obviously irrelevant and immaterial.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.452-7</SECTNO> <SUBJECT>Reporter's fees.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="127"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.452-8</SECTNO> <SUBJECT>Findings and conclusions; decision by administrative law judge; submission to Board for decision.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 findings and conclusions submitted by the parties as have not been made by the administrative law judge.</P> </SECTION> <SECTION> <SECTNO>§ 4.452-9</SECTNO> <SUBJECT>Appeal to Board.</SUBJECT> <P>Any party, including the Government, adversely affected by the decision of the administrative law judge may appeal to the Board as provided in § 4.410, and the general rules in Subpart B of this part. No further hearing will be allowed in connection with the appeal to the Board but the Board, after considering the evidence, may remand any case for further hearing if it considers such action necessary to develop the facts.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Grazing Procedures (Inside and Outside Grazing Districts)</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>44 FR 41790, July 18, 1979, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.470</SECTNO> <SUBJECT>How to appeal a final BLM grazing decision to an administrative law judge.</SUBJECT> <P>(a) Any applicant, permittee, lessee, or other person whose interest is adversely affected by a final BLM grazing decision may appeal the decision to an administrative law judge within 30 days after receiving it or within 30 days after a proposed decision becomes final as provided in § 4160.3(a) of this title. To do so, the person must file an appeal with the BLM field office that issued the decision and serve a copy of the appeal on any person named in the decision.</P> <P>(b) The appeal must state clearly and concisely the reasons why the appellant thinks the BLM grazing decision is wrong.</P> <P>(c) Any ground for appeal not included in the appeal is waived. The appellant may not present a waived ground for appeal at the hearing unless permitted or ordered to do so by the administrative law judge.</P> <P>(d) Any person who, after proper notification, does not appeal a final BLM <PRTPAGE P="128"/>grazing decision within the period provided in paragraph (a) of this section may not later challenge the matters adjudicated in the final BLM decision.</P> <P>(e) Filing an appeal does not by itself stay the effectiveness of the final BLM decision. To request a stay of the final BLM decision pending appeal, <E T="03">see</E> § 4.471.</P> <CITA>[68 FR 68770, Dec. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.471</SECTNO> <SUBJECT>How to petition for a stay of a final BLM grazing decision.</SUBJECT> <P>(a) An appellant under § 4.470 may petition for a stay of the final BLM grazing decision pending appeal by filing a petition for a stay together with the appeal under § 4.470 with the BLM field office that issued the decision.</P> <P>(b) Within 15 days after filing the appeal and petition for a stay, the appellant must serve copies on—</P> <P>(1) Any other person named in the decision from which the appeal is taken; and</P> <P>(2) The appropriate office of the Office of the Solicitor, in accordance with § 4.413(a) and (c).</P> <P>(c) A petition for a stay of a final BLM grazing decision pending appeal under paragraph (a) of this section must show sufficient justification based on the following standards:</P> <P>(1) The relative harm to the parties if the stay is granted or denied;</P> <P>(2) The likelihood of the appellant's success on the merits;</P> <P>(3) The likelihood of immediate and irreparable harm if the stay is not granted; and</P> <P>(4) Whether the public interest favors granting the stay.</P> <P>(d) The appellant requesting a stay bears the burden of proof to demonstrate that a stay should be granted.</P> <CITA>[68 FR 68770, Dec. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.472</SECTNO> <SUBJECT>Action on an appeal and petition for a stay.</SUBJECT> <P>(a) BLM must transmit any documents received under §§ 4.470 and 4.471, within 10 days after receipt, to the Hearings Division, Office of Hearings and Appeals, Salt Lake City, Utah. If a petition for a stay has been filed, the transmittal must also include any response BLM wishes to file to a petition for a stay and the following documents from the case file: the application, permit, lease, or notice of unauthorized use underlying the final BLM grazing decision; the proposed BLM grazing decision; any protest filed by the appellant under § 4160.2; the final BLM grazing decision; and any other documents that BLM wishes the administrative law judge to consider in deciding the petition for a stay. BLM must serve a copy of any such response on the appellant and any other person named in the decision from which the appeal is taken.</P> <P>(b) Any person named in the decision from which an appeal is taken (other than the appellant) who wishes to file a response to the petition for a stay may file with the Hearings Division a motion to intervene in the appeal, together with the response, within 10 days after receiving the petition. Within 15 days after filing the motion to intervene and response, the person must serve copies on the appellant, the appropriate office of the Office of the Solicitor in accordance with § 4.413(a) and (c), and any other person named in the decision.</P> <P>(c) If a petition for a stay has not been filed, BLM must promptly transmit the following documents from the case file to the administrative law judge assigned to the appeal, once the appeal has been docketed by the Hearings Division: the application, permit, lease, or notice of unauthorized use underlying the final BLM grazing decision; the proposed BLM grazing decision; any protest filed by the appellant under § 4160.2; and the final BLM grazing decision.</P> <P>(d) Within 45 days after the expiration of the time for filing a notice of appeal, an administrative law judge must grant or deny—</P> <P>(1) A petition for a stay filed under § 4.471(a), in whole or in part; and</P> <P>(2) A motion to intervene filed with a response to the petition under paragraph (b) of this section.</P> <P>(e) Any final BLM grazing decision that is not already in effect and for which a stay is not granted will become effective immediately after the administrative law judge denies a petition for a stay or fails to act on the petition within the time set forth in paragraph (d) of this section.<PRTPAGE P="129"/> </P> <P>(f) At any appropriate time, any party may file with the Hearings Division a motion to dismiss the appeal or other appropriate motion. The appellant and any other party may file a response to the motion within 30 days after receiving a copy.</P> <P>(g) Within 15 days after filing a motion or response under paragraph (f) of this section, any moving or responding party must serve a copy on every other party. Service on BLM must be made on the appropriate office of the Office of the Solicitor in accordance with § 4.413(a) and (c).</P> <CITA>[68 FR 68770, Dec. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.473</SECTNO> <SUBJECT>Time and place of hearing; notice; intervenors.</SUBJECT> <P>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.</P> <CITA>[44 FR 41790, July 18, 1979. Redesignated at 68 FR 68770, Dec. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.474</SECTNO> <SUBJECT>Authority of administrative law judge.</SUBJECT> <P>(a) The administrative law judge is vested with the duty and general authority to conduct the hearing in an orderly, impartial, and judicial manner, including authority to subpoena witnesses, recognize intervenors, administer oaths and affirmations, call and question witnesses, regulate the course and order of the hearing, rule upon offers of proof and the relevancy of evidence, and to make findings of fact, conclusions of law, and a decision. The administrative law judge shall have authority to take or to cause depositions to be taken. Subpoenas, depositions, the attendance of witnesses, and witness and deposition fees shall be governed by § 4.26 of the general rules in Subpart B of this part, to the extent such regulations are applicable.</P> <P>(b) The administrative law judge also may grant or order continuances, and set the times and places of further hearings. Continuances shall be granted in accordance with § 4.452-3.</P> <P>(c) The administrative law judge may consider and rule on all motions and petitions, including a petition for a stay of a final BLM grazing decision.</P> <P>(d) An administrative law judge may consolidate two or more appeals for purposes of hearing and decision when they involve a common issue or issues.</P> <CITA>[44 FR 41790, July 18, 1979. Redesignated and amended at 68 FR 68770, 68771, Dec. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.475</SECTNO> <SUBJECT>Service.</SUBJECT> <P>Service of notice or other documents required under this subpart shall be governed by §§ 4.413 and 4.422. Proof of such service shall be filed in the same office where the notice or document was filed within 15 days after such service, unless filed with the notice or document.</P> <CITA>[44 FR 41790, July 18, 1979. Redesignated at 68 FR 68770, Dec. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.476</SECTNO> <SUBJECT>Conduct of hearing; reporter's fees; transcript.</SUBJECT> <P>(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 <PRTPAGE P="130"/>consideration of the administrative law judge and of the other parties.</P> <P>(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.</P> <P>(c) In the absence or upon denial of such motion the State Director or his representative and recognized intervenors may present evidence if such a presentation appears to the administrative law judge to be necessary for a proper disposition of the matters in controversy, adhering as closely as possible to the issues raised by the appellant. All oral testimony shall be under oath or affirmation, and witnesses shall be subject to cross-examination by any party to the proceeding. The administrative law judge may question any witness whenever it appears necessary. Documentary evidence will be received by the administrative law judge and made a part of the record, if pertinent to any issue, or may be entered by stipulation. No exception need be stated or noted and every ruling of the administrative law judge will be subject to review on appeal. The party affected by an adverse ruling sustaining an objection to the admission of evidence, may insert in the record, as a tender of proof, a brief written statement of the substance of the excluded evidence; and the opposing party may then make an offer of proof in rebuttal. The administrative law judge shall summarily stop examination and exclude testimony on any issue which he determines has been adjudicated previously in an appeal involving the same preference and the same parties or their predecessors in interest, or which is obviously irrelevant and immaterial to the issues in the case. At the conclusion of the testimony the parties at the hearing shall be given a reasonable opportunity, considering the number and complexity of the issues and the amount of testimony, to submit to the administrative law judge proposed findings of fact and conclusions of law, and reasons in support thereof, or to stipulate to a waiver of such findings and conclusions.</P> <P>(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.</P> <CITA>[44 FR 41790, July 18, 1979. Redesignated at 68 FR 68770, Dec. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.477</SECTNO> <SUBJECT>Findings of fact and decision by administrative law judge: Notice; submission to Board of Land Appeals for decision.</SUBJECT> <P>(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.</P> <P>(b) The Board of Land Appeals may require, in any designated case, that the administrative law judge make only a recommended decision and that <PRTPAGE P="131"/>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.</P> <CITA>[44 FR 41790, July 18, 1979. Redesignated at 68 FR 68770, Dec. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.478</SECTNO> <SUBJECT>Appeals to the Board of Land Appeals; judicial review.</SUBJECT> <P>(a) Any person who has a right of appeal under § 4.410 or other applicable regulation may appeal to the Board from an order of an administrative law judge granting or denying a petition for a stay.</P> <P>(b) As an alternative to paragraph (a) of this section, any party other than BLM may seek judicial review under 5 U.S.C. 704 of a final BLM grazing decision if the administrative law judge denies a petition for a stay, either directly or by failing to meet the deadline in § 4.472(d).</P> <P>(c) If a party appeals under paragraph (a) of this section, the Board must issue an expedited briefing schedule and decide the appeal promptly.</P> <P>(d) Unless the Board or a court orders otherwise, an appeal under paragraph (a) of this section does not—</P> <P>(1) Suspend the effectiveness of the decision of the administrative law judge; or</P> <P>(2) Suspend further proceedings before the administrative law judge.</P> <P>(e) Any party adversely affected by the administrative law judge's decision on the merits has the right to appeal to the Board under the procedures in this part.</P> <CITA>[68 FR 68771, Dec. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.479</SECTNO> <SUBJECT>Effectiveness of decision during appeal.</SUBJECT> <P>(a) Consistent with the provisions of §§ 4.21(a) and 4.472(e) and except as provided in paragraphs (b) and (c) of this section or other applicable regulation, a final BLM grazing decision will not be effective—</P> <P>(1) Until the expiration of the time for filing an appeal under § 4.470(a); and</P> <P>(2) If a petition for a stay is filed under § 4.471(a), until the administrative law judge denies the petition for a stay or fails to act on the petition within the time set forth in § 4.472(d).</P> <P>(b) Consistent with the provisions of §§ 4160.3 and 4190.1 of this title and notwithstanding the provisions of § 4.21(a), a final BLM grazing decision may provide that the decision will be effective immediately. Such a decision will remain effective pending a decision on an appeal, unless a stay is granted by an administrative law judge under § 4.472 or by the Board under § 4.478(a).</P> <P>(c) Notwithstanding the provisions of § 4.21(a), when the public interest requires, an administrative law judge may provide that the final BLM grazing decision will be effective immediately.</P> <P>(d) An administrative law judge or the Board may change or revoke any action that BLM takes under a final BLM grazing decision on appeal.</P> <P>(e) In order to ensure exhaustion of administrative remedies before resort to court action, a BLM grazing decision is not final agency action subject to judicial review under 5 U.S.C. 704 unless—</P> <P>(1) A petition for a stay of the BLM decision has been timely filed and the BLM decision has been made effective under § 4.472(e), or</P> <P>(2) The BLM decision has been made effective under paragraphs (b) or (c) of this section or other applicable regulation, and a stay has not been granted.</P> <P>(f) Exhaustion of administrative remedies is not required if a stay would not render the challenged portion of the BLM decision inoperative under subpart 4160 of this title.</P> <CITA>[68 FR 68771, Dec. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.480</SECTNO> <SUBJECT>Conditions of decision action.</SUBJECT> <P>(a) <E T="03">Record as basis of decision; definition of record.</E> 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 <PRTPAGE P="132"/>transcript of testimony and exhibits, together with all papers and requests filed in the proceedings, shall constitute the exclusive record for decision.</P> <P>(b) <E T="03">Effect of substantial compliance.</E> 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.</P> <CITA>[44 FR 41790, July 18, 1979. Redesignated at 68 FR 68770, Dec. 10, 2003]</CITA> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Implementation of the Equal Access to Justice Act in Agency Proceedings</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C. 504(c)(1)).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>48 FR 17596, Apr. 25, 1983, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">General Provisions</HD> <SECTION> <SECTNO>§ 4.601</SECTNO> <SUBJECT>Purpose of these rules.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.602</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P>(a) <E T="03">The Act</E> 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.</P> <P>(b) <E T="03">Adversary adjudication</E> 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.</P> <P>(c) <E T="03">Adjudicative officer</E> means the official who presided at the adversary adjudication.</P> <P>(d) <E T="03">Department</E> refers to the Department of the Interior or the relevant department component which is a party to the adversary adjudication (<E T="03">e.g.,</E> Office of Surface Mining Reclamation and Enforcement or Bureau of Land Management).</P> <P>(e) <E T="03">Proceeding</E> means an adversary adjudication as defined in § 4.602(b).</P> <P>(f) <E T="03">Party</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.603</SECTNO> <SUBJECT>Proceedings covered.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.604</SECTNO> <SUBJECT>Applicability to Department of the Interior proceedings.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="133"/> <SECTNO>§ 4.605</SECTNO> <SUBJECT>Eligibility of applicants.</SUBJECT> <P>(a) To be eligible for an award of attorney fees and other expenses under 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.</P> <P>(b) The types of eligible applicants are as follows:</P> <P>(1) An individual with a net worth of not more than $1 million;</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(g) An applicant is not eligible if it has participated in the proceeding solely on behalf of other persons or entities that are ineligible.</P> </SECTION> <SECTION> <SECTNO>§ 4.606</SECTNO> <SUBJECT>Standards for awards.</SUBJECT> <P>(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.</P> <P>(b) An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding.</P> </SECTION> <SECTION> <SECTNO>§ 4.607</SECTNO> <SUBJECT>Allowable fees and expenses.</SUBJECT> <P>(a) The following fees and other expenses are allowable under the Act:</P> <P>(1) Reasonable expenses of expert witnesses;</P> <P>(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</P> <P>(3) Reasonable attorney or agent fees.</P> <P>(b) The amount of fees awarded will be based upon the prevailing market rates for the kind and quality of services furnished, except that—</P> <P>(1) Compensation for an expert witness will not exceed the highest rate at which the Department pays expert witnesses; and</P> <P>(2) Attorney or agent fees will not exceed $75 per hour.</P> <P>(c) In determining the reasonableness of the fee sought, the adjudicative officer shall consider the following:<PRTPAGE P="134"/> </P> <P>(1) The prevailing rate for similar services in the community in which the attorney, agent, or witness has performed the service;</P> <P>(2) The time actually spent in the representation of the applicant;</P> <P>(3) The difficulty or complexity of the issues in the proceeding;</P> <P>(4) Any necessary and reasonable expenses incurred; and</P> <P>(5) Such other factors as may bear on the value of the services performed.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Information Required From Applicants</HD> </SUBJGRP> <NOTE> <HD SOURCE="HED">Note:</HD> <P> <E T="03">Information Collection.</E> The information collection requirement contained in §§ 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.</P> </NOTE> <SECTION> <SECTNO>§ 4.608</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(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</P> <P>(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)).</P> <P>(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.</P> <P>(d) The application shall itemize the amount of fees and expenses for which an award is sought.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.609</SECTNO> <SUBJECT>Net worth exhibit.</SUBJECT> <P>(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 <PRTPAGE P="135"/>is sufficient to determine whether the applicant qualifies under the standards 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.</P> <P>(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.</P> <P>(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 <E T="03">et. seq.</E> </P> </SECTION> <SECTION> <SECTNO>§ 4.610</SECTNO> <SUBJECT>Documentation of fees and expenses.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) The adjudicative officer may require the applicant to provide vouchers, receipts, or other substantiation for any expenses claimed.</P> </SECTION> <SECTION> <SECTNO>§ 4.611</SECTNO> <SUBJECT>Time for submission of application.</SUBJECT> <P>(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 other expenses filed prior to final disposition of the proceeding shall be stayed pending such final disposition.<PRTPAGE P="136"/> </P> <P>(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.</P> </SECTION> <SUBJGRP> <HD SOURCE="HED">Procedures for Considering Applications</HD> <SECTION> <SECTNO>§ 4.612</SECTNO> <SUBJECT>Filing and service of documents.</SUBJECT> <P>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 § 4.609(c) for confidential financial information.</P> </SECTION> <SECTION> <SECTNO>§ 4.613</SECTNO> <SUBJECT>Answer to application.</SUBJECT> <P>(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 § 4.616.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.614</SECTNO> <SUBJECT>Settlement.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.615</SECTNO> <SUBJECT>Extensions of time and further proceedings.</SUBJECT> <P>(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.</P> <P>(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, <E T="03">sua sponte,</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.616</SECTNO> <SUBJECT>Decision on application.</SUBJECT> <P>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:</P> <P>(a) The applicant's status as a prevailing party;</P> <P>(b) The applicant's qualification as a “party” under 5 U.S.C. 504(b)(1)(B);<PRTPAGE P="137"/> </P> <P>(c) Whether the Department's position as a party to the proceeding was substantially justified;</P> <P>(d) Whether special circumstances make an award unjust;</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.617</SECTNO> <SUBJECT>Appeals Board review.