[Title 43 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2013 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          Title 43

Public Lands: Interior


________________________

Parts 1 to 999

                         Revised as of October 1, 2013

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2013
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 43:
          SUBTITLE A--Office of the Secretary of the Interior        3
          SUBTITLE B--Regulations Relating to Public Lands         589
          Chapter I--Bureau of Reclamation, Department of the 
          Interior                                                 591
  Finding Aids:
      Table of CFR Titles and Chapters........................     727
      Alphabetical List of Agencies Appearing in the CFR......     747
      List of CFR Sections Affected...........................     757

[[Page iv]]





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

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

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

[[Page v]]



                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2013), 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 
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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.

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
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the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

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.
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alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

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available at www.ecfr.gov.

    Charles A. Barth,
    Director,
    Office of the Federal Register.
    October 1, 2013.







[[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, 2013.

    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. An index to chapter II appears in the Finding 
Aids section of the second volume.

    For this volume, Bonnie Fritts was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Michael L. 
White, assisted by Ann Worley.

[[Page 1]]



                    TITLE 43--PUBLIC LANDS: INTERIOR




                   (This book contains parts 1 to 999)

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

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

            SUBTITLE B--Regulations Relating to Public Lands

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

[[Page 3]]

           Subtitle A--Office of the Secretary of the Interior

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

Part                                                                Page
1               Practices before the Department of the 
                    Interior................................           5
2               Freedom of Information Act; records and 
                    testimony...............................           6
3               Preservation of American antiquities........          47
4               Department hearings and appeals procedures..          49
5               Commercial filming and similar projects and 
                    still photography on certain areas under 
                    department jurisdiction.................         154
6               Patent regulations..........................         158
7               Protection of archaeological resources......         166
8               Joint policies of the Departments of the 
                    Interior and of the Army relative to 
                    reservoir project lands.................         183
9               Intergovernmental review of Department of 
                    the Interior programs and activities....         184
10              Native American graves protection and 
                    repatriation regulations................         187
11              Natural resource damage assessments.........         216
12              Administrative and audit requirements and 
                    cost principles for assistance programs.         277
13              Vending facilities operated by blind persons         338
14              Petitions for rulemaking....................         340
15              Key Largo Coral Reef Preserve...............         341
16              Conservation of helium......................         342
17              Nondiscrimination in federally assisted 
                    programs of the Department of the 
                    Interior................................         343
18              New restrictions on lobbying................         382
19              Wilderness preservation.....................         393
20              Employee responsibilities and conduct.......         396
21              Occupancy of cabin sites on public 
                    conservation and recreation areas.......         407

[[Page 4]]

22              Administrative claims under the Federal Tort 
                    Claims Act and indemnification of 
                    Department of the Interior employees....         411
23              Surface exploration, mining and reclamation 
                    of lands................................         413
24              Department of the Interior fish and wildlife 
                    policy: State-Federal relationships.....         421
26              Grants to States for establishing Youth 
                    Conservation Corps programs.............         426
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...........         431
28              Fire protection emergency assistance........         443
29              Trans-Alaska Pipeline Liability Fund........         443
30              Indian probate hearings procedures..........         450
32              Grants to States for establishing Young 
                    Adult Conservation Corps (YACC) program.         480
33              Allocation of duty-free watches from the 
                    Virgin Islands, Guam, and American Samoa 
                    [Note]..................................         490
34              Requirements for equal opportunity during 
                    construction and operation of the Alaska 
                    Natural Gas Transportation System.......         490
35              Administrative remedies for fraudulent 
                    claims and statements...................         501
36              Transportation and utility systems in and 
                    across, and access into, conservation 
                    system units in Alaska..................         516
37              Cave management.............................         526
38              Pay of U.S. Park Police--interim geographic 
                    adjustments.............................         529
39              Collection of debts by administrative wage 
                    garnishment.............................         530
41              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         531
44              Financial assistance, local governments.....         547
45              Conditions and prescriptions in FERC 
                    hydropower licenses.....................         553
46              Implementation of the National Environmental 
                    Policy Act of 1969......................         573

[[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 ofSec. 1.4 or by 
disciplinary action taken pursuant toSec. 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_FREEDOM OF INFORMATION ACT; RECORDS AND TESTIMONY--
Table of Contents



                         Subpart A_Introduction

Sec.
2.1 What should you know up front?
2.2 What kinds of records are not covered by the regulations in subparts 
          A through I of this part?

                     Subpart B_How to Make a Request

2.3 Where should you send a FOIA request?
2.4 Does where you send your request affect its processing?
2.5 How should you describe the records you seek?
2.6 How will fee information affect the processing of your request?

[[Page 7]]

2.7 What information should you include about your fee category?
2.8 Can you ask for records to be disclosed in a particular form or 
          format?
2.9 What if your request seeks records about another person?
2.10 May you ask for the processing of your request to be expedited?
2.11 What contact information should your request include?

                      Subpart C_Processing Requests

2.12 What should you know about how bureaus process requests?
2.13 How do consultations and referrals work?

                Subpart D_Timing of Responses to Requests

2.14 In what order are responses usually made?
2.15 What is multitrack processing and how does it affect your request?
2.16 What is the basic time limit for responding to a request?
2.17 When does the basic time limit begin for misdirected FOIA requests?
2.18 When can the bureau suspend the basic time limit?
2.19 When may the bureau extend the basic time limit?
2.20 When will expedited processing be provided and how will it affect 
          your request?

                     Subpart E_Responses to Requests

2.21 How will the bureau respond to requests?
2.22 How will the bureau grant requests?
2.23 When will the bureau deny a request or procedural benefits?
2.24 How will the bureau deny requests?
2.25 What if the requested records contain both exempt and nonexempt 
          material?

               Subpart F_Handling Confidential Information

2.26 How will the bureau interact with the submitter of possibly 
          confidential information?
2.27 When will the bureau notify a submitter of a request for their 
          possibly confidential information?
2.28 What information will the bureau include when it notifies a 
          submitter of a request for their possibly confidential 
          information?
2.29 When will the bureau not notify a submitter of a request for their 
          possibly confidential information?
2.30 How and when may a submitter object to disclosure of confidential 
          information?
2.31 What must a submitter include in a detailed Exemption 4 objection 
          statement?
2.32 How will the bureau consider the submitter's objections?
2.33 What if the bureau determines it will disclose information over the 
          submitter's objections?
2.34 Will a submitter be notified of a FOIA lawsuit?
2.35 Will you receive notification of activities involving the 
          submitter?
2.36 Can a bureau release information protected by Exemption 4?

                             Subpart G_Fees

2.37 What general principles govern fees?
2.38 What are the requester fee categories?
2.39 How does your requester category affect the fees you are charged?
2.40 How will fee amounts be determined?
2.41 What search fees will you have to pay?
2.42 What duplication fees will you have to pay?
2.43 What review fees will you have to pay?
2.44 What fees for other services will you have to pay?
2.45 When will the bureau waive fees?
2.46 When may you ask the bureau for a fee waiver?
2.47 How will the bureau notify you if it denies your fee waiver 
          request?
2.48 How will the bureau evaluate your fee waiver request?
2.49 When will you be notified of anticipated fees?
2.50 When will the bureau require advance payment?
2.51 What if the bureau needs clarification about fee issues?
2.52 How will you be billed?
2.53 How will the bureau collect fees owed?
2.54 When will the bureau combine or aggregate requests?
2.55 What if other statutes require the bureau to charge fees?
2.56 May the bureau waive or reduce your fees at its discretion?

                    Subpart H_Administrative Appeals

2.57 When may you file an appeal?
2.58 How long do you have to file an appeal?
2.59 How do you file an appeal?
2.60 Who makes decisions on appeals?
2.61 How are decisions on appeals issued?
2.62 When can you expect a decision on your appeal?
2.63 Can you receive expedited processing of appeals?
2.64 Must you submit an appeal before seeking judicial review?

                      Subpart I_General Information

2.65 Where are records made available?
2.66 What are public liaisons?
2.67 When will the Department make records available without a FOIA 
          request?

[[Page 8]]

2.68 How will FOIA materials be preserved?
2.69 How will a bureau handle a request for federally-funded research 
          data?
2.70 What definitions apply to subparts A through I of this part?

           Subpart J_Declassification of Classified Documents

2.200 Declassification of classified documents.

                          Subpart K_Privacy Act

2.220 Purpose and scope.
2.221 Definitions.
2.222 Records subject to Privacy Act.
2.223 Standards for maintenance of records subject to the Act.
2.224 [Reserved]
2.225 Federal Register notices describing systems of records.
2.226 Assuring integrity of records.
2.227 Conduct of employees.
2.228 Government contracts.
2.229-2.230 [Reserved]
2.2316 Disclosure of records.
2.232 Accounting for disclosures.
2.233-2.234 [Reserved]
2.235 Request for notification of existence of records: Submission.
2.236 Requests for notification of existence of records: Action on.
2.237 Requests for access to records.
2.238 Requests for access to records: Submission.
2.239 Requests for access to records: Initial decision.
2.240 Requests for notification of existence of records and for access 
          to records: Appeals.
2.241 Requests for access to records: Special situations.
2.242-2.244 [Reserved]
2.245 Amendment of records.
2.246 Petitions for amendment: Submission and form.
2.247 Petitions for amendment: Processing and initial decision.
2.248 Petitions for amendments: Time limits for processing.
2.249 Petitions for amendment: Appeals.
2.250 Petitions for amendment: Action on appeals.
2.251 [Reserved]
2.252 Statements of disagreement.
2.253 [Reserved]
2.254 Exemptions.

   Subpart L_Legal Process: Testimony by Employees and Production of 
                                 Records

                           General Information

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

                     Responsibilities of Requesters

2.282 How can I obtain employee testimony or Department records?
2.283 If I serve a subpoena duces tecum, must I also submit a Touhy 
          Request?
2.284 What information must I put in my Touhy Request?
2.285 How much will I be charged?
2.286 Can I get an authenticated copy of a Department record?

                   Responsibilities of the Department

2.287 How will the Department process my Touhy Request?
2.288 What criteria will the Department consider in responding to my 
          Touhy Request?

                      Responsibilities of Employees

2.289 What must I, as an employee, do upon receiving a request?
2.290 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--Fee Schedule
Appendix B to Part 2--Mineral Leasing Act and Mineral Leasing Act for 
          Acquired Lands--Special Rules

    Authority: 5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 3717; 43 U.S.C. 
1460, 1461.

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



                         Subpart A_Introduction

    Source: 77 FR 76902, Dec. 31, 2012, unless otherwise noted.



Sec.  2.1  What should you know up front?

    (a) Subparts A through I of this part contain the rules that the 
Department follows in processing records under the Freedom of 
Information Act (FOIA), 5 U.S.C. 552.
    (b) Definitions of terms used in Subparts A through I of this part 
are found atSec. 2.70.
    (c) Subparts A through I of this part should be read in conjunction 
with the text of the FOIA and the OMB Fee Guidelines.
    (d) The Department's FOIA Handbook and its attachments contain 
detailed information about Department procedures for making FOIA 
requests and descriptions of the types of records maintained by 
different Department bureaus or offices. This resource is available at 
http://www.doi.gov/foia/guidance.cfm.

[[Page 9]]

    (e) Requests made by individuals for records about themselves under 
the Privacy Act of 1974, 5 U.S.C. 552a, are processed under subparts A 
through I and subpart K of this part.
    (f) Part 2 does not entitle any person to any service or to the 
disclosure of any record that is not required under the FOIA.
    (g) Before you file a FOIA request, you are encouraged to review the 
Department's electronic FOIA libraries at http://www.doi.gov/foia/
libraries.cfm. The material you seek may be immediately available 
electronically at no cost.



Sec.  2.2  What kinds of records are not covered by the regulations
in subparts A through I of this part?

    Subparts A through I of this part do not apply to records that fall 
under the law enforcement exclusions in 5 U.S.C. 552(c)(1)-(3). These 
exclusions may be used only in the limited circumstances delineated by 
the statute and require both prior approval from the Office of the 
Solicitor and the recording of their use and approval process.



                     Subpart B_How To Make a Request

    Source: 77 FR 76902, Dec. 31, 2012, unless otherwise noted.



Sec.  2.3  Where should you send a FOIA request?

    (a) The Department does not have a central location for submitting 
FOIA requests and it does not maintain a central index or database of 
records in its possession. Instead, the Department's records are 
decentralized and maintained by various bureaus and offices throughout 
the country.
    (b) To make a request for Department records, you must write 
directly to the bureau that you believe maintains those records.
    (c) Address requests to the appropriate FOIA contact in the bureau 
that maintains the requested records. The Department's FOIA Web site, 
http://www.doi.gov/foia/index.cfm, lists the physical and email 
addresses of each bureau's FOIA Officer, along with other appropriate 
FOIA contacts at http://www.doi.gov/foia/contacts.cfm.
    (d) Questions about where to send a FOIA request should be directed 
to the bureau that manages the underlying program or to the appropriate 
FOIA Public Liaison, as discussed inSec. 2.66 of this part.



Sec.  2.4  Does where you send your request affect its processing?

    (a) A request to a particular bureau component (for example, a 
request addressed to a regional or field office) will be presumed to 
seek only records from that particular component.
    (b) If you seek records from an entire bureau, submit your request 
to the bureau FOIA Officer. The bureau FOIA Officer will forward it to 
the bureau component(s) that he or she believes has or are likely to 
have responsive records.
    (c) If a request to a bureau states that it seeks records located at 
another specific component of the same bureau, the appropriate FOIA 
contact will forward the request to the other component.
    (d) If a request to a bureau states that it seeks records from other 
unspecified components within the same bureau, the appropriate FOIA 
contact will send the request to the Bureau FOIA Officer. He or she will 
forward it to the components that the bureau FOIA Officer believes have 
or are likely to have responsive records.
    (e) If a request to a bureau states that it seeks records of another 
specified bureau, the bureau will route the misdirected request to the 
specified bureau for response.
    (f) If a request to a bureau states that it seeks records from other 
unspecified bureaus, the bureau's FOIA Officer may forward the request 
to those bureaus which he or she believes have or are likely to have 
responsive records. If the bureau FOIA Officer forwards the request, 
they will notify you in writing and provide the name of a contact in the 
other bureau(s). If it does not forward the request, the bureau will 
return it to you, advise you to submit the request directly to the other 
bureaus, notify you that it cannot comply with the request, and close 
the request.

[[Page 10]]



Sec.  2.5  How should you describe the records you seek?

    (a) You must reasonably describe the records sought. A reasonable 
description contains sufficient detail to enable bureau personnel 
familiar with the subject matter of the request to locate the records 
with a reasonable amount of effort.
    (b) You should include as much detail as possible about the specific 
records or types of records that you are seeking. This will assist the 
bureau in identifying the requested records (for example, time frames 
involved or specific personnel who may have the requested records). For 
example, whenever possible, identify:
    (1) The date, title or name, author, recipient, and subject of any 
particular records you seek;
    (2) The office that created the records you seek;
    (3) The timeframe for which you are seeking records; and
    (4) Any other information that will assist the bureau in locating 
the records.
    (c) The bureau's FOIA Public Liaison can assist you in formulating 
or reformulating a request in an effort to better identify the records 
you seek.
    (d) If the request does not reasonably describe the records sought, 
the bureau will inform you what additional information is needed. It 
will also notify you that it will not be able to comply with your FOIA 
request unless you provide the additional information requested within 
20 workdays. If you receive this sort of response, you may wish to 
discuss it with the bureau's designated FOIA contact or its FOIA Public 
Liaison (seeSec. 2.66 of this part). If the bureau does not receive a 
written response within 20 workdays after asking for additional 
information, it will presume that you are no longer interested in the 
records and will close the file on the request.

[77 FR 76902, Dec. 31, 2012; 78 FR 6216, Jan. 30, 2013]



Sec.  2.6  How will fee information affect the processing of your
request?

    (a) Your request must explicitly state that you will pay all fees 
associated with processing the request, that you will pay fees up to a 
specified amount, and/or that you are seeking a fee waiver.
    (b) If the bureau anticipates that the fees for processing the 
request will exceed the amount you have agreed to pay, or if you did not 
agree in writing to pay processing fees and the bureau anticipates the 
processing costs will exceed your entitlements, the bureau will notify 
you:
    (1) Of the estimated processing fees;
    (2) Of its need for either an advance payment (seeSec. 2.50 of 
this part) or your written assurance that you will pay the anticipated 
fees (or fees up to a specified amount); and
    (3) That it will not be able to fully comply with your FOIA request 
unless you provide the written assurance or advance payment requested.
    (c) If the bureau does not receive a written response from you 
within 20 workdays after requesting the information in paragraph (b) of 
this section, it will presume that you are no longer interested in the 
records and will close the file on the request.
    (d) If you are seeking a fee waiver, your request must include 
sufficient justification (see the criteria in Sec.Sec. 2.45, 2.48, and 
2.56 of this part). Failure to provide sufficient justification will 
result in a denial of the fee waiver request. If you are seeking a fee 
waiver, you may also indicate the amount you are willing to pay if the 
fee waiver is denied. This allows the bureau to process the request for 
records while it considers your fee waiver request.
    (e) The bureau will begin processing the request only after the fee 
issues are resolved.
    (f) If you are required to pay a fee and it is later determined on 
appeal that you were entitled to a full or partial fee waiver, you will 
receive an appropriate refund.



Sec.  2.7  What information should you include about your fee category?

    (a) A request should indicate your fee category (that is, whether 
you are a commercial-use requester, news media, educational or 
noncommercial scientific institution, or other requester as described in 
Sec.Sec. 2.38 and 2.39 of this part).

[[Page 11]]

    (b) If you submit a FOIA request on behalf of another person or 
organization (for example, if you are an attorney submitting a request 
on behalf of a client), the bureau will determine the fee category by 
considering the underlying requester's identity and intended use of the 
information.
    (c) If your fee category is unclear, the bureau may ask you for 
additional information (seeSec. 2.51 of this part).



Sec.  2.8  Can you ask for records to be disclosed in a particular 
form or format?

    (a) Generally, you may choose the form or format of disclosure for 
records requested. The bureau must provide the records in the requested 
form or format if the bureau can readily reproduce the record in that 
form or format.
    (b) The bureau may charge you the direct costs involved in 
converting records to the requested format if the bureau does not 
normally maintain the records in that format (seeSec. 2.44 of this 
part).



Sec.  2.9  What if your request seeks records about another person?

    (a) When a request seeks records about another person, you may 
receive greater access by submitting proof that the person either:
    (1) Consents to the release of the records to you (for example, a 
notarized authorization signed by that person); or
    (2) Is deceased (for example, a copy of a death certificate or an 
obituary).
    (b) At its discretion, the bureau can require you to supply 
additional information if necessary to verify that a particular person 
has consented to disclosure or is deceased.



Sec.  2.10  May you ask for the processing of your request to be expedited?

    You may ask for the processing of your request to be expedited. The 
bureau will determine whether to expedite the processing of your request 
using the criteria outlined inSec. 2.20.



Sec.  2.11  What contact information should your request include?

    A request should include your name, mailing address, daytime 
telephone number (or the name and telephone number of an appropriate 
contact), email address, and fax number (if available) in case the 
bureau needs additional information or clarification of your request.



                      Subpart C_Processing Requests

    Source: 77 FR 76902, Dec. 31, 2012, unless otherwise noted.



Sec.  2.12  What should you know about how bureaus process requests?

    (a) Except as described in Sec.Sec. 2.4 and 2.13 of this part, the 
bureau to which the request is addressed is responsible for responding 
to the request and for making a reasonable effort to search for 
responsive records.
    (b) In determining which records are responsive to a request, the 
bureau will include only records in its possession and control on the 
date that it begins its search.
    (c) The bureau will make reasonable efforts to search for the 
requested records in electronic form or format, except when these 
efforts would significantly interfere with the operation of the bureau's 
automated information system.
    (d) If a bureau receives a request for records in its possession 
that it did not create or that another bureau or a Federal agency is 
substantially concerned with, it may undertake consultations and/or 
referrals as described inSec. 2.13.



Sec.  2.13  How do consultations and referrals work?

    (a) Consultations and referrals can occur within the Department or 
outside the Department.
    (1) Paragraphs (b) and (c) of this section addresses consultations 
and referrals that occur within the Department when the bureau has 
responsive records.
    (2) Paragraphs (d) through (g) of this section address consultations 
and referrals that occur outside the Department when the bureau has 
responsive records.
    (3) Paragraph (h) of this section addresses what happens when the 
bureau has no responsive records but believes responsive records may be 
in the possession of a Federal agency outside the Department.

[[Page 12]]

    (b) If a bureau (other than the Office of Inspector General) 
receives a request for records in its possession that another bureau 
created or is substantially concerned with, it will either:
    (1) Consult with the other bureau before deciding whether to release 
or withhold the records; or
    (2) Refer the request, along with the records, to that other bureau 
for direct response.
    (c) The bureau that originally received the request will notify you 
of the referral in writing. When the bureau notifies you of the 
referral, it will tell you whether the referral was for part or all of 
your request and provide the name and contact information for the other 
bureau.
    (d) If, while responding to a request, the bureau locates records 
that originated with another Federal agency, it usually will refer the 
request and any responsive records to that other agency for a release 
determination and direct response.
    (e) If the bureau refers records to another agency, it will document 
the referral and maintain a copy of the records that it refers and 
notify you of the referral in writing, unless the notification will 
itself disclose a sensitive, exempt fact. When the bureau notifies you 
of the referral, it will tell you whether the referral was for part or 
all of your request and provide the name and contact information for the 
other agency. You may treat such a response as a denial of records and 
file an appeal, in accordance with the procedures inSec. 2.59 of this 
part.
    (f) If the bureau locates records that originated with another 
Federal agency while responding to a request, the bureau will make the 
release determination itself (after consulting with the originating 
agency) when:
    (1) The record is of primary interest to the Department (for 
example, a record may be of primary interest to the Department if it was 
developed or prepared according to the Department's regulations or 
directives, or in response to a Departmental request);
    (2) The Department is in a better position than the originating 
agency to assess whether the record is exempt from disclosure;
    (3) The originating agency is not subject to the FOIA; or
    (4) It is more efficient or practical depending on the 
circumstances.
    (g) If the bureau receives a request for records that another 
Federal agency has classified under any applicable executive order 
concerning record classification, it must refer the request to that 
agency for response.
    (h) If the bureau receives a request for records not in its 
possession, but that the bureau believes may be in the possession of a 
Federal agency outside the Department, the bureau will return the 
request to you, may advise you to submit it directly to the agency, will 
notify you that the bureau cannot comply with the request, and will 
close the request. If you believe this response was in error, you may 
file an appeal in accordance with the procedures inSec. 2.59.

[77 FR 76902, Dec. 31, 2012; 78 FR 6216, Jan. 30, 2013]



                Subpart D_Timing of Responses to Requests

    Source: 77 FR 76902, Dec. 31, 2012, unless otherwise noted.



Sec.  2.14  In what order are responses usually made?

    The bureau ordinarily will respond to requests according to their 
order of receipt within their processing track.



Sec.  2.15  What is multitrack processing and how does it affect
your request?

    (a) Bureaus use processing tracks to distinguish simple requests 
from more complex ones on the basis of the estimated number of workdays 
needed to process the request.
    (b) In determining the number of workdays needed to process the 
request, the bureau considers factors such as the number of pages 
involved in processing the request or the need for consultations.
    (c) The basic processing tracks are designated as follows:
    (1) Simple: requests in this track will take between one to five 
workdays to process;

[[Page 13]]

    (2) Normal: requests in this track will take between six to twenty 
workdays to process;
    (3) Complex: requests in this track will take between twenty-one 
workdays and sixty workdays to process; or
    (4) Exceptional/Voluminous: requests in this track involve very 
complex processing challenges, which may include a large number of 
potentially responsive records, and will take over sixty workdays to 
process.
    (d) Bureaus also have a specific processing track for requests that 
are granted expedited processing under the standards inSec. 2.20 of 
this part. These requests will be processed as soon as practicable.
    (e) Bureaus must advise you of the track into which your request 
falls and, when appropriate, will offer you an opportunity to narrow 
your request so that it can be placed in a different processing track.
    (f) The use of multitrack processing does not alter the statutory 
deadline for a bureau to determine whether to comply with your FOIA 
request (seeSec. 2.16 of this part).



Sec.  2.16  What is the basic time limit for responding to a request?

    (a) Ordinarily, the bureau has 20 workdays after the date of receipt 
to determine whether to comply with (for example, grant, partially 
grant, or deny) a FOIA request, but unusual circumstances may allow the 
bureau to take longer than 20 workdays (seeSec. 2.19).
    (b) A consultation or referral underSec. 2.13 of this part does 
not restart the statutory time limit for responding to a request.



Sec.  2.17  When does the basic time limit begin for misdirected
FOIA requests?

    The basic time limit for a misdirected FOIA request (seeSec. 
2.4(e) of this part) begins no later than ten workdays after the request 
is first received by any component of the Department that is designated 
to receive FOIA requests.



Sec.  2.18  When can the bureau suspend the basic time limit?

    (a) The basic time limit inSec. 2.16 of this part may be 
temporarily suspended for the time it takes you to respond to one 
written communication from the bureau reasonably asking for clarifying 
information.
    (b) The basic time limit inSec. 2.16 may also repeatedly be 
temporarily suspended for the time it takes you to respond to written 
communications from the bureau that are necessary to clarify issues 
regarding fee assessment (seeSec. 2.51 of this part).



Sec.  2.19  When may the bureau extend the basic time limit?

    (a) The bureau may extend the basic time limit if unusual 
circumstances exist. Before the expiration of the basic 20 workday time 
limit to respond, the bureau will notify you in writing of:
    (1) The unusual circumstances involved; and
    (2) The date by which it expects to complete processing the request.
    (b) If the processing time will extend beyond a total of 30 
workdays, the bureau will:
    (1) Give you an opportunity to limit the scope of the request or 
agree to an alternative time period for processing; and
    (2) Make available its FOIA Public Liaison (seeSec. 2.66 of this 
part) to assist in resolving any disputes between you and the bureau.
    (c) If the bureau extends the time limit under this section and you 
do not receive a response in accordance withSec. 2.16(a) in that time 
period, you may consider the request denied and file an appeal in 
accordance with the procedures inSec. 2.59.
    (d) Your refusal to reasonably modify the scope of a request or 
arrange an alternative time frame for processing a request after being 
given the opportunity to do so may be considered for litigation purposes 
as a factor when determining whether exceptional circumstances exist.

[[Page 14]]



Sec.  2.20  When will expedited processing be provided and how will
it affect your request?

    (a) The bureau will provide expedited processing upon request if you 
demonstrate to the satisfaction of the bureau that there is a compelling 
need for the records. The following circumstances demonstrate a 
compelling need:
    (1) Where failure to expedite the request could reasonably be 
expected to pose an imminent threat to the life or physical safety of an 
individual; or
    (2) Where there is an urgency to inform the public about an actual 
or alleged Federal Government activity and the request is made by a 
person primarily engaged in disseminating information.
    (i) In most situations, a person primarily engaged in disseminating 
information will be a representative of the news media.
    (ii) If you are not a full time member of the news media, to qualify 
for expedited processing here, you must establish that your main 
professional activity or occupation is information dissemination, 
although it need not be your sole occupation.
    (iii) The requested information must be the type of information 
which has particular value that will be lost if not disseminated 
quickly; this ordinarily refers to a breaking news story of general 
public interest.
    (iv) Information of historical interest only or information sought 
for litigation or commercial activities would not qualify, nor would a 
news media deadline unrelated to breaking news.
    (b) If you seek expedited processing, you must submit a statement 
that:
    (1) Explains in detail how your request meets one or both of the 
criteria in paragraph (a) of this section; and
    (2) Certifies that your explanation is true and correct to the best 
of your knowledge and belief.
    (c) You may ask for expedited processing at any time by writing to 
the appropriate FOIA contact in the bureau that maintains the records 
requested. When making a request for expedited processing of an 
administrative appeal, submit the request to the FOIA Appeals Officer.
    (d) The bureau must notify you of its decision to grant or deny 
expedited processing within 10 calendar days of receiving an expedited 
processing request.
    (e) If expedited processing is granted, the request will be given 
priority, placed in the processing track for expedited requests, and be 
processed as soon as practicable.
    (f) If expedited processing is denied, the bureau will notify you of 
the right to appeal the decision on expedited processing in accordance 
with the procedures in subpart H of this part.
    (g) If you appeal the decision on expedited processing, your appeal 
(if it is properly formatted underSec. 2.59 of this part) will be 
processed ahead of other appeals.
    (h) If the bureau has not responded to the request for expedited 
processing within 10 calendar days, you may file an appeal (for 
nonresponse in accordance withSec. 2.57(a)(8) of this part).



                     Subpart E_Responses to Requests

    Source: 77 FR 76902, Dec. 31, 2012, unless otherwise noted.



Sec.  2.21  How will the bureau respond to requests?

    (a) When the bureau informs you of its decision to comply with a 
request by granting, partially granting, or denying the request, it will 
do so in writing and in accordance with the deadlines in subpart D of 
this part. The bureau's written response will include a statement about 
the services offered by the Office of Government Information Services 
(OGIS), using standard language that can be found at: http://
www.doi.gov/foia/news/guidance/index.cfm.
    (b) If the bureau determines that your request will take longer than 
10 workdays to process, the bureau immediately will send you a written 
acknowledgment that includes the request's individualized tracking 
number and processing track (seeSec. 2.15(e)). The acknowledgement may 
also include a brief description of the subject of your request.

[[Page 15]]



Sec.  2.22  How will the bureau grant requests?

    (a) Once the bureau makes a determination to grant a request in full 
or in part, it must notify you in writing.
    (b) The notification will inform you of any fees charged under 
subpart G of this part.
    (c) The bureau will release records (or portions of records) to you 
promptly upon payment of any applicable fees (or before then, in 
accordance withSec. 2.37(c) of this part).
    (d) If the records (or portions of records) are not included with 
the bureau's notification, the bureau will advise you how, when, and 
where the records will be made available.



Sec.  2.23  When will the bureau deny a request or procedural benefits?

    (a) A bureau denies a request when it makes a decision that:
    (1) A requested record is exempt, in full or in part;
    (2) The request does not reasonably describe the records sought;
    (3) A requested record does not exist, cannot be located, or is not 
in the bureau's possession; or
    (4) A requested record is not readily reproducible in the form or 
format you seek.
    (b) A bureau denies a procedural benefit only, and not access to the 
underlying records, when it makes a decision that:
    (1) A fee waiver, or another fee-related issue, will not be granted; 
or
    (2) Expedited processing will not be provided.
    (c) The bureau must consult with the Office of the Solicitor before 
it denies a fee waiver request or withholds all or part of a requested 
record.



Sec.  2.24  How will the bureau deny requests?

    (a)The bureau must notify you in writing of any denial of your 
request.
    (b) The denial notification must include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reasons for the denial, including a 
reference to any FOIA exemption(s) applied by the bureau to withhold 
records in full or in part;
    (3) An estimate of the volume of any records or information 
withheld, for example, by providing the number of pages or some other 
reasonable form of estimation, unless such an estimate would harm an 
interest protected by the exemption(s) used to withhold the records or 
information;
    (4) The name and title of the Office of the Solicitor attorney 
consulted (if the bureau is denying a fee waiver request or withholding 
all or part of a requested record); and
    (5) A statement that the denial may be appealed under subpart H of 
this part and a description of the requirements set forth therein.



Sec.  2.25  What if the requested records contain both exempt and
nonexempt material?

    If responsive records contain both exempt and nonexempt material, 
the bureau will consult with the Office of the Solicitor, as discussed 
inSec. 2.23(c). After consultation, the bureau will partially grant 
and partially deny the request by:
    (a) Segregating and releasing the nonexempt information, unless the 
nonexempt material is so intertwined with the exempt material that 
disclosure of it would leave only meaningless words and phrases;
    (b) Indicating on the released portion of the record the amount of 
information deleted and the FOIA exemption under which the deletion was 
made, unless doing so would harm an interest protected by the FOIA 
exemption used to withhold the information; and
    (c) If technically feasible, placing the information required by 
paragraph (b) of this section at the place in the record where the 
deletion was made.



               Subpart F_Handling Confidential Information

    Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.



Sec.  2.26  How will the bureau interact with the submitter of
possibly confidential information?

    (a) The Department encourages, but does not require, submitters to 
designate confidential information in good faith at the time of 
submission. Such

[[Page 16]]

designations assist the bureau in determining whether information 
obtained from the submitter is confidential information, but will not 
always be determinative.
    (b) If, in the course of responding to a FOIA request, a bureau 
cannot readily determine whether information is confidential 
information, the bureau will:
    (1) Consult with the submitter under Sec.Sec. 2.27 and 2.28; and
    (2) Provide the submitter an opportunity to object to a decision to 
disclose the information under Sec.Sec. 2.30 and 2.31 of this subpart.



Sec.  2.27  When will the bureau notify a submitter of a request for 
their possibly confidential information?

    (a) Except as outlined inSec. 2.29 of this subpart, a bureau must 
promptly notify a submitter in writing when it receives a FOIA request 
if either:
    (1) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4 of the FOIA, found at 5 U.S.C. 552(b)(4); or
    (2) The bureau believes that requested information may be protected 
from disclosure under Exemption 4.
    (b) If a large number of submitters are involved, the bureau may 
publish a notice in a manner reasonably calculated to reach the 
attention of the submitters (for example, in newspapers or newsletters, 
the bureau's Web site, or the Federal Register) instead of providing a 
written notice to each submitter.



Sec.  2.28  What information will the bureau include when it notifies
a submitter of a request for their possibly confidential information?

    A notice to a submitter must include:
    (a) Either a copy of the FOIA request or the exact language of the 
request;
    (b) Either a description of the possibly confidential information 
located in response to the request or a copy of the responsive records, 
or portions of records, containing the information;
    (c) A description of the procedures for objecting to the release of 
the possibly confidential information under Sec.Sec. 2.30 and 2.31 of 
this subpart;
    (d) A time limit for responding to the bureau--no less than 10 
workdays from receipt or publication of the notice (as set forth in 
Sec.  2.27(b) of this subpart)--to object to the release and to explain 
the basis for the objection;
    (e) Notice that information contained in the submitter's objections 
may itself be subject to disclosure under the FOIA;
    (f) Notice that the bureau, not the submitter, is responsible for 
deciding whether the information will be released or withheld;
    (g) A request for the submitter's views on whether they still 
consider the information to be confidential if the submitter designated 
the material as confidential commercial or financial information 10 or 
more years before the request; and
    (h) Notice that failing to respond within the time frame specified 
underSec. 2.28(d) of this subpart will create a presumption that the 
submitter has no objection to the disclosure of the information in 
question.



Sec.  2.29  When will the bureau not notify a submitter of a request
for their possibly confidential information?

    The notice requirements ofSec. 2.28 of this subpart will not apply 
if:
    (a) The information has been lawfully published or officially made 
available to the public; or
    (b) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation (other than this part) issued in 
accordance with the requirements of Executive Order 12600.



