[Title 43 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2002 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
43
Parts 1 to 999
Revised as of October 1, 2002
Public Lands: Interior
Containing a codification of documents of general
applicability and future effect
As of October 1, 2002
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2002
For sale by the Superintendent of Documents, U.S. Government Printing
Office
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 43:
Subtitle A--Office of the Secretary of the Interior 3
Subtitle B--Regulations Relating to Public Lands
Chapter I--Bureau of Reclamation, Department of the
Interior 545
Finding Aids:
Material Approved for Incorporation by Reference........ 647
Table of CFR Titles and Chapters........................ 649
Alphabetical List of Agencies Appearing in the CFR...... 667
List of CFR Sections Affected........................... 677
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 43 CFR 1.1 refers to
title 43, part 1, section
1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 2002), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
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site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2002.
[[Page ix]]
THIS TITLE
Title 43--Public Lands: Interior is composed of two volumes. Volume
one (parts 1-999) contains all current regulations issued under subtitle
A--Office of the Secretary of the Interior and chapter I--Bureau of
Reclamation, Department of the Interior. Volume two (part 1000 to End)
includes all regulations issued under chapter II--Bureau of Land
Management, Department of the Interior, and Chapter III--Utah
Reclamation Mitigation and Conservation Commission. The contents of
these volumes represent all current regulations codified under this
title of the CFR as of October 1, 2002.
In the second volume, containing chapter II--Bureau of Land
Management, Department of the Interior, the OMB control numbers appear
in a ``Note'' immediately below the ``Group'' headings throughout the
chapter, if applicable.
[[Page x]]
[[Page 1]]
TITLE 43--PUBLIC LANDS: INTERIOR
(This book contains parts 1 to 999)
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Part
SUBTITLE A--Office of the Secretary of the Interior......... 1
SUBTITLE B--Regulations Relating to Public Lands
chapter i--Bureau of Reclamation, Department of the Interior 402
[[Page 3]]
Subtitle A--Office of the Secretary of the Interior
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Part Page
1 Practices before the Department of the
Interior................................ 5
2 Records and testimony; Freedom of
Information Act......................... 6
3 Preservation of American antiquities........ 39
4 Department hearings and appeals procedures.. 41
5 Making pictures, television productions or
sound tracks on certain areas under the
jurisdiction of the Department of the
Interior................................ 166
6 Patent regulations.......................... 167
7 Protection of archaeological resources...... 176
8 Joint policies of the Departments of the
Interior and of the Army relative to
reservoir project lands................. 192
9 Intergovernmental review of Department of
the Interior programs and activities.... 193
10 Native American graves protection and
repatriation regulations................ 196
11 Natural resource damage assessments......... 220
12 Administrative and audit requirements and
cost principles for assistance programs. 281
13 Vending facilities operated by blind persons 362
14 Petitions for rulemaking.................... 365
15 Key Largo Coral Reef Preserve............... 365
16 Conservation of helium...................... 367
17 Nondiscrimination in federally assisted
programs of the Department of the
Interior................................ 368
18 New restrictions on lobbying................ 405
19 Wilderness preservation..................... 417
20 Employee responsibilities and conduct....... 420
21 Occupancy of cabin sites on public
conservation and recreation areas....... 431
[[Page 4]]
22 Administrative claims under the Federal Tort
Claims Act and indemnification of
Department of the Interior employees.... 435
23 Surface exploration, mining and reclamation
of lands................................ 437
24 Department of the Interior fish and wildlife
policy: State-Federal relationships..... 445
26 Grants to States for establishing Youth
Conservation Corps programs............. 450
27 Nondiscrimination in activities conducted
under permits, rights-of-way, public
land orders, and other Federal
authorizations granted or issued under
Title II of Public Law 93-153........... 455
28 Fire protection emergency assistance........ 467
29 Trans-Alaska Pipeline Liability Fund........ 467
32 Grants to States for establishing Young
Adult Conservation Corps (YACC) program. 474
33 Allocation of duty-free watches from the
Virgin Islands, Guam, and American Samoa
[Note].................................. 484
34 Requirements for equal opportunity during
construction and operation of the Alaska
Natural Gas Transportation System....... 484
35 Administrative remedies for fraudulent
claims and statements................... 495
36 Transportation and utility systems in and
across, and access into, conservation
system units in Alaska.................. 510
37 Cave management............................. 520
38 Pay of U.S. Park Police--interim geographic
adjustments............................. 523
41 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 524
[[Page 5]]
PART 1--PRACTICES BEFORE THE DEPARTMENT OF THE INTERIOR--Table of Contents
Sec.
1.1 Purpose.
1.2 Definitions.
1.3 Who may practice.
1.4 Disqualifications.
1.5 Signature to constitute certificate.
1.6 Disciplinary proceedings.
Authority: Sec. 5, 23 Stat. 101; 43 U.S.C. 1464.
Source: 29 FR 143, Jan. 7, 1964, unless otherwise noted.
Sec. 1.1 Purpose.
This part governs the participation of individuals in proceedings,
both formal and informal, in which rights are asserted before, or
privileges sought from, the Department of the Interior.
Sec. 1.2 Definitions.
As used in this part the term:
(a) Department includes any bureau, office, or other unit of the
Department of the Interior, whether in Washington, DC, or in the field,
and any officer or employee thereof;
(b) Solicitor means the Solicitor of the Department of the Interior
or his authorized representative;
(c) Practice includes any action taken to support or oppose the
assertion of a right before the Department or to support or oppose a
request that the Department grant a privilege; and the term ``practice''
includes any such action whether it relates to the substance of, or to
the procedural aspects of handling, a particular matter. The term
``practice'' does not include the preparation or filing of an
application, the filing without comment of documents prepared by one
other than the individual making the filing, obtaining from the
Department information that is available to the public generally, or the
making of inquiries respecting the status of a matter pending before the
Department. Also, the term ``practice'' does not include the
representation of an employee who is the subject of disciplinary,
loyalty, or other personnel administrative proceedings.
Sec. 1.3 Who may practice.
(a) Only those individuals who are eligible under the provisions of
this section may practice before the Department, but this provision
shall not be deemed to restrict the dealings of Indian tribes or members
of Indian tribes with the Department.
(b) Unless disqualified under the provisions of Sec. 1.4 or by
disciplinary action taken pursuant to Sec. 1.6:
(1) Any individual who has been formally admitted to practice before
the Department under any prior regulations and who is in good standing
on December 31, 1963, shall be permitted to practice before the
Department.
(2) Attorneys at law who are admitted to practice before the courts
of any State, the District of Columbia, the Commonwealth of Puerto Rico,
American Samoa, the Trust Territory of the Pacific Islands, or the
District Court of the Virgin Islands will be permitted to practice
without filing an application for such privilege.
(3) An individual who is not otherwise entitled to practice before
the Department may practice in connection with a particular matter on
his own behalf or on behalf of
(i) A member of his family;
(ii) A partnership of which he is a member;
(iii) A corporation, business trust, or an association, if such
individual is an officer or full-time employee;
(iv) A receivership, decedent's estate, or a trust or estate of
which he is the receiver, administrator, or other similar fiduciary;
(v) The lessee of a mineral lease that is subject to an operating
agreement or sublease which has been approved by the Department and
which grants to such individual a power of attorney;
(vi) A Federal, State, county, district, territorial, or local
government or agency thereof, or a government corporation, or a district
or advisory board established pursuant to statute; or
(vii) An association or class of individuals who have no specific
interest that will be directly affected by the disposition of the
particular matter.
Sec. 1.4 Disqualifications.
No individual may practice before the Department if such practice
would violate the provisions of 18 U.S.C. 203, 205, or 207.
[[Page 6]]
Sec. 1.5 Signature to constitute certificate.
When an individual who appears in a representative capacity signs a
paper in practice before the Department, his signature shall constitute
his certificate:
(a) That under the provisions of this part and the law, he is
authorized and qualified to represent the particular party in the
matter;
(b) That, if he is the partner of a present or former officer or
employee, including a special Government employee, the matter in respect
of which he intends to practice is not a matter in which such officer or
employee of the Government or special Government employee participates
or has participated personally and substantially as a Government
employee through decision, approval, disapproval, recommendation, the
rendering of advice, investigation or otherwise and that the matter is
not the subject of such partner's official Government responsibility;
(c) That, if he is a former officer or employee, including a special
Government employee, the matter in respect of which he intends to
practice is not a matter in which he participated personally and
substantially as a Government employee through decision, approval,
disapproval, recommendation, the rendering of advice, investigation, or
otherwise, while so employed and, if a period of one year has not passed
since the termination of his employment with the Government, that the
matter was not under his official responsibility as an officer or
employee of the Government; and
(d) That he has read the paper; that to the best of his knowledge,
information, and belief there is good ground to support its contents;
that it contains no scandalous or indecent matter; and that it is not
interposed for delay.
Sec. 1.6 Disciplinary proceedings.
(a) Disciplinary proceedings may be instituted against anyone who is
practicing or has practiced before the Department on grounds that he is
incompetent, unethical, or unprofessional, or that he is practicing
without authority under the provisions of this part, or that he has
violated any provisions of the laws and regulations governing practice
before the Department, or that he has been disbarred or suspended by any
court or administrative agency. Individuals practicing before the
Department should observe the Canons of Professional Ethics of the
American Bar Association and those of the Federal Bar Association, by
which the Department will be guided in disciplinary matters.
(b) Whenever in the discretion of the Solicitor the circumstances
warrant consideration of the question whether disciplinary action should
be taken against an individual who is practicing or has practiced before
the Department, the Solicitor shall appoint a hearing officer to
consider and dispose of the case. The hearing officer shall give the
individual adequate notice of, and an opportunity for a hearing on, the
specific charges against him. The hearing shall afford the individual an
opportunity to present evidence and cross-examine witnesses. The hearing
officer shall render a decision either (1) dismissing the charges, or
(2) reprimanding the individual or suspending or excluding him from
practice before the Department.
(c) Within 30 days after receipt of the decision of the hearing
officer reprimanding, suspending, or excluding an individual from
practice before the Department, an appeal may be filed with the
Solicitor, whose decision shall be final.
PART 2--RECORDS AND TESTIMONY; FREEDOM OF INFORMATION ACT--Table of Contents
Subpart A--Opinions in Adjudication of Cases, Administrative Manuals
Sec.
2.1 Purpose and scope.
2.2 Opinions in adjudication of cases.
2.3 Administrative manuals.
Subpart B--Requests for Records
2.11 Purpose and scope.
2.12 Definitions.
2.13 Records available.
2.14 Requests for records.
2.15 Preliminary processing of requests.
2.16 Action on initial requests.
2.17 Time limits for processing initial requests.
[[Page 7]]
2.18 Appeals.
2.19 Action on appeals.
2.20 Fees.
2.21 Waiver of fees.
2.22 Special rules governing certain information concerning coal
obtained under the Mineral Leasing Act.
Subpart C--Declassification of Classified Documents
2.41 Declassification of classified documents.
Subpart D--Privacy Act
2.45 Purpose and scope.
2.46 Definitions.
2.47 Records subject to Privacy Act.
2.48 Standards for maintenance of records subject to the Act.
2.49 [Reserved]
2.50 Federal Register notices describing systems of records.
2.51 Assuring integrity of records.
2.52 Conduct of employees.
2.53 Government contracts.
2.54-2.55 [Reserved]
2.56 Disclosure of records.
2.57 Accounting for disclosures.
2.58-2.59 [Reserved]
2.60 Request for notification of existence of records: Submission.
2.61 Requests for notification of existence of records: Action on.
2.62 Requests for access to records.
2.63 Requests for access to records: Submission.
2.64 Requests for access to records: Initial decision.
2.65 Requests for notification of existence of records and for access
to records: Appeals.
2.66 Requests for access to records: Special situations.
2.67-2.69 [Reserved]
2.70 Amendment of records.
2.71 Petitions for amendment: Submission and form.
2.72 Petitions for amendment: Processing and initial decision.
2.73 Petitions for amendments: Time limits for processing.
2.74 Petitions for amendment: Appeals.
2.75 Petitions for amendment: Action on appeals.
2.76 [Reserved]
2.77 Statements of disagreement.
2.78 [Reserved]
2.79 Exemptions.
Subpart E--Legal Process: Testimony by Employees and Production of
Records
General Information
2.80 What does this subpart cover?
2.81 What is the Department's policy on granting requests for employee
testimony or Department records?
Responsibilities of Requesters
2.82 How can I obtain employee testimony or Department records?
2.83 If I serve a subpoena duces tecum, must I also submit a Touhy
Request?
2.84 What information must I put in my Touhy Request?
2.85 How much will I be charged?
2.86 Can I get an authenticated copy of a Department record?
Responsibilities of the Department
2.87 How will the Department process my Touhy Request?
2.88 What criteria will the Department consider in responding to my
Touhy Request?
Responsibilities of Employees
2.89 What must I, as an employee, do upon receiving a request?
2.90 Must I get approval before testifying as an expert witness on a
subject outside the scope of my official duties?
Appendix A to Part 2--Fees
Appendix B to Part 2--Bureaus and Offices of the Department of the
Interior
Authority: 5 U.S.C. 301, 552 and 552a; 31 U.S.C. 9701; and 43 U.S.C.
1460.
Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.
Subpart A--Opinions in Adjudication of Cases, Administrative Manuals
Sec. 2.1 Purpose and scope.
This subpart contains the regulations of the Department of the
Interior concerning the availability to the public of opinions issued in
the adjudication of cases and of administrative manuals. Persons
interested in obtaining access to other records are directed to the
procedures for submission of Freedom of Information requests set out in
subpart B of this part.
Sec. 2.2 Opinions in adjudication of cases.
(a)(1) Copies of final decisions and orders issued on and after July
1, 1970, in the following categories of cases are available for
inspection and copying in the Office of Hearings and Appeals, 801 North
Quincy Street, Arlington, Va. 22203:
[[Page 8]]
(i) Contract appeals;
(ii) Appeals from decisions rendered by departmental officials
relating to the use and disposition of public lands and their resources
and the use and disposition of mineral resources in certain acquired
lands of the United States and in the submerged lands of the Outer
Continental Shelf;
(iii) Appeals from orders and decisions issued by departmental
officials and administrative law judges in proceedings relating to mine
health and safety; and
(iv) Appeals from orders and decisions of administrative law judges
in Indian probate matters other than those involving estates of Indians
of the Five Civilized Tribes and Osage Indians.
(2) Copies of final opinions and orders issued in the following
categories of cases are available for inspection and copying in the
Docket and Records Section, Office of the Solicitor, Interior Building,
Washington, DC 20240:
(i) Tort claims decided in the headquarters office of the Office of
the Solicitor, and appeals from decisions of Regional Solicitors or
Field Solicitors on tort claims;
(ii) Irrigation claims under Public Works Appropriation Acts (e.g.,
79 Stat., 1103) or 25 U.S.C. 388 decided in the headquarters office of
the Office of the Solicitor, and appeals from decisions of Regional
Solicitors on irrigation claims;
(iii) Appeals under Sec. 2.18 respecting availability of records;
(iv) Appeals from decisions of officials of the Bureau of Indian
Affairs, and Indian enrollment appeals; and
(v) Appeals from decisions of officers of the Bureau of Land
Management and of the Geological Survey in proceedings relating to lands
or interests in land, contract appeals, and appeals in Indian probate
proceedings, issued prior to July 1, 1970.
(3) An Index-Digest is issued by the Department. All decisions,
opinions and orders issued in the categories of cases described in
paragraphs (a)(1), (i), (ii), and (iii) of this section (that is,
contract appeals, land appeals, and mine health and safety appeals), are
covered in the Index-Digest; in addition, the Index-Digest covers the
more important decisions, opinions and orders in the remaining
categories of cases described in paragraphs (a)(1)(iv) and (a)(2) (i)
through (iv) of this section, and the more important opinions of law
issued by the Office of the Solicitor. The Index-Digest is available for
use by the public in the Office of Hearings and Appeals, 801 North
Quincy Street, Arlington, Va. 22203, in the Docket and Records Section,
Office of the Solicitor, Interior Building, Washington, DC 20240, and in
the offices of the Regional Solicitors and Field Solicitors. Selected
decisions, opinions, and orders are published in a series entitled
``Decisions of the United States Department of the Interior'' (cited as
I.D.), and copies may be obtained by subscription from the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402.
(4) Copies of final opinions and orders issued by Regional
Solicitors on tort claims and irrigation claims, and copies of final
opinions and orders on appeals in Indian probate proceedings issued by
Regional Solicitors prior to July 1, 1970, are available for inspection
and copying in their respective offices. Copies of final opinions and
orders issued by Field Solicitors on tort claims are available for
inspection and copying in their respective offices.
(b)(1) Copies of final decisions and orders issued prior to July 1,
1970, on appeals to the Director, Bureau of Land Management, and by
hearing examiners of the Bureau of Land Management, in proceedings
relating to lands and interests in land are available for inspection and
copying in the Office of Hearings and Appeals, 801 North Quincy Street,
Arlington, Va. 22203, and in the offices of the Departmental
administrative law judges.
(2) Copies of final decisions, opinions and orders issued on and
after July 1, 1970, by departmental administrative law judges in all
proceedings before them are available for inspection and copying in
their respective offices and in the Office of Hearings and Appeals, ,
Arlington, VA 22203.
(3) Copies of final decisions, opinions and orders issued by
administrative
[[Page 9]]
law judges in Indian probate proceedings are available for inspection
and copying in their respective offices.
[40 FR 7305, Feb. 19, 1975, as amended at 67 FR 4368, Jan. 30, 2002]
Sec. 2.3 Administrative manuals.
The Departmental Manual is available for inspection in the
Departmental Library, Interior Building, Washington, DC, and at each of
the regional offices of bureaus of the Department. The administrative
manuals of those bureaus which have issued such documents are available
for inspection at the headquarters officers and at the regional offices
of the bureaus.
Subpart B--Requests for Records
Source: 52 FR 45586, Nov. 30, 1987, unless otherwise noted.
Sec. 2.11 Purpose and scope.
(a) This subpart contains the procedures for submission to and
consideration by the Department of the Interior of requests for records
under the Freedom of Information Act.
(b) Before invoking the formal procedures set out below, persons
seeking records from the Department may find it useful to consult with
the appropriate bureau FOIA officer. Bureau offices are listed in
Appendix B to this part.
(c) The procedures in this subpart do not apply to:
(1) Records published in the Federal Register, opinions in the
adjudication of cases, statements of policy and interpretations, and
administrative staff manuals that have been published or made available
under subpart A of this part.
(2) Records or information compiled for law enforcement purposes and
covered by the disclosure exemption described in Sec. 2.13(c)(7) if--
(i) The investigation or proceeding involves a possible violation of
criminal law; and
(ii) There is reason to believe that--
(A) The subject of the investigation or proceeding is not aware of
its pendency, and
(B) Disclosure of the existence of the records could reasonably be
expected to interfere with enforcement proceedings.
(3) Informant records maintained by a criminal law enforcement
component of the Department under an informant's name or personal
identifier, if requested by a third party according to the informant's
name or personal identifier, unless the informant's status as an
informant has been officially confirmed.
Sec. 2.12 Definitions.
(a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552.
(b) Bureau refers to all constituent bureaus of the Department of
the Interior, the Office of the Secretary, and the other Departmental
offices. A list of bureaus is contained in Appendix B to this part.
(c) Working day means a regular Federal workday. It does not include
Saturdays, Sundays or public legal holidays.
Sec. 2.13 Records available.
(a) Department policy. It is the policy of the Department of the
Interior to make the records of the Department available to the public
to the greatest extent possible, in keeping with the spirit of the
Freedom of Information Act.
(b) Statutory disclosure requirement. The Act requires that the
Department, on a request from a member of the public submitted in
accordance with the procedures in this subpart, make requested records
available for inspection and copying.
(c) Statutory exemptions. Exempted from the Act's statutory
disclosure requirement are matters that are:
(1)(i) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy and
(ii) Are in fact properly classified pursuant to such Executive
order;
(2) Related solely to the internal personnel rules and practices of
an agency;
(3) Specifically exempted from disclosure by statute (other than the
Privacy Act), provided that such statute--
(i) Requires that the matters be withheld from the public in such a
manner
[[Page 10]]
as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the agency;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information--
(i) Could reasonably be expected to interfere with enforcement
proceedings,
(ii) Would deprive a person of a right to a fair or an impartial
adjudication,
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy,
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigtion, information furnished by a confidential
source,
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law, or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(9) Geological and geophysical information and data, including maps,
concerning wells.
(d) Decisions on requests. It is the policy of the Department to
withhold information falling within an exemption only if--
(1) Disclosure is prohibited by statute or Executive order or
(2) Sound grounds exist for invocation of the exemption.
(e) Disclosure of reasonably segregable nonexempt material. If a
requested record contains material covered by an exemption and material
that is not exempt, and it is determined under the procedures in this
subpart to withhold the exempt material, any reasonably segregable
nonexempt material shall be separated from the exempt material and
released.
Sec. 2.14 Requests for records.
(a) Submission of requests. (1) A request to inspect or copy records
shall be made to the installation where the records are located. If the
records are located at more than one installation or if the specific
location of the records is not known to the requester, he or she may
direct a request to the head of the appropriate bureau or to the
bureau's FOIA officer. Addresses for bureau heads and FOIA officers are
contained in Appendix B to this part.
(2) Exceptions. (i) A request for records located in all components
of the Office of the Secretary (other than the Office of Hearings and
Appeals) shall be submitted to: Director, Office of Administrative
Services, U.S. Department of the Interior, Washington, DC 20240. A
request for records located in the Office of Hearings and Appeals shall
be submitted to: Director, Office of Hearings and Appeals, 801 North
Quincy Street, Arlington, Virginia 22203.
(ii) A request for records of the Office of Inspector General shall
be submitted to: Inspector General, Office of the Inspector General,
U.S. Department of the Interior, Washington, DC 20240.
(iii) A request for records of the Office of the Solicitor shall be
submitted to: Solicitor, Office of the Solicitor,
[[Page 11]]
U.S. Department of the Interior, Washington, DC 20240.
(b) Form of requests. (1) Requests under this subpart shall be in
writing and must specifically invoke the Act.
(2) A request must reasonably describe the records requested. A
request reasonably describes the records requested if it will enable an
employee of the Department familiar with the subject area of the request
to locate the record with a reasonable amount of effort. If such
information is available, the request should identify the subject matter
of the record, the date when it was made, the place where it was made,
the person or office that made it, the present custodian of the record,
and any other information that will assist in locating the requested
record. If the request involves a matter known by the requester to be in
litigation, the request should also state the case name and court
hearing the case.
(3)(i) A request shall--
(A) Specify the fee category (commercial use, news media,
educational institution, noncommercial scientific institution, or other)
in which the requester claims the request to fall and the basis of this
claim (see Sec. 2.20(b) through (e) for definitions) and
(B) State the maximum amount of fees that the requester is willing
to pay or include a request for a fee waiver.
(ii) Requesters are advised that, under Sec. 2.20 (f) and (g), the
time for responding to requests may be delayed--
(A) If a requester has not sufficiently identified the fee category
applicable to the request,
(B) If a requester has not stated a willingness to pay fees as high
as anticipated by the Department or
(C) If a fee waiver request is denied and the requester has not
included an alternative statement of willingness to pay fees as high as
anticipated by the Department.
(4) A request seeking a fee waiver shall, to the extent possible,
address why the requester believes that the criteria for fee waivers set
out in Sec. 2.21 are met.
(5) To ensure expeditious handling, requests should be prominently
marked, both the envelope and on the face of the request, with the
legend ``FREEDOM OF INFORMATION REQUEST.''
(c) Creation of records. A request may seek only records that are in
existence at the time the request is received. A request may not seek
records that come into existence after the date on which it is received
and may not require that new records be created in response to the
request by, for example, combining or compiling selected items from
manual files, preparing a new computer program, or calculating
proportions, percentages, frequency distributions, trends or
comparisons. In those instances where the Department determines that
creating a new record will be less burdensome than disclosing large
volumes of unassembled material, the Department may, in its discretion,
agree to creation of a new record as an alternative to disclosing
existing records.
[52 FR 45586, Nov. 30, 1987, as amended at 67 FR 4368, Jan. 30, 2002]
Sec. 2.15 Preliminary processing of requests.
(a) Scope of requests. (1) Unless a request clearly specifies
otherwise, requests to field installations of a bureau may be presumed
to seek only records at that installation and requests to a bureau head
or bureau FOIA officer may be presumed to seek only records of that
bureau.
(2) If a request to a field installation of a bureau specifies that
it seeks records located at other installations of the same bureau, the
installation shall refer the request to the other installation(s) or the
bureau FOIA officer for appropriate processing. The time limit provided
in Sec. 2.17(a) does not start until the request is received at the
installation having the records or by the bureau FOIA officer.
(3) If a request to a bureau specifies that it seeks records of
another bureau, the bureau may return the request (or the relevant
portion thereof) to the requester with instructions as to how the
request may be resubmitted to the other bureau.
(b) Intradepartmental consultation and referral. (1) If a bureau
(other than the Office of Inspector General) receives a request for
records in its possession
[[Page 12]]
that originated with or are of substantial concern to another bureau, it
shall consult with that bureau before deciding whether to release or
withhold the records.
(2) As an alternative to consultation, a bureau may refer the
request (or the relevant protion thereof) to the bureau that originated
or is substantially concerned with the records. Such referrals shall be
made expeditiously and the requester shall be notified in writing that a
referral has been made. A referral under this paragraph does not restart
the time limit provided in Sec. 2.17.
(c) Records of other departments and agencies. (1) If a requested
record in the possession of the Department of the Interior originated
with another Federal department or agency, the request shall be referred
to that agency unless--
(i) The record is of primary interest to the Department,
(ii) The Department is in a better position than the originating
agency to assess whether the record is exempt from disclosure, or
(iii) The originating agency is not subject to the Act.
The Department has primary interest in a record if it was developed or
prepared pursuant to Department regulations, directives or request.
(2) In accordance with Execuctive Order 12356, a request for
documents that were classified by another agency shall be referred to
that agency.
(d) Consultation with submitters of commercial and financial
information. (1) If a request seeks a record containing trade secrets or
commercial or financial information submitted by a person outside of the
Federal government, the bureau processing the request shall provide the
submitter with notice of the request whenever--
(i) The submitter has made a good faith designation of the
information as commercially or financially sensitive, or
(ii) The bureau has reason to believe that disclosure of the
information may result in commercial or financial injury to the
submitter.
Where notification of a voluminous number of submitters is required,
such notification may be accomplished by posting or publishing the
notice in a place reasonably calculated to accomplish notification.
(2) The notice to the submitter shall afford the submitter a
reasonable period within which to provide a detailed statement of any
objection to disclosure. The submitter's statement shall explain the
basis on which the information is claimed to be exempt under the FOIA,
including a specification of any claim of competitive or other business
harm that would result from disclosure. The statement shall also include
a certification that the information is confidential, has not been
disclosed to the public by the submitter, and is not routinely available
to the public from other sources.
(3) If a submitter's statement cannot be obtained within the time
limit for processing the request under Sec. 2.17, the requester shall be
notified of the delay as provided in Sec. 2.17(f).
(4) Notification to a submitter is not required if:
(i) The bureau determines, prior to giving notice, that the request
for the record should be denied;
(ii) The information has previously been lawfully published or
officially made available to the public;
(iii) Disclosure is required by a statute (other than the FOIA) or
regulation (other than this subpart);
(iv) Disclosure is clearly prohibited by a statute, as described in
Sec. 2.13(c)(3);
(v) The information was not designated by the submitter as
confidential when it was submitted, or a reasonable time thereafter, if
the submitter was specifically afforded an opportunity to make such a
designation; however, a submitter will be notified of a request for
information that was not designated as confidential at the time of
submission, or a reasonable time thereafter, if there is substantial
reason to believe that disclosure of the information would result in
competitive harm.
(vi) The designation of confidentiality made by the submitter is
obviously frivolous; or
(vii) The information was submitted to the Department more than 10
years prior to the date of the request, unless the bureau has reason to
believe that it continues to be confidential.
[[Page 13]]
(5) If a requester brings suit to compel disclosure of information,
the submitter of the information will be promptly notified.
Sec. 2.16 Action on initial requests.
(a) Authority. (1) Requests to field installations shall be decided
by the head of the installation or by such higher authority as the head
of the bureau may designate in writing.
(2) Requests to the headquarters of a bureau shall be decided only
by the head of the bureau or an official whom the head of the bureau has
in writing designated.
(3) Requests to the Office of the Secretary may be decided by the
Director of Administrative Services, an Assistant Secretary or Assistant
Secretary's designee, and any official whom the Secretary has in writing
designated.
(4) A decision to withhold a requested record, to release a record
that is exempt from disclosure, or to deny a fee waiver shall be made
only after consultation with the office of the appropriate associate,
regional, or field solicitor.
(b) Form of grant. (1) When a requested record has been determined
to be available, the official processing the request shall notify the
requester as to when and where the record is available for inspection
or, as the case may be, when and how copies will be provided. If fees
are due, the official shall state the amount of fees due and the
procedures for payment, as described in Sec. 2.20.
(2) If a requested record (or portion thereof) is being made
available over the objections of a submitter made in accordance with
Sec. 2.15(d), both the requester and the submitter shall be notified of
the decision. The notice to the submitter (a copy of which shall be made
available to the requester) shall be forwarded a reasonable number of
days prior to the date on which disclosure is to be made and shall
include:
(i) A statement of the reasons why the submitter's objections were
not sustained;
(ii) A specification of the portions of the record to be disclosed,
if the submitter's objections were sustained in part; and
(iii) A specified disclosure date.
(3) If a claim of confidentiality has been found frivolous in
accordance with Sec. 2.15(d)(4)(vi) and a determination is made to
release the information without consultation with the submitter, the
submitter of the information shall be notified of the decision and the
reasons therefor a reasonable number of days prior to the date on which
disclosure is to be made.
(c) Form of denial. (1) A decision withholding a requested record
shall be in writing and shall include:
(i) A reference to the specific exemption or exemptions authorizing
the withholding;
(ii) If neither a statute or an Executive order requires
withholding, the sound ground for withholding;
(iii) A listing of the names and titles or positions of each person
responsible for the denial; and
(iv) A statement that the denial may be appealed to the Assistant
Secretary--Policy, Budget and Administration and a description of the
procedures in Sec. 2.18 for appeal.
(2) A decision denying a request for failure to reasonably describe
requested records or for other procedural deficiency or because
requested records cannot be located shall be in writing and shall
include:
(i) A description of the basis of the decision;
(ii) A list of the names and titles or positions of each person
responsible; and
(iii) A statement that the matter may be appealed to the Assistant
Secretary--Policy, Budget and Administration and a description of the
procedures in Sec. 2.18 for appeal.
Sec. 2.17 Time limits for processing initial requests.
(a) Basic limit. Requests for records shall be processed promptly. A
determination whether to grant or deny a request shall be made within no
more than 10 working days after receipt of a request. This determination
shall be communicated immediately to the requester.
(b) Running of basic time limit. (1) The 10 working day time limit
begins to run when a request meeting the requirements of Sec. 2.14(b) is
received at a
[[Page 14]]
field installation or bureau headquarters designated in Sec. 2.14(a) to
receive the request.
(2) The running of the basic time limit may be delayed or tolled as
explained in Sec. 2.20 (f), (g) and (h) if a requester--
(i) Has not stated a willingnes to pay fees as high as are
anticipated and has not sought and been granted a full fee waiver, or
(ii) Has not made a required advance payment.
(c) Extensions of time. In the following unusual circumstances, the
time limit for acting on an initial request may be extended to the
extent reasonably necessary to the proper processing of the request, but
in no case may the time limit be extended for more than 10 working days:
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
installation processing the request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records demanded in a single
request; or
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
Department having substantial subject-matter interest therein.
(d) Notice of extension. A requester shall be notified in writing of
an extension under paragraph (c) of this section. The notice shall state
the reason for the extension and the date on which a determination on
the request is expected to be made.
(e) Treatment of delay as denial. If no determination has been
reached at the end of the 10 working day period for deciding an initial
request, or an extension thereof under paragraph (c) of this section,
the requester may deem the request denied and may exercise a right of
appeal in accordance with Sec. 2.18.
(f) Notice of delay. When a determination cannot be reached within
the time limit, or extension thereof, the requester shall be notified of
the reason for the delay, of the date on which a determination may be
expected, and of the right to treat the delay as a denial for purposes
of appeal to the Assistant Secretary--Policy, Budget and Administration,
including a description of the procedures for filing an appeal in
Sec. 2.18.
Sec. 2.18 Appeals.
(a) Right of appeal. A requester may appeal to the Assistant
Secretary--Policy, Budget and Administration when--
(1) Records have been withheld,
(2) A request has been denied for failure to describe requested
records or for other procedural deficiency or because requested records
cannot be located,
(3) A fee waiver has been denied, or
(4) A request has not been decided within the time limits provided
in Sec. 2.17.
(b) Time for appeal. An appeal must be received no later than 20
working days after the date of the initial denial, in the case of a
denial of an entire request, or 20 working days after records have been
made available, in the case of a partial denial.
(c) Form of appeal. (1) An appeal shall be initiated by filing a
written notice of appeal. The notice shall be accompanied by copies of
the original request and the initial denial and should, in order to
expedite the appellate process and give the requester an opportunity to
present his or her arguments, contain a brief statement of the reasons
why the requester believes the initial denial to have been in error.
(2) The appeal shall be addressed to the Freedom of Information Act
Appeals Officer, Office of the Assistant Secretary--Policy, Budget and
Administration, U.S. Department of the Interior, Washington, DC 20240.
(3) To expedite processing, both the envelope containing a notice of
appeal and the face of the notice should bear the legend ``FREEDOM OF
INFORMATION APPEAL.''
Sec. 2.19 Action on appeals.
(a) Authority. Appeals shall be decided by the Assistant Secretary--
Policy, Budget and Administration, or the Assistant Secretary's
designee, after consultation with the Solicitor, the Director of Public
Affairs and the appropriate program Assistant Secretary.
[[Page 15]]
(b) Time limit. A final determination shall be made within 20
working days after receipt of an appeal meeting the requirements of
Sec. 2.18(c).
(c) Extensions of time. (1) If the time limit for responding to the
initial request for a record was not extended under the provisions of
Sec. 2.17(c) or was extended for fewer than 10 working days, the time
for processing of the appeal may be extended to the extent reasonably
necessary to the proper processing of the appeal, but in no event may
the extension, when taken together with any extension made during
processing of the initial request, result in an aggregate extension with
respect to any one request of more than 10 working days. The time for
processing of an appeal may be extended only if one or more of the
unusual circumstances listed in Sec. 2.17(c) requires an extension.
(2) The appellant shall be advised in writing of the reasons for the
extension and the date on which a final determination on the appeal is
expected to be dispatched.
(3) If no determination on the appeal has been reached at the end of
the 20 working day period, or the extension thereof, the requester is
deemed to have exhausted his administrative remedies, giving rise to a
right of review in a district court of the United States, as specified
in 5 U.S.C. 552(a)(4). When no determination can be reached within the
applicable time limit, the appeal will nevertheless continue to be
processed. On expiration of the time limit, the requester shall be
informed of the reason for the delay, of the date on which a
determination may be reached to be dispatched and of the right to seek
judicial review.
(d) Form of decision. (1) The final determination on an appeal shall
be in writing and shall state the basis for the determination. If the
determination is to release the requested records or portions thereof,
the Assistant Secretary--Policy, Budget and Administration shall
immediately make the records available or instruct the appropriate
bureau to make them immediately available. If the determination upholds
in whole or part the initial denial of a request for records, the
determination shall advise the requester of the right to obtain judicial
review in the U.S. District Court for the district in which the withheld
records are located, or in which the requester resides or has his or her
principal place of business or in the U.S. District Court for the
District of Columbia, and shall set forth the names and titles or
positions of each person responsible for the denial.
(2) If a requested record (or portion thereof) is being made
available over the objections of a submitter made in accordance with
Sec. 2.15(d), the submitter shall be provided notice as described in
Sec. 2.16(b)(2).
Sec. 2.20 Fees.
(a) Policy. (1) Unless waived pursuant to the provisions of
Sec. 2.21, fees for responding to FOIA requests shall be charged in
accordance with the provisions of this section and the schedule of
charges contained in Appendix A to this part.
(2) Fees shall not be charged if the total amount chargeable does
not exceed $15.00.
(3) Where there is a reasonable basis to conclude that a requester
or group of requesters acting in concert has divided a request into a
series of requests on a single subject or related subjects to avoid
assessment of fees, the requests may be aggregated and fees charged
accordingly.
(b) Commercial use requests. (1) A requester seeking records for
commercial use shall be charged fees for costs incurred in document
search, duplication and review.
(2) A commercial use requester may not be charged fees for time
spent resolving legal and policy issues affecting access to requested
records.
(3) A commercial use request is a request from or on behalf of a
person who seeks information for a use or purpose that further the
commercial, trade or profit interests of the requester or the person on
whose behalf the request is made. The intended use of records may be
determined on the basis of information submitted by a requester and from
reasonable inferences based on the identity of the requester and any
other available information.
[[Page 16]]
(c) Educational and noncommercial scientific institution requests.
(1) A requester seeking records under the auspices of an educational
institution in furtherance of scholarly research or a noncommercial
scientific institution in furtherance of scientific research shall be
charged for document duplication, except that the first 100 pages of
paper copies (or the equivalent cost thereof if the records are in some
other form) shall be provided without charge.
(2) Such requesters may not be charged fees for costs incurred in--
(i) Searching for requested records,
(ii) Examining requested records to determine whether they are
exempt from mandatory disclosure,
(iii) Deleting reasonably segregable exempt matter,
(iv) Monitoring the requesters' inspection of agency records, or
(v) Resolving legal and policy issues affecting access to requested
records.