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.618</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>Judicial review of final Departmental decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).</P> </SECTION> <SECTION> <SECTNO>§ 4.619</SECTNO> <SUBJECT>Payment of award.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Special Rules Applicable to Other Appeals and Hearings</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301.</P> </AUTH> <SECTION> <SECTNO>§ 4.700</SECTNO> <SUBJECT>Who may appeal.</SUBJECT> <P>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.</P> <CITA>[36 FR 7186, Apr. 15, 1971; 36 FR 7588, Apr. 22, 1971]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.701</SECTNO> <SUBJECT>Notice of appeal.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.702</SECTNO> <SUBJECT>Transmittal of appeal file.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="138"/> <SECTNO>§ 4.703</SECTNO> <SUBJECT>Pleadings.</SUBJECT> <P>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.</P> <CITA>[36 FR 7186, Apr. 15, 1971; 36 FR 7588, Apr. 22, 1971]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.704</SECTNO> <SUBJECT>Decisions on appeals.</SUBJECT> <P>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.</P> <CITA>[36 FR 7186, Apr. 15, 1971, as amended at 39 FR 2366, Jan. 21, 1974]</CITA> </SECTION> </SUBPART> <SUBPART> <RESERVED>Subpart H [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">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</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>43 CFR 17.8 and 5 U.S.C. 301.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>38 FR 21162, Aug. 6, 1973, unless otherwise noted.</P> </SOURCE> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>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.</P> </CROSSREF> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 4.800</SECTNO> <SUBJECT>Scope and construction of rules.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.801</SECTNO> <SUBJECT>Suspension of rules.</SUBJECT> <P>Upon notice to all parties, the responsible Department official or the administrative law judge, with respect <PRTPAGE P="139"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.802</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) The definitions set forth in § 17.12 of this title apply also to this subpart.</P> <P>(b) <E T="03">Director</E> means the Director, Office for Equal Opportunity, Department of the Interior.</P> <P>(c) <E T="03">Administrative law judge</E> 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.</P> <P>(d) <E T="03">Notice</E> means a notice of hearing in a proceeding instituted under Part 17 of this title and these regulations.</P> <P>(e) <E T="03">Party</E> means a recipient or applicant; the Director; and any person or organization participating in a proceeding pursuant to § 4.808.</P> </SECTION> <SECTION> <SECTNO>§ 4.803</SECTNO> <SUBJECT>Computation of time.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.804</SECTNO> <SUBJECT>Extensions of time.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.805</SECTNO> <SUBJECT>Reduction of time to file documents.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Designation and Responsibilities of Administrative Law Judge</HD> <SECTION> <SECTNO>§ 4.806</SECTNO> <SUBJECT>Designation.</SUBJECT> <P>Hearings shall be held before an administrative law judge designated by the Office of Hearings and Appeals.</P> </SECTION> <SECTION> <SECTNO>§ 4.807</SECTNO> <SUBJECT>Authority and responsibilities.</SUBJECT> <P>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:</P> <P>(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.</P> <P>(b) Require parties to state their position with respect to the various issues in the proceedings.</P> <P>(c) Establish rules for media coverage of the proceedings.</P> <P>(d) Rule on motions and other procedural items in matters before him.</P> <P>(e) Regulate the course of the hearing, the conduct of counsel, parties, witnesses, and other participants.</P> <P>(f) Administer oaths, call witnesses on his own motion, examine witnesses, and direct witnesses to testify.</P> <P>(g) Receive, rule on, exclude, or limit evidence.</P> <P>(h) Fix time limits for submission of written documents in matters before him.</P> <P>(i) Take any action authorized by these regulations, by 5 U.S.C. 556, or by other pertinent law.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appearance and Practice</HD> <SECTION> <SECTNO>§ 4.808</SECTNO> <SUBJECT>Participation by a party.</SUBJECT> <P>Subject to the provisions contained in part 1 of this subtitle, a party may appear in person, by representative, or <PRTPAGE P="140"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.809</SECTNO> <SUBJECT>Determination of parties.</SUBJECT> <P>(a) The affected applicant or recipient to whom a notice of hearing or a notice of an opportunity for hearing has been mailed in accordance with part 17 of this title and § 4.815, and the Director, are the initial parties to the proceeding.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.810</SECTNO> <SUBJECT>Complainants not parties.</SUBJECT> <P>A person submitting a complaint pursuant to § 17.6 of this title is not a party to the proceedings governed by part 17 of this title and these regulations, but may petition, after proceedings are initiated, to become an amicus curiae. In any event a complainant shall be advised of the time and place of the hearing.</P> </SECTION> <SECTION> <SECTNO>§ 4.811</SECTNO> <SUBJECT>Determination and participation of amici.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) An amicus curiae is not a party and may not introduce evidence at a hearing but may only participate as provided in paragraph (d) of this section.</P> <P>(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 <PRTPAGE P="141"/>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.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Form and Filing of Documents</HD> <SECTION> <SECTNO>§ 4.812</SECTNO> <SUBJECT>Form.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.813</SECTNO> <SUBJECT>Filing and service.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.814</SECTNO> <SUBJECT>Certificate of service.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures</HD> <SECTION> <SECTNO>§ 4.815</SECTNO> <SUBJECT>How proceedings are commenced.</SUBJECT> <P>Proceedings are commenced by the Director by mailing to an applicant or recipient a notice of alleged noncompliance with the Act and the regulations thereunder. The notice shall include either a notice of hearing fixing a date therefor or a notice of an opportunity for a hearing as provided in § 17.8 of this title. The notice shall advise the applicant or recipient of the action proposed to be taken, the specific provisions of part 17 of this title under which the proposed action is to be taken, and the matters of fact or law asserted as the basis of the action.</P> </SECTION> <SECTION> <SECTNO>§ 4.816</SECTNO> <SUBJECT>Notice of hearing and response thereto.</SUBJECT> <P>A notice of hearing shall fix a date not less than 30 days from the date of service of the notice of a hearing on matters alleged in the notice. If the applicant recipient does not desire a hearing, he should so state in writing, in which case the applicant or recipient shall have the right to further participate in the proceeding. Failure to appear at the time set for a hearing, without good cause, shall be deemed a waiver of the right to a hearing under section 602 of the Act and the regulations thereunder and consent to the <PRTPAGE P="142"/>making of a decision on such information as is available which may be presented for the record.</P> </SECTION> <SECTION> <SECTNO>§ 4.817</SECTNO> <SUBJECT>Notice of opportunity to request a hearing and response thereto.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.818</SECTNO> <SUBJECT>Answer.</SUBJECT> <P>In any case covered by § 4.816 or § 4.817, the applicant or recipient shall file an answer. Said answer shall admit or deny each allegation of the notice, unless the applicant or recipient is without knowledge, in which case the answer shall so state, and the statement will be considered a denial. Failure to file an answer shall be deemed an admission of all allegations of fact in the notice. Allegations of fact in the notice not denied or controverted by answer shall be deemed admitted. Matters alleged in the answer as affirmative defenses shall be separately stated and numbered. The answer under § 4.816 shall be filed within 20 days from the date of service of the notice of hearing. The answer under § 4.817 shall be filed within 20 days of service of the notice of opportunity to request a hearing.</P> </SECTION> <SECTION> <SECTNO>§ 4.819</SECTNO> <SUBJECT>Amendment of notice or answer.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.820</SECTNO> <SUBJECT>Consolidated or joint hearings.</SUBJECT> <P>As provided in § 17.8(e) of this title, the Secretary may provide for proceedings in the Department to be joined or consolidated for hearing with proceedings in other Federal departments or agencies, by agreement with such other departments or agencies. All parties to any proceedings consolidated subsequently to service of the notice of hearing or opportunity for hearing shall be promptly served with notice of such consolidation.</P> </SECTION> <SECTION> <SECTNO>§ 4.821</SECTNO> <SUBJECT>Motions.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.822</SECTNO> <SUBJECT>Disposition of motions.</SUBJECT> <P>The administrative law judge may not grant a written motion or petition prior to expiration of the time for filing responses thereto, but may overrule or deny such motion or petition without awaiting response: <E T="03">Provided, however,</E> That prehearing conferences, hearings, and decisions need not be delayed pending disposition of motions or <PRTPAGE P="143"/>petitions. Oral motions and petitions may be ruled on immediately.</P> </SECTION> <SECTION> <SECTNO>§ 4.823</SECTNO> <SUBJECT>Interlocutory appeals.</SUBJECT> <P>Except as provided in § 4.809(e), a ruling of the administrative law judge may not be appealed to the Director, Office of Hearings and Appeals, prior to consideration of the entire proceeding by the administrative law judge unless permission is first obtained from the Director, Office of Hearings and Appeals, and the administrative law judge has certified the interlocutory ruling on the record or abused his discretion in refusing a request to so certify. Permission will not be granted except upon a showing that the ruling complained of involves a controlling question of law and that an immediate appeal therefrom may materially advance the final decision. An interlocutory appeal shall not operate to suspend the hearing unless otherwise ordered by the Director, Office of Hearings and Appeals. If an appeal is allowed, any party may file a brief within such period as the Director, Office of Hearings and Appeals, di-rects. 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.824</SECTNO> <SUBJECT>Exhibits.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.825</SECTNO> <SUBJECT>Admissions as to facts and documents.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.826</SECTNO> <SUBJECT>Discovery.</SUBJECT> <P>(a) <E T="03">Methods.</E> 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.</P> <P>(b) <E T="03">Scope.</E> Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the hearing.</P> <P>(c) <E T="03">Protective orders.</E> 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.</P> <P>(d) <E T="03">Sequence and timing.</E> 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.</P> <P>(e) <E T="03">Time limit.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.827</SECTNO> <SUBJECT>Depositions.</SUBJECT> <P>(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 <PRTPAGE P="144"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(f) The party taking the deposition shall give prompt notice of its filing to all other parties.</P> </SECTION> <SECTION> <SECTNO>§ 4.828</SECTNO> <SUBJECT>Use of depositions at hearing.</SUBJECT> <P>(a) Any part or all of a deposition so far as admissible under § 4.835 applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof as follows:</P> <P>(1) Any deposition may be used for contradiction or impeachment of the deponent as a witness.</P> <P>(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.</P> <P>(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.</P> <P>(b) If only part of a deposition is offered in evidence, the remainder becomes subject to introduction by any party.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="145"/> <SECTNO>§ 4.829</SECTNO> <SUBJECT>Interrogatories to parties.</SUBJECT> <P>(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.</P> <P>(b) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney or other representative making them. Answers and objections shall be made within 30 days after the service of the interrogatories. The party submitting the interrogatories may move for an order under § 4.831 with respect to any objection to or other failure to answer an interrogatory.</P> <P>(c) Interrogatories shall relate to any matter not privileged which is relevant to the subject matter of the hearing.</P> </SECTION> <SECTION> <SECTNO>§ 4.830</SECTNO> <SUBJECT>Production of documents and things and entry upon land for inspection and other purposes.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) The party upon whom the request is served shall respond within 15 days after the service of the request. The response shall state, with respect to each item, that inspection and related activities will be permitted as requested, unless there are objections in which case the reasons for each objection shall be stated. The party submitting the request may move for an order under § 4.831 with respect to any objection to or other failure to respond.</P> </SECTION> <SECTION> <SECTNO>§ 4.831</SECTNO> <SUBJECT>Sanctions.</SUBJECT> <P>(a) A party, upon reasonable notice to other parties and all persons affected thereby, may move for an order as follows:</P> <P>(1) If a deponent fails to answer a question propounded or submitted under § 4.827(c), or a corporation or other entity fails to make a designation under § 4.827(b)(3), or a party fails to answer an interrogatory submitted under § 4.829, or if a party, under § 4.830 fails to respond that inspection will be permitted or fails to permit inspection, the discovering party may move for an order compelling an answer, a designation, or inspection.</P> <P>(2) An evasive or incomplete answer is to be treated as a failure to answer.</P> <P>(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:</P> <P>(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;</P> <P>(2) Refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.</P> <P>(c) If a party or an agent designated to testify fails after proper service (1) to appear for his deposition, (2) to serve answers or objections to interrogatories submitted under § 4.829 or (3) to serve a written response to a request for inspection, submitted under § 4.830, the administrative law judge on motion may make such orders as are just, <PRTPAGE P="146"/>including those authorized under paragraphs (b) (1) and (2) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 4.832</SECTNO> <SUBJECT>Consultation and advice.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[38 FR 21162, Aug. 6, 1973, as amended at 50 FR 43706, Oct. 29, 1985]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Prehearing</HD> <SECTION> <SECTNO>§ 4.833</SECTNO> <SUBJECT>Prehearing conferences.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearing</HD> <SECTION> <SECTNO>§ 4.834</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) In any case where it appears from the answer of the applicant or recipient to the notice of hearing or notice of opportunity to request a hearing, from his failure timely to answer, or from his admissions or stipulations in the record that there are no matters of material fact in dispute, the administrative law judge may enter an order so finding, vacating the hearing date if one has been set, and fixing the time for the submission of evidence by the Government for the record. Thereafter, the proceedings shall go to conclusion in accordance with part 17 of this title and the rules in this subpart. An appeal from such order may be allowed in accordance with the rules for interlocutory appeal in § 4.823.</P> </SECTION> <SECTION> <SECTNO>§ 4.835</SECTNO> <SUBJECT>Evidence.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.836</SECTNO> <SUBJECT>Official notice.</SUBJECT> <P>Whenever a party offers a public document, or part thereof, in evidence, and such document, or part thereof, has been shown by the offeror to be reasonably available to the public, such document need not be produced or marked for identification, but may be offered for official notice as a public document item by specifying the document or relevant part thereof. Official notice may also be taken of other matters, at the discretion of the administrative law judge.</P> </SECTION> <SECTION> <SECTNO>§ 4.837</SECTNO> <SUBJECT>Testimony.</SUBJECT> <P>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-<PRTPAGE P="147"/>examined without regard to the scope of direct examination as to any matter which is material to the proceeding.</P> </SECTION> <SECTION> <SECTNO>§ 4.838</SECTNO> <SUBJECT>Objections.</SUBJECT> <P>Objections to evidence shall be timely, and the party making them shall briefly state the ground relied upon.</P> </SECTION> <SECTION> <SECTNO>§ 4.839</SECTNO> <SUBJECT>Exceptions.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.840</SECTNO> <SUBJECT>Offer of proof.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.841</SECTNO> <SUBJECT>Official transcript.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Posthearing Procedures</HD> <SECTION> <SECTNO>§ 4.842</SECTNO> <SUBJECT>Proposed findings of fact and conclusions of law.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.843</SECTNO> <SUBJECT>Record for decision.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.844</SECTNO> <SUBJECT>Notification of right to file exceptions.</SUBJECT> <P>The provisions of § 17.9 of this title govern the making of decisions by administrative law judges, the Director, Office of Hearings and Appeals, and the Secretary. An administrative law judge shall, in any initial decision made by him, specifically inform the applicant or recipient of his right under § 17.9 of this title to file exceptions with the Director, Office of Hearings and Appeals. In instances in which the record is certified to the Director, Office of Hearings and Appeals, or he reviews the decision of an administrative law judge, he shall give the applicant or recipient a notice of certification or notice of review which specifically informs the applicant or recipient that, within a stated period, which shall not be less than 30 days after service of the notice, he may file briefs or other written statements of his contentions.</P> </SECTION> <SECTION> <SECTNO>§ 4.845</SECTNO> <SUBJECT>Final review by Secretary.</SUBJECT> <P>Paragraph (f) of § 17.9 of this title requires that any final decision of an administrative law judge or of the Director, Office of Hearings and Appeals, which provides for the suspension or termination of, or the refusal to grant or continue Federal financial assistance, or the imposition of any other sanction available under part 17 of this title or the Act, shall be transmitted to the Secretary. The applicant or recipient shall have 20 days following service <PRTPAGE P="148"/>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.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Special Rules Applicable to Appeals Concerning Federal Oil and Gas Royalties and Related Matters</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301 <E T="03">et seq.</E>; 25 U.S.C. 396 <E T="03">et seq.,</E> 396a <E T="03">et seq.,</E> 2101 <E T="03">et seq.</E>; 30 U.S.C. 181 <E T="03">et seq.,</E> 351 <E T="03">et seq.,</E> 1001 <E T="03">et seq.,</E> 1701 <E T="03">et seq.</E>; 31 U.S.C 9701; 43 U.S.C. 1301 <E T="03">et seq.,</E> 1331 <E T="03">et seq.,</E> and 1801 <E T="03">et seq.</E> </P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>64 FR 26259, May 13, 1999, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.901</SECTNO> <SUBJECT>What is the purpose of this subpart?</SUBJECT> <P>This subpart tells you how the time limits of 30 U.S.C. 1724(h) apply to appeals subject to this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 4.902</SECTNO> <SUBJECT>What appeals are subject to this subpart?</SUBJECT> <P>(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.</P> <P>(b) This subpart does not apply to appeals of orders, or portions of orders, that</P> <P>(1) Involve Indian leases or Federal leases for minerals other than oil and gas; or</P> <P>(2) Relate to Federal oil and gas leases but do not involve a monetary or nonmonetary obligation.</P> </SECTION> <SECTION> <SECTNO>§ 4.903</SECTNO> <SUBJECT>What definitions apply to this subpart?</SUBJECT> <P>For the purposes of this subpart only:</P> <P> <E T="03">Assessment</E> means any fee or charge levied or imposed by the Secretary or a delegated State other than:</P> <P>(1) The principal amount of any royalty, minimum royalty, rental, bonus, net profit share or proceed of sale;</P> <P>(2) Any interest; or</P> <P>(3) Any civil or criminal penalty.</P> <P> <E T="03">Delegated State</E> means a State to which MMS has delegated authority to perform royalty management functions under an agreement or agreements under 30 CFR part 227.</P> <P> <E T="03">Designee</E> 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.</P> <P> <E T="03">IBLA</E> means the Interior Board of Land Appeals.</P> <P> <E T="03">Lease</E> means any agreement authorizing exploration for or extraction of any mineral, regardless of whether the instrument is expressly denominated as a “lease,” including any:</P> <P>(1) Contract;</P> <P>(2) Net profit share arrangement; or</P> <P>(3) Joint venture.</P> <P> <E T="03">Lessee</E> 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.</P> <P> <E T="03">Monetary obligation</E> 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. To determine the amount of any monetary obligation, for purposes of the default rule of decision in § 4.906 and 30 U.S.C. 1724(h):</P> <P>(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;</P> <P>(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 <PRTPAGE P="149"/>paragraph (1) of this definition, constitute separate monetary obligations; and</P> <P>(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.