Sec.  2.30  How and when may a submitter object to the disclosure
of confidential information?

    (a) If a submitter has any objections to the disclosure of 
confidential information, the submitter should provide a detailed 
written statement to the bureau that specifies all grounds for 
withholding the particular information under any FOIA exemption (see 
Sec.  2.31 of this subpart for further discussion of Exemption 4 
objection statements).
    (b) A submitter who does not respond within the time period 
specified underSec. 2.28(d) of this subpart will be considered to have 
no objection to disclosure of the information. Responses received

[[Page 17]]

by the bureau after this time period will not be considered by the 
bureau unless the appropriate bureau FOIA contact determines, in his or 
her sole discretion, that good cause exists to accept the late response.



Sec.  2.31  What must a submitter include in a detailed Exemption
4 objection statement?

    (a) To rely on Exemption 4 as basis for nondisclosure, the submitter 
must explain why the information is confidential information. To do 
this, the submitter must give the bureau a detailed written statement. 
This statement must include a specific and detailed discussion of why 
the information is a trade secret or, if the information is not a trade 
secret, the following three categories must be addressed (unless the 
bureau informs the submitter that a response to one of the first two 
categories will not be necessary):
    (1) Whether the Government required the information to be submitted, 
and if so, how substantial competitive or other business harm would 
likely result from release;
    (2) Whether the submitter provided the information voluntarily and, 
if so, how the information fits into a category of information that the 
submitter does not customarily release to the public; and
    (3) 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.
    (b) If not already provided, the submitter must include a daytime 
telephone number, an email and mailing address, and a fax number (if 
available).



Sec.  2.32  How will the bureau consider the submitter's objections?

    (a) The bureau must carefully consider a submitter's objections and 
specific grounds for nondisclosure in deciding whether to disclose the 
requested information.
    (b) The bureau, not the submitter, is responsible for deciding 
whether the information will be released or withheld.



Sec.  2.33  What if the bureau determines it will disclose information
over the submitter's objections?

    If the bureau decides to disclose information over the objection of 
a submitter, the bureau must notify the submitter by certified mail or 
other traceable mail, return receipt requested. The notification must be 
sent to the submitter's last known address and must include:
    (a) The specific reasons why the bureau determined that the 
submitter's disclosure objections do not support withholding the 
information;
    (b) Copies of the records or information the bureau intends to 
release; and
    (c) Notice that the bureau intends to release the records or 
information no less than 10 workdays after receipt of the notice by the 
submitter.



Sec.  2.34  Will a submitter be notified of a FOIA lawsuit?

    If you file a lawsuit seeking to compel the disclosure of 
confidential information, the bureau must promptly notify the submitter.



Sec.  2.35  Will you receive notification of activities involving
the submitter?

    If any of the following occur, the bureau will notify you:
    (a) The bureau provides the submitter with notice and an opportunity 
to object to disclosure;
    (b) The bureau notifies the submitter of its intent to disclose the 
requested information; or
    (c) A submitter files a lawsuit to prevent the disclosure of the 
information.



Sec.  2.36  Can a bureau release information protected by Exemption 4?

    If a bureau determines that the requested information is protected 
from release by Exemption 4 of the FOIA, the bureau has no discretion to 
release the information. Release of information protected from release 
by Exemption 4 is prohibited by the Trade Secrets Act, a criminal 
provision found at 18 U.S.C. 1905.



                             Subpart G_Fees

    Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.

[[Page 18]]



Sec.  2.37  What general principles govern fees?

    (a) The bureau will charge for processing requests under the FOIA in 
accordance with this subpart and with the OMB Fee Guidelines.
    (b) The bureau may contact you for additional information to resolve 
fee issues.
    (c) The bureau ordinarily will collect all applicable fees before 
sending copies of records to you.
    (d) You may usually pay fees by check, certified check, or money 
order made payable to the ``Department of the Interior'' or the bureau.
    (1) Where appropriate, the bureau may require that your payment be 
made in the form of a certified check.
    (2) You may also be able to pay your fees by credit card. You may 
contact the bureau to determine what forms of payment it accepts.
    (e) The bureau should ensure that it conducts searches, review, and 
duplication in the most efficient and the least expensive manner so as 
to minimize costs for both you and the bureau.
    (f) If the Department does not comply with any of the FOIA's 
statutory time limits:
    (1) The bureau cannot assess search fees for your FOIA request, 
unless unusual or exceptional circumstances apply; and
    (2) Depending on your fee category, the bureau may not be able to 
assess duplication fees for your FOIA request, as discussed inSec. 
2.39(b) of this subpart.



Sec.  2.38  What are the requester fee categories?

    (a) There are four categories of requesters for the purposes of 
determining fees--commercial-use, educational and noncommercial 
scientific institutions, representatives of news media, and all others.
    (b) The bureau's decision to place you in a particular fee category 
will be made on a case-by-case basis based on your intended use of the 
information and, in most cases, your identity. If you do not submit 
sufficient information in your FOIA request for the bureau to determine 
your proper fee category, the bureau may ask you to provide additional 
information (seeSec. 2.51 of this subpart).
    (c) SeeSec. 2.70 of this part for the definitions of each of these 
fee categories.



Sec.  2.39  How does your requester category affect the fees you
are charged?

    (a) You will be charged as shown in the following table:

----------------------------------------------------------------------------------------------------------------
          Requester Category                 Search fees              Review fees            Duplication fees
----------------------------------------------------------------------------------------------------------------
Commercial use requester.............  Yes....................  Yes....................  Yes.
Educational and non-commercial         No.....................  No.....................  Yes (first 100 pages,
 scientific institutions.                                                                 or equivalent volume,
                                                                                          free).
Representative of news media           No.....................  No.....................  Yes (first 100 pages,
 requester.                                                                               or equivalent volume,
                                                                                          free).
All other requesters.................  Yes (first 2 hours       No.....................  Yes (first 100 pages,
                                        free).                                            or equivalent volume,
                                                                                          free).
----------------------------------------------------------------------------------------------------------------

    (b) If you are in the fee category of a representative of the news 
media or an educational and noncommercial scientific institution and the 
Department does not comply with any of the FOIA's statutory time limits, 
the Department cannot assess duplication fees for the FOIA request in 
question, unless unusual or exceptional circumstances apply to the 
processing of the request.



Sec.  2.40  How will fee amounts be determined?

    (a) The bureau will charge the types of fees discussed below unless 
a waiver of fees is required underSec. 2.39 of this subpart or has 
been granted underSec. 2.45 orSec. 2.56.
    (b) Because the types of fees discussed below already account for 
the overhead costs associated with a given fee type, the bureau should 
not add any additional costs to those charges.

[[Page 19]]



Sec.  2.41  What search fees will you have to pay?

    (a) The bureau will charge search fees for all requests, subject to 
the restrictions of Sec.Sec. 2.37(f), 2.39, and 2.40(a) of this 
subpart. The bureau may charge you for time spent searching even if it 
does not locate any responsive records or if it determines that the 
records are entirely exempt from disclosure.
    (b) For each quarter hour spent by personnel searching for requested 
records, including electronic searches that do not require new 
programming, the fees will be the average hourly General Schedule (GS) 
base salary, plus the District of Columbia locality payment, plus 16 
percent for benefits, of employees in the following three categories, as 
applicable:
    (1) Clerical--Based on GS-6, Step 5, pay (all employees at GS-7 and 
below are classified as clerical for this purpose);
    (2) Professional--Based on GS-11, Step 7, pay (all employees at GS-8 
through GS-12 are classified as professional for this purpose); and
    (3) Managerial--Based on GS-14, Step 2, pay (all employees at GS-13 
and above are classified as managerial for this purpose).
    (c) You can review the current fee schedule for the categories 
discussed above in paragraph (b) of this section at http://www.doi.gov/
foia/fees-waivers.cfm.
    (d) Some requests may require retrieval of records stored at a 
Federal records center operated by the National Archives and Records 
Administration. For these requests, bureaus will charge additional costs 
in accordance with the Transactional Billing Rate Schedule established 
by the National Archives and Records Administration.



Sec.  2.42  What duplication fees will you have to pay?

    (a) The bureau will charge duplication fees, subject to the 
restrictions of Sec.Sec. 2.37(f), 2.39, and 2.40(a) of this subpart.
    (b) If photocopies or scans are supplied, the bureau will provide 
one copy per request at the cost determined by the table in appendix A 
to this part.
    (c) For other forms of duplication, the bureau will charge the 
actual costs of producing the copy, including the time spent by 
personnel duplicating the requested records. For each quarter hour spent 
by personnel duplicating the requested records, the fees will be the 
same as those charged for a search underSec. 2.41(b) of this subpart.
    (d) If the bureau must scan paper records to accommodate your 
preference to receive records in an electronic format, you will pay both 
the per page amount noted in Appendix A to this part and the time spent 
by personnel scanning the requested records. For each quarter hour spent 
by personnel scanning the requested records, the fees will be the same 
as those charged for a search underSec. 2.41(b) of this subpart.



Sec.  2.43  What review fees will you have to pay?

    (a) The bureau will charge review fees if you make a commercial-use 
request, subject to the restrictions of Sec.Sec. 2.37(f), 2.39, and 
2.40(a) of this subpart.
    (b) The bureau will assess review fees in connection with the 
initial review of the record (the review conducted by the bureau to 
determine whether an exemption applies to a particular record or portion 
of a record).
    (c) The Department will not charge for reviews at the administrative 
appeal stage of exemptions applied at the initial review stage. However, 
if the appellate authority determines that an exemption no longer 
applies, any costs associated with the bureau's re-review of the records 
to consider the use of other exemptions may be assessed as review fees.
    (d) The bureau will charge review fees at the same rates as those 
charged for a search underSec. 2.41(b) of this subpart.
    (e) The bureau can charge review fees even if the record(s) reviewed 
ultimately is not disclosed.



Sec.  2.44  What fees for other services will you have to pay?

    (a) Although not required to provide special services, if the bureau 
chooses to do so as a matter of administrative

[[Page 20]]

discretion, it will charge you the direct costs of providing the 
service.
    (b) Examples of these services include certifying that records are 
true copies under subpart L of this part, providing multiple copies of 
the same record, converting records to a requested format, obtaining 
research data underSec. 2.69 of this part, or sending records by means 
other than first class mail.
    (c) The bureau will notify you of these fees before they accrue and 
will obtain your written assurance of payment or an advance payment 
before proceeding. See Sec.Sec. 2.49 and 2.50 of this subpart.



Sec.  2.45  When will the bureau waive fees?

    (a) The bureau will release records responsive to a request without 
charge (in other words, it will give you a full fee waiver) or at a 
reduced charge (in other words, it will give you a partial fee waiver, 
as discussed further in paragraph (b) of this section) if the bureau 
determines, based on all available information, that you have 
demonstrated (under the factors listed inSec. 2.48 of this subpart) 
that disclosing the information is:
    (1) In the public interest because it is likely to contribute 
significantly to public understanding of government operations or 
activities, and
    (2) Not primarily in your commercial interest.
    (b) A partial fee waiver may be appropriate if some but not all of 
the requested records are likely to contribute significantly to public 
understanding of the operations and activities of the government.
    (c) When deciding whether to waive or reduce fees, the bureau will 
rely on the fee waiver justification submitted in your request letter. 
If the letter does not include sufficient justification, the bureau will 
deny the fee waiver request. The bureau may, at its discretion, request 
additional information from you (seeSec. 2.51 of this subpart).
    (d) The burden is on you to justify entitlement to a fee waiver. 
Requests for fee waivers are decided on a case-by-case basis under the 
criteria discussed above in paragraph (a) of this section andSec. 2.48 
of this subpart. If you have received a fee waiver in the past, that 
does not mean you are automatically entitled to a fee waiver for every 
request submitted.
    (e) Discretionary fee waivers are addressed inSec. 2.56 of this 
subpart.
    (f) The bureau must not make value judgments about whether the 
information at issue is ``important'' enough to be made public; it is 
not the bureau's role to attempt to determine the level of public 
interest in requested information.



Sec.  2.46  When may you ask the bureau for a fee waiver?

    (a) You should request a fee waiver when your request is first 
submitted to the bureau (seeSec. 2.6 of this part).
    (b) You may submit a fee waiver request at a later time if the 
underlying record request is still either pending or on administrative 
appeal.



Sec.  2.47  How will the bureau notify you if it denies your fee 
waiver request?

    If the bureau denies your request for a fee waiver, it will notify 
you, in writing, of the following:
    (a) The basis for the denial, including a full explanation of why 
the fee waiver request does not meet the Department's fee waiver 
criteria inSec. 2.48 of this subpart.
    (b) The name and title or position of each person responsible for 
the denial;
    (c) The name and title of the Office of the Solicitor attorney 
consulted; and
    (d) Your right to appeal the denial to the FOIA Appeals Officer, 
under the procedures inSec. 2.57 of this part, within 30 workdays 
after the date of the fee waiver denial letter.



Sec.  2.48  How will the bureau evaluate your fee waiver request?

    (a) In deciding whether your fee waiver request meets the 
requirements ofSec. 2.45(a)(1) of this subpart, the bureau will 
consider the criteria listed in paragraphs one through four below. You 
must address each of these criteria.
    (1) How the records concern the operations or activities of the 
Federal government.
    (2) How disclosure is likely to contribute to public understanding 
of those operations or activities, including:

[[Page 21]]

    (i) How the contents of the records are meaningfully informative;
    (ii) The logical connection between the content of the records and 
the operations or activities;
    (iii) How disclosure will contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to your individual understanding;
    (iv) Your identity, vocation, qualifications, and expertise 
regarding the requested information and information that explains how 
you plan to disclose the information in a manner that will be 
informative to the understanding of a reasonably broad audience of 
persons interested in the subject, as opposed to your individual 
understanding
    (v) Your ability and intent to disseminate the information to a 
reasonably broad audience of persons interested in the subject (for 
example, how and to whom do you intend to disseminate the information).
    (3) How disclosure is likely to significantly contribute to the 
understanding of a reasonably broad audience of persons interested in 
the subject, as opposed to your individual understanding, including:
    (i) Whether the information being requested is new;
    (ii) Whether the information would confirm or clarify data that has 
been released previously;
    (iii) How disclosure will increase the level of public understanding 
of the operations or activities of the Department or a bureau that 
existed prior to disclosure; and
    (iv) Whether the information is already publicly available. If the 
Government previously has published the information you are seeking or 
it is routinely available to the public in a library, reading room, 
through the Internet, or as part of the administrative record for a 
particular issue, it is less likely that there will be a significant 
contribution from release.
    (4) How the public's understanding of the subject in question will 
be enhanced to a significant extent by the disclosure.
    (b) In deciding whether the fee waiver meets the requirements in 
Sec.  2.45(a)(2) of this subpart, the bureau will consider any 
commercial interest of yours that would be furthered by the requested 
disclosure.
    (1) You are encouraged to provide explanatory information regarding 
this consideration.
    (2) The bureau will not find that disclosing the requested 
information will be primarily in your commercial interest where the 
public interest is greater than any identified commercial interest in 
disclosure.
    (3) If you do have a commercial interest that would be furthered by 
disclosure, explain how the public interest in disclosure would be 
greater than any commercial interest you or your organization may have 
in the documents.
    (i) Your identity, vocation, and intended use of the requested 
records are all factors to be considered in determining whether 
disclosure would be primarily in your commercial interest.
    (ii) If you are a representative of a news media organization 
seeking information as part of the news gathering process, we will 
presume that the public interest outweighs your commercial interest.
    (iii) If you represent a business/corporation/association or you are 
an attorney representing such an organization, we will presume that your 
commercial interest outweighs the public interest unless you demonstrate 
otherwise.



Sec.  2.49  When will you be notified of anticipated fees?

    (a) The bureau will notify you under this section unless:
    (1) The anticipated fee is less than $50 (you will not be charged if 
the fee for processing your request is less than $50, unless multiple 
requests are aggregated underSec. 2.54 of this subpart).
    (2) You have been granted a full fee waiver; or
    (3) You have previously agreed to pay all the fees associated with 
the request.
    (b) If none of the above exceptions apply, the bureau will:
    (1) Promptly notify you of the estimated costs for search, review, 
and/or duplication;
    (2) Ask you to provide written assurance within 20 workdays that you 
will pay all fees or fees up to a designated amount;

[[Page 22]]

    (3) Notify you that it will not be able to comply with your FOIA 
request unless you provide the written assurance requested; and
    (4) Give you an opportunity to reduce the fee by modifying the 
request.
    (c) If the bureau does not receive your written assurance of payment 
under paragraph (b)(2) of this section within 20 workdays, the request 
will be closed.
    (d) After the bureau begins processing a request, if it finds that 
the actual cost will exceed the amount you previously agreed to pay, the 
bureau will:
    (1) Stop processing the request;
    (2) Promptly notify you of the higher amount and ask you to provide 
written assurance of payment; and
    (3) Notify you that it will not be able to fully comply with your 
FOIA request unless you provide the written assurance requested; and
    (4) Give you an opportunity to reduce the fee by modifying the 
request.
    (e) If you wish to modify your request in an effort to reduce fees, 
the bureau's FOIA Public Liaison can assist you.



Sec.  2.50  When will the bureau require advance payment?

    (a) The bureau will require advance payment before starting further 
work when it finds the estimated fee is over $250 and:
    (1) You have never made a FOIA request to the Department requiring 
the payment of fees; or
    (2) You did not pay a previous FOIA fee within 30 calendar days of 
the date of billing.
    (b) If the bureau believes that you did not pay a previous FOIA fee 
within 30 calendar days of the date of billing, the bureau will require 
you to either:
    (1) Demonstrate you paid prior fee within 30 calendar days of the 
date of billing; or
    (2) Pay any unpaid amount of the previous fee, plus any applicable 
interest penalties (seeSec. 2.53 of this subpart), and pay in advance 
the estimated fee for the new request.
    (c) When the bureau notifies you that an advance payment is due, it 
will give you an opportunity to reduce the fee by modifying the request.
    (d) The bureau may require payment before records are sent to you; 
such a payment is not considered an ``advance payment'' underSec. 
2.50(a) of this subpart.
    (e) If the bureau requires advance payment, it will start further 
work only after receiving the advance payment. It will also notify you 
that it will not be able to comply with your FOIA request unless you 
provide the advance payment. Unless you pay the advance payment within 
20 workdays after the date of the bureau's fee letter, the bureau will 
presume that you are no longer interested and will close the file on the 
request.



Sec.  2.51  What if the bureau needs clarification about fee issues?

    (a) If your FOIA request does not contain sufficient information for 
the bureau to determine your proper fee category or leaves another fee 
issue unclear, the bureau may ask you to provide additional 
clarification. If it does so, the bureau will notify you that it will 
not be able to comply with your FOIA request unless you provide the 
clarification requested.
    (b) If the bureau asks you to provide clarification, the 20-workday 
statutory time limit for the bureau to respond to the request is 
temporarily suspended.
    (1) If the bureau receives a written response within 20 workdays, 
the 20-workday statutory time limit for processing the request will 
resume (seeSec. 2.16 of this part).
    (2) If you still have not provided sufficient information to resolve 
the fee issue, the bureau may ask you again to provide additional 
clarification and notify you that it will not be able to comply with 
your FOIA request unless you provide the additional information 
requested within 20 workdays.
    (3) If the bureau asks you again for additional clarification, the 
statutory time limit for response will be temporarily suspended again 
and will resume again if the bureau hears from you within 20 workdays.
    (c) If the bureau asks for clarification about a fee issue and does 
not receive a written response from you within 20 workdays, it will 
presume

[[Page 23]]

that you are no longer interested and will close the file on the 
request.

[77 FR 76906, Dec. 31, 2012; 78 FR 6216, Jan. 30, 2013]



Sec.  2.52  How will you be billed?

    If you are required to pay a fee associated with a FOIA request, the 
bureau processing the request will send a bill for collection.



Sec.  2.53  How will the bureau collect fees owed?

    (a) The bureau may charge interest on any unpaid bill starting on 
the 31st day following the billing date.
    (b) The bureau will assess interest charges at the rate provided in 
31 U.S.C. 3717 and implementing regulations and interest will accrue 
from the billing date until the bureau receives payment.
    (c) The bureau will follow the provisions of the Debt Collection Act 
of 1982 (Public Law 97-365, 96 Stat. 1749), as amended, and its 
administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset to collect overdue amounts and 
interest.
    (d) This section does not apply if you are a state, local, or tribal 
government.



Sec.  2.54  When will the bureau combine or aggregate requests?

    (a) The bureau may aggregate requests and charge accordingly when it 
reasonably believes that you, or a group of requesters acting in concert 
with you, are attempting to avoid fees by dividing a single request into 
a series of requests on a single subject or related subjects.
    (1) The bureau may presume that multiple requests of this type made 
within a 30-day period have been made to avoid fees.
    (2) The bureau may aggregate requests separated by a longer period 
only where there is a reasonable basis for determining that aggregation 
is warranted in view of all the circumstances involved.
    (b) The bureau will not aggregate multiple requests involving 
unrelated matters.



Sec.  2.55  What if other statutes require the bureau to charge fees?

    (a) The fee schedule in appendix A to this part does not apply to 
fees charged under any statute that specifically requires the bureau to 
set and collect fees for particular types of records.
    (b) If records otherwise responsive to a request are subject to a 
statutorily-based fee schedule, the bureau will inform you whom to 
contact to obtain the records.



Sec.  2.56  May the bureau waive or reduce your fees at its discretion?

    (a) The bureau may waive or reduce fees at its discretion if a 
request involves furnishing:
    (1) A copy of a record that the bureau has reproduced for free 
distribution;
    (2) One copy of a personal document (for example, a birth 
certificate) to a person who has been required to furnish it for 
retention by the Department;
    (3) One copy of the transcript of a hearing before a hearing officer 
in a grievance or similar proceeding to the employee for whom the 
hearing was held;
    (4) Records to donors with respect to their gifts;
    (5) Records to individuals or private nonprofit organizations having 
an official, voluntary, or cooperative relationship with the Department 
if it will assist their work with the Department;
    (6) A reasonable number of records to members of the U.S. Congress; 
state, local, and foreign governments; public international 
organizations; or Indian tribes, when to do so is an appropriate 
courtesy, or when the recipient is carrying on a function related to a 
Departmental function and the waiver will help accomplish the 
Department's work;
    (7) Records in conformance with generally established business 
custom (for example, furnishing personal reference data to prospective 
employers of current or former Department employees); or
    (8) One copy of a single record to assist you in obtaining financial 
benefits to which you may be entitled (for example, veterans or their 
dependents, employees with Government employee compensation claims).

[[Page 24]]

    (b) You cannot appeal the denial of a discretionary fee waiver or 
reduction.



                    Subpart H_Administrative Appeals

    Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.



Sec.  2.57  When may you file an appeal?

    (a) You may file an appeal when:
    (1) The bureau withholds records, or parts of records;
    (2) The bureau informs you that your request has not adequately 
described the records sought;
    (3) The bureau informs you that it does not possess or cannot locate 
responsive records and you have reason to believe this is incorrect or 
that the search was inadequate;
    (4) The bureau did not address all aspects of the request for 
records;
    (5) You believe there is a procedural deficiency (for example, fees 
are improperly calculated);
    (6) The bureau denied a fee waiver;
    (7) The bureau did not make a decision within the time limits in 
Sec.  2.16 or, if applicable,Sec. 2.18; or
    (8) The bureau denied, or was late in responding to, a request for 
expedited processing filed under the procedures inSec. 2.20 of this 
part.
    (b) An appeal under paragraph (a)(8) of this section relates only to 
the request for expedited processing and does not constitute an appeal 
of the underlying request for records. Special procedures apply to 
requests for expedited processing of an appeal (seeSec. 2.63 of this 
subpart).
    (c) Before filing an appeal, you may wish to communicate with the 
contact person listed in the FOIA response, the bureau's FOIA Officer, 
and/or the FOIA Public Liaison to see if the issue can be resolved 
informally. However, appeals must be received by the FOIA Appeals 
Officer within the time limits inSec. 2.58 of this subpart or they 
will not be processed.



Sec.  2.58  How long do you have to file an appeal?

    (a) Appeals covered bySec. 2.57(a)(1) through (5) of this subpart 
must be received by the FOIA Appeals Officer no later than 30 workdays 
from the date of the final response.
    (b) Appeals covered bySec. 2.57(a)(6) of this subpart must be 
received by the FOIA Appeals Officer no later than 30 workdays from the 
date of the letter denying the fee waiver.
    (c) Appeals covered bySec. 2.57(a)(7) of this subpart may be filed 
any time after the time limit for responding to the request has passed.
    (d) Appeals covered bySec. 2.57(a)(8) of this subpart should be 
filed as soon as possible.
    (e) Appeals arriving or delivered after 5 p.m. Eastern Time, Monday 
through Friday, will be deemed received on the next workday.



Sec.  2.59  How do you file an appeal?

    (a) You must submit the appeal in writing by mail, fax or email to 
the FOIA Appeals Officer (using the address available at http://
www.doi.gov/foia/appeals.cfm). Your failure to send an appeal directly 
to the FOIA Appeals Officer may delay processing.
    (b) The appeal must include:
    (1) Copies of all correspondence between you and the bureau 
concerning the FOIA request, including the request and the bureau's 
response (if there is one); and
    (2) An explanation of why you believe the bureau's response was in 
error.
    (c) The appeal should include your name, mailing address, daytime 
telephone number (or the name and telephone number of an appropriate 
contact), email address, and fax number (if available) in case the 
Department needs additional information or clarification.
    (d) An appeal concerning a denial of expedited processing or a fee 
waiver denial should also demonstrate fully how the criteria inSec. 
2.20 or Sec.Sec. 2.45 and 2.48 of this part are met.
    (e) All communications concerning an appeal should be clearly marked 
with the words: ``FREEDOM OF INFORMATION APPEAL.''
    (f) The Department will reject an appeal that does not attach all 
correspondence required by paragraph (b)(1) of this section, unless the 
FOIA Appeals Officer determines, in his or her sole discretion, that 
good cause exists to accept the defective appeal. The

[[Page 25]]

time limits for responding to an appeal will not begin to run until the 
correspondence is received.



Sec.  2.60  Who makes decisions on appeals?

    (a) The FOIA Appeals Officer is the deciding official for FOIA 
appeals.
    (b) When necessary, the FOIA Appeals Officer will consult other 
appropriate offices, including the Office of the Solicitor for denials 
of records and fee waivers.
    (c) The FOIA Appeals Officer normally will not make a decision on an 
appeal if the request becomes a matter of FOIA litigation.



Sec.  2.61  How are decisions on appeals issued?

    (a) A decision on an appeal must be made in writing.
    (b) A decision that upholds the bureau's determination will notify 
you of the decision and your statutory right to file a lawsuit.
    (c) A decision that overturns, remands, or modifies the bureau's 
determination will notify you of the decision. The bureau then must 
further process the request in accordance with the appeal determination.



Sec.  2.62  When can you expect a decision on your appeal?

    (a) The basic time limit for responding to an appeal is 20 workdays 
after receipt of an appeal meeting the requirements ofSec. 2.59 of 
this subpart.
    (b) The FOIA Appeals Officer may extend the basic time limit, if 
unusual circumstances exist. Before the expiration of the basic 20-
workday time limit to respond, the FOIA Appeals Officer will notify you 
in writing of the unusual circumstances involved and of the date by 
which he or she expects to complete processing of the appeal.
    (c) If the Department is unable to reach a decision on your appeal 
within the given time limit for response, the FOIA Appeals Officer will 
notify you of:
    (1) The reason for the delay; and
    (2) Your statutory right to seek review in a United States District 
Court.



Sec.  2.63  Can you receive expedited processing of appeals?

    (a) To receive expedited processing of an appeal, you must 
demonstrate to the Department's satisfaction that the appeal meets one 
of the criteria underSec. 2.20 of this part and include a statement 
that the need for expedited processing is true and correct to the best 
of your knowledge and belief.
    (b) The FOIA Appeals Officer will advise you whether the Department 
will grant expedited processing within 10 calendar days of receiving the 
appeal.
    (c) If the FOIA Appeals Officer decides to grant expedited 
processing, he or she will give the appeal priority over other pending 
appeals and process it as soon as practicable.



Sec.  2.64  Must you submit an appeal before seeking judicial review?

    Before seeking review by a court of the bureau's adverse 
determination, you generally must first submit a timely administrative 
appeal.



                      Subpart I_General Information

    Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.



Sec.  2.65  Where are records made available?

    Records that are required by the FOIA to be made proactively 
available for public inspection and copying are accessible on the 
Department's Web site, http://www.doi.gov/foia/libraries.cfm. They may 
also be available at bureau office locations.



Sec.  2.66  What are public liaisons?

    (a) Each bureau has a FOIA Public Liaison that can assist 
individuals in locating bureau records.
    (b) FOIA Public Liaisons report to the Department's Chief FOIA 
Officer and you can raise concerns to them about the service you have 
received.
    (c) FOIA Public Liaisons are responsible for assisting in reducing 
delays, increasing transparency and understanding of the status of 
requests, and assisting in resolving disputes.
    (d) A list of the Department's FOIA Public Liaisons is available at 
http://doi.gov/foia/servicecenters.cfm.

[[Page 26]]



Sec.  2.67  When will the Department make records available without
a FOIA request?

    (a) Each bureau must:
    (1) Determine which of its records must be made publicly available 
under the FOIA (for example, certain frequently requested records);
    (2) Identify additional records of interest to the public that are 
appropriate for public disclosure; and
    (3) Post those records in FOIA libraries.
    (b) Because of these proactive disclosures, you are encouraged to 
review the Department's FOIA libraries before filing a FOIA request. The 
material you seek may be immediately available electronically at no 
cost.



Sec.  2.68  How will FOIA materials be preserved?

    (a) Each bureau must preserve all correspondence pertaining to the 
requests that it receives under subpart B of this part, as well as 
copies of all requested records, until disposition or destruction is 
authorized by the General Records Schedule 14 of the National Archives 
and Records Administration (NARA) or another NARA-approved records 
schedule.
    (b) Materials that are identified as responsive to a FOIA request 
will not be disposed of or destroyed while the request or a related 
appeal or lawsuit is pending. This is true even if they would otherwise 
be authorized for disposition or destruction under the General Records 
Schedule 14 of NARA or another NARA-approved records schedule.



Sec.  2.69  How will a bureau handle a request for federally-funded
research data?

    (a) If you request research data that were used by the Federal 
Government in developing certain kinds of agency actions, and the 
research data relate to published research findings produced under an 
award, in accordance with OMB Circular A-110:
    (1) If the bureau was the awarding agency, it will request the 
research data from the recipient;
    (2) The recipient must provide the research data within a reasonable 
time; and
    (3) The bureau will review the research data to see if it can be 
released under the FOIA.
    (b) If the bureau obtains the research data solely in response to 
your FOIA request, the bureau may charge you a reasonable fee equaling 
the full incremental cost of obtaining the research data.
    (1) This fee should reflect costs incurred by the agency, the 
recipient, and applicable subrecipients.
    (2) This fee is in addition to any fees the agency may assess under 
the FOIA.
    (c) The bureau will forward a copy of the request to the recipient, 
who is responsible for searching for and reviewing the requested 
information in accordance with these FOIA regulations. The recipient 
will forward a copy of any responsive records that are located, along 
with any recommendations concerning the releasability of the data, and 
the total cost incurred in searching for, reviewing, and providing the 
data.
    (d) The bureau will review and consider the recommendations of the 
recipient regarding the releasability of the requested research data. 
However, the bureau, not the recipient, is responsible for deciding 
whether the research data will be released or withheld.



Sec.  2.70  What definitions apply to subparts A through I of this part?

    For the purposes of subparts A through I of this part, the following 
definitions apply:
    Bureau means any major component of the Department administering its 
own FOIA program. A list of these components is available at: http://
www.doi.gov/foia/contacts.cfm.
    Commercial interest means a commercial, trade, or profit interest as 
these terms are commonly understood. Your status as profitmaking or non-
profitmaking is not the deciding factor in determining whether you have 
a commercial interest.
    Commercial use means a use that furthers your commercial, trade or 
profit interests or that of the person on whose behalf the request is 
made.

[[Page 27]]

    Confidential information means trade secrets or commercial or 
financial information (that is privileged or confidential and obtained 
by the Department from a person) that may be protected from disclosure 
under Exemption 4 of the FOIA.
    Department means the Department of the Interior.
    Direct costs means those resources that the bureau expends in 
searching for and duplicating (and, in the case of commercial-use 
requests, reviewing) records to respond to a FOIA request. For example, 
direct costs include the salary of the employee performing the work (the 
basic rate of pay for the employee plus 16 percent of that rate to cover 
benefits) and the cost of operating duplicating machinery, such as 
photocopiers and scanners. Direct costs do not include overhead expenses 
such as the costs of space and of heating or lighting a facility.
    Duplication means reproducing a copy of a record or of the 
information contained in it necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    Educational institution means any school that operates a program of 
scholarly research. In order to fall within this category, you must show 
that the request is authorized by and made under the auspices of, a 
qualifying institution and that the records are not sought for a 
commercial use, but rather are sought to further scholarly research.
    Exceptional circumstances means a delay that does not result from a 
predictable workload of requests (unless the bureau demonstrates 
reasonable progress in reducing its backlog of pending requests).
    Exempt means the record in question, or a portion thereof, is not 
subject to disclosure due to one or more of the FOIA's nine statutory 
exemptions, found at 5 U.S.C. 552(b)(1)-(9).
    Exemption means one or more of the FOIA's nine statutory exemptions, 
found at 5 U.S.C. 552(b)(1)-(9).
    Expedited processing means giving a FOIA request priority and 
processing it ahead of other requests pending in the bureau because you 
have shown a compelling need for the records.
    Fee category means one of the four categories, discussed in 
Sec.Sec. 2.38 and 2.39, that agencies place you in for the purpose of 
determining whether you will be charged fees for search, review, and 
duplication.
    FOIA means the Freedom of Information Act, 5 U.S.C. 552, as amended.
    FOIA libraries means a physical or electronic compilation of records 
required to be made available to the public for inspection and copying 
under 5 U.S.C. 552(a)(2). It also includes a physical or electronic 
compilation of records that the bureau, at its discretion, makes 
available to the public for inspection and copying.
    Frequently requested records means records that have been released 
to any person in response to a FOIA request and that have been 
requested, or that the bureau anticipates will be requested, at least 
two more times under the FOIA.
    Multitrack processing means placing simple requests, requiring 
relatively minimal review, in one processing track and more voluminous 
and complex requests in one or more other tracks. Requests in each track 
are processed on a first-in/first-out basis.
    Noncommercial scientific institution means an institution that is 
not operated for commerce, trade or profit, and that is operated solely 
for the purpose of conducting scientific research the results of which 
are not intended to promote any particular product or industry. To be in 
this category, you must show that the request is authorized by and is 
made under the auspices of a qualifying institution and that the records 
are not sought for a commercial use but are sought to further scientific 
research.
    OMB Fee Guidelines means the Uniform Freedom of Information Fee 
Schedule and Guidelines published by the Office of Management and Budget 
at 52 FR 10012 (Mar. 27, 1987).
    Published means, for the purposes ofSec. 2.69 of this subpart 
only, when:
    (1) Research findings are published in a peer-reviewed scientific or 
technical journal; or
    (2) A Federal agency publicly and officially cites the research 
findings in support of an agency action that has the force and effect of 
law.