(3) An ``educational institution'' is a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, or an institution of vocational
education, which operates a program or programs of scholarly research.
(4) A ``noncommercial scientific institution'' is an institution
that is not operated for commerce, trade or profit and that is operated
solely for the purpose of conducting scientific research the results of
which are not intended to promote any particular product or industry.
(d) News media requests. (1) A representative of the new media shall
be charged for document duplication, except that the first 100 pages of
paper copies (or the equivalent cost thereof if the records are in some
other form) shall be provided without charge.
(2) Representatives of the news media may not be charged fees for
costs incurred in--
(i) Searching for requested records,
(ii) Examining requested records to determine whether they are
exempt from mandatory disclosure,
(iii) Deleting reasonably segregable exempt matter,
(iv) Monitoring the requester's inspection of agency records, or
(v) Resolving legal and policy issues affecting access to requested
records.
(3)(i) A ``representative of the news media'' is any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that is (or would be) of current
interest to the public. Examples of news media entities include, but are
not limited to, television or radio stations broadcasting to the public
at large, and publishers of periodicals (but only in those instances
when they can qualify as disseminators of ``news'') who make their
products available for purchase or subscription by the general public.
As traditional methods of news delivery evolve (e.g., electronic
dissemination of newspapers through telecommunications services), such
alternative media would be included in this category.
(ii) Free-lance journalists may be considered ``representatives of
the news media'' if they demonstrate a solid basis for expecting
publication through a news organization, even though not actually
employed by it. A publication contract or past record of publication, or
evidence of a specific free-lance assignment from a news organization
may indicate a solid basis for expecting publication.
(e) Other requests. (1) A requester not covered by paragraphs (b),
(c) or (d) of this section shall be charged fees for document search and
duplication, except that the first two hours of search time and the
first 100 pages of paper copies (or the equivalent cost thereof if the
records are in some other form) shall be provided without charge.
(2) Such requesters may not be charged for costs incurred in--
(i) Examining requested records to determine whether they are exempt
from disclosure,
(ii) Deleting reasonably segregable exempt matter,
(iii) Monitoring the requester's inspection of agency records, or
(iv) Resolving legal and policy issues affecting access to requested
records.
[[Page 17]]
(f) Requests for clarification. Where a request does not provide
sufficient information to determine whether it is covered by paragraph
(b), (c), (d) or (e) of this section, the requester should be asked to
provide additional clarification. If it is necessary to seek such
clarification, the request may be deemed to have not been received for
purposes of the time limits established in Sec. 2.17 until the
clarification is received. Requests to requesters for clarification
shall be made promptly.
(g) Notice of anticipated fees. Where a request does not state a
willingness to pay fees as high as anticipated by the Department, and
the requester has not sought and been granted a full waiver of fees
under Sec. 2.21, the request may be deemed to have not been received for
purposes of the time limits established in Sec. 2.17 until the requester
has been notified of and agrees to pay the anticipated fee. Advice to
requesters with respect to anticipated fees shall be provided promptly.
(h) Advance payment. (1) Where it is anticipated that allowable fees
are likely to exceed $250.00 and the requester does not have a history
of prompt payment of FOIA fees, the requester may be required to make an
advance payment of the entire fee before processing of his or her
request.
(2) Where a requester has previously failed to pay a fee within 30
calendar days of the date of billing, processing of any new request from
that requester shall ordinarily be suspended until the requester pays
any amount still owed, including applicable interest, and makes advance
payment of allowable fees anticipated in connection with the new
request.
(3) Advance payment of fees may not be required except as described
in paragraphs (h) (1) and (2) of this section.
(4) Issuance of a notice requiring payment of overdue fees or
advance payment shall toll the time limit in Sec. 2.17 until receipt of
payment.
(i) Form of payment. Payment of fees should be made by check or
money order payable to the Department of the Interior or the bureau
furnishing the information. The term United States or the initials
``U.S.'' should not be included on the check or money order. Where
appropriate, the official responsible for handling a request may require
that payment by check be made in the form of a certified check.
(j) Billing procedures. A bill for collection, Form DI-1040, shall
be prepared for each request that requires collection of fees. The
requester shall be provided the first sheet of the DI-1040. This
Accounting Copy of the Form shall be transmitted to the agency's finance
office for entry into accounts receivable records. Upon receipt of
payment from the requester, the recipient shall forward the payment
along with a copy of the DI-1040 to the finance office.
(k) Collection of fees. The bill for collection or an accompanying
letter to the requester shall include a statement that interest will be
charged in accordance with the Debt Collection Act of 1982, 31 U.S.C.
3717, and implementing regulations, 4 CFR 102.13, if the fees are not
paid within 30 calendar days of the date of the bill for collection is
mailed or hand-delivered to the requester. This requirement does not
apply if the requester is a unit of state or local government. Other
authorities of the Debt Collection Act of 1982 shall be used, as
appropriate, to collect the fees (see 4 CFR parts 101-105).
Sec. 2.21 Waiver of fees.
(a) Statutory fee waiver. (1) Documents shall be furnished without
charge or at a charge reduced below the fees chargeable under Sec. 2.20
and appendix A to this part if disclosure of the information is in the
public interest because it--
(i) Is likely to contribute significantly to public understanding of
the operations or activities of the government and
(ii) Is not primarily in the commercial interest of the requester.
(2) Factors to be considered in determining whether disclosure of
information ``is likely to contribute significantly to public
understanding of the operations or activities of the government'' are
the following:
(i) Does the record concern the operations or activities of the
government? Records concern the operations or activities of the
government if they relate to or will illuminate the manner in which the
Department or a bureau is carrying out identifiable operations or
[[Page 18]]
activities or the manner in which an operation or activity affects the
public. The connection between the records and the operations and
activities to which they are said to relate should be clear and direct,
not remote and attenuated. Records developed outside of the government
and submitted to or obtained by the Department may relate to the
operations and activities of the government if they are informative on
how an agency is carrying out its regulatory, enforcement, procurement
or other activities that involve private entities.
(ii) If a record concerns the operations or activities of the
government, is its disclosure likely to contribute to public
understanding of these operations and activities? The likelihood of a
contribution to public understanding will depend on consideration of the
content of the record, the identity of the requester, and the
interrelationship between the two. Is there a logical connection between
the content of the requested record and the operations or activities in
which the requester is interested? Are the disclosable contents of the
record meaningfully informative on the operations or activities? Is the
focus of the requester on contribution to public understanding, rather
than on the individual understanding of the requester or a narrow
segment of interested persons? Does the requester have expertise in the
subject area and the ability and intention to disseminate the
information to the general public or otherwise use the information in a
manner that will contribute to public understanding of government
operations or activities? Is the requested information sought by the
requester because it may be informative on government operations or
activities or because of the intrinsic value of the information
independent of the light that it may shed on government operations or
activities?
(iii) If there is likely to be a contribution to public
understanding, will that contribution be significant? A contribution to
public understanding will be significant if the information disclosed is
new, clearly supports public oversight of Department operations,
including the quality of Department activities and the effect of policy
and regulations on public health and safety, or otherwise confirms or
clarifies data on past or present operations of the Department. A
contribution will not be significant if disclosure will not have a
positive impact on the level of public understanding of the operations
or activities involved that existed prior to the disclosure. In
particular, a significant contribution is not likely to arise from
disclosure of information already in the public domain because it has,
for example, previously been published or is routinely available to the
general public in a public reading room.
(3) Factors to be considered in determining whether disclosure ``is
primarily in the commercial interest of the requester'' are the
following:
(i) Does the requester have a commercial interest that would be
furthered by the requested disclosure? A commercial interest is a
commercial, trade or profit interest as these terms are commonly
understood. An entity's status is not determinative. Not only profit-
making corporations, but also individuals or other organizations, may
have a commercial interest to be served by disclosure, depending on the
circumstances involved.
(ii) If the requester has a commercial interest, will disclosure be
primarily in that interest? The requester's commercial interest is the
primary interest if the magnitude of that interest is greater than the
public interest to be served by disclosure. Where a requester is a
representative of a news media organization seeking information as part
of the news gathering process, it may be presumed that the public
interest outweighs the organization's commercial interest.
(4) Notice of denial. If a requested statutory fee waiver or
reduction is denied, the requester shall be notified in writing. The
notice shall include:
(i) A statement of the basis on which the waiver or reduction has
been denied.
(ii) A listing of the names and titles or positions of each person
responsible for the denial.
[[Page 19]]
(iii) A statement that the denial may be appealed to the Assistant
Secretary--Policy, Budget and Administration and a description of the
procedures in Sec. 2.18 for appeal.
(b) Discretionary waivers. Fees otherwise chargeable may be waived
at the discretion of a bureau if a request involves:
(1) Furnishing unauthenticated copies of documents reproduced for
gratuitous distribution;
(2) Furnishing one copy of a personal document (e.g., a birth
certificate) to a person who has been required to furnish it for
retention by the Department;
(3) Furnishing one copy of the transcript of a hearing before a
hearing officer in a grievance or similar proceeding to the employee for
whom the hearing was held.
(4) Furnishing records to donors with respect to their gifts;
(5) Furnishing records to individuals or private non-profit
organizations having an official voluntary or cooperative relationship
with the Department to assist the individual or organization in its work
with the Department;
(6) Furnishing records to state, local and foreign governments,
public international organizations, and Indian tribes, when to do so
without charge is an appropriate courtesy, or when the recipient is
carrying on a function related to that of the Department and to do so
will help to accomplish the work of the Department;
(7) Furnishing a record when to do so saves costs and yields income
equal to the direct cost of providing the records (e.g., where the
Department's fee for the service would be included in a billing against
the Department);
(8) Furnishing records when to do so is in conformance with
generally established business custom (e.g., furnishing personal
reference data to prospective employers of former Department employees);
(9) Furnishing one copy of a record in order to assist the requester
to obtain financial benefits to which he or she is entitled (e.g.,
veterans or their dependents, employees with Government employee
compensation claims or persons insured by the Government).
Sec. 2.22 Special rules governing certain information concerning coal obtained under the Mineral Leasing Act.
(a) Definitions. As used in the section:
(1) Act means the Mineral Leasing Act of February 25, 1920, as
amended by the Act of August 4, 1976, Pub. L. 94-377, 90 Stat. 1083 (30
U.S.C. 181 et seq.), and the Mineral Leasing Act for Acquired Lands, as
amended (30 U.S.C. 351 et seq.)
(2) Exploration license means a license issued by the Secretary of
the Interior to conduct coal exploration operations on land subject to
the Act pursuant to the authority in section 2(b) of the Act, as amended
(30 U.S.C. 201(b)).
(3) Fair-market value of coal to be leased means the minimum amount
of a bid the Secretary has determined he is willing to accept in leasing
coal within leasing tracts offered in general lease sales or reserved
and offered for lease to public bodies, including Federal agencies,
rural electric cooperatives, or non-profit corporations, controlled by
any of such entities pursuant to section 2(a) of the Act (30 U.S.C.
201(a)(1)).
(4) Information means data, statistics, samples and other facts,
whether analyzed or processed or not, pertaining to Federal coal
resources, which fit within an exemption to the Freedom of Information
Act, 5 U.S.C. 552(b).
(b) Applicability. This section applies to the following categories
of information:
(1) Category A. Information provided to or obtained by a bureau
under section 2(b)(3) of the Act from the holder of an exploration
license;
(2) Category B. Information acquired from commercial or other
sources under service contract with Geological Survey pursuant to
section 8A(b) of the Act, and information developed by the Geological
Survey under an exploratory program authorized by section 8A of the Act;
(3) Category C. Information obtained from commercial sources which
the commercial source acquired while not under contract with the United
States Government;
(4) Category D. Information provided to the Secretary by a federal
department or agency pursuant to section 8A(e) of the Act; and
[[Page 20]]
(5) Category E. The fair-market value of coal to be leased and
comments received by the Secretary with respect to such value.
(c) Availability of information. Information obtained by the
Department from various sources will be made available to the public as
follows:
(1) Category A--Information. Category A information shall not be
disclosed to the public until after the areas to which the information
pertains have been leased by the Department, or until the Secretary
determines that release of the information to the public would not
damage the competitive position of the holder of the exploration
license, whichever comes first.
(2) Category B--Information. Category B information shall not be
withheld from the public; it will be made available by means of and at
the time of open filing or publication by Geological Survey.
(3) Category C--Information. Category C information shall not be
made available to the public until after the areas to which the
information pertains have been leased by the Department.
(4) Category D--Information. Category D information shall be made
available to the public under the terms and conditions to which, at the
time he or she acquired it, the head of the department or agency from
whom the Secretary later obtained the information agreed.
(5) Category E--Information. Category E information shall not be
made public until the lands to which the information pertains have been
leased, or until the Secretary has determined that its release prior to
the issuance of a lease is in the public interest.
Subpart C--Declassification of Classified Documents
Sec. 2.41 Declassification of classified documents.
(a) Request for classification review. (1) Requests for a
classification review of a document of the Department of the Interior
pursuant to section 5(c) of Executive Order 11652 (37 FR 5209, March 10,
1972) and section III B of the National Security Council Directive
Governing Classification, Downgrading, Declassification and Safeguarding
of National Security Information (37 FR 10053, May 1972) shall be made
in accordance with the procedures established by this section.
(2) Any person desiring a classification review of a document of the
Department of the Interior containing information classified as National
Security Information by reason of the provisions of Executive Order
12065 (or any predecessor executive order) and which is more than 10
years old, should address such request to the Chief, Division of
Enforcement and Security Management, Office of Administrative Services,
U.S. Department of the Interior, Washington, DC 20240.
(3) Requests need not be made on any special form, but shall, as
specified in the executive order, describe the document with sufficient
particularity to enable identification of the document requested with
expenditure of no more than a reasonable amount of effort.
(4) Charges for locating and reproducing copies of records will be
made when deemed applicable in accordance with appendix A to this part
and the requester will be notified.
(b) Action on requests for classification review. (1) The Chief,
Division of Enforcement and Security Management, shall, unless the
request is for a document over 30 years old, assign the request to the
bureau having custody of the requested records for action. In the case
of requests for declassification of records in the custody of the Office
of the Secretary and less than 30 years old, the request shall be
processed by the Chief, Division of Enforcement and Security Management.
Requests for declassification of documents over 30 years shall be
referred directly to the Archivist of the United States. The bureau
which has been assigned the request, or the Chief, Division of
Enforcement and Security Management, in the case of requests assigned to
him, shall immediately acknowledge the request in writing. Every effort
will be made to complete action on each request within thirty (30) days
of its receipt. If action cannot be completed within thirty (30) days,
the requester shall be so advised.
(2) If the requester does not receive a decision on his request
within sixty (60) days from the date of receipt of his request, or from
the date of his most recent response to a request for more
[[Page 21]]
particulars, he may apply to the Department of the Interior Oversight
Committee for Security, U.S. Department of the Interior, Washington, DC
20240, for a decision on his request. The Committee must render a
decision within thirty (30) days.
(c) Form of decision and appeal to Oversight Committee for Security.
In the event that the bureau to which a request is assigned or the
Chief, Division of Enforcement and Security Management, in the case of a
request assigned to him, determines that the requested information must
remain classified by reason of the provisions of Executive Order 11652,
the requester shall be given prompt notification of that decision and,
whenever possible, shall be provided with a brief statement as to why
the information or material cannot be declassified. He shall also be
advised that if he desires he may appeal the determination to the
Chairman, Department of the Interior Oversight Committee for Security,
U.S. Department of the Interior, Washington, DC 20240. An appeal shall
include a brief statement as to why the requester disagrees with the
decision which he is appealing. The Department Oversight Committee for
Security shall render its decision within thirty (30) days of receipt of
an appeal. The Departmental Committee shall be authorized to over-rule
previous determinations in whole or in part when, in its judgement,
continued protection is no longer required.
(d) Appeal to Interagency Classification Review Committee. Whenever
the Department of the Interior Oversight Committee for Security confirms
a determination for continued classification, it shall so notify the
requester and advise him that he is entitled to appeal the decision to
the Interagency Classification Review Committee established under
section 8(A) of the Executive Order 11652. Such appeals shall be
addressed to the Interagency Classification Review Committee, the
Executive Office Building, Washington, DC 20500.
(e) Suggestions and complaints. Any person may also direct
suggestions or complaints with respect to the administration of the
other provisions of Executive Order 11652 and the NSC Directive by the
Department of the Interior to the Department of the Interior Oversight
Committee for Security, U.S. Department of the Interior, Washington, DC
20240.
[40 FR 7305, Feb. 19, 1975, as amended at 47 FR 38327, Aug. 31, 1982]
Subpart D--Privacy Act
Source: 40 FR 44505, Sept. 26, 1975, unless otherwise noted.
Sec. 2.45 Purpose and scope.
This subpart contains the regulations of the Department of the
Interior implementing section 3 of the Privacy Act. Sections 2.47
through 2.57 describe the procedures and policies of the Department
concerning maintenance of records which are subject to the Act. Sections
2.60 through 2.66 describe the procedure under which individuals may
determine whether systems of records subject to the Act contain records
relating to them and the procedure under which they may seek access to
existing records. Sections 2.70 through 2.77 describe the procedure
under which individuals may petition for amendment of records subject to
the Act relating to them. Section 2.79 lists records systems that have
been exempted from certain requirements of the Act.
[48 FR 56583, Dec. 22, 1983]
Sec. 2.46 Definitions.
(a) Act. As used in this subpart, ``Act'' means section 3 of the
Privacy Act, 5 U.S.C. 552a.
(b) Bureau. For purposes of this subpart, a ``bureau'' is any
constituent bureau or office of the Department, including the Office of
the Secretary and any other Departmental office.
(c) Individual. As used in this subpart, ``individual'' means a
citizen of the United States or an alien lawfully admitted for permanent
residence.
(d) Maintain. As used in this subpart, the term ``maintain''
includes maintain, collect, use or disseminate.
(e) Record. As used in this subpart, ``record'' means any item,
collection, or grouping of information about an individual that is
maintained by the Department or a bureau thereof, including, but not
limited to, education, financial transactions, medical history,
[[Page 22]]
and criminal or employment history and that contains the individual's
name, or the identifying number, symbol, or other identifying particular
assigned to the individual, such as a finger or voice print, or a
photograph.
(f) System of records. As used in this subpart, ``System of
records'' means a group of any records under the control of the
Department or a bureau thereof from which information is retrieved by
the name of the individual or by some identifying number, symbol, or
other identifying particular assigned to the individual.
(g) Medical records. As used in this subpart, ``medical records''
means records which relate to the identification, prevention, cure or
alleviation of any disease, illness or injury including psychological
disorders, alcoholism and drug addiction.
(h) Office of Personnel Management personnel records. As used in the
subpart, ``Office of Personnel Management personnel records'' means
records maintained for the Office of Personnel Management by the
Department and used for personnel management programs or processes such
as staffing, employee development, retirement, and grievances and
appeals.
(i) Statistical records. As used in this subpart, ``statistical
records'' means records in a system of records maintained for
statistical research or reporting purposes only and not used in whole or
in part in making any determination about an identifiable individual.
(j) Routine use. As used in this subpart, ``routine use'' means a
use of a record for a purpose which is compatible with the purpose for
which it was collected.
(k) System notice. As used in this subpart, ``system notice'' means
the notice describing a system of records required by 5 U.S.C.
552a(e)(4) to be published in the Federal Register upon establishment or
revision of the system of records.
(l) System manager. As used in this subpart, ``system manager''
means the official designated in a system notice as having
administrative responsibility for a system of records.
(m) Departmental Privacy Act Officer. As used in this subpart,
``Departmental Privacy Act Officer'' means the official in the Office of
the Assistant Secretary--Policy, Budget and Administration charged with
responsibility for assisting the Assistant Secretary--Policy, Budget and
Administration in carrying out the functions assigned in this subpart
and for coordinating the activities of the bureaus of the Department in
carrying out the functions which they are assigned in this subpart.
(n) Bureau Privacy Act Officer. As used in this subpart, ``Bureau
Privacy Act Officer'' means the official within each bureau assigned
responsibility for bureau implementation of the Act and the regulations
of this subpart.
(o) Working day. As used in this subpart, ``working day'' means a
regular Federal work day. It does not include Saturdays, Sundays or
public legal holidays.
[40 FR 44505, Sept. 26, 1975, as amended at 47 FR 38327, Aug. 31, 1982;
48 FR 56583, Dec. 22, 1983; 53 FR 3749, Feb. 9, 1988]
Sec. 2.47 Records subject to Privacy Act.
The Privacy Act applies to all ``records,'' as that term is defined
in Sec. 2.46(e), which the Department maintains in a ``system of
records,'' as that term is defined in Sec. 2.46(f).
Sec. 2.48 Standards for maintenance of records subject to the Act.
(a) Content of records. Records subject to the Act shall contain
only such information about an individual as is relevant and necessary
to accomplish a purpose of the agency required to be accomplished by
statute or Executive Order of the President.
(b) Standards of accuracy. Records subject to the Act which are used
in making any determination about any individual shall be maintained
with such accuracy, relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to the individual in making the
determination.
(c) Collection of information. (1) Information which may be used in
making determinations about an individual's rights, benefits, and
privileges under Federal programs shall, to the greatest extent
practicable, be collected directly from that individual.
[[Page 23]]
(2) In deciding whether collection of information from an
individual, as opposed to a third party source, is practicable, the
following factors, among others, may be considered:
(i) Whether the nature of the information sought is such that it can
only be obtained from a third party;
(ii) Whether the cost of collecting the information from the
individual is unreasonable when compared with the cost of collecting it
from a third party;
(iii) Whether there is a risk that information collected from third
parties, if inaccurate, could result in an adverse determination to the
individual concerned;
(iv) Whether the information, if supplied by the individual, would
have to be verified by a third party; or
(v) Whether provisions can be made for verification, by the
individual, of information collected from third parties.
(d) Advice to individuals concerning uses of information. (1) Each
individual who is asked to supply information about him or herself which
will be added to a system of records shall be informed of the basis for
requesting the information, how it may be used, and what the
consequences, if any, are of not supplying the information.
(2) At a minimum, the notice to the individual must state:
(i) The authority (whether granted by statute or Executive Order of
the President) which authorizes the solicitation of the information and
whether disclosure of such information is mandatory or voluntary;
(ii) The principal purpose or purposes for which the information is
intended to be used;
(iii) The routine uses which may be made of the information; and
(iv) The effects on the individual, if any, of not providing all or
any part of the requested information.
(3)(i) When information is collected on a standard form, the notice
to the individual shall be provided on the form, on a tear-off sheet
attached to the form, or on a separate sheet, whichever is most
practical.
(ii) When information is collected by an interviewer, the
interviewer shall privide the individual with a written notice which the
individual may retain. If the interview is conducted by telephone,
however, the interviewer may summarize the notice for the individual and
need not provide a copy to the individual unless the individual requests
a copy.
(iii) An individual may be asked to acknowledge, in writing, that
the notice required by this section has been provided.
(e) Records concerning activity protected by the First Amendment. No
record may be maintained describing how any individual exercises rights
guaranteed by the First Amendment to the Constitution unless the
maintenance of the record is (1) expressly authorized by statute or by
the individual about whom the record is maintained or (2) pertinent to
and within the scope of an authorized law enforcement activity.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56583, Dec. 22, 1983]
Sec. 2.49 [Reserved]
Sec. 2.50 Federal Register notices describing systems of records.
(a) The Privacy Act requires publication of a notice in the Federal
Register describing each system of records subject to the Act. Such
notice will be published prior to the establishment or a revision of the
system of records. 5 U.S.C. 552a(e)(4).
(b) Each bureau shall notify the Departmental Privacy Act Officer
promptly of any modifications or amendments which are required in the
then-current notice describing a system of records for which it is
responsible.
(c) A bureau desiring to establish a new system of records or a new
use for an existing system of records shall notify the Departmental
Privacy Act Officer, no fewer than ninety (90) calendar days in advance.
[48 FR 56583, Dec. 22, 1983]
Sec. 2.51 Assuring integrity of records.
(a) Statutory requirement. The Privacy Act requires that records
subject to the Act be maintained with appropriate administrative,
technical and physical safeguards to insure the security and
confidentiality of records and to protect against any anticipated
threats or hazards to their security or integrity
[[Page 24]]
which could result in substantial harm, embarassment, inconvenience, or
unfairness to any individual on whom information is maintained, 5 U.S.C.
552a(e)(10).
(b) Records maintained in manual form. When maintained in manual
form, records subject to the Privacy Act shall be maintained in a manner
commensurate with the sensitivity of the information contained in the
system of records. The following minimum safeguards, or safeguards
affording comparable protection, are applicable to Privacy Act systems
of records containing sensitive information:
(1) Areas in which the records are maintained or regularly used
shall be posted with an appropriate warning stating that access to the
records is limited to authorized persons. The warning also shall
summarize the requirements of Sec. 2.52 and state that the Privacy Act
contains a criminal penalty for the unauthorized disclosure of records
to which it applies.
(2) During working hours, (i) the area in which the records are
maintained or regularly used shall be occupied by authorized personnel
or (ii) access to the records shall be restricted by their storage in
locked metal file cabinets or a locked room.
(3) During non-working hours, access to the records shall be
restricted by their storage in locked metal file cabinets or a locked
room.
(4) Where a locked room is the method of security provided for a
system, the bureau responsible for the system shall supplement that
security by (i) providing lockable file cabinets or containers for the
records or (ii) changing the lock or locks for the room so that they may
not be opened with a master key. For the purposes of this paragraph, a
master key is a key which may be used to open rooms other than the room
containing records subject to the Privacy Act, unless those rooms are
utilized by officials or employees authorized to have access to the
records subject to the Privacy Act.
(c) Records maintained in computerized form. When maintained in
computerized form, records subject to the Privacy Act shall be
maintained, at a minimum, subject to safeguards based on those
recommended in the National Bureau of Standard's booklet ``Computer
Security Guidelines for Implementing the Privacy Act of 1974'' (May 30,
1975), and any supplements thereto, which are adequate and appropriate
to assuring the integrity of records in the system.
(d) Office of Personnel Management personnel records. A system of
records made up of Office of Personnel Management personnel records
shall be maintained under the security requirements set out in 5 CFR
293.106 and 293.107.
(e) Bureau responsibility. (1) The bureau responsible for a system
of records shall be responsible for assuring that specific procedures
are developed to assure that the records in the system are maintained
with security meeting the requirements of the Act and this section.
(2) These procedures shall be in writing and shall be posted or
otherwise periodically brought to the attention of employees working
with the records contained in the system.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56583, Dec. 22, 1983]
Sec. 2.52 Conduct of employees.
(a) Handling of records subject to the Act. Employees whose duties
require handling of records subject to the Privacy Act shall, at all
times, take care to protect the integrity, security and confidentiality
of these records.
(b) Disclosure of records. No employee of the Department may
disclose records subject to the Privacy Act unless disclosure is
permitted under Sec. 2.56 or is to the individual to whom the record
pertains.
(c) Alteration of records. No employee of the Department may alter
or destroy a record subject to the Privacy Act unless (1) such
alteration or destruction is properly undertaken in the course of the
employee's regular duties or (2) such alteration or destruction is
required by a decision under Secs. 2.70 through 2.75 or the decision of
a court of competent jurisdiction.
(d) Bureau responsibility. The bureau responsible for a system of
records shall be responsible for assuring that employees with access to
the system are made aware of the requirements of this section and of 5
U.S.C. 552a(i)(1), which imposes criminal penalties for
[[Page 25]]
knowingly and willfully disclosing a record about an individual without
the written request or consent of that individual unless disclosure is
permitted under one of the exceptions listed in Sec. 2.56 (b) and (c).
Sec. 2.53 Government contracts.
(a) Required contract provisions. When a contract provides for the
operation by or on behalf of the Department of a system of records to
accomplish a Department function, the contract shall, consistent with
the Department's authority, cause the requirements of 5 U.S.C. 552a and
the regulations contained in this subpart to be applied to such system.
(b) System manager. The head of the bureau responsible for the
contract shall designate a regular employee of the bureau to be the
manager for a system of records operated by a contractor.
Secs. 2.54-2.55 [Reserved]
Sec. 2.56 Disclosure of records.
(a) Prohibition of disclosure. No record contained in a system of
records may be disclosed by any means of communication to any person, or
to another agency, except pursuant to a written request by, or with the
prior written consent of, the individual to whom the record pertains.
(b) General exceptions. The prohibition contained in paragraph (a)
does not apply where disclosure of the record would be:
(1) To those officers or employees of the Department who have a need
for the record in the performance of their duties; or
(2) Required by the Freedom of Information Act, 5 U.S.C. 552.
(c) Specific exceptions. The prohibition contained in paragraph (a)
of this section does not apply where disclosure of the record would be:
(1) For a routine use as defined in Sec. 2.46(j) which has been
described in a system notice published in the Federal Register;
(2) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to the provisions of
Title 13, U.S. Code.
(3) To a recipient who has provided the system manager responsible
for the system in which the record is maintained with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(4) To the National Archives and Records Administration as a record
which has sufficient historical or other value to warrant its continued
preservation by the U.S. Government, or for evaluation by the Archivist
of the United States or the designee of the Archivist to determine
whether the record has such value;
(5) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the Department specifying the particular portion
desired and the law enforcement activity for which the record is sought;
(6) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(7) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(8) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office;
(9) Pursuant to the order of a court of competent jurisdiction; or
(10) To a consumer reporting agency in accordance with section 3(d)
of the Federal Claims Collection Act of 1966, as amended (31 U.S.C.
3711(f)).
(d) Reviewing records prior to disclosure. (1) Prior to any
disclosure of a record about an individual, unless disclosure is
required by the Freedom of Information Act, reasonable efforts shall be
made to assure that the
[[Page 26]]
records are accurate, complete, timely and relevant for agency purposes.
(2) When a record is disclosed in connection with a Freedom of
Information request made under subpart B of this part and it is
appropriate and administratively feasible to do so, the requester shall
be informed of any information known to the Department indicating that
the record may not be fully accurate, complete, or timely.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983;
50 FR 45114, Oct. 30, 1985]
Sec. 2.57 Accounting for disclosures.
(a) Maintenance of an accounting. (1) Where a record is disclosed to
any person, or to another agency, under any of the specific exceptions
provided by Sec. 2.56 (c), an accounting shall be made.
(2) The accounting shall record (i) the date, nature, and purpose of
each disclosure of a record to any person or to another agency and (ii)
the name and address of the person or agency to whom the disclosure was
made.
(3) Accountings prepared under this section shall be maintained for
at least five years or the life of the record, whichever is longer,
after the disclosure for which the accounting is made.
(b) Access to accountings. (1) Except for accountings of disclosures
made under Sec. 2.56(c)(5), accountings of all disclosures of a record
shall be made available to the individual to whom the record relates at
the individual's request.
(2) An individual desiring access to an accounting of disclosures of
a record pertaining to the individual shall submit a request by
following the procedures of Sec. 2.63.
(c) Notification of disclosure. When a record is disclosed pursuant
to Sec. 2.56(c)(9) as the result of the order of a court of competent
jurisdiction, reasonable efforts shall be made to notify the individual
to whom the record pertains as soon as the order becomes a matter of
public record.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983]
Secs. 2.58-2.59 [Reserved]
Sec. 2.60 Request for notification of existence of records: Submission.
(a) Submission of requests. (1)(i) Individuals desiring to determine
under the Privacy Act whether a system of records contains records
pertaining to them shall address inquiries to the system manager having
responsibility for the system unless the system notice describing the
system prescribes or permits submission to some other official or
officials.
(ii) If a system notice describing a system requires individuals to
contact more than two officials concerning the existence of records in
the system, individuals desiring to determine whether the system
contains records pertaining to them may contact the system manager for
assistance in determining which official is most likely to be in
possession of records pertaining to those individuals.
(2) Individuals desiring to determine whether records pertaining to
them are maintained in two or more systems shall make a separate inquiry
concerning each system.
(b) Form of request. (1) An inquiry to determine whether a system of
records contains records pertaining to an individual shall be in
writing.
(2) To insure expeditious handling, the request shall be prominently
marked, both on the envelope and on the face of the request, with the
legend ``PRIVACY ACT INQUIRY.''
(3) The request shall state that the individual is seeking
information concerning records pertaining to him or herself and shall
supply such additional identifying information, if any, as is called for
in the system notice describing the system.
(4) Individuals who have reason to believe that information
pertaining to them may be filed under a name other than the name they
are currently using (e.g., maiden name), shall include such information
in the request.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983]
[[Page 27]]
Sec. 2.61 Requests for notification of existence of records: Action on.
(a) Decisions on request. (1) Individuals inquiring to determine
whether a system of records contains records pertaining to them shall be
promptly advised whether the system contains records pertaining to them
unless (i) the records were compiled in reasonable anticipation of a
civil action or proceeding or (ii) the system of records is one which
has been excepted from the notification provisions of the Privacy Act by
rulemaking (Sec. 2.79).
(2) If the records were compiled in reasonable anticipation of a
civil action or proceeding or the system of records is one which has
been excepted from the notification provisions of the Privacy Act by
rulemaking, the individuals will be promptly notified that they are not
entitled to notification of whether the system contains records
pertaining to them.
(b) Authority to deny requests. A decision to deny a request for
notification of the existence of records shall be made by the system
manager responsible for the system of records concerning which inquiry
has been made and shall be concurred in by the bureau Privacy Act
officer for the bureau which maintains the system, provided, however
that the head of a bureau may, in writing, require (1) that the decision
be made by the bureau Privacy Act officer and/or (2) that the bureau
head's own concurrence in the decision be obtained.
(c) Form of decision. (1) No particular form is required for a
decision informing individuals whether a system of records contains
records pertaining to them.
(2) A decision declining to inform an individual whether or not a
system of records contains records pertaining to him or her shall be in
writing and shall:
(i) State the basis for denial of the request.
(ii) Advise the individual that an appeal of the declination may be
made to the Assistant Secretary--Policy, Budget and Administration
pursuant to Sec. 2.65 by writing to the Privacy Act Officer, Office of
the Assistant Secretary--Policy, Budget and Administration, U.S.
Department of the Interior, Washington, DC 20240.
(iii) State that the appeal must be received by the foregoing
official within twenty (20) working days of the date of the decision.
(3) If the decision declining a request for notification of the
existence of records involves Department employee records which fall
under the jurisdiction of the Office of Personnel Management, the
individual shall be informed in a written response which shall:
(i) State the reasons for the denial.
(ii) Include the name, position title, and address of the official
responsible for the denial.
(iii) Advise the individual that an appeal of the declination may be
made only to the Assistant Director for Workforce Information, Personnel
Systems Oversight Group, Office of Personnel Management, 1900 E Street
NW., Washington, DC 20415.
(4) Copies of decisions declining a request for notification of the
existence of records made pursuant to paragraphs (c)(2) and (c)(3) of
this section shall be provided to the Departmental and Bureau Privacy
Act Officers.
[48 FR 56584, Dec. 22, 1983, as amended at 53 FR 3749, Feb. 9, 1988]
Sec. 2.62 Requests for access to records.
The Privacy Act permits individuals, upon request, to gain access to
their records or to any information pertaining to them which is
contained in a system and to review the records and have a copy made of
all or any portion thereof in a form comprehensive to them. 5 U.S.C.
552a(d)(1). A request for access shall be submitted in accordance with
the procedures in this subpart.
[48 FR 56584, Dec. 22, 1983]
Sec. 2.63 Requests for access to records: Submission.
(a) Submission of requests. (1)(i) Requests for access to records
shall be submitted to the system manager having responsibility for the
system in which the records are maintained unless the system notice
describing the system prescribes or permits submission to some other
official or officials.
[[Page 28]]
(ii) If a system notice describing a system requires individuals to
contact more than two officials concerning access to records in the
system, individuals desiring to request access to records pertaining to
them may contact the system manager for assistance in determining which
official is most likely to be in custody of records pertaining to that
individual.
(2) Individuals desiring access to records maintained in two or more
separate systems shall submit a separate request for access to the
records in each system.
(b) Form of request. (1) A request for access to records subject to
the Privacy Act shall be in writing.
(2) To insure expeditious handling, the request shall be prominently
marked, both on the envelope and on the face of the request, with the
legend ``PRIVACY ACT REQUEST FOR ACCESS.''
(3) Requesters shall specify whether they seek all of the records
contained in the system which relate to them or only some portion
thereof. If only a portion of the records which relate to the individual
are sought, the request shall reasonably describe the specific record or
records sought.
(4) If the requester seeks to have copies of the requested records
made, the request shall state the maximum amount of copying fees which
the requester is willing to pay. A request which does not state the
amount of fees the requester is willing to pay will be treated as a
request to inspect the requested records. Requesters are further
notified that under Sec. 2.64(d) the failure to state willingness to pay
fees as high as are anticipated by the Department will delay processing
of a request.
(5) The request shall supply such identifying information, if any,
as is called for in the system notice describing the system.
(6) Requests failing to meet the requirements of this paragraph
shall be returned to the requester with a written notice advising the
requester of the deficiency in the request.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983]
Sec. 2.64 Requests for access to records: Initial decision.
(a) Decisions on requests. A request made under this subpart for
access to a record shall be granted promptly unless (1) the record was
compiled in reasonable anticipation of a civil action or proceeding or
(2) the record is contained in a system of records which has been
excepted from the access provisions of the Privacy Act by rulemaking
(Sec. 2.79).
(b) Authority to deny requests. A decision to deny a request for
access under this subpart shall be made by the system manager
responsible for the system of records in which the requested record is
located and shall be concurred in by the bureau Privacy Act officer for
the bureau which maintains the system, provided, however, that the head
of a bureau may, in writing, require (1) that the decision be made by
the bureau Privacy Act officer and/or (2) that the bureau head's own
concurrence in the decision be obtained.