</P> <P> <E T="03">Nonmonetary obligation</E> 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.</P> <P> <E T="03">Notice of Order</E> 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.</P> <P> <E T="03">Obligation</E> means:</P> <P>(1) A lessee's, designee's or payor's duty to:</P> <P>(i) Deliver oil or gas royalty in kind; or</P> <P>(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</P> <P>(2) The Secretary's duty to:</P> <P>(i) Take oil or gas royalty in kind; or</P> <P>(ii) Make a lease-related payment, refund, offset, or credit, including royalty, minimum royalty, rental, bonus, net profit share, proceeds of sale, or interest.</P> <P> <E T="03">Order</E> 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.</P> <P>(1) Order includes but is not limited to the following:</P> <P>(i) An order to pay;</P> <P>(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.</P> <P>(2) Order does not include:</P> <P>(i) A non-binding request, information, or guidance, such as:</P> <P>(A) Advice or guidance on how to report or pay, including valuation determination, unless it contains mandatory or ordering language; and</P> <P>(B) A policy determination;</P> <P>(ii) A subpoena;</P> <P>(iii) An order to pay that MMS issues to a refiner or other person involved in disposition of royalty taken in kind; or</P> <P>(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.</P> <P> <E T="03">Party</E> 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.</P> <P> <E T="03">Payor</E> means any person responsible for reporting and paying royalties for Federal oil and gas leases for production before September 1, 1996.</P> </SECTION> <SECTION> <SECTNO>§ 4.904</SECTNO> <SUBJECT>When does my appeal commence and end?</SUBJECT> <P>For purposes of the period in which the Department must issue a final decision in your appeal under § 4.906:</P> <P>(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;</P> <P>(b) If you filed your Notice of Appeal or initial Statement of Reasons with 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;</P> <P>(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.</P> <P>(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 <PRTPAGE P="150"/>section, plus the number of days of any applicable time extensions under § 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.905</SECTNO> <SUBJECT>What if a due date falls on a day the Department or relevant office is not open for business?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.906</SECTNO> <SUBJECT>What if the Department does not issue a decision by the date my appeal ends?</SUBJECT> <P>(a) If the IBLA or an Assistant Secretary (or the Secretary or the Director of OHA) does not issue a final decision by the date an appeal ends under § 4.904(d), then under 30 U.S.C. 1724(h)(2), the Secretary will be deemed to have decided the appeal:</P> <P>(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;</P> <P>(2) In favor of the Secretary for any monetary obligation at issue in the appeal with a principal amount of $10,000 or more.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.907</SECTNO> <SUBJECT>What if an IBLA decision requires MMS or a delegated State to recalculate royalties or other payments?</SUBJECT> <P>(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).</P> <P>(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.</P> <P>(c) There is no further appeal within the Department from MMS's or the State's recalculation under paragraph (b) of this section.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="151"/> <SECTNO>§ 4.908</SECTNO> <SUBJECT>What is the administrative record for my appeal if it is deemed decided?</SUBJECT> <P>If your appeal is deemed decided under § 4.906, the record for your appeal consists of:</P> <P>(a) The record established in an appeal before the MMS Director;</P> <P>(b) Any additional correspondence or submissions to the MMS Director;</P> <P>(c) The MMS Director's decision in an appeal;</P> <P>(d) Any pleadings or submissions to the IBLA; and</P> <P>(e) Any IBLA orders and decisions.</P> </SECTION> <SECTION> <SECTNO>§ 4.909</SECTNO> <SUBJECT>How do I request an extension of time?</SUBJECT> <P>(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.</P> <P>(b) You must submit a written request for an extension of time before the required filing date.</P> <P>(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;</P> <P>(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.</P> <P>(c) If you are an appellant, in addition to meeting the requirements of paragraph (b) of this section, you must agree in writing in your request to extend the period in which the Department must issue a final decision in your appeal under § 4.906 by the amount of time for which you are requesting an extension.</P> <P>(d) If you are any other party, the IBLA may require you to submit a written agreement signed by the appellant to extend the period in which the Department must issue a final decision in the appeal under § 4.906 by the amount of time for which you are requesting an extension.</P> <P>(e) The IBLA has the discretion to decline any request for an extension of time.</P> <P>(f) You must serve your request on all parties to the appeal.</P> <CITA>[64 FR 26259, May 13, 1999, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> </SUBPART> <SUBPART> <RESERVED>Subpart K [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart L—Special Rules Applicable to Surface Coal Mining Hearings and Appeals</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 1275, 1293; 5 U.S.C. 301.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>43 FR 34386, Aug. 3, 1978, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">General Provisions</HD> <SECTION> <SECTNO>§ 4.1100</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in the regulations in this subpart, the term—</P> <P>(a) <E T="03">Act</E> means the Surface Mining Control and Reclamation Act of 1977, 91 Stat. 445 <E T="03">et seq.,</E> 30 U.S.C. 1201 <E T="03">et seq.</E>.</P> <P>(b) <E T="03">Administrative law judge</E> means an administrative law judge in the Hearings Division of the Office of Hearings and Appeals appointed under 5 U.S.C. 3105 (1970).</P> <P>(c) <E T="03">Board</E> means the Board of Land Appeals in the Office of Hearings and Appeals.</P> <P>(d) <E T="03">OHA</E> means the Office of Hearings and Appeals, Department of the Interior.</P> <P>(e) <E T="03">OSM</E> and <E T="03">OSMRE</E> mean the Office of Surface Mining Reclamation and Enforcement, Department of the Interior.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1101</SECTNO> <SUBJECT>Jurisdiction of the Board.</SUBJECT> <P>(a) The jurisdiction of the Board, as set forth in § 4.1(b)(3), and subject to §§ 4.21(d) and 4.5, includes the authority to exercise the final decisionmaking power of the Secretary under the act pertaining to—</P> <P>(1) Applications for review of decisions by OSM regarding determinations concerning permits for surface coal mining operations pursuant to section 514 of the act;<PRTPAGE P="152"/> </P> <P>(2) Petitions for review of proposed assessments of civil penalties issued by OSM pursuant to section 518 of the act;</P> <P>(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;</P> <P>(4) Proceedings for suspension or revocation of permits pursuant to section 521(a)(4) of the act;</P> <P>(5) Applications for review of alleged discriminatory acts filed pursuant to section 703 of the act;</P> <P>(6) Applications for temporary relief;</P> <P>(7) Petitions for award of costs and expenses under section 525(e) of the act;</P> <P>(8) Preliminary findings concerning a demonstrated pattern of willful violations under section 510(c) of the act;</P> <P>(9) Suspension or rescission of improvidently-issued permits;</P> <P>(10) Challenges to ownership or control listings or findings;</P> <P>(11) Determinations under 30 CFR part 761;</P> <P>(12) Appeals from orders or decisions of administrative law judges; and</P> <P>(13) All other appeals and review procedures under the act which are permitted by these regulations.</P> <P>(b) In performing its functions under paragraph (a) of this section, the Board is authorized to—</P> <P>(1) Order hearings; and</P> <P>(2) Issue orders to secure the just and prompt determination of all proceedings.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61509, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1102</SECTNO> <SUBJECT>Construction.</SUBJECT> <P>These rules shall be construed to achieve the just, timely, and inexpensive determination of all proceedings consistent with adequate consideration of the issues involved.</P> </SECTION> <SECTION> <SECTNO>§ 4.1103</SECTNO> <SUBJECT>Eligibility to practice.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1104</SECTNO> <SUBJECT>General rules relating to procedure and practice.</SUBJECT> <P>Proceedings in OHA under the act are subject to the general rules relating to procedures and practice in subpart B of this part.</P> </SECTION> <SECTION> <SECTNO>§ 4.1105</SECTNO> <SUBJECT>Parties.</SUBJECT> <P>(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—</P> <P>(1) In a civil penalty proceeding under § 4.1150, OSM, as represented by the Office of the Solicitor, Department of the Interior, and any person against whom a proposed assessment is made who files a petition;</P> <P>(2) In a review proceeding under §§ 4.1160 through 4.1171, 4.1180 through 4.1187, 4.1300 through 4.1309, 4.1350 through 4.1356, 4.1360 through 4.1369, 4.1370 through 4.1377, 4.1380 through 4.1387 or 4.1390 through 4.1394 of this part, OSM, as represented by the Office of the Solicitor, Department of the Interior, and—</P> <P>(i) If an applicant, operator, or permittee files an application or request for review, the applicant, operator, or permittee; and</P> <P>(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;</P> <P>(3) In a proceeding to suspend or revoke a permit under § 4.1190 <E T="03">et seq.</E> 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</P> <P>(4) In a discriminatory discharge proceeding under § 4.1200 <E T="03">et seq.</E> OSM, as represented by the Office of the Solicitor, Department of the Interior, any <PRTPAGE P="153"/>employee or any authorized representative of employees who files an application for review, and the alleged discriminating party, except where the applicant files a request for the scheduling of a hearing under § 4.1201(c) only such applicant and the alleged discriminating party.</P> <P>(5) In an appeal to the Board in accordance with 43 CFR 4.1280 through 4.1286 from a determination of the Director of OSM or his or her designee under 30 CFR 842.15(d) or a determination of an authorized representative under 30 CFR 843.12(i), the permittee of the operation that is the subject of the determination and any person whose interests may be adversely affected by the outcome on appeal and who participated before OSM. A person who wishes his or her identity kept confidential under 30 CFR 842.12(b) is responsible for maintaining that confidentiality when serving documents in accordance with § 4.1109.</P> <P>(b) Any other person claiming a right to participate as a party may seek leave to intervene in a proceeding by filing a petition to do so pursuant to § 4.1110.</P> <P>(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.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1106</SECTNO> <SUBJECT>Hearing sites.</SUBJECT> <P>Unless the act requires otherwise, hearings shall be held in a location established by the administrative law judge; however, the administrative law judge shall give due regard to the convenience of the parties or their representatives and witnesses.</P> </SECTION> <SECTION> <SECTNO>§ 4.1107</SECTNO> <SUBJECT>Filing of documents.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(e) Any person who has initiated a proceeding under these rules before the Hearings Division or filed a notice of appeal with the Board shall file proof of service with the same in the form of a return receipt where service is by registered or certified mail, or an acknowledgement by the party served or a verified return where service is made personally. A certificate of service shall accompany all other documents filed by a party in any proceeding.</P> <P>(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.</P> <P>(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.<PRTPAGE P="154"/> </P> <P>(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.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1108</SECTNO> <SUBJECT>Form of documents.</SUBJECT> <P>(a) Any document filed with OHA in any proceeding brought under the act shall be captioned with—</P> <P>(1) The names of the parties;</P> <P>(2) The name of the mine to which the document relates; and</P> <P>(3) If review is being sought under section 525 of the act, identification by number of any notice or order sought to be reviewed.</P> <P>(b) After a docket number has been assigned to the proceeding by OHA, the caption shall contain such docket number.</P> <P>(c) The caption may include other information appropriate for identification of the proceeding, including the permit number or OSM identification number.</P> <P>(d) Each document shall contain a title that identifies the contents of the document following the caption.</P> <P>(e) The original of any document filed with OHA shall be signed by the person submitting the document or by that person's attorney.</P> <P>(f) The address and telephone number of the person filing the document or that person's attorney shall appear beneath the signature.</P> </SECTION> <SECTION> <SECTNO>§ 4.1109</SECTNO> <SUBJECT>Service.</SUBJECT> <P>(a)(1) Any party initiating a proceeding in OHA under the Act shall, on the date of filing, simultaneously serve copies of the initiating documents on the officer in the Office of the Solicitor, U.S. Department of the Interior, representing OSMRE in the state in which the mining operation at issue is located, and on any other statutory parties specified under § 4.1105 of this part.</P> <P>(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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(iv) For mining operations in Arizona, California, and New Mexico, including mining operations located on Indian lands within those states except 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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="155"/> </P> <P>(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.</P> <P>(c) Service of copies of all documents is complete at the time of personal service or, if service is made by mail, upon receipt.</P> <P>(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.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1110</SECTNO> <SUBJECT>Intervention.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The administrative law judge or the Board shall grant intervention where the petitioner—</P> <P>(1) Had a statutory right to initiate the proceeding in which he wishes to intervene; or</P> <P>(2) Has an interest which is or may be adversely affected by the outcome of the proceeding.</P> <P>(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—</P> <P>(1) The nature of the issues;</P> <P>(2) The adequacy of representation of petitioner's interest which is provided by the existing parties to the proceeding;</P> <P>(3) The ability of the petitioner to present relevant evidence and argument; and</P> <P>(4) The effect of intervention on the agency's implementation of its statutory mandate.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1111</SECTNO> <SUBJECT>Voluntary dismissal.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1112</SECTNO> <SUBJECT>Motions.</SUBJECT> <P>(a) Except for oral motions made in proceedings on the record, or where the administrative law judge otherwise directs, each motion shall—</P> <P>(1) Be in writing; and</P> <P>(2) Contain a concise statement of supporting grounds.</P> <P>(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.</P> <P>(c) Failure to make a timely motion or to file a statement in response may be construed as a waiver of objection.</P> <P>(d) An administrative law judge or the Board shall rule on all motions as expeditiously as possible.</P> </SECTION> <SECTION> <SECTNO>§ 4.1113</SECTNO> <SUBJECT>Consolidation of proceedings.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1114</SECTNO> <SUBJECT>Advancement of proceedings.</SUBJECT> <P>(a) Except in expedited review proceedings under § 4.1180, or in temporary relief proceedings under § 4.1266, at any time after commencement of a proceeding, any party may move to advance the scheduling of a proceeding.</P> <P>(b) Except as otherwise directed by the administrative law judge or the <PRTPAGE P="156"/>Board, any party filing a motion under this section shall—</P> <P>(1) Make the motion in writing;</P> <P>(2) Describe the exigent circumstances justifying advancement;</P> <P>(3) Describe the irreparable harm that would result if the motion is not granted; and</P> <P>(4) Incorporate in the motion affidavits to support any representations of fact.</P> <P>(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.</P> <P>(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.</P> <P>(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: <E T="03">Provided,</E> 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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1115</SECTNO> <SUBJECT>Waiver of right to hearing.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1116</SECTNO> <SUBJECT>Status of notices of violation and orders of cessation pending review by the Office of Hearings and Appeals.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Evidentiary Hearings</HD> <SECTION> <SECTNO>§ 4.1120</SECTNO> <SUBJECT>Presiding officers.</SUBJECT> <P>An administrative law judge in the Office of Hearings and Appeals shall preside over any hearing required by the act to be conducted pursuant to 5 U.S.C. 554 (1970).</P> </SECTION> <SECTION> <SECTNO>§ 4.1121</SECTNO> <SUBJECT>Powers of administrative law judges.</SUBJECT> <P>(a) Under the regulations of this part, an administrative law judge may—</P> <P>(1) Administer oaths and affirmations;</P> <P>(2) Issue subpoenas;</P> <P>(3) Issue appropriate orders relating to discovery;</P> <P>(4) Rule on procedural requests or similar matters;</P> <P>(5) Hold conferences for settlement or simplification of the issues;</P> <P>(6) Regulate the course of the hearing;</P> <P>(7) Rule on offers of proof and receive relevant evidence;</P> <P>(8) Take other actions authorized by this part, by 5 U.S.C. 556 (1970), or by the act; and</P> <P>(9) Make or recommend decisions in accordance with 5 U.S.C. 557 (1970).</P> <P>(b) An administrative law judge may order a prehearing conference—</P> <P>(1) To simplify and clarify issues;</P> <P>(2) To receive stipulations and admissions;</P> <P>(3) To explore the possibility of agreement disposing of any or all of the issues in dispute; and</P> <P>(4) For such other purposes as may be appropriate.</P> <P>(c) Except as otherwise provided in these regulations, the jurisdiction of <PRTPAGE P="157"/>an administrative law judge shall terminate upon—</P> <P>(1) The filing of a notice of appeal from an initial decision or other order dispositive of the proceeding;</P> <P>(2) The issuance of an order of the Board granting a petition for review; or</P> <P>(3) The expiration of the time period within which a petition for review or an appeal to the Board may be filed.</P> </SECTION> <SECTION> <SECTNO>§ 4.1122</SECTNO> <SUBJECT>Conduct of administrative law judges.</SUBJECT> <P>Administrative law judges shall adhere to the “Code of Judicial Conduct.”</P> </SECTION> <SECTION> <SECTNO>§ 4.1123</SECTNO> <SUBJECT>Notice of hearing.</SUBJECT> <P>(a) An administrative law judge shall give notice to the parties of the time, place and nature of any hearing.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1124</SECTNO> <SUBJECT>Certification of interlocutory ruling.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1125</SECTNO> <SUBJECT>Summary decision.</SUBJECT> <P>(a) At any time after a proceeding has begun, a party may move for summary decision of the whole or part of a case.</P> <P>(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.</P> <P>(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—</P> <P>(1) There is no disputed issue as to any material fact; and</P> <P>(2) The moving party is entitled to summary decision as a matter of law.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1126</SECTNO> <SUBJECT>Proposed findings of fact and conclusions of law.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1127</SECTNO> <SUBJECT>Initial orders and decisions.</SUBJECT> <P>An initial order or decision disposing of a case shall incorporate—</P> <P>(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</P> <P>(b) An order granting or denying relief.</P> </SECTION> <SECTION> <SECTNO>§ 4.1128</SECTNO> <SUBJECT>Effect of initial order or decision.</SUBJECT> <P>An initial order or decision shall become final if that order or decision is not timely appealed to the Board under § 4.1270 or § 4.1271.</P> </SECTION> <SECTION> <SECTNO>§ 4.1129</SECTNO> <SUBJECT>Certification of record.</SUBJECT> <P>Except in expedited review proceedings under § 4.1180, within 5 days after an initial decision has been rendered, the administrative law judge shall certify the official record of the proceedings, including all exhibits, and transmit the official record for filing in <PRTPAGE P="158"/>the Hearings Division, Office of Hearings and Appeals, Arlington, Va.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Discovery</HD> <SECTION> <SECTNO>§ 4.1130</SECTNO> <SUBJECT>Discovery methods.</SUBJECT> <P>Parties may obtain discovery by one or more of the following methods—</P> <P>(a) Depositions upon oral examination or upon written interrogatories;</P> <P>(b) Written interrogatories;</P> <P>(c) Production of documents or things or permission to enter upon land or other property, for inspection and other purposes; and</P> <P>(d) Requests for admission.</P> </SECTION> <SECTION> <SECTNO>§ 4.1131</SECTNO> <SUBJECT>Time for discovery.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1132</SECTNO> <SUBJECT>Scope of discovery.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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—</P> <P>(1) The discovery not be had;</P> <P>(2) The discovery may be had only on specified terms and conditions, including a designation of the time or place;</P> <P>(3) The discovery may be had only by a method of discovery other than that selected by the party seeking discovery;</P> <P>(4) Certain matters not relevant may not be inquired into, or that the scope of discovery be limited to certain matters;</P> <P>(5) Discovery be conducted with no one present except persons designated by the administrative law judge; or</P> <P>(6) A trade secret or other confidential research, development or commercial information may not be disclosed or be disclosed only in a designated way.