[[Page 28]]

    Recipient means, for the purposes ofSec. 2.69 of this subpart 
only, an organization receiving financial assistance directly from 
Federal awarding agencies to carry out a project or program. The term 
includes public and private institutions of higher education, public and 
private hospitals, and other quasi-public and private non-profit 
organizations. The term may include commercial organizations, foreign or 
international organizations (such as agencies of the United Nations) 
which are recipients, subrecipients, or contractors or subcontractors of 
recipients or subrecipients at the discretion of the Federal awarding 
agency. The term does not include government-owned contractor-operated 
facilities or research centers providing continued support for mission-
oriented, large-scale programs that are government-owned or controlled, 
or are designated as federally-funded research and development centers.
    Record means an agency record that is either created or obtained by 
an agency and is under agency possession and control at the time of the 
FOIA request, or is maintained by an entity under Government contract 
for the purposes of records management.
    Representative of the news media means any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term news as used in 
this definition means information that is about current events or that 
would be of current interest to the public. Examples of news media 
entities are newspapers, television, Web sites, or radio stations 
broadcasting to the public at large, and publishers of periodicals (but 
only if such entities qualify as disseminators of news) who make their 
products available for purchase by or subscription by or free 
distribution to the general public. These examples are not all 
inclusive. As methods of news delivery evolve, alternative 
representatives of news media may come into being. A freelance 
journalist will qualify as a news-media entity if he or she can 
demonstrate a solid basis for expecting publication through that entity, 
whether or not the journalist is actually employed by that entity (for 
example, a publication contract would present a solid basis for such an 
expectation).
    Research data means, for the purposes ofSec. 2.69 of this subpart 
only, the recorded factual material commonly accepted in the scientific 
community as necessary to validate research findings, but not any of the 
following: preliminary analyses, drafts of scientific papers, plans for 
future research, peer reviews, or communications with colleagues. The 
term recorded as used in this definition excludes physical objects 
(e.g., laboratory samples). Research data also do not include:
    (1) Trade secrets, commercial information, materials necessary to be 
held confidential by a researcher until they are published, or similar 
information which is protected under law; and
    (2) Personnel and medical information and similar information the 
disclosure of which would constitute a clearly unwarranted invasion of 
personal privacy, such as information that could be used to identify a 
particular person in a research study.
    Review means the examination of a record located in response to a 
request to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review time also includes time spent both 
obtaining and considering any formal objection to disclosure made by a 
confidential information submitter under subpart G of this part, but it 
excludes time spent resolving general legal or policy issues regarding 
the application of FOIA exemptions.
    Search means the process of looking for and retrieving records 
responsive to a request. Search time includes page-by-page or line-by-
line identification of information within records; and the reasonable 
efforts expended to locate and retrieve electronic records.
    Submitter means any person or entity outside the Federal Government 
from

[[Page 29]]

whom the Department obtains confidential information, directly or 
indirectly. The term includes, but is not limited to individuals, 
corporations, and state, local, tribal, and foreign governments.
    Unusual circumstances means the need to search for and collect 
requested records from field facilities or other establishments that are 
separate from the office processing the request; the need to search for, 
collect, and examine a voluminous amount of separate and distinct 
records which are demanded in a single request; or the need for 
consultation, which shall be conducted with all practicable speed, with 
another agency, or among two or more components of the Department, 
having a substantial interest in the determination of the request.
    Workday means a regular Federal workday. It excludes Saturdays, 
Sundays, or Federal legal public holidays. Items arriving or delivered 
after 5 p.m. Eastern Time will be deemed received on the next workday.
    You means a person requesting records, or filing an appeal, under 
the FOIA.



           Subpart J_Declassification of Classified Documents

    Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted. 
Redesignated at 67 FR 64530, Oct. 21, 2002. Redesignated at 77 FR 76902, 
Dec. 31, 2012; 78 FR 6216, Jan. 30, 2013.



Sec.  2.200  Declassification of classified documents.

    (a) Request for classification review. (1) Requests for a 
classification review of a document of the Department of the Interior 
pursuant to section 5(c) of Executive Order 11652 (37 FR 5209, March 10, 
1972) and section III B of the National Security Council Directive 
Governing Classification, Downgrading, Declassification and Safeguarding 
of National Security Information (37 FR 10053, May 1972) shall be made 
in accordance with the procedures established by this section.
    (2) Any person desiring a classification review of a document of the 
Department of the Interior containing information classified as National 
Security Information by reason of the provisions of Executive Order 
12065 (or any predecessor executive order) and which is more than 10 
years old, should address such request to the Chief, Division of 
Enforcement and Security Management, Office of Administrative Services, 
U.S. Department of the Interior, Washington, DC 20240.
    (3) Requests need not be made on any special form, but shall, as 
specified in the executive order, describe the document with sufficient 
particularity to enable identification of the document requested with 
expenditure of no more than a reasonable amount of effort.
    (4) Charges for locating and reproducing copies of records will be 
made when deemed applicable in accordance with appendix A to this part 
and the requester will be notified.
    (b) Action on requests for classification review. (1) The Chief, 
Division of Enforcement and Security Management, shall, unless the 
request is for a document over 30 years old, assign the request to the 
bureau having custody of the requested records for action. In the case 
of requests for declassification of records in the custody of the Office 
of the Secretary and less than 30 years old, the request shall be 
processed by the Chief, Division of Enforcement and Security Management. 
Requests for declassification of documents over 30 years shall be 
referred directly to the Archivist of the United States. The bureau 
which has been assigned the request, or the Chief, Division of 
Enforcement and Security Management, in the case of requests assigned to 
him, shall immediately acknowledge the request in writing. Every effort 
will be made to complete action on each request within thirty (30) days 
of its receipt. If action cannot be completed within thirty (30) days, 
the requester shall be so advised.
    (2) If the requester does not receive a decision on his request 
within sixty (60) days from the date of receipt of his request, or from 
the date of his most recent response to a request for more particulars, 
he may apply to the Department of the Interior Oversight Committee for 
Security, U.S. Department of the Interior, Washington, DC 20240, for a 
decision on his request. The Committee must render a decision within 
thirty (30) days.

[[Page 30]]

    (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 K_Privacy Act

    Source: 40 FR 44505, Sept. 26, 1975, unless otherwise noted. 
Redesignated at 67 FR 64530, Oct. 21, 2002. Redesignated at 77 FR 76902, 
Dec. 31, 2012; 78 FR 6216, Jan. 30, 2013.



Sec.  2.220  Purpose and scope.

    This subpart contains the regulations of the Department of the 
Interior implementing section 3 of the Privacy Act. Sections 2.47 
through 2.57 describe the procedures and policies of the Department 
concerning maintenance of records which are subject to the Act. Sections 
2.60 through 2.66 describe the procedure under which individuals may 
determine whether systems of records subject to the Act contain records 
relating to them and the procedure under which they may seek access to 
existing records. Sections 2.70 through 2.77 describe the procedure 
under which individuals may petition for amendment of records subject to 
the Act relating to them. Section 2.79 lists records systems that have 
been exempted from certain requirements of the Act.

[48 FR 56583, Dec. 22, 1983]



Sec.  2.221  Definitions.

    (a) Act. As used in this subpart, ``Act'' means section 3 of the 
Privacy Act, 5 U.S.C. 552a.
    (b) Bureau. For purposes of this subpart, a ``bureau'' is any 
constituent bureau or office of the Department, including the Office of 
the Secretary and any other Departmental office.
    (c) Individual. As used in this subpart, ``individual'' means a 
citizen of the United States or an alien lawfully admitted for permanent 
residence.
    (d) Maintain. As used in this subpart, the term ``maintain'' 
includes maintain, collect, use or disseminate.
    (e) Record. As used in this subpart, ``record'' means any item, 
collection, or grouping of information about an individual that is 
maintained by the Department or a bureau thereof, including, but not 
limited to, education, financial transactions, medical history, and 
criminal or employment history and that contains the individual's

[[Page 31]]

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.  2.222  Records subject to Privacy Act.

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



Sec.  2.223  Standards for maintenance of records subject to the Act.

    (a) Content of records. Records subject to the Act shall contain 
only such information about an individual as is relevant and necessary 
to accomplish a purpose of the agency required to be accomplished by 
statute or Executive Order of the President.
    (b) Standards of accuracy. Records subject to the Act which are used 
in making any determination about any individual shall be maintained 
with such accuracy, relevance, timeliness, and completeness as is 
reasonably necessary to assure fairness to the individual in making the 
determination.
    (c) Collection of information. (1) Information which may be used in 
making determinations about an individual's rights, benefits, and 
privileges under Federal programs shall, to the greatest extent 
practicable, be collected directly from that individual.

[[Page 32]]

    (2) In deciding whether collection of information from an 
individual, as opposed to a third party source, is practicable, the 
following factors, among others, may be considered:
    (i) Whether the nature of the information sought is such that it can 
only be obtained from a third party;
    (ii) Whether the cost of collecting the information from the 
individual is unreasonable when compared with the cost of collecting it 
from a third party;
    (iii) Whether there is a risk that information collected from third 
parties, if inaccurate, could result in an adverse determination to the 
individual concerned;
    (iv) Whether the information, if supplied by the individual, would 
have to be verified by a third party; or
    (v) Whether provisions can be made for verification, by the 
individual, of information collected from third parties.
    (d) Advice to individuals concerning uses of information. (1) Each 
individual who is asked to supply information about him or herself which 
will be added to a system of records shall be informed of the basis for 
requesting the information, how it may be used, and what the 
consequences, if any, are of not supplying the information.
    (2) At a minimum, the notice to the individual must state:
    (i) The authority (whether granted by statute or Executive Order of 
the President) which authorizes the solicitation of the information and 
whether disclosure of such information is mandatory or voluntary;
    (ii) The principal purpose or purposes for which the information is 
intended to be used;
    (iii) The routine uses which may be made of the information; and
    (iv) The effects on the individual, if any, of not providing all or 
any part of the requested information.
    (3)(i) When information is collected on a standard form, the notice 
to the individual shall be provided on the form, on a tear-off sheet 
attached to the form, or on a separate sheet, whichever is most 
practical.
    (ii) When information is collected by an interviewer, the 
interviewer shall provide the individual with a written notice which the 
individual may retain. If the interview is conducted by telephone, 
however, the interviewer may summarize the notice for the individual and 
need not provide a copy to the individual unless the individual requests 
a copy.
    (iii) An individual may be asked to acknowledge, in writing, that 
the notice required by this section has been provided.
    (e) Records concerning activity protected by the First Amendment. No 
record may be maintained describing how any individual exercises rights 
guaranteed by the First Amendment to the Constitution unless the 
maintenance of the record is (1) expressly authorized by statute or by 
the individual about whom the record is maintained or (2) pertinent to 
and within the scope of an authorized law enforcement activity.

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



Sec.  2.224  [Reserved]



Sec.  2.225  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.  2.226  Assuring integrity of records.

    (a) Statutory requirement. The Privacy Act requires that records 
subject to the Act be maintained with appropriate administrative, 
technical and physical safeguards to insure the security and 
confidentiality of records and to protect against any anticipated 
threats or hazards to their security or integrity

[[Page 33]]

which could result in substantial harm, embarrassment, inconvenience, or 
unfairness to any individual on whom information is maintained, 5 U.S.C. 
552a(e)(10).
    (b) Records maintained in manual form. When maintained in manual 
form, records subject to the Privacy Act shall be maintained in a manner 
commensurate with the sensitivity of the information contained in the 
system of records. The following minimum safeguards, or safeguards 
affording comparable protection, are applicable to Privacy Act systems 
of records containing sensitive information:
    (1) Areas in which the records are maintained or regularly used 
shall be posted with an appropriate warning stating that access to the 
records is limited to authorized persons. The warning also shall 
summarize the requirements ofSec. 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.  2.227  Conduct of employees.

    (a) Handling of records subject to the Act. Employees whose duties 
require handling of records subject to the Privacy Act shall, at all 
times, take care to protect the integrity, security and confidentiality 
of these records.
    (b) Disclosure of records. No employee of the Department may 
disclose records subject to the Privacy Act unless disclosure is 
permitted underSec. 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 Sec.Sec. 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 34]]

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 inSec. 2.56 (b) and (c).



Sec.  2.228  Government contracts.

    (a) Required contract provisions. When a contract provides for the 
operation by or on behalf of the Department of a system of records to 
accomplish a Department function, the contract shall, consistent with 
the Department's authority, cause the requirements of 5 U.S.C. 552a and 
the regulations contained in this subpart to be applied to such system.
    (b) System manager. The head of the bureau responsible for the 
contract shall designate a regular employee of the bureau to be the 
manager for a system of records operated by a contractor.



Sec.Sec. 2.229-2.230  [Reserved]



Sec.  2.231  Disclosure of records.

    (a) Prohibition of disclosure. No record contained in a system of 
records may be disclosed by any means of communication to any person, or 
to another agency, except pursuant to a written request by, or with the 
prior written consent of, the individual to whom the record pertains.
    (b) General exceptions. The prohibition contained in paragraph (a) 
does not apply where disclosure of the record would be:
    (1) To those officers or employees of the Department who have a need 
for the record in the performance of their duties; or
    (2) Required by the Freedom of Information Act, 5 U.S.C. 552.
    (c) Specific exceptions. The prohibition contained in paragraph (a) 
of this section does not apply where disclosure of the record would be:
    (1) For a routine use as defined inSec. 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 35]]

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.  2.232  Accounting for disclosures.

    (a) Maintenance of an accounting. (1) Where a record is disclosed to 
any person, or to another agency, under any of the specific exceptions 
provided bySec. 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 underSec. 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 ofSec. 2.63.
    (c) Notification of disclosure. When a record is disclosed pursuant 
toSec. 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]



Sec.Sec. 2.233-2.234  [Reserved]



Sec.  2.235  Request for notification of existence of records: Submission.

    (a) Submission of requests. (1)(i) Individuals desiring to determine 
under the Privacy Act whether a system of records contains records 
pertaining to them shall address inquiries to the system manager having 
responsibility for the system unless the system notice describing the 
system prescribes or permits submission to some other official or 
officials.
    (ii) If a system notice describing a system requires individuals to 
contact more than two officials concerning the existence of records in 
the system, individuals desiring to determine whether the system 
contains records pertaining to them may contact the system manager for 
assistance in determining which official is most likely to be in 
possession of records pertaining to those individuals.
    (2) Individuals desiring to determine whether records pertaining to 
them are maintained in two or more systems shall make a separate inquiry 
concerning each system.
    (b) Form of request. (1) An inquiry to determine whether a system of 
records contains records pertaining to an individual shall be in 
writing.
    (2) To insure expeditious handling, the request shall be prominently 
marked, both on the envelope and on the face of the request, with the 
legend ``PRIVACY ACT INQUIRY.''
    (3) The request shall state that the individual is seeking 
information concerning records pertaining to him or herself and shall 
supply such additional identifying information, if any, as is called for 
in the system notice describing the system.
    (4) Individuals who have reason to believe that information 
pertaining to them may be filed under a name other than the name they 
are currently using (e.g., maiden name), shall include such information 
in the request.

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

[[Page 36]]



Sec.  2.236  Requests for notification of existence of records: Action on.

    (a) Decisions on request. (1) Individuals inquiring to determine 
whether a system of records contains records pertaining to them shall be 
promptly advised whether the system contains records pertaining to them 
unless (i) the records were compiled in reasonable anticipation of a 
civil action or proceeding or (ii) the system of records is one which 
has been excepted from the notification provisions of the Privacy Act by 
rulemaking (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 toSec. 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.  2.237  Requests for access to records.

    The Privacy Act permits individuals, upon request, to gain access to 
their records or to any information pertaining to them which is 
contained in a system and to review the records and have a copy made of 
all or any portion thereof in a form comprehensive to them. 5 U.S.C. 
552a(d)(1). A request for access shall be submitted in accordance with 
the procedures in this subpart.

[48 FR 56584, Dec. 22, 1983]



Sec.  2.238  Requests for access to records: Submission.

    (a) Submission of requests. (1)(i) Requests for access to records 
shall be submitted to the system manager having responsibility for the 
system in which the records are maintained unless the system notice 
describing the system prescribes or permits submission to some other 
official or officials.

[[Page 37]]

    (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 underSec. 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.  2.239  Requests for access to records: Initial decision.

    (a) Decisions on requests. A request made under this subpart for 
access to a record shall be granted promptly unless (1) the record was 
compiled in reasonable anticipation of a civil action or proceeding or 
(2) the record is contained in a system of records which has been 
excepted from the access provisions of the Privacy Act by rulemaking 
(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 underSec. 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 toSec. 
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 38]]

    (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 underSec. 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.  2.240  Requests for notification of existence of records and
for access to records: Appeals.

    (a) Right of appeal. Except for appeals pertaining to Office of 
Personnel Management records, individuals who have been notified that 
they are not entitled to notification of whether a system of records 
contains records pertaining to them or have been denied access, in whole 
or part, to a requested record may appeal to the Assistant Secretary--
Policy, Budget and Administration.
    (b) Time for appeal. (1) An appeal must be received by the Privacy 
Act Officer no later than twenty (20) working days after the date of the 
initial decision on a request.
    (2) The Assistant Secretary--Policy, Budget and Administration may, 
for good cause shown, extend the time for submission of an appeal if a 
written request for additional time is received within twenty (20) 
working days of the date of the initial decision on the request.
    (c) Form of appeal. (1) An appeal shall be in writing and shall 
attach copies of the initial request and the decision on the request.
    (2) The appeal shall contain a brief statement of the reasons why 
the appellant believes the decision on the initial request to have been 
in error.
    (3) The appeal shall be addressed to Privacy Act Officer, Office of 
the Assistant Secretary--Policy, Budget and Administration, U.S. 
Department of the Interior, Washington, DC 20240.
    (d) Action on appeals. (1) Appeals from decisions on initial 
requests made pursuant to Sec.Sec. 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.  2.241  Requests for access to records: Special situations.

    (a) Medical records. (1) Medical records shall be disclosed to the 
individual to whom they pertain unless it is determined, in consultation 
with a medical doctor, that disclosure should be made to a medical 
doctor of the individual's choosing.
    (2) If it is determined that disclosure of medical records directly 
to the individual to whom they pertain could

[[Page 39]]

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]



Sec.Sec. 2.242-2.244  [Reserved]



Sec.  2.245  Amendment of records.

    The Privacy Act permits individuals to request amendment of records 
pertaining to them if they believe the records are not accurate, 
relevant, timely or complete. 5 U.S.C. 552a(d)(2). A request for 
amendment of a record shall be submitted in accordance with the 
procedures in this subpart.

[48 FR 56585, Dec. 22, 1983]



Sec.  2.246  Petitions for amendment: Submission and form.

    (a) Submission of petitions for amendment. (1) A request for 
amendment of a record shall be submitted to the system manager for the 
system of records containing the record unless the system notice 
describing the system prescribes or permits submission to a different 
official or officials. If an individual wishes to request amendment of 
records located in more than one system, a separate petition must be 
submitted to each system manager.
    (2) A petition for amendment of a record may be submitted only if 
the individual submitting the petition has previously requested and been 
granted access to the record and has inspected or been given a copy of 
the record.
    (b) Form of petition. (1) A petition for amendment shall be in 
writing and shall specifically identify the record for which amendment 
is sought.
    (2) The petition shall state, in detail, the reasons why the 
petitioner believes the record, or the objectionable portion thereof, is 
not accurate, relevant, timely or complete. Copies of documents or 
evidence relied upon in support of these reasons shall be submitted with 
the petition.
    (3) The petition shall state, specifically and in detail, the 
changes sought in the record. If the changes involve rewriting the 
record or portions thereof or involve adding new language to the record, 
the petition shall propose specific language to implement the changes.

[48 FR 56585, Dec. 22, 1983]



Sec.  2.247  Petitions for amendment: Processing and initial decision.

    (a) Decisions on petitions. In reviewing a record in response to a 
petition for amendment, the accuracy, relevance, timeliness and 
completeness of the record shall be assessed against the criteria set 
out inSec. 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 ofSec. 2.71, the petitioner shall be so advised and shall 
be told what additional information must be submitted to meet the 
requirements ofSec. 2.71.
    (2) If the petitioner fails to submit the additional information 
within a

[[Page 40]]

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.  2.248  Petitions for amendments: Time limits for processing.

    (a) Acknowledgement of receipt. The acknowledgement of receipt of a 
petition required bySec. 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 toSec. 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 41]]

    (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.  2.249  Petitions for amendment: Appeals.

    (a) Right of appeal. Except for appeals pertaining to Office of 
Personnel Management records, where a petition for amendment has been 
rejected in whole or in part, the individual submitting the petition may 
appeal the denial to the Assistant Secretary--Policy, Budget and 
Administration.
    (b) Time for appeal. (1) An appeal must be received no later than 
twenty (20) working days after the date of the decision on a petition.
    (2) The Assistant Secretary--Policy, Budget and Administration may, 
for good cause shown, extend the time for submission of an appeal if a 
written request for additional time is received within twenty (20) 
working days of the date of the decision on a petition.
    (c) Form of appeal. (1) An appeal shall be in writing and shall 
attach copies of the initial petition and the decision on that petition.
    (2) The appeal shall contain a brief statement of the reasons why 
the appellant believes the decision on the petition to have been in 
error.
    (3) The appeal shall be addressed to Privacy Act Officer, Office of 
the Assistant Secretary--Policy, Budget and Administration, U.S. 
Department of the Interior, Washington, DC 20240.

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



Sec.  2.250  Petitions for amendment: Action on appeals.

    (a) Authority. Appeals from decisions on initial petitions for 
amendment shall be decided for the Department by the Assistant 
Secretary--Policy, Budget and Administration or an official designated 
by the Assistant Secretary, after consultation with the Solicitor.
    (b) Time limit. (1) A final determination on any appeal shall be 
made within thirty (30) working days after receipt of the appeal.
    (2) The thirty (30) day period for decision on an appeal may be 
extended, for good cause shown, by the Secretary of the Interior. If the 
thirty (30) day period is extended, the individual submitting the appeal 
shall be notified of the extension and of the date on which a 
determination on the appeal is expected to be dispatched.
    (c) Form of decision. (1) The final determination on an appeal shall 
be in writing and shall state the basis for the determination.
    (2) If the determination upholds, in whole or part, the initial 
decision rejecting the petition for amendment, the determination shall 
also advise the individual submitting the appeal:
    (i) Of his or her right to file a concise statement of the reasons 
for disagreeing with the decision of the agency;
    (ii) Of the procedure established bySec. 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 42]]

    (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.  2.251  [Reserved]



Sec.  2.252  Statements of disagreement.

    (a) Filing of statement. If the determination of the Assistant 
Secretary--Policy, Budget and Administration underSec. 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.  2.253  [Reserved]



Sec.  2.254  Exemptions.

    (a) Criminal law enforcement records exempt under 5 U.S.C. 
552a(j)(2). Pursuant to 5 U.S.C 552a(j)(2) the following systems of 
records 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 43]]

    (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 L_Legal Process: Testimony by Employees and Production of 
                                 Records

    Source: 65 FR 46369, July 28, 2000, unless otherwise noted. 
Redesignated at 67 FR 64530, Oct. 21, 2002. Redesignated at 77 FR 76902, 
Dec. 31, 2012; 78 FR 6216, Jan. 30, 2013.

                           General Information



Sec.  2.280  What does this subpart cover?

    (a) This subpart describes how the Department of the Interior 
(including all its bureaus and offices) responds to requests or 
subpoenas for:
    (1) Testimony by employees in State, territorial or Tribal judicial, 
legislative or administrative proceedings concerning information 
acquired while performing official duties or because of an employee's 
official status;
    (2) Testimony by employees in Federal court civil proceedings in 
which the United States is not a party concerning information acquired 
while performing official duties or because of an employee's official 
status;
    (3) Testimony by employees in any judicial or administrative 
proceeding in which the United States, while not a party, has a direct 
and substantial interest;
    (4) Official records or certification of such records for use in 
Federal, State, territorial or Tribal judicial, legislative or 
administrative proceedings.
    (b) In this subpart, ``employee'' means a current or former 
Department employee, including a contract or special government 
employee.
    (c) This subpart does not apply to:
    (1) Congressional requests or subpoenas for testimony or records;
    (2) Federal court civil proceedings in which the United States is a 
party;
    (3) Federal administrative proceedings;
    (4) Federal, State and Tribal criminal court proceedings;
    (5) Employees who voluntarily testify, while on their own time or in 
approved leave status, as private citizens as to facts or events that 
are not related to the official business of the Department. The employee 
must state for the record that the testimony represents the employee's 
own views and is not necessarily the official position of the 
Department. See 5 CFR Sec.Sec. 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 bySec. 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.  2.281  What is the Department's policy on granting requests
for employee testimony or Department records?

    (a) Except for proceedings covered bySec. 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

[[Page 44]]

unless authorized by the Department under Sec.Sec. 2.80 through 2.90 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

                     Responsibilities of Requesters



Sec.  2.282  How can I obtain employee testimony or Department records?

    (a) To obtain employee testimony, you must submit:
    (1) A written request (hereafter a ``Touhy Request;'' seeSec. 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 withSec. 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.  2.283  If I serve a subpoena duces tecum, must I also submit
a Touhy request?

    Yes. If you serve a subpoena for employee testimony, you also must 
submit a request under United States ex rel. Touhy v. Regan, 340 U.S. 
462 (1951)? If you serve a subpoena duces tecum for records in the 
possession of the Department, you also must submit a Touhy Request.



Sec.  2.284  What information must I put in my Touhy Request?

    Your Touhy Request must:
    (a) Identify the employee or record;
    (b) Describe the relevance of the desired testimony or records to 
your proceeding and provide a copy of the pleadings underlying your 
request;
    (c) Identify the parties to your proceeding and any known 
relationships they have to the Department's mission or programs;
    (d) Show that the desired testimony or records are not reasonably 
available from any other source;
    (e) Show that no record could be provided and used in lieu of 
employee testimony;
    (f) Provide the substance of the testimony expected of the employee; 
and
    (g) Explain why you believe your Touhy Request complies withSec. 
2.88.



Sec.  2.285  How much will I be charged?

    We will charge you the costs, including travel expenses, for 
employees to testify under the relevant substantive and procedural laws 
and regulations. You must pay costs for record production under 43 CFR 
part 2, appendix A. Costs must be paid by check or money order payable 
to the Department of the Interior.



Sec.  2.286  Can I get an authenticated copy of a Department record?

    Yes. We may provide an authenticated copy of a Department record, 
for purposes of admissibility under Federal, State or Tribal law. We 
will do this only if the record has been officially released or would 
otherwise be released underSec. 2.13 or this subpart.

                    Responsibility of the Department



Sec.  2.287  How will the Department process my Touhy Request?

    (a) The appropriate Department official will decide whether to grant 
or deny your Touhy Request. Our Solicitor's Office or, in the case of 
the Office of Inspector General, its General Counsel, may negotiate with 
you or your attorney to refine or limit both the timing and content of 
your Touhy Request.

[[Page 45]]

When necessary, the Solicitor's Office or, in the case of the Office of 
Inspector General, its General Counsel, also will coordinate with the 
Department of Justice to file appropriate motions, including motions to 
remove the matter to Federal court, to quash, or to obtain a protective 
order.
    (b) We will limit our decision to allow employee testimony to the 
scope of your Touhy Request.
    (c) If you fail to follow the requirements of this Subpart, we will 
not allow the testimony or produce the records.
    (d) If your Touhy Request is complete, we will consider the request 
underSec. 2.88.



Sec.  2.288  What criteria will the Department consider in responding
to my Touhy Request?

    In deciding whether to grant your Touhy Request, the appropriate 
Department official will consider:
    (a) Your ability to obtain the testimony or records from another 
source;
    (b) The appropriateness of the employee testimony and record 
production under the relevant regulations of procedure and substantive 
law, including the FOIA or the Privacy Act; and
    (c) Our ability to:
    (1) Conduct our official business unimpeded;
    (2) Maintain impartiality in conducting our business;
    (3) Minimize the possibility that we will become involved in issues 
that are not related to our mission or programs;
    (4) Avoid spending public employee's time for private purposes;
    (5) Avoid the negative cumulative effect of granting similar 
requests;
    (6) Ensure that privileged or protected matters remain confidential; 
and
    (7) Avoid undue burden on us.

                      Responsibilities of Employees



Sec.  2.289  What must I, as an employee, do upon receiving a request?

    (a) If you receive a request or subpoena that does not include a 
Touhy Request, you must immediately notify your supervisor and the 
Solicitor's Office, or the General Counsel of the Office of the 
Inspector General, as applicable, for assistance in issuing the proper 
response.
    (b) If you receive a Touhy Request, you must promptly notify your 
supervisor and forward the request to the head of your bureau, division 
or office. After consulting with the Solicitor's Office or, in the case 
of the Office of Inspector General, its General Counsel, the official in 
charge will decide whether to grant the Touhy Request underSec. 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.  2.290  Must I get approval before testifying as an expert 
witness on a subject outside the scope of my official duties?

    (a) You must comply with 5 CFR 2635.805(c), which details the 
authorization procedure for an employee to testify as an expert witness, 
not on behalf of the United States, in any judicial or administrative 
proceeding in which the United States is a party or has a direct and 
substantial interest. This procedure means:
    (1) You must obtain the written approval of your Deputy Ethics 
Official;
    (2) You must be in an approved leave status if you testify during 
duty hours; and
    (3) You must state for the record that you are appearing as a 
private individual and that your testimony does

[[Page 46]]

not represent the official views of the Department.
    (b) If you testify as an expert witness on a matter outside the 
scope of your official duties, and which is not covered by paragraph (a) 
of this section, you must comply with 5 CFR 2635.802 and 5 CFR 3501.105.



                 Sec. Appendix A to Part 2--Fee Schedule

------------------------------------------------------------------------
              Types of Records                           Fee
------------------------------------------------------------------------
(1) Physical records:
Pages no larger than 8.5 x 14 inches, when   $.15 per page ($.30 for
 reproduced by standard office copying        double-sided copying).
 machines or scanned into an electronic
 format
Color copies of pages no larger than 8.5 x   $.90 per page.
 11 inches.
Pages larger than 8.5 x 14 inches..........  Direct cost to DOI.
Color copies of pages no larger than 11 x    $1.50 per page.
 17 inches.
Photographs and records requiring special    Direct cost to DOI.
 handling (for example, because of age,
 size, or format).
(2) Electronic records:
Charges for services related to processing   Direct cost to DOI.
 requests for electronic records.
(3) Certification                            Fee.
Each certificate of verification attached    $.25
 to authenticate copies of records.
(4) Postage:
Charges that exceed the cost of first class  Postage or delivery charge.
 postage, such as express mail or overnight
 delivery.
(5) Other Services:
Cost of special services or materials,       Direct cost to DOI.
 other than those provided for by this fee
 schedule, when requester is notified of
 such costs in advance and agrees to pay
 them.
------------------------------------------------------------------------


[77 FR 76914, Dec. 31, 2012]



 Sec. Appendix B to Part 2--Mineral Leasing Act and Mineral Leasing Act 
                    for Acquired Lands--Special Rules

    (a) Definitions. As used in the section:
    (1) Exploration license means a license issued by the Secretary of 
the Interior to conduct coal exploration operations on land subject to 
the Mineral Leasing Act, under 30 U.S.C. 201(b), or subject to the 
Mineral Leasing Act for Acquired Lands, under 30 U.S.C. 351-360.
    (2) Fair-market value of coal to be leased means the minimum amount 
of a bid the Secretary is willing to accept in leasing coal within 
leasing tracts offered in general lease sales or reserved and offered 
for lease to public bodies, including Federal agencies, rural electric 
cooperatives, or non-profit corporations controlled by any of such 
entities, under 30 U.S.C. 201(a)(1) or 30 U.S.C. 351-360.
    (3) Information means data, statistics, samples and other facts, 
whether analyzed or processed or not, pertaining to Federal coal 
resources.
    (b) Applicability. This Appendix applies to the following categories 
of information:
    (1) Category A. Information provided to or obtained by a bureau 
under 30 U.S.C. 201(b)(3) (and corresponding information under 30 U.S.C. 
351-360) from the holder of an exploration license;
    (2) Category B. Information acquired from commercial or other 
sources under service contract with United States Geological Survey 
(USGS) under 30 U.S.C. 208-1(b) (and corresponding information under 30 
U.S.C. 351-360), and information developed by USGS under an exploratory 
program authorized by 30 U.S.C. 208-1 (and corresponding information 
under 30 U.S.C. 351-360);
    (3) Category C. Information obtained from commercial sources which 
the commercial source acquired while not under contract with the United 
States Government;
    (4) Category D. Information provided to the Secretary by a Federal 
department or agency under 30 U.S.C. 208-1(e) (and corresponding 
information under 30 U.S.C. 351-360); and
    (5) Category E. The fair-market value of coal to be leased and 
comments received by the Secretary with respect to such value.
    (c) Availability of information. Information obtained by the 
Department from various sources will be made available to the public as 
follows:
    (1) Category A--Information. Category A information must not be 
disclosed to the public until after the areas to which the information 
pertains have been leased by the Department, or until the Secretary 
determines that release of the information to the public would not 
damage the competitive position of the holder of the exploration 
license, whichever comes first.
    (2) Category B--Information. Category B information must not be 
withheld from the public; it will be made available by means of and at 
the time of open filing or publication by USGS.

[[Page 47]]

    (3) Category C--Information. To the extent Category C information is 
proprietary, such information must not be made available to the public 
until after the areas to which the information pertains have been leased 
by the Department.
    (4) Category D--Information. To the extent Category D information is 
proprietary, the Department will withhold the information from the 
public for the length of time the department or agency providing the 
information agreed to when it obtained the information.
    (5) Category E--Information. Category E information must not be made 
public until the lands to which the information pertains have been 
leased, or until the Secretary has determined that its release prior to 
the issuance of a lease is in the public interest.

[67 FR 64541, Oct. 21, 2002. Redesignated at 77 FR 76915, Dec. 31, 2012]



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, 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

[[Page 48]]

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 permitee 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 permitee shall report 
in duplicate to the Smithsonian Institution, in such form as its 
secretary may prescribe, and shall prepare in duplicate a catalogue of 
the collections and of the photographs made during the season, 
indicating therein such material, if any, as may be available for 
exchange.



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 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.