(c) Form of decision. (1) No particular form is required for a
decision granting access to a record. The decision shall, however,
advise the individual requesting the record as to where and when the
record is available for inspection or, as the case may be, where and
when copies will be available. If fees are due under Sec. 2.64(d), the
individual requesting the record shall also be notified of the amount of
fees due or, if the exact amount has not been determined, the
approximate amount of fees due.
(2) A decision denying a request for access, in whole or part, shall
be in writing and shall:
(i) State the basis for denial of the request.
(ii) Contain a statement that the denial may be appealed to the
Assistant Secretary--Policy, Budget and Administration pursuant to
Sec. 2.65 by writing to the Privacy Act Officer, Office of the Assistant
Secretary--Policy, Budget and Administration, U.S. Department of the
Interior, Washington, DC 20240.
(iii) State that the appeal must be received by the foregoing
official within twenty (20) working days of the date of the decision.
[[Page 29]]
(3) If the decision denying a request for access involves Department
employee records which fall under the jurisdiction of the Office of
Personnel Management, the individual shall be informed in a written
response which shall:
(i) State the reasons for the denial.
(ii) Include the name, position title, and address of the official
responsible for the denial.
(iii) Advise the individual that an appeal of the denial may be made
only to the Assistant Director for Workforce Information, Personnel
Systems and Oversight Group, Office of Personnel Management, 1900 E
Street NW., Washington, DC 20415.
(4) Copies of decisions denying requests for access made pursuant to
paragraphs (c)(2) and (c)(3) of this section will be provided to the
Departmental and Bureau Privacy Act Officers.
(d) Fees. (1) No fees may be charged for the cost of searching for
or reviewing a record in response to a request made under Sec. 2.63.
(2) Fees for copying a record in response to a request made under
Sec. 2.63 shall be charged in accordance with the schedule of charges
contained in Appendix A to this part, unless the official responsible
for processing the request determines that reduction or waiver of fees
is appropriate.
(3) Where it is anticipated that fees chargeable in connection with
a request will exceed the amount the person submitting the request has
indicated a willingness to pay, the official processing the request
shall notify the requester and shall not complete processing of the
request until the requester has agreed, in writing, to pay fees as high
as are anticipated.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983;
53 FR 3749, Feb. 9, 1988]
Sec. 2.65 Requests for notification of existence of records and for access to records: Appeals.
(a) Right of appeal. Except for appeals pertaining to Office of
Personnel Management records, individuals who have been notified that
they are not entitled to notification of whether a system of records
contains records pertaining to them or have been denied access, in whole
or part, to a requested record may appeal to the Assistant Secretary--
Policy, Budget and Administration.
(b) Time for appeal. (1) An appeal must be received by the Privacy
Act Officer no later than twenty (20) working days after the date of the
initial decision on a request.
(2) The Assistant Secretary--Policy, Budget and Administration may,
for good cause shown, extend the time for submission of an appeal if a
written request for additional time is received within twenty (20)
working days of the date of the initial decision on the request.
(c) Form of appeal. (1) An appeal shall be in writing and shall
attach copies of the initial request and the decision on the request.
(2) The appeal shall contain a brief statement of the reasons why
the appellant believes the decision on the initial request to have been
in error.
(3) The appeal shall be addressed to Privacy Act Officer, Office of
the Assistant Secretary--Policy, Budget and Administration, U.S.
Department of the Interior, Washington, DC 20240.
(d) Action on appeals. (1) Appeals from decisions on initial
requests made pursuant to Secs. 2.61 and 2.63 shall be decided for the
Department by the Assistant Secretary--Policy, Budget and Administration
or an official designated by the Assistant Secretary after consultation
with the Solicitor.
(2) The decision on an appeal shall be in writing and shall state
the basis for the decision.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983;
53 FR 3749, Feb. 9, 1988]
Sec. 2.66 Requests for access to records: Special situations.
(a) Medical records. (1) Medical records shall be disclosed to the
individual to whom they pertain unless it is determined, in consultation
with a medical doctor, that disclosure should be made to a medical
doctor of the individual's choosing.
(2) If it is determined that disclosure of medical records directly
to the individual to whom they pertain could
[[Page 30]]
have an adverse effect on that individual, the individual may designate
a medical doctor to receive the records and the records will be
disclosed to that doctor.
(b) Inspection in presence of third party. (1) Individuals wishing
to inspect records pertaining to them which have been opened for their
inspection may, during the inspection, be accompanied by a person of
their own choosing.
(2) When such a procedure is deemed appropriate, individuals to whom
the records pertain may be required to furnish a written statement
authorizing discussion of their records in the accompanying person's
presence.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983]
Secs. 2.67-2.69 [Reserved]
Sec. 2.70 Amendment of records.
The Privacy Act permits individuals to request amendment of records
pertaining to them if they believe the records are not accurate,
relevant, timely or complete. 5 U.S.C. 552a(d)(2). A request for
amendment of a record shall be submitted in accordance with the
procedures in this subpart.
[48 FR 56585, Dec. 22, 1983]
Sec. 2.71 Petitions for amendment: Submission and form.
(a) Submission of petitions for amendment. (1) A request for
amendment of a record shall be submitted to the system manager for the
system of records containing the record unless the system notice
describing the system prescribes or permits submission to a different
official or officials. If an individual wishes to request amendment of
records located in more than one system, a separate petition must be
submitted to each system manager.
(2) A petition for amendment of a record may be submitted only if
the individual submitting the petition has previously requested and been
granted access to the record and has inspected or been given a copy of
the record.
(b) Form of petition. (1) A petition for amendment shall be in
writing and shall specifically identify the record for which amendment
is sought.
(2) The petition shall state, in detail, the reasons why the
petitioner believes the record, or the objectionable portion thereof, is
not accurate, relevant, timely or complete. Copies of documents or
evidence relied upon in support of these reasons shall be submitted with
the petition.
(3) The petition shall state, specifically and in detail, the
changes sought in the record. If the changes involve rewriting the
record or portions thereof or involve adding new language to the record,
the petition shall propose specific language to implement the changes.
[48 FR 56585, Dec. 22, 1983]
Sec. 2.72 Petitions for amendment: Processing and initial decision.
(a) Decisions on petitions. In reviewing a record in response to a
petition for amendment, the accuracy, relevance, timeliness and
completeness of the record shall be assessed against the criteria set
out in Sec. 2.48. In addition, personnel records shall be assessed
against the criteria for determining record quality published in the
Federal Personnel Manual and the Departmental Manual addition thereto.
(b) Authority to decide. An initial decision on a petition for
amendment may be made only by the system manager responsible for the
system of records containing the challenged record. If the system
manager declines to amend the record as requested, the bureau Privacy
Act officer for the bureau which maintains the system must concur in the
decision, provided, however, that the head of a bureau may, in writing,
require (1) that the decision be made by the bureau Privacy Act officer
and/or (2) that the bureau head's own concurrence in the decision be
obtained.
(c) Acknowledgement of receipt. Unless processing of a petition is
completed within ten (10) working days, the receipt of the petition for
amendment shall be acknowledged in writing by the system manager to whom
it is directed.
(d) Inadequate petitions. (1) If a petition does not meet the
requirements of Sec. 2.71, the petitioner shall be so advised and shall
be told what additional information must be submitted to meet the
requirements of Sec. 2.71.
(2) If the petitioner fails to submit the additional information
within a
[[Page 31]]
reasonable time, the petition may be rejected. The rejection shall be in
writing and shall meet the requirements of paragraph (e) of this
section.
(e) Form of decision. (1) A decision on a petition for amendment
shall be in writing and shall state concisely the basis for the
decision.
(2) If the petition for amendment is rejected, in whole or part, the
petitioner shall be informed in a written response which shall:
(i) State concisely the basis for the decision.
(ii) Advise the petitioner that the rejection may be appealed to the
Assistant Secretary--Policy, Budget and Administration by writing to the
Privacy Act Officer, Office of the Assistant Secretary--Policy, Budget
and Administration, U.S. Department of the Interior, Washington, DC
20240.
(iii) State that the appeal must be received by the foregoing
official within twenty (20) working days of the decision.
(3) If the petition for amendment involves Department employee
records which fall under the jurisdiction of the Office of Personnel
Management and is rejected, in whole or part, the petitioner shall be
informed in a written response which shall:
(i) State concisely the basis for the decision.
(ii) Advise the petitioner that an appeal of the rejection may be
made pursuant to 5 CFR 297.306 only to the Assistant Director for
Workforce Information, Personnel Systems and Oversight Group, Office of
Personnel Management, 1900 E Street NW., Washington, DC 20415.
(4) Copies of rejections of petitions for amendment made pursuant to
paragraphs (e)(2) and (e)(3) of this section will be provided to the
Departmental and Bureau Privacy Act Officers.
(f) Implementation of initial decision. If a petition for amendment
is accepted, in whole or part, the bureau maintaining the record shall:
(1) Correct the record accordingly and,
(2) Where an accounting of disclosures has been made pursuant to
Sec. 2.57, advise all previous recipients of the record that the
correction was made and the substance of the correction.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983;
53 FR 3750, Feb. 9, 1988]]
Sec. 2.73 Petitions for amendments: Time limits for processing.
(a) Acknowledgement of receipt. The acknowledgement of receipt of a
petition required by Sec. 2.72(c) shall be dispatched not later than ten
(10) working days after receipt of the petition by the system manager
responsible for the system containing the challenged record, unless a
decision on the petition has been previously dispatched.
(b) Decision on petition. A petition for amendment shall be
processed promptly. A determination whether to accept or reject the
petition for amendment shall be made within thirty (30) working days
after receipt of the petition by the system manager responsible for the
system containing the challenged record.
(c) Suspension of time limit. The thirty (30) day time limit for a
decision on a petition shall be suspended if it is necessary to notify
the petitioner, pursuant to Sec. 2.72(d), that additional information in
support of the petition is required. Running of the thirty (30) day time
limit shall resume on receipt of the additional information by the
system manager responsible for the system containing the challenged
record.
(d) Extensions of time. (1) The thirty (30) day time limit for a
decision on a petition may be extended if the official responsible for
making a decision on the petition determines that an extension is
necessary for one of the following reasons:
(i) A decision on the petition requires analysis of voluminous
record or records;
(ii) Some or all of the challenged records must be collected from
facilities other than the facility at which the official responsible for
making the decision is located.
(iii) Some or all of the challenged records are of concern to
another bureau of the Department or another agency of the Federal
Government whose assistance and views are being sought in processing the
request.
[[Page 32]]
(2) If the official responsible for making a decision on the
petition determines that an extension is necessary, the official shall
promptly inform the petitioner of the extension and the date on which a
decision is expected to be dispatched.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56586, Dec. 22, 1983;
53 FR 3750, Feb. 9, 1988]
Sec. 2.74 Petitions for amendment: Appeals.
(a) Right of appeal. Except for appeals pertaining to Office of
Personnel Management records, where a petition for amendment has been
rejected in whole or in part, the individual submitting the petition may
appeal the denial to the Assistant Secretary--Policy, Budget and
Administration.
(b) Time for appeal. (1) An appeal must be received no later than
twenty (20) working days after the date of the decision on a petition.
(2) The Assistant Secretary--Policy, Budget and Administration may,
for good cause shown, extend the time for submission of an appeal if a
written request for additional time is received within twenty (20)
working days of the date of the decision on a petition.
(c) Form of appeal. (1) An appeal shall be in writing and shall
attach copies of the initial petition and the decision on that petition.
(2) The appeal shall contain a brief statement of the reasons why
the appellant believes the decision on the petition to have been in
error.
(3) The appeal shall be addressed to Privacy Act Officer, Office of
the Assistant Secretary--Policy, Budget and Administration, U.S.
Department of the Interior, Washington, DC 20240.
[40 FR 44505, Sept. 26, 1975, as amended at 47 FR 38328, Aug. 31, 1982;
53 FR 3750, Feb. 9, 1988]
Sec. 2.75 Petitions for amendment: Action on appeals.
(a) Authority. Appeals from decisions on initial petitions for
amendment shall be decided for the Department by the Assistant
Secretary--Policy, Budget and Administration or an official designated
by the Assistant Secretary, after consultation with the Solicitor.
(b) Time limit. (1) A final determination on any appeal shall be
made within thirty (30) working days after receipt of the appeal.
(2) The thirty (30) day period for decision on an appeal may be
extended, for good cause shown, by the Secretary of the Interior. If the
thirty (30) day period is extended, the individual submitting the appeal
shall be notified of the extension and of the date on which a
determination on the appeal is expected to be dispatched.
(c) Form of decision. (1) The final determination on an appeal shall
be in writing and shall state the basis for the determination.
(2) If the determination upholds, in whole or part, the initial
decision rejecting the petition for amendment, the determination shall
also advise the individual submitting the appeal:
(i) Of his or her right to file a concise statement of the reasons
for disagreeing with the decision of the agency;
(ii) Of the procedure established by Sec. 2.77 for the filing of the
statement of disagreement;
(iii) That the statement which is filed will be made available to
anyone to whom the record is subsequently disclosed together with, at
the discretion of the Department, a brief statement by the Department
summarizing its reasons for refusing to amend the record;
(iv) That prior recipients of the challenged record will be provided
a copy of any statement of dispute to the extent that an accounting of
disclosure was maintained; and
(v) Of his or her right to seek judicial review of the Department's
refusal to amend the record.
(3) If the determination reverses, in whole or in part, the initial
decision rejecting the petition for amendment, the system manager
responsible for the system containing the challenged record shall be
directed to:
(i) Amend the challenged record accordingly; and
[[Page 33]]
(ii) If an accounting of disclosures has been made, advise all
previous recipients of the record of the amendment and its substance.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56586, Dec. 22, 1983;
53 FR 3750, Feb. 9, 1988]
Sec. 2.76 [Reserved]
Sec. 2.77 Statements of disagreement.
(a) Filing of statement. If the determination of the Assistant
Secretary--Policy, Budget and Administration under Sec. 2.75 rejects in
whole or part, a petition for amendment, the individual submitting the
petition may file with the system manager for the system containing the
challenged record a concise written statement setting forth the reasons
for disagreement with the determination of the Department.
(b) Disclosure of statements. In any disclosure of a record
containing information about which an individual has filed a statement
of disagreement under this section which occurs after the filing of the
statement, the disputed portion of the record will be clearly noted and
the recipient shall be provided copies of the statement of disagreement.
If appropriate, a concise statement of the reasons of the Department for
not making the requested amendments may also be provided to the
recipient.
(c) Maintenance of statements. System managers shall develop
procedures to assure that statements of disagreement filed with them
shall be maintained in such a way as to assure dissemination of the
statements to recipients of the records to which the statements pertain.
[48 FR 56586, Dec. 22, 1983]
Sec. 2.78 [Reserved]
Sec. 2.79 Exemptions.
(a) Criminal law enforcement records exempt under 5 U.S.C.
552a(j)(2). Pursuant to 5 U.S.C 552a(j)(2) the following systems of
records have been exempted from all of the provisions of 5 U.S.C. 552a
and the regulations in the subpart except paragraphs (b), (c) (1) and
(2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and (11), and (i)
of 5 U.S.C. 552a and the portions of the regulations in this subpart
implementing these paragraphs:
(1) Investigative Case File System, Interior/FWS-20.
(2) Law Enforcement Services System, Interior/BIA-18.
(3) Law Enforcement Statistical Reporting System, Interior/NPS-19.
(4) Investigative Records, Interior/Office of Inspector General--2.
(b) Law enforcement records exempt under 5 U.S.C. 552a(k)(2).
Pursuant to 5 U.S.C. 552a(k)(2), the following systems of records have
been exempted from paragraphs (c)(3), (d), (e)(1), (e)(4) (G), (H), and
(I), and (f) of 5 U.S.C. 552a and the provisions of the regulations in
this subpart implementing these paragraphs:
(1) Investigative Records, Interior/Office of Inspector General--2.
(2) Permits System, Interior/FWS-21.
(3) Criminal Case Investigation System, Interior/BLM-18.
(4) Civil Trespass Case Investigations, Interior/BLM-19.
(5) Employee Conduct Investigations, Interior/BLM-20.
(6)-(7) [Reserved]
(8) Employee Financial Irregularities, Interior/NPS-17.
(9) Trespass Cases, Interior/Reclamation-37.
(10) Litigation, Appeal and Case Files System, Interior/Office of
the Solicitor-1 to the extent that it consists of investigatory material
compiled for law enforcement purposes.
(11) Endangered Species Licenses System, Interior/FWS-19.
(12) Investigative Case File, Interior/ FWS-20.
(13) Timber Cutting and Trespass Claims Files, Interior/BIA-24.
(c) Investigatory records exempt under 5 U.S.C. 552a(k)(5), the
following systems of records have been exempted from subsections (c)(3),
(d), (e)(1), (e)(4) (G), (H), and (I) and (f) of 5 U.S.C. 552a and the
provisions of the regulations in this subpart implementing these
subsections:
(1) [Reserved]
(2) National Research Council Grants Program, Interior/GS-9
[[Page 34]]
(3) Committee Management Files, Interior/Office of the Secretary--
68.
(5 U.S.C. 301, 552a and 5 U.S.C. app. sections 9(a)(1)(D) and 9(b); 5
U.S.C. 301, 552, and 552a; 31 U.S.C. 483a; and 43 U.S.C. 1460)
[40 FR 44505, Sept. 26, 1975, as amended at 40 FR 54790, Nov. 26, 1975;
47 FR 38328, Aug. 31, 1982; 48 FR 37412, Aug. 18, 1983; 48 FR 56586,
Dec. 22, 1983; 49 FR 6907, Feb. 24, 1984]
Subpart E--Legal Process: Testimony by Employees and Production of
Records
Source: 65 FR 46369, July 28, 2000, unless otherwise noted.
General Information
Sec. 2.80 What does this subpart cover?
(a) This subpart describes how the Department of the Interior
(including all its bureaus and offices) responds to requests or
subpoenas for:
(1) Testimony by employees in State, territorial or Tribal judicial,
legislative or administrative proceedings concerning information
acquired while performing official duties or because of an employee's
official status;
(2) Testimony by employees in Federal court civil proceedings in
which the United States is not a party concerning information acquired
while performing official duties or because of an employee's official
status;
(3) Testimony by employees in any judicial or administrative
proceeding in which the United States, while not a party, has a direct
and substantial interest;
(4) Official records or certification of such records for use in
Federal, State, territorial or Tribal judicial, legislative or
administrative proceedings.
(b) In this subpart, ``employee'' means a current or former
Department employee, including a contract or special government
employee.
(c) This subpart does not apply to:
(1) Congressional requests or subpoenas for testimony or records;
(2) Federal court civil proceedings in which the United States is a
party;
(3) Federal administrative proceedings;
(4) Federal, State and Tribal criminal court proceedings;
(5) Employees who voluntarily testify, while on their own time or in
approved leave status, as private citizens as to facts or events that
are not related to the official business of the Department. The employee
must state for the record that the testimony represents the employee's
own views and is not necessarily the official position of the
Department. See 5 CFR Secs. 2635.702(b), 2635.807 (b).
(6) Testimony by employees as expert witnesses on subjects outside
their official duties, except that they must obtain prior approval if
required by Sec. 2.90.
(d) This subpart does not affect the rights of any individual or the
procedures for obtaining records under the Freedom of Information Act
(FOIA), Privacy Act, or statutes governing the certification of official
records. The Department FOIA and Privacy Act regulations are found at 43
CFR Part 2, subparts B and D.
(e) Nothing in this subpart is intended to impede the appropriate
disclosure under applicable laws of Department information to Federal,
State, territorial, Tribal, or foreign law enforcement, prosecutorial,
or regulatory agencies.
(f) This subpart only provides guidance for the internal operations
of the Department, and neither creates nor is intended to create any
enforceable right or benefit against the United States.
Sec. 2.81 What is the Department's policy on granting requests for employee testimony or Department records?
(a) Except for proceedings covered by Sec. 2.80(c) and (d), it is
the Department's general policy not to allow its employees to testify or
to produce Department records either upon request or by subpoena.
However, if you request in writing, the Department will consider whether
to allow testimony or production of records under this subpart. The
Department's policy ensures the orderly execution of its mission and
programs while not impeding any proceeding inappropriately.
(b) No Department employee may testify or produce records in any
proceeding to which this subpart applies unless authorized by the
Department under Secs. 2.80 through 2.90 United States
[[Page 35]]
ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
Responsibilities of Requesters
Sec. 2.82 How can I obtain employee testimony or Department records?
(a) To obtain employee testimony, you must submit:
(1) A written request (hereafter a ``Touhy Request;'' see Sec. 2.84
and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)); and
(2) A statement that you will submit a check for costs to the
Department of the Interior, in accordance with Sec. 2.85, if your Touhy
Request is granted.
(b) To obtain official Department records, you must submit:
(1) A Touhy Request; and
(2) A Statement that you agree to pay the costs of duplication in
accordance with 43 CFR Part 2, appendix A, if your Touhy Request is
granted.
(c) You must send your Touhy Request to:
(1) The employee's office address;
(2) The official in charge of the employee's bureau, division,
office or agency; and
(3) The appropriate unit of the Solicitor's Office.
(d) To obtain employee testimony or records of the Office of
Inspector General, you must send your Touhy Request to the General
Counsel for the Office of Inspector General.
(e) 43 CFR Part 2, Appendix B contains a list of the addresses of
the Department's bureaus and offices and the units of the Solicitor's
Office. The General Counsel for the Inspector General is located at the
address for the Office of the Inspector General. If you do not know the
employee's address, you may obtain it from the employee's bureau or
office.
Sec. 2.83 If I serve a subpoena duces tecum, must I also submit a Touhy request?
Yes. If you serve a subpoena for employee testimony, you also must
submit a request under United States ex rel. Touhy v. Regan, 340 U.S.
462 (1951)? If you serve a subpoena duces tecum for records in the
possession of the Department, you also must submit a Touhy Request.
Sec. 2.84 What information must I put in my Touhy Request?
Your Touhy Request must:
(a) Identify the employee or record;
(b) Describe the relevance of the desired testimony or records to
your proceeding and provide a copy of the pleadings underlying your
request;
(c) Identify the parties to your proceeding and any known
relationships they have to the Department's mission or programs;
(d) Show that the desired testimony or records are not reasonably
available from any other source;
(e) Show that no record could be provided and used in lieu of
employee testimony;
(f) Provide the substance of the testimony expected of the employee;
and
(g) Explain why you believe your Touhy Request complies with
Sec. 2.88.
Sec. 2.85 How much will I be charged?
We will charge you the costs, including travel expenses, for
employees to testify under the relevant substantive and procedural laws
and regulations. You must pay costs for record production under 43 CFR
Part 2, Appendix A. Costs must be paid by check or money order payable
to the Department of the Interior.
Sec. 2.86 Can I get an authenticated copy of a Department record?
Yes. We may provide an authenticated copy of a Department record,
for purposes of admissibility under Federal, State or Tribal law. We
will do this only if the record has been officially released or would
otherwise be released under Sec. 2.13 or this Subpart.
Responsibility of the Department
Sec. 2.87 How will the Department process my Touhy Request?
(a) The appropriate Department official will decide whether to grant
or deny your Touhy Request. Our Solicitor's Office or, in the case of
the Office of Inspector General, its General Counsel, may negotiate with
you or your attorney to refine or limit both the timing and content of
your Touhy Request. When necessary, the Solicitor's Office or, in the
case of the Office of Inspector General, its General Counsel, also will
[[Page 36]]
coordinate with the Department of Justice to file appropriate motions,
including motions to remove the matter to Federal court, to quash, or to
obtain a protective order.
(b) We will limit our decision to allow employee testimony to the
scope of your Touhy Request.
(c) If you fail to follow the requirements of this Subpart, we will
not allow the testimony or produce the records.
(d) If your Touhy Request is complete, we will consider the request
under Sec. 2.88.
Sec. 2.88 What criteria will the Department consider in responding to my Touhy Request?
In deciding whether to grant your Touhy Request, the appropriate
Department official will consider:
(a) Your ability to obtain the testimony or records from another
source;
(b) The appropriateness of the employee testimony and record
production under the relevant regulations of procedure and substantive
law, including the FOIA or the Privacy Act; and
(c) Our ability to:
(1) Conduct our official business unimpeded;
(2) Maintain impartiality in conducting our business;
(3) Minimize the possibility that we will become involved in issues
that are not related to our mission or programs;
(4) Avoid spending public employee's time for private purposes;
(5) Avoid the negative cumulative effect of granting similar
requests;
(6) Ensure that privileged or protected matters remain confidential;
and
(7) Avoid undue burden on us.
Responsibilities of Employees
Sec. 2.89 What must I, as an employee, do upon receiving a request?
(a) If you receive a request or subpoena that does not include a
Touhy Request, you must immediately notify your supervisor and the
Solicitor's Office, or the General Counsel of the Office of the
Inspector General, as applicable, for assistance in issuing the proper
response.
(b) If you receive a Touhy Request, you must promptly notify your
supervisor and forward the request to the head of your bureau, division
or office. After consulting with the Solicitor's Office or, in the case
of the Office of Inspector General, its General Counsel, the official in
charge will decide whether to grant the Touhy Request under Sec. 2.88.
(c) All decisions granting or denying a Touhy Request must be in
writing. The official in charge must ask the applicable unit of the
Solicitor's Office or, in the case of the Office of Inspector General,
its General Counsel, for advice when preparing the decision.
(d) Under 28 U.S.C. 1733, Federal Rule of Civil Procedure 44(a)(1),
or comparable State or Tribal law, a request for an authenticated copy
of a Department record may be granted by the person having the legal
custody of the record. If you believe that you have custody of a record:
(1) Consult your delegated authority to determine if you can grant a
request for authentication of records; and
(2) Consult the Solicitor's Office or, in the case of the Office of
Inspector General, its General Counsel, concerning the proper form of
the authentication (as authentication requirements may vary by
jurisdiction).
Sec. 2.90 Must I get approval before testifying as an expert witness on a subject outside the scope of my official duties?
(a) You must comply with 5 CFR 2635.805(c), which details the
authorization procedure for an employee to testify as an expert witness,
not on behalf of the United States, in any judicial or administrative
proceeding in which the United States is a party or has a direct and
substantial interest. This procedure means:
(1) You must obtain the written approval of your Deputy Ethics
Official;
(2) You must be in an approved leave status if you testify during
duty hours; and
(3) You must state for the record that you are appearing as a
private individual and that your testimony does not represent the
official views of the Department.
(b) If you testify as an expert witness on a matter outside the
scope of yoru
[[Page 37]]
official duties, and which is not covered by paragraph (a) of this
section, you must comply with 5 CFR 2635.802 and 5 CFR 3501.105.
Appendix A to Part 2--Fees
The following uniform fee schedule is applicable to all constituent
units of the Department. It states the fees to be charged to members of
the public for services performed in searching for, reviewing and
duplicating requested records in connection with FOIA requests made
under subpart B of this part and to services performed in making
documents available for inspection and copying under subpart A of this
part. The duplicating fees stated in the schedule are also applicable to
duplicating of records in response to requests made under the Privacy
Act. The schedule also states the fee to be charged for certification of
documents.
(1) Copies, basic fee. For copies of documents reproduced on a
standard office copying machine in sizes to 8\1/
2\x14, the charge will be $0.13 per page.
Examples: For one copy of a three-page document, the fee would be
$0.39. For two copies of a three-page document, the fee would be $0.78.
For one copy of a 60-page document, the fee would be $7.80.
(2) Copies, documents requiring special handling. For copies of
documents which require special handling because of their age, size,
etc., cost will be based on direct costs of reproducing the materials.
(3)-(4) [Reserved]
(5) Searches. For each quarter hour, or portion thereof, spent by
clerical personnel in manual searches to locate requested records:
$2.30. For each quarter hour, or portion thereof, spent by professional
or managerial personnel in manual searches to locate requested records
because the search cannot be performed by clerical personnel: $4.65.
Search time for which fees may be charged includes all time spent
looking for material that is responsive to a request, including line-by-
line or page-by-page search to determine whether a record is responsive,
even if the search fails to locate records or the records located are
determined to be exempt from disclosure. Searches will be conducted in
the most efficient and least expensive manner, so as to minimize costs
for both the agency and the requester. Line-by-line or page-by-page
identification should not be necessary if it is clear on the face of a
document that it is covered by a request.
(6) Review of records. For each quarter hour, or portion thereof,
spent by clerical personnel in reviewing records: $2.30. For each
quarter hour, or portion thereof, spent by professional or managerial
personnel in reviewing records: $4.65.
Review is the examination of documents located in response to a
commercial use request to determine whether any portion of any document
located is permitted to be withheld and the subsequent processing of
documents for disclosure by excising exempt material or otherwise
preparing them for release. Review does not include time spent in
resolving general legal or policy issues regarding the application of
exemptions.
(7) [Reserved]
(8) Certification. For each certificate of verification attached to
authenticated copies of records furnished to the public the charge will
be $0.25.
(9) [Reserved]
(10) Computerized records. Charges for services in processing
requests for records maintained in computerized form will be calculated
in accordance with the following criteria:
(a) Costs for processing a data request will be calculated using the
same standard direct costs charged to other users of the facility, and/
or as specified in the user's manual or handbook published by the
computer center in which the work will be performed.
(b) An itemized listing of operations required to process the job
will be prepared (i.e., time for central processing unit, input/output,
remote terminal, storage, plotters, printing, tape/disc mounting, etc.)
with related associated costs applicable to each operation.
(c) Material costs (i.e., paper, disks, tape, etc.) will be
calculated using the latest acquisition price paid by the facility.
(d) ADP facility managers must assure that all cost estimates are
accurate, and if challenged, be prepared to substantiate that the rates
are not higher than those charged to other users of the facility for
similar work. Upon request, itemized listings of operations and
associated costs for processing the job may be furnished to members of
the public.
(e) Requesters entitled to two hours of free search time under 43
CFR 2.20(e) shall not be charged for that portion of a computer search
that equals two hours of the salary of the operator performing the
search.
(11) Postage/mailing costs. Mailing charges may be added for
services (such as express mail) that exceed the cost of first class
postage.
(12)-(13) [Reserved]
(14) Other services. When a response to a request requires services
or materials other than those described in this schedule, the direct
cost of such services or materials to the Government may be charged, but
only if the requester has been notified of such cost before it is
incurred.
(15) Effective date. This schedule applies to all requestes made
under the Freedom of Information Act and Privacy Act after December 30,
1987.
[52 FR 45592, Nov. 30, 1987]
[[Page 38]]
Appendix B to Part 2--Bureaus and Offices of the Department of the
Interior
1. Bureaus and Offices of the Department of the Interior. (The
address for all bureaus and offices, unless otherwise indicated, is U.S.
Department of the Interior, Washington, DC 20240.)
Secretary of the Interior, Office of the Secretary
Office of Administrtative Services (for Office of the Secretary
components)
Assistant Secretary, Territorial and International Affairs
Commissioner, Bureau of Indian Affairs
Director, U.S. Fish and Wildlife Service
Director, National Park Service, P.O. Box 37127, Washington, DC, 20013-
7127
Commissioner, Bureau of Reclamation
Director, Bureau of Land Management
Director, Minerals Management Service
Director, Bureau of Mines, Columbia Plaza, 2401 E Street NW.,
Washington, DC 20241
Director, Geological Survey, The National Center, Reston, VA 22092
Director, Office of Surface Mining Reclamation and Enforcement
Director, Office of Hearings and Appeals, 801 North Quincy Street,
Arlington, VA 22203
Inspector General, Office of Inspector General
Solicitor, Office of the Solicitor
2. Freedom of Information Officers of the Department of the
Interior. (The address for all Freedom of Information Officers, unless
otherwise indicated, is U.S. Department of the Interior, Washington, DC
20240.)
Director, Office of Administrative Services (for Office of the Secretary
components), U.S. Department of the Interior
Director, Office of Administration, Bureau of Indian Affairs
Freedom of Information Act Officer, Bureau of Land Management
Assistant Director, Finance and Management, Bureau of Mines, Columbia
Plaza, 2401 E Street NW., Washington, DC 20241
Freedom of Information Act Officer, Bureau of Reclamation
Chief, Division of Media Information, National Park Service
Chief, Regulatory Development and Issues Management, Office of Surface
Mining Reclamation and Enforcement
Chief, Directives Management Branch, Policy and Directives Management,
U.S. Fish and Wildlife Service,
Chief, Paperwork Management Unit, U.S. Geological Survey, The National
Center, Reston, VA 22092
Freedom of Information Act Officer, Minerals Management Service, 12203
Sunrise Valley Drive, Reston, VA 22091
Information Officer, Office of Inspector General
3. Office of Hearings and Appeals--Field Offices:
Administrative Law Judge, 710 Locust St., Federal Building, Suite 116,
Knoxville, TN 37902
Administrative Law Judges, 6432 Federal Bldg., Salt Lake City, UT 84138
Administrative Law Judge, 2901 N. Central Ave., Suite 955, Phoenix, AZ
85012-2739
Administrative Law Judge, 2020 Hurley Way, Suite 150, Sacramento, CA
95825
Administrative Law Judges, Bishop Henry Whipple Federal Building, 1
Federal Drive, rooms 674 and 688, Fort Snelling, MN 55111
Administrative Law Judge, 1700 Louisiana N.E., Suite 220, Albuquerque,
NM 87110
Administrative Law Judge, 215 Dean A. McGee Ave., room 507, Oklahoma
City, OK 73102
Administrative Law Judge (Indian Probate), Federal Bldg. & Courthouse,
515 9th St., Suite 201, Rapid City, SD 57701
Administrative Law Judge (Indian Probate), Federal Bldg. & Courthouse,
Rm. 3329, 316 N. 26th St., Billings, MT 59101
4. Office of the Solicitor-- Field Offices.
Regional Solicitors
Regional Solicitor, U.S. Department of the Interior, 701 C Street,
Anchorage, AK 99513
Regional Solicitor, U.S. Department of the Interior, Room E-2753, 2800
Cottage Way, Sacramento, CA 95825
Regional Solicitor, U.S. Department of the Interior, P.O. Box 25007,
Denver Federal Center, Denver, CO 80225
Regional Solicitor, U.S. Department of the Interior, Richard B. Russell
Federal Building, 75 Spring Street, SW., Suite 1328, Atlanta, GA 30303
Regional Solicitor, U.S. Department of the Interior, Suite 612, One
Gateway Center, Newton Corner, MA 02158
Regional Solicitor, U.S. Department of the Interior, Room 3068, Page
Belcher Federal Building, 333 West 4th Street, Tulsa, OK 74103
Regional Solicitor, U.S. Department of the Interior, Lloyd 500 Building,
Suite 607, 500 N.E. Multnomah, Portland, OR 97232
Regional Solicitor, U.S. Department of the Interior, Suite 6201, Federal
Building, 125 South State Street, Salt Lake City, UT 84138
Field Solicitors
Field Solicitor, U.S. Department of the Interior, Suite 150, 505 North
Second St., Phoenix, AZ 85004
Field Solicitor, U.S. Department of the Interior, P.O. Box M, Window
Rock, AZ 86515
[[Page 39]]
Field Solicitor, U.S. Department of the Interior, Box 36064, 450 Golden
Gate Avenue, Room 14126, San Francisco, CA 94102
Field Solicitor, U.S. Department of the Interior, Box 020, Federal
Building, U.S. Courthouse, 550 West Fort Street, Boise, ID 83724
Field Solicitor, U.S. Department of the Interior, 686 Federal Building,
Twin Cities, MN 55111
Field Solicitor, U.S. Department of the Interior, Room 5431, Federal
Building, 316 N. 26th Street, Billings, MT 59101
Field Solicitor, U.S. Department of the Interior, P.O. Box 1042, Santa
Fe, NM 87504
Field Solicitor, U.S. Department of the Interior, Osage Agency,
Grandview Avenue, Pawhuska, OK 74056
Field Solicitor, U.S. Department of the Interior, Suite 502J, U.S. Post
Office and Courthouse, Pittsburgh, PA 15219
Field Solicitor, U.S. Department of the Interior, P.O. Box 15006,
Knoxville, TN 37901
Field Solicitor, U.S. Department of the Interior, 1100 South Fillmore,
Amarillo, TX 79101
Field Solicitor, U.S. Department of the Interior, 603 Morris Street, 2nd
Floor, Charleston, WV 25301.
[52 FR 45593, Nov. 30, 1987, as amended at 53 FR 16128, May 5, 1988; 58
FR 48973, Sept. 21, 1993; 67 FR 4368, Jan. 30, 2002]
PART 3--PRESERVATION OF AMERICAN ANTIQUITIES--Table of Contents
Sec.
3.1 Jurisdiction.
3.2 Limitation on permits granted.
3.3 Permits; to whom granted.
3.4 No exclusive permits granted.
3.5 Application.
3.6 Time limit of permits granted.
3.7 Permit to become void.
3.8 Applications referred for recommendation.
3.9 Form and reference of permit.
3.10 Reports.
3.11 Restoration of lands.
3.12 Termination.
3.13 Report of field officer.
3.14 Examinations by field officer.
3.15 Persons who may apprehend or cause to be arrested.
3.16 Seizure.
3.17 Preservation of collection.
Authority: Secs. 3, 4, 34 Stat. 225, as amended; 16 U.S.C. 432.
Source: 19 FR 8838, Dec. 23, 1954, unless otherwise noted.
Sec. 3.1 Jurisdiction.