</P> </SECTION> <SECTION> <SECTNO>§ 4.1133</SECTNO> <SUBJECT>Sequence and timing of discovery.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1134</SECTNO> <SUBJECT>Supplementation of responses.</SUBJECT> <P>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—</P> <P>(a) A party is under a duty to supplement timely his response with respect to any question directly addressed to—<PRTPAGE P="159"/> </P> <P>(1) The identity and location of persons having knowledge of discoverable matters; and</P> <P>(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.</P> <P>(b) A party is under a duty to amend timely a prior response if he later obtains information upon the basis of which—</P> <P>(1) He knows the response was incorrect when made; or</P> <P>(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.</P> <P>(c) A duty to supplement responses may be imposed by order of the administrative law judge or agreement of the parties.</P> </SECTION> <SECTION> <SECTNO>§ 4.1135</SECTNO> <SUBJECT>Motion to compel discovery.</SUBJECT> <P>(a) If a deponent fails to answer a question propounded, or a party upon whom a request is made pursuant to § 4.1140, or a party upon whom answers to interrogatories are served fails to adequately respond or objects to the request, or any part thereof, or fails to permit inspection as requested, the discovering party may move the administrative law judge for an order compelling a response or inspection in accordance with the request.</P> <P>(b) The motion shall set forth—</P> <P>(1) The nature of the questions or request;</P> <P>(2) The response or objection of the party upon whom the request was served; and</P> <P>(3) Arguments in support of the motion.</P> <P>(c) For purposes of this section, an evasive answer or incomplete answer or response shall be treated as a failure to answer or respond.</P> <P>(d) In ruling on a motion made pursuant to this section, the administrative law judge may make such a protective order as he is authorized to make on a motion made pursuant to § 4.1132(d).</P> </SECTION> <SECTION> <SECTNO>§ 4.1136</SECTNO> <SUBJECT>Failure to comply with orders compelling discovery.</SUBJECT> <P>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—</P> <P>(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;</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1137</SECTNO> <SUBJECT>Depositions upon oral examination or upon written questions.</SUBJECT> <P>(a) Any party desiring to take the testimony of any other party or other person by deposition upon oral examination or written questions shall, without leave of the administrative law judge, give reasonable notice in writing to every other party, to the person to be examined and to the administrative law judge of—</P> <P>(1) The proposed time and place of taking the deposition;</P> <P>(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;</P> <P>(3) The matter upon which each person will be examined; and</P> <P>(4) The name or descriptive title and address of the officer before whom the deposition is to be taken.</P> <P>(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.</P> <P>(c) The actual taking of the deposition shall proceed as follows—</P> <P>(1) The deposition shall be on the record;<PRTPAGE P="160"/> </P> <P>(2) The officer before whom the deposition is to be taken shall put the witness on oath or affirmation;</P> <P>(3) Examination and cross-examination shall proceed as at a hearing;</P> <P>(4) All objections made at the time of the examination shall be noted by the officer upon the deposition;</P> <P>(5) The officer shall not rule on objections to the evidence, but evidence objected to shall be taken subject to the objections.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(h) The deponent may be accompanied, represented, and advised by legal counsel.</P> </SECTION> <SECTION> <SECTNO>§ 4.1138</SECTNO> <SUBJECT>Use of depositions.</SUBJECT> <P>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—</P> <P>(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness;</P> <P>(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</P> <P>(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—</P> <P>(1) The witness is dead;</P> <P>(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;</P> <P>(3) The witness is unable to attend or testify because of age, illness, infirmity, or imprisonment;</P> <P>(4) The party offering the deposition has been unable to procure the attendance of the witness by subpoena; or</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1139</SECTNO> <SUBJECT>Written interrogatories to parties.</SUBJECT> <P>(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.</P> <P>(b) Each interrogatory shall be answered separately and fully in writing under oath or affirmation, unless it is <PRTPAGE P="161"/>objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answer and objections shall be signed by the person making them. The party upon whom the interrogatories were served shall serve a copy of the answers and objections upon all parties to the proceeding within 30 days after service of the interrogatories, or within such shorter or longer period as the administrative law judge may allow.</P> <P>(c) Interrogatories may relate to any matters which can be inquired into under § 4.1132. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the administrative law judge may order that such an interrogatory need not be answered until after designated discovery has been completed or until a prehearing conference or other later time.</P> </SECTION> <SECTION> <SECTNO>§ 4.1140</SECTNO> <SUBJECT>Production of documents and things and entry upon land for inspection and other purposes.</SUBJECT> <P>(a) Any party may serve on any other party a request to—</P> <P>(1) Produce and permit the party making the request, or a person acting on his behalf, to inspect and copy any designated documents, or to inspect and copy, test, or sample any tangible things within the scope of § 4.1132 and which are in the possession, custody, or control of the party upon whom the request is served; or</P> <P>(2) Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property (including the air, water, and soil) or any designated object or operation thereon, within the scope of § 4.1132.</P> <P>(b) The request may be served on any party without leave of the administrative law judge.</P> <P>(c) The request shall—</P> <P>(1) Set forth the items to be inspected either by individual item or by category;</P> <P>(2) Describe each item or category with reasonable particularity; and</P> <P>(3) Specify a reasonable time, place, and manner of making the inspection and performing the related acts.</P> <P>(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.</P> <P>(e) The response shall state, with respect to each item or category—</P> <P>(1) That inspection and related activities will be permitted as requested; or</P> <P>(2) That objection is made in whole or in part, in which case the reasons for objection shall be stated.</P> </SECTION> <SECTION> <SECTNO>§ 4.1141</SECTNO> <SUBJECT>Admissions.</SUBJECT> <P>(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.</P> <P>(b) Each matter of which an admission is requested is admitted unless, within 30 days after service of the request or such shorter or longer time as the administrative law judge may allow, the party to whom the request is directed serves on the requesting party—</P> <P>(1) A sworn statement denying specifically the relevant matters of which an admission is requested;</P> <P>(2) A sworn statement setting forth in detail the reasons why he can neither truthfully admit nor deny them; or</P> <P>(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.</P> <P>(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.</P> <P>(d) The party who has requested the admissions may move to determine the <PRTPAGE P="162"/>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.</P> <P>(e) Any matter admitted under this section is conclusively established unless the administrative law judge on motion permits withdrawal or amendment of the admission.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Petitions for Review of Proposed Assessments of Civil Penalties</HD> <SECTION> <SECTNO>§ 4.1150</SECTNO> <SUBJECT>Who may file.</SUBJECT> <P>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.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1151</SECTNO> <SUBJECT>Time for filing.</SUBJECT> <P>(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</P> <P>(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.</P> <P>(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.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 51 FR 16321, May 2, 1986; 59 FR 1488, Jan. 11, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1152</SECTNO> <SUBJECT>Contents of petition; payment required.</SUBJECT> <P>(a) The petition shall include—</P> <P>(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;</P> <P>(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;</P> <P>(3) Identification by number of all violations being contested;</P> <P>(4) The identifying number of the cashier's check, certified check, bank draft, personal check, or bank money order accompanying the petition; and</P> <P>(5) A request for a hearing site.</P> <P>(b) The petition shall be accompanied by—</P> <P>(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</P> <P>(2) On the face of the payment an identification by number of the violations for which payment is being tendered.</P> <P>(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.</P> <P>(d) No extension of time will be granted for full payment of the proposed assessment. If payment is not <PRTPAGE P="163"/>made within the time period provided in § 4.1151 (a) or (b), the appropriateness of the amount of the penalty, and the fact of the violation if there is no proceeding pending under section 525 of the Act of review the notice of violation or cessation order involved, shall be deemed admitted, the petition shall be dismissed, and the civil penalty assessed shall become a final order of the Secretary.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 51 FR 16321, May 2, 1986; 59 FR 1488, Jan. 11, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1153</SECTNO> <SUBJECT>Answer.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1154</SECTNO> <SUBJECT>Review of waiver determination.</SUBJECT> <P>(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.</P> <P>(b) The motion shall contain a statement indicating all alleged facts relevant to the granting or denial of the waiver;</P> <P>(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.</P> <P>(d) If the administrative law judge finds that the Director of OSM abused his discretion in granting or denying the waiver, the administrative law judge shall hold the hearing on the petition for review of the proposed assessment required by section 518(b) of the act and make a determination pursuant to § 4.1157.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1488, Jan. 11, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1155</SECTNO> <SUBJECT>Burdens of proof in civil penalty proceedings.</SUBJECT> <P>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.</P> <CITA>[53 FR 47694, Nov. 25, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1156</SECTNO> <SUBJECT>Summary disposition.</SUBJECT> <P>(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—</P> <P>(1) That person should not be deemed to have waived his right to a hearing; and</P> <P>(2) The proceedings should not be dismissed and referred to the assessment officer.</P> <P>(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.</P> <P>(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—</P> <P>(1) That each violation listed in the notice of violation or order occurred; and</P> <P>(2) The truth of any facts alleged in such notice or order.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="164"/> <SECTNO>§ 4.1157</SECTNO> <SUBJECT>Determination by administrative law judge.</SUBJECT> <P>(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.</P> <P>(b) If the administrative law judge finds that—</P> <P>(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</P> <P>(2) No violation occurred, he shall issue an order that the proposed assessment be returned to the petitioner.</P> <P>(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.</P> <P>(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.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1488, Jan. 11, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1158</SECTNO> <SUBJECT>Appeals.</SUBJECT> <P>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 § 4.1270.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Review of Section 521 Notices of Violation and Orders of Cessation</HD> <SECTION> <SECTNO>§ 4.1160</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>These regulations govern applications for review of—</P> <P>(a) Notices of violation or the modification, vacation, or termination of a notice of violation under section 521(a)(3) of the Act; and</P> <P>(b) Orders of cessation which are not subject to expedited review under § 4.1180 or the modification, vacation, or termination of such an order of cessation under section 521(a)(2) or section 521(a)(3).</P> </SECTION> <SECTION> <SECTNO>§ 4.1161</SECTNO> <SUBJECT>Who may file.</SUBJECT> <P>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 § 4.1160 may file an application for review with the Hearings Division, OHA, 801 North Quincy Street, Arlington, Va. 22203.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1162</SECTNO> <SUBJECT>Time for filing.</SUBJECT> <P>(a) Any person filing an application for review under § 4.1160 <E T="03">et seq.</E> 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.</P> <P>(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 <PRTPAGE P="165"/>provided in paragraph (a) of this section, the application shall be dismissed.</P> <CITA>[51 FR 16321, May 2, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1163</SECTNO> <SUBJECT>Effect of failure to file.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1164</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <P>Any person filing an application for review shall incorporate in that application regarding each claim for relief—</P> <P>(a) A statement of facts entitling that person to administrative relief;</P> <P>(b) A request for specific relief;</P> <P>(c) A copy of any notice or order sought to be reviewed;</P> <P>(d) A statement as to whether the person requests or waives the opportunity for an evidentiary hearing; and</P> <P>(e) Any other relevant information.</P> </SECTION> <SECTION> <SECTNO>§ 4.1165</SECTNO> <SUBJECT>Answer.</SUBJECT> <P>(a) Where an application for review is filed by a permittee, OSM as well as any other person granted leave to intervene pursuant to § 4.1110 shall file an answer within 20 days of service of a copy of such application.</P> <P>(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—</P> <P>(1) OSM;</P> <P>(2) The permittee; or</P> <P>(3) Any other person granted leave to intervene pursuant to § 4.1110.</P> </SECTION> <SECTION> <SECTNO>§ 4.1166</SECTNO> <SUBJECT>Contents of answer.</SUBJECT> <P>An answer to an application for review shall incorporate—</P> <P>(a) A statement specifically admitting or denying the alleged facts stated by the applicant;</P> <P>(b) A statement of any other relevant facts;</P> <P>(c) A statement whether an evidentiary hearing is requested or waived; and</P> <P>(d) Any other relevant information.</P> </SECTION> <SECTION> <SECTNO>§ 4.1167</SECTNO> <SUBJECT>Notice of hearing.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1168</SECTNO> <SUBJECT>Amendments to pleadings.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1169</SECTNO> <SUBJECT>Failure to state a claim.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1170</SECTNO> <SUBJECT>Related notices or orders.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) If an applicant for review desires to challenge any subsequent notice or order, the applicant must file a separate application for review.</P> <P>(d) Applications for review of related notices or orders are subject to consolidation.</P> </SECTION> <SECTION> <SECTNO>§ 4.1171</SECTNO> <SUBJECT>Burden of proof in review of section 521 notices or orders.</SUBJECT> <P>(a) In review of section 521 notices of violation or orders of cessation or the modification, vacation, or termination thereof, including expedited review <PRTPAGE P="166"/>under § 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.</P> <P>(b) The ultimate burden of persuasion shall rest with the applicant for review.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Expedited Review of Section <E T="01">521(a)(2)</E> or <E T="01">521(a)(3)</E> Orders of Cessation</HD> <SECTION> <SECTNO>§ 4.1180</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The purpose of §§ 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 § 4.1164, and the procedures in § 4.1160 <E T="03">et seq.</E> shall apply. If there is a waiver as set forth in § 4.1186, the final administrative decision shall be issued within 120 days of the filing of the application.</P> </SECTION> <SECTION> <SECTNO>§ 4.1181</SECTNO> <SUBJECT>Who may file.</SUBJECT> <P>(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—</P> <P>(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</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1182</SECTNO> <SUBJECT>Where to file.</SUBJECT> <P>The application shall be filed in the Hearings Division, 801 North Quincy Street, OHA, Arlington, Va. 22203.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1183</SECTNO> <SUBJECT>Time for filing.</SUBJECT> <P>(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.</P> <P>(b) Any person filing an application for review under § 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1184</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <P>(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—</P> <P>(1) A statement of facts entitling that person to administrative relief;</P> <P>(2) A request for specific relief;</P> <P>(3) A specific statement which delineates each issue to be addressed by the applicant during the expedited proceeding;</P> <P>(4) A copy of the order sought to be reviewed;</P> <P>(5) A list identifying each of applicant's witnesses by name, address, and place of employment, including expert witnesses and the area of expertise to which they will address themselves at the hearing, and a detailed summary of their testimony;</P> <P>(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</P> <P>(7) Any other relevant information.</P> <P>(b) If any applicant fails to comply with all the requirements of § 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 <PRTPAGE P="167"/>perfected. Failure to timely comply with the administrative law judge's order shall constitute a waiver of the 30-day decision.</P> </SECTION> <SECTION> <SECTNO>§ 4.1185</SECTNO> <SUBJECT>Computation of time for decision.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1186</SECTNO> <SUBJECT>Waiver of the 30-day decision requirement.</SUBJECT> <P>(a) Any person qualified to receive a 30-day decision may waive that right—</P> <P>(1) By filing an application pursuant to § 4.1160-71;</P> <P>(2) By failing to comply with all the requirements of § 4.1184(a); or</P> <P>(3) In accordance with § 4.1187(j).</P> <P>(b) Any person qualified to receive a 30-day decision shall waive that right—</P> <P>(1) By obtaining temporary relief pursuant to section 525(c) or section 526(c) of the act;</P> <P>(2) By failing to perfect an application pursuant to § 4.1184(b); or</P> <P>(3) In accordance with § 4.1187(i).</P> </SECTION> <SECTION> <SECTNO>§ 4.1187</SECTNO> <SUBJECT>Procedure if 30-day decision requirement is not waived.</SUBJECT> <P>If the applicant does not waive the 30-day decision requirement of section 525(b) of the act, the following special rules shall apply—</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 § 4.1184.</P> <P>(f) If any party desires to appeal to the Board, such party shall—</P> <P>(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</P> <P>(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.</P> <P>(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 § 4.1184.</P> <P>(h) If all parties waive the opportunity for a hearing and the administrative law judge determines that a <PRTPAGE P="168"/>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 § 4.1184.</P> <P>(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 § 4.1187(a), such action shall constitute a waiver of the 30-day requirement of section 525(b) of the act.</P> <P>(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 § 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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Proceedings for Suspension or Revocation of Permits Under Section <E T="01">521(a)(4)</E> of the Act</HD> <SECTION> <SECTNO>§ 4.1190</SECTNO> <SUBJECT>Initiation of proceedings.</SUBJECT> <P>(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.</P> <P>(b) A show cause order filed with OHA shall set forth—</P> <P>(1) A list of the unwarranted or willful violations which contribute to a pattern of violations;</P> <P>(2) A copy of each order or notice which contains one or more of the violations listed as contributing to a pattern of violations;</P> <P>(3) The basis for determining the existence of a pattern or violations; and</P> <P>(4) Recommendations whether the permit should be suspended or revoked, including the length and terms of a suspension.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 67 FR 61510, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1191</SECTNO> <SUBJECT>Answer.</SUBJECT> <P>The permittee shall have 30 days from receipt of the order within which to file an answer with the Hearings Division, OHA, Arlington, Va.</P> </SECTION> <SECTION> <SECTNO>§ 4.1192</SECTNO> <SUBJECT>Contents of answer.</SUBJECT> <P>The permittee's answer to a show cause order shall contain a statement setting forth—</P> <P>(a) The reasons in detail why a pattern of violations does not exist or has not existed, including all reasons for contesting—</P> <P>(1) The fact of any of the violations alleged by OSM as constituting a pattern of violations;</P> <P>(2) The willfulness of such violations; or</P> <P>(3) Whether such violations were caused by the unwarranted failure of the permittee;</P> <P>(b) All mitigating factors the permittee believes exist in determining the terms of the revocation or the length and terms of the suspension;</P> <P>(c) Any other alleged relevant facts; and</P> <P>(d) Whether a hearing on the show cause order is desired.