[[Page 49]]



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 [Reserved]

    Subpart D_Rules Applicable in Indian Affairs Hearings and Appeals

                      Scope of Subpart; Definitions

4.200 How to use this subpart.
4.201 Definitions.
4.202-4.308 [Reserved]

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

4.310 Documents.
4.311 Briefs on appeal.
4.312 Board decisions.
4.313 Amicus Curiae; intervention; joinder motions.
4.314 Exhaustion of administrative remedies.
4.315 Reconsideration of a Board decision.
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 a judge's decision or order?
4.321 How do I appeal a judge's decision or order?
4.322 What must an appeal contain?
4.323 Who receives service of the notice of appeal?
4.324 How is the record on appeal prepared?
4.325 How will the appeal be docketed?
4.326 What happens to the record after disposition?

 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.
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.

[[Page 50]]

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.
4.404 Consolidation.
4.405 Extensions of time.
4.406 Intervention; amicus curiae.
4.407 Motions.

                  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; reply briefs.
4.413 Service of notice of appeal.
4.414 Answers.

                    Actions by Board of Land Appeals

4.415 Motion for a hearing on an appeal involving questions of fact.
4.416 Appeals of wildfire management decisions.

                           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 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.
4.452-9 Appeal to Board.

        Grazing Procedures (Inside and Outside Grazing Districts)

4.470 How to appeal a final BLM grazing decision to an administrative 
          law judge.
4.471 How to petition for a stay of a final BLM grazing decision.
4.472 Action on an appeal and petition for a stay.
4.473 Time and place of hearing; notice; intervenors.
4.474 Authority of administrative law judge.
4.475 Service.
4.476 Conduct of hearing; reporter's fees; transcript.
4.477 Findings and conclusions; decision by administrative law judge.
4.478 Appeals to the Board of Land Appeals; judicial review.
4.479 Effectiveness of decision during appeal.
4.480 Conditions of decision action.

 Subpart F_Implementation of the Equal Access to Justice Act in Agency 
                               Proceedings

                           General Provisions

4.601 What is the purpose of this subpart?
4.602 What definitions apply to this subpart?
4.603 What proceedings are covered by this subpart?
4.604 When am I eligible for an award?
4.605 Under what circumstances may I receive an award?
4.606 What fees and expenses may be allowed?

                  Information Required from Applicants

4.610 What information must my application for an award contain?
4.611 What information must I include in my net worth exhibit?

[[Page 51]]

4.612 What documentation of fees and expenses must I provide?
4.613 When may I file an application for an award?

                 Procedures for Considering Applications

4.620 How must I file and serve documents?
4.621 When may the Department or other agency file an answer?
4.622 When may I file a reply?
4.623 When may other parties file comments?
4.624 When may further proceedings be held?
4.625 How will my application be decided?
4.626 How will my appeal from a decision be handled?
4.627 May I seek judicial review of a final decision?
4.628 How will I obtain payment of an 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?

[[Page 52]]

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?

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.
4.1117 Reconsideration.

                          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.

[[Page 53]]

4.1203 Application for temporary relief from alleged discriminatory 
          acts.
4.1204 Determination by administrative law judge.
4.1205 Appeals.

                    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.

   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 Motion for a hearing on an appeal involving issues of fact.

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

4.1287 Action by administrative law judge.
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.

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

4.1380 Scope.

[[Page 54]]

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: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et 
seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

    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 deciding matters within the jurisdiction of the 
Department involving hearings, appeals, and other review functions of 
the Secretary. The Office may hear, consider, and decide those matters 
as fully and finally as might the Secretary, subject to any limitations 
on its authority imposed by the Secretary. Principal components of the 
Office include:
    (a) One or more Hearings Divisions consisting of administrative law 
judges who are authorized to conduct hearings in cases required by law 
to be conducted under 5 U.S.C. 554, and other deciding officials who are 
authorized to conduct hearings in cases arising under statutes and 
regulations of the Department; and
    (b) Appeals Boards, shown below, with administrative jurisdiction 
and special procedural rules as indicated. General rules applicable to 
all types of proceedings are set forth in subpart B of this part. 
Therefore, for information as to applicable rules, reference should be 
made to the special rules in the subpart relating to the particular type 
of proceeding, as indicated, and to the general rules in subpart B of 
this part. Wherever there is any conflict between one of the general 
rules in subpart B of this part and a special rule in another subpart 
applicable to a particular type of proceeding, the special rule will 
govern. Reference should be made also to the governing laws, substantive 
regulations and policies of the Department relating to the proceeding. 
In addition, reference should be made to part 1 of this subtitle which 
regulates practice before the Department of the Interior.
    (1) Board of Indian Appeals. The Board decides finally for the 
Department appeals to the head of the Department pertaining to:
    (i) Administrative actions of officials of the Bureau of Indian 
Affairs, issued under 25 CFR chapter I, except as limited in 25 CFR 
chapter I orSec. 4.330 of this part, and
    (ii) Decisions and orders of administrative law judges and Indian 
probate judges in Indian probate matters, other than those involving 
estates of the Five Civilized Tribes of Indians. The Board also decides 
such other matters pertaining to Indians as are referred to it by the 
Secretary, the Director of the Office of Hearings and Appeals, or the 
Assistant Secretary-Indian Affairs for exercise of review authority of 
the Secretary. Special regulations applicable

[[Page 55]]

to proceedings before the Board are contained in subpart D of this part.
    (2) Board of Land Appeals. The Board decides finally for the 
Department appeals to the head of the Department from decisions rendered 
by Departmental officials relating to: (i) The use and disposition of 
public lands and their resources, including land selections arising 
under the Alaska Native Claims Settlement Act, as amended; (ii) the use 
and disposition of mineral resources in certain acquired lands of the 
United States and in the submerged lands of the Outer Continental Shelf; 
and (iii) the conduct of surface coal mining under the Surface Mining 
Control and Reclamation Act of 1977. Special procedures for hearings, 
appeals and contests in public land cases are contained in subpart E of 
this part; special procedures for hearings and appeals under the Surface 
Mining Control and Reclamation Act of 1977 are contained in subpart L of 
this part.
    (3) Ad Hoc Board of Appeals. Appeals to the head of the Department 
which do not lie within the appellate review jurisdiction of an 
established Appeals Board and which are not specifically excepted in the 
general delegation of authority to the Director may be considered and 
ruled upon by the Director or by Ad Hoc Boards of Appeals appointed by 
the Director to consider the particular appeals and to issue decisions 
thereon, deciding finally for the Department all questions of fact and 
law necessary for the complete adjudication of the issues. Jurisdiction 
of the Boards would include, but not be limited to, the appellate and 
review authority of the Secretary referred to in parts 13, 21, and 230 
of this title, and in 36 CFR parts 8 and 20. Special regulations 
applicable to proceedings in such cases are contained in subpart G of 
this part.

(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; 75 FR 
64663, Oct. 20, 2010]



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 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

[[Page 56]]

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 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.

[[Page 57]]

    (b) Standards and procedures for obtaining a stay. Except as 
otherwise provided by law or other pertinent regulation:
    (1) A petition for a stay of a decision pending appeal shall show 
sufficient justification based on the following standards:
    (i) The relative harm to the parties if the stay is granted or 
denied,
    (ii) The likelihood of the appellant's success on the merits,
    (iii) The likelihood of immediate and irreparable harm if the stay 
is not granted, and
    (iv) Whether the public interest favors granting the stay;
    (2) The appellant requesting the stay bears the burden of proof to 
demonstrate that a stay should be granted;
    (3) The appellant shall serve a copy of its notice of appeal and 
petition for a stay on each party named in the decision from which the 
appeal is taken, and on the Director or the Appeals Board to which the 
appeal is taken, at the same time such documents are served on the 
appropriate officer of the Department; any party, including the officer 
who made the decision being appealed, may file a response to the stay 
petition within 10 days after service; failure to file a response shall 
not result in a default on the question of whether a stay should be 
granted; service shall be made by delivering copies personally or by 
sending them by registered or certified mail, return receipt requested; 
and
    (4) The Director or an Appeals Board shall grant or deny a petition 
for a stay pending appeal, either in whole or in part, on the basis of 
the factors listed in paragraph (b)(1) of this section, within 45 
calendar days of the expiration of the time for filing a notice of 
appeal.
    (c) Exhaustion of administrative remedies. No decision which at the 
time of its rendition is subject to appeal to the Director or an Appeals 
Board shall be considered final so as to be agency action subject to 
judicial review under 5 U.S.C. 704, unless a petition for a stay of 
decision has been timely filed and the decision being appealed has been 
made effective in the manner provided in paragraphs (a)(3) or (b)(4) of 
this section or a decision has been made effective pending appeal 
pursuant to paragraph (a)(1) of this section or pursuant to other 
pertinent regulation.
    (d) Finality of decision. No further appeal will lie in the 
Department from a decision of the Director or an Appeals Board of the 
Office of Hearings and Appeals. Unless otherwise provided by regulation, 
reconsideration of a decision may be granted only in extraordinary 
circumstances where, in the judgment of the Director or an Appeals 
Board, sufficient reason appears therefor. Requests for reconsideration 
must be filed promptly, or within the time required by the regulations 
relating to the particular type of proceeding concerned, and must state 
with particularity the error claimed. The filing and pendency of a 
request for reconsideration shall not operate to stay the effectiveness 
of the decision involved unless so ordered by the Director or an Appeals 
Board. A request for reconsideration need not be filed to exhaust 
administrative remedies.

[36 FR 7186, Apr. 15, 1971, as amended at 58 FR 4942, Jan. 19, 1993; 75 
FR 64663, Oct. 20, 2010]



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 its regular business hours and by a person authorized to receive 
it. A document received after the office's regular business hours is 
considered filed on the next business day.
    (b) Service generally. A copy of each document filed in a proceeding 
before the Office of Hearings and Appeals must be served by the filing 
party on the other party or parties in the case, except as otherwise 
provided bySec. 4.31. In all cases where a party is represented by an 
attorney, such attorney will be recognized as fully controlling the case 
on behalf of his/her client, and service of any document relating to the 
proceeding shall be made upon such attorney in addition to any other 
service specifically required by law or by order of a presiding official 
or an appeals board. Where a party is represented by more than one 
attorney, service upon one of the attorneys shall be sufficient.

[[Page 58]]

    (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 toSec. 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; 75 
FR 64663, Oct. 20, 2010]



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.



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

[[Page 59]]

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 toSec. 
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) Prohibition. Except to the extent 
required for the disposition of ex parte matters as authorized by law, 
there shall be no communication concerning the merits of a proceeding 
between any party to the proceeding or any person interested in the 
proceeding or any representative of a party or interested person and any 
Office personnel involved or who may reasonably be expected to become 
involved in the decisionmaking process on that proceeding, unless the 
communication, if oral, is made in the presence of all other parties or 
their representatives, or, if written, is furnished to all other 
parties. Proceedings include cases pending before the Office, 
rulemakings amending this Part 4 that might affect a pending case, 
requests for reconsideration or review by the Director, and any other 
related action pending before the Office. The terms ``interested 
person'' and ``person interested in the proceeding'' include any 
individual or other person with an interest in the agency proceeding 
that is

[[Page 60]]

greater than the interest that the public as a whole may have. This 
regulation does not prohibit communications concerning case status or 
advice concerning compliance with procedural requirements unless the 
area of inquiry is in fact an area of controversy in the proceeding. Any 
oral communication made in violation of this regulation shall be reduced 
to writing in a memorandum to the file by the person receiving the 
communication and shall be included in the record. Any written 
communication made in violation of this regulation shall be included in 
the record. In proceedings other than informal rulemakings copies of the 
memorandum or communication shall be provided to all parties, who shall 
be given an opportunity to respond in writing.
    (2) Sanctions. The administrative law judge, board, or Director who 
has responsibility for the matter with respect to which a prohibited 
communication has been knowingly made may impose appropriate sanctions 
on the offending person or persons, which may include requiring an 
offending party to show cause why its claim, motion, or interest should 
not be dismissed, denied, or otherwise adversely affected; disciplining 
offending Office personnel pursuant to the Department's standards of 
conduct (43 CFR part 20); and invoking such sanctions against other 
offending persons as may be appropriate under the circumstances.
    (c) Disqualification. (1) An Office of Hearings and Appeals deciding 
official must withdraw from a case if circumstances exist that would 
disqualify a judge in such circumstances under the recognized canons of 
judicial ethics.
    (2) A party may file a motion seeking the disqualification of a 
deciding official, setting forth in detail the circumstances that the 
party believes require disqualification. Any supporting facts must be 
established by affidavit or other sufficient evidence. A copy of the 
motion should be sent to the Director.
    (3) The head of the appropriate unit within the Office or the 
Director may decide whether disqualification is required if the deciding 
official does not withdraw under paragraph (c)(1) of this section or in 
response to a motion under paragraph (c)(2) of this section.
    (4) For purposes of this section, ``deciding official'' includes an 
attorney decision maker or Indian probate judge as defined inSec. 
4.201, an administrative law judge, an administrative judge, or a member 
of any Board.

[36 FR 7186, Apr. 15, 1971, as amended at 50 FR 43705, Oct. 29, 1985; 53 
FR 49660, Dec. 9, 1988; 70 FR 11812, Mar. 9, 2005]



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

[[Page 61]]

claims that some or all of the information contained in that document is 
exempt from the mandatory public disclosure requirements of the Freedom 
of Information Act (5 U.S.C. 552), is information referred to in section 
1905 of title 18 of the United States Code (disclosure of confidential 
information), or is otherwise exempt by law from public disclosure, the 
person:
    (1) Must indicate in the document that it is exempt, or contains 
information which is exempt, from disclosure;
    (2) Must request the presiding officer or appeals board not to 
disclose such information except to the parties to the proceeding under 
the conditions provided in paragraphs (b) and (c) of this section, and 
must serve the request upon the parties to the proceeding. The request 
shall include the following items:
    (i) A copy of the document from which has been deleted the 
information for which the person requests nondisclosure; if it is not 
practicable to submit such copy of the document because deletion of the 
information would render the document unintelligible, a description of 
the document may be substituted;
    (ii) A statement specifying why the information is confidential, if 
the information for which nondisclosure is requested is claimed to come 
within the exception in 5 U.S.C. 552(b)(4) for trade secrets and 
commercial or financial information:
    (iii) A statement specifying the justification for nondisclosure, if 
the information for which nondisclosure is requested is not within the 
exception in 5 U.S.C. 552(b)(4).
    (b) If information is submitted in accordance with paragraph (a) of 
this section, the information will not be disclosed except as provided 
in the Freedom of Information Act, in accordance with part 2 of this 
title, or upon request from a party to the proceeding under the 
restrictions stated in paragraph (c) of this section.
    (c) At any time, a party may request the presiding officer or 
appeals board to direct a person submitting information under paragraph 
(a) of this section to provide that information to the party. The 
presiding officer or board will so direct, unless paragraph (d) of this 
section is applicable, if the party requesting the information agrees 
under oath in writing:
    (1) Not to use or disclose the information except in the context of 
the proceeding conducted pursuant to this part; and
    (2) 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

[[Page 62]]

board may assume that there is no objection to public disclosure of the 
document in its entirety.
    (f) Where a decision by a presiding officer or appeals board is 
based in whole or in part on evidence not included in the public record 
or disclosed to all parties, the decision shall so state, specifying the 
nature of the evidence and the provision of law under which disclosure 
was denied, and the evidence so considered shall be retained under seal 
as part of the official record.

[53 FR 49661, Dec. 9, 1988]

Subpart C [Reserved]



    Subpart D_Rules Applicable in Indian Affairs Hearings and Appeals

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; Pub. L. 99-
264, 100 Stat. 61, as amended.

    Cross Reference: For regulations pertaining to the processing of 
Indian probate matters within the Bureau of Indian Affairs, see 25 CFR 
part 15. For regulations pertaining to the probate of Indian trust 
estates within the Probate Hearings Division, Office of Hearings and 
Appeals, see 43 CFR part 30. For regulations pertaining to the 
authority, jurisdiction, and membership of the Board of Indian Appeals, 
Office of Hearings and Appeals, see subpart A of this part. For 
regulations generally applicable to proceedings before the Hearings 
Divisions and Appeal Boards of the Office of Hearings and Appeals, see 
subpart B of this part.

                      Scope of Subpart; Definitions

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



Sec.  4.200  How to use this subpart.

    (a) The following table is a guide to the relevant contents of this 
subpart by subject matter.

------------------------------------------------------------------------
     For provisions relating to . . .               Consult . . .
------------------------------------------------------------------------
(1) Appeals to the Board of Indian Appeals Sec.Sec.  4.310 through
 generally.                                  4.318.
(2) Appeals to the Board of Indian Appeals Sec.Sec.  4.201 and 4.320
 from decisions of the Probate Hearings      through 4.326.
 Division in Indian probate matters.
(3) Appeals to the Board of Indian Appeals Sec.Sec.  4.201 and 4.330
 from actions or decisions of BIA.           through 4.340.
(4) Review by the Board of Indian Appeals  Sec.Sec.  4.201 and 4.330
 of other matters referred to it by the      through 4.340.
 Secretary, Assistant Secretary-Indian
 Affairs, or Director-Office of Hearings
 and Appeals.
(5) Determinations under the White Earth   Sec.Sec.  4.350 through
 Reservation Land Settlement Act of 1985.    4.357.
------------------------------------------------------------------------

    (b) Except as limited by the provisions of this part, the 
regulations in subparts A and B of this part apply to these proceedings.

[73 FR 67287, Nov. 13, 2008]



Sec.  4.201  Definitions.

    Administrative law judge (ALJ) means an administrative law judge 
with OHA appointed under the Administrative Procedure Act, 5 U.S.C. 
3105.
    Agency means:
    (1) The Bureau of Indian Affairs (BIA) agency office, or any other 
designated office in BIA, having jurisdiction over trust or restricted 
land and trust personalty; and
    (2) Any office of a tribe that has entered into a contract or 
compact to fulfill the probate function under 25 U.S.C. 450f or 458cc.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    Board means the Interior Board of Indian Appeals within OHA.
    Day means a calendar day.
    Decedent means a person who is deceased.
    Decision or order (or decision and order) means:
    (1) A written document issued by a judge making determinations as to 
heirs, wills, devisees, and the claims of creditors, and ordering 
distribution of trust or restricted land or trust personalty;
    (2) The decision issued by an attorney decision maker in a summary 
probate proceeding; or
    (3) A decision issued by a judge finding that the evidence is 
insufficient to determine that a person is deceased by reason of 
unexplained absence.
    Devise means a gift of property by will. Also, to give property by 
will.
    Devisee means a person or entity that receives property under a 
will.

[[Page 63]]

    Estate means the trust or restricted land and trust personalty owned 
by the decedent at the time of death.
    Formal probate proceeding means a proceeding, conducted by a judge, 
in which evidence is obtained through the testimony of witnesses and the 
receipt of relevant documents.
    Heir means any individual or entity eligible to receive property 
from a decedent in an intestate proceeding.
    Individual Indian Money (IIM) account means an interest-bearing 
account for trust funds held by the Secretary that belong to a person 
who has an interest in trust assets. These accounts are under the 
control and management of the Secretary.
    Indian probate judge (IPJ) means an attorney with OHA, other than an 
ALJ, to whom the Secretary has delegated the authority to hear and 
decide Indian probate cases.
    Interested party means any of the following:
    (1) Any potential or actual heir;
    (2) Any devisee under a will;
    (3) Any person or entity asserting a claim against a decedent's 
estate;
    (4) Any tribe having a statutory option to purchase the trust or 
restricted property interest of a decedent; or
    (5) Any co-owner exercising a purchase option.
    Intestate means that the decedent died without a valid will as 
determined in the probate proceeding.
    Judge, except as used in the term ``administrative judge,'' means an 
ALJ or IPJ.
    LTRO means the Land Titles and Records Office within BIA.
    Probate means the legal process by which applicable tribal, Federal, 
or State law that affects the distribution of a decedent's estate is 
applied in order to:
    (1) Determine the heirs;
    (2) Determine the validity of wills and determine devisees;
    (3) Determine whether claims against the estate will be paid from 
trust personalty; and
    (4) Order the transfer of any trust or restricted land or trust 
personalty to the heirs, devisees, or other persons or entities entitled 
by law to receive them.
    Restricted property means real property, the title to which is held 
by an Indian but which cannot be alienated or encumbered without the 
Secretary's consent. For the purposes of probate proceedings, restricted 
property is treated as if it were trust property. Except as the law may 
provide otherwise, the term ``restricted property'' as used in this part 
does not include the restricted lands of the Five Civilized Tribes of 
Oklahoma or the Osage Nation.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Trust personalty means all tangible personal property, funds, and 
securities of any kind that are held in trust in an IIM account or 
otherwise supervised by the Secretary.
    Trust property means real or personal property, or an interest 
therein, the title to which is held in trust by the United States for 
the benefit of an individual Indian or tribe.
    Will means a written testamentary document that was executed by the 
decedent and attested to by two disinterested adult witnesses, and that 
states who will receive the decedent's trust or restricted property.

[73 FR 67287, Nov. 13, 2008]



Sec.Sec. 4.202-4.308  [Reserved]

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

    Source: 70 FR 11825, Mar. 9, 2005, unless otherwise noted.



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:
    (1) For most documents, the date of mailing or the date of personal 
delivery; or
    (2) For a motion for the Board to assume jurisdiction over an appeal 
under 25 CFR 2.20(e), the date that the Board receives the motion.
    (b) Serving notices of appeal and pleadings. Any party filing a 
notice of appeal or pleading before the Board must serve copies on all 
interested parties in

[[Page 64]]

the proceeding. Service must be accomplished by personal delivery or 
mailing.
    (1) Where a party is represented in an appeal by an attorney or 
other representative authorized under 43 CFR 1.3, service of any 
document on the attorney or representative is service on the party.
    (2) Where a party is represented by more than one attorney, service 
on any one attorney is sufficient.
    (3) The certificate of service on an attorney or representative must 
include the name of the party whom the attorney or representative 
represents and indicate that service was made on the attorney or 
representative.
    (c) Computation of time for filing and service. Except as otherwise 
provided by law, in computing any period of time prescribed for filing 
and serving a document:
    (1) The day upon which the decision or document to be appealed or 
answered was served or the day of any other event after which a 
designated period of time begins to run is not to be included;
    (2) The last day of the period is to be included, unless it is a 
nonbusiness day (e.g., Saturday, Sunday, or Federal holiday), in which 
event the period runs until the end of the next business day; and
    (3) When the time prescribed or allowed is 7 days or less, 
intermediate Saturdays, Sundays, Federal holidays, and other nonbusiness 
days are excluded from the computation.
    (d) Extensions of time. (1) The Board may extend the time for filing 
or serving any document except a notice of appeal.
    (2) A request to the Board for an extension of time must be filed 
within the time originally allowed for filing.
    (3) For good cause the Board may grant an extension of time on its 
own initiative.
    (e) Retention of documents. All documents received in evidence at a 
hearing or submitted for the record in any proceeding before the Board 
will be retained with the official record of the proceeding. The Board, 
in its discretion, may permit the withdrawal of original documents while 
a case is pending or after a decision becomes final upon conditions as 
required by the Board.



Sec.  4.311  Briefs on appeal.

    (a) The appellant may file an opening brief within 30 days after 
receiving the notice of docketing. The appellant must serve copies of 
the opening brief upon all interested parties or counsel and file a 
certificate with the Board showing service upon the named parties. 
Opposing parties or counsel will have 30 days from receiving the 
appellant's brief to file answer briefs, copies of which must be served 
upon the appellant or counsel and all other interested parties. A 
certificate showing service of the answer brief upon all parties or 
counsel must be attached to the answer filed with the Board.
    (b) The appellant may reply to an answering brief within 15 days 
from its receipt. A certificate showing service of the reply brief upon 
all parties or counsel must be attached to the reply filed with the 
Board. Except by special permission of the Board, no other briefs will 
be allowed on appeal.
    (c) BIA is considered an interested party in any proceeding before 
the Board. The Board may request that BIA submit a brief in any case 
before the Board.
    (d) An original only of each document should be filed with the 
Board. Documents should not be bound along the side.
    (e) The Board may also specify a date on or before which a brief is 
due. Unless expedited briefing has been granted, such date may not be 
less than the appropriate period of time established in this section.



Sec.  4.312  Board decisions.

    Decisions of the Board will be made in writing and will set forth 
findings of fact and conclusions of law. The decision may adopt, modify, 
reverse, or set aside any proposed finding, conclusion, or order of an 
administrative law judge, Indian probate judge, or BIA official. 
Distribution of decisions must be made by the Board to all parties 
concerned. Unless otherwise stated in the decision, rulings by the Board 
are final for the Department and must be given immediate effect.

[[Page 65]]



Sec.  4.313  Amicus curiae; intervention; joinder motions.

    (a) Any interested person or Indian tribe desiring to intervene, to 
join other parties, to appear as amicus curiae, or to obtain an order in 
an appeal before the Board must apply in writing to the Board stating 
the grounds for the action sought. The Board may grant the permission or 
relief requested for specified purposes and subject to limitations it 
established. This section will be liberally construed.
    (b) Motions to intervene, to appear as amicus curiae, to join 
additional parties, or to obtain an order in an appeal pending before 
the Board must be served in the same manner as appeal briefs.



Sec.  4.314  Exhaustion of administrative remedies.

    (a) No decision of an administrative law judge, Indian probate 
judge, or BIA official that at the time of its rendition is subject to 
appeal to the Board, will be considered final so as to constitute agency 
action subject to judicial review under 5 U.S.C. 704, unless it has been 
made effective pending a decision on appeal by order of the Board.
    (b) No further appeal will lie within the Department from a decision 
of the Board.
    (c) The filing of a petition for reconsideration is not required to 
exhaust administrative remedies.



Sec.  4.315  Reconsideration of a Board decision.

    (a) Reconsideration of a decision of the Board will be granted only 
in extraordinary circumstances. Any party to the decision may petition 
for reconsideration. The petition must be filed with the Board within 30 
days from the date of the decision and must contain a detailed statement 
of the reasons why reconsideration should be granted.
    (b) A party may file only one petition for reconsideration.
    (c) The filing of a petition will not stay the effect of any 
decision or order and will not affect the finality of any decision or 
order for purposes of judicial review, unless so ordered by the Board.



Sec.  4.316  Remands from courts.

    Whenever any matter is remanded from any Federal court to the Board 
for further proceedings, the Board will remand the matter to an 
administrative law judge, an Indian probate judge, or BIA. In the 
alternative, to the extent the court's directive and time limitations 
permit, the parties will be allowed an opportunity to submit to the 
Board a report recommending procedures for it to follow to comply with 
the court's order. The Board will enter special orders governing matters 
on remand.



Sec.  4.317  Standards of conduct.

    (a) Inquiries about cases. All inquiries about any matter pending 
before the Board must be made to the Chief Administrative Judge of the 
Board or the administrative judge assigned the matter.
    (b) Disqualification. An administrative judge may withdraw from a 
case in accordance with standards found in the recognized canons of 
judicial ethics if the judge deems this action appropriate. If, before a 
decision of the Board, a party files an affidavit of personal bias or 
disqualification with substantiating facts, and the administrative judge 
concerned does not withdraw, the OHA Director will determine the matter 
of disqualification.



Sec.  4.318  Scope of review.

    An appeal will be limited to those issues that were before the 
administrative law judge or Indian probate judge upon the petition for 
rehearing, reopening, or regarding tribal purchase of interests, or 
before the BIA official on review. However, except as specifically 
limited in this part or in title 25 of the Code of Federal Regulations, 
the Board will not be limited in its scope of review and may exercise 
the inherent authority of the Secretary to correct a manifest injustice 
or error where appropriate.

        Appeals to the Board of Indian Appeals in Probate Matters

    Source: 70 FR 11826, Mar. 9, 2005, unless otherwise noted.

[[Page 66]]



Sec.  4.320  Who may appeal a judge's decision or order?

    Any interested party has a right to appeal to the Board if he or she 
is adversely affected by a decision or order of a judge under part 30 of 
this subtitle:
    (a) On a petition for rehearing;
    (b) On a petition for reopening;
    (c) Regarding purchase of interests in a deceased Indian's estate; 
or
    (d) Regarding modification of the inventory of an estate.

[76 FR 7505, Feb. 10, 2011]



Sec.  4.321  How do I appeal a judge's decision or order?

    (a) A person wishing to appeal a decision or order within the scope 
ofSec. 4.320 must file a written notice of appeal within 30 days after 
we have mailed the judge's decision or order and accurate appeal 
instructions. We will dismiss any appeal not filed by this deadline.
    (b) The notice of appeal must be signed by the appellant, the 
appellant's attorney, or other qualified representative as provided in 
Sec.  1.3 of this subtitle, and must be 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.

[73 FR 67288, Nov. 13, 2008]



Sec.  4.322  What must an appeal contain?

    (a) Each appeal must contain a written statement of the errors of 
fact and law upon which the appeal is based. This statement may be 
included in either the notice of appeal filed underSec. 4.321(a) or an 
opening brief filed underSec. 4.311(a).
    (b) The notice of appeal must include the names and addresses of the 
parties served.

[73 FR 67288, Nov. 13, 2008]



Sec.  4.323  Who receives service of the notice of appeal?

    (a) The appellant must deliver or mail the original notice of appeal 
to the Board.
    (b) A copy of the notice of appeal must be served on the judge whose 
decision is being appealed, as well as on every other interested party.
    (c) The notice of appeal filed with the Board must include a 
certification that service was made as required by this section.

[73 FR 67288, Nov. 13, 2008]



Sec.  4.324  How is the record on appeal prepared?

    (a) On receiving a copy of the notice of appeal, the judge whose 
decision is being appealed must notify:
    (1) The agency concerned; and
    (2) The LTRO where the original record was filed underSec. 30.233 
of this subtitle.
    (b) If a transcript of the hearing was not prepared, the judge must 
have a transcript prepared and forwarded to the LTRO within 30 days 
after receiving a copy of the notice of appeal. The LTRO must include 
the original transcript in the record.
    (c) Within 30 days of the receipt of the transcript, the LTRO must 
do the following:
    (1) Prepare a table of contents for the record;
    (2) Make two complete copies of the original record, including the 
transcript and table of contents;
    (3) Certify that the record is complete;
    (4) Forward the certified original record, together with the table 
of contents, to the Board by certified mail or other service with 
delivery confirmation; and
    (5) Send one copy of the complete record to the agency.
    (d) While the appeal is pending, the copies of the record will be 
available for inspection at the LTRO and the agency.
    (e) Any party may file an objection to the record. The party must 
file his or her objection with the Board within 15 days after receiving 
the notice of docketing underSec. 4.325.
    (f) For any of the following appeals, the judge must prepare an 
administrative record for the decision and a table of contents for the 
record and must forward them to the Board:
    (1) An interlocutory appeal underSec. 4.28;
    (2) An appeal from a decision under Sec.Sec. 30.126 or 30.127 
regarding modification of an inventory of an estate; or
    (3) An appeal from a decision underSec. 30.124 determining that a 
person for

[[Page 67]]

whom a probate proceeding is sought to be opened is not deceased.

[76 FR 7505, Feb. 10, 2011]



Sec.  4.325  How will the appeal be docketed?

    The Board will docket the appeal on receiving the probate record 
from the LTRO or the administrative record from the judge, and will 
provide a notice of the docketing and the table of contents for the 
record to all interested parties as shown by the record on appeal. The 
docketing notice will specify the deadline for filing briefs and will 
cite the procedural regulations governing the appeal.

[73 FR 67288, Nov. 13, 2008]



Sec.  4.326  What happens to the record after disposition?

    (a) After the Board makes a decision other than a remand, it must 
forward to the designated LTRO:
    (1) The record filed with the Board underSec. 4.324(d) or (f); and
    (2) All documents added during the appeal proceedings, including any 
transcripts and the Board's decision.
    (b) The LTRO must conform the duplicate record retained underSec. 
4.324(b) to the original sent under paragraph (a) of this section and 
forward the duplicate record to the agency concerned.

[73 FR 67288, Nov. 13, 2008]

 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

[[Page 68]]

of the notice of appeal shall simultaneously be filed with the Assistant 
Secretary--Indian Affairs. As required bySec. 4.333 of this part, the 
notice of appeal sent to the Board shall certify that a copy has been 
sent to the Assistant Secretary--Indian Affairs. A notice of appeal not 
timely filed shall be dismissed for lack of jurisdiction. A notice of 
appeal shall include:
    (1) A full identification of the case;
    (2) A statement of the reasons for the appeal and of the relief 
sought; and
    (3) The names and addresses of all additional interested parties, 
Indian tribes, tribal corporations, or groups having rights or 
privileges which may be affected by a change in the decision, whether or 
not they participated as interested parties in the earlier proceedings.
    (b) In accordance with 25 CFR 2.20(c) a notice of appeal shall not 
be effective for 20 days from receipt by the Board, during which time 
the Assistant Secretary--Indian Affairs may decide to review the appeal. 
If the Assistant Secretary--Indian Affairs properly notifies the Board 
that he has decided to review the appeal, any documents concerning the 
case filed with the Board shall be transmitted to the Assistant 
Secretary--Indian Affairs.
    (c) When the appellant is an Indian or Indian tribe not represented 
by counsel, the official who issued the decision appealed shall, upon 
request of the appellant, render such assistance as is appropriate in 
the preparation of the appeal.
    (d) At any time during the pendency of an appeal, an appropriate 
bond may be required to protect the interest of any Indian, Indian 
tribe, or other parties involved.

[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 inSec. 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.

[[Page 69]]



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 upon the exercise of discretionary authority committed to 
the Bureau, and the Board has not otherwise been permitted to adjudicate 
the issue(s) pursuant toSec. 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 toSec. 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 withSec. 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 Sec.Sec. 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

[[Page 70]]

with the White Earth Reservation Settlement Act of 1985 as amended, 
notwithstanding the decedent may have died testate.
    (c) As used herein, the following terms shall have the following 
meanings:
    (1) The term Act means the White Earth Reservation Land Settlement 
Act of 1985 as amended.
    (2) The term Board means the Board of Indian Appeals in the Office 
of Hearings and Appeals, Office of the Secretary.
    (3) The term Project Director means the Superintendent of the 
Minnesota Agency, Bureau of Indian Affairs, or other Bureau of Indian 
Affairs official with delegated authority from the Minneapolis Area 
Director to serve as the federal officer in charge of the White Earth 
Reservation Land Settlement Project.
    (4) The term party (parties) in interest means the Project Director 
and any presumptive or actual heirs of the decedent, or of any issue of 
any subsequently deceased presumptive or actual heir of the decedent.
    (5) The term compensation means a monetary sum, as determined by the 
Project Director, pursuant to section 8(c) of the Act.
    (6) The term administrative judge means an administrative judge or 
an administrative law judge, attorney-advisor, or other appropriate 
official of the Office of Hearings and Appeals to whom the Director of 
the Office of Hearings and Appeals has redelegated his authority, as 
designee of the Secretary, for making heirship determinations as 
provided for in these regulations.
    (7) The term appellant means a party aggrieved by a final order or 
final order upon reconsideration issued by an administrative judge who 
files an appeal with the Board.