Jurisdiction over ruins, archeological sites, historic and
prehistoric monuments and structures, objects of antiquity, historic
landmarks, and other objects of historic and scientific interest, shall
be exercised under the act by the respective Departments as follows:
(a) By the Secretary of Agriculture over lands within the exterior
limits of forest reserves;
(b) By the Secretary of the Army over lands within the exterior
limits of military reservations;
(c) By the Secretary of the Interior over all other lands owned or
controlled by the Government of the United States, Provided, The
Secretaries of the Army and Agriculture may by agreement cooperate with
the Secretary of the Interior in the supervision of such monuments and
objects covered by the Act of June 8, 1906 (34 Stat. 225; 16 U.S.C. 431-
-433), as may be located on lands near or adjacent to forest reserves
and military reservations, respectively.
Sec. 3.2 Limitation on permits granted.
No permit for the removal of any ancient monument or structure which
can be permanently preserved under the control of the United States in
situ, and remain an object of interest, shall be granted.
Sec. 3.3 Permits; to whom granted.
Permits for the examination of ruins, the excavation of
archeological sites, and the gathering of objects of antiquity will be
granted, by the respective Secretaries having jurisdiction, to reputable
museums, universities, colleges, or other recognized scientific or
educational institutions, or to their duly authorized agents.
Sec. 3.4 No exclusive permits granted.
No exclusive permits shall be granted for a larger area than the
applicant can reasonably be expected to explore fully and systematically
within the time limit named in the permit.
Sec. 3.5 Application.
Each application for a permit should be filed with the Secretary
having jurisdiction, and must be accompanied by a definite outline of
the proposed work, indicating the name of the institution making the
request, the date proposed for beginning the field work, the length of
time proposed to be devoted to it,
[[Page 40]]
and the person who will have immediate charge of the work. The
application must also contain an exact statement of the character of the
work, whether examination, excavation, or gathering, and the public
museum in which the collections made under the permit are to be
permanently preserved. The application must be accompanied by a sketch
plan or description of the particular site or area to be examined,
excavated, or searched, so definite that it can be located on the map
with reasonable accuracy.
Sec. 3.6 Time limit of permits granted.
No permit will be granted for a period of more than 3 years, but if
the work has been diligently prosecuted under the permit, the time may
be extended for proper cause upon application.
Sec. 3.7 Permit to become void.
Failure to begin work under a permit within 6 months after it is
granted, or failure to diligently prosecute such work after it has been
begun, shall make the permit void without any order or proceeding by the
Secretary having jurisdiction.
Sec. 3.8 Applications referred for recommendation.
Applications for permits shall be referred to the Smithsonian
Institution for recommendation.
Sec. 3.9 Form and reference of permit.
Every permit shall be in writing and copies shall be transmitted to
the Smithsonian Institution and the field officer in charge of the land
involved. The permittee will be furnished with a copy of the regulations
in this part.
Sec. 3.10 Reports.
At the close of each season's field work the permittee shall report
in duplicate to the Smithsonian Institution, in such form as its
secretary may prescribe, and shall prepare in duplicate a catalogue of
the collections and of the photographs made during the season,
indicating therein such material, if any, as may be available for
exchange.
Sec. 3.11 Restoration of lands.
Institutions and persons receiving permits for excavation shall,
after the completion of the work, restore the lands upon which they have
worked to their customary condition, to the satisfaction of the field
officer in charge.
Sec. 3.12 Termination.
All permits shall be terminable at the discretion of the Secretary
having jurisdiction.
Sec. 3.13 Report of field officer.
The field officer in charge of land owned or controlled by the
Government of the United States shall, from time to time, inquire and
report as to the existence, on or near such lands, of ruins and
archaeological sites, historic or prehistoric ruins or monuments,
objects of antiquity, historic landmarks, historic and prehistoric
structures, and other objects of historic or scientific interest.
Sec. 3.14 Examinations by field officer.
The field officer in charge may at all times examine the permit of
any person or institution claiming privileges granted in accordance with
the act and this part, and may fully examine all work done under such
permit.
Sec. 3.15 Persons who may apprehend or cause to be arrested.
All persons duly authorized by the Secretaries of Agriculture, Army
and Interior may apprehend or cause to be arrested, as provided in the
Act of February 6, 1905 (33 Stat. 700) any person or persons who
appropriate, excavate, injure, or destroy any historic or prehistoric
ruin or monument, or any object of antiquity on lands under the
supervision of the Secretaries of Agriculture, Army, and Interior,
respectively.
Sec. 3.16 Seizure.
Any object of antiquity taken, or collection made, on lands owned or
controlled by the United States, without a permit, as prescribed by the
act and this part, or there taken or made, contrary to the terms of the
permit, or contrary to the act and this part, may be seized wherever
found and at any
[[Page 41]]
time, by the proper field officer or by any person duly authorized by
the Secretary having jurisdiction, and disposed of as the Secretary
shall determine, by deposit in the proper national depository or
otherwise.
Sec. 3.17 Preservation of collection.
Every collection made under the authority of the act and of this
part shall be preserved in the public museum designated in the permit
and shall be accessible to the public. No such collection shall be
removed from such public museum without the written authority of the
Secretary of the Smithsonian Institution, and then only to another
public museum, where it shall be accessible to the public; and when any
public museum, which is a depository of any collection made under the
provisions of the act and this part, shall cease to exist, every such
collection in such public museum shall thereupon revert to the national
collections and be placed in the proper national depository.
PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES--Table of Contents
Subpart A--General; Office of Hearings and Appeals
Sec.
4.1 Scope of authority; applicable regulations.
4.2 Membership of appeals boards; decisions, functions of Chief Judges.
4.3 Representation before appeals boards.
4.4 Public records; locations of field offices.
4.5 Power of the Secretary and Director.
Subpart B--General Rules Relating to Procedures and Practice
4.20 Purpose.
4.21 General provisions.
4.22 Documents.
4.23 Transcript of hearings.
4.24 Basis of decision.
4.25 Oral argument.
4.26 Subpoena power and witness provisions generally.
4.27 Standards of conduct.
4.28 Interlocutory appeals.
4.29 Remands from courts.
4.30 Information required by forms.
4.31 Request for limiting disclosure of confidential information.
Subpart C--Special Rules of Practice Before the Interior Board of
Contract Appeals
4.100 General rules and guidelines.
Prehearing Procedure Rules
4.101 Who may appeal.
4.102 Appeals--how taken.
4.103 Forwarding and docketing of appeals.
4.104 Preparation, organization, transmittal, and status of appeal
file.
4.105 Dismissal for lack of jurisdiction.
4.106 Representation and appearances.
4.107 Pleadings.
4.108 Amendments of pleadings or record.
4.109 Hearing--election.
4.110 Prehearing briefs.
4.111 Prehearing or presubmission conference.
4.112 Submission without a hearing.
4.113 Optional small claims (expedited) and accelerated procedures.
(See Sec. 4.100(a)(2).)
4.114 Settling of the record.
4.115 Discovery--depositions.
4.116 Interrogatories to parties; inspection of documents; admission of
facts.
4.117 Service of papers.
Hearing Procedure Rules
4.118 Hearings--where and when held.
4.119 Notice of hearings.
4.120 Subpoenas. (See Sec. 4.100(a)(2).)
4.121 Unexcused absence of a party.
4.122 Nature of hearings.
4.123 Examination of witnesses.
4.124 Submission of briefs.
Posthearing Procedure Rules
4.125 Decisions.
4.126 Motions for reconsideration.
4.127 Dismissals.
4.128 Remands from courts.
Appendix I to Subpart C of Part 4--Suggested Form of Notice of Appeal
Subpart D--Rules Applicable in Indian Affairs Hearings and Appeals
Determinations of Heirs and Approval of Wills, Except as to Members of
the Five Civilized Tribes and Osage Indians; Tribal Purchases of
Interests Under Special Statutes
Scope of Regulations; Definitions; General Authority of OHA Deciding
Officials
4.200 Scope of regulations.
4.201 Definitions.
4.202 General authority of OHA deciding officials.
[[Page 42]]
Determination of Heirs; Approval of Wills; Settlement of Indian Trust
Estates
4.203 Determination as to nonexistent persons and other irregularities
of allotments.
4.204 Presumption of death.
4.205 Escheat.
4.206 Determinations of nationality or citizenship and status affecting
character of land titles.
4.207 Compromise settlement.
4.208 Renunciation of interest.
Commencement of Probate Proceedings
4.210 Commencement of probate.
4.211 Notice.
4.212 Contents of notice.
Depositions, Discovery, and Prehearing Conference
4.220 Production of documents for inspection and copying.
4.221 Depositions.
4.222 Written interrogatories; admission of facts and documents.
4.223 Objections to and limitations on production of documents,
depositions, and interrogatories.
4.224 Failure to comply with orders.
4.225 Prehearing conference.
Hearings
4.230 Authority and duties of the OHA deciding official.
4.231 Hearings.
4.232 Evidence; form and admissibility.
4.233 Proof of wills, codicils, and revocations.
4.234 Witnesses, interpreters, and fees.
4.235 Supplemental hearings.
4.236 Record.
Decisions
4.240 Decision of administrative law judge and notice thereof.
4.241 Rehearing.
4.242 Reopening.
4.243 Appeals from BIA.
Claims
4.250 Filing and proof of creditor claims; limitations.
4.251 Priority of claims.
4.252 Property subject to claims.
Wills
4.260 Making; review as to form; revocation.
4.261 Anti-lapse provisions.
4.262 Felonious taking of testator's life.
Custody and Distribution of Estates
4.270 Custody and control of trust estates.
4.271 Omitted property.
4.272 Improperly included property.
4.273 Distribution of estates.
Miscellaneous
4.281 Claims for attorney fees.
4.282 Guardians for incompetents.
Tribal Purchase of Interests Under Special Statutes
4.300 Authority and scope.
4.301 Valuation report.
4.302 Conclusion of probate and tribal exercise of statutory option.
4.303 Notice by surviving spouse to reserve a life estate.
4.304 Rehearing.
4.305 Hearing.
4.306 Time for payment.
4.307 Title.
4.308 Disposition of income.
General Rules Applicable to Proceedings on Appeal Before the Interior
Board of Indian Appeals
4.310 Documents.
4.311 Briefs on appeal.
4.312 Decisions.
4.313 Amicus Curiae; intervention; joinder motions.
4.314 Exhaustion of administrative remedies.
4.315 Reconsideration.
4.316 Remands from courts.
4.317 Standards of conduct.
4.318 Scope of review.
Appeals to the Board of Indian Appeals in Probate Matters
4.320 Who may appeal.
4.321 Notice of transmittal of record on appeal.
4.322 Docketing.
4.323 Disposition of the record.
Appeals to the Board of Indian Appeals From Administrative Actions of
Officials of the Bureau of Indian Affairs: Administrative Review in
Other Indian Matters Not Relating to Probate Proceedings
4.330 Scope.
4.331 Who may appeal.
4.332 Appeal to the Board; how taken; mandatory time for filing;
preparation assistance; requirement for bond.
4.333 Service of notice of appeal.
4.334 Extensions of time.
4.335 Preparation and transmittal of record by official of the Bureau
of Indian Affairs.
4.336 Docketing.
4.337 Action by the Board.
4.338 Submission by administrative law judge of proposed findings,
conclusions and recommended decision.
[[Page 43]]
4.339 Exceptions or comments regarding recommended decision by
administrative law judge.
4.340 Disposition of the record.
White Earth Reservation Land Settlement Act of 1985; Authority of
Administrative Judges; Determinations of the Heirs of Persons Who Died
Entitled to Compensation
4.350 Authority and scope.
4.351 Commencement of the determination process.
4.352 Determination of administrative judge and notice thereof.
4.353 Record.
4.354 Reconsideration or rehearing.
4.355 Omitted compensation.
4.356 Appeals.
4.357 Guardians for minors and incompetents.
Subpart E--Special Rules Applicable to Public Land Hearings and Appeals
Appeals Procedures
appeals procedures; general
4.400 Definitions.
4.401 Documents.
4.402 Summary dismissal.
4.403 Finality of decision; reconsideration.
appeals to the board of land appeals
4.410 Who may appeal.
4.411 Appeal; how taken, mandatory time limit.
4.412 Statement of reasons, statement of standing, written arguments,
briefs.
4.413 Service of notice of appeal and of other documents.
4.414 Answers.
actions by board of land appeals
4.415 Request for hearings on appeals involving questions of fact.
Hearings Procedures
hearings procedures; general
4.420 Applicability of general rules.
4.421 Definitions.
4.422 Documents.
4.423 Subpoena power and witness provisions.
hearings on appeals involving questions of fact
4.430 Prehearing conferences.
4.431 Fixing of place and date for hearing; notice.
4.432 Postponements.
4.433 Authority of the administrative law judge.
4.434 Conduct of hearing.
4.435 Evidence.
4.436 Reporter's fees.
4.437 Copies of transcript.
4.438 Summary of evidence.
4.439 Action by administrative law judge.
contest and protest proceedings
4.450 Private contests and protests.
4.450-1 By whom private contest may be initiated.
4.450-2 Protests.
4.450-3 Initiation of contest.
4.450-4 Complaints.
4.450-5 Service.
4.450-6 Answer to complaint.
4.450-7 Action by manager.
4.450-8 Amendment of answer.
4.451 Government contests.
4.451-1 How initiated.
4.451-2 Proceedings in Government contests.
4.452 Proceedings before the administrative law judge.
4.452-1 Prehearing conferences.
4.452-2 Notice of hearing.
4.452-3 Postponements.
4.452-4 Authority of administrative law judge.
4.452-5 Conduct of hearing.
4.452-6 Evidence.
4.452-7 Reporter's fees.
4.452-8 Findings and conclusions; decision by administrative law judge;
submission to Board for decision.
4.452-9 Appeal to Board.
Grazing Proceedures (Inside and Outside Grazing Districts)
4.470 Appeal to administrative law judge; motion to dismiss.
4.471 Time and place of hearing; notice; intervenors.
4.472 Authority of administrative law judge.
4.473 Service.
4.474 Conduct of hearing; reporter's fees; transcript.
4.475 Findings of fact and decision by administrative law judge:
Notice; submission to Board of Land Appeals for decision.
4.476 Appeals to the Board of Land Appeals.
4.477 Effect of decision suspended during appeal.
4.478 Conditions of decision action.
Subpart F--Implementation of the Equal Access to Justice Act in Agency
Proceedings
General Provisions
4.601 Purpose of these rules.
4.602 Definitions.
4.603 Proceedings covered.
4.604 Applicability to Department of the Interior proceedings.
4.605 Eligibility of applicants.
4.606 Standards for awards.
4.607 Allowable fees and expenses.
[[Page 44]]
Information Required From Applicants
4.608 Contents of application.
4.609 Net worth exhibit.
4.610 Documentation of fees and expenses.
4.611 Time for submission of application.
Procedures for Considering Applications
4.612 Filing and service of documents.
4.613 Answer to application.
4.614 Settlement.
4.615 Extensions of time and further proceedings.
4.616 Decision on application.
4.617 Appeals Board review.
4.618 Judicial review.
4.619 Payment of award.
Subpart G--Special Rules Applicable to Other Appeals and Hearings
4.700 Who may appeal.
4.701 Notice of appeal.
4.702 Transmittal of appeal file.
4.703 Pleadings.
4.704 Decisions on appeals.
Subpart H [Reserved]
Subpart I--Special Procedural Rules Applicable to Practice and Procedure
for Hearings, Decisions, and Administrative Review Under Part 17 of This
Title--Nondiscrimination in Federally Assisted Programs of the
Department of the Interior--Effectuation of Title VI of the Civil Rights
Act of 1964
General
4.800 Scope and construction of rules.
4.801 Suspension of rules.
4.802 Definitions.
4.803 Computation of time.
4.804 Extensions of time.
4.805 Reduction of time to file documents.
Designation and Responsibilities of Administrative Law Judge
4.806 Designation.
4.807 Authority and responsibilities.
Appearance and Practice
4.808 Participation by a party.
4.809 Determination of parties.
4.810 Complainants not parties.
4.811 Determination and participation of amici.
Form and Filing of Documents
4.812 Form.
4.813 Filing and service.
4.814 Certificate of service.
Procedures
4.815 How proceedings are commenced.
4.816 Notice of hearing and response thereto.
4.817 Notice of opportunity to request a hearing and response thereto.
4.818 Answer.
4.819 Amendment of notice or answer.
4.820 Consolidated or joint hearings.
4.821 Motions.
4.822 Disposition of motions.
4.823 Interlocutory appeals.
4.824 Exhibits.
4.825 Admissions as to facts and documents.
4.826 Discovery.
4.827 Depositions.
4.828 Use of depositions at hearing.
4.829 Interrogatories to parties.
4.830 Production of documents and things and entry upon land for
inspection and other purposes.
4.831 Sanctions.
4.832 Consultation and advice.
Prehearing
4.833 Prehearing conferences.
Hearing
4.834 Purpose.
4.835 Evidence.
4.836 Official notice.
4.837 Testimony.
4.838 Objections.
4.839 Exceptions.
4.840 Offer of proof.
4.841 Official transcript.
Posthearing Procedures
4.842 Proposed findings of fact and conclusions of law.
4.843 Record for decision.
4.844 Notification of right to file exceptions.
4.845 Final review by Secretary.
Subpart J--Special Rules Applicable to Appeals Concerning Federal Oil
and Gas Royalties and Related Matters
4.901 What is the purpose of this subpart?
4.902 What appeals are subject to this subpart?
4.903 What definitions apply to this subpart?
4.904 When does my appeal commence and end?
4.905 What if a due date falls on a day the Department or relevant
office is not open for business?
4.906 What if the Department does not issue a decision by the date my
appeal ends?
4.907 What if an IBLA decision requires MMS or a delegated State to
recalculate royalties or other payments?
4.908 What is the administrative record for my appeal if it is deemed
decided?
4.909 How do I request an extension of time?
[[Page 45]]
Subpart K [Reserved]
Subpart L--Special Rules Applicable to Surface Coal Mining Hearings and
Appeals
General Provisions
4.1100 Definitions.
4.1101 Jurisdiction of the Board.
4.1102 Construction.
4.1103 Eligibility to practice.
4.1104 General rules relating to procedure and practice.
4.1105 Parties.
4.1106 Hearing sites.
4.1107 Filing of documents.
4.1108 Form of documents.
4.1109 Service.
4.1110 Intervention.
4.1111 Voluntary dismissal.
4.1112 Motions.
4.1113 Consolidation of proceedings.
4.1114 Advancement of proceedings.
4.1115 Waiver of right to hearing.
4.1116 Status of notices of violation and orders of cessation pending
review by the Office of Hearings and Appeals.
Evidentiary Hearings
4.1120 Presiding officers.
4.1121 Powers of administrative law judges.
4.1122 Conduct of administrative law judges.
4.1123 Notice of hearing.
4.1124 Certification of interlocutory ruling.
4.1125 Summary decision.
4.1126 Proposed findings of fact and conclusions of law.
4.1127 Initial orders and decisions.
4.1128 Effect of initial order or decision.
4.1129 Certification of record.
Discovery
4.1130 Discovery methods.
4.1131 Time for discovery.
4.1132 Scope of discovery.
4.1133 Sequence and timing of discovery.
4.1134 Supplementation of responses.
4.1135 Motion to compel discovery.
4.1136 Failure to comply with orders compelling discovery.
4.1137 Depositions upon oral examination or upon written questions.
4.1138 Use of depositions.
4.1139 Written interrogatories to parties.
4.1140 Production of documents and things and entry upon land for
inspection and other purposes.
4.1141 Admissions.
Petitions for Review of Proposed Assessments of Civil Penalties
4.1150 Who may file.
4.1151 Time for filing.
4.1152 Contents of petition; payment required.
4.1153 Answer.
4.1154 Review of waiver determination.
4.1155 Burdens of proof in civil penalty proceedings.
4.1156 Summary disposition.
4.1157 Determination by administrative law judge.
4.1158 Appeals.
Review of Section 521 Notices of Violation and Orders of Cessation
4.1160 Scope.
4.1161 Who may file.
4.1162 Time for filing.
4.1163 Effect of failure to file.
4.1164 Contents of application.
4.1165 Answer.
4.1166 Contents of answer.
4.1167 Notice of hearing.
4.1168 Amendments to pleadings.
4.1169 Failure to state a claim.
4.1170 Related notices or orders.
4.1171 Burden of proof in review of section 521 notices or orders.
Expedited Review of Section 521(a)(2) or 521(a)(3) Orders of Cessation
4.1180 Purpose.
4.1181 Who may file.
4.1182 Where to file.
4.1183 Time for filing.
4.1184 Contents of application.
4.1185 Computation of time for decision.
4.1186 Waiver of the 30-day decision requirement.
4.1187 Procedure if 30-day decision requirement is not waived.
Proceedings for Suspension or Revocation of Permits Under Section
521(a)(4) of the Act
4.1190 Initiation of proceedings.
4.1191 Answer.
4.1192 Contents of answer.
4.1193 Notice of hearing.
4.1194 Burden of proof in suspension or revocation proceedings.
4.1195 Determination by the administrative law judge.
4.1196 Summary disposition.
4.1197 Appeals.
Applications for Review of Alleged Discriminatory Acts Under Section 703
of the Act
4.1200 Filing of the application for review with the Office of Hearings
and Appeals.
4.1201 Request for scheduling of a hearing.
4.1202 Response to request for the scheduling of a hearing.
4.1203 Application for temporary relief from alleged discriminatory
acts.
4.1204 Determination by administrative law judge.
4.1205 Appeals.
[[Page 46]]
Applications for Temporary Relief
4.1260 Scope.
4.1261 When to file.
4.1262 Where to file.
4.1263 Contents of application.
4.1264 Response to application.
4.1265 Determination on application concerning a notice of violation
issued pursuant to section 521(a)(3) of the Act.
4.1266 Determination on application concerning an order of cessation.
4.1267 Appeals.
Appeals to the Board From Decisions or Orders of Administrative Law
Judges
4.1270 Petition for discretionary review of a proposed civil penalty.
4.1271 Notice of appeal.
4.1272 Interlocutory appeals.
4.1273 Briefs.
4.1274 Remand.
4.1275 Final decisions.
4.1276 Reconsideration.
Appeals to the Board From Decisions of the Office of Surface Mining
4.1280 Scope.
4.1281 Who may appeal.
4.1282 Appeals; how taken.
4.1283 Service.
4.1284 Answer.
4.1285 Summary dismissal.
4.1286 Request for hearings.
Petitions for Award of Costs and Expenses Under Section 525(e) of the
Act
4.1290 Who may file.
4.1291 Where to file; time for filing.
4.1292 Contents of petition.
4.1293 Answer.
4.1294 Who may receive an award.
4.1295 Awards.
4.1296 Appeals.
Petitions for Review of Proposed Individual Civil Penalty Assessments
Under Section 518(f) of the Act
4.1300 Scope.
4.1301 Who may file.
4.1302 Time for filing.
4.1303 Contents and service of petition.
4.1304 Answer, motion, or statement of OSM.
4.1305 Amendment of petition.
4.1306 Notice of hearing.
4.1307 Elements; burdens of proof.
4.1308 Decision by administrative law judge.
4.1309 Petition for discretionary review.
Request for Hearing on a Preliminary Finding Concerning a Demonstrated
Pattern of Willful Violations Under Section 510(c) of the Act, 30 U.S.C.
1260(c) (Federal Program; Federal Lands Program; Federal Program for
Indian Lands)
4.1350 Scope.
4.1351 Preliminary finding by OSM.
4.1352 Who may file; where to file; when to file.
4.1353 Contents of request.
4.1354 Determination by the administrative law judge.
4.1355 Burden of proof.
4.1356 Appeals.
Request for Review of Approval or Disapproval of Applications for New
Permits, Permit Revisions, Permit Renewals, the Transfer, Assignment or
Sale of Rights Granted Under Permit (Federal Program; Federal Lands
Program; Federal Program for Indian Lands) and for Coal Exploration
Permits (Federal Program)
4.1360 Scope.
4.1361 Who may file.
4.1362 Where to file; when to file.
4.1363 Contents of request; amendment of request; responses.
4.1364 Time for hearing; notice of hearing; extension of time for
hearing.
4.1365 Status of decision pending administrative review.
4.1366 Burdens of proof.
4.1367 Request for temporary relief.
4.1368 Determination by the Administrative Law Judge.
4.1369 Petition for discretionary review; judicial review.
Review of OSM Decisions Proposing To Suspend or Rescind or Suspending or
Rescinding Improvidently Issued Permits
4.1370 Scope.
4.1371 Who may file, where to file, when to file.
4.1372 Contents of request for review, response to request, amendment
of request.
4.1373 Hearing.
4.1374 Burdens of proof.
4.1375 Time for initial decision.
4.1376 Petition for temporary relief from notice of proposed suspension
or rescission or notice of suspension or rescission; appeals
from decisions granting or denying temporary relief.
4.1377 Petition for discretionary review of initial decision.
[[Page 47]]
Review of Office of Surface Mining Written Decisions Concerning
Ownership or Control Challenges
4.1380 Scope.
4.1381 Who may file; when to file; where to file.
4.1382 Contents of request for review; response to request; amendment
of request.
4.1383 Hearing.
4.1384 Burdens of proof.
4.1385 Time for initial decision.
4.1386 Petition for temporary relief from decision; appeals from
decisions granting or denying temporary relief.
4.1387 Petition for discretionary review of initial decisions.
Request for Review of OSM Determinations of Issues Under 30 CFR Part 761
(Federal Program; Federal Lands Program; Federal Program for Indian
Lands)
4.1390 Scope.
4.1391 Who may file; where to file; when to file; filing of
administrative record.
4.1392 Contents of request; amendment of request; responses.
4.1393 Status of decision pending administrative review.
4.1394 Burden of proof.
Subpart M--Special Procedural Rules Applicable to Appeals of Decisions
Made Under OMB Circular A-76
4.1600 Purpose and nature of the appeal process.
4.1601 Basis for appeal.
4.1602 Who may appeal under this procedure.
4.1603 Appeal period.
4.1604 Method of filing an appeal.
4.1605 Action by the Office of Hearings and Appeals.
4.1606 Department representation.
4.1607 Processing the appeal.
4.1608 Oral presentations.
4.1609 Multiple appeals.
4.1610 Decision of the appeals official.
Authority: R.S. 2478, as amended, 43 U.S.C. sec. 1201, unless
otherwise noted.
Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.
Subpart A--General; Office of Hearings and Appeals
Sec. 4.1 Scope of authority; applicable regulations.
The Office of Hearings and Appeals, headed by a Director, is an
authorized representative of the Secretary for the purpose of hearing,
considering and determining, as fully and finally as might the
Secretary, matters within the jurisdiction of the Department involving
hearings, and appeals and other review functions of the Secretary.
Principal components of the Office include:
(a) A Hearings Division comprised of administrative law judges who
are authorized to conduct hearings in cases required by law to be
conducted pursuant to 5 U.S.C. 554, and hearings in other cases arising
under statutes and regulations of the Department, including rule making
hearings, and
(b) Appeals Boards, shown below, with administrative jurisdiction
and special procedural rules as indicated. General rules applicable to
all types of proceedings are set forth in subpart B of this part.
Therefore, for information as to applicable rules, reference should be
made to the special rules in the subpart relating to the particular type
of proceeding, as indicated, and to the general rules in subpart B of
this part. Wherever there is any conflict between one of the general
rules in subpart B of this part and a special rule in another subpart
applicable to a particular type of proceeding, the special rule will
govern. Reference should be made also to the governing laws, substantive
regulations and policies of the Department relating to the proceeding.
In addition, reference should be made to part 1 of this subtitle which
regulates practice before the Department of the Interior.
(1) Board of Contract Appeals. The Board considers and decides
finally for the Department appeals to the head of the Department from
findings of fact or decisions by contracting officers of any bureau or
office of the Department, wherever situated, or any field installation
thereof, and orders and conducts hearings as necessary. Special
regulations applicable to proceedings before the Board are contained in
subpart C of this part.
(2) Board of Indian Appeals. The Board decides finally for the
Department appeals to the head of the Department pertaining to:
(i) Administrative actions of officials of the Bureau of Indian
Affairs, issued under 25 CFR chapter I, except as limited in 25 CFR
chapter I or Sec. 4.330 of this part, and
[[Page 48]]
(ii) Orders and decisions of Administrative Law Judges in Indian
probate matters other than those involving estates of the Five Civilized
Tribes of Indians. The Board also decides such other matters pertaining
to Indians as are referred to it by the Secretary, the Director of the
Office of Hearings and Appeals, or the Assistant Secretary-Indian
Affairs for exercise of review authority of the Secretary. Special
regulations applicable to proceedings before the Board are contained in
subpart D of this part.
(3) Board of Land Appeals. The Board decides finally for the
Department appeals to the head of the Department from decisions rendered
by Departmental officials relating to: (i) The use and disposition of
public lands and their resources, including land selections arising
under the Alaska Native Claims Settlement Act, as amended; (ii) the use
and disposition of mineral resources in certain acquired lands of the
United States and in the submerged lands of the Outer Continental Shelf;
and (iii) the conduct of surface coal mining under the Surface Mining
Control and Reclamation Act of 1977. Special procedures for hearings,
appeals and contests in public land cases are contained in subpart E of
this part; special procedures for hearings and appeals under the Surface
Mining Control and Reclamation Act of 1977 are contained in subpart L of
this part.
(4) Ad Hoc Board of Appeals. Appeals to the head of the Department
which do not lie within the appellate review jursidiction of an
established Appeals Board and which are not specifically excepted in the
general delegation of authority to the Director may be considered and
ruled upon by the Director or by Ad Hoc Boards of Appeals appointed by
the Director to consider the particular appeals and to issue decisions
thereon, deciding finally for the Department all questions of fact and
law necessary for the complete adjudication of the issues. Jurisdiction
of the Boards would include, but not be limited to, the appellate and
review authority of the Secretary referred to in parts 13, 21, and 230
of this title, and in 36 CFR parts 8 and 20. Special regulations
applicable to proceedings in such cases are contained in subpart G of
this part.
(Sec. 525, Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.
1275, and sec. 301, Administrative Procedure Act, 5 U.S.C. 301)
[36 FR 7186, Apr. 15, 1971, as amended at 40 FR 33172, Aug. 6, 1975; 47
FR 26392, June 18, 1982; 49 FR 7565, Mar. 1, 1984; 54 FR 6485, Feb. 10,
1989; 61 FR 47434, Sept. 9, 1996; 61 FR 49976, Sept. 24, 1996]
Sec. 4.2 Membership of appeals boards; decisions, functions of Chief Judges.
(a) The Appeals Boards consist of regular members, who are hereby
designated Administrative Judges, one of whom is designated as Chief
Administrative Judge, the Director as an ex officio member, and
alternate members who may serve, when necessary, in place of or in
addition to regular members. The Chief Administrative Judge of an
Appeals Board may direct that an appeal may be decided by a panel of any
two Administrative Judges of the Board, but if they are unable to agree
upon a decision, the Chief Administrative Judge may assign one or more
additional Administrative Judges of the Board to consider the appeal.
The concurrence of a majority of the Board Administrative Judges who
consider an appeal shall be sufficient for a decision.
(b) Decisions of the Board must be in writing and signed by not less
than a majority of the Administrative Judges who considered the appeal.
The Director, being an ex officio member, may participate in the
consideration of any appeal and sign the resulting decision.
(c) The Chief Administrative Judge of an Appeals Board shall be
responsible for the internal management and administration of the Board,
and the Chief Administrative Judge is authorized to act on behalf of the
Board in conducting correspondence and in carrying out such other duties
as may be necessary in the conduct of routine business of the Board.
[39 FR 7931, Mar. 1, 1974]
Sec. 4.3 Representation before appeals boards.
(a) Appearances generally. Representation of parties in proceedings
before
[[Page 49]]
Appeals Boards of the Office of Hearings and Appeals is governed by Part
1 of this subtitle, which regulates practice before the Department of
the Interior.
(b) Representation of the Government. Department counsel designated
by the Solicitor of the Department to represent agencies, bureaus, and
offices of the Department of the Interior in proceedings before the
Office of Hearings and Appeals, and Government counsel for other
agencies, bureaus or offices of the Federal Government involved in any
proceeding before the Office of Hearings and Appeals, shall represent
the Government agency in the same manner as a private advocate
represents a client.
(c) Appearances as amicus curiae. Any person desiring to appear as
amicus curiae in any proceeding shall make timely request stating the
grounds for such request. Permission to appear, if granted, will be for
such purposes as established by the Director or the Appeals Board in the
proceeding.
Sec. 4.4 Public records; locations of field offices.
Part 2 of this subtitle prescribes the rules governing availability
of the public records of the Office of Hearings and Appeals. It includes
a list of the field offices of the Office of Hearings and Appeals and
their locations.
Sec. 4.5 Power of the Secretary and Director.
(a) Secretary. Nothing in this part shall be construed to deprive
the Secretary of any power conferred upon him by law. The authority
reserved to the Secretary includes, but is not limited to:
(1) The authority to take jurisdiction at any stage of any case
before any employee or employees of the Department, including any
administrative law judge or board of the Office, except a case before
the Board of Contract Appeals which is subject to the Contract Disputes
Act of 1978, and render the final decision in the matter after holding
such hearing as may be required by law; and
(2) The authority to review any decision of any employee or
employees of the Department, including any administrative law judge or
board of the Office, or to direct any such employee or employees to
reconsider a decision, except a decision by the Board of Contract
Appeals which is subject to the Contract Disputes Act of 1978.
(b) The Director. Except for cases or decisions subject to the
Contract Disputes Act of 1978, the Director, pursuant to his delegated
authority from the Secretary, may assume jurisdiction of any case before
any board of the Office or review any decision of any board of the
Office or direct reconsideration of any decision by any board of the
Office.
(c) Exercise of reserved power. If the Secretary or Director assumes
jurisdiction of a case or reviews a decision, the parties and the
appropriate Departmental personnel will be advised in writing of such
action, the administrative record will be requested, and, after the
review process is completed, a written decision will be issued.
[50 FR 43705, Oct. 29, 1985, as amended at 52 FR 46355, Dec. 7, 1987; 52
FR 47097, Dec. 11, 1987]
Subpart B--General Rules Relating to Procedures and Practice
Sec. 4.20 Purpose.
In the interest of establishing and maintaining uniformity to the
extent feasible, this subpart sets forth general rules applicable to all
types of proceedings before the Hearings Division and the several
Appeals Boards of the Office of Hearings and Appeals.
Sec. 4.21 General provisions.
(a) Effect of decision pending appeal. Except as otherwise provided
by law or other pertinent regulation:
(1) A decision will not be effective during the time in which a
person adversely affected may file a notice of appeal; when the public
interest requires, however, the Director or an Appeals Board may provide
that a decision, or any part of a decision, shall be in full force and
effective immediately;
(2) A decision will become effective on the day after the expiration
of the time during which a person adversely
[[Page 50]]
affected may file a notice of appeal unless a petition for a stay
pending appeal is filed together with a timely notice of appeal; a
petition for a stay may be filed only by a party who may properly
maintain an appeal;
(3) A decision, or that portion of a decision, for which a stay is
not granted will become effective immediately after the Director or an
Appeals Board denies or partially denies the petition for a stay, or
fails to act on the petition within the time specified in paragraph
(b)(4) of this section.
(b) Standards and procedures for obtaining a stay. Except as
otherwise provided by law or other pertinent regulation:
(1) A petition for a stay of a decision pending appeal shall show
sufficient justification based on the following standards:
(i) The relative harm to the parties if the stay is granted or
denied,
(ii) The likelihood of the appellant's success on the merits,
(iii) The likelihood of immediate and irreparable harm if the stay
is not granted, and
(iv) Whether the public interest favors granting the stay;
(2) The appellant requesting the stay bears the burden of proof to
demonstrate that a stay should be granted;
(3) The appellant shall serve a copy of its notice of appeal and
petition for a stay on each party named in the decision from which the
appeal is taken, and on the Director or the Appeals Board to which the
appeal is taken, at the same time such documents are served on the
appropriate officer of the Department; any party, including the officer
who made the decision being appealed, may file a response to the stay
petition within 10 days after service; failure to file a response shall
not result in a default on the question of whether a stay should be
granted; service shall be made by delivering copies personally or by
sending them by registered or certified mail, return receipt requested;
(4) The Director or an Appeals Board shall grant or deny a petition
for a stay pending appeal, either in whole or in part, on the basis of
the factors listed in paragraph (b)(1) of this section, within 45
calendar days of the expiration of the time for filing a notice of
appeal;
(c) Exhaustion of administrative remedies. No decision which at the
time of its rendition is subject to appeal to the Director or an Appeals
Board shall be considered final so as to be agency action subject to
judicial review under 5 U.S.C. 704, unless a petition for a stay of
decision has been timely filed and the decision being appealed has been
made effective in the manner provided in paragraphs (a)(3) or (b)(4) of
this section or a decision has been made effective pending appeal
pursuant to paragraph (a)(1) of this section or pursuant to other
pertinent regulation.
(d) Finality of decision. No further appeal will lie in the
Department from a decision of the Director or an Appeals Board of the
Office of Hearings and Appeals. Unless otherwise provided by regulation,
reconsideration of a decision may be granted only in extraordinary
circumstances where, in the judgment of the Director or an Appeals
Board, sufficient reason appears therefor. Requests for reconsideration
must be filed promptly, or within the time required by the regulations
relating to the particular type of proceeding concerned, and must state
with particularity the error claimed. The filing and pendency of a
request for reconsideration shall not operate to stay the effectiveness
of the decision involved unless so ordered by the Director or an Appeals
Board. A request for reconsideration need not be filed to exhaust
administrative remedies.
[36 FR 7186, Apr. 15, 1971, as amended at 58 FR 4942, Jan. 19, 1993]
Sec. 4.22 Documents.