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61510, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <PRTPAGE P="169"/> <SECTNO>§ 4.1193</SECTNO> <SUBJECT>Notice of hearing.</SUBJECT> <P>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.</P> <CITA>[67 FR 61510, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1194</SECTNO> <SUBJECT>Burden of proof in suspension or revocation proceedings.</SUBJECT> <P>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.</P> <CITA>[43 FR 34386, Aug. 3, 1978. Redesignated at 67 FR 61510, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1195</SECTNO> <SUBJECT>Determination by the administrative law judge.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[43 FR 34386, Aug. 3, 1978. Redesignated and amended at 67 FR 61510, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1196</SECTNO> <SUBJECT>Summary disposition.</SUBJECT> <P>(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—</P> <P>(1) Each violation listed in the order occurred;</P> <P>(2) Such violations were caused by the permittee's unwarranted failure or were willfully caused; and</P> <P>(3) A pattern of violations exists.</P> <P>(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.</P> <CITA>[43 FR 34386, Aug. 3, 1978. Redesignated at 67 FR 61510, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1197</SECTNO> <SUBJECT>Appeals.</SUBJECT> <P>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 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.</P> <CITA>[43 FR 34386, Aug. 3, 1978. Redesignated at 67 FR 61510, Oct. 1, 2002]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="170"/> <HD SOURCE="HED">Applications for Review of Alleged Discriminatory Acts Under Section 703 of the Act</HD> <SECTION> <SECTNO>§ 4.1200</SECTNO> <SUBJECT>Filing of the application for review with the Office of Hearings and Appeals.</SUBJECT> <P>(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.</P> <P>(b) The application for review, as filed in the Hearings Division, OHA, shall be held in suspense until one of the following takes place—</P> <P>(1) A request for temporary relief is filed pursuant to § 4.1203;</P> <P>(2) A request is made by OSM for the scheduling of a hearing pursuant to 30 CFR 865.14(a);</P> <P>(3) A request is made by the applicant for the scheduling of a hearing pursuant to 30 CFR 865.14(a);</P> <P>(4) A request is made by the applicant for the scheduling of a hearing pursuant to 30 CFR 865.14(b);</P> <P>(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 discriminatory acts and there has been compliance with such agreement.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 67 FR 61510, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1201</SECTNO> <SUBJECT>Request for scheduling of a hearing.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 § 4.1110.</P> </SECTION> <SECTION> <SECTNO>§ 4.1202</SECTNO> <SUBJECT>Response to request for the scheduling of a hearing.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1203</SECTNO> <SUBJECT>Application for temporary relief from alleged discriminatory acts.</SUBJECT> <P>(a) On or after 10 days from the filing of an application for review under this part, any party may file an application for temporary relief from alleged discriminatory acts.</P> <P>(b) The application shall be filed in the Hearings Division, OHA, Arlington, Va.</P> <P>(c) The application shall include—<PRTPAGE P="171"/> </P> <P>(1) A detailed written statement setting forth the reasons why relief should be granted;</P> <P>(2) A showing that the complaint of discrimination was not frivolously brought;</P> <P>(3) A description of any exigent circumstances justifying temporary relief; and</P> <P>(4) A statement of the specific relief requested.</P> <P>(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.</P> <P>(e) The administrative law judge may convene a hearing on any issue raised by the application if he deems it appropriate.</P> <P>(f) The administrative law judge shall expeditiously issue an order or decision granting or denying such relief.</P> <P>(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 discriminatory - acts to be advanced and consolidated with the hearing on the application for temporary relief.</P> </SECTION> <SECTION> <SECTNO>§ 4.1204</SECTNO> <SUBJECT>Determination by administrative law judge.</SUBJECT> <P>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—</P> <P>(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</P> <P>(b) All other relief which the administrative law judge deems appropriate to abate the violation or to prevent recurrence of discrimination.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61510, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1205</SECTNO> <SUBJECT>Appeals.</SUBJECT> <P>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 § 4.1271 <E T="03">et seq.</E> </P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Applications for Temporary Relief</HD> <SECTION> <SECTNO>§ 4.1260</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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 § 4.1266. Procedures for seeking temporary relief from alleged discrimina- tory acts are covered in § 4.1203.</P> </SECTION> <SECTION> <SECTNO>§ 4.1261</SECTNO> <SUBJECT>When to file.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1262</SECTNO> <SUBJECT>Where to file.</SUBJECT> <P>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.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1263</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <P>The application shall include—</P> <P>(a) A detailed written statement setting forth the reasons why relief should be granted;</P> <P>(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;</P> <P>(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;</P> <P>(d) If the application relates to an order of cessation issued pursuant to section 521(a)(2) or section 521(a)(3) of 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</P> <P>(e) A statement of the specific relief requested.</P> </SECTION> <SECTION> <PRTPAGE P="172"/> <SECTNO>§ 4.1264</SECTNO> <SUBJECT>Response to application.</SUBJECT> <P>(a) Except as provided in § 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.</P> <P>(b) Except as provided in § 4.1266(b), the administrative law judge may hold a hearing on any issue raised by the application if he deems it appropriate.</P> </SECTION> <SECTION> <SECTNO>§ 4.1265</SECTNO> <SUBJECT>Determination on application concerning a notice of violation issued pursuant to section 521(a)(3) of the act.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1266</SECTNO> <SUBJECT>Determination on application concerning an order of cessation.</SUBJECT> <P>(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.</P> <P>(b) If there is no waiver of the 5-day requirement of section 525(c) of the act, the following special rules shall apply—</P> <P>(1) The 5-day time for decision shall not begin to run until the application is filed pursuant to § 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 § 4.1109 for addresses);</P> <P>(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: </P> <EXTRACT> <FP SOURCE="FP-1">Albuquerque Field Office (serving Arizona, California, and New Mexico) (505) 248-5070.</FP> <FP SOURCE="FP-1">Big Stone Gap Field Office (serving Virginia) (276) 523-4303.</FP> <FP SOURCE="FP-1">Birmingham Field Office (serving Alabama and Mississippi) (205) 290-7282 (ext. 16).</FP> <FP SOURCE="FP-1">Casper Field Office (serving Idaho, Montana, North Dakota, South Dakota, and Wyoming) (307) 261-6550.</FP> <FP SOURCE="FP-1">Charleston Field Office (serving West Virginia) (304) 347-7158.</FP> <FP SOURCE="FP-1">Columbus Team Office (serving Maryland, Michigan, and Ohio) (412) 937-2153.</FP> <FP SOURCE="FP-1">Harrisburg Field Office (serving Massachusetts, Pennsylvania, and Rhode Island) (717) 782-4036.</FP> <FP SOURCE="FP-1">Knoxville Field Office (serving Georgia, Tennessee, and North Carolina) (865) 545-4103 (ext. 186).</FP> <FP SOURCE="FP-1">Lexington Field Office (serving Kentucky) (859) 260-8402.</FP> <FP SOURCE="FP-1">Mid-Continent Regional Coordinating Center (serving Iowa, Kansas, and Missouri) (618) 463-6460.</FP> <FP SOURCE="FP-1">Olympia Office (serving Washington) (360) 753-9538.</FP> <FP SOURCE="FP-1">Tulsa Field Office (serving Arkansas, Louisiana, Oklahoma, and Texas) (918) 581-6431 (ext. 23).</FP> <FP SOURCE="FP-1">Western Regional Coordinating Center (serving Alaska, Colorado, Oregon, and Utah) (303) 844-1400 (ext. 1424).</FP> </EXTRACT> <P>(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.</P> <P>(4) In addition to the service requirements of § 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 filed, the contents of the application, and with whom the application was filed.</P> <P>(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 <PRTPAGE P="173"/>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.</P> <P>(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.</P> <P>(7) If a hearing is held—</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 § 4.1263 such action shall constitute a waiver of the 5-day requirement of section 525(c) of the act.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1267</SECTNO> <SUBJECT>Appeals.</SUBJECT> <P>(a) Any party desiring to appeal a decision of an administrative law judge granting temporary relief may appeal to the Board.</P> <P>(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.</P> <P>(c) The Board shall issue an expedited briefing schedule and shall issue a decision on the appeal expeditiously.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 45 FR 50753, July 31, 1980]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeals to the Board From Decisions or Orders of Administrative Law Judges</HD> <SECTION> <SECTNO>§ 4.1270</SECTNO> <SUBJECT>Petition for discretionary review of a proposed civil penalty.</SUBJECT> <P>(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 § 4.1150.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(f) If the petition is granted, the rules in §§ 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 have the same authority to waive the civil penalty formula as that granted to administrative law judges in § 4.1157(b)(1). If the petition is denied, the decision of the administrative law judge shall be final for the Department, subject to § 4.5.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61511, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <PRTPAGE P="174"/> <SECTNO>§ 4.1271</SECTNO> <SUBJECT>Notice of appeal.</SUBJECT> <P>(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 §§ 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.</P> <P>(b) Except in an expedited review proceeding under § 4.1180, or in a suspension or revocation proceeding under § 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.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1489, Jan. 11, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1272</SECTNO> <SUBJECT>Interlocutory appeals.</SUBJECT> <P>(a) If a party has sought certification under § 4.1124, that party may petition the Board for permission to appeal from an interlocutory ruling by an administrative law judge.</P> <P>(b) A petition under this section shall be in writing and not exceed 10 pages in length.</P> <P>(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.</P> <P>(d) Upon granting a petition under this section, the Board may dispense with briefing or issue a briefing schedule.</P> <P>(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.</P> <P>(f) In deciding an interlocutory appeal, the Board shall confine itself to the issue presented on appeal.</P> <P>(g) The Board shall promptly decide appeals under this section.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1273</SECTNO> <SUBJECT>Briefs.</SUBJECT> <P>(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 § 4.1270 or a notice of appeal is filed.</P> <P>(b) If any appellant fails to file a timely brief, an appeal under this part may be subject to summary dismissal.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(f) Further briefing may take place by permission of the Board.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1274</SECTNO> <SUBJECT>Remand.</SUBJECT> <P>The Board may remand cases if further proceedings are required.</P> </SECTION> <SECTION> <SECTNO>§ 4.1275</SECTNO> <SUBJECT>Final decisions.</SUBJECT> <P>The Board may adopt, affirm, modify, set aside, or reverse any finding of fact, conclusion of law, or order of the administrative law judge.</P> </SECTION> <SECTION> <SECTNO>§ 4.1276</SECTNO> <SUBJECT>Reconsideration.</SUBJECT> <P>(a) A party may move for reconsideration under § 4.21(d); however, the motion shall be filed with the Board within 30 days of the date of the decision.</P> <P>(b) The filing of a petition for reconsideration shall not stay the effect of any decision or order and shall not affect the finality of any decision or order for purposes of judicial review.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61511, Oct. 1, 2002]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="175"/> <HD SOURCE="HED">Appeals to the Board From Decisions of the Office of Surface Mining</HD> <SECTION> <SECTNO>§ 4.1280</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1281</SECTNO> <SUBJECT>Who may appeal.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1282</SECTNO> <SUBJECT>Appeals; how taken.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 49 FR 7565, Mar. 1, 1984; 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1283</SECTNO> <SUBJECT>Service.</SUBJECT> <P>(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.</P> <P>(b) Failure to serve may subject the appeal to summary dismissal pursuant to § 4.1285.</P> </SECTION> <SECTION> <SECTNO>§ 4.1284</SECTNO> <SUBJECT>Answer.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1285</SECTNO> <SUBJECT>Summary dismissal.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1286</SECTNO> <SUBJECT>Request for hearings.</SUBJECT> <P>(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 § 4.1283.</P> <P>(b) The allowance of a request for a 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 shall specify the issues upon which the hearing is to be held.</P> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="176"/> <HD SOURCE="HED">Petitions for Award of Costs and Expenses Under Section <E T="01">525(e)</E> of the Act</HD> <SECTION> <SECTNO>§ 4.1290</SECTNO> <SUBJECT>Who may file.</SUBJECT> <P>(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—</P> <P>(1) A final order being issued by an administrative law judge; or</P> <P>(2) A final order being issued by the Board.</P> <P>(b) [Reserved]</P> </SECTION> <SECTION> <SECTNO>§ 4.1291</SECTNO> <SUBJECT>Where to file; time for filing.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1292</SECTNO> <SUBJECT>Contents of petition.</SUBJECT> <P>(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—</P> <P>(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;</P> <P>(2) Receipts or other evidence of such costs and expenses; and</P> <P>(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.</P> <P>(b) [Reserved]</P> </SECTION> <SECTION> <SECTNO>§ 4.1293</SECTNO> <SUBJECT>Answer.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1294</SECTNO> <SUBJECT>Who may receive an award.</SUBJECT> <P>Appropriate costs and expenses including attorneys' fees may be awarded—</P> <P>(a) To any person from the permittee, if—</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(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</P> <P>(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.</P> <P>(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 <PRTPAGE P="177"/>of harassing or embarrassing the Government.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 50 FR 47224, Nov. 15, 1985]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1295</SECTNO> <SUBJECT>Awards.</SUBJECT> <P>An award under these sections may include—</P> <P>(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</P> <P>(b) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award in OHA.</P> </SECTION> <SECTION> <SECTNO>§ 4.1296</SECTNO> <SUBJECT>Appeals.</SUBJECT> <P>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 § 4.1271 <E T="03">et seq.,</E> unless the Board has made the initial decision concerning such an award.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Petitions for Review of Proposed Individual Civil Penalty Assessments Under Section <E T="01">518(f)</E> of the Act</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 8754, Mar. 17, 1988, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.1300</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1301</SECTNO> <SUBJECT>Who may file.</SUBJECT> <P>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.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1302</SECTNO> <SUBJECT>Time for filing.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1303</SECTNO> <SUBJECT>Contents and service of petition.</SUBJECT> <P>(a) An individual filing a petition for review of a notice of proposed individual civil penalty assessment shall provide—</P> <P>(1) A concise statement of the facts entitling the individual to relief;</P> <P>(2) A copy of the notice of proposed assessment;</P> <P>(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</P> <P>(4) A statement whether the individual requests or waives the opportunity for an evidentiary hearing.</P> <P>(b) Copies of the petition shall be served in accordance with § 4.1109 (a) and (b) of this part.</P> <CITA>[53 FR 8754, Mar. 17, 1988; 53 FR 10036, Mar. 28, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1304</SECTNO> <SUBJECT>Answer, motion, or statement of OSM.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1305</SECTNO> <SUBJECT>Amendment of petition.</SUBJECT> <P>(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 § 4.1304 of this part. Thereafter, a motion for leave to amend the petition shall be filed with the administrative law judge.</P> <P>(b) OSM shall have 30 days from receipt of a petition amended as a matter <PRTPAGE P="178"/>of right to file an answer, motion, or statement in accordance with § 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1306</SECTNO> <SUBJECT>Notice of hearing.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1307</SECTNO> <SUBJECT>Elements; burdens of proof.</SUBJECT> <P>(a) OSM shall have the burden of going forward with evidence to establish a prima facie case that:</P> <P>(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 § 4.1150 through 4.1158, § 4.1160 through 4.1171, or § 4.1180 through 4.1187, and § 4.1270 or § 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;</P> <P>(2) The individual, at the time of the violation, failure or refusal, was a director, officer, or agent of the corporation; and</P> <P>(3) The individual willfully and knowingly authorized, ordered, or carried out the corporate permittee's violation or failure or refusal to comply.</P> <P>(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.</P> <P>(c) OSM shall have the ultimate burden of persuasion by a preponderance of the evidence as to the elements set forth in paragraphs (a)(2) and (a)(3) of this section and as to the amount of the individual civil penalty.</P> <CITA>[53 FR 8754, Mar. 17, 1988, as amended at 68 FR 66728, Nov. 28, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1308</SECTNO> <SUBJECT>Decision by administrative law judge.</SUBJECT> <P>(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 § 4.1307 of this part.</P> <P>(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 § 4.1309 of this part.</P> </SECTION> <SECTION> <SECTNO>§ 4.1309</SECTNO> <SUBJECT>Petition for discretionary review.</SUBJECT> <P>(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 § 4.1308 of this part.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(f) If the petition for review is granted the rules in §§ 4.1273-4.1276 of this part are applicable. If the petition is denied, the decision of the administrative law judge is final for the Department, subject to § 4.5 of this part.</P> <P>(g) Payment of a penalty is due in accordance with 30 CFR 724.18 or 846.18.</P> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="179"/> <HD SOURCE="HED">Request for Hearing on a Preliminary Finding Concerning a Demonstrated Pattern of Willful Violations Under Section <E T="01">510(c)</E> of the Act, 30 U.S.C. <E T="01">1260(c)</E> (Federal Program; Federal Lands Program; Federal Program for Indian Lands)</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 39526, Oct. 22, 1987, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.1350</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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.</P> <CITA>[67 FR 61511, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1351</SECTNO> <SUBJECT>Preliminary finding by OSM.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[67 FR 61511, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1352</SECTNO> <SUBJECT>Who may file; where to file; when to file.</SUBJECT> <P>(a) The applicant or operator may file a request for hearing on OSM's preliminary finding of permanent permit ineligibility.</P> <P>(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.</P> <P>(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.</P> <CITA>[67 FR 61511, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1353</SECTNO> <SUBJECT>Contents of request.</SUBJECT> <P>The request for hearing shall include—</P> <P>(a) A clear statement of the facts entitling the one requesting the hearing to administrative relief;</P> <P>(b) An explanation of the alleged errors in OSM's preliminary finding; and</P> <P>(c) Any other relevant information.</P> </SECTION> <SECTION> <SECTNO>§ 4.1354</SECTNO> <SUBJECT>Determination by the administrative law judge.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1355</SECTNO> <SUBJECT>Burden of proof.</SUBJECT> <P>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.</P> <CITA>[67 FR 61511, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1356</SECTNO> <SUBJECT>Appeals.</SUBJECT> <P>(a) Any party aggrieved by the decision of the administrative law judge may appeal to the Board under procedures set forth in § 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.</P> <P>(b) The Board shall order an expedited briefing schedule and shall issue a decision within 45 days of the filing of the appeal.