[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

[[Page 71]]

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 
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

[[Page 72]]

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.
    (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.

[[Page 73]]



Sec.  4.355  Omitted compensation.

    When, subsequent to the issuance of a final order determining heirs 
underSec. 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 
underSec. 4.352, or by a final order upon reconsideration of an 
administrative judge underSec. 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 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.



 Subpart E_Special Rules Applicable to Public Land Hearings and Appeals

    Authority: Sections 4.470 to 4.480 are also issued under authority 
of 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



Sec.  4.400  Definitions.

    As used in this subpart:
    Administrative law judge means an administrative law judge in the 
Office of Hearings and Appeals, appointed under 5 U.S.C. 3105.
    BIA means the Bureau of Indian Affairs.
    BLM means the Bureau of Land Management.
    Board means the Interior Board of Land Appeals in the Office of 
Hearings and Appeals. The address of the Board is 801 N. Quincy Street, 
Suite 300, Arlington, Virginia 22203. The telephone

[[Page 74]]

number is 703-235-3750, and the facsimile number is 703-235-8349.
    BOEMRE means the Bureau of Ocean Energy Management, Regulation and 
Enforcement.
    Bureau or Office means BIA, BLM, BOEMRE, ONRR, the Deputy Assistant 
Secretary--Natural Resources Revenue, or any successor organization, as 
appropriate.
    Last address of record means the address in a person's most recent 
filing in an appeal or, if there has not been any filing, the person's 
address as provided in the Bureau or Office decision under appeal.
    ONRR means the Office of Natural Resources Revenue.
    Office or officer includes ``administrative law judge'' or ``Board'' 
where the context so requires.
    Party includes a party's representative(s) where the context so 
requires.
    Secretary means the Secretary of the Interior or an authorized 
representative.

[75 FR 64663, Oct. 20, 2010; 75 FR 68704, Nov. 9, 2010]



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 noted upon the records of the land office. Thereafter such 
transferee or encumbrancer must be made a party to any proceedings 
thereafter initiated adverse to the entry.
    (c) Service of documents. (1) A party that files any document under 
this subpart must serve a copy of it concurrently as follows:
    (i) On the appropriate official of the Office of the Solicitor under 
Sec.  4.413(c) and (d);
    (ii) For a notice of appeal and statement of reasons, on each person 
named in the decision under appeal; and
    (iii) For all other documents, on each party to the appeal 
(including intervenors).
    (2) Service on a person or party known to be represented by counsel 
or other designated representative must be made on the representative.
    (3) Service must be made at the last address of record of the person 
or party (if unrepresented) or the representative, unless the person, 
party, or representative has notified the serving party of a subsequent 
change of address.
    (4) Service may be made as shown in the following table:

------------------------------------------------------------------------
       If the document is . . .           Service may be made by . . .
------------------------------------------------------------------------
(i) A notice of appeal...............  (A) Personal delivery;
                                       (B) Registered or certified mail,
                                        return receipt requested;
                                       (C) Delivery service, delivery
                                        receipt requested, if the last
                                        address of record is not a post
                                        office box; or
                                       (D) Electronic means, such as
                                        electronic mail or facsimile, if
                                        the person to be served has
                                        previously consented to that
                                        means in writing.
(ii) Not a notice of appeal..........  (A) Personal delivery;
                                       (B) Mail;
                                       (C) Delivery service, if the last
                                        address of record is not a post
                                        office box; or
                                       (D) Electronic means, such as
                                        electronic mail or facsimile, if
                                        the person to be served has
                                        previously consented to that
                                        means in writing.
------------------------------------------------------------------------


[[Page 75]]

    (5) At the conclusion of any document that a party must serve under 
the regulations in this subpart, the party must sign a written statement 
that:
    (i) Certifies that service has been or will be made in accordance 
with the applicable rules; and
    (ii) Specifies the date and manner of service.
    (6) Service that complies with paragraphs (c)(2) through (4) of this 
section is complete as shown in the following table:

------------------------------------------------------------------------
                                          Service is complete when the
     If service is made by . . .               document is . . .
------------------------------------------------------------------------
(i) Personal delivery................  Delivered to the party.
(ii) Mail or delivery service........  Delivered to the party.
(iii) Electronic means...............  Transmitted to the party, unless
                                        the serving party learns that it
                                        did not reach the party to be
                                        served.
------------------------------------------------------------------------

    (7) In the absence of evidence to the contrary, delivery under 
paragraph (c)(6)(ii) of this section is deemed to take place 5 business 
days after the document was sent. A document is considered sent when it 
is given to the U.S. Postal Service (or deposited in one of its 
mailboxes), properly addressed and with proper postage affixed, or when 
it is given to a delivery service (or deposited in one of its 
receptacles), properly addressed and with the delivery cost prepaid.
    (d) Document format. (1) The format requirements in paragraph (d)(2) 
of this section apply to any pleading, motion, brief, or other document 
filed in a case under this subpart, other than an exhibit or attachment 
or the administrative record.
    (i) An exhibit or attachment must be 8\1/2\ by 11 inches in size or, 
if larger, folded to 8\1/2\ by 11 inches and attached to the document.
    (ii) Any document that does not comply with the requirements in this 
paragraph (d) may be rejected.
    (2) A document filed in a case must:
    (i) Be 8\1/2\ by 11 inches in size;
    (ii) Be printed on just one side of the page;
    (iii) Be clearly typewritten, printed, or otherwise reproduced by a 
process that yields legible and permanent copies;
    (iv) Use 11 point font size or larger;
    (v) Be double-spaced except for the case caption, argument headings, 
long quotations, and footnotes, which may be single-spaced;
    (vi) Have margins of at least 1 inch;
    (vii) Be numbered sequentially, starting on the second page; and
    (vii) Be stapled in the upper left-hand corner, if stapled, or bound 
on the left side, if bound.

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 68 
FR 33803, June 5, 2003; 75 FR 64664, Oct. 20, 2010]



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 bySec. 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) The Board's decision is final agency action and is effective on 
the date it is issued, unless the decision itself provides otherwise.
    (b) The Board may reconsider its decision in extraordinary 
circumstances.
    (1) A party that wishes to request reconsideration of a Board 
decision must file a motion for reconsideration with the Board within 60 
days after the date of the decision.

[[Page 76]]

    (2) The motion may include a request that the Board stay the 
effectiveness of its decision.
    (3) Any other party to the original appeal may file a response to a 
motion for reconsideration with the Board within 21 days after service 
of the motion, unless the Board orders otherwise.
    (4) A motion for reconsideration will not stay the effectiveness or 
affect the finality of the Board's decision unless so ordered by the 
Board for good cause.
    (5) A party does not need to file a motion for reconsideration in 
order to exhaust its administrative remedies.
    (c) A motion for reconsideration must:
    (1) Specifically describe the extraordinary circumstances that 
warrant reconsideration; and
    (2) Include all arguments and supporting documents.
    (d) Extraordinary circumstances that may warrant granting 
reconsideration include, but are not limited to:
    (1) Error in the Board's interpretation of material facts;
    (2) Recent judicial development;
    (3) Change in Departmental policy; or
    (4) Evidence that was not before the Board at the time the Board's 
decision was issued and that demonstrates error in the decision.
    (e) If the motion cites extraordinary circumstances under paragraph 
(d)(4) of this section, it must explain why the evidence was not 
provided to the Board during the course of the original appeal.
    (f) The Board will not grant a motion for reconsideration that:
    (1) Merely repeats arguments made in the original appeal, except in 
cases of demonstrable error; or
    (2) Seeks relief from the legally binding consequences of a statute 
or regulation.

[75 FR 64664, Oct. 20, 2010]



Sec.  4.404  Consolidation.

    If the facts or legal issues in two or more appeals pending before 
the Board are the same or similar, the Board may consolidate the 
appeals, either on motion by a party or at the initiative of the Board.

[75 FR 64665, Oct. 20, 2010]



Sec.  4.405  Extensions of time.

    (a) If a document other than a notice of appeal is required to be 
filed or served within a definite time, a party may seek additional time 
by filing with the Board a motion requesting an extension of time.
    (b) A motion requesting an extension must be filed no later than the 
day before the date the document is due, absent compelling 
circumstances. The motion may be filed and served by facsimile. Section 
4.401(a) does not apply to a motion requesting an extension of time.
    (c) Except as provided in paragraph (f) of this section, before 
filing a motion requesting an extension of time, the moving party must 
make reasonable efforts to contact each other party to determine whether 
the party opposes the motion. The moving party must state in its motion:
    (1) Whether any party it reached opposes the motion; and
    (2) What steps it took to contact any party it was unable to reach.
    (d) Except as provided in paragraph (f) of this section, the party 
must support its motion requesting an extension of time by showing there 
is good cause to grant it.
    (e) A Board order granting or denying a motion requesting an 
extension will state when the document must be filed. Except as provided 
in paragraph (f) of this section, if the Board does not act on a motion 
before the document is due, the document must be filed no later than 15 
days after the original due date, unless the Board orders otherwise.
    (f) A party seeking additional time to file an answer may have one 
automatic extension, not to exceed 30 days, of the deadline inSec. 
4.414(a) by filing a motion for such extension under paragraphs (a) and 
(b) of this section.

[75 FR 64665, Oct. 20, 2010]



Sec.  4.406  Intervention; amicus curiae.

    (a) A person who wishes to intervene in an appeal must file a motion 
to intervene within 30 days after the person knew or should have known 
that the decision had been appealed to the Board.

[[Page 77]]

    (b) A motion to intervene must set forth the basis for the proposed 
intervention, including:
    (1) Whether the person had a right to appeal the decision under 
Sec.  4.410 or would be adversely affected if the Board reversed, 
vacated, set aside, or modified the decision; and
    (2) How and when the person learned of the appeal.
    (c) The Board may:
    (1) Grant the motion to intervene;
    (2) Deny the motion to intervene for good cause, e.g., where 
granting it would disadvantage the rights of the existing parties or 
unduly delay adjudication of the appeal; or
    (3) Grant the motion to intervene but limit the person's 
participation in the appeal.
    (d) A person may file a motion at any time to file a brief as an 
amicus curiae.
    (1) The motion must state the person's interest in the appeal and 
how its brief will be relevant to the issues involved.
    (2) The Board may grant or deny the motion in its discretion. The 
Board may also allow a person to file a brief as amicus curiae if it 
denies the person's motion to intervene.
    (e) A person granted full or limited intervenor status is a party to 
the appeal, while an amicus curiae is not. A person granted amicus 
curiae status must serve its brief on the parties to the appeal.

[75 FR 64665, Oct. 20, 2010]



Sec.  4.407  Motions.

    (a) Any motion filed with the Board must provide a concise statement 
of the reasons supporting the motion.
    (b) When a person or party files a motion, other than a motion for 
an extension of time underSec. 4.405, any party has 15 days after 
service of the motion to file a written response, unless a provision of 
this subpart or the Board by order provides otherwise.
    (c) The Board will rule on any motion as expeditiously as possible.
    (d) The requirements ofSec. 4.401(d) apply to a motion.

[75 FR 64665, Oct. 20, 2010]

                  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 
the Bureau or Office or an administrative law judge has the right to 
appeal to the Board, except:
    (1) As otherwise provided in Group 2400 of chapter II of this title,
    (2) To the extent that decisions of Bureau of Land Management 
officers must first be appealed to an administrative law judge under 
Sec.  4.470 and part 4100 of this title,
    (3) Where a decision has been approved by the Secretary, and
    (4) As provided in paragraph (e) of this section.
    (b) A party to a case, as set forth in paragraph (a) of this 
section, is one who has taken action that is the subject of the decision 
on appeal, is the object of that decision, or has otherwise participated 
in the process leading to the decision under appeal, e.g., by filing a 
mining claim or application for use of public lands, by commenting on an 
environmental document, or by filing a protest to a proposed action.
    (c) Where the Bureau or Office provided an opportunity for 
participation in its decisionmaking process, a party to the case, as set 
forth in paragraph (a) of this section, may raise on appeal only those 
issues:
    (1) Raised by the party in its prior participation; or
    (2) That arose after the close of the opportunity for such 
participation.
    (d) A party to a case is adversely affected, as set forth in 
paragraph (a) of this section, when that party has a legally cognizable 
interest, and the decision on appeal has caused or is substantially 
likely to cause injury to that interest.
    (e) For decisions rendered by Departmental officials relating to 
land selections under the Alaska Native Claims Settlement Act, as 
amended, any party who claims a property interest in land affected by 
the decision, an agency of the Federal Government or a regional

[[Page 78]]

corporation shall have a right to appeal to the Board.

[47 FR 26392, June 18, 1982, as amended at 68 FR 33803, June 5, 2003; 75 
FR 64665, Oct. 20, 2010]



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

    (a) A person who wishes to appeal to the Board must file a notice 
that the person wishes to appeal.
    (1) The notice of appeal must be filed in the office of the officer 
who made the decision (not the Board).
    (2) Except as otherwise provided by law:
    (i) A person served with the decision being appealed must transmit 
the notice of appeal in time for it to be received in the appropriate 
office no later than 30 days after the date of service of the decision; 
and
    (ii) If a decision is published in the Federal Register, a person 
not served with the decision must transmit the notice of appeal in time 
for it to be received in the appropriate office no later than 30 days 
after the date of publication.
    (b) The notice of appeal must give the serial number or other 
identification of the case. The notice of appeal may include a statement 
of reasons for the appeal, and a statement of standing if required by 
Sec.  4.412(b).
    (c) No extension of time will be granted for filing the notice of 
appeal. If a notice of appeal is filed after the grace period provided 
inSec. 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 
inSec. 4.401(a) and the delay in filing is not waived, as provided in 
that section, the notice of appeal will not be considered and the appeal 
will be dismissed by the Board.
    (d) After receiving a timely notice of appeal, the office of the 
officer who made the decision must promptly forward to the Board:
    (1) The notice of appeal;
    (2) Any statement of reasons, statement of standing, and other 
documents included with the notice of appeal; and
    (3) The complete administrative record compiled during the officer's 
consideration of the matter leading to the decision being appealed.

(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; 75 FR 64665, Oct. 20, 2010]



Sec.  4.412  Statement of reasons; statement of standing; reply briefs.

    (a) An appellant must file a statement of reasons for appeal with 
the Board no later than 30 days after the notice of appeal was filed. 
Unless the Board orders otherwise upon motion for good cause shown, the 
text of a statement of reasons may not exceed 30 pages, excluding 
exhibits, declarations, or other attachments.
    (b) Where the decision being appealed relates to land selections 
under the Alaska Native Claims Settlement Act, as amended, the appellant 
also shall file with the Board a statement of facts upon which the 
appellant relies for standing underSec. 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 toSec. 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 inSec. 4.402, unless the delay in filing is 
waived as provided inSec. 4.401(a).
    (d) The filing of a reply brief is discouraged. However, an 
appellant who wishes to file a reply brief may do so within 15 days 
after service of an answer underSec. 4.414.
    (1) The reply brief is limited to the issues raised in the answer.
    (2) Unless the Board orders otherwise upon motion for good cause 
shown, the text of a reply brief may not exceed 20 pages, excluding 
exhibits, declarations, or other attachments.
    (e) The requirements ofSec. 4.401(d) apply to a statement of 
reasons and a reply brief.

[47 FR 26392, June 18, 1982, as amended at 67 FR 4368, Jan. 30, 2002; 75 
FR 64666, Oct. 20, 2010]

[[Page 79]]



Sec.  4.413  Service of notice of appeal.

    (a) The appellant must serve a copy of the notice of appeal on each 
person named in the decision from which the appeal is taken and on the 
Office of the Solicitor as identified in paragraphs (c) and (d) of this 
section. Service must be accomplished and certified as prescribed in 
Sec.  4.401(c).
    (b) Failure to serve a notice of appeal will subject the appeal to 
summary dismissal as provided inSec. 4.402.
    (c) The appellant must serve a copy of the notice of appeal on the 
Office of the Solicitor as shown in the following table.

------------------------------------------------------------------------
   If the appeal is taken from a      Then the appellant must serve the
         decision of . . .                     notice on . . .
------------------------------------------------------------------------
(1) ONRR, the Deputy Assistant      Regional Solicitor, Rocky Mountain
 Secretary--Natural Resources        Region, U.S. Department of the
 Revenue, or BIA concerning          Interior, 755 Parfet Street, Suite
 royalties.                          151, Lakewood, CO 80215.
(2) BOEMRE........................  Associate Solicitor, Division of
                                     Mineral Resources, U.S. Department
                                     of the Interior, Washington, DC
                                     20240.
(3) The Director, BLM.............  (i) If the decision concerns use and
                                     disposition of public lands,
                                     including land selections under the
                                     Alaska Native Claims Settlement
                                     Act, as amended: Associate
                                     Solicitor, Division of Land and
                                     Water Resources, U.S. Department of
                                     the Interior, Washington, DC 20240;
                                     or
                                    (ii) If the decision concerns use
                                     and disposition of mineral
                                     resources: Associate Solicitor,
                                     Division of Mineral Resources, U.S.
                                     Department of the Interior,
                                     Washington, DC 20240.
(4) A BLM State Office (including   The appropriate office identified in
 all District, Field, and Area       paragraph (d) of this section.
 Offices within that State
 Office's jurisdiction).
(5) An Administrative Law Judge...  The persons identified in paragraph
                                     (e) of this section.
------------------------------------------------------------------------

    (d) This paragraph applies to any appeal taken from a decision of a 
BLM State Office, including all District, Field, and Area Offices within 
that State Office's jurisdiction. The appellant must serve documents on 
the Office of the Solicitor in accordance with the following table, 
unless the decision identifies a different official:

------------------------------------------------------------------------
         BLM state office                      Mailing address
------------------------------------------------------------------------
(1) Alaska........................  Regional Solicitor, Alaska Region,
                                     U.S. Department of the Interior,
                                     4230 University Drive, Suite 300,
                                     Anchorage, AK 99508-4626.
(2) Arizona.......................  Field Solicitor, U.S. Department of
                                     the Interior, U.S. Courthouse,
                                     Suite 404, 401 W. Washington St.
                                     SPC 44, Phoenix, AZ 85003.
(3) California....................  Regional Solicitor, Pacific
                                     Southwest Region, U.S. Department
                                     of the Interior, 2800 Cottage Way,
                                     Room E-1712, Sacramento, CA 95825-
                                     1890.
(4) Colorado......................  Regional Solicitor, Rocky Mountain
                                     Region, U.S. Department of the
                                     Interior, 755 Parfet Street, Suite
                                     151, Lakewood, CO 80215.
(5) Eastern States................  (i) For decisions involving
                                     Connecticut, Delaware, Illinois,
                                     Indiana, Iowa, Maine, Maryland,
                                     Massachusetts, Michigan, Minnesota,
                                     New Hampshire, New Jersey, New
                                     York, Ohio, Pennsylvania, Rhode
                                     Island, Vermont, Virginia, West
                                     Virginia, or Wisconsin: Regional
                                     Solicitor, Northeast Region, U.S.
                                     Department of the Interior, One
                                     Gateway Center, Suite 612, Newton,
                                     MA 02458.
                                    (ii) For decisions involving
                                     Alabama, Arkansas, Florida,
                                     Georgia, Kentucky, Louisiana,
                                     Mississippi, Missouri, North
                                     Carolina, South Carolina, or
                                     Tennessee: Regional Solicitor,
                                     Southeast Region, U.S. Department
                                     of the Interior, 75 Spring Street,
                                     SW., Suite 304, Atlanta, Georgia
                                     30303.
(6) Idaho.........................  Field Solicitor, U.S. Department of
                                     the Interior, University Plaza, 960
                                     Broadway Avenue, Suite 400, Boise,
                                     ID 83706.
(7) Montana (covers the states of   (i) Deliveries by U.S. Mail: Field
 Montana, North Dakota, and South    Solicitor, U.S. Department of the
 Dakota).                            Interior, P.O. Box 31394, Billings,
                                     MT 59107-1394.
                                    (ii) All other deliveries: Field
                                     Solicitor, U.S. Department of the
                                     Interior, 316 North 26th Street,
                                     Room 3005, Billings, MT 59101.
(8) Nevada........................  Regional Solicitor, Pacific
                                     Southwest Region, U.S. Department
                                     of the Interior, 2800 Cottage Way,
                                     Room E-1712, Sacramento, CA 95825-
                                     1890.
(9) New Mexico (covers the states   Regional Solicitor, Southwest
 of New Mexico, Kansas, Oklahoma,    Region, U.S. Department of the
 and Texas).                         Interior, 505 Marquette Ave., NW.,
                                     Suite 1800, Albuquerque, NM 87102.
(10) Oregon (covers the states of   Regional Solicitor, Pacific
 Oregon and Washington).             Northwest Region, U.S. Department
                                     of the Interior, 805 SW. Broadway,
                                     Suite 600, Portland, OR 97205.
(11) Utah.........................  Regional Solicitor, Intermountain
                                     Region, U.S. Department of the
                                     Interior, 6201 Federal Building,
                                     125 South State Street, Salt Lake
                                     City, UT 84138-1180.

[[Page 80]]

 
(12) Wyoming (covers the states of  Regional Solicitor, Rocky Mountain
 Wyoming and Nebraska).              Region, U.S. Department of the
                                     Interior, 755 Parfet Street, Suite
                                     151, Lakewood, CO 80215.
------------------------------------------------------------------------

    (e) This paragraph applies to any appeal taken from a decision of an 
administrative law judge.
    (1) Except as provided in paragraph (e)(2) of this section, the 
appellant must serve either:
    (i) The attorney from the Office of the Solicitor who represented 
the Bureau or Office at the hearing; or
    (ii) If there was no hearing, the attorney who was served with a 
copy of the decision by the administrative law judge.
    (2) If the decision involved a mining claim on national forest land, 
the appellant must serve either:
    (i) The attorney from the Office of General Counsel, U.S. Department 
of Agriculture, who represented the U.S. Forest Service at the hearing; 
or
    (ii) If there was no hearing, the attorney who was served with a 
copy of the decision by the administrative law judge.
    (f) Parties must serve the Office of the Solicitor as required by 
this section until a particular attorney of the Office of the Solicitor 
files and serves a Notice of Appearance or Substitution of Counsel. 
Thereafter, parties must serve the Office of the Solicitor as indicated 
by the Notice of Appearance or Substitution of Counsel.
    (g) The appellant must certify service as provided inSec. 
4.401(c)(5).

[75 FR 64666, Oct. 20, 2010]



Sec.  4.414  Answers.

    (a) Any person served with a notice of appeal who wishes to 
participate in the appeal must file an answer or appropriate motion with 
the Board within 30 days after service of the statement of reasons for 
appeal. The answer must respond to the statement of reasons for appeal.
    (b) Unless the Board orders otherwise upon motion for good cause 
shown:
    (1) The text of the answer or motion may not exceed 30 pages, 
excluding exhibits, declarations, or other attachments; and
    (2) The party may not file any further pleading.
    (c) Failure to file an answer or motion will not result in a 
default. If an answer or motion is filed or served after the time 
required, the Board may disregard it in deciding the appeal, unless the 
delay in filing is waived as provided inSec. 4.401(a).
    (d) The requirements ofSec. 4.401(d) apply to an answer or motion.

[75 FR 64666, Oct. 20, 2010]



Sec.  4.415  Motion for a hearing on an appeal involving questions of fact.

    (a) Any party may file a motion that the Board refer a case to an 
administrative law judge for a hearing. The motion must state:
    (1) What specific issues of material fact require a hearing;
    (2) What evidence concerning these issues must be presented by oral 
testimony, or be subject to cross-examination;
    (3) What witnesses need to be examined; and
    (4) What documentary evidence requires explanation, if any.
    (b) In response to a motion under paragraph (a) of this section or 
on its own initiative, the Board may order a hearing if there are:
    (1) Any issues of material fact which, if proved, would alter the 
disposition of the appeal; or
    (2) Significant factual or legal issues remaining to be decided, and 
the record without a hearing would be insufficient for resolving them.
    (c) If the Board orders a hearing, it must:
    (1) Specify the issues of fact upon which the hearing is to be held; 
and
    (2) Request the administrative law judge to issue:
    (i) Proposed findings of fact on the issues presented at the 
hearing;
    (ii) A recommended decision that includes findings of fact and 
conclusions of law; or

[[Page 81]]

    (iii) A decision that will be final for the Department unless a 
notice of appeal is filed in accordance withSec. 4.411.
    (d) If the Board orders a hearing, it may do one or more of the 
following:
    (1) Suspend the effectiveness of the decision under review pending a 
final Departmental decision on the appeal if it finds good cause to do 
so;
    (2) Authorize the administrative law judge to specify additional 
issues; or
    (3) Authorize the parties to agree to additional issues that are 
material, with the approval of the administrative law judge.
    (e) The hearing will be conducted under Sec.Sec. 4.430 to 4.438 
and the general rules in subpart B of this part. Unless the Board orders 
otherwise, the administrative law judge may consider other relevant 
issues and evidence identified after referral of the case for a hearing.

[75 FR 64666, Oct. 20, 2010]



Sec.  4.416  Appeals of wildfire management decisions.

    The Board must decide appeals from decisions underSec. 4190.1 and 
Sec.  5003.1(b) of this title within 60 days after all pleadings have 
been filed, and within 180 days after the appeal was filed.

[68 FR 33803, June 5, 2003]

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



Sec.  4.421  Definitions.

    In addition to the definitions inSec. 4.400, as used in this 
subpart:
    Director means the Director of BLM or a BLM Deputy Director or 
Assistant Director.
    Manager means the BLM official with direct jurisdiction over the 
public lands that are pertinent to the decision or contest.
    Person named in the decision means any of the following persons 
identified in a final BLM grazing decision: An affected applicant, 
permittee, lessee, or agent or lienholder of record, or an interested 
public as defined inSec. 4100.0-5 of this title.
    State Director means the supervising BLM officer for the State in 
which a particular range lies, or an authorized representative.

[75 FR 64667, Oct. 20, 2010]



Sec.  4.422  Documents.

    (a) Grace period for filing. Whenever a document is required under 
this subpart to be filed within a certain time and it is not received in 
the proper office during that time, the delay in filing will be waived 
if the document is filed not later than 10 days after it was required to 
be filed and it is determined that the document was transmitted or 
probably transmitted to the office in which the filing is required 
before the end of the period in which it was required to be filed. 
Determinations under this paragraph shall be made by the officer before 
whom is pending the appeal or contest in connection with which the 
document is required to be filed. This paragraph does not apply to 
requests for postponement of hearings under Sec.Sec. 4.452-1 and 
4.452-2.
    (b) Transferees and encumbrancers. Transferees and encumbrancers of 
land, the title to which is claimed or is in the process of acquisition 
under any public land law shall, upon filing notice of the transfer or 
encumbrance in the proper land office, become entitled to receive and be 
given the same notice of any contest, appeal, or other proceeding 
thereafter initiated affecting such interest which is required to be 
given to a party to the proceeding. Every such notice of a transfer or 
encumbrance will be noted upon the records of the land office. 
Thereafter such transferee or encumbrancer must be made a party to any 
proceedings thereafter initiated adverse to the entry.
    (c) Service of documents. (1) A party that files any document under 
this subpart must serve a copy of it concurrently as follows:
    (i) On the appropriate official of the Office of the Solicitor under 
Sec.  4.413(c) and (d);

[[Page 82]]

    (ii) For a notice of appeal and statement of reasons, on each person 
named in the decision under appeal; and
    (iii) For all other documents, on each party to the appeal.
    (2) Service on a party known to be represented by counsel or other 
designated representative must be made on the representative.
    (3) Service must be made at the last address of record of the party 
(if unrepresented) or the representative, unless the party or 
representative has notified the serving party of a subsequent change of 
address.
    (4) Service may be made as shown in the following table:

------------------------------------------------------------------------
     If the document is . . .           Service may be made by . . .
------------------------------------------------------------------------
(i) An appeal underSec.  4.470..  (A) Personal delivery;
                                    (B) Registered or certified mail,
                                     return receipt requested;
                                    (C) Delivery service, delivery
                                     receipt requested, if the last
                                     address of record is not a post
                                     office box; or
                                    (D) Electronic means, such as
                                     electronic mail or facsimile, if
                                     the person to be served has
                                     previously consented to that means
                                     of service in writing.
(ii) A complaint underSec.        (A) Any of the methods specified in
 4.450-4 or 4.451-2.                 paragraph (c)(4)(i) of this
                                     paragraph; or
                                    (B) Publication as specified in Sec.
                                       4.450-5.
(iii) Neither an appeal nor a       (A) Personal delivery;
 complaint.
                                    (B) Mail;
                                    (C) Delivery service, if the last
                                     address of record is not a post
                                     office box; or
                                    (D) Electronic means, such as
                                     electronic mail or facsimile, if
                                     the person to be served has
                                     consented to that means in writing.
------------------------------------------------------------------------

    (5) At the conclusion of any document that a party must serve under 
the regulations in this subpart, the party must sign a written statement 
that:
    (i) Certifies that service has been or will be made in accordance 
with the applicable rules; and
    (ii) Specifies the date and manner of service.
    (6) Service that complies with paragraphs (c)(2) through (4) of this 
section is complete as shown in the following table:

------------------------------------------------------------------------
    If service is made by . . .        Service is complete when . . .
------------------------------------------------------------------------
(i) Personal delivery.............  The document is delivered to the
                                     party.
(ii) Mail or delivery service.....  The document is delivered to the
                                     party.
(iii) Electronic means............  The document is transmitted to the
                                     party, unless the serving party
                                     learns that it did not reach the
                                     party to be served.
(iv) Publication..................  The final notice is published under
                                   Sec. 4.450-5(b)(3).
------------------------------------------------------------------------

    (7) In the absence of evidence to the contrary, delivery under 
paragraph (c)(6)(ii) of this section is deemed to take place 5 business 
days after the document was sent.
    (d) The manager or administrative law judge, as the case may be, may 
extend the time for filing or serving any document in a contest, other 
than a notice of appeal underSec. 4.452-9.

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 68 
FR 33803, June 5, 2003; 75 FR 64667, Oct. 20, 2010]



Sec.  4.423  Subpoena power and witness provisions.

    The administrative law judge is authorized to issue subpoenas 
directing the attendance of witnesses at hearings to be held before him 
or at the taking of depositions to be held before himself or other 
officers, for the purpose of taking testimony but not for discovery. The 
issuance of subpoenas, service, attendance fees, and similar matters 
shall be governed by the Act of January 31, 1903 (43 U.S.C. 102-106), 
and 28 U.S.C. 1821.

             hearings on appeals involving questions of fact



Sec.  4.430  Prehearing conferences.

    (a) The administrative law judge may, in his discretion, on his own 
motion or motion of one of the parties or

[[Page 83]]

of the Bureau or Office direct the parties or their representatives to 
appear at a specified time and place for a prehearing conference to 
consider: (1) The possibility of obtaining stipulations, admissions of 
facts and agreements to the introduction of documents, (2) the 
limitation of the number of expert witnesses, and (3) any other matters 
which may aid in the disposition of the proceedings.
    (b) The administrative law judge shall issue an order which recites 
the action taken at the conference and the agreements made as to any of 
the matters considered, and which limits the issues for hearing to those 
not disposed of by admissions or agreements. Such order shall control 
the subsequent course of the proceeding before the administrative law 
judge unless modified for good cause, by subsequent order.

[36 FR 7186, Apr. 15, 1971, as amended at 75 FR 64668, Oct. 20, 2010]



Sec.  4.431  Fixing of place and date for hearing; notice.

    The administrative law judge shall fix a place and date for the 
hearing and notify all parties and the Bureau or Office. All hearings 
held in connection with land selection appeals arising under the Alaska 
Native Claims Settlement Act, as amended, shall be conducted within the 
State of Alaska, unless the parties agree otherwise.

[47 FR 26392, June 18, 1982, as amended at 75 FR 64668, Oct. 20, 2010]



Sec.  4.432  Postponements.

    (a) Postponements of hearings will not be allowed upon the request 
of any party or the Bureau or Office except upon a showing of good cause 
and proper diligence. A request for a postponement must be served upon 
all parties to the proceeding and filed in the office of the 
administrative law judge at least 10 days prior to the date of the 
hearing. In no case will a request for postponement served or filed less 
than 10 days in advance of the hearing or made at the hearing be granted 
unless the party requesting it demonstrates that an extreme emergency 
occurred which could not have been anticipated and which justifies 
beyond question the granting of a postponement. In any such emergency, 
if time does not permit the filing of such request prior to the hearing, 
it may be made orally at the hearing.
    (b) The request for a postponement must state in detail the reasons 
why a postponement is necessary. If a request is based upon the absence 
of witnesses, it must state what the substance of the testimony of the 
absent witnesses would be. No postponement will be granted if the 
adverse party or parties file with the examiner within 5 days after the 
service of the request a statement admitting that the witnesses on 
account of whose absence the postponement is desired would, if present, 
testify as stated in the request. If time does not permit the filing of 
such statement prior to the hearing, it may be made orally at the 
hearing.
    (c) Only one postponement will be allowed to a party on account of 
the absence of witnesses unless the party requesting a further 
postponement shall at the time apply for an order to take the testimony 
of the alleged absent witness by deposition.

[36 FR 7186, Apr. 15, 1971, as amended at 75 FR 64668, Oct. 20, 2010]



Sec.  4.433  Authority of the administrative law judge.

    (a) The administrative law judge has general authority to conduct 
the hearing in an orderly and judicial manner, including authority to:
    (1) Administer oaths;
    (2) Call and question witnesses;
    (3) Subpoena witnesses as specified in paragraph (b) of this 
section;
    (4) Issue findings and decisions as specified in paragraph (c) of 
this section; and
    (5) Take any other actions that the Board may prescribe in referring 
the case for hearing.
    (b) The administrative law judge has authority to subpoena witnesses 
and to take and cause depositions to be taken for the purpose of taking 
testimony but not for discovery. This authority must be exercised in 
accordance with the Act of January 31, 1903 (32 Stat. 790; 43 U.S.C. 102 
through 106).
    (c) The administrative law judge has authority to issue any of the 
following, as specified by the Board underSec. 4.415(c)(2):

[[Page 84]]

    (1) Proposed findings of fact on the issues presented at the 
hearing;
    (2) A recommended decision that includes findings of fact and 
conclusions of law; or
    (3) A decision that will be final for the Department unless a notice 
of appeal is filed in accordance withSec. 4.411 within 30 days of 
receipt of the decision.
    (d) The issuance of subpoenas, the attendance of witnesses, and the 
taking of depositions are governed by Sec.Sec. 4.423 and 4.26.

[75 FR 64668, Oct. 20, 2010]



Sec.  4.434  Conduct of hearing.

    (a) The administrative law judge may seek to obtain stipulations as 
to material facts.
    (b) Unless the administrative law judge directs otherwise:
    (1) The appellant will first present its evidence on the facts at 
issue; and
    (2) The other parties and the Bureau or Office will then present 
their evidence on such issues.