(a) Filing of documents. A document is filed in the Office where the
filing is required only when the document is received in that office
during the office hours when filing is permitted and the document is
received by a person authorized to receive it.
(b) Service generally. A copy of each document filed in a proceeding
before the Office of Hearings and Appeals must be served by the filing
party on the other party or parties in the case, except as otherwise
provided by Sec. 4.31. In all cases where a party is represented by an
attorney, such attorney
[[Page 51]]
will be recognized as fully controlling the case on behalf of his/her
client, and service of any document relating to the proceeding shall be
made upon such attorney in addition to any other service specifically
required by law or by order of a presiding official or an appeals board.
Where a party is represented by more than one attorney, service upon one
of the attorneys shall be sufficient.
(c) Retention of documents. All documents, books, records, papers,
etc., received in evidence in a hearing or submitted for the record in
any proceeding before the Office of Hearings and Appeals will be
retained with the official record of the proceedings. However, the
withdrawal of original documents may be permitted while the case is
pending upon the submission of true copies in lieu thereof. When a
decision has become final, an appeals board in its discretion may, upon
request and after notice to the other party or parties, permit the
withdrawal of original exhibits or any part thereof by the party
entitled thereto. The substitution of true copies of exhibits or any
part thereof may be required by the Board in its discretion as a
condition of granting permission for such withdrawal. Transcripts of
testimony and/or documents received or reviewed pursuant to Sec. 4.31 of
these rules shall be sealed against disclosure to unauthorized persons
and retained with the official record, subject to the withdrawal and
substitution provisions hereof.
(d) Record address. Every person who files a document for the record
in connection with any proceeding before the Office of Hearings and
Appeals shall at the time of his initial filing in the matter state his
address. Thereafter he must promptly inform the office in which the
matter is pending of any change in address, giving the docket or other
appropriate numbers of all matters in which he has made such a filing.
The successors of such person shall likewise promptly inform such office
of their interest in the matters and state their addresses. If a person
fails to furnish a record address as required herein, he will not be
entitled to notice in connection with the proceedings.
(e) Computation of time for filing and service. Except as otherwise
provided by law, in computing any period of time prescribed for filing
and serving a document, the day upon which the decision or document to
be appealed from or answered was served or the day of any other event
after which the designated period of time begins to run is not to be
included. The last day of the period so computed is to be included,
unless it is a Saturday, Sunday, Federal legal holiday, or other
nonbusiness day, in which event the period runs until the end of the
next day which is not a Saturday, Sunday, Federal legal holiday, or
other nonbusiness day. When the time prescribed or allowed is 7 days or
less, intermediate Saturdays, Sundays, Federal legal holidays and other
nonbusiness days shall be excluded in the computation.
(f) Extensions of time. (1) The time for filing or serving any
document may be extended by the Appeals Board or other officer before
whom the proceeding is pending, except for the time for filing a notice
of appeal and except where such extension is contrary to law or
regulation.
(2) A request for an extension of time must be filed within the time
allowed for the filing or serving of the document and must be filed in
the same office in which the document in connection with which the
extension is requested must be filed.
[36 FR 7186, Apr. 15, 1971, as amended at 53 FR 49660, Dec. 9, 1988]
Sec. 4.23 Transcript of hearings.
Hearings will be recorded verbatim and transcripts thereof shall be
made when requested by interested parties, costs of transcripts to be
borne by the requesting parties. Fees for transcripts prepared from
recordings by Office of Hearings and Appeals employees will be at rates
which cover the cost of manpower, machine use and materials, plus 25
percent, adjusted to the nearest 5 cents. If the reporting is done
pursuant to a contract between the reporter and the Department of the
Interior Agency or office which is involved in the proceeding, or the
Office of Hearings and Appeals, fees for transcripts will be at rates
established by the contract.
[[Page 52]]
Sec. 4.24 Basis of decision.
(a) Record. (1) The record of a hearing shall consist of the
transcript of testimony or summary of testimony and exhibits together
with all papers and requests filed in the hearing.
(2) If a hearing has been held on an appeal pursuant to instructions
of an Appeals Board, this record shall be the sole basis for decision
insofar as the referred issues of fact are involved except to the extent
that official notice may be taken of a fact as provided in paragraph (b)
of this section.
(3) Where a hearing has been held in other proceedings, the record
made shall be the sole basis for decision except to the extent that
official notice may be taken of a fact as provided in paragraph (b) of
this section.
(4) In any case, no decision after a hearing or on appeal shall be
based upon any record, statement, file, or similar document which is not
open to inspection by the parties to the hearing or appeal, except for
documents or other evidence received or reviewed pursuant to
Sec. 4.31(d).
(b) Official notice. Official notice may be taken of the public
records of the Department of the Interior and of any matter of which the
courts may take judicial notice.
[36 FR 7186, Apr. 15, 1971, as amended at 53 FR 49660, Dec. 9, 1988]
Sec. 4.25 Oral argument.
The Director or an Appeals Board may, in their discretion, grant an
opportunity for oral argument.
Sec. 4.26 Subpoena power and witness provisions generally.
(a) Compulsory attendance of witnesses. The administrative law
judge, on his own motion, or on written application of a party, is
authorized to issue subpoenas requiring the attendance of witnesses at
hearings to be held before him or at the taking of depositions to be
held before himself or other officers. Subpoenas will be issued on a
form approved by the Director. A subpoena may be served by any person
who is not a party and is not less than 18 years of age, and the
original subpoena bearing a certificate of service shall be filed with
the administrative law judge. A witness may be required to attend a
deposition or hearing at a place not more than 100 miles from the place
of service.
(b) Application for subpoena. Where the file has not yet been
transmitted to the administrative law judge, the application for a
subpoena may be filed in the office of the officer who made the decision
appealed from, or in the office of the Bureau of Land Management in
which the complaint was filed, in which cases such offices will forward
the application to the examiner.
(c) Fees payable to witnesses. (1) Witnesses subpoenaed by any party
shall be paid the same fees and mileage as are paid for like service in
the District Courts of the United States. The witness fees and mileage
shall be paid by the party at whose instance the witness appears.
(2) Any witness who attends any hearing or the taking of any
deposition at the request of any party to the controversy without having
been subpoenaed to do so shall be entitled to the same mileage and
attendance fees, to be paid by such party, to which he would have been
entitled if he had been first duly subpoenaed as a witness on behalf of
such party. This paragraph does not apply to Government employees who
are called as witnesses by the Government.
Sec. 4.27 Standards of conduct.
(a) Inquiries. All inquiries with respect to any matter pending
before the Office of Hearings and Appeals shall be directed to the
Director, the Chief Administrative Law Judge, or the Chairman of the
appropriate Board.
(b) Ex parte communication--(1) Prohi-
bition. Except to the extent required for the disposition of ex parte
matters as authorized by law, there shall be no communication concerning
the merits of a proceeding between any party to the proceeding or any
person interested in the proceeding or any representative of a party or
interested person and any Office personnel involved or who may
reasonably be expected to become involved in the decisionmaking process
on that proceeding, unless the communication, if oral, is made in the
presence of all other parties or their representatives, or, if written,
is furnished
[[Page 53]]
to all other parties. Proceedings include cases pending before the
Office, rulemakings amending this Part 4 that might affect a pending
case, requests for reconsideration or review by the Director, and any
other related action pending before the Office. The terms ``interested
person'' and ``person interested in the proceeding'' include any
individual or other person with an interest in the agency proceeding
that is greater than the interest that the public as a whole may have.
This regulation does not prohibit communications concerning case status
or advice concerning compliance with procedural requirements unless the
area of inquiry is in fact an area of controversy in the proceeding. Any
oral communication made in violation of this regulation shall be reduced
to writing in a memorandum to the file by the person receiving the
communication and shall be included in the record. Any written
communication made in violation of this regulation shall be included in
the record. In proceedings other than informal rulemakings copies of the
memorandum or communication shall be provided to all parties, who shall
be given an opportunity to respond in writing.
(2) Sanctions. The administrative law judge, board, or Director who
has responsibility for the matter with respect to which a prohibited
communication has been knowingly made may impose appropriate sanctions
on the offending person or persons, which may include requiring an
offending party to show cause why its claim, motion, or interest should
not be dismissed, denied, or otherwise adversely affected; disciplining
offending Office personnel pursuant to the Department's standards of
conduct (43 CFR part 20); and invoking such sanctions against other
offending persons as may be appropriate under the circumstances.
(c) Disqualification. An administrative law judge or Board member
shall withdraw from a case if he deems himself disqualified under the
recognized canons of judicial ethics. If, prior to a decision of an
administrative law judge or an Appeals Board, there is filed in good
faith by a party an affidavit of personal bias or disqualification with
substantiating facts, and the administrative law judge or Board member
concerned does not withdraw, the Board or the Director, as appropriate,
shall determine the matter of disqualification.
[36 FR 7186, Apr. 15, 1971, as amended at 50 FR 43705, Oct. 29, 1985; 53
FR 49660, Dec. 9, 1988]
Sec. 4.28 Interlocutory appeals.
There shall be no interlocutory appeal from a ruling of an
administrative law judge unless permission is first obtained from an
Appeals Board and an administrative law judge has certified the
interlocutory ruling or abused his discretion in refusing a request to
so certify. Permission will not be granted except upon a showing that
the ruling complained of involves a controlling question of law and that
an immediate appeal therefrom may materially advance the final decision.
An interlocutory appeal shall not operate to suspend the hearing unless
otherwise ordered by the Board.
Sec. 4.29 Remands from courts.
Whenever any matter is remanded from any court for further
proceedings, and to the extent the court's directive and time
limitations will permit, the parties shall be allowed an opportunity to
submit to the appropriate Appeals Board, a report recommending
procedures to be followed in order to comply with the court's order. The
Board will review the reports and enter special orders governing the
handling of matters remanded to it for further proceedings by any court.
Sec. 4.30 Information required by forms.
Whenever a regulation of the Office of Hearing and Appeals requires
a form approved or prescribed by the Director, the Director may in that
form require the submission of any information which he considers to be
necessary for the effective administration of that regulation.
Sec. 4.31 Request for limiting disclosure of confidential information.
(a) If any person submitting a document in a proceeding under this
part claims that some or all of the information contained in that
document is exempt from the mandatory public disclosure requirements of
the Freedom of
[[Page 54]]
Information Act (5 U.S.C. 552), is information referred to in section
1905 of title 18 of the United States Code (disclosure of confidential
information), or is otherwise exempt by law from public disclosure, the
person:
(1) Must indicate in the document that it is exempt, or contains
information which is exempt, from disclosure;
(2) Must request the presiding officer or appeals board not to
disclose such information except to the parties to the proceeding under
the conditions provided in paragraphs (b) and (c) of this section, and
must serve the request upon the parties to the proceeding. The request
shall include the following items:
(i) A copy of the document from which has been deleted the
information for which the person requests nondisclosure; if it is not
practicable to submit such copy of the document because deletion of the
information would render the document unintelligible, a description of
the document may be substituted;
(ii) A statement specifying why the information is confidential, if
the information for which nondisclosure is requested is claimed to come
within the exception in 5 U.S.C. 552(b)(4) for trade secrets and
commercial or financial information:
(iii) A statement specifying the justification for nondisclosure, if
the information for which nondisclosure is requested is not within the
exception in 5 U.S.C. 552(b)(4).
(b) If information is submitted in accordance with paragraph (a) of
this section, the information will not be disclosed except as provided
in the Freedom of Information Act, in accordance with part 2 of this
title, or upon request from a party to the proceeding under the
restrictions stated in paragraph (c) of this section.
(c) At any time, a party may request the presiding officer or
appeals board to direct a person submitting information under paragraph
(a) of this section to provide that information to the party. The
presiding officer or board will so direct, unless paragraph (d) of this
section is applicable, if the party requesting the information agrees
under oath in writing:
(1) Not to use or disclose the information except in the context of
the proceeding conducted pursuant to this part; and
(2) To return all copies of the information at the conclusion of the
proceeding to the person submitting the information under paragraph (a)
of this section.
(d) If any person submitting a document in a proceeding under this
Part other than a hearing conducted pursuant to 5 U.S.C. 554 claims that
a disclosure of information in that document to another party to the
proceeding is prohibited by law, notwithstanding the protection provided
under paragraph (c) of this section, such person:
(1) Must indicate in the original document that it contains
information of which disclosure is prohibited;
(2) Must request that the presiding officer or appeals board review
such evidence as a basis for its decision without disclosing it to the
other party or parties, and serve the request upon the parties to the
proceeding. The request shall include a copy of the document or
description as required by paragraph (a)(2)(i) of this section and state
why disclosure is prohibited, citing pertinent statutory or regulatory
authority. If the prohibition on disclosure is intended to protect the
interest of a person who is not a party to the proceeding, the party
making the request must demonstrate that such person refused to consent
to the disclosure of the evidence to other parties to the proceeding.
(3) If the presiding officer or an appeals board denies the request,
the person who made the request shall be given an opportunity to
withdraw the evidence before it is considered by the presiding official
or board unless a Freedom of Information Act request, administrative
appeal from the denial of a request, or lawsuit seeking release of the
information is pending.
(e) If the person submitting a document does not submit the copy of
the document or description required by paragraph (a)(2)(i) or (d)(2) of
this section, the presiding officer or appeals board may assume that
there is no objection to public disclosure of the document in its
entirety.
[[Page 55]]
(f) Where a decision by a presiding officer or appeals board is
based in whole or in part on evidence not included in the public record
or disclosed to all parties, the decision shall so state, specifying the
nature of the evidence and the provision of law under which disclosure
was denied, and the evidence so considered shall be retained under seal
as part of the official record.
[53 FR 49661, Dec. 9, 1988]
Subpart C--Special Rules of Practice Before the Interior Board of
Contract Appeals
Authority: 5 U.S.C. 301 and the Contract Disputes Act of 1978 (Pub.
L. 95-563, Nov. 1, 1978 (41 U.S.C. 601-613)).
Source: 46 FR 57499, Nov. 24, 1981, unless otherwise noted.
Sec. 4.100 General rules and guidelines.
(a) Effective date and applicability--(1) Effective date and general
applicability. These rules shall be in effect on and after March 1,
1979, and except as qualified by the provisions of paragraphs (a)(2) and
(3) of this section, shall apply to all appeals brought before the
Interior Board of Contract Appeals.
(2) Special applicability. The rule set forth in Sec. 4.102(a)
provides for alternative applicability, depending upon whether the
appeal involved is subject to the Contract Disputes Act of 1978, Public
Law 95-563 (41 U.S.C. 601-613). The rules set forth in Secs. 4.102 (c),
(d), and (e), 4.113, and 4.120 shall apply exclusively to appeals which
are subject to the Contract Disputes Act of 1978.
(3) When an appeal is subject to the Contract Disputes Act of 1978.
An appeal shall be subject to the Contract Disputes Act of 1978 if it
involves a contract entered into on or after March 1, 1979; or, at the
election of the appellant, if the appeal involves a contract entered
into before March 1, 1979, and the contracting officer's decision from
which the appeal is taken is dated March 1, 1979, or thereafter.
(b) Jurisdiction for considering appeals. The Interior Board of
Contract Appeals (referred to herein as the ``Board'') shall consider
and determine appeals from decisions of contracting officers relating to
contracts made by (i) the Department of the Interior or (ii) any other
executive agency when such agency or the Administrator of the Office of
Federal Procurement Policy has duly designated the Board to decide the
appeal.
(c) Location and organization of the Board. (1) The Board's address
is 801 North Quincy Street, Arlington, Virginia 22203. Its telephone
number is (703) 235-3813.
(2) The Board consists of a Chairman, Vice Chairman, and other
members all of whom are attorneys at law duly licensed by a State,
Commonwealth, Territory, or the District of Columbia. In general, the
appeals are assigned to a panel of at least two members who decide the
cases. However, in cases of disagreement, or unusual circumstances, a
panel of three members will be assigned to decide by a majority vote.
Board members are designated Administrative Judges.
(d) Time extensions and computations. (1) Where possible, procedural
actions should be taken in less time than the maximum time allowed.
Where appropriate and justified, however, extensions of time will be
granted. All requests for extensions of time shall be in writing.
(2) In computing any period of time, the day of the event from which
the designated period of time begins to run shall not be included, but
the last day of the period shall be included unless it is a Saturday,
Sunday, or a legal holiday, in which event the period shall run to the
end of the next business day.
(e) General guidelines--(1) Place of filings. Unless the Board
otherwise directs, all notices of appeal, pleadings, and other
communications shall be filed with the Board at the address indicated
herein. Communications to the Board shall be addressed to Interior Board
of Contract Appeals, 801 North Quincy Street, Arlington, Virginia 22203.
(2) Representation of parties. Whenever in these rules reference is
made to contractor, appellant, contracting officer, respondent, or
parties, this shall include respective counsel for the parties, as soon
as appropriate notices of appearances have been filed with the
[[Page 56]]
Board. In those cases where an executive agency, other than the
Department of the Interior, has designated the Board to adjudicate its
contract appeals, the term, ``Department Counsel,'' shall mean
Government Counsel assigned to represent such agency.
(3) Interpretation of these rules. These rules will be interpreted
so as to secure a just and inexpensive determination of appeals without
unnecessary delay.
(4) Decisions on questions of law. When an appeal is taken pursuant
to a disputes clause in a contract which limits appeals to disputes
concerning questions of fact, the Board will, nevertheless, consider and
decide all questions of law necessary for the complete adjudication of
the issues.
(f) Ex parte communications. No member of the Board or of the
Board's staff shall entertain, nor shall any person directly or
indirectly involved in an appeal submit to the Board or the Board's
staff, off the record, any evidence, explanation, analysis, or advice,
whether written or oral, without the knowledge and consent of the
adverse party, regarding any matter at issue in that appeal. This
provision does not apply to consultation among Board members or to ex
parte communications concerning the Board's administrative functions or
procedures.
(g) Sanctions. If any party fails or refuses to obey an order issued
by the Board, the Board may make such order in regard to the failure as
it considers necessary to the just and expeditious conduct of the
appeal.
[46 FR 57499, Nov. 24, 1981, as amended at 50 FR 8325, Mar. 1, 1985; 67
FR 4368, Jan. 30, 2002]
Prehearing Procedure Rules
Sec. 4.101 Who may appeal.
Any contractor may appeal to the Board from decisions of contracting
officers of any bureau or office of the Department of the Interior, or
of any other agency with respect to which the Board exercises contract
appeals jurisdiction, on disputed questions under contract provisions
requiring the determination of such appeals by the head of the agency or
his duly authorized representative or Board.
Sec. 4.102 Appeals--how taken.
(a) Notice of appeal. Notice of an appeal must be in writing (a
suggested form of notice appears as appendix I to subpart C herein
following Sec. 4.128). The original, together with two copies, may be
filed with the Board or the contracting officer from whose decision the
appeal is taken. The notice of appeal must be mailed or otherwise filed
within 90 days from the date of receipt of the contracting officer's
decision, if the appeal is subject to the Contract Disputes Act of 1978;
otherwise, within the time specified therefor in the contract.
(b) Contents of notice of appeal. A notice of appeal should indicate
that an appeal is thereby intended, and should identify the contract (by
number), the Department's bureau or office involved in the dispute, and
the decision from which the appeal is taken. The notice of appeal should
be signed personally by the appellant (the contractor making the
appeal), or by an authorized officer of the appellant corporation or
member of the appellant firm, or by the contractor's duly authorized
representative or attorney. The complaint referred to in Sec. 4.107 may
be filed with the notice of appeal, or the contractor may designate the
notice of appeal as a complaint, if it otherwise fulfills the
requirements of a complaint.
(c) Failure of CO to issue decision on claims of $50,000 or less.
Where the contractor has submitted a claim of $50,000 or less to the
contracting officer and has requested a written decision within 60 days
from receipt of the request, and the contracting officer has not
complied, the contractor may file a notice of appeal as provided in
paragraph (a) of this section, citing the failure of the contracting
officer to issue a decision. (See Sec. 4.100(a)(2).)
(d) Failure of CO to issue decision on claims in excess of $50,000.
Where the contractor has submitted a claim in excess of $50,000 to the
contracting officer and the contracting officer has failed to issue a
decision within a reasonable time, the contractor may file a notice of
appeal as provided in paragraph (a) of this section, citing the failure
to issue a decision. (See Sec. 4.100(a)(2).)
(e) Optional stay of proceeding. Upon docketing of appeals filed
pursuant to
[[Page 57]]
paragraphs (c) or (d) of this section, the Board may at its option, stay
further proceedings pending issuance of a final decision by the
contracting officer within such period of time as is determined by the
Board. (See Sec. 4.100(a)(2).)
Sec. 4.103 Forwarding and docketing of appeals.
(a) Forwarding of appeal. When a notice of appeal in any form has
been received by the contracting officer, he shall endorse thereon the
date of mailing (or the date of receipt, if the notice was otherwise
conveyed) and within 5 days shall forward said notice of appeal to the
Board by certified mail. He shall also promptly notify the Department's
Office of the Solicitor, in accordance with instructions of the
Solicitor, that the appeal has been received in order that a Department
counsel may be appointed.
(b) Docketing of appeals. When a notice of appeal in any form has
been received by the Board, it shall be docketed promptly. Notice in
writing of the fact of docketing, together with a copy of these rules,
shall be mailed promptly by certified mail to the appellant. Also, a
copy of such notice, together with a copy of the notice of appeal if not
originally filed with the contracting officer, shall be mailed promptly
by certified mail to the contacting officer. Such notice shall
acknowledge receipt of the appeal and advise appellant of the appeal
number assigned to the appeal.
Sec. 4.104 Preparation, organization, transmittal, and status of appeal file.
(a) Preparation and transmittal of appeal file. Following receipt of
a notice of appeal, or advice that an appeal has been docketed, the
contracting officer shall promptly, and in any event within 30 days,
compile and transmit to the Board the appeal file which shall consist of
copies of all documents pertinent to the appeal. Within the same time
period the contracting officer shall also prepare and transmit a copy of
the appeal file to the Department counsel and a copy to the appellant or
appellant's counsel. (However, the obligations of this subparagraph are
subject to the provisions of paragraph (e) of this section.)
(b) Composition of appeal file. The appeal file shall include the
following:
(1) The findings of fact and decision from which the appeal is
taken, and the letter or letters or other documents of claim in response
to which the decision was issued;
(2) The contract, and pertinent plans, drawings, specifications,
amendments, and change orders;
(3) All correspondence between the parties pertinent to the appeal;
and
(4) Such additional information as may be considered pertinent and
material.
(c) Organization of appeal file. Documents in the appeal file may be
originals, legible facsimiles, or authenticated copies thereof, and
shall be arranged in chronological order where practicable, numbered
sequentially, tabbed, and indexed to indentify the contents of the file,
and bound. Any single document consisting of three or more pages shall
be numbered sequentially for convenient reference at the hearing and in
the preparation of briefs.
(d) Opportunity for appellant to supplement appeal file. The
appellant shall be afforded the opportunity of supplementing the appeal
file with such documentation as may be deemed pertinent to the appeal.
The appellant shall be obligated, however, to furnish to Department
counsel a copy of any document by which the appeal file is supplemented.
(e) Burdensome documents. The Board may waive the requirement of
furnishing to the other party copies of bulky, lengthy, or out-of-size
documents in the appeal file if a party has shown that doing so would
impose an undue burden. At the time a party files with the Board a
document as to which such a waiver has been granted, he shall notify the
other party that the same or a copy is available for inspection at the
offices of the Board or of the party filing the same.
[[Page 58]]
Sec. 4.105 Dismissal for lack of jurisdiction.
Any motion challenging the jurisdiction of the Board shall be filed
promptly. Hearing on the motion shall be afforded on application of
either party, unless the Board determines that its decision on the
motion will be deferred pending hearing on both the merits and the
motion. The Board has authority to raise at any time and on its own
motion the issue of its jurisdiction to conduct a proceeding and may
afford the parties an opportunity to be heard thereon.
Sec. 4.106 Representation and appearances.
(a) The Appellant. An individual appellant may appear before the
Board in person, a corporation by one if its officers; and a partnership
or joint venture by one of its members; or any of these by an attorney
at law duly licensed in any state, commonwealth, territory, the District
of Columbia, or in a foreign country. An attorney representing an
appellant shall file a written notice of appearance with the Board.
(b) The Government. Department or Government counsel may, in
accordance with their authority, represent the interest of the
Government before the Board. They shall file notices of appearance with
the Board, and notice thereof will be given appellant or appellant's
attorney.
Sec. 4.107 Pleadings.
(a) Complaint. Within 30 days after receipt of notice of docketing
of the appeal, the appellant shall file with the Board an original and
one copy of a complaint setting forth simple, concise, and direct
statements of each claim, alleging the basis with appropriate reference
to contract provisions for each claim, and the dollar amount claimed.
This pleading shall fulfill the generally recognized requirements of a
complaint, although no particular form or formality is required. Letter
size paper should be used for the complaint and for all other papers
filed with the Board. Where the appeal arises out of a contract made
with the Department of the Interior, a copy of the complaint shall be
served by appellant upon the Department counsel if known, otherwise,
upon the Solicitor, U.S. Department of the Interior, C Street, between
18th and 19th Streets, NW., Washington, DC 20240. Where the appeal
arises out of a contract made with an agency other than the Department
of the Interior, a copy of the complaint shall be served by appellant
upon the General Counsel for that agency. All such service shall be made
in accordance with Sec. 4.117. Should the complaint not be received
within 30 days, appellant's claim and appeal documents may, if in the
opinion of the Board the issues before the Board are sufficiently
defined, be deemed to set forth a complaint and the Department counsel
will be so notified.
(b) Answer. Within 30 days from receipt of said complaint, or the
aforesaid notice from the Board, the Department counsel shall prepare
and file with the Board an original and one copy of an answer thereto,
setting forth simple, concise, and direct statements of the Government's
defenses to each claim asserted by appellant. This pleading shall
fulfill the generally recognized requirements of an answer, and shall
set forth any affirmative defenses or counterclaims, as appropriate. One
copy of the answer will be served by the Department counsel upon the
appellant in accordance with Sec. 4.117. Should the answer not be
received within 30 days, the Board, may, in its discretion enter a
general denial on behalf of the Government, and the appellant shall be
so notified.
Sec. 4.108 Amendments of pleadings or record.
(a) The Board may, in its discretion, upon its own initiative or
upon application by a party, order a party to make a more definite
statement of the complaint or answer, or to reply to an answer.
(b) The Board may, in its discretion, and within the proper scope of
the appeal, permit either party to amend his pleading upon conditions
just to both parties. When issues within the proper scope of the appeal,
but not raised by the pleadings or the appeal file, are tried by express
or implied consent of the parties, or by permission of the
[[Page 59]]
Board, they shall be treated in all respects as if they had been raised
therein. In such circumstances motions to amend the pleadings to conform
to the proof may be entered, but are not required. If evidence is
objected to at a hearing on the ground that is is not within the issues
raised by the pleadings or said appeal file (which shall be deemed part
of the pleadings for this purpose), it may be admitted within the proper
scope of the appeal: Provided, however, That the objecting party may be
granted a continuance if necessary to enable him to meet such evidence.
Sec. 4.109 Hearing--election.
Within 15 days after the Government's answer has been served upon
the appellant, or within 20 days of the date upon which the Board enters
a general denial on behalf of the Government, notification as to whether
one or both of the parties desire an oral hearing on the appeal should
be given to the Board. In the event either party requests an oral
hearing, the Board will schedule the same as hereinafter provided. In
the event both parties waive an oral hearing, the Board, unless it
directs an oral hearing, will decide the appeal on the record before it,
supplemented as it may permit or direct. A party failing to elect an
oral hearing within the time limitations specified in this section may
be deemed to have submitted its case on the record.
Sec. 4.110 Prehearing briefs.
Based on an examination of the appeal file, the pleadings, and a
determination of whether the arguments and authorities addressed to the
issues are adequately set forth therein, the Board may, in its
discretion, require the parties to submit prehearing briefs in any case
in which a hearing has been elected pursuant to Sec. 4.109. In the
absence of a Board requirement therefore, either party may, in its
discretion, and upon appropriate and sufficient notice to the other
party, furnish a prehearing brief to the Board. In any case where a
prehearing brief is submitted, it shall be furnished so as to be
received by the Board at least 15 days prior to the date set for
hearing, and a copy shall be furnished simultaneously to the other
party.
Sec. 4.111 Prehearing or presubmission conference.
Whether the case is to be submitted without a hearing, or heard
pursuant to Secs. 4.118 through 4.123, the Board may upon its own
initiative or upon the application of either party, call upon the
parties to appear before a member or hearing officer of the Board for a
conference to consider:
(a) The simplification or clarification of the issues;
(b) The possibility of obtaining stipulations, admissions,
agreements on documents, understandings on matters already of record, or
similar agreements which will avoid unnecessary proof;
(c) The limitation of the number of expert witnesses, or avoidance
of similar cumulative evidence, if the case is to be heard;
(d) The possibility of agreement disposing of all or any of the
issues in dispute; and
(e) Such other matters as may aid in the disposition of the appeal.
Any conference results that are not reflected in a transcript shall be
reduced to writing by the Board member or the hearing officer. This
writing shall thereafter constitute part of the record.
Sec. 4.112 Submission without a hearing.
Either party may elect to waive a hearing and to submit his case
upon the Board record, as settled pursuant to Sec. 4.114. Such waiver
shall not affect the other party's rights under Sec. 4.109. In the event
of such election (see the time limitations for election in Sec. 4.109),
the submission may be supplemented by oral argument (transcribed if
requested) and by briefs.
Sec. 4.113 Optional small claims (expedited) and accelerated procedures. (See Sec. 4.100(a)(2).)
(a) The procedures set forth in this rule are available solely at
the election of the appellant.
(b) Elections to utilize small claims (expedited) and accelerated
procedure. (1) In appeals where the amount in dispute is $10,000 or
less, the appellant may elect
[[Page 60]]
to have the appeal processed under a SMALL CLAIMS (EXPEDITED) procedure
requiring a decision of the appeal, whenever possible, within 120 days
after the Board receives written notice of the appellant's election to
utilize this procedure. The details of this procedure appear in
paragraph (c) of this section. An appellant may elect the ACCELERATED
procedure rather than the SMALL CLAIMS (EXPEDITED) procedure for any
appeal eligible for the SMALL CLAIMS (EXPEDITED) procedure.
(2) In appeals where the amount in dispute is $50,000 or less, the
appellant may elect to have the appeal processed under an ACCELERATED
procedure requiring decision of the appeal, whenever possible, within
180 days after the Board receives written notice of the appellant's
election to utilize this procedure. The details of this procedure appear
in paragraph (d) of this section.
(3) The appellant's election of either the SMALL CLAIMS (EXPEDITED)
procedure or the ACCELERATED procedure may be made either in the notice
of appeal or by other written notice at any time thereafter.
(4) In deciding whether the SMALL CLAIMS (EXPEDITED) procedure or
the ACCELERATED procedure is applicable to a given appeal the Board
shall determine the amount in dispute by adding the amount claimed by
the appellant against the respondent to the amount claimed by respondent
against the appellant. If either party making a claim against the other
party does not otherwise state in writing the amount of its claim, the
amount claimed by such party shall be the maximum amount which such
party represents in writing to the Board that it can reasonably expect
to recover against the other.
(c) The SMALL CLAIMS (EXPEDITED) procedure. (1) This procedure shall
apply only to appeals where the amount in dispute is $10,000 or less as
to which the appellant has elected the SMALL CLAIMS (EXPEDITED)
procedure.
(2) In cases proceeding under the SMALL CLAIMS (EXPEDITED)
procedure, the following time periods shall apply (i) within 10 days
from the respondent's first receipt from either the appellant or the
Board of a copy of the appellant's notice of election of the SMALL
CLAIMS (EXPEDITED) procedure, the respondent shall send the Board a copy
of the contract, the contracting officer's final decision, and the
appellant's claim letter or letters, if any; (ii) within 15 days after
the Board has acknowledged receipt of the notice of election, either
party desiring an oral hearing shall so inform the Board. If either
party requests an oral hearing, the Board shall promptly schedule such a
hearing for a mutually convenient time consistent with administrative
due process and the 120-day limit for a decision, at a place determined
under Sec. 4.118. If a hearing is not requested by either party within
the time prescribed by this Rule, the appeal shall be deemed to have
been submitted under Sec. 4.112 without a hearing.
(3) In cases proceeding under the SMALL CLAIMS (EXPEDITED)
procedure, pleadings, discovery, and other prehearing activity will be
allowed only as consistent with the requirement to conduct the hearing
on the date scheduled or, if no hearing is scheduled, to close the
record on a date that will allow decision within the 120-day limit. The
Board, in its discretion, may shorten time periods prescribed elsewhere
in these Rules as necessary to enable the Board to decide the appeal
within 120 days after the Board has received the appellant's notice of
elections of the SMALL CLAIMS (EXPEDITED) procedure. In so doing the
Board may reserve whatever time up to 30 days it considers necessary for
preparation of the decision.
(4) Written decision by the Board in cases processed under the SMALL
CLAIMS (EXPEDITED) procedure will be short and contain only summary
findings of fact and conclusions. Decisions will be rendered for the
Board by a single Administrative Judge. If there has been a hearing, the
Administrative Judge presiding at the hearing may, in his discretion, at
the conclusion of the hearing and after entertaining such oral arguments
as he deems appropriate, render on the record oral summary findings of
fact, conclusions, and a decision of the Appeal. Whenever such an oral
decision is rendered, the
[[Page 61]]
Board will subsequently furnish the parties a typed copy of such oral
decision for the record and payment purposes and to establish the date
of commencement of the period for filing a motion for reconsideration
under Sec. 4.126.
(5) Decisions of the Board under the SMALL CLAIMS (EXPEDITED)
procedure will not be published, will have no value as precedents, and
in the absence of fraud, cannot be appealed.
(d) The ACCELERATED procedure. (1) This procedure shall apply only
to appeals where the amount in dispute is $50,000 or less as to which
the appellant has made the requisite election.
(2) In cases proceeding under the ACCELERATED procedure, the parties
are encouraged, to the extent possible consistent with adequate
presentation of their factual and legal positions, to waive pleadings,
discovery, and briefs. The Board, in its discretion, may shorten time
periods prescribed elsewhere in these Rules as necessaray to enable the
Board to decide the appeal within 180 days after the Board has received
the appellant's notice of election of the ACCELERATED procedure, and may
reserve 30 days for the preparation of the decision.
(3) Written decisions by the Board in cases processed under the
ACCELERATED procedure will normally be short and contain only summary
findings of fact and conclusions. Decisions will be rendered for the
Board by a single Administrative Judge with the concurrence of the
Chairman or Vice Chairman or other designated Administrative Judge, or
by a majority among these two and an additional designated member in
case of disagreement. Alternatively, in cases where the amount in
dispute is $10,000 or less as to which the ACCELERATED procedure has
been elected and in which there has been a hearing, the single
Administrative Judge presiding at the hearing may, with the concurrence
of both parties, at the conclusion of the hearing and after entertaining
such oral agruments as he deems appropriate, render on the record oral
summary findings of fact, conclusions, and a decision of the appeal.
Whenever such an oral decision is rendered, the Board will subsequently
furnish the parties a typed copy of such oral decision for record and
payment purposes and to establish the date of commencement of the period
for filing a motion for reconsideration under Sec. 4.126.
(e) Motions for reconsideration in cases arising under Sec. 4.113.
Motions for reconsideration of cases decided aunder either the SMALL
CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure need not be
decided within the time period prescribed by this Sec. 4.113 for the
initial decision of the appeal, but all such motions shall be processed
and decided rapidly so as to fulfill the intent of this rule.
Sec. 4.114 Settling of the record.
(a) A case submitted on the record pursuant to Sec. 4.112 shall be
ready for decision when the parties are so notified by the Board. A case
which is heard shall be ready for decision upon receipt of transcript,
or upon receipt of briefs when briefs are to be submitted. At any time
prior to the date that a case is ready for decision, either party, upon
notice to the other, may supplement the record with documents and
exhibits deemed relevant and material by the Board. The Board upon its
own initiative may call upon either party, with appropriate notice to
the other, for evidence deemed by it to be relevant and material. The
weight to be attached to any evidence of record will rest within the
sound discretion of the Board. Either party at any stage of the
proceeding, on notice to the other party, may object to the relevancy or
materiality of documents in the record or offered into the record.
(b) The Board record shall consist of the appeal file described in
Sec. 4.104(b) and any additional material, pleadings, prehearing briefs,
record of prehearing, or presubmission conferences, depositions,
interrogatories, admissions, transcripts of hearing, hearing exhibits,
and posthearing briefs, as may thereafter be developed pursuant to these
rules. In deciding appeals the Board, in addition to considering the
Board record, may take official notice of facts within general
knowledge.
(c) This record will at all times be available for inspection by the
parties at an appropriate time and place. In
[[Page 62]]
the interest of convenience, prior arrangements for inspection of the
file should be made with the Recorder of the Board. Copies of material
in the record may be furnished to appellant as provided in part 2 of
this subtitle.
Sec. 4.115 Discovery--depositions.
(a) General policy and protective orders. The parties are encouraged
to engage in voluntary discovery procedures. In connection with any
deposition or other discovery procedure, the board may make any order
which justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, and those orders
may include limitations on the scope, method, time and place for
discovery, and provisions for protecting the secrecy of confidential
information or documents.
(b) When depositions permitted. After an appeal has been docketed,
the parties may mutually agree to, or the Board may, upon application of
either party and for good cause shown, order the taking of testimony of
any person by deposition upon oral examination or written
interrogatories before any officer authorized to administer oaths at the
place of examination, for use as evidence or for purpose of discovery.