</P> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="180"/> <HD SOURCE="HED">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)</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 2143, Jan. 22, 1991, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.1360</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>These rules set forth the exclusive procedures for administrative review of decisions by OSMRE concerning—</P> <P>(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;</P> <P>(b) Applications for permit revisions, permit renewals, and the transfer, assignment, or sale of rights granted under permit;</P> <P>(c) Permit revisions ordered by OSMRE;</P> <P>(d) Applications for coal exploration permits; and</P> <P>(e) Ineligibility for a permit under section 510(c) of the Act and 30 CFR 773.12.</P> <CITA>[56 FR 2143, Jan. 22, 1991; 56 FR 5061, Feb. 7, 1991, as amended at 67 FR 61511, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1361</SECTNO> <SUBJECT>Who may file.</SUBJECT> <P>The applicant, permittee, or any person having an interest which is or may be adversely affected by a decision of OSMRE set forth in § 4.1360 may file a request for review of that decision.</P> </SECTION> <SECTION> <SECTNO>§ 4.1362</SECTNO> <SUBJECT>Where to file; when to file.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1363</SECTNO> <SUBJECT>Contents of request; amendment of request; responses.</SUBJECT> <P>(a) The request for review shall include—</P> <P>(1) A clear statement of the facts entitling the one requesting review to administrative relief;</P> <P>(2) An explanation of each specific alleged error in OSMRE's decision, including reference to the statutory and regulatory provisions allegedly violated;</P> <P>(3) A request for specific relief;</P> <P>(4) A statement whether the person requests or waives the opportunity for an evidentiary hearing; and</P> <P>(5) Any other relevant information.</P> <P>(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.</P> <P>(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 to an extension of the date of commencement of the hearing under § 4.1364. A request for review may not be amended after a hearing commences.</P> <P>(d) An interested party shall have 10 days from filing of a request for review <PRTPAGE P="181"/>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.</P> <P>(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.</P> <CITA>[56 FR 2143, Jan. 22, 1991; 56 FR 5061, Feb. 7, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1364</SECTNO> <SUBJECT>Time for hearing; notice of hearing; extension of time for hearing.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1365</SECTNO> <SUBJECT>Status of decision pending administrative review.</SUBJECT> <P>The filing of a request for review shall not stay the effectiveness of the OSMRE decision pending completion of administrative review.</P> </SECTION> <SECTION> <SECTNO>§ 4.1366</SECTNO> <SUBJECT>Burdens of proof.</SUBJECT> <P>(a) In a proceeding to review a decision on an application for a new permit—</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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—</P> <P>(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</P> <P>(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 and the regulations.</P> <P>(e) In a proceeding to review a decision on an application for a coal exploration permit—<PRTPAGE P="182"/> </P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1367</SECTNO> <SUBJECT>Request for temporary relief.</SUBJECT> <P>(a) Where review is requested pursuant to § 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.</P> <P>(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).</P> <P>(c) The application shall include—</P> <P>(1) A detailed written statement setting forth the reasons why relief should be granted;</P> <P>(2) A statement of the specific relief requested;</P> <P>(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</P> <P>(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.</P> <P>(d) The Administrative Law Judge may hold a hearing on any issue raised by the application.</P> <P>(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—</P> <P>(1) All parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief;</P> <P>(2) The person requesting such relief shows a substantial likelihood of prevailing on the merits of the final determination of the proceeding; and</P> <P>(3) Such relief will not adversely affect the public health or safety or cause significant, imminent environmental harm to land, air, or water resources.</P> <P>(f) Appeals of temporary relief decisions.</P> <P>(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.</P> <P>(2) The Board shall issue an expedited briefing schedule and shall issue a decision on the appeal expeditiously.</P> <CITA>[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1368</SECTNO> <SUBJECT>Determination by the Administrative Law Judge.</SUBJECT> <P>Unless all parties agree in writing to an extension or waiver, the Administrative Law Judge shall issue a written decision in accordance with § 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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1369</SECTNO> <SUBJECT>Petition for discretionary review; judicial review.</SUBJECT> <P>(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 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.<PRTPAGE P="183"/> </P> <P>(b) The petition shall set forth specifically the alleged errors in the decision, with supporting argument, and shall attach a copy of the decision.</P> <P>(c) Any party may file a response to a petition for discretionary review within 20 days of receipt of the petition.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Review of OSM Decisions Proposing To Suspend or Rescind or Suspending or Rescinding Improvidently Issued Permits</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>59 FR 54326, Oct. 28, 1994, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.1370</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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.</P> <CITA>[67 FR 61511, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1371</SECTNO> <SUBJECT>Who may file, where to file, when to file.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) Where appropriate under the Administrative Dispute Resolution Act, 5 U.S.C. §§ 571-583, the Hearings Division may use a dispute resolution proceeding, if the parties agree to such proceeding, before the procedures set forth in §§ 4.1373 through 4.1377.</P> <CITA>[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 67 FR 61511, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1372</SECTNO> <SUBJECT>Contents of request for review, response to request, amendment of request.</SUBJECT> <P>(a) The request for review shall include:</P> <P>(1) A copy of the notice of proposed suspension or rescission or the notice of suspension or rescission;</P> <P>(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;</P> <P>(3) A statement whether the person requesting review wishes an evidentiary hearing or waives the opportunity for such a hearing;</P> <P>(4) A request for specific relief; and</P> <P>(5) Any other relevant information.</P> <P>(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.</P> <P>(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 (b) not less than 10 days to file an amended response.</P> <CITA>[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 61511, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <PRTPAGE P="184"/> <SECTNO>§ 4.1373</SECTNO> <SUBJECT>Hearing.</SUBJECT> <P>(a) If a hearing is requested, the administrative law judge shall convene the hearing within 90 days of receipt of the responses under § 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.</P> <P>(b) The administrative law judge shall give notice of the hearing at least 10 days in advance of the date of the hearing.</P> <CITA>[59 FR 54362, Oct. 28, 1994; 59 FR 56573, Nov. 14, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1374</SECTNO> <SUBJECT>Burdens of proof.</SUBJECT> <P>(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.</P> <P>(b) The permittee shall have the ultimate burden of persuasion by a preponderance of the evidence that the notice is invalid.</P> <CITA>[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 61512, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1375</SECTNO> <SUBJECT>Time for initial decision.</SUBJECT> <P>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 § 4.1372(b).</P> </SECTION> <SECTION> <SECTNO>§ 4.1376</SECTNO> <SUBJECT>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.</SUBJECT> <P>(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.</P> <P>(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).</P> <P>(c) The petition for temporary relief shall include:</P> <P>(1) A statement of the specific relief requested;</P> <P>(2) A detailed statement of why temporary relief should be granted, including—</P> <P>(i) A showing that there is a substantial likelihood that petitioner will prevail on the merits, and</P> <P>(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;</P> <P>(3) A statement whether the petitioner requests an evidentiary hearing.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(g) The administrative law judge may only grant temporary relief if:</P> <P>(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;</P> <P>(2) The petitioner has demonstrated a substantial likelihood of prevailing on the merits; and</P> <P>(3) Temporary relief will not adversely affect public health or safety or cause significant, imminent harm to land, air or water resources.</P> <P>(h) Any party may file an appeal of an order or decision granting or denying temporary relief with the Board <PRTPAGE P="185"/>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.</P> <CITA>[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 67 FR 61512, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1377</SECTNO> <SUBJECT>Petition for discretionary review of initial decision.</SUBJECT> <P>(a) Any party may file a petition for discretionary review of an initial decision of an administrative law judge issued under § 4.1375 with the Board within 30 days of receipt of the decision. An untimely petition shall be dismissed.</P> <P>(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.</P> <P>(c) Any party may file a response to the petition for discretionary review within 30 days of its service.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Review of Office of Surface Mining Written Decisions Concerning Ownership or Control Challenges</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>59 FR 54363, Oct. 28, 1994, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.1380</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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.</P> <CITA>[67 FR 61512, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1381</SECTNO> <SUBJECT>Who may file; when to file; where to file.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) Where appropriate under the Administrative Dispute Resolution Act, 5 U.S.C. §§ 571-583, the Hearings Division may use a dispute resolution proceeding, if the parties agree to such proceeding, before the procedures set forth in §§ 4.1383 through 4.1387.</P> <CITA>[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1382</SECTNO> <SUBJECT>Contents of request for review; response to request; amendment of request.</SUBJECT> <P>(a) The request for review shall include:</P> <P>(1) A copy of the decision of OSM;</P> <P>(2) A statement of the alleged errors in the decision and the facts that entitle the person requesting review to administrative relief;</P> <P>(3) A statement whether the person requesting review wishes an evidentiary hearing or waives the opportunity for such a hearing;</P> <P>(4) A request for specific relief; and</P> <P>(5) Any other relevant information.</P> <P>(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.</P> <P>(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 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 <PRTPAGE P="186"/>other party that filed a response in accordance with paragraph (b) not less than 10 days to file an amended response.</P> </SECTION> <SECTION> <SECTNO>§ 4.1383</SECTNO> <SUBJECT>Hearing.</SUBJECT> <P>(a) If a hearing is requested, the administrative law judge shall convene the hearing within 90 days of receipt of responses under § 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.</P> <P>(b) The administrative law judge shall give notice of the hearing at least 10 days in advance of the date of the hearing.</P> </SECTION> <SECTION> <SECTNO>§ 4.1384</SECTNO> <SUBJECT>Burdens of proof.</SUBJECT> <P>(a) OSM shall have the burden of going forward to present a prima facie case of the validity of the decision.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1385</SECTNO> <SUBJECT>Time for initial decision.</SUBJECT> <P>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 § 4.1382(b).</P> </SECTION> <SECTION> <SECTNO>§ 4.1386</SECTNO> <SUBJECT>Petition for temporary relief from decision; appeals from decisions granting or denying temporary relief.</SUBJECT> <P>(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.</P> <P>(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).</P> <P>(c) The petition for temporary relief shall include:</P> <P>(1) A statement of the specific relief requested:</P> <P>(2) A detailed statement of why temporary relief should be granted, including:</P> <P>(i) A showing that there is a substantial likelihood that petitioner will prevail on the merits, and</P> <P>(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;</P> <P>(3) A statement whether the petitioner requests an evidentiary hearing.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(g) The administrative law judge may only grant temporary relief if:</P> <P>(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;</P> <P>(2) The petitioner has demonstrated a substantial likelihood of prevailing on the merits; and</P> <P>(3) Temporary relief will not adversely affect public health or safety or cause significant, imminent environmental harm to land, air or water resources.</P> <P>(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 <PRTPAGE P="187"/>filed with the Board, the Board shall issue an expedited briefing schedule and shall decide the appeal expeditiously.</P> <CITA>[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1387</SECTNO> <SUBJECT>Petition for discretionary review of initial decisions.</SUBJECT> <P>(a) Any party may file a petition for discretionary review of an initial decision of an administrative law judge issued under § 4.1385 with the Board within 30 days of receipt of the decision. An untimely petition shall be dismissed.</P> <P>(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.</P> <P>(c) Any party may file a response to the petition for discretionary review within 30 days of its service.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Request for Review of OSM Determinations of Issues Under 30 CFR Part 761 (Federal Program; Federal Lands Program; Federal Program for Indian Lands)</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 39530, Oct. 22, 1987, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.1390</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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.</P> <CITA>[67 FR 61512, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1391</SECTNO> <SUBJECT>Who may file; where to file; when to file; filing of administrative record.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register,</E> whichever is later, by any person who has not received a copy of it by certified mail or overnight delivery service.</P> <P>(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 § 4.1362.</P> <P>(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.</P> <CITA>[56 FR 2145, Jan. 22, 1991, as amended at 67 FR 4368, Jan. 30, 2002; 67 FR 61512, Oct. 1, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1392</SECTNO> <SUBJECT>Contents of request; amendment of request; responses.</SUBJECT> <P>(a) The request for review shall include—</P> <P>(1) A clear statement of the reasons for appeal;</P> <P>(2) A request for specific relief;</P> <P>(3) A copy of the decision appealed from; and</P> <P>(4) Any other relevant information.<PRTPAGE P="188"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1393</SECTNO> <SUBJECT>Status of decision pending administrative review.</SUBJECT> <P>43 CFR 4.21(a) applies to determinations of the Office of Surface Mining under 30 U.S.C. 1272(e).</P> </SECTION> <SECTION> <SECTNO>§ 4.1394</SECTNO> <SUBJECT>Burden of proof.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[67 FR 61512, Oct. 1, 2002]</CITA> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart M—Special Procedural Rules Applicable to Appeals of Decisions Made Under OMB Circular A-76</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 75213, Nov. 14, 1980, unless otherwise noted. Redesignated at 52 FR 39525, Oct. 22, 1987.</P> </SOURCE> <SECTION> <SECTNO>§ 4.1600</SECTNO> <SUBJECT>Purpose and nature of the appeal process.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1601</SECTNO> <SUBJECT>Basis for appeal.</SUBJECT> <P>(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.</P> <P>(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 award to one contractor in preference to another.</P> </SECTION> <SECTION> <PRTPAGE P="189"/> <SECTNO>§ 4.1602</SECTNO> <SUBJECT>Who may appeal under this procedure.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1603</SECTNO> <SUBJECT>Appeal period.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1604</SECTNO> <SUBJECT>Method of filing an appeal.</SUBJECT> <P>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.</P> <CITA>[45 FR 75213, Nov. 14, 1980. Redesignated at 52 FR 39525, Oct. 22, 1987. And amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 4.1605</SECTNO> <SUBJECT>Action by the Office of Hearings and Appeals.</SUBJECT> <P>(a) Upon receipt of an appeal, the Director, Office of Hearings and Appeals shall designate an appeals official, who shall process the appeal.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1606</SECTNO> <SUBJECT>Department representation.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1607</SECTNO> <SUBJECT>Processing the appeal.</SUBJECT> <P>(a) The appeals official shall arrange such conferences with the concerned parties as are necessary, including (if requested by the appellant) an oral presentation.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1608</SECTNO> <SUBJECT>Oral presentations.</SUBJECT> <P>(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.</P> <P>(b) The appellant may, but is not required to, be represented by legal counsel at an oral presentation.</P> <P>(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.</P> <P>(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 for legal briefs, sworn statements, interrogation under oath, official transcripts of testimony, etc., unless the appeals official determines such are <PRTPAGE P="190"/>necessary for effective disposition of the appeal.</P> </SECTION> <SECTION> <SECTNO>§ 4.1609</SECTNO> <SUBJECT>Multiple appeals.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 4.1610</SECTNO> <SUBJECT>Decision of the appeals official.</SUBJECT> <P>(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.</P> <P>(b) If the appeals official affirms the appeal, his decision regarding further action by the agency shall be binding upon the agency.</P> <P>(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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 5</EAR> <HD SOURCE="HED">PART 5—MAKING PICTURES, TELEVISION PRODUCTIONS OR SOUND TRACKS ON CERTAIN AREAS UNDER THE JURISDICTION OF THE DEPARTMENT OF THE INTERIOR</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>5.1</SECTNO> <SUBJECT>Areas administered by U.S. Fish and Wildlife Service or National Park Service.</SUBJECT> <SECTNO>5.2</SECTNO> <SUBJECT>Areas administered by the Bureau of Indian Affairs.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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.</P> </AUTH> <SECTION> <SECTNO>§ 5.1</SECTNO> <SUBJECT>Areas administered by U.S. Fish and Wildlife Service or National Park Service.</SUBJECT> <P>(a) <E T="03">Permit required.</E> 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.</P> <P>(b) <E T="03">Fees; bonds.</E> (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.</P> <P>(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.</P> <P>(c) <E T="03">Approval of application.</E> 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.</P> <P>(d) <E T="03">Form of application.</E> 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:</P> <EXTRACT> <FP SOURCE="FRP">Date ________</FP> <FP SOURCE="FP-DASH">To the head of the</FP> <FP SOURCE="FP-DASH">Service, Department of the Interior</FP> <FP SOURCE="FRP">(Area)</FP> <P SOURCE="P-DASH">(1) Permission is requested to make, in the area mentioned above, a</P> <P>(2) The scope of the filming (or production or recording) and the manner and extent thereof will be as follows</P> <P SOURCE="P-DASH">Weather conditions permitting, work will commence on approximately _____ and will be completed on approximately</P> <FP SOURCE="FP-DASH"/> <FP SOURCE="FP-DASH"/> <P>(An additional sheet should be used if necessary.)<PRTPAGE P="191"/> </P> <P>(3) The undersigned accepts and will comply with the following conditions:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(iv) [Reserved]</P> <P>(v) Any special instructions received from the official in charge of the area will be complied with.</P> <P>(vi) Any additional information relating to the privilege applied for by this application will be furnished upon request of the official in charge.</P> <FP SOURCE="FP-DASH"/> <FP SOURCE="FRP">(Applicant)</FP> <FP SOURCE="FRP">For_____________</FP> <FP SOURCE="FRP">(Company)</FP> <FP SOURCE="FP-DASH">Bond Requirement $</FP> <FP SOURCE="FP-DASH"> Approved:</FP> <FP SOURCE="FRP">(Date)</FP> <FP SOURCE="FP-DASH"/> <FP SOURCE="FRP">(Title)</FP> </EXTRACT> <CITA>[22 FR 1987, Mar. 26, 1957, as amended at 36 FR 2972,` Feb. 13, 1971]</CITA> </SECTION> <SECTION> <SECTNO>§ 5.2</SECTNO> <SUBJECT>Areas administered by the Bureau of Indian Affairs.</SUBJECT> <P>(a) <E T="03">Individual Indians.</E> 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.</P> <P>(b) <E T="03">Indian groups and communities.</E> 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.</P> <P>(c) <E T="03">Use of Indian lands.</E> 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.</P> <P>(d) <E T="03">Employment of Indians.</E> 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.