[75 FR 64668, Oct. 20, 2010]



Sec.  4.435  Evidence.

    (a) All oral testimony shall be under oath and witnesses shall be 
subject to cross-examination. The administrative law judge may question 
any witnesses. Documentary evidence may be received if pertinent to any 
issue. The administrative law judge will summarily stop examination and 
exclude testimony which is obviously irrelevant and immaterial.
    (b) Objections to evidence will be ruled upon by the administrative 
law judge. Such rulings will be considered, but need not be separately 
ruled upon, by the Board in connection with its decision. Where a ruling 
of an administrative law judge sustains an objection to the admission of 
evidence, the party affected may insert in the record, as a tender of 
proof, a summary written statement of the substance of the excluded 
evidence and the objecting party may then make an offer of proof in 
rebuttal.



Sec.  4.436  Reporter's fees.

    Reporter's fees shall be borne by the Bureau or Office.

[36 FR 7186, Apr. 15, 1971, as amended at 75 FR 64668, Oct. 20, 2010]



Sec.  4.437  Copies of transcript.

    Each party must pay for any copies of the transcript that the party 
requests. The Bureau or Office will file the original transcript with 
the case record.

[75 FR 64668, Oct. 20, 2010]



Sec.  4.438  Action by administrative law judge.

    (a) Upon completion of the hearing and the incorporation of the 
transcript in the record, the administrative law judge will issue and 
serve on the parties, as specified by the Board underSec. 4.415(c)(2):
    (1) Proposed findings of fact on the issues presented at the 
hearing;
    (2) A recommended decision that includes findings of fact and 
conclusions of law and that advises the parties of their right to file 
exceptions under paragraph (c) of this section; or
    (3) A decision that will be final for the Department unless a notice 
of appeal is filed in accordance withSec. 4.411.
    (b) The administrative law judge will promptly send to the Board the 
record and:
    (1) The proposed findings;
    (2) The recommended decision; or
    (3) The final decision if a timely notice of appeal is filed.
    (c) The parties will have 30 days from service of proposed findings 
or a recommended decision to file exceptions with the Board.

[75 FR 64668, Oct. 20, 2010]

                     contest and protest proceedings



Sec.  4.450  Private contests and protests.



Sec.  4.450-1  By whom private contest may be initiated.

    Any person who claims title to or an interest in land adverse to any 
other person claiming title to or an interest in such land or who seeks 
to acquire a preference right pursuant to the Act of May 14, 1880, as 
amended (43 U.S.C. 185), or the Act of March 3, 1891 (43 U.S.C.

[[Page 85]]

329), may initiate proceedings to have the claim of title or interest 
adverse to his claim invalidated for any reason not shown by the records 
of the Bureau of Land Management. Such a proceeding will constitute a 
private contest and will be governed by the regulations herein.



Sec.  4.450-2  Protests.

    Where the elements of a contest are not present, any objection 
raised by any person to any action proposed to be taken in any 
proceeding before the Bureau will be deemed to be a protest and such 
action thereon will be taken as is deemed to be appropriate in the 
circumstances.



Sec.  4.450-3  Initiation of contest.

    Any person desiring to initiate a private contest must file a 
complaint in the proper land office (seeSec. 1821.2-1 of chapter II of 
this title). The contestant must serve a copy of the complaint on the 
contestee not later than 30 days after filing the complaint and must 
file proof of such service, as required bySec. 4.422(c), in the office 
where the complaint was filed within 30 days after service.



Sec.  4.450-4  Complaints.

    (a) Contents of complaint. The complaint shall contain the following 
information, under oath:
    (1) The name and address of each party interested;
    (2) A legal description of the land involved;
    (3) A reference, so far as known to the contestant, to any 
proceedings pending for the acquisition of title to, or an interest, in 
such land:
    (4) A statement in clear and concise language of the facts 
constituting the grounds of contest;
    (5) A statement of the law under which contestant claims or intends 
to acquire title to, or an interest in, the land and of the facts 
showing that he is qualified to do so;
    (6) A statement that the proceeding is not collusive or speculative 
but is insitituted and will be diligently pursued in good faith;
    (7) A request that the contestant be allowed to prove his 
allegations and that the adverse interest be invalidated;
    (8) The office in which the complaint is filed and the address to 
which papers shall be sent for service on the contestant; and
    (9) A notice that unless the contestee files an answer to the 
complaint in such office within 30 days after service of the notice, the 
allegations of the complaint will be taken as confessed.
    (b) Amendment of complaint. Except insofar as the manager, 
administrative law judge, Director, Board or Secretary may raise issues 
in connection with deciding a contest, issues not raised in a complaint 
may not be raised later by the contestant unless the administrative law 
judge permits the complaint to be amended after due notice to the other 
parties and an opportunity to object.
    (c) Corroboration required. All allegations of fact in the complaint 
which are not matters of official record or capable of being judicially 
noticed and which, if proved, would invalidate the adverse interest must 
be corroborated under oath by the statement of witnesses. Each such 
allegation of fact must be corroborated by the statement of at least one 
witness having personal knowledge of the alleged fact and such fact must 
be set forth in the statement. All statements by witnesses shall be 
attached to the complaint.
    (d) Filing fee. Each complaint must be accompanied by a filing fee 
of $10 and a deposit of $20 toward reporter's fees. Any complaint which 
is not accompanied by the required fee and deposit will not be accepted 
for filing.
    (e) Waiver of issues. Any issue not raised by a private contestant 
in accordance with the provisions of paragraph (b) of this section, 
which was known to him, or could have been known to him by the exercise 
of reasonable diligence, shall be deemed to have been waived by him, and 
he shall thereafter be forever barred from raising such issue.



Sec.  4.450-5  Service.

    The complaint must be served upon every contestee in the manner 
provided inSec. 4.422(c)(1). Proof of service must be made in the 
manner provided inSec. 4.422(c)(2). In certain circumstances,

[[Page 86]]

service may be made by publication as provided in paragraph (b)(1) of 
this section. When the contest is against the heirs of a deceased 
entryman, the notice must be served on each heir. If the person to be 
personally served is an infant or a person who has been legally adjudged 
incompetent, service of notice must be made by delivering a copy of the 
notice to the legal guardian or committee, if there is one, of such 
infant or incompetent person. If there is no guardian or committee, then 
service must be by delivering a copy of the notice to the person having 
the infant or incompetent person in charge.
    (a) Summary dismissal; waiver of defect in service. If a complaint 
when filed does not meet all the requirements ofSec. 4.450-4(a) and 
(c), or if the complaint is not served upon each contestee as required 
by this section, the complaint will be summarily dismissed by the 
manager and no answer need be filed. However, where prior to the summary 
dismissal of a complaint a contestee answers without questioning the 
service or proof of service of the complaint, any defect in service will 
be deemed waived as to such answering contestee.
    (b) Service by publication--(1) When service may be made by 
publication. When the contestant has made diligent search and inquiry to 
locate the contestee, and cannot locate him, the contestant may proceed 
with service by publication after first filing with the manager an 
affidavit which shall:
    (i) State that the contestee could not be located after diligent 
search and inquiry made within 15 days prior to the filing of the 
affidavit;
    (ii) Be corroborated by the affidavits of two persons who live in 
the vicinity of the land which state that they have no knowledge of the 
contestee's whereabouts or which give his last known address;
    (iii) State the last known address of the contestee; and
    (iv) State in detail the efforts and inquiries made to locate the 
party sought to be served.
    (2) Contents of published notice. The published notice must give the 
names of the parties to the contest, legal description of the land 
involved, the substance of the charges contained in the complaint, the 
office in which the contest is pending, and a statement that upon 
failure to file an answer in such office within 30 days after the 
completion of publication of such notice, the allegations of the 
complaint will be taken as confessed. The published notice shall also 
contain a statement of the dates of publication.
    (3) Publication, mailing and posting of notice. (i) Notice by 
publication shall be made by publishing notice at least once a week for 
5 successive weeks in some newspaper of general circulation in the 
county in which the land in contest lies.
    (ii) Within 15 days after the first publication of a notice, the 
contestant shall send a copy of the notice and the complaint by 
registered or certified mail, return receipt requested, to the contestee 
at his last known address and also to the contestee in care of the post 
office nearest the land. The return receipts shall be filed in the 
office in which the contest is pending.
    (iii) A copy of the notice as published shall be posted in the 
office where the contest is pending and also in a conspicuous place upon 
the land involved. Such postings shall be made within 15 days after the 
first publication of the notice.
    (c) Proof of service. (1) Proof of publication of the notice shall 
be made by filing in the office where the contest is pending a copy of 
the notice as published and the affidavit of the publisher or foreman of 
the newspaper publishing the same showing the publication of the notice 
in accordance with paragraph (b)(3) of this section.
    (2) Proof of posting of the notice shall be by affidavit of the 
person who posted the notice on the land and by the certificate of the 
manager or the Director of the Bureau of Land Management as to posting 
in his office.
    (3) Proof of the mailing of notice shall be by affidavit of the 
person who mailed the notice to which shall be attached the return 
receipt.

[36 FR 7186, Apr. 15, 1971, as amended at 68 FR 33803, June 5, 2003]



Sec.  4.450-6  Answer to complaint.

    Within 30 days after service of the complaint or after the last 
publication of the notice, the contestee must file in the office where 
the contest is pending

[[Page 87]]

an answer specifically meeting and responding to the allegations of the 
complaint, together with proof of service of a copy of the answer upon a 
contestant as provided inSec. 4.450-5(b)(3). The answer shall contain 
or be accompanied by the address to which all notices or other papers 
shall be sent for service upon contestee.



Sec.  4.450-7  Action by manager.

    (a) If an answer is not filed as required, the allegations of the 
complaint will be taken as admitted by the contestee and the manager 
will decide the case without a hearing.
    (b) If an answer is filed and unless all parties waive a hearing, 
the manager will refer the case to an administrative law judge upon 
determining that the elements of a private contest appear to have been 
established.



Sec.  4.450-8  Amendment of answer.

    At the hearing, any allegation not denied by the answer will be 
considered admitted. The administrative law judge may permit the answer 
to be amended after due notice to other parties and an opportunity to 
object.



Sec.  4.451  Government contests.



Sec.  4.451-1  How initiated.

    The Government may initiate contests for any cause affecting the 
legality or validity of any entry or settlement or mining claim.



Sec.  4.451-2  Proceedings in Government contests.

    The proceedings in Government contests shall be governed by the 
rules relating to proceedings in private contests with the following 
exceptions:
    (a) No corroboration shall be required of a Government complaint and 
the complaint need not be under oath.
    (b) A Government contest complaint will not be insufficient and 
subject to dismissal for failure to name all parties interested, or for 
failure to serve every party who has been named.
    (c) No filing fee or deposit toward reporter's fee shall be required 
of the Government.
    (d) Any action required of the contestant may be taken by any 
authorized Government employee.
    (e) The statements required bySec. 4.450-4(a) (5) and (6) need not 
be included in the complaint.
    (f) No posting of notice of publication on the land in issue shall 
be required of the Government.
    (g) Where service is by publication, the affidavits required by 
Sec.  4.450-5(b)(1) need not be filed. The contestant shall file with 
the manager a statement of diligent search which shall state that the 
contestee could not be located after diligent search and inquiry, the 
last known address of the contestee and the detail of efforts and 
inquiries made to locate the party sought to be served. The diligent 
search shall be concluded not more than 15 days prior to the filing of 
the statement.
    (h) In lieu of the requirements ofSec. 4.450-5(b)(3)(ii) the 
contestant shall, as part of the diligent search before the publication 
or within 15 days after the first publication send a copy of the 
complaint by certified mail, return receipt requested, to the contestee 
at the last address of record. The return receipts shall be filed in the 
office in which the contest is pending.
    (i) The affidavit required bySec. 4.450-5(c)(3) need not be filed.
    (j) The provisions of paragraph (e) ofSec. 4.450-4(e) shall be 
inapplicable.



Sec.  4.452  Proceedings before the administrative law judge.



Sec.  4.452-1  Prehearing conferences.

    (a) The administrative law judge may in his discretion, on his own 
motion or on motion of one of the parties, or of the Bureau, direct the 
parties or their representatives to appear at a specified time and place 
for a prehearing conference to consider:
    (1) The simplification of the issues,
    (2) The necessity of amendments to the pleadings,
    (3) The possibility of obtaining stipulations, admissions of facts 
and agreements to the introduction of documents,
    (4) The limitation of the number of expert witnesses, and
    (5) Such other matters as may aid in the disposition of the 
proceedings.
    (b) The administrative law judge shall make an order which recites 
the action taken at the conference, the amendments allowed to the 
pleadings,

[[Page 88]]

and the agreements made as to any of the matters considered, and which 
limits the issues for hearing to those not disposed of by admission or 
agreements. Such order shall control the subsequent course of the 
proceedings before the administrative law judge unless modified for good 
cause, by subsequent order.



Sec.  4.452-2  Notice of hearing.

    The administrative law judge shall fix a place and date for the 
hearing and notify all parties and the Bureau at least 30 days in 
advance of the date set, unless the parties and the Bureau request or 
consent to an earlier date. The notice shall include (a) the time, 
place, and nature of the hearing, (b) the legal authority and 
jurisdiction under which the hearing is to be held, and (c) the matters 
of fact and law asserted. All hearings held in connection with land 
selection appeals arising under the Alaska Native Claims Settlement Act, 
as amended, shall be conducted within the state of Alaska, unless the 
parties agree otherwise.

[47 FR 26392, June 18, 1982]



Sec.  4.452-3  Postponements.

    (a) Postponements of hearings will not be allowed upon the request 
of any party or the Bureau except upon a showing of good cause and 
proper diligence. A request for a postponement must be served upon all 
parties to the proceeding and filed in the office of the administrative 
law judge at least 10 days prior to the date of the hearing. In no case 
will a request for postponement served or filed less than 10 days in 
advance of the hearing or made at the hearing be granted unless the 
party requesting it demonstrates that an extreme emergency occurred 
which could not have been anticipated and which justifies beyond 
question the granting of a postponement. In any such emergency, if time 
does not permit the filing of such request prior to the hearing, it may 
be made orally at the hearing.
    (b) The request for a postponement must state in detail the reasons 
why a postponement is necessary. If a request is based upon the absence 
of witnesses, it must state what the substance of the testimony of the 
absent witnesses would be. No postponement will be granted if the 
adverse party or parties file with the administrative law judge within 5 
days after the service of the request a statement admitting that the 
witnesses on account of whose absence the postponement is desired would, 
if present, testify as stated in the request. If time does not permit 
the filing of such statement prior to the hearing, it may be made orally 
at the hearing.
    (c) Only one postponement will be allowed to a party on account of 
the absence of witnesses unless the party requesting a further 
postponement shall at the time apply for an order to take the testimony 
of the alleged absent witness by deposition.



Sec.  4.452-4  Authority of administrative law judge.

    The administrative law judge is vested with general authority to 
conduct the hearing in an orderly and judicial manner, including 
authority to subpoena witnesses and to take and cause depositions to be 
taken for the purpose of tasking testimony but not for discovery in 
accordance with the act of January 31, 1903 (43 U.S.C. 102-106), to 
administer oaths, to call and question witnesses, and to make a 
decision. The issuance of subpoenas, the attendance of witnesses and the 
taking of depositions shall be governed by Sec.Sec. 4.423 and 4.26 of 
the general rules in subpart B of this part.



Sec.  4.452-5  Conduct of hearing.

    So far as not inconsistent with a prehearing order, the 
administrative law judge may seek to obtain stipulations as to material 
facts and the issues involved and may state any other issues on which he 
may wish to have evidence presented. He may exclude irrelevant issues. 
The contestant will then present his case following which the other 
parties (and in private contests the Bureau, if it intervenes) will 
present their cases.



Sec.  4.452-6  Evidence.

    (a) All oral testimony shall be under oath and witnesses shall be 
subject to cross-examination. The administrative law judge may question 
any witness. Documentary evidence may be received

[[Page 89]]

if pertinent to any issue. The administrative law judge will summarily 
stop examination and exclude testimony which is obviously irrelevant and 
immaterial.
    (b) Objections to evidence will be ruled upon by the administrative 
law judge. Such rulings will be considered, but need not be separately 
ruled upon, by the Board in connection with its decision. Where a ruling 
of an administrative law judge sustains an objection to the admission of 
evidence, the party affected may insert in the record, as a tender of 
proof, a summary written statement of the substance of the excluded 
evidence, and the objecting party may then make an offer of proof in 
rebuttal.



Sec.  4.452-7  Reporter's fees.

    (a) The Government agency initiating the proceedings will pay all 
reporting fees in hearings in Government contest proceedings, in 
hearings under the Surface Resources Act of 1955, as amended, in 
hearings under the Multiple Mineral Development Act of 1954, as amended, 
where the United States is a party, and in hearings under the Mining 
Claims Rights Restoration Act of 1955, regardless of which party is 
ultimately successful.
    (b) In the case of a private contest, each party will be required to 
pay the reporter's fees covering the party's direct evidence and cross-
examination of witnesses, except that if the ultimate decision is 
adverse to the contestant, he must in addition pay all the reporter's 
fees otherwise payable by the contestee.
    (c) Each party to a private contest shall be required by the 
administrative law judge to make reasonable deposits for reporter's fees 
from time to time in advance of taking testimony. Such deposits shall be 
sufficient to cover all reporter's fees for which the party may 
ultimately be liable under paragraph (b) of this section. Any part of a 
deposit not used will be returned to the depositor upon the final 
determination of the case except that deposits which are required to be 
made when a complaint is filed will not be returned if the party making 
the deposit does not appear at the hearing, but will be used to pay the 
reporter's fee. Reporter's fees will be at the rates established for the 
local courts, or, if the reporting is done pursuant to a contract, at 
rates established by the contract.



Sec.  4.452-8  Findings and conclusions; decision by administrative
law judge.

    (a) At the conclusion of the testimony the parties at the hearing 
shall be given a reasonable time by the administrative law judge, 
considering the number and complexity of the issues and the amount of 
testimony, to submit to the administrative law judge proposed findings 
of fact and conclusions of law and reasons in support thereof or to 
stipulate to a waiver of such findings and conclusions.
    (b) As promptly as possible after the time allowed for presenting 
proposed findings and conclusions, the administrative law judge shall 
make findings of fact and conclusions of law (unless waiver has been 
stipulated), giving the reasons therefor, upon all the material issues 
of fact, law, or discretion presented on the record. The administrative 
law judge may adopt the findings of fact and conclusions of law proposed 
by one or more of the parties if they are correct. He must rule upon 
each proposed finding and conclusion submitted by the parties and such 
ruling shall be shown in the record. The administrative law judge will 
render a written decision in the case which shall become a part of the 
record and shall include a statement of his findings and conclusions, as 
well as the reasons or basis therefor, and his rulings upon the findings 
and conclusions proposed by the parties if such rulings do not appear 
elsewhere in the record. A copy of the decision will be served upon all 
parties to the case.

[36 FR 7186, Apr. 15, 1971, as amended at 75 FR 64669, Oct. 20, 2010]



Sec.  4.452-9  Appeal to Board.

    Any party, including the Government, adversely affected by the 
decision of the administrative law judge may appeal to the Board as 
provided inSec. 4.410, and the general rules in Subpart B of this 
part. No further hearing will be allowed in connection with the appeal 
to the Board but the Board, after considering the evidence, may remand

[[Page 90]]

any case for further hearing if it considers such action necessary to 
develop the facts.

        Grazing Procedures (Inside and Outside Grazing Districts)

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



Sec.  4.470  How to appeal a final BLM grazing decision to an 
administrative law judge.

    (a) Any applicant, permittee, lessee, or other person whose interest 
is adversely affected by a final BLM grazing decision may appeal the 
decision to an administrative law judge within 30 days after receiving 
it or within 30 days after a proposed decision becomes final as provided 
inSec. 4160.3(a) of this title. To do so, the person must file an 
appeal with the BLM field office that issued the decision and serve a 
copy of the appeal on any person named in the decision.
    (b) The appeal must state clearly and concisely the reasons why the 
appellant thinks the BLM grazing decision is wrong.
    (c) Any ground for appeal not included in the appeal is waived. The 
appellant may not present a waived ground for appeal at the hearing 
unless permitted or ordered to do so by the administrative law judge.
    (d) Any person who, after proper notification, does not appeal a 
final BLM grazing decision within the period provided in paragraph (a) 
of this section may not later challenge the matters adjudicated in the 
final BLM decision.
    (e) Filing an appeal does not by itself stay the effectiveness of 
the final BLM decision. To request a stay of the final BLM decision 
pending appeal, seeSec. 4.471.

[68 FR 68770, Dec. 10, 2003]



Sec.  4.471  How to petition for a stay of a final BLM grazing decision.

    (a) An appellant underSec. 4.470 may petition for a stay of the 
final BLM grazing decision pending appeal by filing a petition for a 
stay together with the appeal underSec. 4.470 with the BLM field 
office that issued the decision.
    (b) Within 15 days after filing the appeal and petition for a stay, 
the appellant must serve copies on--
    (1) Any other person named in the decision from which the appeal is 
taken; and
    (2) The appropriate office of the Office of the Solicitor, in 
accordance withSec. 4.413(a) and (c).
    (c) A petition for a stay of a final BLM grazing decision pending 
appeal under paragraph (a) of this section must show sufficient 
justification based on the following standards:
    (1) The relative harm to the parties if the stay is granted or 
denied;
    (2) The likelihood of the appellant's success on the merits;
    (3) The likelihood of immediate and irreparable harm if the stay is 
not granted; and
    (4) Whether the public interest favors granting the stay.
    (d) The appellant requesting a stay bears the burden of proof to 
demonstrate that a stay should be granted.

[68 FR 68770, Dec. 10, 2003]



Sec.  4.472  Action on an appeal and petition for a stay.

    (a) BLM must transmit any documents received under Sec.Sec. 4.470 
and 4.471, within 10 days after receipt, to the Hearings Division, 
Office of Hearings and Appeals, Salt Lake City, Utah. If a petition for 
a stay has been filed, the transmittal must also include any response 
BLM wishes to file to a petition for a stay and the following documents 
from the case file: the application, permit, lease, or notice of 
unauthorized use underlying the final BLM grazing decision; the proposed 
BLM grazing decision; any protest filed by the appellant underSec. 
4160.2; the final BLM grazing decision; and any other documents that BLM 
wishes the administrative law judge to consider in deciding the petition 
for a stay. BLM must serve a copy of any such response on the appellant 
and any other person named in the decision from which the appeal is 
taken.
    (b) Any person named in the decision from which an appeal is taken 
(other than the appellant) who wishes to file a response to the petition 
for a stay may

[[Page 91]]

file with the Hearings Division a motion to intervene in the appeal, 
together with the response, within 10 days after receiving the petition. 
Within 15 days after filing the motion to intervene and response, the 
person must serve copies on the appellant, the appropriate office of the 
Office of the Solicitor in accordance withSec. 4.413(a) and (c), and 
any other person named in the decision.
    (c) If a petition for a stay has not been filed, BLM must promptly 
transmit the following documents from the case file to the 
administrative law judge assigned to the appeal, once the appeal has 
been docketed by the Hearings Division: the application, permit, lease, 
or notice of unauthorized use underlying the final BLM grazing decision; 
the proposed BLM grazing decision; any protest filed by the appellant 
underSec. 4160.2; and the final BLM grazing decision.
    (d) Within 45 days after the expiration of the time for filing a 
notice of appeal, an administrative law judge must grant or deny--
    (1) A petition for a stay filed underSec. 4.471(a), in whole or in 
part; and
    (2) A motion to intervene filed with a response to the petition 
under paragraph (b) of this section.
    (e) Any final BLM grazing decision that is not already in effect and 
for which a stay is not granted will become effective immediately after 
the administrative law judge denies a petition for a stay or fails to 
act on the petition within the time set forth in paragraph (d) of this 
section.
    (f) At any appropriate time, any party may file with the Hearings 
Division a motion to dismiss the appeal or other appropriate motion. The 
appellant and any other party may file a response to the motion within 
30 days after receiving a copy.
    (g) Within 15 days after filing a motion or response under paragraph 
(f) of this section, any moving or responding party must serve a copy on 
every other party. Service on BLM must be made on the appropriate office 
of the Office of the Solicitor in accordance withSec. 4.413(a) and 
(c).

[68 FR 68770, Dec. 10, 2003]



Sec.  4.473  Time and place of hearing; notice; intervenors.

    At least 30 days before the date set by the administrative law judge 
the authorized officer will notify the appellant of the time and place 
of the hearing within or near the district. Any other person who in the 
opinion of the authorized officer may be directly affected by the 
decision on appeal will also be notified of the hearing; such person may 
himself appear at the hearing, or by attorney, and upon a proper showing 
of interest, may be recognized by the administrative law judge as an 
intervenor in the appeal.

[44 FR 41790, July 18, 1979. Redesignated at 68 FR 68770, Dec. 10, 2003]



Sec.  4.474  Authority of administrative law judge.

    (a) The administrative law judge is vested with the duty and general 
authority to conduct the hearing in an orderly, impartial, and judicial 
manner, including authority to subpoena witnesses, recognize 
intervenors, administer oaths and affirmations, call and question 
witnesses, regulate the course and order of the hearing, rule upon 
offers of proof and the relevancy of evidence, and to make findings of 
fact, conclusions of law, and a decision. The administrative law judge 
shall have authority to take or to cause depositions to be taken. 
Subpoenas, depositions, the attendance of witnesses, and witness and 
deposition fees shall be governed bySec. 4.26 of the general rules in 
Subpart B of this part, to the extent such regulations are applicable.
    (b) The administrative law judge also may grant or order 
continuances, and set the times and places of further hearings. 
Continuances shall be granted in accordance withSec. 4.452-3.
    (c) The administrative law judge may consider and rule on all 
motions and petitions, including a petition for a stay of a final BLM 
grazing decision.
    (d) An administrative law judge may consolidate two or more appeals 
for purposes of hearing and decision when they involve a common issue or 
issues.

[44 FR 41790, July 18, 1979. Redesignated and amended at 68 FR 68770, 
68771, Dec. 10, 2003]

[[Page 92]]



Sec.  4.475  Service.

    Service of notice or other documents required under this subpart 
shall be governed by Sec.Sec. 4.413 and 4.422. Proof of such service 
shall be filed in the same office where the notice or document was filed 
within 15 days after such service, unless filed with the notice or 
document.

[44 FR 41790, July 18, 1979. Redesignated at 68 FR 68770, Dec. 10, 2003]



Sec.  4.476  Conduct of hearing; reporter's fees; transcript.

    (a) The appellant, the State Director or his representative, and 
recognized intervenors will stipulate so far as possible all material 
facts and the issue or issues involved. The administrative law judge 
will state any other issues on which he may wish to have evidence 
presented. Issues which appear to the administrative law judge to be 
unnecessary to a proper disposition of the case will be excluded; but 
the party asserting such issue may state briefly for the record the 
substance of the proof which otherwise would have been offered in 
support of the issue. Issues not covered by the appellant's 
specifications of error may not be admitted except with the consent of 
the State Director or his representative, unless the administrative law 
judge rules that such issue is essential to the controversy and should 
be admitted. The parties will then be given an opportunity to submit 
offers of settlement and proposals of adjustment for the consideration 
of the administrative law judge and of the other parties.
    (b) Unless the administrative law judge orders otherwise, the State 
Director or his representative will then make the opening statement, 
setting forth the facts leading to the appeal. Upon the conclusion of 
the opening statement, the appellant shall present his case, consistent 
with his specifications of error. (In the case of a show cause, the 
State Director shall set forth the facts leading to the issuance of the 
show cause notice and shall present his case following the opening 
statement.) Following the appellant's presentation, or upon his failure 
to make such presentation, the administrative law judge, upon his own 
motion or upon motion of any of the parties, may order summary dismissal 
of the appeal with prejudice because of the inadequacy or insufficiency 
of the appellant's case, to be followed by a written order setting forth 
the reasons for the dismissal and taking such other action under this 
subpart as may be proper and warranted. An appeal may be had from such 
order as well as from any other final determination made by the 
administrative law judge.
    (c) In the absence or upon denial of such motion the State Director 
or his representative and recognized intervenors may present evidence if 
such a presentation appears to the administrative law judge to be 
necessary for a proper disposition of the matters in controversy, 
adhering as closely as possible to the issues raised by the appellant. 
All oral testimony shall be under oath or affirmation, and witnesses 
shall be subject to cross-examination by any party to the proceeding. 
The administrative law judge may question any witness whenever it 
appears necessary. Documentary evidence will be received by the 
administrative law judge and made a part of the record, if pertinent to 
any issue, or may be entered by stipulation. No exception need be stated 
or noted and every ruling of the administrative law judge will be 
subject to review on appeal. The party affected by an adverse ruling 
sustaining an objection to the admission of evidence, may insert in the 
record, as a tender of proof, a brief written statement of the substance 
of the excluded evidence; and the opposing party may then make an offer 
of proof in rebuttal. The administrative law judge shall summarily stop 
examination and exclude testimony on any issue which he determines has 
been adjudicated previously in an appeal involving the same preference 
and the same parties or their predecessors in interest, or which is 
obviously irrelevant and immaterial to the issues in the case. At the 
conclusion of the testimony the parties at the hearing shall be given a 
reasonable opportunity, considering the number and complexity of the 
issues and the amount of testimony, to submit to the administrative law 
judge proposed findings of fact and

[[Page 93]]

conclusions of law, and reasons in support thereof, or to stipulate to a 
waiver of such findings and conclusions.
    (d) The reporter's fees will be borne by the Government. Each party 
must pay for any copies of the transcript that the party requests. The 
Government will file the original transcript with the case record.

[44 FR 41790, July 18, 1979. Redesignated at 68 FR 68770, Dec. 10, 2003, 
as amended at 75 FR 64669, Oct. 20, 2010]



Sec.  4.477  Findings and conclusions; decision by administrative
law judge.

    As promptly as possible after the time allowed for presenting 
proposed findings and conclusions, the administrative law judge will 
make findings of fact and conclusions of law, unless waiver has been 
stipulated, and will render a decision upon all issues of material fact 
and law presented on the record. In doing so, he or she may adopt the 
findings of fact and conclusions of law proposed by one or more of the 
parties if they are correct. The reasons for the findings, conclusions, 
and decision made will be stated, and along with the findings, 
conclusions, and decision, will become a part of the record in any 
further appeal. A copy of the decision must be sent by certified mail to 
all the parties.

[75 FR 64669, Oct. 20, 2010]



Sec.  4.478  Appeals to the Board of Land Appeals; judicial review.

    (a) Any person who has a right of appeal underSec. 4.410 or other 
applicable regulation may appeal to the Board from an order of an 
administrative law judge granting or denying a petition for a stay in 
accordance withSec. 4.411.
    (b) As an alternative to paragraph (a) of this section, any party 
other than BLM may seek judicial review under 5 U.S.C. 704 of a final 
BLM grazing decision if the administrative law judge denies a petition 
for a stay, either directly or by failing to meet the deadline inSec. 
4.472(d).
    (c) If a party appeals under paragraph (a) of this section, the 
Board must issue an expedited briefing schedule and decide the appeal 
promptly.
    (d) Unless the Board or a court orders otherwise, an appeal under 
paragraph (a) of this section does not--
    (1) Suspend the effectiveness of the decision of the administrative 
law judge; or
    (2) Suspend further proceedings before the administrative law judge.
    (e) Any party adversely affected by the administrative law judge's 
decision on the merits has the right to appeal to the Board under the 
procedures in this part.

[68 FR 68771, Dec. 10, 2003, as amended at 75 FR 64669, Oct. 20, 2010]



Sec.  4.479  Effectiveness of decision during appeal.

    (a) Consistent with the provisions of Sec.Sec. 4.21(a) and 
4.472(e) and except as provided in paragraphs (b) and (c) of this 
section or other applicable regulation, a final BLM grazing decision 
will not be effective--
    (1) Until the expiration of the time for filing an appeal under 
Sec.  4.470(a); and
    (2) If a petition for a stay is filed underSec. 4.471(a), until 
the administrative law judge denies the petition for a stay or fails to 
act on the petition within the time set forth inSec. 4.472(d).
    (b) Consistent with the provisions of Sec.Sec. 4160.3 and 4190.1 
of this title and notwithstanding the provisions ofSec. 4.21(a), a 
final BLM grazing decision may provide that the decision will be 
effective immediately. Such a decision will remain effective pending a 
decision on an appeal, unless a stay is granted by an administrative law 
judge underSec. 4.472 or by the Board underSec. 4.478(a).
    (c) Notwithstanding the provisions ofSec. 4.21(a), when the public 
interest requires, an administrative law judge may provide that the 
final BLM grazing decision will be effective immediately.
    (d) An administrative law judge or the Board may change or revoke 
any action that BLM takes under a final BLM grazing decision on appeal.
    (e) In order to ensure exhaustion of administrative remedies before 
resort to court action, a BLM grazing decision is not final agency 
action subject to judicial review under 5 U.S.C. 704 unless--
    (1) A petition for a stay of the BLM decision has been timely filed 
and the BLM decision has been made effective underSec. 4.472(e), or

[[Page 94]]

    (2) The BLM decision has been made effective under paragraphs (b) or 
(c) of this section or other applicable regulation, and a stay has not 
been granted.
    (f) Exhaustion of administrative remedies is not required if a stay 
would not render the challenged portion of the BLM decision inoperative 
under subpart 4160 of this title.

[68 FR 68771, Dec. 10, 2003]



Sec.  4.480  Conditions of decision action.

    (a) Record as basis of decision; definition of record. No decision 
shall be rendered except on consideration of the whole record or such 
portions thereof as may be cited by any party or by the State Director 
and as supported by and in accordance with the reliable, probative, and 
substantial evidence. The transcript of testimony and exhibits, together 
with all papers and requests filed in the proceedings, shall constitute 
the exclusive record for decision.
    (b) Effect of substantial compliance. No adjudication of grazing 
preference will be set aside on appeal, if it appears that it is 
reasonable and that it represents a substantial compliance with the 
provisions of part 4100 of this title.

[44 FR 41790, July 18, 1979. Redesignated at 68 FR 68770, Dec. 10, 2003]



 Subpart F_Implementation of the Equal Access to Justice Act in Agency 
                               Proceedings

    Authority: 5 U.S.C. 504(c)(1).

    Source: 71 FR 6366, Feb. 8, 2006, unless otherwise noted.

                           General Provisions



Sec.  4.601  What is the purpose of this subpart?