The application for such an order shall specify whether the purpose of
the depositon is discovery or for use as evidence.
(c) Orders on depositions. The time, place, and manner of taking
depositions shall be, as mutually agreed by the parties, or, failing
such agreement, governed by order of the Board.
(d) Use as evidence. No testimony taken by depositions shall be
considered as part of the evidence in the hearing of an appeal unless
and until such testimony is offered and received in evidence at such
hearing. It will not ordinarily be received in evidence if the deponent
is present and can testify personally at the hearing. In such instances,
however, the depositions may be used to contradict or impeach the
testimony of the witness given at the hearing. In cases submitted on the
record, the Board may in its discretion receive depositions as evidence
in supplementation of that record.
(e) Expenses. Each party shall bear its own expenses associated with
the taking of any deposition.
Sec. 4.116 Interrogatories to parties; inspection of documents; admission of facts.
Under appropriate circumstances, but not as a matter of course, the
Board will entertain applications for permission to serve written
interrogatories upon the opposing party, applications for an order to
produce and permit the inspection of designated documents, and
applications for permission to serve upon the opposing party a request
for the admission of specified facts. Such applications shall be
reviewed and approved only to the extent and upon such terms as the
Board in its discretion considers to be consistent with the objective of
securing just and inexpensive determination of appeals without
unnecessary delay, and essential to the proper pursuit of that objective
in the particular case.
Sec. 4.117 Service of papers.
A copy of all pleadings, briefs, motions, letters, or other papers
filed with the Board, shall be served upon the other party at the time
of filing. Service of papers may be made personally or by mailing in a
sealed envelope addressed to the other party. Any paper filed with the
Board shall show on its face, or in the letter transmitting the same,
that a copy thereof has been served upon the other party. When the other
party is represented by counsel, such service shall be made upon him,
and service upon counsel shall be deemed to be service upon the party he
represents.
Hearing Procedure Rules
Sec. 4.118 Hearings--where and when held.
Hearings may be held in Arlington, Virginia, or upon timely request
and for good cause shown, the Board may in its discretion set the
hearing on an appeal at a location other than Arlington, Virginia.
Hearins will be scheduled at the discretion of the Board with due
consideration to the regular order of appeals and other pertinent
factors. However, where it is apparent that no
[[Page 63]]
issue of fact is presented in an appeal proceeding, the Board may deny a
request for hearing. On request or motion by either party and for good
cause shown, the Board may in its discretion adjust the date of a
hearing.
Sec. 4.119 Notice of hearings.
The parties shall be given at least 15 days' notice of the time and
place set for hearings. In scheduling hearings, the Board will give due
regard to the desires of the parties, and to the requirement for just
and prompt determination of appeals. Receipt of a notice of hearing
shall be promptly acknowledged by the parties. A party failing to
acknowledge a notice of hearing shall be deemed to have consented to the
indicated time and place of hearing.
Sec. 4.120 Subpoenas. (See Sec. 4.100(a)(2).)
(a) General. Upon written request of either party filed with the
docket clerk or on his own initiative, the Administrative Judge to whom
a case is assigned or who is otherwise designated by the Chairman may
issue a subpoena requiring:
(1) Testimony at a deposition-- the deposing of a witness, in the
city or county where he resides or is employed or transacts his business
in person, or at another location convenient for him that is
specifically determined by the Board;
(2) Testimony at a hearing-- the attendance of a witness for the
purpose of taking testimony at a hearing; and
(3) Production of books and papers-- in addition to paragraphs (a)
(1) and (2) of this section, the production by the witness at the
deposition or hearing of books and papers designated in the subpoena.
(b) Voluntary cooperation. Each party is expected (1) to cooperate
and make available witnesses and evidence under its control as requested
by the other party, without issuance of a subpoena, and (2) to secure
voluntary attendance of desired third-party books, papers, documents, or
tangible things whenever possible.
(c) Requests for subpoenas. (1) A request for a subpoena shall
normally be filed at least:
(i) 15 days before a scheduled deposition where the attendance of a
witness at a deposition is sought;
(ii) 30 days before a scheduled hearing where the attendance of a
witness at a hearing is sought.
In its discretion the Board may honor requests for subpoenas not made
within these time limitations.
(2) A request for a subpoena shall state the reasonable scope and
general relevance to the case of the testimony and of any books and
papers sought.
(d) Request to quash or modify. Upon written request by the person
subpoenaed or by a party, made within 10 days after service but in any
event not later than the time specified in the subpoena for compliance,
the Board may (1) quash or modify the subpoena if it is unreasonable and
oppressive or for other good cause shown, or (2) require the person in
whose behalf the subpoena was issued to advance the reasonable cost of
producing subpoenaed books and papers. Where circumstances require, the
Board may act upon such a request at any time after a copy has been
served upon the opposing party.
(e) Forms--issuance. (1) Every subpoena shall state the name of the
Board and the title of the appeal and shall command each person to whom
it is directed to attend and give testimony, and if appropriate, to
produce specified books and papers at a time and place therein
specified. In issuing a subpoena to a requesting party, the
Administrative Judge shall sign the subpoena and may in his discretion,
enter the name of the witness and otherwise leave it blank. The party to
whom the subpoena is issued shall complete the subpoena before service.
(2) Where the witness is located in a foreign country, a letter
rogatory or subpoena may be issued and served under the circumstances
and in the manner provided in 28 U.S.C. 1781-1784.
(f) Service. (1) The party requesting issuance of subpoena shall
arrange for service.
(2) A subpoena requiring the attendance of a witness at a deposition
or hearing may be served at any place. A subpoena may be served by a
U.S. marshal or deputy marshal, or by any other person who is not a
party and not less than 18 years of age. Service of a
[[Page 64]]
subpoena upon a person named therein shall be made by personally
delivering a copy to that person and tendering the fees for 1 day's
attendance and the mileage provided by 28 U.S.C. 1821 or other
applicable law.
(3) The party at whose instance a subpoena is issued shall be
responsible for the payment of fees and mileage of the witness and of
the officer who serves the subpoena. The failure to make payment of such
charges on demand may be deemed by the Board as a sufficient ground for
striking the testimony of the witness and the evidence the witness has
produced.
(g) Contumacy or refusal to obey a subpoena. In a case of contumacy
or refusal to obey a subpoena by a person who resides, is found, or
transacts business within the jurisdiction of a U.S. District Court, the
Board will apply to the Court through the Attorney General of the United
States for an order requiring the person to appear before the Board or a
member thereof to give testimony or produce evidence or both. Any
failure of any such person to obey the order of the Court may be
punished by the Court as a contempt thereof.
Sec. 4.121 Unexcused absence of a party.
The unexcused absence of a party at the time and place set for
hearing will not be occasion for delay. In the event of such absence,
the hearing will proceed and the case will be regarded as submitted by
the absent party as provided in Sec. 4.112. The Board shall advise the
absent party of the content of the proceedings had and that he has 5
days from the receipt of such notice within which to show cause why the
appeal should not be decided on the record made.
Sec. 4.122 Nature of hearings.
Hearings shall be as informal as may be reasonable and appropriate
in the circumstances. Appellant and respondent may offer at a hearing on
the merits of such relevant evidence as they deem appropriate and as
would be admissible under the generally accepted rules of evidence
applied in the courts of the United States in nonjury trials, subject,
however, to the sound discretion of the presiding member or hearing
officer in supervising the extent and manner of presentation of such
evidence. In general, admissibility will hinge on relevancy and
materiality. Letters or copies thereof, affidavits, or other evidence
not ordinarily admissible under the generally accepted rules of
evidence, may be admitted in the discretion of the presiding member or
hearing officer. The weight to be attached to evidence presented in any
particular form will be within the discretion of the Board, taking into
consideration all the circumstances of the particular case. Stipulations
of fact agreed upon by the parties may be regarded and used as evidence
at the hearing. The parties may stipulate the testimony that would be
given by a witness if the witness were present. The Board may in any
case require evidence in addition to that offered by the parties.
Sec. 4.123 Examination of witnesses.
Witnesses before the Board will be examined orally under oath or
affirmation, unless the facts are stipulated, or the presiding Board
member or hearing officer shall otherwise order.
Sec. 4.124 Submission of briefs.
Posthearing briefs may be submitted upon such terms as may be agreed
upon by the parties and the presiding Board member or hearing officer at
the conclusion of the hearing.
posthearing procedure rules
Sec. 4.125 Decisions.
Decisions of the Board will be made upon the record, as described in
Sec. 4.114(b). Copies thereof will be forwarded simultaneously to both
parties by certified mail.
Sec. 4.126 Motions for reconsideration.
A motion for reconsideration, if filed by either party, shall set
forth specifically the ground or grounds relied upon in support of the
motion, and shall be filed within 30 days from the date of the receipt
of a copy of the Board's decision by the party filing the motion.
Reconsideration of a decision, which may include a hearing or rehearing,
may be granted if, in the judgment of the Board, sufficient reason
therefor appears.
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Sec. 4.127 Dismissals.
(a) Dismissal without prejudice. In certain cases, appeals docketed
before the Board are required to be placed in a suspense status and the
Board is unable to proceed with the disposition thereof for reasons not
within the control of the Board. Where the suspension has continued, or
may continue, for an inordinate length of time, the board may, in its
discretion, dismiss such an appeal from the docket without prejudice to
its reinstatement when the cause of suspension has been removed. Unless
either party or the Board acts within 3 years to reinstate any appeal
dismissed without prejudice, the dismissal shall be deemed to have been
made with prejudice.
(b) Dismissal for failure to prosecute or defend. Whenever a record
discloses the failure of either party to file documents required by
these rules, respond to notices or correspondence from the Board, comply
with orders of the Board, or otherwise indicates an intention not to
continue the prosecution or defense of an appeal, the Board may issue an
order requiring the offending party to show cause why the appeal should
not be either dismissed or granted, as appropriate. If no cause is
shown, the Board may take appropriate action.
Sec. 4.128 Remands from courts.
Whenever any matter is remanded to the Board from any court for
further proceedings, each of the parties, shall, within 20 days of such
remand, submit a report to the Board, recommending procedures to be
followed in order to comply with the court's order. The Board will
review the reports and issue the appropriate special orders.
Appendix I to Subpart C of Part 4--Suggested Form of Notice of Appeal
Interior Board of Contract Appeals, 801 North Quincy Street, Arlington,
VA 22203
(Date)__________________________________________________________________
(Name of Contractor)____________________________________________________
(Address)_______________________________________________________________
Contract No.____________________________________________________________
(Invitation No.)________________________________________________________
Specifications No.______________________________________________________
(Name and Location of Project)__________________________________________
(Name of Bureau or Office)______________________________________________
The undersigned contractor appeals to the Board of Contract Appeals
from decision or findings of fact dated --------, by:
(Name of Contracting Officer)___________________________________________
The decision or findings of fact is erroneous because: (State
specific facts and circumstances and the contractual provisions
involved.)
(Signature)_____________________________________________________________
(Title)_________________________________________________________________
[46 FR 57499, Nov. 24, 1981, as amended at 67 FR 4368, Jan. 30, 2002]
Subpart D--Rules Applicable in Indian Affairs Hearings and Appeals
Authority: Secs. 1, 2, 36 Stat. 855, as amended, 856, as amended,
sec. 1, 38 Stat. 586, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat.
1021, 1022; R.S. 463, 465; 5 U.S.C. 301; 25 U.S.C. secs. 2, 9, 372, 373,
374, 373a, 373b, 410, 100 Stat, 61, as amended by 101 Stat. 886 and 101
Stat. 1433, 25 U.S.C. 331 note.
Cross Reference: See 25 CFR part 15 for rules setting forth the
responsibilities and practices of the Bureau of Indian Affairs in the
probate of Indian estates. See subpart A of this part for the authority,
jurisdiction, and membership of the Board of Indian Appeals within the
Office of Hearings and Appeals. For general rules applicable to
proceeding before the Hearings Division, Board of Indian Appeals, and
other Appeals Boards of the Office of Hearings and Appeals, see subpart
B of this part.
Determinations of Heirs and Approval of Wills, Except as to Members of
the Five Civilized Tribes and Osage Indians; Tribal Purchases of
Interests Under Special Statutes
Scope of Regulations; Definitions; General Authority of OHA Deciding
Officials
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.200 Scope of regulations.
Included in Secs. 4.200 through 4.202 are general rules applicable
to all proceedings in subpart D of this part. Included in Secs. 4.203
through 4.282 and Secs. 4.310 through 4.323 are procedural rules
applicable to the settlement of trust estates of deceased Indians who
[[Page 66]]
die possessed of trust property; however, these rules do not apply to
the restricted property of deceased Indians of the Five Civilized
Tribes, deceased Osage Indians, and members of any tribe organized under
25 U.S.C. 476, to the extent that the constitution, by-laws or charter
of each tribe may be inconsistent with this subpart. Included within
Secs. 4.300 through 4.308 are supplemental procedural rules applicable
to determinations as to tribal purchase of certain property interests of
decedents under special laws applicable to particular tribes. Included
within Secs. 4.330 through 4.340 are procedural rules applicable to
appeals to the Board of Indian Appeals from administrative actions or
decisions issued by the Bureau of Indian Affairs as set forth in
Sec. 4.330. Except as limited by the provisions herein, the rules in
subparts A and B of this part apply to these proceedings.
Sec. 4.201 Definitions.
As used in this subpart:
Agency means the agency office or any other designated office in BIA
having jurisdiction over trust or restricted property and money. This
term also means any office of a tribe which has contracted or compacted
the BIA probate function under 25 U.S.C. 450f or 458cc.
Attorney decision maker means an attorney with BIA who reviews a
probate package, determines heirs, approves wills and beneficiaries of
the will, determines creditors' claims, and issues a written decision to
the extent authorized by 25 CFR part 15.
Beneficiary means any individual who receives trust or restricted
property or money in a decedent's will.
BIA means the Bureau of Indian Affairs within the Department of the
Interior.
BIA deciding official means the official with the delegated
authority to make a decision on a probate matter pursuant to 25 CFR part
15, and may include a BIA regional director, agency superintendent,
field representative, or attorney decision maker.
Board means the Board of Indian Appeals in the Office of Hearings
and Appeals, Office of the Secretary, authorized by the Secretary to
hear, consider, and determine finally for the Department appeals taken
by aggrieved parties from actions by OHA deciding officials on petitions
for rehearing or reopening, and allowance of attorney fees, and from
actions of BIA officials as provided in Sec. 4.1(b)(2).
Child or children includes an adopted child or children.
Commissioner includes the Deputy Commissioner of Indian Affairs and
his or her authorized representatives.
Day means a calendar day, unless otherwise stated.
Decedent means a person who is deceased.
Department means the Department of the Interior.
Estate means the trust cash assets and restricted or trust property
owned by the decedent at the time of his or her death.
Heir means any individual who receives trust or restricted property
or money from a decedent in an intestate proceeding.
IIM account means funds held in an individual Indian monies account
by OTFM or a tribe performing this function under a contract or compact.
Intestate means the decedent died without a will.
Minor means an individual who has not reached the age of majority as
defined by the applicable tribal or state law.
OHA deciding official means an employee of the Office of Hearings
and Appeals with the authority to make a decision on a probate matter
pursuant to this subpart. The OHA deciding official may be either an
administrative law judge appointed pursuant to the Administrative
Procedure Act, 5 U.S.C. 3105, or an Indian probate judge.
OTFM means the Office of Trust Funds Management within the Office of
the Special Trustee for American Indians, Department of the Interior, or
its authorized representative.
Party in interest means any presumptive or actual heir, any
beneficiary under a will, any party asserting a claim against a deceased
Indian's estate, and any Tribe having a statutory option to purchase
interests of a decedent.
Probate means the legal process by which applicable tribal law,
state law,
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or federal law that affects the distribution of the decedent's estate is
applied to:
(1) Determine the heirs,
(2) Approve wills and determine beneficiaries, and
(3) Transfer any funds or property held in trust by the Secretary
for a decedent, or any restricted property of the decedent, to the
heirs, beneficiaries, or other persons or entities.
Probate specialist means a BIA or tribal employee who is trained in
Indian probate matters.
Restricted property means real or personal property held by an
Indian which he or she cannot alienate or encumber without the consent
of the Secretary or his or her authorized representative. In this
subpart, restricted property is treated as if it were trust property.
Except with respect to Sec. 4.200, the term ``restricted property'' as
used in this subpart does not include the restricted lands of the Five
Civilized Tribes or Osage Tribe of Indians.
Secretary means the Secretary of the Interior or his or her
authorized representative.
Solicitor means the Solicitor of the Department of the Interior or
his or her authorized representative.
Superintendent means the BIA Superintendent or other BIA officer
having jurisdiction over an estate, including area field representatives
or one holding equivalent authority.
Testate means the decedent executed a will before his or her death.
Trust property means real or personal property, or an interest
therein, which the United States holds in trust for the benefit of an
individual Indian.
Will or last will and testament means a written testamentary
document, including any properly executed written changes, called
codicils, which was signed by the decedent and was attested by two
disinterested adult witnesses, that states who will receive the
decedent's trust or restricted property.
Sec. 4.202 General authority of OHA deciding officials.
An OHA deciding official will, except as otherwise provided in
Sec. 4.205(b) and 25 CFR 15.203 and 15.206, determine the heirs of any
Indian who dies intestate possessed of trust property; approve or
disapprove the will of a deceased Indian disposing of trust property;
accept or reject any full or partial renunciation of interest in both
testate and intestate proceedings; allow or disallow creditors' claims
against the estate of a deceased Indian; and decree the distribution of
trust property to heirs and devisees, including the partial distribution
to known heirs or devisees where one or more potential heirs or devisees
are missing but not presumed dead, after attributing to and setting
aside for such missing person or persons the share or shares such person
or persons would be entitled to if living. An OHA deciding official will
determine the right of a tribe to take any inherited interest and the
fair market value of the interest taken in appropriate cases as provided
by statute. He or she will review each case de novo, hold hearings as
necessary or appropriate, and issue decisions in matters appealed from
decisions of BIA deciding officials. Administrative law judges will also
hold hearings and issue recommended decisions in matters referred to
them by the Board in the Board's consideration of appeals from
administrative actions of BIA officials.
Determination of Heirs; Approval of Wills; Settlement of Indian Trust
Estates
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.203 Determination as to nonexistent persons and other irregularities of allotments.
(a) An OHA deciding official will hear and determine whether trust
patents covering allotments of land were issued to nonexistent persons,
and whether more than one trust patent covering allotments of land had
been issued to the same person under different names and numbers or
through other errors in identification.
(b) If an OHA deciding official determines under paragraph (a) of
this section that a trust patent issued to an existing person and/or
that separate persons received the allotments under consideration and
any one of them is deceased, without having had his or her estate
probated, the OHA deciding official must proceed as provided in
Sec. 4.202.
[[Page 68]]
(c) If an OHA deciding official determines under paragraph (a) of
this section that a person did not exist or that more than one allotment
was issued to the same person, the OHA deciding official must issue a
decision to that effect, giving notice thereof to parties in interest as
provided in Sec. 4.240(b).
Sec. 4.204 Presumption of death.
(a) An OHA deciding official will receive evidence on and determine
the issue of whether any person, by reason of unexplained absence, is to
be presumed dead.
(b) If an OHA deciding official determines that an Indian person
possessed of trust property is to be presumed dead, the OHA deciding
official must proceed as provided in Sec. 4.202.
Sec. 4.205 Escheat.
An OHA deciding official will determine whether any Indian holder of
trust property died intestate without heirs and--
(a) With respect to trust property other than on the public domain,
order the escheat of such property in accordance with 25 U.S.C. 373a.
(b) With respect to trust property on the public domain, submit to
the Board of Indian Appeals the records thereon, together with
recommendations as to the disposition of said property under 25 U.S.C.
373b.
Sec. 4.206 Determinations of nationality or citizenship and status affecting character of land titles.
In cases where the right and duty of the Government to hold property
in trust depends thereon, an OHA deciding official will determine the
nationality or citizenship, or the Indian or non-Indian status, of heirs
or devisees, or whether Indian heirs or devisees of U.S. citizenship are
of a class as to whose property the Government's supervision and
trusteeship have been terminated in current probate proceedings or in
completed estates after reopening such estates under, but without regard
to the 3-year limit set forth in Sec. 4.242.
Sec. 4.207 Compromise settlement.
(a) If during the course of the probate of an estate it develops
that an issue between contending parties is of such nature as to be
substantial, and it further appears that such issue may be settled by
agreement preferably in writing by the parties in interest to their
advantage and to the advantage of the United States, such an agreement
may be approved by the OHA deciding official upon findings that:
(1) All parties to the compromise are fully advised as to all
material facts;
(2) All parties to the compromise are fully cognizant of the effect
of the compromise upon their rights; and
(3) It is in the best interest of the parties to settle rather than
to continue litigation.
(b) In considering the proposed settlement, the OHA deciding
official may take and receive evidence as to the respective values of
specific items of property. Superintendents and irrigation project
engineers must supply all necessary information concerning any liability
or lien for payment of irrigation construction and of irrigation
operation and maintenance charges.
(c) Upon an affirmative determination as to all three points
specified, the OHA deciding official will issue such final order of
distribution in the settlement of the estate as is necessary to approve
the same and to accomplish the purpose and spirit of the settlement.
Such order will be construed as any other order of distribution
establishing title in heirs and devisees and will not be construed as a
partition or sale transaction within the provisions of 25 CFR part 152.
If land titles are to be transferred, the necessary deeds must be
prepared and executed at the earliest possible date. Upon failure or
refusal of any party in interest to execute and deliver any deed
necessary to accomplish the settlement, the OHA deciding official will
settle the issues and enter an order as if no agreement had been
attempted.
(d) OHA deciding officials are authorized to approve all deeds or
conveyances necessary to accomplish a settlement under this section.
Sec. 4.208 Renunciation of interest.
Any person 21 years or older, whether of Indian descent or not, may
renounce intestate succession or devise of trust
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or restricted property, wholly or partially (including the retention of
a life estate), by filing a signed and acknowledged declaration of such
renunciation with the OHA deciding official prior to entry of the final
order by the OHA deciding official. No interest in the property so
renounced is considered to have vested in the heir or devisee and the
renunciation is not considered a transfer by gift of the property
renounced, but the property so renounced passes as if the person
renouncing the interest has predeceased the decedent. A renunciation
filed in accordance herewith will be considered accepted when
implemented in an order by an OHA deciding official and will be
irrevocable thereafter. All disclaimers or renunciations heretofore
filed with and implemented in an order by an OHA deciding official are
hereby ratified as valid and effective.
Commencement of Probate Proceedings
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.210 Commencement of probate.
The probate of a trust estate before an OHA deciding official will
commence when the probate specialist or BIA deciding official files with
the OHA deciding official all information shown in the records relative
to the family of the deceased and his or her property. The information
must include the complete probate package described in 25 CFR 15.104 and
15.202 and any other relevant information. The agency or BIA deciding
official must promptly transmit to the OHA deciding official any
creditor's or other claims that are received after the case is
transmitted to the OHA deciding official, for a determination of their
timeliness, validity, priority, and allowance under Secs. 4.250 and
4.251.
Sec. 4.211 Notice.
(a) An OHA deciding official may receive and hear evidence at a
hearing to determine the heirs of a deceased Indian or probate his or
her will only after the OHA deciding official has caused notice of the
time and place of the hearing to be posted at least 20 days prior to the
hearing date in five or more conspicuous places in the vicinity of the
designated place of hearing, and the OHA deciding official may cause
postings in such other places and reservations as he or she deems
appropriate. A certificate showing the date and place of posting must be
signed by the person or official who performs the act.
(b) The OHA deciding official must serve or cause to be served a
copy of the notice on each party in interest known to the OHA deciding
official and on each attesting witness if a will is offered:
(1) By personal service in sufficient time in advance of the date of
the hearing to enable the person served to attend the hearing; or
(2) By mail, addressed to the person at his or her last known
address, in sufficient time in advance of the date of the hearing to
enable the addressee served to attend the hearing. The OHA deciding
official must cause a certificate, as to the date and manner of such
mailing, to be made on the record copy of the notice.
(c) All parties in interest, known and unknown, including creditors,
will be bound by the decision based on such hearing if they lived within
the vicinity of any place of posting during the posting period, whether
they had actual notice of the hearing or not. As to those not within the
vicinity of the place of posting, a rebuttable presumption of actual
notice will arise upon the mailing of such notice at a reasonable time
prior to the hearing, unless the said notice is returned by the postal
service to the office of the OHA deciding official unclaimed by the
addressee.
(d) Tribes to be charged with notice of death and probate. When a
record reveals that a Tribe has a statutory option to purchase interests
of a decedent, such Tribe must be notified of the pendency of a
proceeding by the the OHA deciding official having probate jurisdiction
in such proceeding, and the certificate of mailing of notice of probate
hearing or of a final decision in probate to the Tribe at its record
address will be conclusive evidence for all purposes that the Tribe had
notice of
[[Page 70]]
decedent's death and notice of the pendency of the probate proceedings.
Sec. 4.212 Contents of notice.
(a) In the notice of hearing, the OHA deciding official must specify
that at the stated time and place the OHA deciding official will take
testimony to determine the heirs of the deceased person (naming him or
her) and, if a will is offered for probate, testimony as to the validity
of the will describing it by date. The notice must name all known
presumptive heirs of the decedent, and, if a will is offered for
probate, the beneficiaries under such will and the attesting witnesses
to the will. The notice must cite this subpart as the authority and
jurisdiction for holding the hearing, and must inform all persons having
an interest in the estate of the decedent, including persons having
claims or accounts against the estate, to be present at the hearing or
their rights may be lost by default.
(b) The notice must state further that the hearing may be continued
to another time and place. A continuance may be announced either at the
original hearing by the OHA deciding official or by an appropriate
notice posted at the announced place of hearing on or prior to the
announced hearing date and hour.
Depositions, Discovery, and Prehearing Conference
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.220 Production of documents for inspection and copying.
(a) At any stage of the proceeding prior to the conclusion of the
hearing, a party in interest may make a written demand, a copy to be
filed with the OHA deciding official, upon any other party to the
proceeding or upon a custodian of records on Indians or their trust
property, to produce for inspection and copying or photographing, any
documents, papers, records, letters, photographs, or other tangible
things not privileged, relevant to the issues which are in the other
party's or custodian's possession, custody, or control. Upon failure of
prompt compliance, the OHA deciding official may issue an appropriate
order upon a petition filed by the requesting party. At any time prior
to closing the record, the OHA deciding official upon his or her own
motion, after notice to all parties, may issue an order to any party in
interest or custodian of records for the production of material or
information not privileged, and relevant to the issues.
(b) Custodians of official records will furnish and reproduce
documents, or permit their reproduction, in accordance with the rules
governing the custody and control thereof.
Sec. 4.221 Depositions.
(a) Stipulation. Depositions may be taken upon stipulation of the
parties. Failing an agreement therefor, depositions may be ordered under
paragraphs (b) and (c) of this section.
(b) Application for taking deposition. When a party in interest
files a written application, the OHA deciding official may at any time
thereafter order the taking of the sworn testimony of any person by
deposition upon oral examination for the purpose of discovery or for use
as evidence at a hearing. The application must be in writing and must
set forth:
(1) The name and address of the proposed deponent;
(2) The name and address of that person, qualified under paragraph
(d) of this section to take depositions, before whom the proposed
examination is to be made;
(3) The proposed time and place of the examination, which must be at
least 20 days after the date of the filing of the application; and
(4) The reasons why such deposition should be taken.
(c) Order for taking deposition. If after examination of the
application the OHA deciding official determines that the deposition
should be taken, he or she will order its taking. The order must be
served upon all parties in interest and must state:
(1) The name of the deponent;
(2) The time and place of the examination which must not be less
than 15 days after the date of the order except as stipulated otherwise;
and
(3) The name and address of the officer before whom the examination
is to
[[Page 71]]
be made. The officer and the time and place need not be the same as
those requested in the application.
(d) Qualifications of officer. The deponent must appear before the
OHA deciding official or before an officer authorized to administer
oaths by the law of the United States or by the law of the place of the
examination.
(e) Procedure on examination. The deponent must be examined under
oath or affirmation and must be subject to cross-examination. The
testimony of the deponent must be recorded by the officer or someone in
the officer's presence. An applicant who requests the taking of a
person's deposition must make his or her own arrangements for payment of
any costs incurred.
(f) Submission to witness; changes; signing. When the testimony is
fully transcribed, the deposition must be submitted to the deponent for
examination and must be read to or by him or her, unless such
examination and reading are waived by the deponent or by all other
parties in interest. Any changes in form or substance which the deponent
desires to make must be entered upon the deposition by the officer with
a statement of the reasons given by the deponent for making them. The
deposition must then be signed by the deponent, unless the parties in
interest by stipulation waive the signing, or the witness is ill or
cannot be found or refuses to sign. If the deposition is not signed by
the deponent, the officer must sign it and state on the record the fact
of the waiver, or of the illness or absence of the deponent or the fact
of the refusal to sign together with the reason, if any, given therefor;
the deposition may then be used as fully as though signed, unless the
OHA deciding official holds that the reason given for refusal to sign
requires rejection of the deposition in whole or in part.
(g) Certificates by officer. The officer must certify on the
deposition that the deponent was duly sworn by the officer and that the
deposition is a true record of the deponent's testimony. The officer
must then securely seal the deposition, together with two copies
thereof, in an envelope and must personally deliver or mail the same by
certified or registered mail to the OHA deciding official.
(h) Use of depositions. A deposition ordered and taken in accord
with the provisions of this section may be used in a hearing if the OHA
deciding official finds that the witness is absent and that his or her
presence cannot be readily obtained, that the evidence is otherwise
admissible, and that circumstances exist that make it desirable in the
interest of fairness to allow the deposition to be used. If a deposition
has been taken, and the party in interest on whose application it was
taken refuses to offer the deposition, or any part thereof, in evidence,
any other party in interest or the OHA deciding official may introduce
the deposition or any portion thereof on which he or she wishes to rely.
Sec. 4.222 Written interrogatories; admission of facts and documents.
At any time prior to a hearing and in sufficient time to permit
answers to be filed before the hearing, a party in interest may serve
upon any other party in interest written interrogatories and requests
for admission of facts and documents. A copy of such interrogatories and
requests must be filed with the OHA deciding official. Such
interrogatories and requests for admission must be drawn with the
purpose of defining the issues in dispute between the parties and
facilitating the presentation of evidence at the hearing. Answers must
be served upon the party propounding the written interrogatories or
requesting the admission of facts and documents within 30 days from the
date of service of such interrogatories or requests, or within such
other period of time as may be agreed upon by the parties or prescribed
by the OHA deciding official. A copy of the answer must be filed with
the OHA deciding official. Within 10 days after written interrogatories
are served upon a party, that party may serve cross-interrogatories for
answer by the witness to be interrogated.
Sec. 4.223 Objections to and limitations on production of documents, depositions, and interrogatories.
The OHA deciding official, upon motion timely made by any party in
interest, proper notice, and good cause shown, may direct that
proceedings
[[Page 72]]
under Secs. 4.220, 4.221, and 4.222 may be conducted only under, and in
accordance with, such limitation as he or she deems necessary and
appropriate as to documents, time, place, and scope. The OHA deciding
official may act on his or her own motion only if undue delay, dilatory
tactics, and unreasonable demands are made so as to delay the orderly
progress of the proceeding or cause unacceptable hardship upon a party
or witness.
Sec. 4.224 Failure to comply with orders.
In the event of the failure of a party to comply with a request for
the production of a document under Sec. 4.220; or on the failure of a
party to appear for examination under Sec. 4.221 or on the failure of a
party to respond to interrogatories or requests for admissions under
Sec. 4.222; or on the failure of a party to comply with an order of the
OHA deciding official issued under Sec. 4.223 without, in any of such
events, showing an excuse or explanation satisfactory to the OHA
deciding official for such failure, the OHA deciding official may:
(a) Decide the fact or issue relating to the material requested to
be produced, or the subject matter of the probable testimony, in
accordance with the claims of the other party in interest or in
accordance with other evidence available to the OHA deciding official;
or
(b) Make such other ruling as the OHA deciding official determines
just and proper.
Sec. 4.225 Prehearing conference.
The OHA deciding official may, upon his or her own motion or upon
the request of any party in interest, call upon the parties to appear
for a conference to:
(a) Simplify or clarify the issues;
(b) Obtain stipulations, admissions, agreements on documents,
understandings on matters already of record, or similar agreements which
will avoid unnecessary proof;
(c) Limit the number of expert or other witnesses in avoidance of
excessively cumulative evidence;
(d) Effect possible agreement disposing of all or any of the issues
in dispute; and
(e) Resolve such other matters as may simplify and shorten the
hearing.
Hearings
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.230 Authority and duties of the OHA deciding official.
The authority of the OHA deciding official in all hearings in estate
proceedings includes, but is not limited to authority:
(a) To administer oaths and affirmations;
(b) To issue subpoenas under the provisions of 25 U.S.C. 374 upon
his or her own initiative or within his or her discretion upon the
request of any party in interest, to any person whose testimony he or
she believes to be material to a hearing. Upon the failure or refusal of
any person upon whom a subpoena has been served to appear at a hearing
or to testify, the OHA deciding official may file a petition in the
appropriate U.S. District Court for the issuance of an order requiring
the appearance and testimony of the witness:
(c) To permit any party in interest to cross-examine any witness;
(d) To appoint a guardian ad litem to represent any minor or
incompetent party in interest at hearings;
(e) To rule upon offers of proof and receive evidence;
(f) To take and cause depositions to be taken and to determine their
scope; and
(g) To otherwise regulate the course of the hearing and the conduct
of witnesses, parties in interest, and attorneys at law appearing
therein.
Sec. 4.231 Hearings.
(a) All testimony in Indian probate hearings must be under oath and
must be taken in public except in those circumstances which in the
opinion of the OHA deciding official justify all but parties in interest
to be excluded from the hearing.
(b) The proceedings of hearings must be recorded verbatim.
(c) The record must include a showing of the names of all parties in
interest and of attorneys who attended such hearing.
[[Page 73]]
Sec. 4.232 Evidence; form and admissibility.
(a) Parties in interest may offer at a hearing such relevant
evidence as they deem appropriate under the generally accepted rules of
evidence of the State in which the evidence is taken, subject to the OHA
deciding official's supervision as to the extent and manner of
presentation of such evidence.
(b) The OHA deciding official may admit letters or copies thereof,
affidavits, or other evidence not ordinarily admissible under the
generally accepted rules of evidence, the weight to be attached to
evidence presented in any particular form being within the discretion of
the OHA deciding official, taking into consideration all the
circumstances of the particular case.
(c) Stipulations of fact and stipulations of testimony that would be
given by witnesses were such witnesses present, agreed upon by the
parties in interest, may be used as evidence at the hearing.
(d) The OHA deciding official may in any case require evidence in
addition to that offered by the parties in interest.
Sec. 4.233 Proof of wills, codicils, and revocations.
(a) Self-proved wills. A will executed as provided in Sec. 4.260
may, at the time of its execution, be made self-proved, and testimony of
the witnesses in the probate thereof may be made unnecessary by the
affidavits of the testator and attesting witnesses, made before an
officer authorized to administer oaths, such affidavits to be attached
to such will and to be in form and contents substantially as follows:
State of ------------ County of ------------ ss. I, ------------, being
first duly sworn, on oath, depose and say: That I am an ---- (enrolled
or unenrolled) member of the ------------ Tribe of Indians in the State
of ------------; that on the ---- day of ------, 19----, I requested --
---------- to prepare a will for me; that the attached will was prepared
and I requested ------------ and ------------ to act as witnesses
thereto; that I declared to said witnesses that said instrument was my
last will and testament; that I signed said will in the presence of both
witnesses and they signed the same as witnesses in my presence and in
the presence of each other; that said will was read and explained to me
(or read by me), after being prepared and before I signed it and it
clearly and accurately expresses my wishes; and that I willingly made
and executed said will as my free and voluntary act and deed for the
purposes therein expressed.
Testator/Testatrix
We, -------------- and--------------, each being first duly sworn, on
oath, depose and state: That on the ----day of ------, 19----, --------
a member of the -------- Tribe of Indians of the State of --------,
published and declared the attached instrument to be his/her last will
and testament, signed the same in the presence of both of us and
requested both of us to sign the same as witnesses; that we, in
compliance with his/her request, signed the same as witnesses in his/her
presence and in the presence of each other; that said testator/testatrix
was not acting under duress, menace, fraud, or undue influence of any
person, so far as we could ascertain, and in our opinion was mentally
capable of disposing of all his/her estate by will.
________________________________________________________________________
Witness
________________________________________________________________________
Witness
Subscribed and sworn to before me this------ day of------, 19----,by --
--------testator/testatrix, and by ----------and ----------; attesting
witnesses.
________________________________________________________________________
________________________________________________________________________
(Title)
If uncontested, a self-proved will may be approved and distribution
ordered thereunder with or without the testimony of any attesting
witness.
(b) Self-proved codicils and revocations. A codicil to, or a
revocation of, a will may be made self-proved in the same manner as
provided in paragraph (a) of this section with respect to a will.
(c) Will contest. If the approval of a will, codicil thereto, or
revocation thereof is contested, the attesting witnesses who are in the
reasonable vicinity of the place of hearing and who are of sound mind
must be produced and examined. If none of the attesting witnesses
resides in the reasonable vicinity of the place of hearing at the time
appointed for proving the will, the OHA deciding official may admit the
testimony of other witnesses to prove the testamentary capacity of the
testator and the execution of the will and, as evidence of the
execution, the OHA deciding official may admit proof of the handwriting
of the testator and of the
[[Page 74]]
attesting witnesses, or of any of them. The provisions of Sec. 4.232 are
applicable with respect to remaining issues.