</P> <CITA>[22 FR 1987, Mar. 26, 1957]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 6</EAR> <HD SOURCE="HED">PART 6—PATENT REGULATIONS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Inventions by Employees</HD> <SECHD>Sec.</SECHD> <SECTNO>6.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>6.2</SECTNO> <SUBJECT>Report of invention.</SUBJECT> <SECTNO>6.3</SECTNO> <SUBJECT>Action by supervisory officials.</SUBJECT> <SECTNO>6.4</SECTNO> <SUBJECT>Action by Solicitor.</SUBJECT> <SECTNO>6.5</SECTNO> <SUBJECT>Rights in inventions.</SUBJECT> <SECTNO>6.6</SECTNO> <SUBJECT>Appeals by employees.</SUBJECT> <SECTNO>6.7</SECTNO> <SUBJECT>Domestic patent protection.</SUBJECT> <SECTNO>6.8</SECTNO> <SUBJECT>Foreign filing.</SUBJECT> <SECTNO>6.9</SECTNO> <SUBJECT>Publication and public use of invention before patent application is filed.</SUBJECT> <SECTNO>6.10</SECTNO> <SUBJECT>Publicity concerning the invention after patent application is filed.</SUBJECT> <SECTNO>6.11</SECTNO> <SUBJECT>Condition of employment.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Licenses</HD> <SECTNO>6.51</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>6.52</SECTNO> <SUBJECT>Patents.</SUBJECT> <SECTNO>6.53</SECTNO> <SUBJECT>Unpatented inventions.</SUBJECT> <SECTNO>6.54</SECTNO> <SUBJECT>Use or manufacture by or for the Government.</SUBJECT> <SECTNO>6.55</SECTNO> <SUBJECT>Terms of licenses or sublicenses.</SUBJECT> <SECTNO>6.56</SECTNO> <SUBJECT>Issuance of licenses.</SUBJECT> <SECTNO>6.57</SECTNO> <SUBJECT>Evaluation Committee.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>29 FR 260, Jan. 10, 1964; 29 FR 6498, May 19, 1964, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Inventions by Employees</HD> <SECTION> <SECTNO>§ 6.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this subpart:</P> <P>(a) The term <E T="03">Department</E> means the Department of the Interior.</P> <P>(b) The term <E T="03">Secretary</E> means the Secretary of the Interior.</P> <P>(c) The term <E T="03">Solicitor</E> means the Solicitor of the Department of the Interior, or anyone authorized to act for him.<PRTPAGE P="192"/> </P> <P>(d) The term <E T="03">Commissioner</E> means the Commissioner of Patents, or any Assistant Commissioner who may act for the Commissioner of Patents.</P> <P>(e) The term <E T="03">invention</E> 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.</P> <P>(f) The term <E T="03">employee</E> 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.</P> <P>(g) The term <E T="03">governmental purpose</E> 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.</P> <P>(h) The <E T="03">making of the invention</E> means the conception or first actual reduction to practice of such invention.</P> </SECTION> <SECTION> <SECTNO>§ 6.2</SECTNO> <SUBJECT>Report of invention.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) An invention report shall include the following:</P> <P>(1) A brief but pertinently descriptive title of the invention;</P> <P>(2) The full name, residence, office address, bureau or office and division, position or title, and official working place of the inventor or inventors;</P> <P>(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;</P> <P>(4) Information concerning any past or prospective publication, oral presentation or public use of the invention;</P> <P>(5) The problem which led to the making of the invention;</P> <P>(6) The objects, advantages, and uses of the invention;</P> <P>(7) A detailed description of the invention;</P> <P>(8) Experimental data;</P> <P>(9) The prior art known to the inventor(s) and the manner in which the invention distinguishes thereover;</P> <P>(10) A statement that the employee:<PRTPAGE P="193"/> </P> <P>(i) Is willing to and does hereby assign to the Government:</P> <P>(<E T="03">a</E>) The entire rights (foreign and domestic) in the invention;</P> <P>(<E T="03">b</E>) 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;</P> <P>(ii) Requests, pursuant to § 6.2(e), a determination of the respective rights of the Government and of the inventor.</P> <P>(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:</P> <P>(1) The circumstances under which the invention was made (conceived, actually reduced to practice or constructed and tested);</P> <P>(2) The employee's official duties, as given on his job sheet or otherwise assigned, at the time of the making of the invention;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 6.3</SECTNO> <SUBJECT>Action by supervisory officials.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 out the facts supporting his conclusion whenever the employee's invention report does not contain sufficient information on this point.</P> </SECTION> <SECTION> <SECTNO>§ 6.4</SECTNO> <SUBJECT>Action by Solicitor.</SUBJECT> <P>(a) If an employee inventor requests pursuant to § 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 <PRTPAGE P="194"/>the rules and regulations issued by the Commissioner with the approval of the President.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 6.5</SECTNO> <SUBJECT>Rights in inventions.</SUBJECT> <P>(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.</P> <P>(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</P> <P>(i) During working hours, or</P> <P>(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</P> <P>(iii) Which bears a direct relation to or is made in consequence of the official duties of the inventor.</P> <P>(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.</P> <P>(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.</P> <P>(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, 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.</P> <P>(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 <PRTPAGE P="195"/>promptly prepare, and preserve in appropriate files, accessible to the Commissioner, a written signed, and dated statement concerning the invention including the following:</P> <P>(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;</P> <P>(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</P> <P>(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 § 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.</P> </SECTION> <SECTION> <SECTNO>§ 6.6</SECTNO> <SUBJECT>Appeals by employees.</SUBJECT> <P>(a) Any employee who is aggrieved by a determination of the Solicitor pursuant to § 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.</P> <P>(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:</P> <P>(1) A copy of a statement containing the information specified in § 6.5(c), and</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="196"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 6.7</SECTNO> <SUBJECT>Domestic patent protection.</SUBJECT> <P>(a) The Solicitor, upon determining that an invention coming within the scope of § 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 § 6.5(b)(2), action by the Department looking toward such patent protection shall be contingent upon the consent of the inventor.</P> <P>(b) Where there is a dispute as to whether paragraph (b) (1) or (2) of § 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 § 6.5(b)(2), but this shall be without prejudice to acquiring the rights specified in § 6.5(b)(1) should the Commissioner so decide.</P> <P>(c) Where the Solicitor has determined to leave title to an invention with an employee under § 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 § 6.5(b)(1) should the Commissioner so decide.</P> <P>(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 § 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:</P> <P>(1) Description of the invention in sufficient detail to permit a satisfactory review;</P> <P>(2) Name of the inventor and his employment status;</P> <P>(3) Statement of the Solicitor's determination and reasons therefor.</P> <FP>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.</FP> </SECTION> <SECTION> <SECTNO>§ 6.8</SECTNO> <SUBJECT>Foreign filing.</SUBJECT> <P>(a) <E T="03">By Government.</E> (1) In every case where the employee has indicated pursuant to § 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 § 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.</P> <P>(2) The Government's option shall lapse as regards any foreign country:</P> <P>(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;</P> <P>(ii) When the Solicitor fails to take action to seek protection of the invention in said foreign country (<E T="03">a</E>) within six months of the filing of an application for a United States patent on the <PRTPAGE P="197"/>invention, or (<E T="03">b</E>) within six months of declassification of an invention previously under a security classification, whichever is later.</P> <P>(b) <E T="03">By Employee.</E> (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.</P> <P>(2) An employee may file in any foreign country where the Government has not exercised its option acquired pursuant to § 6.2(d)(10), to do so, or determines not to do so.</P> <P>(3) The determination or failure to act as set forth in § 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.</P> </SECTION> <SECTION> <SECTNO>§ 6.9</SECTNO> <SUBJECT>Publication and public use of invention before patent application is filed.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 6.10</SECTNO> <SUBJECT>Publicity concerning the invention after patent application is filed.</SUBJECT> <P>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 advised of the issuance of any patent assigned to the Secretary, to take steps towards listing the patent as available for licensing, where feasible.</P> </SECTION> <SECTION> <SECTNO>§ 6.11</SECTNO> <SUBJECT>Condition of employment.</SUBJECT> <P>(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 <PRTPAGE P="198"/>future contracts to the contrary entered into by any employee of the Department with any person other than the Government.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Licenses</HD> <SECTION> <SECTNO>§ 6.51</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> <CITA>[31 FR 10796, Aug. 13, 1966]</CITA> </SECTION> <SECTION> <SECTNO>§ 6.52</SECTNO> <SUBJECT>Patents.</SUBJECT> <P>Patents in which the Secretary of the interior has transferable interests, and under which he may issue licenses or sublicenses, are classified as follows:</P> <P>(a) <E T="03">Class A.</E> 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;</P> <P>(b) <E T="03">Class B.</E> 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);</P> <P>(c) <E T="03">Class C.</E> 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.</P> <CITA>[29 FR 260, Jan. 10, 1964, as amended at 31 FR 10796, Aug. 13, 1966]</CITA> </SECTION> <SECTION> <SECTNO>§ 6.53</SECTNO> <SUBJECT>Unpatented inventions.</SUBJECT> <P>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 § 6.52.</P> </SECTION> <SECTION> <SECTNO>§ 6.54</SECTNO> <SUBJECT>Use or manufacture by or for the Government.</SUBJECT> <P>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 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.</P> <CITA>[31 FR 10796, Aug. 13, 1966]</CITA> </SECTION> <SECTION> <PRTPAGE P="199"/> <SECTNO>§ 6.55</SECTNO> <SUBJECT>Terms of licenses or sublicenses.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[29 FR 260, Jan. 10, 1964, as amended at 31 FR 10796, Aug. 13, 1966]</CITA> </SECTION> <SECTION> <SECTNO>§ 6.56</SECTNO> <SUBJECT>Issuance of licenses.</SUBJECT> <P>(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:</P> <P>(1) The name, address, and citizenship of the applicant;</P> <P>(2) The nature of his business;</P> <P>(3) The patent or invention upon which he desires a license;</P> <P>(4) The purpose for which he desires a license;</P> <P>(5) His experience in the field of the desired license;</P> <P>(6) Any patents, licenses, or other patent rights which he may have in the field of the desired license; and</P> <P>(7) The benefits, if any, which the applicant expects the public to derive from his proposed use of the invention</P> <P>(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 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.</P> </SECTION> <SECTION> <SECTNO>§ 6.57</SECTNO> <SUBJECT>Evaluation Committee.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> </PART> <PART> <PRTPAGE P="200"/> <EAR>Pt. 7</EAR> <HD SOURCE="HED">PART 7—PROTECTION OF ARCHAEOLOGICAL RESOURCES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Uniform Regulations</HD> <SECHD>Sec.</SECHD> <SECTNO>7.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>7.2</SECTNO> <SUBJECT>Authority.</SUBJECT> <SECTNO>7.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>7.4</SECTNO> <SUBJECT>Prohibited acts and criminal penalties.</SUBJECT> <SECTNO>7.5</SECTNO> <SUBJECT>Permit requirements and exceptions.</SUBJECT> <SECTNO>7.6</SECTNO> <SUBJECT>Application for permits and information collection.</SUBJECT> <SECTNO>7.7</SECTNO> <SUBJECT>Notification to Indian tribes of possible harm to, or destruction of, sites on public lands having religious or cultural importance.</SUBJECT> <SECTNO>7.8</SECTNO> <SUBJECT>Issuance of permits.</SUBJECT> <SECTNO>7.9</SECTNO> <SUBJECT>Terms and conditions of permits.</SUBJECT> <SECTNO>7.10</SECTNO> <SUBJECT>Suspension and revocation of permits.</SUBJECT> <SECTNO>7.11</SECTNO> <SUBJECT>Appeals relating to permits.</SUBJECT> <SECTNO>7.12</SECTNO> <SUBJECT>Relationship to section 106 of the National Historic Preservation Act.</SUBJECT> <SECTNO>7.13</SECTNO> <SUBJECT>Custody of archaeological resources.</SUBJECT> <SECTNO>7.14</SECTNO> <SUBJECT>Determination of archaeological or commercial value and cost of restoration and repair.</SUBJECT> <SECTNO>7.15</SECTNO> <SUBJECT>Assessment of civil penalties.</SUBJECT> <SECTNO>7.16</SECTNO> <SUBJECT>Civil penalty amounts.</SUBJECT> <SECTNO>7.17</SECTNO> <SUBJECT>Other penalties and rewards.</SUBJECT> <SECTNO>7.18</SECTNO> <SUBJECT>Confidentiality of archaeological resource information.</SUBJECT> <SECTNO>7.19</SECTNO> <SUBJECT>Report.</SUBJECT> <SECTNO>7.20</SECTNO> <SUBJECT>Public awareness programs.</SUBJECT> <SECTNO>7.21</SECTNO> <SUBJECT>Surveys and schedules.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Department of the Interior Supplemental Regulations</HD> <SECTNO>7.31</SECTNO> <SUBJECT>Scope and authority.</SUBJECT> <SECTNO>7.32</SECTNO> <SUBJECT>Supplemental definitions.</SUBJECT> <SECTNO>7.33</SECTNO> <SUBJECT>Determination of loss or absence of archaeological interest.</SUBJECT> <SECTNO>7.34</SECTNO> <SUBJECT>Procedural information for securing permits.</SUBJECT> <SECTNO>7.35</SECTNO> <SUBJECT>Permitting procedures for Indian lands.</SUBJECT> <SECTNO>7.36</SECTNO> <SUBJECT>Permit reviews and disputes.</SUBJECT> <SECTNO>7.37</SECTNO> <SUBJECT>Civil penalty hearings procedures.</SUBJECT> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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).</P> </AUTH> </SUBPART> </CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Uniform Regulations</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>49 FR 1027, Jan. 6, 1984, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 7.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 7.2</SECTNO> <SUBJECT>Authority.</SUBJECT> <P>(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 Tennessee Valley Authority jointly develop uniform rules and regulations for carrying out the purposes of the Act.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="201"/> <SECTNO>§ 7.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used for purposes of this part:</P> <P>(a) <E T="03">Archaeological resource</E> means any material remains of human life or activities which are at least 100 years of age, and which are of archaeological interest.</P> <P>(1) <E T="03">Of archaeological interest</E> 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.</P> <P>(2) <E T="03">Material remains</E> means physical evidence of human habitation, occupation, use, or activity, including the site, location, or context in which such evidence is situated.</P> <P>(3) The following 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:</P> <P>(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);</P> <P>(ii) Surface or subsurface artifact concentrations or scatters;</P> <P>(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);</P> <P>(iv) By-products, waste products, or debris resulting from manufacture or use of human-made or natural materials;</P> <P>(v) Organic waste (including, but not limited to, vegetal and animal remains, coprolites);</P> <P>(vi) Human remains (including, but not limited to, bone, teeth, mummified flesh, burials, cremations);</P> <P>(vii) Rock carvings, rock paintings, intaglios and other works of artistic or symbolic representation;</P> <P>(viii) Rockshelters and caves or portions thereof containing any of the above material remains;</P> <P>(ix) All portions of shipwrecks (including, but not limited to, armaments, apparel, tackle, cargo);</P> <P>(x) Any portion or piece of any of the foregoing.</P> <P>(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:</P> <P>(i) Paleontological remains;</P> <P>(ii) Coins, bullets, and unworked minerals and rocks.</P> <P>(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.</P> <P>(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; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is referred to NAGPRA and its implementing regulations.</P> <P>(b) <E T="03">Arrowhead</E> means any projectile point which appears to have been designed for use with an arrow.</P> <P>(c) <E T="03">Federal land manager</E> means:</P> <P>(1) With respect to any public lands, the secretary of the department, or the <PRTPAGE P="202"/>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;</P> <P>(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;</P> <P>(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.</P> <P>(d) <E T="03">Public lands</E> means:</P> <P>(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</P> <P>(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.</P> <P>(e) <E T="03">Indian lands</E> 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.</P> <P>(f) <E T="03">Indian tribe</E> 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:</P> <P>(1) Any tribal entity which is included in the annual list of recognized tribes published in the <E T="04">Federal Register</E> by the Secretary of the Interior pursuant to 25 CFR part 54;</P> <P>(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</P> <P>(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.</P> <P>(g) <E T="03">Person</E> 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.</P> <P>(h) <E T="03">State</E> means any of the fifty states, the District of Columbia, Puerto Rico, Guam, and the Virgin Islands.</P> <P>(i) <E T="03">Act</E> means the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa-mm).</P> <CITA>[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984, as amended at 60 FR 5260, Jan. 26, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 7.4</SECTNO> <SUBJECT>Prohibited acts and criminal penalties.</SUBJECT> <P>(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 § 7.8 or exempted by § 7.5(b) of this part.</P> <P>(b) No person may sell, purchase, exchange, transport, or receive any archaeological resource, if such resource was excavated or removed in violation of:</P> <P>(1) The prohibitions contained in paragraph (a) of this section; or</P> <P>(2) Any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.</P> <P>(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 <PRTPAGE P="203"/>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.</P> <CITA>[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 7.5</SECTNO> <SUBJECT>Permit requirements and exceptions.</SUBJECT> <P>(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 § 7.8(a) of this part.</P> <P>(b) Exceptions:</P> <P>(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.</P> <P>(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.</P> <P>(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;</P> <P>(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.</P> <P>(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.</P> <P>(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 § 7.6. However, the Federal land manager shall insure that provisions of §§ 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 § 7.7.</P> <P>(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 §§ 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 <PRTPAGE P="204"/>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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 7.6</SECTNO> <SUBJECT>Application for permits and information collection.</SUBJECT> <P>(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.</P> <P>(b) Each application for a permit shall include:</P> <P>(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.</P> <P>(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 § 7.8(a).</P> <P>(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.</P> <P>(4) Evidence of the applicant's ability to initiate, conduct, and complete the proposed work, including evidence of logistical support and laboratory facilities.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) <E T="03">Paperwork Reduction Act.</E> The information collection requirement contained in § 7.6 of these regulations has been approved by the Office of Management and Budget under 44 U.S.C. 3501 <E T="03">et seq.</E> and assigned clearance number 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 <PRTPAGE P="205"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 7.7</SECTNO> <SUBJECT>Notification to Indian tribes of possible harm to, or destruction of, sites on public lands having religious or cultural importance.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 § 7.9.</P> <P>(4) When the Federal land manager determines 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.</P> <P>(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).</P> <P>(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.</P> <P>(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.</P> <P>(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 terms and conditions of permits, under § 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 <PRTPAGE P="206"/>NAGPRA, the Federal land manager is referred to NAGPRA and its implementing regulations.</P> <CITA>[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 7.8</SECTNO> <SUBJECT>Issuance of permits.</SUBJECT> <P>(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:</P> <P>(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:</P> <P>(i) A graduate degree in anthropology or archaeology, or equivalent training and experience;</P> <P>(ii) The demonstrated ability to plan, equip, staff, organize, and supervise activity of the type and scope proposed;</P> <P>(iii) The demonstrated ability to carry research to completion, as evidenced by timely completion of theses, research reports, or similar documents;</P> <P>(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</P> <P>(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.