    (a) The Equal Access to Justice Act provides for the award of 
attorney fees and other expenses to eligible individuals and entities 
who are parties to certain administrative proceedings (called 
``adversary adjudications'') before the Department of the Interior. 
Under the Act, an eligible party may receive an award when it prevails 
over the Department or other agency, unless the position of the 
Department or other agency was substantially justified or special 
circumstances make an award unjust. The regulations in this subpart 
describe the parties eligible for awards and the proceedings that are 
covered. They also explain how to apply for awards, and the procedures 
and standards that the Office of Hearings and Appeals will use in ruling 
on those applications.
    (b) The regulations in this subpart apply to any application for an 
award of attorney fees and other expenses that is:
    (1) Pending on February 8, 2006; or
    (2) Filed on or after February 8, 2006.



Sec.  4.602  What definitions apply to this subpart?

    As used in this subpart:
    Act means section 203(a)(1) of the Equal Access to Justice Act, 
Public Law 96-481, 5 U.S.C. 504, as amended.
    Adjudicative officer means the deciding official(s) who presided at 
the adversary adjudication, or any successor official(s) assigned to 
decide the application.
    Adversary adjudication means any of the following:
    (1) An adjudication under 5 U.S.C. 554 in which the position of the 
Department or other agency is presented by an attorney or other 
representative who enters an appearance and participates in the 
proceeding;
    (2) An appeal of a decision of a contracting officer made pursuant 
to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before 
the Interior Board of Contract Appeals pursuant to section 8 of that Act 
(41 U.S.C. 607);
    (3) Any hearing conducted under section 6103(a) of the Program Fraud 
Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.); or
    (4) Any hearing or appeal involving the Religious Freedom 
Restoration Act of 1993 (42 U.S.C. 2000bb et seq.).
    Affiliate means:
    (1) Any individual, corporation, or other entity that directly or 
indirectly controls or owns a majority of the voting shares or other 
interest of the applicant; or
    (2) Any corporation or other entity of which the applicant directly 
or indirectly owns or controls a majority of the voting shares or other 
interest.

[[Page 95]]

    Demand means the express demand of the Department or other agency 
that led to the adversary adjudication, but does not include a 
recitation by the Department or other agency of the maximum statutory 
penalty:
    (1) In the administrative complaint; or
    (2) Elsewhere when accompanied by an express demand for a lesser 
amount.
    Department means the Department of the Interior or the component of 
the Department that is a party to the adversary adjudication (e.g., 
Bureau of Land Management).
    Final disposition means the date on which either of the following 
becomes final and unappealable, both within the Department and to the 
courts:
    (1) A decision or order disposing of the merits of the proceeding; 
or
    (2) Any other complete resolution of the proceeding, such as a 
settlement or voluntary dismissal.
    Other agency means any agency of the United States or the component 
of the agency that is a party to the adversary adjudication before the 
Office of Hearings and Appeals, other than the Department of the 
Interior and its components.
    Party means a party as defined in 5 U.S.C. 551(3).
    Position of the Department or other agency means:
    (1) The position taken by the Department or other agency in the 
adversary adjudication; and
    (2) The action or failure to act by the Department or other agency 
upon which the adversary adjudication is based.
    Proceeding means an adversary adjudication as defined in this 
section.
    You means a party to an adversary adjudication.



Sec.  4.603  What proceedings are covered by this subpart?

    (a) The Act applies to adversary adjudications conducted by the 
Office of Hearings and Appeals, including proceedings to modify, 
suspend, or revoke licenses if they are otherwise adversary 
adjudications.
    (b) The Act does not apply to:
    (1) Other hearings and appeals conducted by the Office of Hearings 
and Appeals, even if the Department uses procedures comparable to those 
in 5 U.S.C. 554 in such cases;
    (2) Any proceeding in which the Department or other agency may 
prescribe a lawful present or future rate; or
    (3) Proceedings to grant or renew licenses.
    (c) If a hearing or appeal includes both matters covered by the Act 
and matters excluded from coverage, any award made will include only 
fees and expenses related to covered issues.



Sec.  4.604  When am I eligible for an award?

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, you must:
    (1) Be a party to the adversary adjudication for which you seek an 
award; and
    (2) Show that you meet all conditions of eligibility in this 
section.
    (b) You are an eligible applicant if you are any of the following:
    (1) An individual with a net worth of $2 million or less;
    (2) The sole owner of an unincorporated business who has a net worth 
of $7 million or less, including both personal and business interests, 
and 500 or fewer employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with 500 or fewer employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with 500 or fewer 
employees;
    (5) Any other partnership, corporation, association, unit of local 
government, or organization with a net worth of $7 million or less and 
500 or fewer employees; or
    (6) For purposes ofSec. 4.605(c), a small entity as defined in 5 
U.S.C. 601(6).
    (c) For the purpose of eligibility, your net worth and the number of 
your employees must be determined as of the date the proceeding was 
initiated.
    (1) Your employees include all persons who regularly perform 
services for remuneration under your direction and control.
    (2) Part-time employees must be included on a proportional basis.

[[Page 96]]

    (d) You are considered an ``individual'' rather than a ``sole owner 
of an unincorporated business'' if:
    (1) You own an unincorporated business; and
    (2) The issues on which you prevail are related primarily to 
personal interests rather than to business interests.
    (e) To determine your eligibility, your net worth and the number of 
your employees must be aggregated with the net worth and the number of 
employees of all of your affiliates. However, this paragraph does not 
apply if the adjudicative officer determines that aggregation would be 
unjust and contrary to the purposes of the Act in light of the actual 
relationship between the affiliated entities.
    (f) The adjudicative officer may determine that financial 
relationships other than those described in the definition of 
``affiliate'' inSec. 4.602 constitute special circumstances that would 
make an award unjust.
    (g) If you participate in a proceeding primarily on behalf of one or 
more other persons or entities that would be ineligible, you are not 
eligible for an award.



Sec.  4.605  Under what circumstances may I receive an award?

    (a) You may receive an award for your fees and expenses in 
connection with a proceeding if:
    (1) You prevailed in the proceeding or in a significant and discrete 
substantive portion of a proceeding; and
    (2) The position of the Department or other agency over which you 
prevailed was not substantially justified. The Department or other 
agency has the burden of proving that its position was substantially 
justified.
    (b) An award will be reduced or denied if you have unduly or 
unreasonably protracted the proceeding or if special circumstances make 
the award sought unjust.
    (c) This paragraph applies to an adversary adjudication arising from 
an action by the Department or other agency to enforce compliance with a 
statutory or regulatory requirement:
    (1) If the demand of the Department or other agency in the action is 
excessive and unreasonable compared with the adjudicative officer's 
decision, then the adjudicative officer must award you your fees and 
expenses related to defending against the excessive demand, unless:
    (i) You have committed a willful violation of law;
    (ii) You have acted in bad faith; or
    (iii) Special circumstances make an award unjust.
    (2) Fees and expenses awarded under this paragraph will be paid only 
if appropriations to cover the payment have been provided in advance.



Sec.  4.606  What fees and expenses may be allowed?

    (a) If the criteria in Sec.Sec. 4.603 through 4.605 are met, you 
may receive an award under this subpart only for the fees and expenses 
of your attorney(s) and expert witness(es).
    (b) The adjudicative officer must base an award on rates customarily 
charged by persons engaged in the business of acting as attorneys and 
expert witnesses, even if the services were made available to you 
without charge or at a reduced rate.
    (1) The maximum that can be awarded for the fee of an attorney is 
$125 per hour.
    (2) The maximum that can be awarded for the fee of an expert witness 
is the highest rate at which the Department or other agency pays expert 
witnesses with similar expertise.
    (3) An award may also include the reasonable expenses of the 
attorney or expert witness as a separate item, if the attorney or expert 
witness ordinarily charges clients separately for those expenses.
    (c) The adjudicative officer may award only reasonable fees and 
expenses under this subpart. In determining the reasonableness of the 
fee for an attorney or expert witness, the adjudicative officer must 
consider the following:
    (1) If the attorney or expert witness is in private practice, his or 
her customary fee for similar services;
    (2) If the attorney or expert witness is your employee, the fully 
allocated cost of the services;
    (3) The prevailing rate for similar services in the community in 
which the attorney or expert witness ordinarily performs services;

[[Page 97]]

    (4) The time actually spent in representing you in the proceeding;
    (5) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (6) Any other factors that bear on the value of the services 
provided.
    (d) The adjudicative officer may award the reasonable cost of any 
study, analysis, engineering report, test, project, or similar matter 
prepared on your behalf to the extent that:
    (1) The charge for the service does not exceed the prevailing rate 
for similar services; and
    (2) The study or other matter was necessary for preparation of your 
case.

                  Information Required From Applicants



Sec.  4.610  What information must my application for an award contain?

    (a) Your application for an award of fees and expenses under the Act 
must:
    (1) Identify you;
    (2) Identify the proceeding for which an award is sought;
    (3) Show that you have prevailed;
    (4) Specify the position of the Department or other agency that you 
allege was not substantially justified;
    (5) Unless you are an individual, state the number of your employees 
and those of all your affiliates, and describe the type and purpose of 
your organization or business;
    (6) State the amount of fees and expenses for which you seek an 
award;
    (7) Be signed by you or your authorized officer or attorney;
    (8) Contain or be accompanied by a written verification under oath 
or under penalty of perjury that the information in the application is 
true and correct; and
    (9) Unless one of the exceptions in paragraph (b) of this section 
applies, include a statement that:
    (i) Your net worth does not exceed $2 million, if you are an 
individual; or
    (ii) Your net worth and that of all your affiliates does not exceed 
$7 million in the aggregate, if you are not an individual.
    (b) You do not have to submit the statement of net worth required by 
paragraph (a)(9) of this section if you do any of the following:
    (1) Attach a copy of a ruling by the Internal Revenue Service that 
you qualify as a tax-exempt organization described in 26 U.S.C. 
501(c)(3);
    (2) Attach a statement describing the basis for your belief that you 
qualify under 26 U.S.C. 501(c)(3), if you are a tax-exempt organization 
that is not required to obtain a ruling from the Internal Revenue 
Service on your exempt status;
    (3) State that you are a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)); or
    (4) Seek fees and expenses underSec. 4.605(c) and provide 
information demonstrating that you qualify as a small entity under 5 
U.S.C. 601.
    (c) You may also include in your application any other matters that 
you wish the adjudicative officer to consider in determining whether and 
in what amount an award should be made.



Sec.  4.611  What information must I include in my net worth exhibit?

    (a) Unless you meet one of the criteria inSec. 4.610(b), you must 
file with your application a net worth exhibit that meets the 
requirements of this section. The adjudicative officer may also require 
that you file additional information to determine your eligibility for 
an award.
    (b) The exhibit must show your net worth and that of any affiliates 
when the proceeding was initiated. The exhibit may be in any form that:
    (1) Provides full disclosure of your and your affiliates' assets and 
liabilities; and
    (2) Is sufficient to determine whether you qualify under the 
standards in this subpart.
    (c) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, if you object to public disclosure of 
information in any portion of the exhibit and believe there are legal 
grounds for withholding it from disclosure, you may submit that portion 
of the exhibit directly to the adjudicative officer in a sealed envelope 
labeled ``Confidential Financial Information,'' accompanied by a motion 
to withhold the information from public disclosure.

[[Page 98]]

    (1) The motion must describe the information sought to be withheld 
and explain, in detail:
    (i) Why it falls within one or more of the exemptions from mandatory 
disclosure under the Freedom of Information Act, 5 U.S.C. 552(b);
    (ii) Why public disclosure of the information would adversely affect 
you; and
    (iii) Why disclosure is not required in the public interest.
    (2) You must serve the net worth exhibit and motion on counsel 
representing the agency against which you seek an award, but you are not 
required to serve it on any other party to the proceeding.
    (3) If the adjudicative officer finds that the information should 
not be withheld from disclosure, it must be placed in the public record 
of the proceeding. Otherwise, any request to inspect or copy the exhibit 
will be disposed of in accordance with the Department's procedures under 
the Freedom of Information Act, 43 CFR 2.7 et seq.



Sec.  4.612  What documentation of fees and expenses must I provide?

    (a) Your application must be accompanied by full documentation of 
the fees and expenses for which you seek an award, including the cost of 
any study, analysis, engineering report, test, project, or similar 
matter.
    (b) You must submit a separate itemized statement for each 
professional firm or individual whose services are covered by the 
application, showing:
    (1) The hours spent in connection with the proceeding by each 
individual;
    (2) A description of the specific services performed;
    (3) The rates at which each fee has been computed;
    (4) Any expenses for which reimbursement is sought;
    (5) The total amount claimed; and
    (6) The total amount paid or payable by you or by any other person 
or entity for the services provided.
    (c) The adjudicative officer may require you to provide vouchers, 
receipts, logs, or other substantiation for any fees or expenses 
claimed, in accordance withSec. 4.624.



Sec.  4.613  When may I file an application for an award?

    (a) You may file an application whenever you have prevailed in the 
proceeding or in a significant and discrete substantive portion of the 
proceeding. You must file the application no later than 30 days after 
the final disposition of the proceeding.
    (b) Consideration of an application for an award must be stayed if:
    (1) Any party seeks review or reconsideration of a decision in a 
proceeding in which you believe you have prevailed; or
    (2) The Department or other agency (or the United States on its 
behalf) appeals an adversary adjudication to a court.
    (c) A stay under paragraph (b)(1) of this section will continue 
until there has been a final disposition of the review or 
reconsideration of the decision. A stay under paragraph (b)(2) of this 
section will continue until either:
    (1) A final and unreviewable decision is rendered by the court on 
the appeal; or
    (2) The underlying merits of the case have been finally determined.

                 Procedures for Considering Applications



Sec.  4.620  How must I file and serve documents?

    You must file and serve all documents related to an application for 
an award under this subpart on all other parties to the proceeding in 
the same manner as other pleadings in the proceeding, except as provided 
inSec. 4.611(c) for confidential information. The Department or other 
agency and all other parties must likewise file and serve their 
pleadings and related documents on you and on each other, in the same 
manner as other pleadings in the proceeding.



Sec.  4.621  When may the Department or other agency file an answer?

    (a) Within 30 days after service of an application, the Department 
or other agency against which an award is sought may file an answer to 
the application. However, if consideration of an application has been 
stayed underSec. 4.613(b), the answer is due within 30

[[Page 99]]

days after the final disposition of the review or reconsideration of the 
decision.
    (1) Except as provided in paragraph (a)(2) of this section, failure 
to file an answer within the 30-day period may be treated as a consent 
to the award requested. In such case, the adjudicative officer will 
issue a decision in accordance withSec. 4.625 based on the record 
before him or her.
    (2) Failure to file an answer within the 30-day period will not be 
treated as a consent to the award requested if the Department or other 
agency either:
    (i) Requests an extension of time for filing; or
    (ii) Files a statement of intent to negotiate under paragraph (b) of 
this section.
    (b) If the Department or other agency and you believe that the 
issues in the fee application can be settled, you may jointly file a 
statement of intent to negotiate a settlement. Filing this statement 
will extend for an additional 30 days the time for filing an answer, and 
the adjudicative officer may grant further extensions if you and the 
agency counsel so request.
    (c) The answer must explain in detail any objections to the award 
requested and identify the facts relied on to support the Department's 
or other agency's position. If the answer is based on any alleged facts 
not already in the record of the proceeding, the Department or other 
agency must include with the answer either supporting affidavits or a 
request for further proceedings underSec. 4.624.



Sec.  4.622  When may I file a reply?

    Within 15 days after service of an answer, you may file a reply. If 
your reply is based on any alleged facts not already in the record of 
the proceeding, you must include with the reply either supporting 
affidavits or a request for further proceedings underSec. 4.624.



Sec.  4.623  When may other parties file comments?

    Any party to a proceeding other than the applicant and the 
Department or other agency may file comments on an application within 30 
days after it is served or on an answer within 15 days after it is 
served. A commenting party may not participate further in the 
proceedings on the application unless the adjudicative officer 
determines that the public interest requires such participation in order 
to permit full exploration of matters raised in the comments.



Sec.  4.624  When may further proceedings be held?

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, the adjudicative officer may order 
further proceedings, which will be held only when necessary for full and 
fair resolution of the issues and will be conducted as promptly as 
possible.
    (b) The adjudicative officer may order further proceedings on his or 
her own initiative or in response to a request by you or by the 
Department or other agency. A request for further proceedings under this 
section must:
    (1) Identify the information sought or the disputed issues; and
    (2) Explain why the additional proceedings are necessary to resolve 
the issues.
    (c) As to issues other than substantial justification (such as your 
eligibility or substantiation of fees and expenses), further proceedings 
under this section may include an informal conference, oral argument, 
additional written submissions, pertinent discovery, or an evidentiary 
hearing.
    (d) The adjudicative officer will determine whether the position of 
the Department or other agency was substantially justified based on the 
administrative record of the adversary adjudication as a whole.



Sec.  4.625  How will my application be decided?

    The adjudicative officer must issue a decision on the application 
promptly after completion of proceedings on the application. The 
decision must include written findings and conclusions on all of the 
following that are relevant to the decision:
    (a) Your eligibility and status as a prevailing party;
    (b) The amount awarded, and an explanation of the reasons for any 
difference between the amount requested and the amount awarded;

[[Page 100]]

    (c) Whether the position of the Department or other agency was 
substantially justified;
    (d) Whether you unduly protracted the proceedings; and
    (e) Whether special circumstances make an award unjust.



Sec.  4.626  How will an appeal from a decision be handled?

    (a) If the adjudicative officer is an administrative law judge, you 
or the Department or other agency may appeal his or her decision on the 
application to the appeals board that would have jurisdiction over an 
appeal involving the merits of the proceeding. The appeal will be 
subject to the same regulations and procedures that would apply to an 
appeal involving the merits of the proceeding. The appeals board will 
issue the final Departmental or other agency decision on the 
application.
    (b) If the adjudicative officer is a panel of appeals board judges, 
their decision on the application is final for the Department or other 
agency.



Sec.  4.627  May I seek judicial review of a final decision?

    You may seek judicial review of a final Departmental or other agency 
decision on an award as provided in 5 U.S.C. 504(c)(2).



Sec.  4.628  How will I obtain payment of an award?

    (a) To obtain payment of an award against the Department or other 
agency, you must submit:
    (1) A copy of the final decision granting the award; and
    (2) A certification that no party is seeking review of the 
underlying decision in the United States courts, or that the process for 
seeking review of the award has been completed.
    (b) If the award is against the Department:
    (1) You must submit the material required by paragraph (a) of this 
section to the following address:
    Director, Office of Financial Management, Policy, Management and 
Budget, U.S. Department of the Interior, Washington, DC 20240.
    (2) Payment will be made by electronic funds transfer whenever 
possible. A representative of the Department will contact you for the 
information the Department needs to process the electronic funds 
transfer.
    (c) If the award is against another agency, you must submit the 
material required by paragraph (a) of this section to the chief 
financial officer or other disbursing official of that agency. Agency 
counsel must promptly inform you of the title and address of the 
appropriate official.
    (d) The Department or other agency will pay the amount awarded to 
you within 60 days of receiving the material required by this section.



    Subpart G_Special Rules Applicable to Other Appeals and Hearings

    Authority: 5 U.S.C. 301.



Sec.  4.700  Who may appeal.

    Any party aggrieved by an adjudicatory action or decision of a 
Departmental official relating to rights or privileges based upon law in 
any case or proceeding in which Departmental regulations allow a right 
of appeal to the head of the Department from such action or decision, 
should direct his appeal to the Director, Office of Hearings and 
Appeals, if the case is not one which lies within the appellate review 
jurisdiction of an established Appeals Board and is not excepted from 
the review authority delegated to the Director. No appeal will lie when 
the action of the Departmental official was based solely upon 
administrative or discretionary authority of such official.

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



Sec.  4.701  Notice of appeal.

    The appellant shall file a written notice of appeal, signed by him 
or by his attorney or other qualified representative, in the Office of 
the Director, within 30 days from the date of mailing of the decision 
from which the appeal is taken. The notice shall contain an 
identification of the action or decision appealed from and give a 
concise but complete statement of the facts relied upon and the relief 
sought. The appellant shall mail a copy of the notice of

[[Page 101]]

appeal, any accompanying statement of reasons therefor, and any written 
arguments or briefs, to each party to the proceedings or whose rights 
are involved in the case, and to the Departmental official whose action 
or decision is being appealed. The notice of appeal shall contain a 
certificate setting forth the names of the parties served, their 
addresses, and the dates of mailing.



Sec.  4.702  Transmittal of appeal file.

    Within 10 days after receipt of a copy of the notice of appeal, the 
Departmental official whose action or decision is being appealed shall 
transmit to the Office of the Director the entire official file in the 
matter, including all records, documents, transcripts of testimony, and 
other information compiled during the proceedings leading to the 
decision being appealed.



Sec.  4.703  Pleadings.

    If the parties wish to file briefs, they must comply with the 
following requirements: Appellant shall have 30 days from the date of 
filing of his notice of appeal within which to file an opening brief, 
and the opposing parties shall have 30 days from the date of receipt of 
appellant's brief in which to file an answering brief. Additional or 
rebuttal briefs may be filed upon permission first obtained from the 
Director or the Ad Hoc Appeals Board appointed by him to consider and 
decide the particular appeal. Copies of all briefs shall be served upon 
all other parties or their attorneys of record or other qualified 
representatives, and a certificate to that effect shall be filed with 
said brief.

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



Sec.  4.704  Decisions on appeals.

    The Director, or an Ad Hoc Appeals Board appointed by the Director 
to consider and decide the particular appeal, will review the record and 
take such action as the circumstances call for. The Director or the Ad 
Hoc Appeals Board may direct a hearing on the entire matter or specified 
portions thereof, may decide the appeal forthwith upon the record 
already made, or may make other disposition of the case. Upon request 
and for good cause shown, the Director or an Ad Hoc Appeals Board may 
grant an opportunity for oral argument. Any hearing on such appeals 
shall be conducted by the Ad Hoc Appeals Board or a member or members 
thereof, or by an administrative law judge of the Office of Hearings and 
Appeals and shall be governed insofar as practicable by the regulations 
applicable to other hearings under this part.

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

Subpart H [Reserved]



Subpart I_Special Procedural Rules Applicable to Practice and Procedure 
for Hearings, Decisions, and Administrative Review Under Part 17 of This 
Title_Nondiscrimination in Federally Assisted Programs of the Department 
of the Interior_Effectuation of Title VI of the Civil Rights Act of 1964

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

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

    Cross Reference: See subpart A for the organization, authority and 
jurisdiction of the Office of Hearings and Appeals, including its 
Hearings Division. To the extent they are not inconsistent with these 
special rules, the general rules applicable to all types of proceedings 
before the Hearings Division and the several Appeals Boards of the 
Office of Hearings and Appeals, contained in subpart B of this part, are 
applicable also to proceedings under these regulations.

                                 General



Sec.  4.800  Scope and construction of rules.

    (a) The rules of procedure in this subpart I supplement part 17 of 
this title and are applicable to the practice and procedure for 
hearings, decisions, and administrative review conducted by the 
Department of the Interior, pursuant to title VI of the Civil Rights Act 
of 1964 (section 602, 42 U.S.C. 2000d-1) and part 17 of this title, 
concerning nondiscrimination in Federally-assisted programs in 
connection with

[[Page 102]]

which Federal financial assistance is extended under laws administered 
in whole or in part by the Department of the Interior.
    (b) These regulations shall be liberally construed to secure the 
just, prompt, and inexpensive determination of all proceedings 
consistent with adequate consideration of the issues involved and full 
protection of the rights of all interested parties including the 
Government.



Sec.  4.801  Suspension of rules.

    Upon notice to all parties, the responsible Department official or 
the administrative law judge, with respect to matters pending before 
him, may modify or waive any rule in this part upon his determination 
that no party will be unduly prejudiced and the ends of justice will 
thereby be served.



Sec.  4.802  Definitions.

    (a) The definitions set forth inSec. 17.12 of this title apply 
also to this subpart.
    (b) Director means the Director, Office for Equal Opportunity, 
Department of the Interior.
    (c) Administrative law judge means an administrative law judge 
designated by the Office of Hearings and Appeals, Office of the 
Secretary, in accordance with 5 U.S.C. 3105 and 3344.
    (d) Notice means a notice of hearing in a proceeding instituted 
under Part 17 of this title and these regulations.
    (e) Party means a recipient or applicant; the Director; and any 
person or organization participating in a proceeding pursuant toSec. 
4.808.



Sec.  4.803  Computation of time.

    Except as otherwise provided by law, in computing any period of time 
under these rules or in any order issued hereunder, the time begins with 
the day following the act or event, and includes the last day of the 
period, unless it is a Saturday, Sunday, or Federal legal holiday, or 
other nonbusiness day, in which event it includes the next following day 
which is not a Saturday, Sunday, Federal legal holiday, or other 
nonbusiness day. When the period of time prescribed or allowed is 7 days 
or less, intermediate Saturdays, Sundays, Federal legal holidays and 
other nonbusiness days shall be excluded in the computation.



Sec.  4.804  Extensions of time.

    A request for extension of time should be made to the designated 
administrative law judge or other appropriate Departmental official with 
respect to matters pending before him. Such request shall be served on 
all parties and set forth the reasons for the request. Extensions may be 
granted upon a showing of good cause by the applicant. Answers to such 
requests are permitted if made promptly.



Sec.  4.805  Reduction of time to file documents.

    For good cause, the responsible Departmental official or the 
administrative law judge, with respect to matters pending before him, 
may reduce any time limit prescribed by the rules in this part, except 
as provided by law or in part 17 of this title.

      Designation and Responsibilities of Administrative Law Judge



Sec.  4.806  Designation.

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



Sec.  4.807  Authority and responsibilities.

    The administrative law judge shall have all powers necessary to 
preside over the parties and the proceedings, conduct the hearing, and 
make decisions in accordance with 5 U.S.C. 554 through 557. His powers 
shall include, but not be limited to, the power to:
    (a) Hold conferences to settle, simplify, or fix the issues in a 
proceeding, or to consider other matters that may aid in the expeditious 
disposition of the proceeding.
    (b) Require parties to state their position with respect to the 
various issues in the proceedings.
    (c) Establish rules for media coverage of the proceedings.
    (d) Rule on motions and other procedural items in matters before 
him.
    (e) Regulate the course of the hearing, the conduct of counsel, 
parties, witnesses, and other participants.

[[Page 103]]

    (f) Administer oaths, call witnesses on his own motion, examine 
witnesses, and direct witnesses to testify.
    (g) Receive, rule on, exclude, or limit evidence.
    (h) Fix time limits for submission of written documents in matters 
before him.
    (i) Take any action authorized by these regulations, by 5 U.S.C. 
556, or by other pertinent law.

                         Appearance and Practice



Sec.  4.808  Participation by a party.

    Subject to the provisions contained in part 1 of this subtitle, a 
party may appear in person, by representative, or by counsel, and 
participate fully in any proceeding held pursuant to part 17 of this 
title and these regulations. A State agency or any instrumentality 
thereof, a political subdivision of the State or instrumentality 
thereof, or a corporation may appear by any of its officers or employees 
duly authorized to appear on its behalf.



Sec.  4.809  Determination of parties.

    (a) The affected applicant or recipient to whom a notice of hearing 
or a notice of an opportunity for hearing has been mailed in accordance 
with part 17 of this title andSec. 4.815, and the Director, are the 
initial parties to the proceeding.
    (b) Other persons or organizations shall have the right to 
participate as parties if the final decision could directly and 
adversely affect them or the class they represent, and if they may 
contribute materially to the disposition of the proceedings.
    (c) A person or organization wishing to participate as a party under 
this section shall submit a petition to the administrative law judge 
within 15 days after the notice has been served. The petition should be 
filed with the administrative law judge and served on the affected 
applicant or recipient, on the Director, and on any other person or 
organization who has been made a party at the time of filing. Such 
petition shall concisely state: (1) Petitioner's interest in the 
proceeding, (2) how his participation as a party will contribute 
materially to the disposition of the proceeding, (3) who will appear for 
petitioner, (4) the issues on which petitioner wishes to participate, 
and (5) whether petitioner intends to present witnesses.
    (d) The administrative law judge shall promptly ascertain whether 
there are objections to the petition. He shall then determine whether 
petitioners have the requisite interest to be a party in the 
proceedings, as defined in paragraphs (a) and (b) of this section, and 
shall permit or deny participation accordingly. Where petitions to 
participate as parties are made by individuals or groups with common 
interests, the administrative law judge may request all such petitioners 
to designate a single representative, or he may recognize one or more of 
such petitioners to represent all such petitioners. The administrative 
law judge shall give each such petitioner written notice of the decision 
on his petition. If the petition is denied, he shall briefly state the 
grounds for denial and shall then treat the petition as a request for 
participation as amicus curiae. The administrative law judge shall give 
written notice to each party of each petition granted.
    (e) Persons or organizations whose petition for party participation 
is denied may appeal the decision to the Director, Office of Hearings 
and Appeals, within 7 days of receipt of denial. The Director, Office of 
Hearings and Appeals, will make the final decision for the Department to 
grant or deny the petition.



Sec.  4.810  Complainants not parties.

    A person submitting a complaint pursuant toSec. 17.6 of this title 
is not a party to the proceedings governed by part 17 of this title and 
these regulations, but may petition, after proceedings are initiated, to 
become an amicus curiae. In any event a complainant shall be advised of 
the time and place of the hearing.



Sec.  4.811  Determination and participation of amici.

    (a) Any interested person or organization wishing to participate as 
amicus curiae in the proceeding shall file a petition before the 
commencement of the hearing. Such petition shall concisely state the 
petitioner's interest in the

[[Page 104]]

hearing and who will represent petitioner.
    (b) The administrative law judge will grant the petition if he finds 
that the petitioner has an interest in the proceedings and may 
contribute materially to the disposition of the proceedings. The 
administrative law judge shall give the petitioner written notice of the 
decision on his petition.
    (c) An amicus curiae is not a party and may not introduce evidence 
at a hearing but may only participate as provided in paragraph (d) of 
this section.
    (d) An amicus curiae may submit a written statement of position to 
the administrative law judge at any time prior to the beginning of a 
hearing, and shall serve a copy on each party. He may also file a brief 
or written statement on each occasion a decision is to be made or a 
prior decision is subject to review. His brief or written statement 
shall be filed and served on each party within the time limits 
applicable to the party whose position he deems himself to support; or 
if he does not deem himself to support the position of any party, within 
the longest time limit applicable to any party at that particular stage 
of the proceedings.
    (e) When all parties have completed their initial examination of a 
witness, any amicus curiae may request the administrative law judge to 
propound specific questions to the witness. The administrative law 
judge, in his discretion, may grant any such request if he believes the 
proposed additional testimony may assist materially in elucidating 
factual matters at issue between the parties and will not expand the 
issues.

                      Form and Filing of Documents



Sec.  4.812  Form.

    Documents filed pursuant to a proceeding herein shall show the 
docket description and title of the proceeding, the party or amicus 
submitting the document, the dates signed, and the title, if any, and 
address of the signatory. The original will be signed in ink by the 
party representing the party or amicus. Copies need not be signed, but 
the name of the person signing the original shall be reproduced.



Sec.  4.813  Filing and service.

    (a) All documents submitted in a proceeding shall be served on all 
parties. The original and two copies of each document shall be submitted 
for filing. Filings shall be made with the administrative law judge or 
other appropriate Departmental official before whom the proceeding is 
pending. With respect to exhibits and transcripts of testimony, only 
originals need be filed.
    (b) Service upon a party or amicus shall be made by delivering one 
copy of each document requiring service in person or by certified mail, 
return receipt requested, properly addressed with postage prepaid, to 
the party or amicus or his attorney, or designated representative. 
Filing will be made in person or by certified mail, return receipt 
requested, to the administrative law judge or other appropriate 
Departmental official before whom the proceeding is pending.
    (c) The date of filing or of service shall be the day when the 
matter is deposited in the U.S. mail or is delivered in person.



Sec.  4.814  Certificate of service.

    The original of every document filed and required to be served upon 
parties shall be endorsed with a certificate of service signed by the 
party or amicus curiae making service or by his attorney or 
representative, stating that such service has been made, the date of 
service, and the manner of service.

                               Procedures



Sec.  4.815  How proceedings are commenced.

    Proceedings are commenced by the Director by mailing to an applicant 
or recipient a notice of alleged noncompliance with the Act and the 
regulations thereunder. The notice shall include either a notice of 
hearing fixing a date therefor or a notice of an opportunity for a 
hearing as provided inSec. 17.8 of this title. The notice shall advise 
the applicant or recipient of the action proposed to be taken, the 
specific provisions of part 17 of this title under which the proposed 
action is to be taken, and the matters of fact or law asserted as the 
basis of the action.

[[Page 105]]



Sec.  4.816  Notice of hearing and response thereto.

    A notice of hearing shall fix a date not less than 30 days from the 
date of service of the notice of a hearing on matters alleged in the 
notice. If the applicant recipient does not desire a hearing, he should 
so state in writing, in which case the applicant or recipient shall have 
the right to further participate in the proceeding. Failure to appear at 
the time set for a hearing, without good cause, shall be deemed a waiver 
of the right to a hearing under section 602 of the Act and the 
regulations thereunder and consent to the making of a decision on such 
information as is available which may be presented for the record.



Sec.  4.817  Notice of opportunity to request a hearing and response
thereto.

    A notice of opportunity to request a hearing shall set a date not 
less than 20 days from service of said notice within which the applicant 
or recipient may file a request for a hearing, or may waive a hearing 
and submit written information and argument for the record, in which 
case, the applicant or recipient shall have the right to further 
participate in the proceeding. When the applicant or recipient elects to 
file a request for a hearing, a time shall be set for the hearing at a 
date not less than 20 days from the date applicant or recipient is 
notified of the date set for the hearing. Failure of the applicant or 
recipient to request a hearing or to appear at the date set shall be 
deemed a waiver of the right to a hearing, under section 602 of the Act 
and the regulations thereunder and consent to the making of a decision 
on such information as is available which may be presented for the 
record.



Sec.  4.818  Answer.

    In any case covered bySec. 4.816 orSec. 4.817, the applicant or 
recipient shall file an answer. Said answer shall admit or deny each 
allegation of the notice, unless the applicant or recipient is without 
knowledge, in which case the answer shall so state, and the statement 
will be considered a denial. Failure to file an answer shall be deemed 
an admission of all allegations of fact in the notice. Allegations of 
fact in the notice not denied or controverted by answer shall be deemed 
admitted. Matters alleged in the answer as affirmative defenses shall be 
separately stated and numbered. The answer underSec. 4.816 shall be 
filed within 20 days from the date of service of the notice of hearing. 
The answer underSec. 4.817 shall be filed within 20 days of service of 
the notice of opportunity to request a hearing.



Sec.  4.819  Amendment of notice or answer.

    The Director may amend the notice of hearing or opportunity for 
hearing once as a matter of course before an answer is filed, and each 
respondent may amend his answer once as a matter of course not later 
than 10 days before the date fixed for hearing but in no event later 
than 20 days from the date of service of his original answer. Other 
amendments of the notice or of the answer to the notice shall be made 
only by leave of the administrative law judge. An amended notice shall 
be answered within 10 days of its service, or within the time for filing 
an answer to the original notice, whichever period is longer.