Sec. 4.234 Witnesses, interpreters, and fees.
Parties in interest who desire a witness to testify or an
interpreter to serve at a hearing must make their own financial and
other arrangements therefor, and subpoenas will be issued where
necessary and proper. The OHA deciding official may call witness and
interpreters and order payment out of the estate assets of per diem,
mileage, and subsistence at a rate not to exceed that allowed to
witnesses called in the U.S. District Courts. In hardship situations,
the OHA deciding official may order payment of per diem and mileage for
indispensable witnesses and interpreters called for the parties. In the
order for payment he or she must specify whether such costs are to be
allocated and charged against the interest of the party calling the
witness or against the estate generally. Costs of administration so
allowed will have a priority for payment greater than that for any
creditor claims allowed. Upon receipt of such order, the Superintendent
must immediately initiate payment of such sums from the estate account,
or if such funds are insufficient, then out of funds as they are
received in such account prior to closure of the estate, with the
proviso that such costs must be paid in full with a later allocation
against the interest of a party, if the OHA deciding official has so
ordered.
Sec. 4.235 Supplemental hearings.
After the matter has been submitted but prior to the time the OHA
deciding official has rendered his or her decision, the OHA deciding
official may upon his or her own motion or upon motion of any party in
interest schedule a supplemental hearing if he or she deems it
necessary. The notice must set forth the purpose of the supplemental
hearing and must be served upon all parties in interest in the manner
provided in Sec. 4.211. Where the need for such supplemental hearing
becomes apparent during any hearing, the OHA deciding official may
announce the time and place for such supplemental hearing to all those
present and no further notice need be given. In that event the records
must clearly show who was present at the time of the announcement.
Sec. 4.236 Record.
(a) After the completion of the hearing, the OHA deciding official
will make up the official record containing:
(1) A copy of the posted public notice of hearing showing the
posting certifications;
(2) A copy of each notice served on interested parties with proof of
mailing;
(3) The record of the evidence received at the hearing, including
any transcript made of the testimony;
(4) Claims filed against the estate;
(5) Will and codicils, if any;
(6) Inventories and valuations of the estate;
(7) Pleadings and briefs filed;
(8) Special or interim orders;
(9) Data for heirship finding and family history;
(10) The decision and the notices thereof; and
(11) Any other material or documents deemed material by the OHA
deciding official.
(b) The OHA deciding official must lodge the original record with
the designated Land Titles and Records Office in accordance with 25 CFR
part 150. A duplicate copy must be lodged with the Superintendent
originating the probate. A partial record may also be furnished to the
Superintendents of other affected agencies. In those cases in which a
hearing transcript has not been prepared, the verbatim recording of the
hearing must be retained in the office of the OHA deciding official
issuing the decision until the time allowed for rehearing or appeal has
expired. In cases in which a transcript is not prepared, the original
record returned to the Land Titles and Records Office must contain a
statement indicating no transcript was prepared.
Decisions
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
[[Page 75]]
Sec. 4.240 Decision of the OHA deciding official and notice thereof.
(a) The OHA deciding official must decide the issues of fact and law
involved in the proceedings and must incorporate the following in his or
her decision:
(1) In all cases, the names, birth dates, relationships to the
decedent, and shares of heirs with citations to the law of descent and
distribution in accordance with which the decision is made; or the fact
that the decedent died leaving no legal heirs.
(2) In testate cases, (i) approval or disapproval of the will with
construction of its provisions, (ii) the names and relationship to the
testator of all beneficiaries and a description of the property which
each is to receive;
(3) Allowance or disallowance of claims against the estate;
(4) Whether heirs or devisees are non-Indian, exclusively alien
Indians, or Indians whose property is not subject to Federal
supervision.
(5) A determination of any rights of dower, curtesy or homestead
which may constitute a burden upon the interest of the heirs.
(b) When the OHA deciding official issues a decision, he or she must
issue a notice thereof to all parties who have or claim any interest in
the estate and must mail a copy of said notice, together with a copy of
the decision to the Superintendent and to each party in interest
simultaneously. The decision will not become final and no distribution
may be made thereunder until the expiration of the 60 days allowed for
the filing of a petition for rehearing by aggrieved parties as provided
in Sec. 4.241.
Sec. 4.241 Rehearing.
(a) Any person aggrieved by the decision of the OHA deciding
official may, within 60 days after the date on which notice of the
decision is mailed to the interested parties, file with the OHA deciding
official a written petition for rehearing. Such petition must be under
oath and must state specifically and concisely the grounds upon which it
is based. If the petition is based on newly-discovered evidence, it must
be accompanied by affidavits or declarations of witnesses stating fully
what the new testimony is to be. It must also state justifiable reasons
for the failure to discover and present that evidence, tendered as new,
at the hearings held prior to the issuance of the decision. The OHA
deciding official, upon receiving a petition for rehearing, must
promptly forward a copy to the Superintendent. The Superintendent must
not initiate payment of claims or distribute the estate while such
petition is pending, unless otherwise directed by the OHA deciding
official.
(b) If proper grounds are not shown, or if the petition is not filed
within the time prescribed in paragraph (a) of this section, the OHA
deciding official will issue an order denying the petition and must set
forth therein his or her reasons therefor. The OHA deciding official
must furnish copies of such order to the petitioner, the Superintendent,
and the parties in interest.
(c) If the petition appears to show merit, the OHA deciding official
must cause copies of the petition and supporting papers to be served on
those persons whose interest in the estate might be adversely affected
by the granting of the petition. The OHA deciding official must allow
all persons served a reasonable, specified time in which to submit
answers or legal briefs in opposition to the petition. The OHA deciding
official will then reconsider, with or without hearing as he or she may
determine, the issues raised in the petition; he or she may adhere to
the former decision, modify or vacate it, or make such further order as
is warranted.
(d) Upon entry of a final order the OHA deciding official must lodge
the complete record relating to the petition with the title plant
designated under Sec. 4.236(b), and furnish a duplicate record thereof
to the Superintendent.
(e) Successive petitions for rehearing are not permitted, and except
for the issuance of necessary orders nunc pro tunc to correct clerical
errors in the decision, the jurisdiction of the OHA deciding official
terminates upon the issuance of a decision finally disposing of a
petition for rehearing. Nothing herein will be construed as a bar to the
remand of a case by the Board for further hearing or rehearing after
appeal.
[[Page 76]]
(f) At the time the final decision is entered following the filing
of a petition for rehearing, the OHA deciding official must direct a
notice of such action with a copy of the decision to the Superintendent
and to the parties in interest and must mail the same by regular mail to
the said parties at their addresses of record.
(g) No distribution may be made under such order for a period of 60
days following the mailing of a notice of decision pending the filing of
a notice of appeal by an aggrieved party as herein provided.
Sec. 4.242 Reopening.
(a) Within a period of 3 years from the date of a final decision
issued by an OHA deciding official or by the Board but not thereafter
except as provided in Secs. 4.203 and 4.206, any person claiming an
interest in the estate who had no actual notice of the original
proceedings and who was not on the reservation or otherwise in the
vicinity at any time while the public notices of the hearing were posted
may file a petition in writing for reopening of the case. Any such
petition must be addressed to the OHA deciding official and filed at his
or her office. A copy of such petition must be furnished also by the
petitioner to the Superintendent. All grounds for the reopening must be
set forth fully. If based on alleged errors of fact, all such
allegations must be under oath and supported by affidavits.
(b) If the OHA deciding official finds that proper grounds are not
shown, he or she will issue an order denying the petition and setting
forth the reasons for such denial. Copies of the OHA deciding official's
decision must be mailed to the petitioner, the Superintendent, and to
those persons who share in the estate.
(c) If the petition appears to show merit, the OHA deciding official
must cause copies of the petition and all papers filed by the petitioner
to be served on those persons whose interest in the estate might be
adversely affected by the granting of the petition. Such persons may
resist such petition by filing answers, cross-petitions, or briefs. Such
filings must be made within such reasonable time periods as the OHA
deciding official specifies. The OHA deciding official will then
reconsider, with or without hearing as he or she may determine, prior
actions taken in the case and may either adhere to, modify, or vacate
the original decision. Copies of the OHA deciding official's decision
must be mailed to the petitioner, to all persons who received copies of
the petition, and to the Superintendent.
(d) To prevent manifest error an OHA deciding official may reopen a
case within a period of 3 years from the date of the final decision,
after due notice on his or her own motion, or on petition of a BIA
officer. Copies of the OHA deciding official's decision must be mailed
to all parties in interest and to the Superintendent.
(e) The OHA deciding official may suspend distribution of the estate
or the income therefrom during the pendency of reopening proceedings by
order directed to the Superintendent.
(f) The OHA deciding official must lodge the record made in
disposing of a reopening petition with the title plant designated under
Sec. 4.236(b) and must furnish a duplicate record thereof to the
Superintendent.
(g) No distribution may be made under a decision issued pursuant to
paragraph (b), (c), or (d) of this section for a period of 60 days
following the mailing of the copy of the decision as therein provided,
pending the filing of a notice of appeal by an aggrieved party.
(h) If a petition for reopening is filed more than 3 years after the
entry of a final decision in a probate, it will be allowed only upon a
showing that a manifest injustice will occur; that a reasonable
possibility exists for correction of the error; that the petitioner had
no actual notice of the original proceedings; and that petitioner was
not on the reservation or otherwise in the vicinity at any time while
the public notices were posted. A denial of such petition may be made by
the OHA deciding official on the basis of the petition and available BIA
records. No such petition will be granted, however, unless the OHA
deciding official has caused copies of the petition and all other papers
filed by the petitioner to
[[Page 77]]
be served on those persons whose interest in the estate might be
adversely affected by the granting of the petition, and after allowing
such persons an opportunity to resist such petition by filing answers,
cross petitions or briefs as provided in paragraph (c) of this section.
Appeals From Decisions of BIA Deciding Officials
Sec. 4.243 Appeals from BIA.
Any appeal filed pursuant to 25 CFR part 15, subpart E, will be
referred to an OHA deciding official pursuant to Sec. 4.210. The OHA
deciding official will review the merits of the case de novo and conduct
a hearing as necessary or appropriate pursuant to the regulations in
this subpart. The BIA deciding official must forward to the OHA deciding
official all documents and other evidence upon which the BIA deciding
official's decision was based.
Claims
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.250 Filing and proof of creditor claims; limitations.
(a) All claims against the estate of a deceased Indian must be filed
with the agency
(i) Within 60 days from the date BIA receives a certified copy of
the death certificate or other verification of the decedent's death
under 25 CFR 15.101 or
(ii) Within 20 days from the date the creditor is chargeable with
notice of the decedent's death, whichever of these dates is later.
(b) No claim will be paid from trust or restricted assets when the
OHA deciding official is aware that the decedent's non-trust estate may
be available to pay the claim.
(c) All claims must be filed in triplicate, itemized in detail as to
dates and amounts of charges for purchases or services and dates and
amounts of payments on account. Such claims must show the names and
addresses of all parties in addition to the decedent from whom payment
might be sought. Each claim must be supplemented by an affidavit, in
triplicate, of the claimant or someone in his or her behalf that the
amount claimed is justly due from the decedent, that no payments have
been made on the account which are not credited thereon as shown by the
itemized statement, and that there are no offsets to the knowledge of
the claimant.
(d) Claims for care may not be allowed except upon clear and
convincing evidence that the care was given on a promise of compensation
and that compensation was expected.
(e) A claim based on a written or oral contract, express or implied,
where the claim for relief has existed for such a period as to be barred
by the State laws at date of decedent's death, cannot be allowed.
(f) Claims sounding in tort not reduced to judgment in a court of
competent jurisdiction, and other unliquidated claims not properly
within the jurisdiction of a probate forum, may be barred from
consideration by an interim order from the OHA deciding official.
(g) Claims of a State or any of its political subdivisions on
account of social security or old-age assistance payments will not be
allowed.
Sec. 4.251 Priority of claims.
(a) Upon motion of the Superintendent or a party in interest, the
OHA deciding official may authorize payment of the costs of
administering the estate as they arise and prior to the allowance of any
claims against the estate.
(b) After the costs of administration, the OHA deciding official may
authorize payment of priority claims as follows:
(1) Claims for funeral expenses (including the cemetery marker);
(2) Claims for medical expenses for the last illness;
(3) Claims for nursing home or other care facility expenses;
(4) Claims of an Indian tribe; and
(5) Claims reduced to judgment by a court of competent jurisdiction.
(c) After the priority claims, the OHA deciding official may
authorize payment of all remaining claims, referred to as general
claims.
(d) The OHA deciding official has the discretion to decide that part
or all of
[[Page 78]]
an otherwise valid claim is unreasonable, reduce the claim to a
reasonable amount, or disallow the claim in its entirety.
(1) If a claim is reduced, the OHA deciding official will order
payment only of the reduced amount.
(2) An OHA deciding official may reduce or disallow both priority
claims and general claims.
(e) If, as of the date of the hearing, there is not enough money in
the IIM account to pay all claims, the OHA deciding official will order
payment of allowed priority claims first, either in the order identified
in paragraph (b) of this section or on a pro rata (reduced) basis.
(f) If, as of the date of the hearing, less than $1,000 remains in
the IIM account after payment of priority claims is ordered, the general
claims may be ordered paid on a pro rata basis or disallowed in their
entirety.
(g) The unpaid balance of any claims will not be enforceable against
the estate after the estate is closed.
(h) Interest or penalties charged against either priority or general
claims after the date of death will not be paid.
Sec. 4.252 Property subject to claims.
Claims are payable from income from the lands remaining in trust.
Further, except as prohibited by law, all trust moneys of the deceased
on hand or accrued at time of death, including bonds, unpaid judgments,
and accounts receivable, may be used for the payment of claims, whether
the right, title, or interest that is taken by an heir, devisee, or
legatee remains in or passes out of trust.
Wills
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.260 Making of a will; review as to form; revocation.
(a) An Indian 18 years of age or over and of testamentary capacity,
who has any right, title, or interest in trust property, may dispose of
such property by a will executed in writing and attested by two
disinterested adult witnesses.
(b) When an Indian executes a will and submits the same to the
Superintendent, the Superintendent must forward it to the Office of the
Solicitor for examination as to adequacy of form, and for submission by
the Office of the Solicitor to the Superintendent of any appropriate
comments. The will, codicil, or any replacement or copy thereof, may be
retained by the Superintendent at the request of the testator or
testatrix for safekeeping. A will must be held in absolute confidence,
and no person other than the testator may admit its existence or divulge
its contents prior to the death of the testator.
(c) The testator may, at any time during his or her lifetime, revoke
his or her will by a subsequent will or other writing executed with the
same formalities as are required in the case of the execution of a will,
or by physically destroying the will with the intention of revoking it.
No will that is subject to the regulations of this subpart will be
deemed to be revoked by operation of the law of any State.
Sec. 4.261 Anti-lapse provisions.
When an Indian testator devises or bequeaths trust property to any
of his or her grandparents or to the lineal descendant of a grandparent,
and the devisee or legatee dies before the testator leaving lineal
descendants, such descendants will take the right, title, or interest so
given by the will per stirpes. Relationship by adoption is equivalent to
relationship by blood.
Sec. 4.262 Felonious taking of testator's life.
No person who has been finally convicted of feloniously causing the
death or taking the life of, or procuring another person to take the
life of, the testator, may take directly or indirectly any devise or
legacy under deceased's will. All right, title, and interest existing in
such a situation will vest and be determined as if the person convicted
never existed, notwithstanding Sec. 4.261.
Custody and Distribution of Estates
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
[[Page 79]]
Sec. 4.270 Custody and control of trust estates.
The Superintendent may assume custody or control of all tangible
trust personal property of a deceased Indian, and the Superintendent may
take such action, including sale thereof, as in his or her judgment is
necessary for the benefit of the estate, the heirs, legatees, and
devisees, pending entry of the decision provided for in 25 CFR 15.311 or
in Secs. 4.240, 4.241, or 4.312. All expenses, including expenses of
roundup, branding, care, and feeding of livestock, are chargeable
against the estate and may be paid from those funds of the deceased that
are under the Department's control, or from the proceeds of a sale of
the property or a part thereof. If an OHA deciding official or BIA
deciding official has been assigned to adjudicate the estate, his or her
approval is required prior to such payment.
Sec. 4.271 Omitted property.
(a) When, subsequent to the issuance of a decision under Sec. 4.240
or Sec. 4.312, it is found that trust property or interest therein
belonging to a decedent has not been included in the inventory, the
inventory can be modified to include such omitted property for
distribution pursuant to the original decision. Such modification may be
made either administratively by the Commissioner or by a modification
order prepared by him or her for the approval and signature of the OHA
deciding official. Copies of such modifications must be furnished to the
Superintendent and to all those persons who share in the estate.
(b) When the property to be included takes a different line of
descent from that shown in the original decision, the Commissioner must
notify the OHA deciding official who will proceed to hold a hearing if
necessary and will issue a decision under Sec. 4.240. The record of any
such proceeding must be lodged with the title plant designated under
Sec. 4.236(b).
Sec. 4.272 Improperly included property.
(a) When, subsequent to a decision under Sec. 4.240 or Sec. 4.312,
it is found that property has been improperly included in the inventory
of an estate, the inventory must be modified to eliminate such property.
A petition for modification may be filed by the Superintendent of the
Agency where the property is located, or by any party in interest.
(b) The OHA deciding official will review the record of the title
upon which the modification is to be based, and enter an appropriate
decision. If the decision is entered without a hearing, the OHA deciding
official must give notice of his or her action to all parties whose
rights are adversely affected allowing them 60 days in which to show
cause why the decision should not then become final.
(c) Where appropriate the OHA deciding official may conduct a
hearing at any stage of the modification proceeding. Any such hearing
must be scheduled and conducted in accordance with the rules of this
subpart. The OHA deciding official will enter a final decision based on
his or her findings, modifying or refusing to modify the property
inventory, and his or her decision will become final at the end of 60
days from the date it is mailed unless a notice of appeal is filed by an
aggrieved party within such period. Notice of entry of the decision must
be given in accordance with Sec. 4.240(b).
(d) A party aggrieved by the OHA deciding official's decision may
appeal to the Board pursuant to the procedures in Secs. 4.310 through
4.323.
(e) The record of all proceedings must be lodged with the title
plant designated under Sec. 4.236(b).
Sec. 4.273 Distribution of estates.
(a) Seventy-five days after a final order has been issued, unless
the Superintendent has received a copy of a petition for rehearing filed
pursuant to the requirements of Sec. 4.241(a) or a copy of a notice of
appeal filed pursuant to the requirements of Sec. 4.320(b), he or she
must initiate payment of allowed claims, distribution of the estate, and
all other actions required by the OHA deciding official's final order.
(b) The Superintendent must not initiate the payment of claims or
distribution of the estate during the pendency of proceedings under
Sec. 4.241 or Sec. 4.242, unless the OHA deciding official orders
otherwise in writing. The Board may, at any time, authorize the OHA
[[Page 80]]
deciding official to issue interim orders for payment of claims or for
partial distribution during the pendency of proceedings on appeal.
Miscellaneous
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.281 Claims for attorney fees.
(a) Attorneys representing Indians in proceedings under these
regulations may be allowed fees therefor by the OHA deciding official.
At the discretion of the OHA deciding official, such fees may be
chargeable against the interests of the party thus represented, or where
appropriate, they may be taxed as a cost of administration. Petitions
for allowance of fees must be filed prior to the close of the last
hearing and must be supported by such proof as is required by the OHA
deciding official. In determining attorney fees, consideration must be
given to the fact that the property of the decedent is restricted or
held in trust and that it is the duty of the Department to protect the
rights of all parties in interest.
(b) Nothing herein prevents an attorney from petitioning for
additional fees to be considered at the disposition of a petition for
rehearing and again after an appeal on the merits. An order allowing an
attorney's fees is subject to a petition for rehearing and to an appeal.
Sec. 4.282 Guardians for incompetents.
Minors and other legal incompetents who are parties in interest must
be represented at all hearings by legally appointed guardians, or by
guardians ad litem appointed by the OHA deciding official.
Tribal Purchase of Interests Under Special Statutes
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.300 Authority and scope.
(a) The rules and procedures set forth in Secs. 4.300 through 4.308
apply only to proceedings in Indian probate which relate to the tribal
purchase of a decedent's interests in trust and restricted land as
provided by:
(1) The Act of December 31, 1970 (Pub. L. 91-627; 84 Stat. 1874; 25
U.S.C. 607 (1976)), amending section 7 of the Act of August 9, 1946 (60
Stat. 968), with respect to trust or restricted land within the Yakima
Reservation or within the area ceded by the Treaty of June 9, 1855 (12
Stat. 1951);
(2) The Act of August 10, 1972 (Pub. L. 92-377; 86 Stat. 530), with
respect to trust or restricted land within the Warm Springs Reservation
or within the area ceded by the Treaty of June 25, 1855 (12 Stat. 37);
and
(3) The Act of September 29, 1972 (Pub. L. 92-443; 86 Stat. 744),
with respect to trust or restricted land within the Nez Perce Indian
Reservation or within the area ceded by the Treaty of June 11, 1855 (12
Stat. 957).
(b)(1) In the exercise of probate authority, an OHA deciding
official will determine:
(i) The entitlement of a tribe to purchase a decedent's interests in
trust or restricted land under the statutes;
(ii) The entitlement of a surviving spouse to reserve a life estate
in one-half of the surviving spouse's interests which have been
purchased by a tribe; and
(iii) The fair market value of such interests, including the value
of any life estate reserved by a surviving spouse.
(2) In the determination under paragraph (b)(1) of this section of
the entitlement of a tribe to purchase the interests of an heir or
devisee, the issues of
(i) Enrollment or refusal of the tribe to enroll a specific
individual and
(ii) Specification of blood quantum, where pertinent, will be
determined by the official tribal roll which is binding upon the OHA
deciding official. For good cause shown, the OHA deciding official may
stay the probate proceeding to permit an aggrieved party to pursue an
enrollment application, grievance, or appeal through the established
procedures applicable to the tribe.
Sec. 4.301 Valuation report.
(a) In all probates, at the earliest possible stage of the
proceeding before issuance of a probate decision, the BIA
[[Page 81]]
must furnish a valuation of the decedent's interests when the record
reveals to the Superintendent:
(1) That the decedent owned interests in land located on one or more
of those reservations designated in Sec. 4.300 and
(2) That any one or more of the probable heirs or devisees, who may
become a distributee of such interests upon completion of the probate
proceeding, is not enrolled in or does not have the required blood
quantum in the tribe of the reservation where the land is located to
hold such interests against a claim thereto made by the tribe. If there
is a surviving spouse whose interests may be subject to the tribal
option, the valuation must include the value of a life estate based on
the life of the surviving spouse in one half of such interests. The
valuation must be made on the basis of the fair market value of the
property, including fixed improvements, as of the date of decedent's
death.
(b) BIA must submit the valuation report in the probate package
submitted to the OHA deciding official. Interested parties may examine
and copy, at their expense, the valuation report at the office of the
Superintendent or the OHA deciding official.
Sec. 4.302 Conclusion of probate and tribal exercise of statutory option.
(a) Conclusion of probate; findings in the probate decision. When a
decedent is shown to have owned land interests in any one or more of the
reservations mentioned in the statutes enumerated in Sec. 4.300, the
probate proceeding relative to the determination of heirs, approval or
disapproval of a will, and the claims of creditors will first be
concluded as final for the Department in accordance with Secs. 4.200
through 4.282 and Secs. 4.310 through 4.323. This decision will be
referred to herein as the ``probate decision.'' At the probate hearing a
finding must be made on the record showing those interests in land, if
any, which are subject to the tribal option. The finding must be reduced
to writing in the probate decision setting forth the apparent rights of
the tribe as against affected heirs or devisees and the right of a
surviving spouse whose interests are subject to the tribal option to
reserve a life estate in one-half of such interests. If the finding is
that there are no interests subject to the tribal option, the decision
must so state. A copy of the probate decision, to which must be attached
a copy of the valuation report, must be distributed to all parties in
interest in accordance with Secs. 4.201 and 4.240.
(b) Tribal exercise of statutory option. A tribe may purchase all or
a part of the available interests specified in the probate decision
within 60 days from the date of the probate decision unless a petition
for rehearing or a demand for hearing has been filed in accordance with
Sec. 4.304 or 4.305. If a petition for rehearing or a demand for hearing
has been filed, a tribe may purchase all or a part of the available
interests specified in the probate decision within 20 days from the date
of the decision on rehearing or hearing, whichever is applicable. A
tribe may not, however, claim an interest less than the decedent's total
interest in any one individual tract. The tribe must file a written
notice of purchase with the Superintendent, together with the tribe's
certification that copies thereof have been mailed on the same date to
the OHA deciding official and to the affected heirs or devisees. Upon
failure to timely file a notice of purchase, the right to distribution
of all unclaimed interests will accrue to the heirs or devisees.
Sec. 4.303 Notice by surviving spouse to reserve a life estate.
When the heir or devisee whose interests are subject to the tribal
option is a surviving spouse, the spouse may reserve a life estate in
one-half of such interests. The spouse must file a written notice to
reserve with the Superintendent within 30 days after the tribe has
exercised its option to purchase the interest in question, together with
a certification that copies thereof have been mailed on the same date to
the OHA deciding official and the tribe. Failure to timely file a notice
to reserve a life estate will constitute a waiver thereof.
Sec. 4.304 Rehearing.
Any party in interest aggrieved by the probate decision may, within
60
[[Page 82]]
days from the date of the probate decision, file with the OHA deciding
official a written petition for rehearing in accordance with Sec. 4.241.
Sec. 4.305 Hearing.
(a) Demand for hearing. Any party in interest aggrieved by the
exercise of the tribal option to purchase the interests in question or
the valuation of the interests as set forth in the valuation report may,
within 60 days from the date of the probate decision or 60 days from the
date of the decision on rehearing, whichever is applicable, file with
the OHA deciding official a written demand for hearing, together with a
certification that copies thereof have been mailed on the same date to
the Superintendent and to each party in interest; provided, however,
that an aggrieved party will have at least 20 days from the date the
tribe exercises its option to purchase available interests to file such
a demand. The demand must state specifically and concisely the grounds
upon which it is based.
(b) Notice; burden of proof. The OHA deciding official will, upon
receipt of a demand for hearing, set a time and place therefor and must
mail notice thereof to all parties in interest not less than 30 days in
advance; provided, however, that such date must be set after the
expiration of the 60-day period fixed for the filing of the demand for
hearing as provided in Sec. 4.305(a). At the hearing, each party
challenging the tribe's claim to purchase the interests in question or
the valuation of the interests as set forth in the valuation report will
have the burden of proving his or her position.
(c) Decision after hearing; appeal. Upon conclusion of the hearing,
the OHA deciding official will issue a decision which determines all of
the issues including, but not limited to, a judgment establishing the
fair market value of the interests purchased by the tribe, including any
adjustment thereof made necessary by the surviving spouse's decision to
reserve a life estate in one-half of the interests. The decision must
specify the right of appeal to the Board of Indian Appeals within 60
days from the date of the decision in accordance with Secs. 4.310
through 4.323. The OHA deciding official must lodge the complete record
relating to the demand for hearing with the title plant as provided in
Sec. 4.236(b), furnish a duplicate record thereof to the Superintendent,
and mail a notice of such action together with a copy of the decision to
each party in interest.
Sec. 4.306 Time for payment.
A tribe must pay the full fair market value of the interests
purchased, as set forth in the valuation report or as determined after
hearing in accordance with Sec. 4.305, whichever is applicable, within 2
years from the date of decedent's death or within 1 year from the date
of notice of purchase, whichever comes later.
Sec. 4.307 Title.
Upon payment by the tribe of the interests purchased, the
Superintendent must issue a certificate to the OHA deciding official
that this has been done and file therewith such documents in support
thereof as the OHA deciding official may require. The OHA deciding
official will then issue an order that the United States holds title to
such interests in trust for the tribe, lodge the complete record,
including the decision, with the title plant as provided in
Sec. 4.236(b), furnish a duplicate record thereof to the Superintendent,
and mail a notice of such action together with a copy of the decision to
each party in interest.
Sec. 4.308 Disposition of income.
During the pendency of the probate and up to the date of transfer of
title to the United States in trust for the tribe in accordance with
Sec. 4.307, all income received or accrued from the land interests
purchased by the tribe will be credited to the estate.
Cross Reference: See 25 CFR part 2 for procedures for appeals to
Area Directors and to the Commissioner of the Bureau of Indian Affairs.
General Rules Applicable to Proceedings on Appeal Before the Interior
Board of Indian Appeals
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
[[Page 83]]
Sec. 4.310 Documents.
(a) Filing. The effective date for filing a notice of appeal or
other document with the Board during the course of an appeal is the date
of mailing or the date of personal delivery, except that a motion for
the Board to assume jurisdiction over an appeal under 25 CFR 2.20(e)
will be effective the date it is received by the Board.
(b) Service. Notices of appeal and pleadings must be served on all
parties in interest in any proceeding before the Interior Board of
Indian Appeals by the party filing the notice or pleading with the
Board. Service must be accomplished upon personal delivery or mailing.
Where a party is represented in an appeal by an attorney or other
representative authorized under 43 CFR 1.3, service of any document on
the attorney or representative is service on the party. Where a party is
represented by more than one attorney, service on any one attorney is
sufficient. The certificate of service on an attorney or representative
must include the name of the party whom the attorney or representative
represents and indicate that service was made on the attorney or
representative.
(c) Computation of time for filing and service. Except as otherwise
provided by law, in computing any period of time prescribed for filing
and serving a document, the day upon which the decision or document to
be appealed or answered was served or the day of any other event after
which a designated period of time begins to run is not to be included.
The last day of the period so computed is to be included, unless it is a
Saturday, Sunday, Federal legal holiday, or other nonbusiness day, in
which event the period runs until the end of the next day which is not a
Saturday, Sunday, Federal legal holiday, or other nonbusiness day. When
the time prescribed or allowed is 7 days or less, intermediate
Saturdays, Sundays, Federal legal holidays, and other nonbusiness days
are excluded in the computation.
(d) Extensions of time. (1) The time for filing or serving any
document except a notice of appeal may be extended by the Board.
(2) A request to the Board for an extension of time must be filed
within the time originally allowed for filing.
(3) For good cause the Board may grant an extension of time on its
own initiative.
(e) Retention of documents. All documents received in evidence at a
hearing or submitted for the record in any proceeding before the Board
will be retained with the official record of the proceeding. The Board,
in its discretion, may permit the withdrawal of original documents while
a case is pending or after a decision becomes final upon conditions as
required by the Board.
Sec. 4.311 Briefs on appeal.
(a) The appellant may file an opening brief within 30 days after
receipt of the notice of docketing. Appellant must serve copies of the
opening brief upon all interested parties or counsel and file a
certificate with the Board showing service upon the named parties.
Opposing parties or counsel will have 30 days from receipt of
appellant's brief to file answer briefs, copies of which must be served
upon the appellant or counsel and all other parties in interest. A
certificate showing service of the answer brief upon all parties or
counsel must be attached to the answer filed with the Board.
(b) Appellant may reply to an answering brief within 15 days from
its receipt. A certificate showing service of the reply brief upon all
parties or counsel must be attached to the reply filed with the Board.
Except by special permission of the Board, no other briefs will be
allowed on appeal.
(c) The BIA is considered an interested party in any proceeding
before the Board. The Board may request that the BIA submit a brief in
any case before the Board.
(d) An original only of each document should be filed with the
Board. Documents should not be bound along the side.
(e) The Board may also specify a date on or before which a brief is
due. Unless expedited briefing has been granted, such date may not be
less than the appropriate period of time established in this section.
[[Page 84]]
Sec. 4.312 Decisions.
Decisions of the Board will be made in writing and will set forth
findings of fact and conclusions of law. The decision may adopt, modify,
reverse or set aside any proposed finding, conclusion, or order of a BIA
official or an OHA deciding official. Distribution of decisions must be
made by the Board to all parties concerned. Unless otherwise stated in
the decision, rulings by the Board are final for the Department and must
be given immediate effect.
Sec. 4.313 Amicus Curiae; intervention; joinder motions.
(a) Any interested person or Indian tribe desiring to intervene or
to join other parties or to appear as amicus curiae or to obtain an
order in an appeal before the Board must apply in writing to the Board
stating the grounds for the action sought. Permission to intervene, to
join parties, to appear, or for other relief, may be granted for
purposes and subject to limitations established by the Board. This
section will be liberally construed.
(b) Motions to intervene, to appear as amicus curiae, to join
additional parties, or to obtain an order in an appeal pending before
the Board must be served in the same manner as appeal briefs.
Sec. 4.314 Exhaustion of administrative remedies.
(a) No decision of an OHA deciding official or a BIA official, which
at the time of its rendition is subject to appeal to the Board, will be
considered final so as to constitute agency action subject to judicial
review under 5 U.S.C. 704, unless made effective pending decision on
appeal by order of the Board.
(b) No further appeal will lie within the Department from a decision
of the Board.
(c) The filing of a petition for reconsideration is not required to
exhaust administrative remedies.
Sec. 4.315 Reconsideration.
(a) Reconsideration of a decision of the Board will be granted only
in extraordinary circumstances. Any party to the decision may petition
for reconsideration. The petition must be filed with the Board within 30
days from the date of the decision and must contain a detailed statement
of the reasons why reconsideration should be granted.
(b) A party may file only one petition for reconsideration.
(c) The filing of a petition will not stay the effect of any
decision or order and will not affect the finality of any decision or
order for purposes of judicial review, unless so ordered by the Board.
Sec. 4.316 Remands from courts.
Whenever any matter is remanded from any federal court to the Board
for further proceedings, the Board will either remand the matter to an
OHA deciding official or to the BIA, or to the extent the court's
directive and time limitations will permit, the parties will be allowed
an opportunity to submit to the Board a report recommending procedures
for it to follow to comply with the court's order. The Board will enter
special orders governing matters on remand.
Sec. 4.317 Standards of conduct.
(a) Inquiries about cases. All inquiries with respect to any matter
pending before the Board must be made to the Chief Administrative Judge
of the Board or the administrative judge assigned the matter.
(b) Disqualification. An administrative judge may withdraw from a
case in accordance with standards found in the recognized canons of
judicial ethics if the judge deems such action appropriate. If, prior to
a decision of the Board, a party files an affidavit of personal bias or
disqualification with substantiating facts, and the administrative judge
concerned does not withdraw, the Director of the Office of Hearings and
Appeals will determine the matter of disqualification.
Sec. 4.318 Scope of review.
An appeal will be limited to those issues which were before the OHA
deciding official upon the petition for rehearing, reopening, or
regarding tribal purchase of interests, or before the BIA official on
review. However, except as specifically limited in this part or in title
25 of the Code of Federal Regulations, the Board will not be limited in
[[Page 85]]
its scope of review and may exercise the inherent authority of the
Secretary to correct a manifest injustice or error where appropriate.
Appeals to the Board of Indian Appeals in Probate Matters
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.320 Who may appeal.
(a) A party in interest has a right to appeal to the Board from an
order of an OHA deciding official on a petition for rehearing, a
petition for reopening, or regarding tribal purchase of interests in a
deceased Indian's trust estate.
(b) Notice of appeal. Within 60 days from the date of the decision,
an appellant must file a written notice of appeal signed by appellant,
appellant's attorney, or other qualified representative as provided in
43 CFR 1.3, with the Board of Indian Appeals, Office of Hearings and
Appeals, U.S. Department of the Interior, 801 North Quincy Street,
Arlington, Virginia 22203. A statement of the errors of fact and law
upon which the appeal is based must be included in either the notice of
appeal or in any brief filed. The notice of appeal must include the
names and addresses of parties served. A notice of appeal not timely
filed will be dismissed for lack of jurisdiction.
(c) Service of copies of notice of appeal. The appellant must
personally deliver or mail the original notice of appeal to the Board of
Indian Appeals. A copy must be served upon the OHA deciding official
whose decision is appealed as well as all interested parties. The notice
of appeal filed with the Board must include a certification that service
was made as required by this section.
(d) Action by the OHA deciding official; record inspection. The OHA
deciding official, upon receiving a copy of the notice of appeal, must
notify the Superintendent concerned to return the duplicate record filed
under Secs. 4.236(b) and 4.241(d), or under Sec. 4.242(f) of this part,
to the Land Titles and Records Office designated under Sec. 4.236(b) of
this part. The duplicate record must be conformed to the original by the
Land Titles and Records Office and will thereafter be available for
inspection either at the Land Titles and Records Office or at the office
of the Superintendent. In those cases in which a transcript of the
hearing was not prepared, the OHA deciding official will have a
transcript prepared which must be forwarded to the Board within 30 days
from receipt of a copy of the notice of appeal.
[66 FR 67656, Dec. 31, 2001, as amended at 67 FR 4368, Jan. 30, 2002]
Sec. 4.321 Notice of transmittal of record on appeal.
The original record on appeal must be forwarded by the Land Titles
and Records Office to the Board by certified mail. Any objection to the
record as constituted must be filed with the Board within 15 days of
receipt of the notice of docketing issued under Sec. 4.332 of this part.
Sec. 4.322 Docketing.
The appeal will be docketed by the Board upon receipt of the
administrative record from the Land Titles and Records Office. All
interested parties as shown by the record on appeal must be notified of
the docketing. The docketing notice must specify the time within which
briefs may be filed and must cite the procedural regulations governing
the appeal.
Sec. 4.323 Disposition of the record.
Subsequent to a decision of the Board, other than remands, the
record filed with the Board and all documents added during the appeal
proceedings, including any transcripts prepared because of the appeal
and the Board's decision, must be forwarded by the Board to the Land
Titles and Records Office designated under Sec. 4.236(b) of this part.