</P> <P>(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;</P> <P>(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;</P> <P>(4) Where the proposed work consists of archaeological 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.</P> <P>(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;</P> <P>(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</P> <P>(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:</P> <P>(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.</P> <P>(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.<PRTPAGE P="207"/> </P> <P>(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.</P> <CITA>[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 7.9</SECTNO> <SUBJECT>Terms and conditions of permits.</SUBJECT> <P>(a) In all permits issued, the Federal land manager shall specify:</P> <P>(1) The nature and extent of work allowed and required under the permit, including the time, duration, scope, location, and purpose of the work;</P> <P>(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;</P> <P>(3) The name of any university, museum, or other scientific or educational insitutions in which any collected materials and data shall be deposited; and</P> <P>(4) Reporting requirements.</P> <P>(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.</P> <P>(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 § 7.7.</P> <P>(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.</P> <P>(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.</P> <P>(f) The permittee may request that the Federal land manager extend or modify a permit.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 7.10</SECTNO> <SUBJECT>Suspension and revocation of permits.</SUBJECT> <P>(a) <E T="03">Suspension or revocation for cause.</E> (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 § 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.</P> <P>(2) The Federal land manager may revoke a permit upon assessment of a civil penalty under § 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.</P> <P>(b) <E T="03">Suspension or revocation for management purposes.</E> 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.</P> <CITA>[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 7.11</SECTNO> <SUBJECT>Appeals relating to permits.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="208"/> <SECTNO>§ 7.12</SECTNO> <SUBJECT>Relationship to section 106 of the National Historic Preservation Act.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 7.13</SECTNO> <SUBJECT>Custody of archaeological resources.</SUBJECT> <P>(a) Archaeological resources excavated or removed from the public lands remain the property of the United States.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 7.14</SECTNO> <SUBJECT>Determination of archaeological or commercial value and cost of restoration and repair.</SUBJECT> <P>(a) <E T="03">Archaeological value.</E> For purposes of this part, the archaeological value of any archaeological resource involved in a violation of the prohibitions in § 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.</P> <P>(b) <E T="03">Commercial value.</E> For purposes of this part, the commercial value of any archaeological resource involved in a violation of the prohibitions in § 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.</P> <P>(c) <E T="03">Cost of restoration and repair.</E> 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 may include, but need not be limited to, the costs of the following:</P> <P>(1) Reconstruction of the archaeological resource;</P> <P>(2) Stabilization of the archaeological resource;</P> <P>(3) Ground contour reconstruction and surface stabilization;</P> <P>(4) Research necessary to carry out reconstruction or stabilization;<PRTPAGE P="209"/> </P> <P>(5) Physical barriers or other protective devices, necessitated by the disturbance of the archaeological resource, to protect it from further disturbance;</P> <P>(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;</P> <P>(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.</P> <P>(8) Preparation of reports relating to any of the above activities.</P> </SECTION> <SECTION> <SECTNO>§ 7.15</SECTNO> <SUBJECT>Assessment of civil penalties.</SUBJECT> <P>(a) The Federal land manager may assess a civil penalty against any person who has violated any prohibition contained in § 7.4 or who has violated any term or condition included in a permit issued in accordance with the Act and this part.</P> <P>(b) <E T="03">Notice of violation.</E> 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:</P> <P>(1) A concise statement of the facts believed to show a violation;</P> <P>(2) A specific reference to the provision(s) of this part or to a permit issued pursuant to this part allegedly violated;</P> <P>(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;</P> <P>(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.</P> <P>(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:</P> <P>(1) Seek informal discussions with the Federal land manager;</P> <P>(2) File a petition for relief in accordance with paragraph (d) of this section;</P> <P>(3) Take no action and await the Federal land manager's notice of assessment;</P> <P>(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.</P> <P>(d) <E T="03">Petition for relief.</E> 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.</P> <P>(e) <E T="03">Assessment of penalty.</E> (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.</P> <P>(2) The Federal land manager shall take into consideration all available information, including information provided pursuant to paragraphs (c) and (d) of this section or furnished upon further request by the Federal land manager.</P> <P>(3) If the facts warrant a conclusion that no violation has occurred, the Federal land manager shall so notify <PRTPAGE P="210"/>the person served with a notice of violation, and no penalty shall be assessed.</P> <P>(4) Where the facts warrant a conclusion that a violation has occurred, the Federal land manager shall determine a penalty amount in accordance with § 7.16.</P> <P>(f) <E T="03">Notice of assessment.</E> 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:</P> <P>(1) The facts and conclusions from which it was determined that a violation did occur;</P> <P>(2) The basis in § 7.16 for determining the penalty amount assessed and/or any offer to mitigate or remit the penalty; and</P> <P>(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.</P> <P>(g) <E T="03">Hearings.</E> (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).</P> <P>(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.</P> <P>(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.</P> <P>(h) <E T="03">Final administrative decision.</E> (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;</P> <P>(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;</P> <P>(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.</P> <P>(i) <E T="03">Payment of penalty.</E> (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.</P> <P>(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.</P> <P>(j) <E T="03">Other remedies not waived.</E> Assessment of a penalty under this section shall not be deemed a waiver of the right to pursue other available legal or administrative remedies.</P> </SECTION> <SECTION> <SECTNO>§ 7.16</SECTNO> <SUBJECT>Civil penalty amounts.</SUBJECT> <P>(a) <E T="03">Maximum amount of penalty.</E> (1) Where the person being assessed a civil penalty has not committed any previous violation of any prohibition in § 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 <PRTPAGE P="211"/>resources damaged plus the archaeological or commercial value of archaeological resources destroyed or not recovered.</P> <P>(2) Where the person being assessed a civil penalty has committed any previous violation of any prohibition in § 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.</P> <P>(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.</P> <P>(b) <E T="03">Determination of penalty amount, mitigation, and remission.</E> 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.</P> <P>(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:</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(v) Determination that the person being assessed a civil penalty did not willfully commit the violation;</P> <P>(vi) Determination that the proposed penalty would constitute excessive punishment under the circumstances;</P> <P>(vii) Determination of other mitigating circumstances appropriate to consideration in reaching a fair and expeditious assessment.</P> <P>(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.</P> <P>(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.</P> <CITA>[49 FR 1027, Jan. 6, 1984, as amended at 52 FR 47721, Dec. 16, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 7.17</SECTNO> <SUBJECT>Other penalties and rewards.</SUBJECT> <P>(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.</P> <P>(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 § 7.16(b)(1)(iii) shall not be certified eligible to receive payment of rewards.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 7.18</SECTNO> <SUBJECT>Confidentiality of archaeological resource information.</SUBJECT> <P>(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 <PRTPAGE P="212"/>provision of law, information concerning the nature and location of any archaeological resource, with the following exceptions:</P> <P>(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.</P> <P>(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:</P> <P>(i) The specific archaeological resource or area about which information is sought;</P> <P>(ii) The purpose for which the information is sought; and</P> <P>(iii) The Governor's written commitment to adequately protect the confidentiality of the information.</P> <P>(b) [Reserved]</P> <CITA>[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 7.19</SECTNO> <SUBJECT>Report.</SUBJECT> <P>(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.</P> <P>(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 § 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.</P> <P>(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.</P> <CITA>[60 FR 5260, 5261, Jan. 26, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 7.20</SECTNO> <SUBJECT>Public awareness programs.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[60 FR 5260, 5261, Jan. 26, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 7.21</SECTNO> <SUBJECT>Surveys and schedules.</SUBJECT> <P>(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 <E T="03">et seq.</E> Survey plans prepared under this section will be designed to comply with the purpose of the Act regarding the protection of archaeological resources.</P> <P>(b) The Secretaries of the Interior, Agriculture, and Defense and the 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 <PRTPAGE P="213"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[60 FR 5260, 5261, Jan. 26, 1995]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Department of the Interior Supplemental Regulations</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 9168, Mar. 23, 1987, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 7.31</SECTNO> <SUBJECT>Scope and authority.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 7.32</SECTNO> <SUBJECT>Supplemental definitions.</SUBJECT> <P>For purposes of this subpart, the following definitions will be used:</P> <P>(a) <E T="03">Site of religious or cultural importance</E> means, for purposes of § 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.</P> <P>(b) <E T="03">Allotted lands</E> means lands granted to Indian individuals by the United States and held in trust for those individuals by the United States.</P> </SECTION> <SECTION> <SECTNO>§ 7.33</SECTNO> <SUBJECT>Determination of loss or absence of archaeological interest.</SUBJECT> <P>(a) Under certain circumstances, a Federal land manager may determine, pursuant to § 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.</P> <P>(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.</P> <P>(c) Prior to making a determination that material remains are not or are no longer archaeological resources, the Federal land manager shall ensure that the following procedures are completed:</P> <P>(1) A professional archaeological evaluation of material remains and similar materials within the area <PRTPAGE P="214"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 7.34</SECTNO> <SUBJECT>Procedural information for securing permits.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 7.35</SECTNO> <SUBJECT>Permitting procedures for Indian lands.</SUBJECT> <P>(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.</P> <P>(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).</P> <P>(c) The applicant should consult with the Bureau of Indian Affairs concerning procedures for obtaining consent from the appropriate Indian tribal 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 <PRTPAGE P="215"/>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 § 7.9 of this part.</P> <P>(d) The issuance of a permit under this part does not remove the requirement for any other permit required by Indian tribal law.</P> </SECTION> <SECTION> <SECTNO>§ 7.36</SECTNO> <SUBJECT>Permit reviews and disputes.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) Any disputant unsatisified with the higher level review, and desiring to appeal the decision, pursuant to § 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.</P> <P>(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 § 7.33(f) for the address of the Departmental Consulting Archeologist.</P> </SECTION> <SECTION> <SECTNO>§ 7.37</SECTNO> <SUBJECT>Civil penalty hearings procedures.</SUBJECT> <P>(a) <E T="03">Requests for hearings.</E> Any person wishing to request a hearing on a notice of assessment of civil penalty, pursuant to § 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.</P> <P>(b) <E T="03">Waiver of right to a hearing.</E> 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.</P> <P>(c) <E T="03">Commencement of hearing procedures.</E> 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.</P> <P>(d) <E T="03">Appearance and practice.</E> (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 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.<PRTPAGE P="216"/> </P> <P>(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 § 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.</P> <P>(e) <E T="03">Hearing administration.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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 § 7.15 of this part or any offer of mitigation or remission made by the Federal land manager.</P> <P>(f) <E T="03">Appeal.</E> (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.</P> <P>(2) Upon receipt of such a notice, the Director, Office of Hearings and Appeals, shall appoint an <E T="03">ad hoc</E> 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.</P> <P>(g) <E T="03">Report service.</E> 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.</P> <CITA>[52 FR 9168, Mar. 23, 1987, as amended at 67 FR 4368, Jan. 30, 2002]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 8</EAR> <HD SOURCE="HED">PART 8—JOINT POLICIES OF THE DEPARTMENTS OF THE INTERIOR AND OF THE ARMY RELATIVE TO RESERVOIR PROJECT LANDS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>8.0</SECTNO> <SUBJECT>Acquisition of lands for reservoir projects.</SUBJECT> <SECTNO>8.1</SECTNO> <SUBJECT>Lands for reservoir construction and operation.</SUBJECT> <SECTNO>8.2</SECTNO> <SUBJECT>Additional lands for correlative purposes.</SUBJECT> <SECTNO>8.3</SECTNO> <SUBJECT>Easements.</SUBJECT> <SECTNO>8.4</SECTNO> <SUBJECT>Blocking out.</SUBJECT> <SECTNO>8.5</SECTNO> <SUBJECT>Mineral rights.</SUBJECT> <SECTNO>8.6</SECTNO> <SUBJECT>Buildings.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 7, 32 Stat. 389, sec. 14, 53 Stat. 1197; 43 U.S.C. 421, 389.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>31 FR 9108, July 2, 1966, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 8.0</SECTNO> <SUBJECT>Acquisition of lands for reservoir projects.</SUBJECT> <P>In so far as permitted by law, it is the policy of the Departments of the Interior and of the Army to acquire, as <PRTPAGE P="217"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 8.1</SECTNO> <SUBJECT>Lands for reservoir construction and operation.</SUBJECT> <P>The fee title will be acquired to the following:</P> <P>(a) Lands necessary for permanent structures.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 8.2</SECTNO> <SUBJECT>Additional lands for correlative purposes.</SUBJECT> <P>The fee title will be acquired for the following:</P> <P>(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.</P> <P>(b) Such lands as are needed to meet present and future public requirements for outdoor recreation, as may be authorized by Congress.</P> </SECTION> <SECTION> <SECTNO>§ 8.3</SECTNO> <SUBJECT>Easements.</SUBJECT> <P>Easements in lieu of fee title may be taken only for lands that meet all of the following conditions:</P> <P>(a) Lands lying above the storage pool.</P> <P>(b) Lands in remote portions of the project area.</P> <P>(c) Lands determined to be of no substantial value for protection or enhancement of fish and wildlife resources, or for public outdoor recreation.</P> <P>(d) It is to the financial advantage of the Government to take easements in lieu of fee title.</P> </SECTION> <SECTION> <SECTNO>§ 8.4</SECTNO> <SUBJECT>Blocking out.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 8.5</SECTNO> <SUBJECT>Mineral rights.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 8.6</SECTNO> <SUBJECT>Buildings.</SUBJECT> <P>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 9</EAR> <HD SOURCE="HED">PART 9—INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF THE INTERIOR PROGRAMS AND ACTIVITIES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>9.1</SECTNO> <SUBJECT>What is the purpose of these regulations?</SUBJECT> <SECTNO>9.2</SECTNO> <SUBJECT>What definitions apply to these regulations?</SUBJECT> <SECTNO>9.3</SECTNO> <SUBJECT>What programs and activities of the Department are subject to these regulations?</SUBJECT> <SECTNO>9.4</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>9.5</SECTNO> <SUBJECT>What is the Secretary's obligation with respect to Federal interagency coordination?</SUBJECT> <SECTNO>9.6</SECTNO> <SUBJECT>What procedures apply to the selection of programs and activities under these regulations?</SUBJECT> <SECTNO>9.7</SECTNO> <SUBJECT>How does the Secretary communicate with state and local officials concerning the Department's programs and activities?</SUBJECT> <SECTNO>9.8</SECTNO> <SUBJECT>How does the Secretary provide states an opportunity to comment on proposed federal financial assistance and direct federal development?</SUBJECT> <SECTNO>9.9</SECTNO> <SUBJECT>How does the Secretary receive and respond to comments?</SUBJECT> <SECTNO>9.10</SECTNO> <SUBJECT>How does the Secretary make efforts to accommodate intergovernmental concerns?<PRTPAGE P="218"/> </SUBJECT> <SECTNO>9.11</SECTNO> <SUBJECT>What are the Secretary's obligations in interstate situations?</SUBJECT> <SECTNO>9.12</SECTNO> <SUBJECT>How may a state simplify, consolidate, or substitute federally required state plans?</SUBJECT> <SECTNO>9.13</SECTNO> <SUBJECT>May the Secretary waive any provision of these regulations?</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>48 FR 29232, June 24, 1983, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 9.1</SECTNO> <SUBJECT>What is the purpose of these regulations?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 9.2</SECTNO> <SUBJECT>What definitions apply to these regulations?</SUBJECT> <P> <E T="03">Department</E> means the U.S. Department of the Interior.</P> <P> <E T="03">Order</E> means Executive Order 12372, issued July 14, 1982, and amended April 8, 1983 and titled “Intergovernmental Review of Federal Programs.”</P> <P> <E T="03">Secretary</E> 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.</P> <P> <E T="03">State</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 9.3</SECTNO> <SUBJECT>What programs and activities of the Department are subject to these regulations?</SUBJECT> <P>(a) The Secretary publishes in the <E T="04">Federal Register</E> 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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 9.4</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 9.5</SECTNO> <SUBJECT>What is the Secretary's obligation with respect to Federal interagency coordination?</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 9.6</SECTNO> <SUBJECT>What procedures apply to the selection of programs and activities under these regulations?</SUBJECT> <P>(a) A state may select any program or activity published in the <E T="04">Federal Register</E> in accordance with § 9.3 of this part for intergovernmental review under these regulations. Each state, before selecting programs and activities, shall consult with local elected officials.</P> <P>(b) Each state that adopts a process shall notify the Secretary of the Department's programs and activities selected for that process.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="219"/> <SECTNO>§ 9.7</SECTNO> <SUBJECT>How does the Secretary communicate with state and local officials concerning the Department's programs and activities?</SUBJECT> <P>(a) For those programs and activities covered by a state process under § 9.6, the Secretary, to the extent permitted by law:</P> <P>(1) Uses the state process to determine views of state and local elected officials; and,</P> <P>(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.</P> <P>(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:</P> <P>(1) The state has not adopted a process under the Order; or</P> <P>(2) The assistance or development involves a program or activity not selected for the state process.</P> <FP>This notice may be made by publication in the <E T="04">Federal Register</E> or other appropriate means, which the Department in its discretion deems appropriate.</FP> </SECTION> <SECTION> <SECTNO>§ 9.8</SECTNO> <SUBJECT>How does the Secretary provide states an opportunity to comment on proposed federal financial assistance and direct federal development?</SUBJECT> <P>(a) Except in unusual circumstances, the Secretary gives state processes or directly affected state, areawide, regional and local officials and entities:</P> <P>(1) At least 30