Upon receipt of the record by the Land Titles and Records Office, the
duplicate record required by Sec. 4.320(c) of this part must be
conformed to the original and forwarded to the Superintendent concerned.
[[Page 86]]
Appeals to the Board of Indian Appeals from Administrative Actions of
Officials of the Bureau of Indian Affairs: Administrative Review in
Other Indian Matters Not Relating to Probate Proceedings
Source: 54 FR 6487, Feb. 10, 1989, unless otherwise noted.
Sec. 4.330 Scope.
(a) The definitions set forth in 25 CFR 2.2 apply also to these
special rules. These regulations apply to the practice and procedure
for: (1) Appeals to the Board of Indian Appeals from administrative
actions or decisions of officials of the Bureau of Indian Affairs issued
under regulations in 25 CFR chapter 1, and (2) administrative review by
the Board of Indian Appeals of other matters pertaining to Indians which
are referred to it for exercise of review authority of the Secretary or
the Assistant Secretary--Indian Affairs.
(b) Except as otherwise permitted by the Secretary or the Assistant
Secretary--Indian Affairs by special delegation or request, the Board
shall not adjudicate:
(1) Tribal enrollment disputes;
(2) Matters decided by the Bureau of Indian Affairs through exercise
of its discretionary authority; or
(3) Appeals from decisions pertaining to final recommendations or
actions by officials of the Minerals Management Service, unless the
decision is based on an interpretation of Federal Indian law (decisions
not so based which arise from determinations of the Minerals Management
Service, are appealable to the Interior Board of Land Appeals in
accordance with 43 CFR 4.410).
Sec. 4.331 Who may appeal.
Any interested party affected by a final administrative action or
decision of an official of the Bureau of Indian Affairs issued under
regulations in title 25 of the Code of Federal Regulations may appeal to
the Board of Indian Appeals, except--
(a) To the extent that decisions which are subject to appeal to a
higher official within the Bureau of Indian Affairs must first be
appealed to that official;
(b) Where the decision has been approved in writing by the Secretary
or Assistant Secretary--Indian Affairs prior to promulgation; or
(c) Where otherwise provided by law or regulation.
Sec. 4.332 Appeal to the Board; how taken; mandatory time for filing; preparation assistance; requirement for bond.
(a) A notice of appeal shall be in writing, signed by the appellant
or by his attorney of record or other qualified representative as
provided by 43 CFR 1.3, and filed with the Board of Indian Appeals,
Office of Hearings and Appeals, U.S. Department of the Interior, 801
North Quincy Street, Arlington, Virginia 22203, within 30 days after
receipt by the appellant of the decision from which the appeal is taken.
A copy of the notice of appeal shall simultaneously be filed with the
Assistant Secretary--Indian Affairs. As required by Sec. 4.333 of this
part, the notice of appeal sent to the Board shall certify that a copy
has been sent to the Assistant Secretary--Indian Affairs. A notice of
appeal not timely filed shall be dismissed for lack of jurisdiction. A
notice of appeal shall include:
(1) A full identification of the case;
(2) A statement of the reasons for the appeal and of the relief
sought; and
(3) The names and addresses of all additional interested parties,
Indian tribes, tribal corporations, or groups having rights or
privileges which may be affected by a change in the decision, whether or
not they participated as interested parties in the earlier proceedings.
(b) In accordance with 25 CFR 2.20(c) a notice of appeal shall not
be effective for 20 days from receipt by the Board, during which time
the Assistant Secretary--Indian Affairs may decide to review the appeal.
If the Assistant Secretary--Indian Affairs properly notifies the Board
that he has decided to review the appeal, any documents concerning the
case filed with the Board shall be transmitted to the Assistant
Secretary--Indian Affairs.
(c) When the appellant is an Indian or Indian tribe not represented
by counsel, the official who issued the decision
[[Page 87]]
appealed shall, upon request of the appellant, render such assistance as
is appropriate in the preparation of the appeal.
(d) At any time during the pendency of an appeal, an appropriate
bond may be required to protect the interest of any Indian, Indian
tribe, or other parties involved.
[54 FR 6487, Feb. 10, 1989, as amended at 67 FR 4368, Jan. 30, 2002]
Sec. 4.333 Service of notice of appeal.
(a) On or before the date of filing of the notice of appeal the
appellant shall serve a copy of the notice upon each known interested
party, upon the official of the Bureau of Indian Affairs from whose
decision the appeal is taken, and upon the Assistant Secretary--Indian
Affairs. The notice of appeal filed with the Board shall certify that
service was made as required by this section and shall show the names
and addresses of all parties served. If the appellant is an Indian or an
Indian tribe not represented by counsel, the appellant may request the
official of the Bureau whose decision is appealed to assist in service
of copies of the notice of appeal and any supporting documents.
(b) The notice of appeal will be considered to have been served upon
the date of personal service or mailing.
Sec. 4.334 Extensions of time.
Requests for extensions of time to file documents may be granted
upon a showing of good cause, except for the time fixed for filing a
notice of appeal which, as specified in Sec. 4.332 of this part, may not
be extended.
Sec. 4.335 Preparation and transmittal of record by official of the Bureau of Indian Affairs.
(a) Within 20 days after receipt of a notice of appeal, or upon
notice from the Board, the official of the Bureau of Indian Affairs
whose decision is appealed shall assemble and transmit the record to the
Board. The record on appeal shall include, without limitation, copies of
transcripts of testimony taken; all original documents, petitions, or
applications by which the proceeding was initiated; all supplemental
documents which set forth claims of interested parties; and all
documents upon which all previous decisions were based.
(b) The administrative record shall include a Table of Contents
noting, at a minimum, inclusion of the following:
(1) The decision appealed from;
(2) The notice of appeal or copy thereof; and
(3) Certification that the record contains all information and
documents utilized by the deciding official in rendering the decision
appealed.
(c) If the deciding official receives notification that the
Assistant Secretary--Indian Affairs has decided to review the appeal
before the administrative record is transmitted to the Board, the
administrative record shall be forwarded to the Assistant Secretary--
Indian Affairs rather than to the Board.
Sec. 4.336 Docketing.
An appeal shall be assigned a docket number by the Board 20 days
after receipt of the notice of appeal unless the Board has been properly
notified that the Assistant Secretary--Indian Affairs has assumed
jurisdiction over the appeal. A notice of docketing shall be sent to all
interested parties as shown by the record on appeal upon receipt of the
administrative record. Any objection to the record as constituted shall
be filed with the Board within 15 days of receipt of the notice of
docketing. The docketing notice shall specify the time within which
briefs shall be filed, cite the procedural regulations governing the
appeal and include a copy of the Table of Contents furnished by the
deciding official.
Sec. 4.337 Action by the Board.
(a) The Board may make a final decision, or where the record
indicates a need for further inquiry to resolve a genuine issue of
material fact, the Board may require a hearing. All hearings shall be
conducted by an administrative law judge of the Office of Hearings and
Appeals. The Board may, in its discretion, grant oral argument before
the Board.
(b) Where the Board finds that one or more issues involved in an
appeal or a matter referred to it were decided by the Bureau of Indian
Affairs based
[[Page 88]]
upon the exercise of discretionary authority committed to the Bureau,
and the Board has not otherwise been permitted to adjudicate the
issue(s) pursuant to Sec. 4.330(b) of this part, the Board shall dismiss
the appeal as to the issue(s) or refer the issue(s) to the Assistant
Secretary--Indian Affairs for further consideration.
Sec. 4.338 Submission by administrative law judge of proposed findings, conclusions and recommended decision.
(a) When an evidentiary hearing pursuant to Sec. 4.337(a) of this
part is concluded, the administrative law judge shall recommend findings
of fact and conclusions of law, stating the reasons for such
recommendations. A copy of the recommended decision shall be sent to
each party to the proceeding, the Bureau official involved, and the
Board. Simultaneously, the entire record of the proceedings, including
the transcript of the hearing before the administrative law judge, shall
be forwarded to the Board.
(b) The administrative law judge shall advise the parties at the
conclusion of the recommended decision of their right to file exceptions
or other comments regarding the recommended decision with the Board in
accordance with Sec. 4.339 of this part.
Sec. 4.339 Exceptions or comments regarding recommended decision by administrative law judge.
Within 30 days after receipt of the recommended decision of the
administrative law judge, any party may file exceptions to or other
comments on the decision with the Board.
Sec. 4.340 Disposition of the record.
Subsequent to a decision by the Board, the record filed with the
Board and all documents added during the appeal proceedings, including
the Board's decision, shall be forwarded to the official of the Bureau
of Indian Affairs whose decision was appealed for proper disposition in
accordance with rules and regulations concerning treatment of Federal
records.
White Earth Reservation Land Settlement Act of 1985; Authority of
Administrative Judges; Determinations of the Heirs of Persons Who Died
Entitled to Compensation
Source: 56 FR 61383, Dec. 3, 1991, unless otherwise noted.
Sec. 4.350 Authority and scope.
(a) The rules and procedures set forth in Secs. 4.350 through 4.357
apply only to the determination through intestate succession of the
heirs of persons who died entitled to receive compensation under the
White Earth Reservation Land Settlement Act of 1985, Public Law 99-264
(100 Stat. 61), amended by Public Law 100-153 (101 Stat. 886) and Public
Law 100-212 (101 Stat. 1433).
(b) Whenever requested to do so by the Project Director, an
administrative judge shall determine such heirs by applying inheritance
laws in accordance with the White Earth Reservation Settlement Act of
1985 as amended, notwithstanding the decedent may have died testate.
(c) As used herein, the following terms shall have the following
meanings:
(1) The term Act means the White Earth Reservation Land Settlement
Act of 1985 as amended.
(2) The term Board means the Board of Indian Appeals in the Office
of Hearings and Appeals, Office of the Secretary.
(3) The term Project Director means the Superintendent of the
Minnesota Agency, Bureau of Indian Affairs, or other Bureau of Indian
Affairs official with delegated authority from the Minneapolis Area
Director to serve as the federal officer in charge of the White Earth
Reservation Land Settlement Project.
(4) The term party (parties) in interest means the Project Director
and any presumptive or actual heirs of the decedent, or of any issue of
any subsequently deceased presumptive or actual heir of the decedent.
(5) The term compensation means a monetary sum, as determined by the
Project Director, pursuant to section 8(c) of the Act.
(6) The term adminstrative judge means an administrative judge or an
[[Page 89]]
administrative law judge, attorney-advisor, or other appropriate
official of the Office of Hearings and Appeals to whom the Director of
the Office of Hearings and Appeals has redelegated his authority, as
designee of the Secretary, for making heirship determinations as
provided for in these regulations.
(7) The term appellant means a party aggrieved by a final order or
final order upon reconsideration issued by an administrative judge who
files an appeal with the Board.
[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991, as amended at 64
FR 13363, Mar. 18, 1999]
Sec. 4.351 Commencement of the determination process.
(a) Unless an heirship determination which is recognized by the Act
already exists, the Project Director shall commence the determination of
the heirs of those persons who died entitled to receive compensation by
filing with the administrative judge all data, identifying the purpose
for which they are being submitted, shown in the records relative to the
family of the decedent.
(b) The data shall include but are not limited to:
(1) A copy of the death certificate if one exists. If there is no
death certificate, then another form of official written evidence of the
death such as a burial or transportation of remains permit, coroner's
report, or church registry of death. Secondary forms of evidence of
death such as an affidavit from someone with personal knowledge
concerning the fact of death or an obituary or death notice from a
newspaper may be used only in the absence of any official proof or
evidence of death.
(2) Data for heirship finding and family history, certified by the
Project Director. Such data shall contain:
(i) The facts and alleged facts of the decedent's marriages,
separations and divorces, with copies of necessary supporting documents;
(ii) The names and last known addresses of probable heirs at law and
other known parties in interest;
(iii) Information on whether the relationships of the probable heirs
at law to the decedent arose by marriage, blood, or adoption.
(3) Known heirship determinations, including those recognized by the
Act determining the heirs of relatives of the decedent, and including
those rendered by courts from Minnesota or other states, by tribal
courts, or by tribunals authorized by the laws of other countries.
(4) A report of the compensation due the decedent, including
interest calculated to the date of death of the decedent, and an outline
of the derivation of such compensation, including its real property
origins and the succession of the compensation to the deceased, citing
all of the intervening heirs at law, their fractional shares, and the
amount of compensation attributed to each of them.
(5) A certification by the Project Director or his designee that the
addresses provided for the parties in interest were furnished after
having made a due and diligent search.
[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991]
Sec. 4.352 Determination of administrative judge and notice thereof.
(a) Upon review of all data submitted by the Project Director, the
administrative judge will determine whether or not there are any
apparent issues of fact that need to be resolved.
(b) If there are no issues of fact requiring determination, the
administrative judge will enter a preliminary determination of heirs
based upon inheritance laws in accordance with the Act. Such preliminary
determination will be entered without a hearing, and, when possible and
based upon the data furnished and/or information supplementary thereto,
shall include the names, birth dates, relationships to the decedent, and
shares of the heirs, or the fact that the decedent died without heirs.
(1) Upon issuing a preliminary determination, the administrative
judge shall issue a notice of such action and shall mail a copy of said
notice, together with a copy of the preliminary determination, to each
party in interest allowing forty (40) days in which to show cause in
writing why the determination should not become final. The
[[Page 90]]
administrative judge shall cause a certificate to be made as to the date
and manner of such mailing.
(2) The Project Director shall also cause, within seven (7) days of
receipt of such notice, the notice of the preliminary determination to
be posted in the following sites:
The White Earth Band, Box 418, White Earth, Minnesota 56591
The Minnesota Chippewa Tribe, Box 217, Cass Lake, Minnesota 56633
Minnesota Agency, Bureau of Indian Affairs, Room 418, Federal Building,
522 Minnesota Avenue, NW, Bemidji, Minnesota 56601-3062
and in such other sites as may be deemed appropriate by the Project
Director. Such other sites may include, but not be limited to:
Elbow Lake Community Center, R.R. 2, Waubun, Minnesota 56589
Postmaster, Callaway, Minnesota 56521
Community Center, Route 2, Bagley, Minnesota 56621
Community Center, Star Route, Mahnomen, Minnesota 56557
Postmaster, Mahnomen, Minnesota 56557
Rice Lake Community Center, Route 2, Bagley, Minnesota 56621
Postmaster, Ogema, Minnesota 56569
Pine Point Community Center, Ponsford, Minnesota 56575
Postmaster, White Earth, Minnesota 56591
White Earth IHS, White Earth, Minnesota 56591
Postmaster, Ponsford, Minnesota 56575
American Indian Center, 1113 West Broadway, Minneapolis, Minnesota 55411
American Indian Center, 1530 East Franklin Avenue, Minneapolis,
Minnesota 55404
American Indian Center, 341 University Avenue, St. Paul, Minnesota 55103
Little Earth of United Tribes Community Services, 2501 Cedar Avenue
South, Minneapolis, Minnesota 55404
Naytahwaush Community Center, Naytahwaush, Minnesota 56566
The Project Director shall provide a certificate showing when the
notice of the preliminary determination was forwarded for posting, and
to which locations. A posting certificate showing the date and place of
posting shall be signed by the person or official who performs the act
and returned to the Project Director. The Project Director shall file
with the administrative judge the original posting certificates and the
Project Director's certificate of mailing showing the posting locations
and when the notice of the preliminary determination was forwarded for
posting.
(3) If no written request for hearing or written objection is
received in the office of the administrative judge within the forty (40)
days of issuance of the notice, the administrative judge shall issue a
final order declaring the preliminary determination to be final thirty
(30) days from the date on which the final order is mailed to each party
in interest.
(c) When the administrative judge determines either before or after
issuance of a preliminary determination that there are issues which
require resolution, or when a party objects to the preliminary
determination and/or requests a hearing, the administrative judge may
either resolve the issues informally or schedule and conduct a
prehearing conference and/or a hearing. Any prehearing conference,
hearing, or rehearing, conducted by the administrative judge shall be
governed insofar as practicable by the regulations applicable to other
hearings under this part and the general rules in subpart B of this
part. After receipt of the testimony and/or evidence, if any, the
administrative judge shall enter a final order determining the heirs of
the decedent, which shall become final thirty (30) days from the date on
which the final order is mailed to each party in interest.
(d) The final order determining the heirs of the decedent shall
contain, where applicable, the names, birth dates, relationships to the
decedent, and shares of heirs, or the fact that the decedent died
without heirs.
[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991; 57 FR 2319, Jan.
21, 1992, as amended at 64 FR 13363, Mar. 18, 1999]
Sec. 4.353 Record.
(a) The administrative judge shall lodge the original record with
the Project Director.
(b) The record shall contain, where applicable, the following
materials:
(1) A copy of the posted public notice of preliminary determination
and/or hearing showing the posting certifications, the administrative
judge's certificate of mailing, the posting certificates, and the
Project Director's certificate of mailing.
[[Page 91]]
(2) A copy of each notice served on parties in interest, with proof
of mailing;
(3) The record of evidence received, including any transcript made
of testimony;
(4) Data for heirship finding and family history, and data
supplementary thereto;
(5) The final order determining the heirs of the decedent and the
administrative judge's notices thereof; and
(6) Any other material or documents deemed relevant by the
administrative judge.
Sec. 4.354 Reconsideration or rehearing.
(a) Any party aggrieved by the final order of the administrative
judge may, within thirty (30) days after the date of mailing such
decision, file with the administrative judge a written petition for
reconsideration and/or rehearing. Such petition must be under oath and
must state specifically and concisely the grounds upon which it is
based. If it is based upon newly discovered evidence, it shall be
accompanied by affidavits of witnesses stating fully what the new
evidence or testimony is to be. It shall also state justifiable reasons
for the prior failure to discover and present the evidence.
(b) If proper grounds are not shown, or if the petition is not filed
within the time prescribed in paragraph (a) of this section, the
administrative judge shall issue an order denying the petition and shall
set forth therein the reasons therefor. The administrative judge shall
serve copies of such order on all parties in interest.
(c) If the petition appears to show merit, or if the administrative
judge becomes aware of sufficient additional evidence to justify
correction of error even without the filing of a petition, or upon
remand from the Board following an appeal resulting in vacating the
final order, the administrative judge shall cause copies of the
petition, supporting papers, and other data, or in the event of no
petition an order to show cause or decision of the Board vacating the
final order in appropriate cases, to be served on all parties in
interest. The parties in interest will be allowed a reasonable,
specified time within which to submit answers or legal briefs in
opposition to the petition or order to show cause or Board decision. The
administrative judge shall then reconsider, with or without hearing, the
issues of fact and shall issue a final order upon reconsideration,
affirming, modifying, or vacating the original final order and making
such further orders as are deemed warranted. The final order upon
reconsideration shall be served on all parties in interest and shall
become final thirty (30) days from the date on which it is mailed.
(d) Successive petitions for reconsideration and/or rehearing shall
not be permitted. Nothing herein shall be considered as a bar to the
remand of a case by the Board for further reconsideration, hearing, or
rehearing after appeal.
Sec. 4.355 Omitted compensation.
When, subsequent to the issuance of a final order determining heirs
under Sec. 4.352, it is found that certain additional compensation had
been due the decedent and had not been included in the report of
compensation, the report shall be modified administratively by the
Project Director. Copies of such modification shall be furnished to all
heirs as previously determined and to the appropriate administrative
judge.
Sec. 4.356 Appeals.
(a) A party aggrieved by a final order of an administrative judge
under Sec. 4.352, or by a final order upon reconsideration of an
administrative judge under Sec. 4.354, may appeal to the Board (address:
Board of Indian Appeals, Office of Hearings and Appeals, 801 North
Quincy Street, Arlington, Virginia 22203). A copy of the notice of
appeal must also be sent to the Project Director and to the
administrative judge whose decision is being appealed.
(b) The notice of appeal must be filed with the Board no later than
thirty (30) days from the date on which the final order of the
administrative judge was mailed, or, if there has been a petition for
reconsideration or rehearing filed, no later than thirty (30) days from
the date on which the final order upon reconsideration of the
administrative judge was mailed. A notice of appeal
[[Page 92]]
that is not timely filed will be dismissed.
(c) The Project Director shall ensure that the record is
expeditiously forwarded to the Board.
(d) Within thirty (30) days after the notice of appeal is filed, the
appellant shall file a statement of the reasons why the final order or
final order upon reconsideration is in error. If the Board finds that
the appellant has set forth sufficient reasons for questioning the final
order or final order upon reconsideration, the Board will issue an order
giving all parties in interest an opportunity to respond, following
which a decision shall be issued. If the Board finds that the appellant
has not set forth sufficient reasons for questioning the final order,
the Board may issue a decision on the appeal without further briefing.
(e) The Board may issue a decision affirming, modifying, or vacating
the final order or final order upon reconsideration. A decision on
appeal by the Board either affirming or modifying the final order or
final order upon reconsideration shall be final for the Department of
the Interior. In the event the final order or final order upon
reconsideration is vacated, the proceeding shall be remanded to the
appropriate administrative judge for reconsideration and/or rehearing.
[56 FR 61383, Dec. 3, 1991, as amended at 67 FR 4368, Jan. 30, 2002]
Sec. 4.357 Guardians for minors and incompetents.
Persons less than 18 years of age and other legal incompetents who
are parties in interest may be represented at all hearings by legally
appointed guardians or by guardians ad litem appointed by the
administrative judge.c
Subpart E--Special Rules Applicable to Public Land Hearings and Appeals
Authority: Sections 4.470 to 4.478 also issued under authority of
sec. 2, 48 Stat. 1270; 43 U.S.C. 315a.
Cross Reference: See subpart A for the authority, jurisdiction and
membership of the Board of Land Appeals within the Office of Hearings
and Appeals. For general rules applicable to proceedings before the
Board of Land Appeals as well as the other Appeals Boards of the Office
of Hearings and Appeals, see subpart B.
Appeals Procedures
appeals procedures; general--Table of Contents
Sec. 4.400 Definitions.
As used in this subpart:
(a) Secretary means the Secretary of the Interior or his authorized
representatives.
(b) Bureau means Bureau of Land Management.
(c) Board means the Board of Land Appeals in the Office of Hearings
and Appeals, Office of the Secretary. The terms office or officer as
used in this subpart include Board where the context requires.
(d) Administrative law judge means an administrative law judge in
the Office of Hearings and Appeals, Office of the Secretary, appointed
under section 3105 of title 5 of the United States Code.
Sec. 4.401 Documents.
(a) Grace period for filing. Whenever a document is required under
this subpart to be filed within a certain time and it is not received in
the proper office during that time, the delay in filing will be waived
if the document is filed not later than 10 days after it was required to
be filed and it is determined that the document was transmitted or
probably transmitted to the office in which the filing is required
before the end of the period in which it was required to be filed.
Determinations under this paragraph shall be made by the officer before
whom is pending the appeal in connection with which the document is
required to be filed.
(b) Transferees and encumbrancers. Transferees and encumbrancers of
land the title to which is claimed or is in the process of acquisition
under any public land law shall, upon filing notice of the transfer or
encumbrance in the proper land office, become entitled to receive and be
given the same notice of any appeal, or other proceeding thereafter
initiated affecting such interest which is required to be given to a
party to the proceeding. Every such notice of a transfer or encumbrance
will be
[[Page 93]]
noted upon the records of the land office. Thereafter such transferee or
encumbrancer must be made a party to any proceedings thereafter
initiated adverse to the entry.
(c) Service of documents. (1) Wherever the regulations in this
subpart require that a copy of a document be served upon a person,
service may be made by delivering the copy personally to him or by
sending the document by registered or certified mail, return receipt
requested, to his address of record in the Bureau.
(2) In any case service may be proved by an acknowledgment of
service signed by the person to be served. Personal service may be
proved by a written statement of the person who made such service.
Service by registered or certified mail may be proved by a post-office
return receipt showing that the document was delivered at the person's
record address or showing that the document could not be delivered to
such person at his record address because he had moved therefrom without
leaving a forwarding address or because delivery was refused at that
address or because no such address exists. Proof of service of a copy of
a document should be filed in the same office in which the document is
filed except that proof of service of a notice of appeal should be filed
in the office of the officer to whom the appeal is made, if the proof of
service is filed later than the notice of appeal.
(3) A document will be considered to have been served at the time of
personal service, of delivery of a registered or certified letter, or of
the return by post office of an undelivered registered or certified
letter.
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971]
Sec. 4.402 Summary dismissal.
An appeal to the Board will be subject to summary dismissal by the
Board for any of the following causes:
(a) If a statement of the reasons for the appeal is not included in
the notice of appeal and is not filed within the time required;
(b) If the notice of appeal is not served upon adverse parties
within the time required; and
(c) If the statement of reasons, if not contained in the notice of
appeal, is not served upon adverse parties within the time required.
(d) If the statement of standing required by Sec. 4.412(b) is not
filed with the Board or is not served upon adverse parties within the
time required.
[36 FR 7186, Apr. 15, 1971, as amended at 47 FR 26392, June 18, 1982]
Sec. 4.403 Finality of decision; reconsideration.
A decision of the Board shall constitute final agency action and be
effective upon the date of issuance, unless the decision itself provides
othewise. The Board may reconsider a decision in extraordinary
circumstances for sufficient reason. A petition for reconsideration
shall be filed within 60 days after the date of a decision. The petition
shall, at the time of filing, state with particularity the error claimed
and include all arguments and supporting documents. The petition may
include a request that the Board stay the effectiveness of the decision
for which reconsideration is sought. No answer to a petition for
reconsideration is required unless so ordered by the Board. The filing,
pendency, or denial of a petition for reconsideration shall not operate
to stay the effectiveness or affect the finality of the decision
involved unless so ordered by the Board. A petition for reconsideration
need not be filed to exhaust administrative remedies.
[52 FR 21308, June 5, 1987]
appeals to the board of land appeals
Sec. 4.410 Who may appeal.
(a) Any party to a case who is adversely affected by a decision of
an officer of the Bureau of Land Management or of an administrative law
judge shall have a right to appeal to the Board, except--
(1) As otherwise provided in Group 2400 of chapter II of this title,
(2) To the extent that decisions of Bureau of Land Management
officers must first be appealed to an administrative law judge under
Sec. 4.470 and part 4100 of this title,
(3) Where a decision has been approved by the Secretary, and
[[Page 94]]
(4) As provided in paragraph (b) of this section.
(b) For decisions rendered by Departmental officials relating to
land selections under the Alaska Native Claims Settlement Act, as
amended, any party who claims a property interest in land affected by
the decision, an agency of the Federal Government or a regional
corporation shall have a right to appeal to the Board.
[47 FR 26392, June 18, 1982]
Sec. 4.411 Appeal; how taken, mandatory time limit.
(a) A person who wishes to appeal to the Board must file in the
office of the officer who made the decision (not the Board) a notice
that he wishes to appeal. A person served with the decision being
appealed must transmit the notice of appeal in time for it to be filed
in the office where it is required to be filed within 30 days after the
date of service. If a decision is published in the Federal Register, a
person not served with the decision must transmit a notice of appeal in
time for it to be filed within 30 days after the date of publication.
(b) The notice of appeal must give the serial number or other
identification of the case and may include a statement of reasons for
the appeal, a statement of standing if required by Sec. 4.412(b), and
any arguments the appellant wishes to make.
(c) No extension of time will be granted for filing the notice of
appeal. If a notice of appeal is filed after the grace period provided
in Sec. 4.401(a), the notice of appeal will not be considered and the
case will be closed by the officer from whose decision the appeal is
taken. If the notice of appeal is filed during the grace period provided
in Sec. 4.401(a) and the delay in filing is not waived, as provided in
that section, the notice of appeal will not be considered and the appeal
will be dismissed by the Board.
(R.S. 2478, as amended, 43 U.S.C. 1201; sec. 25, Alaska Native Claims
Settlement Act, as amended, 43 U.S.C. 1601-1628; and the Administrative
Procedure Act, 5 U.S.C. 551, et seq.)
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 49
FR 6373, Feb. 21, 1984]
Sec. 4.412 Statement of reasons, statement of standing, written arguments, briefs.
(a) If the notice of appeal did not include a statement of the
reasons for the appeal, the appellant shall file such a statement with
the Board (address: Board of Land Appeals, Office of Hearings and
Appeals, 801 North Quincy Street, Arlington, VA 22203) within 30 days
after the notice of appeal was filed. In any case, the Board will permit
the appellant to file additional statements of reasons and written
arguments or briefs within the 30-day period after the notice of appeal
was filed.
(b) Where the decision being appealed relates to land selections
under the Alaska Native Claims Settlement Act, as amended, the appellant
also shall file with the Board a statement of facts upon which the
appellant relies for standing under Sec. 4.410(b) within 30 days after
filing of the notice of appeal. The statement may be included with the
notice of appeal filed pursuant to Sec. 4.411 or the statement of
reasons filed pursuant to paragraph (a) of this section or may be filed
as a separate document.
(c) Failure to file the statement of reasons and statement of
standing within the time required will subject the appeal to summary
dismissal as provided in Sec. 4.402, unless the delay in filing is
waived as provided in Sec. 4.401(a).
[47 FR 26392, June 18, 1982, as amended at 67 FR 4368, Jan. 30, 2002]
Sec. 4.413 Service of notice of appeal and of other documents.
(a) The appellant shall serve a copy of the notice of appeal and of
any statement of reasons, written arguments, or briefs on each adverse
party named in the decision from which the appeal is taken and on the
Office of the Solicitor as identified in paragraph (c) of this section.
Service must be accomplished in the manner prescribed in Sec. 4.401(c)
of this title not later than 15 days after filing the document.
(b) Failure to serve within the time required will subject the
appeal to summary dismissal as provided in Sec. 4.402 of this title.
(c)(1)(i) If the appeal is taken from a decision of the Director,
Minerals Management Service, the appellant will
[[Page 95]]
serve the Associate Solicitor, Division of Mineral Resources, Office of
the Solicitor, U.S. Department of the Interior, Washington, D.C. 20240.
(ii) If the appeal is taken from a decision of the Director, Bureau
of Land Management, the appellant will serve:
(A) The Associate Solicitor, Division of Land and Water Resources,
Office of the Solicitor, U.S. Department of the Interior, Washington,
D.C. 20240, if the decision concerns the use and disposition of public
lands, including land selections under the Alaska Native Claims
Settlement Act, as amended;
(B) The Associate Solicitor, Division of Mineral Resources, Office
of the Solicitor, U.S. Department of the Interior, Washington, D.C.
20240, if the decision concerns the use and disposition of mineral
resources.
(c)(2) If the appeal is taken from a decision of other Bureau of
Land Management (BLM) offices listed below (see Sec. 1821.2-1(d) of this
title), the appellant shall serve the appropriate official of the Office
of the Solicitor as identified:
(i) BLM Alaska State Office, including all District and Area Offices
within its area of jurisdiction:
Regional Solicitor, Alaska Region, U.S. Department of the Interior, 4230
University Drive, Suite 300, Anchorage, AK 99508-4626;
(ii) BLM Arizona State Office, including all District and Area
Offices within its area of jurisdiction:
Field Solicitor, U.S. Department of the Interior, One Renaissance
Square, Two North Central, Suite 1130, Phoenix, AZ 85004-2383;
(iii) BLM California State Office, including all District and Area
Offices within its area of jurisdiction:
Regional Solicitor, Pacific Southwest Region, U.S. Department of the
Interior, 2800 Cottage Way, Room E-2753, Sacramento, CA 95825-1890;
(iv) BLM Colorado State Office, including all District and Area
Offices within its area of jurisdiction:
Regional Solicitor, Rocky Mountain Region, U.S. Department of the
Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215;
(v) BLM Eastern States Office, including all District and Area
Offices within its area of jurisdiction:
(A) The Associate Solicitor, Division of Land and Water Resources,
Office of the Solicitor, U.S. Department of the Interior, Washington,
D.C. 20240, if the decision concerns the use and disposition of public
lands, including land selections under the Alaska Native Claims
Settlement Act, as amended;
(B) The Associate Solicitor, Division of Mineral Resources, Office
of the Solicitor, U.S. Department of the Interior, Washington, D.C.
20240, if the decision concerns the use and disposition of mineral
resources.
(vi) BLM Idaho State Office, including all District and Area Offices
within its area of jurisdiction:
Field Solicitor, U.S. Department of the Interior, Federal Building &
U.S. Courthouse, 550 West Fort Street, MSC 020, Boise, ID 83724;
(vii) BLM Montana State Office, including all District and Area
Offices within its area of jurisdiction:
Regular U.S. Mail: Field Solicitor, U.S. Department of the Interior,
P.O. Box 31394, Billings, MT 59107-1394;
Other Delivery Services: Field Solicitor, U.S. Department of the
Interior, 316 North 26th Street, Room 3004, Billings, MT 59101;
(viii) BLM Nevada State Office, including all District and Area
Offices within its area of jurisdiction:
Regional Solicitor, Pacific Southwest Region, U.S. Department of the
Interior, 2800 Cottage Way, Room E-2753, Sacramento, CA 95825-1890;
(ix) BLM New Mexico State Office, including all District and Area
Offices within its area of jurisdiction:
Regular U.S. Mail: Field Solicitor, U.S. Department of the Interior,
P.O. Box 1042, Santa Fe, NM 87504-1042;
Other Delivery Services: Field Solicitor, U.S. Department of the
Interior, 150 Washington Avenue 207, Santa Fe, NM 87501;
(x) BLM Oregon State Office, including all District and Area Offices
within its area of jurisdiction:
Regional Solicitor, Pacific Northwest Region, U.S. Department of the
Interior, Lloyd 500 Building, Suite 607, 500 N.E. Multnomah Street,
Portland, OR 97232;
(xi) BLM Utah State Office, including all District and Area Offices
within its area of jurisdiction:
Field Solicitor, U.S. Department of the Interior, 6201 Federal Building,
125 South State Street, Salt Lake City, UT 84138-1180;
[[Page 96]]
(xii) BLM Wyoming State Office, including all District and Area
Offices within its area of jurisdiction:
Regular U.S. Mail: Regional Solicitor, Rocky Mountain Region, U.S.
Department of the Interior, P.O. Box 25007 (D-105), Denver Federal
Center, Denver, CO 80225;
Other Delivery Services: Regional Solicitor, Rocky Mountain Region, U.S.
Department of the Interior, 755 Parfet Street, Suite 151, Lakewood, CO
80215;
(3) If the appeal is taken from the decision of an administrative
law judge, the appellant shall serve the attorney from the Office of the
Solicitor who represented the Bureau of Land Management or the Minerals
Management Service at the hearing or, in the absence of a hearing, who
was served with a copy of the decision by the administrative law judge.
If the hearing involved a mining claim on national forest land, the
appellant shall serve the attorney from the Office of General Counsel,
U.S. Department of Agriculture, who represented the U.S. Forest Service
at the hearing or, in the absence of a hearing, who was served with a
copy of the decision by the administrative law judge.
(4) Parties shall serve the Office of the Solicitor as identified in
this paragraph until such time that a particular attorney of the Office
of the Solicitor files and serves a Notice of Appearance or Substitution
of Counsel. Thereafter, parties shall serve the Office of the Solicitor
as indicated by the Notice of Appearance or Substitution of Counsel.
(d) Proof of such service as required by Sec. 4.401(c) must be filed
with the Board (address: Board of Land Appeals, Office of Hearings and
Appeals, 801 North Quincy Street, Arlington, VA 22203), within 15 days
after service unless filed with the notice of appeal.
[53 FR 13267, Apr. 22, 1988, as amended at 60 FR 58242, Nov. 27, 1995;
61 FR 40348, Aug. 2, 1996; 67 FR 4368, Jan. 30, 2002]
Sec. 4.414 Answers.
If any party served with a notice of appeal wishes to participate in
the proceedings on appeal, he must file an answer within 30 days after
service on him of the notice of appeal or statement of reasons where
such statement was not included in the notice of appeal. If additional
reasons, written arguments, or briefs are filed by the appellant, the
adverse party shall have 30 days after service thereof on him within
which to answer them. The answer must state the reasons why the answerer
thinks the appeal should not be sustained. Answers must be filed with
the Board (address: Board of Land Appeals, Office of Hearings and
Appeals, 801 North Quincy Street, Arlington, VA 22203) and must be
served on the appellant, in the manner prescribed in Sec. 4.401(c), not
later than 15 days thereafter. Proof of such service as required by
Sec. 4.401(c), must be filed with the Board (see address above) within
15 days after service. Failure to answer will not result in a default.
If an answer is not filed and served within the time required, it may be
disregarded in deciding the appeal, unless the delay in filing is waived
as provided in Sec. 4.401(a).
[36 FR 7186, Apr. 15 1971, as amended at 67 FR 4368, Jan. 30, 2002]
actions by board of land appeals
Sec. 4.415 Request for hearings on appeals involving questions of fact.
Either an appellant or an adverse party may, if he desires a hearing
to present evidence on an issue of fact, request that the case be
assigned to an administrative law judge for such a hearing. Such a
request must be made in writing and filed with the Board within 30 days
after answer is due and a copy of the request should be served on the
opposing party in the case. The allowance of a request for hearing is
within the discretion of the Board, and the Board may, on its own
motion, refer any case to an administrative law judge for a hearing on
an issue of fact. If a hearing is ordered, the Board will specify the
issues upon which the hearing is to be held and the hearing will be held
in accordance with Secs. 4.430 to 4.439, and the general rules in
subpart B of this part.
Hearings Procedures
hearings procedures; general--Table of Contents
Sec. 4.420 Applicability of general rules.
To the extent they are not inconsistent with these special rules,
the general rules of the Office of Hearings
[[Page 97]]
and Appeals in subpart B of this part are also applicable to hearings,
procedures.