Sec.  4.820  Consolidated or joint hearings.

    As provided inSec. 17.8(e) of this title, the Secretary may 
provide for proceedings in the Department to be joined or consolidated 
for hearing with proceedings in other Federal departments or agencies, 
by agreement with such other departments or agencies. All parties to any 
proceedings consolidated subsequently to service of the notice of 
hearing or opportunity for hearing shall be promptly served with notice 
of such consolidation.



Sec.  4.821  Motions.

    Motions and petitions shall state the relief sought, the basis for 
relief and the authority relied upon. If made before or after the 
hearing itself, these matters shall be in writing. If made at the 
hearing, they may be stated orally; but the administrative law judge may 
require that they be reduced to writing and filed and served on all 
parties. Within 8 days after a written motion or petition is served, any 
party may file a response to a motion or petition. An

[[Page 106]]

immediate oral response may be made to an oral motion. Oral argument on 
motions will be at the discretion of the administrative law judge.



Sec.  4.822  Disposition of motions.

    The administrative law judge may not grant a written motion or 
petition prior to expiration of the time for filing responses thereto, 
but may overrule or deny such motion or petition without awaiting 
response: Provided, however, That prehearing conferences, hearings, and 
decisions need not be delayed pending disposition of motions or 
petitions. Oral motions and petitions may be ruled on immediately.



Sec.  4.823  Interlocutory appeals.

    Except as provided inSec. 4.809(e), a ruling of the administrative 
law judge may not be appealed to the Director, Office of Hearings and 
Appeals, prior to consideration of the entire proceeding by the 
administrative law judge unless permission is first obtained from the 
Director, Office of Hearings and Appeals, and the administrative law 
judge has certified the interlocutory ruling on the record or abused his 
discretion in refusing a request to so certify. Permission will not be 
granted except upon a showing that the ruling complained of involves a 
controlling question of law and that an immediate appeal therefrom may 
materially advance the final decision. An interlocutory appeal shall not 
operate to suspend the hearing unless otherwise ordered by the Director, 
Office of Hearings and Appeals. If an appeal is allowed, any party may 
file a brief within such period as the Director, Office of Hearings and 
Appeals, directs. Upon affirmance, reversal, or modification of the 
administrative law judge's interlocutory ruling or order, by the 
Director, Office of Hearings and Appeals, the case will be remanded 
promptly to the administrative law judge for further proceedings.



Sec.  4.824  Exhibits.

    Proposed exhibits shall be exchanged at the prehearing conference, 
or otherwise prior to the hearing, if the administrative law judge so 
directs. Proposed exhibits not so exchanged in accordance with the 
administrative law judge's order may be denied admission as evidence. 
The authenticity of all exhibits submitted prior to the hearing, under 
direction of the administrative law judge, will be deemed admitted 
unless written objection thereto is filed and served on all parties, or 
unless good cause is shown for failure to file such written objection.



Sec.  4.825  Admissions as to facts and documents.

    Not later than 15 days prior to the date of the hearing any party 
may serve upon an opposing party a written request for the admission of 
the genuineness and authenticity of any relevant documents described in, 
and exhibited with, the request, or for the admission of the truth of 
any relevant matters of fact stated in the request. Each of the matters 
as to which an admission is requested shall be deemed admitted, unless 
within a period of 10 days, the party to whom the request is directed 
serves upon the requesting party a statement either (a) denying 
specifically the matters as to which an admission is requested, or (b) 
setting forth in detail the reasons why he cannot truthfully either 
admit or deny such matters.



Sec.  4.826  Discovery.

    (a) Methods. Parties may obtain discovery as provided in these rules 
by depositions, written interrogatories, production of documents, or 
other items; or by permission to enter property, for inspection and 
other purposes.
    (b) Scope. Parties may obtain discovery regarding any matter, not 
privileged, which is relevant to the subject matter involved in the 
hearing.
    (c) Protective orders. Upon motion by a party or by the person from 
whom discovery is sought, and for good cause shown, the administrative 
law judge may make any order which justice requires to limit or 
condition discovery in order to protect a party or person from 
annoyance, embarrassment, oppression, or undue burden or expense.
    (d) Sequence and timing. Methods of discovery may be used in any 
sequence. The fact that a party is conducting discovery shall not 
operate to delay any other party's discovery.

[[Page 107]]

    (e) Time limit. Discovery by all parties will be completed within 
such time as the administrative law judge directs, from the date the 
notice of hearing is served on the applicant or recipient.



Sec.  4.827  Depositions.

    (a) A party may take the testimony of any person, including a party, 
by deposition upon oral examination. This may be done by stipulation or 
by notice, as set forth in paragraph (b) of this section. On motion of 
any party or other person upon whom the notice is served, the 
administrative law judge may for cause shown enlarge or shorten the time 
for the deposition, change the place of the deposition, limit the scope 
of the deposition or quash the notice. Depositions of persons other than 
parties or their representatives shall be upon consent of the deponent.
    (b)(1) The party will give reasonable notice in writing to every 
other party of the time and place for taking depositions, the name and 
address of each person to be examined, if known, or a general 
description sufficient to identify him or the particular class or group 
to which he belongs.
    (2) The notice to a deponent may be accompanied by a request for the 
production of documents and tangible things at the taking of the 
deposition.
    (3) A party may name as the deponent a corporation, partnership, 
association, or governmental agency and may designate a particular 
person within the organization whose testimony is desired and the 
matters on which examination is requested. If no particular person is 
named, the organization shall designate one or more agents to testify on 
its behalf, and may set forth the matters on which each will testify. 
The persons so designated shall testify as to matters known or 
reasonably available to the organization.
    (c) Examination and cross-examination of witnesses may proceed as 
permitted at the hearing. The witness shall be placed under oath by a 
disinterested person qualified to administer oaths by the laws of the 
United States or of the place where the examination is held, and the 
testimony taken by such person shall be recorded verbatim.
    (d) During the taking of a deposition a party or deponent may 
request suspension of the deposition on grounds of bad faith in the 
conduct of the examination, annoyance, embarrassment, oppression of a 
deponent or party or improper questions propounded. The deposition will 
then be adjourned. However, the objecting party or deponent must 
immediately move the administrative law judge for a ruling on his 
objections to the deposition conduct or proceedings. The administrative 
law judge may then limit the scope or manner of the taking of the 
deposition.
    (e) The officer shall certify the deposition and promptly file it 
with the administrative law judge. Documents or true copies of documents 
and other items produced for inspection during the examination of the 
witness shall, upon the request of a party, be marked for identification 
and annexed to the deposition.
    (f) The party taking the deposition shall give prompt notice of its 
filing to all other parties.



Sec.  4.828  Use of depositions at hearing.

    (a) Any part or all of a deposition so far as admissible underSec. 
4.835 applied as though the witness were then present and testifying, 
may be used against any party who was present or represented at the 
taking of the deposition or who had reasonable notice thereof as 
follows:
    (1) Any deposition may be used for contradiction or impeachment of 
the deponent as a witness.
    (2) The deposition of a party, or of an agent designated to testify 
on behalf of a party, may be used by an adverse party for any purpose.
    (3) The deposition of any witness may be used for any purpose if the 
party offering the deposition has been unable to procure the attendance 
of the witness because he is dead; or if the witness is at a greater 
distance than 100 miles from the place of hearing, or is out of the 
United States, unless it appears that the absence of the witness was 
procured by the party offering the deposition; or if the witness is 
unable to attend or testify because of age, illness, infirmity, or 
imprisonment; or, upon application and notice, that such exceptional 
circumstances exist as to

[[Page 108]]

make it desirable, in the interest of justice and with due regard to the 
importance of presenting the testimony of witnesses orally in open 
hearing, to allow the deposition to be used.
    (b) If only part of a deposition is offered in evidence, the 
remainder becomes subject to introduction by any party.
    (c) Objection may be made at the hearing to receiving in evidence 
any deposition or part thereof for any reason which would require the 
exclusion of the evidence if the witness were then present and 
testifying.



Sec.  4.829  Interrogatories to parties.

    (a) Any party may serve upon any other party written interrogatories 
after the notice of hearing has been filed. If the party served is a 
corporation, partnership, association, or governmental agency, an agent 
shall furnish such information as is available to the party.
    (b) Each interrogatory shall be answered separately and fully in 
writing under oath, unless it is objected to, in which event the 
objection shall be stated in lieu of an answer. The answers are to be 
signed by the person making them, and the objections signed by the 
attorney or other representative making them. Answers and objections 
shall be made within 30 days after the service of the interrogatories. 
The party submitting the interrogatories may move for an order under 
Sec.  4.831 with respect to any objection to or other failure to answer 
an interrogatory.
    (c) Interrogatories shall relate to any matter not privileged which 
is relevant to the subject matter of the hearing.



Sec.  4.830  Production of documents and things and entry upon land
for inspection and other purposes.

    (a) After the notice of hearing has been filed, any party may serve 
on any other party a request to produce and/or permit the party, or 
someone acting on his behalf, to inspect and copy any designated 
documents, phonorecords, and other data compilations from which 
information can be obtained and which are in the possession, custody, or 
control of the party upon whom the request is served. If necessary, 
translation of data compilations shall be done by the party furnishing 
the information.
    (b) After the notice of hearing has been filed, any party may serve 
on any other party a request to permit entry upon designated property in 
the possession or control of the party upon whom the request is served 
for the purpose of inspection, measuring, surveying or photographing, 
testing, or sampling the property or any designated object.
    (c) Each request shall set forth with reasonable particularity the 
items to be inspected and shall specify a reasonable time, place, and 
manner of making the inspection and performing the related acts.
    (d) The party upon whom the request is served shall respond within 
15 days after the service of the request. The response shall state, with 
respect to each item, that inspection and related activities will be 
permitted as requested, unless there are objections in which case the 
reasons for each objection shall be stated. The party submitting the 
request may move for an order underSec. 4.831 with respect to any 
objection to or other failure to respond.



Sec.  4.831  Sanctions.

    (a) A party, upon reasonable notice to other parties and all persons 
affected thereby, may move for an order as follows:
    (1) If a deponent fails to answer a question propounded or submitted 
underSec. 4.827(c), or a corporation or other entity fails to make a 
designation underSec. 4.827(b)(3), or a party fails to answer an 
interrogatory submitted underSec. 4.829, or if a party, underSec. 
4.830 fails to respond that inspection will be permitted or fails to 
permit inspection, the discovering party may move for an order 
compelling an answer, a designation, or inspection.
    (2) An evasive or incomplete answer is to be treated as a failure to 
answer.
    (b) If a party or an agent designated to testify fails to obey an 
order to permit discovery, the administrative law judge may make such 
orders as are just, including:
    (1) That the matters regarding which the order was made or any other 
designated facts shall be established in accordance with the claim of 
the party obtaining the order;

[[Page 109]]

    (2) Refusing to allow the disobedient party to support or oppose 
designated claims or defenses, or prohibiting him from introducing 
designated matters in evidence.
    (c) If a party or an agent designated to testify fails after proper 
service (1) to appear for his deposition, (2) to serve answers or 
objections to interrogatories submitted underSec. 4.829 or (3) to 
serve a written response to a request for inspection, submitted under 
Sec.  4.830, the administrative law judge on motion may make such orders 
as are just, including those authorized under paragraphs (b) (1) and (2) 
of this section.



Sec.  4.832  Consultation and advice.

    (a) The administrative law judge shall not consult any person, or 
party, on any fact in issue or on the merits of the matter before him 
unless upon notice and opportunity for all parties to participate.
    (b) No employee or agent of the Federal Government engaged in the 
investigation and prosecution of a proceeding governed by these rules 
shall participate or advise in the rendering of any recommended or final 
decision, except as witness or counsel in the proceeding.

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

                               Prehearing



Sec.  4.833  Prehearing conferences.

    (a) Within 15 days after the answer has been filed, the 
administrative law judge will establish a prehearing conference date for 
all parties including persons or organizations whose petition requesting 
party status has not been ruled upon. Written notice of the prehearing 
conference shall be sent by the administrative law judge.
    (b) At the prehearing conference the following matters, among 
others, shall be considered: (1) Simplification and delineation of the 
issues to be heard; (2) stipulations; (3) limitation of number of 
witnesses; and exchange of witness lists; (4) procedure applicable to 
the proceeding; (5) offers of settlement; and (6) scheduling of the 
dates for exchange of exhibits. Additional prehearing conferences may be 
scheduled at the discretion of the administrative law judge, upon his 
own motion or the motion of a party.

                                 Hearing



Sec.  4.834  Purpose.

    (a) The hearing is directed primarily to receiving factual evidence 
and expert opinion testimony related to the issues in the proceeding. A 
hearing will be held only in cases where issues of fact must be resolved 
in order to determine whether the applicant or recipient has failed to 
comply with one or more applicable requirements of title VI of the Civil 
Rights Act of 1964 (sec. 602, 42 U.S.C. 2000d-1) and part 17 of this 
title. However, this shall not prevent the parties from entering into a 
stipulation of the facts.
    (b) If all facts are stipulated, the proceedings shall go to 
conclusion in accordance with part 17 of this title and the rules in 
this subpart.
    (c) In any case where it appears from the answer of the applicant or 
recipient to the notice of hearing or notice of opportunity to request a 
hearing, from his failure timely to answer, or from his admissions or 
stipulations in the record that there are no matters of material fact in 
dispute, the administrative law judge may enter an order so finding, 
vacating the hearing date if one has been set, and fixing the time for 
the submission of evidence by the Government for the record. Thereafter, 
the proceedings shall go to conclusion in accordance with part 17 of 
this title and the rules in this subpart. An appeal from such order may 
be allowed in accordance with the rules for interlocutory appeal in 
Sec.  4.823.



Sec.  4.835  Evidence.

    Formal rules of evidence will not apply to the proceeding. 
Irrelevant, immaterial, unreliable, and unduly repetitious evidence will 
be excluded from the record of a hearing. Hearsay evidence shall not be 
inadmissible as such.



Sec.  4.836  Official notice.

    Whenever a party offers a public document, or part thereof, in 
evidence, and such document, or part thereof, has been shown by the 
offeror to be reasonably available to the public, such document need not 
be produced or

[[Page 110]]

marked for identification, but may be offered for official notice as a 
public document item by specifying the document or relevant part 
thereof. Official notice may also be taken of other matters, at the 
discretion of the administrative law judge.



Sec.  4.837  Testimony.

    Testimony shall be given under oath by witnesses at the hearing. A 
witness shall be available for cross-examination, and, at the discretion 
of the administrative law judge, may be cross-examined without regard to 
the scope of direct examination as to any matter which is material to 
the proceeding.



Sec.  4.838  Objections.

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



Sec.  4.839  Exceptions.

    Exceptions to rulings of the administrative law judge are 
unnecessary. It is sufficient that a party, at the time the ruling of 
the administrative law judge is sought, makes known the action which he 
desires the administrative law judge to take, or his objection to an 
action taken, and his ground therefor.



Sec.  4.840  Offer of proof.

    An offer of proof made in connection with an objection taken to any 
ruling of the administrative law judge excluding proffered oral 
testimony shall consist of a statement of the substance of the evidence 
which counsel contends would be adduced by such testimony. If the 
excluded evidence consists of evidence in written form or consists of 
reference to documents, a copy of such evidence shall be marked for 
identification and shall accompany the record as the offer of proof.



Sec.  4.841  Official transcript.

    An official reporter will be designated for all hearings. The 
official transcripts of testimony and argument taken, together with any 
exhibits, briefs, or memoranda of law filed therewith, shall be filed 
with the administrative law judge. Transcripts may be obtained by the 
parties and the public from the official reporter at rates not to exceed 
the applicable rates fixed by the contract with the reporter. Upon 
notice to all parties, the administrative law judge may authorize such 
corrections to the transcript as are necessary to accurately reflect the 
testimony.

                         Posthearing Procedures



Sec.  4.842  Proposed findings of fact and conclusions of law.

    Within 30 days after the close of the hearing each party may file, 
or the administrative law judge may request, proposed findings of fact 
and conclusions of law together with supporting briefs. Such proposals 
and briefs shall be served on all parties and amici. Reply briefs may be 
submitted within 15 days after receipt of the initial proposals and 
briefs. Reply briefs should be filed and served on all parties and 
amici.



Sec.  4.843  Record for decision.

    The administrative law judge will make his decision upon the basis 
of the record before him. The transcript of testimony, exhibits, and all 
papers, documents, and requests filed in the proceedings, shall 
constitute the record for decision and may be inspected and copied.



Sec.  4.844  Notification of right to file exceptions.

    The provisions ofSec. 17.9 of this title govern the making of 
decisions by administrative law judges, the Director, Office of Hearings 
and Appeals, and the Secretary. An administrative law judge shall, in 
any initial decision made by him, specifically inform the applicant or 
recipient of his right underSec. 17.9 of this title to file exceptions 
with the Director, Office of Hearings and Appeals. In instances in which 
the record is certified to the Director, Office of Hearings and Appeals, 
or he reviews the decision of an administrative law judge, he shall give 
the applicant or recipient a notice of certification or notice of review 
which specifically informs the applicant or recipient that, within a 
stated period, which shall not be less than 30 days after service of the 
notice, he may file briefs or other written statements of his 
contentions.

[[Page 111]]



Sec.  4.845  Final review by Secretary.

    Paragraph (f) ofSec. 17.9 of this title requires that any final 
decision of an administrative law judge or of the Director, Office of 
Hearings and Appeals, which provides for the suspension or termination 
of, or the refusal to grant or continue Federal financial assistance, or 
the imposition of any other sanction available under part 17 of this 
title or the Act, shall be transmitted to the Secretary. The applicant 
or recipient shall have 20 days following service upon him of such 
notice to submit to the Secretary exceptions to the decision and 
supporting briefs or memoranda suggesting remission or mitigation of the 
sanctions proposed. The Director shall have 10 days after the filing of 
the exceptions and briefs in which to reply.



Subpart J_Special Rules Applicable to Appeals Concerning Federal Oil and 
                    Gas Royalties and Related Matters

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

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



Sec.  4.901  What is the purpose of this subpart?

    This subpart tells you how the time limits of 30 U.S.C. 1724(h) 
apply to appeals subject to this subpart.



Sec.  4.902  What appeals are subject to this subpart?

    (a) This subpart applies to appeals under 30 CFR part 290 in effect 
prior to May 13, 1999 and contained in the 30 CFR, parts 200 to 699, 
edition revised as of July 1, 1998, 30 CFR part 290 subpart B, and 43 
CFR part 4, subpart E, of Minerals Management Service (MMS) or delegated 
State orders or portions of orders concerning payment (or computation 
and payment) of royalties and other payments due, and delivery or taking 
of royalty in kind, under Federal oil and gas leases.
    (b) This subpart does not apply to appeals of orders, or portions of 
orders, that
    (1) Involve Indian leases or Federal leases for minerals other than 
oil and gas; or
    (2) Relate to Federal oil and gas leases but do not involve a 
monetary or nonmonetary obligation.



Sec.  4.903  What definitions apply to this subpart?

    For the purposes of this subpart only:
    Assessment means any fee or charge levied or imposed by the 
Secretary or a delegated State other than:
    (1) The principal amount of any royalty, minimum royalty, rental, 
bonus, net profit share or proceed of sale;
    (2) Any interest; or
    (3) Any civil or criminal penalty.
    Delegated State means a State to which MMS has delegated authority 
to perform royalty management functions under an agreement or agreements 
under 30 CFR part 227.
    Designee means the person designated by a lessee under 30 CFR 218.52 
to make all or part of the royalty or other payments due on a lease on 
the lessee's behalf.
    IBLA means the Interior Board of Land Appeals.
    Lease means any agreement authorizing exploration for or extraction 
of any mineral, regardless of whether the instrument is expressly 
denominated as a ``lease,'' including any:
    (1) Contract;
    (2) Net profit share arrangement; or
    (3) Joint venture.
    Lessee means any person to whom the United States issues a Federal 
oil and gas lease, or any person to whom all or part of the lessee's 
interest or operating rights in a Federal oil and gas lease has been 
assigned.
    Monetary obligation means a lessee's, designee's or payor's duty to 
pay, or to compute and pay, any obligation in any order, or the 
Secretary's duty to pay, refund, offset, or credit the amount of any 
obligation that is the subject of a decision by the MMS or a delegated 
State denying a lessee's, designee's, or payor's written request for the 
payment, refund, offset, or credit.

[[Page 112]]

To determine the amount of any monetary obligation, for purposes of the 
default rule of decision inSec. 4.906 and 30 U.S.C. 1724(h):
    (1) If an order asserts a monetary obligation arising from one issue 
or type of underpayment that covers multiple leases or production 
months, the total obligation for all leases or production months 
involved constitutes a single monetary obligation;
    (2) If an order asserts monetary obligations arising from different 
issues or types of underpayments for one or more leases, the obligations 
arising from each separate issue, subject to paragraph (1) of this 
definition, constitute separate monetary obligations; and
    (3) If an order asserts a monetary obligation with a stated amount 
of additional royalties due, plus an order to perform a restructured 
accounting arising from the same issue or cause as the specifically 
stated underpayment, the stated amount of royalties due plus the 
estimated amount due under the restructured accounting, subject to 
paragraphs (1) and (2) of this definition, together constitutes a single 
monetary obligation.
    Nonmonetary obligation means any duty of a lessee or its designee to 
deliver oil or gas in kind, or any duty of the Secretary to take oil or 
gas royalty in kind.
    Notice of Order means the notice that MMS or a delegated State 
issues to a lessee that informs the lessee that MMS or the delegated 
State has issued an order to the lessee's designee.
    Obligation means:
    (1) A lessee's, designee's or payor's duty to:
    (i) Deliver oil or gas royalty in kind; or
    (ii) Make a lease-related payment, including royalty, minimum 
royalty, rental, bonus, net profit share, proceeds of sale, interest, 
penalty, civil penalty, or assessment; and
    (2) The Secretary's duty to:
    (i) Take oil or gas royalty in kind; or
    (ii) Make a lease-related payment, refund, offset, or credit, 
including royalty, minimum royalty, rental, bonus, net profit share, 
proceeds of sale, or interest.
    Order means any document or portion of a document issued by the MMS 
Director, MMS RMP, or a delegated State, that contains mandatory or 
ordering language regarding any monetary or nonmonetary obligation under 
any Federal oil and gas lease or leases.
    (1) Order includes but is not limited to the following:
    (i) An order to pay;
    (ii) A MMS or delegated State decision to deny a lessee's, 
designee's, or payor's written request that asserts an obligation due 
the lessee, designee or payor.
    (2) Order does not include:
    (i) A non-binding request, information, or guidance, such as:
    (A) Advice or guidance on how to report or pay, including valuation 
determination, unless it contains mandatory or ordering language; and
    (B) A policy determination;
    (ii) A subpoena;
    (iii) An order to pay that MMS issues to a refiner or other person 
involved in disposition of royalty taken in kind; or
    (iv) a Notice of Noncompliance or a Notice of Civil Penalty issued 
under 30 U.S.C. 1719 and 30 CFR part 241, or a decision of an 
administrative law judge or of the IBLA following a hearing on the 
record on a Notice of Noncompliance or Notice of Civil Penalty.
    Party means MMS, any person who files a Notice of Appeal under 30 
CFR part 290 in effect prior to May 13, 1999 and contained in the 30 
CFR, parts 200 to 699, edition revised as of July 1, 1998, 30 CFR part 
290 subpart B, or 43 CFR part 4, subpart E, and any person who files a 
Notice of Joinder in an appeal under 30 CFR part 290, subpart B.
    Payor means any person responsible for reporting and paying 
royalties for Federal oil and gas leases for production before September 
1, 1996.



Sec.  4.904  When does my appeal commence and end?

    For purposes of the period in which the Department must issue a 
final decision in your appeal underSec. 4.906:
    (a) If you filed your Notice of Appeal and initial Statement of 
Reasons with MMS before August 13, 1996, your appeal commenced on August 
13, 1996;
    (b) If you filed your Notice of Appeal or initial Statement of 
Reasons with

[[Page 113]]

MMS after August 13, 1996, under 30 CFR part 290, in effect prior to May 
13, 1999 and contained in the 30 CFR, parts 200 to 699, edition, revised 
as of July 1, 1998, your appeal commenced on the date MMS received your 
Notice of Appeal, or if later, the date MMS received your initial 
Statement of Reasons;
    (c) If you filed your Notice of Appeal under 30 CFR part 290, 
subpart B, your appeal commenced on the date MMS received your Notice of 
Appeal.
    (d) Your appeal ends on the same day of the month of the 33rd 
calendar month after your appeal commenced under paragraph (a), (b), or 
(c) of this section, plus the number of days of any applicable time 
extensions underSec. 4.909 or 30 CFR 290.109. If the 33rd calendar 
month after your appeal commenced does not have the same day of the 
month as the day of the month your appeal commenced, then the initial 
33-month period ends on the last day of the 33rd calendar month.



Sec.  4.905  What if a due date falls on a day the Department
or relevant office is not open for business?

    If a due date under this subpart falls on a day the relevant office 
is not open for business (such as a weekend, Federal holiday, or 
shutdown), the due date is the next day the relevant office is open for 
business.



Sec.  4.906  What if the Department does not issue a decision by
the date my appeal ends?

    (a) If the IBLA or an Assistant Secretary (or the Secretary or the 
Director of OHA) does not issue a final decision by the date an appeal 
ends underSec. 4.904(d), then under 30 U.S.C. 1724(h)(2), the 
Secretary will be deemed to have decided the appeal:
    (1) In favor of the appellant for any nonmonetary obligation at 
issue in the appeal, or any monetary obligation at issue in the appeal 
with a principal amount of less than $10,000;
    (2) In favor of the Secretary for any monetary obligation at issue 
in the appeal with a principal amount of $10,000 or more.
    (b)(1) If your appeal ends before the MMS Director issues a decision 
in your appeal, then the provisions of paragraph (a) of this section 
apply to the monetary and nonmonetary obligations in the order that you 
contested in your appeal to the Director.
    (2) If the MMS Director issues a decision in your appeal before your 
appeal ends, and if you appealed the Director's decision to IBLA under 
43 CFR part 4, subpart E, then the provisions of paragraph (a) of this 
section apply to the monetary and nonmonetary obligations in the 
Director's decision that you contested in your appeal to IBLA.
    (3) If the MMS Director issues a decision in your appeal, and if you 
did not appeal the Director's decision to IBLA within the time required 
under 30 CFR part 290 in effect prior to May 13, 1999 and contained in 
the 30 CFR, parts 200 to 699, edition revised as of July 1, 1998 (for 
appeals filed before May 13, 1999 or 30 CFR part 290 subpart B (for 
appeals filed on or after May 13, 1999 and 43 CFR part 4, subpart E, 
then the MMS Director's decision is the final decision of the Department 
and 30 U.S.C. 1724(h)(2) has no application.
    (c) If the IBLA issues a decision before the date your appeal ends, 
that decision is the final decision of the Department and 30 U.S.C. 
1724(h)(2) has no application. A petition for reconsideration does not 
extend or renew the 33-month period.
    (d) If any part of the principal amount of any monetary obligation 
is not specifically stated in an order or MMS Director's decision and 
must be computed to comply with the order or MMS Director's decision, 
then the principal amount referred to in paragraph (a) of this section 
means the principal amount MMS estimates you would be required to pay as 
a result of the computation required under the order, plus any amount 
due stated in the order.



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

    (a) An IBLA decision modifying an order or an MMS Director's 
decision and requiring MMS or a delegated State to recalculate royalties 
or other payments is a final decision in the administrative proceeding 
for purposes of 30 U.S.C. 1724(h).

[[Page 114]]

    (b) MMS or the delegated State must provide to IBLA and all parties 
any recalculation IBLA requires under paragraph (a) of this section 
within 60 days of receiving IBLA's decision.
    (c) There is no further appeal within the Department from MMS's or 
the State's recalculation under paragraph (b) of this section.
    (d) The IBLA decision issued under paragraph (a) of this section 
together with recalculation under paragraph (b) of this section are the 
final action of the Department that is judicially reviewable under 5 
U.S.C. 704.



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

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



Sec.  4.909  How do I request an extension of time?

    (a) If you are a party to an appeal subject to this subpart before 
the IBLA, and you need additional time after an appeal commences for any 
purpose, you may obtain an extension of time under this section.
    (b) You must submit a written request for an extension of time 
before the required filing date.
    (1) You must submit your request to the IBLA at Interior Board of 
Land Appeals, 801 North Quincy Street, Arlington, Virginia 22203, using 
the U.S. Postal Service, a private delivery or courier service, hand 
delivery or telefax to (703) 235-8349;
    (2) If you file a document by telefax, you must send an additional 
copy of your document to the IBLA using the U.S. Postal Service, a 
private delivery or courier service or hand delivery so that it is 
received within 5 business days of your telefax transmission.
    (c) If you are an appellant, in addition to meeting the requirements 
of paragraph (b) of this section, you must agree in writing in your 
request to extend the period in which the Department must issue a final 
decision in your appeal underSec. 4.906 by the amount of time for 
which you are requesting an extension.
    (d) If you are any other party, the IBLA may require you to submit a 
written agreement signed by the appellant to extend the period in which 
the Department must issue a final decision in the appeal underSec. 
4.906 by the amount of time for which you are requesting an extension.
    (e) The IBLA has the discretion to decline any request for an 
extension of time.
    (f) You must serve your request on all parties to the appeal.

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

Subpart K [Reserved]



 Subpart L_Special Rules Applicable to Surface Coal Mining Hearings and 
                                 Appeals

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

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

                           General Provisions



Sec.  4.1100  Definitions.

    As used in the regulations in this subpart, the term--
    (a) Act means the Surface Mining Control and Reclamation Act of 
1977, 91 Stat. 445 et seq., 30 U.S.C. 1201 et seq.
    (b) Administrative law judge means an administrative law judge in 
the Hearings Division of the Office of Hearings and Appeals appointed 
under 5 U.S.C. 3105 (1970).
    (c) Board means the Board of Land Appeals in the Office of Hearings 
and Appeals.
    (d) OHA means the Office of Hearings and Appeals, Department of the 
Interior.

[[Page 115]]

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

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



Sec.  4.1101  Jurisdiction of the Board.

    (a) The jurisdiction of the Board, as set forth inSec. 4.1(b)(3), 
and subject to Sec.Sec. 4.21(d) and 4.5, includes the authority to 
exercise the final decisionmaking power of the Secretary under the act 
pertaining to--
    (1) Applications for review of decisions by OSM regarding 
determinations concerning permits for surface coal mining operations 
pursuant to section 514 of the act;
    (2) Petitions for review of proposed assessments of civil penalties 
issued by OSM pursuant to section 518 of the act;
    (3) Applications for review of notices of violation and orders of 
cessation or modifications, vacations, or terminations thereof, issued 
pursuant to section 521(a)(2) or section 521(a)(3) of the act;
    (4) Proceedings for suspension or revocation of permits pursuant to 
section 521(a)(4) of the act;
    (5) Applications for review of alleged discriminatory acts filed 
pursuant to section 703 of the act;
    (6) Applications for temporary relief;
    (7) Petitions for award of costs and expenses under section 525(e) 
of the act;
    (8) Preliminary findings concerning a demonstrated pattern of 
willful violations under section 510(c) of the act;
    (9) Suspension or rescission of improvidently-issued permits;
    (10) Challenges to ownership or control listings or findings;
    (11) Determinations under 30 CFR part 761;
    (12) Appeals from orders or decisions of administrative law judges; 
and
    (13) All other appeals and review procedures under the act which are 
permitted by these regulations.
    (b) In performing its functions under paragraph (a) of this section, 
the Board is authorized to--
    (1) Order hearings; and
    (2) Issue orders to secure the just and prompt determination of all 
proceedings.

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



Sec.  4.1102  Construction.

    These rules shall be construed to achieve the just, timely, and 
inexpensive determination of all proceedings consistent with adequate 
consideration of the issues involved.



Sec.  4.1103  Eligibility to practice.

    (a) An administrative law judge or the Board may determine the 
eligibility of persons to practice before OHA in any proceeding under 
the act pursuant to 43 CFR part 1.
    (b) If an administrative law judge or the Board determines that any 
person is not qualified to practice before OHA, the administrative law 
judge or the Board shall disqualify the person and report the 
disqualification to the Director of OHA.
    (c) Upon receipt of a report under paragraph (b) of this section, 
the Director of OHA may request the Solicitor to initiate a disciplinary 
proceeding under 43 CFR 1.6.



Sec.  4.1104  General rules relating to procedure and practice.

    Proceedings in OHA under the act are subject to the general rules 
relating to procedures and practice in subpart B of this part.



Sec.  4.1105  Parties.

    (a) All persons indicated in the act as parties to administrative 
review proceedings under the act shall be considered statutory parties. 
Such statutory parties include--
    (1) In a civil penalty proceeding underSec. 4.1150, OSM, as 
represented by the Office of the Solicitor, Department of the Interior, 
and any person against whom a proposed assessment is made who files a 
petition;
    (2) In a review proceeding under Sec.Sec. 4.1160 through 4.1171, 
4.1180 through 4.1187, 4.1300 through 4.1309, 4.1350 through 4.1356, 
4.1360 through 4.1369, 4.1370 through 4.1377, 4.1380 through 4.1387 or 
4.1390 through 4.1394 of this part, OSM, as represented by the Office

[[Page 116]]

of the Solicitor, Department of the Interior, and--
    (i) If an applicant, operator, or permittee files an application or 
request for review, the applicant, operator, or permittee; and
    (ii) If any other person having an interest which is or may be 
adversely affected files an application or request for review, the 
applicant, operator, or permittee and the person filing such application 
or request;
    (3) In a proceeding to suspend or revoke a permit underSec. 4.1190 
et seq. OSM, as represented by the Office of the Solicitor, Department 
of the Interior, and the permittee who is ordered to show cause why the 
permit should not be suspended or revoked; and
    (4) In a discriminatory discharge proceeding underSec. 4.1200 et 
seq. OSM, as represented by the Office of the Solicitor, Department of 
the Interior, any employee or any authorized representative of employees 
who files an application for review, and the alleged discriminating 
party, except where the applicant files a request for the scheduling of 
a hearing underSec. 4.1201(c) only such applicant and the alleged 
discriminating party.
    (5) In an appeal to the Board in accordance with 43 CFR 4.1280 
through 4.1286 from a determination of the Director of OSM or his or her 
designee under 30 CFR 842.15(d) or a determination of an authorized 
representative under 30 CFR 843.12(i), the permittee of the operation 
that is the subject of the determination and any person whose interests 
may be adversely affected by the outcome on appeal and who participated 
before OSM. A person who wishes his or her identity kept confidential 
under 30 CFR 842.12(b) is responsible for maintaining that 
confidentiality when serving documents in accordance withSec. 4.1109.
    (b) Any other person claiming a right to participate as a party may 
seek leave to intervene in a proceeding by filing a petition to do so 
pursuant toSec. 4.1110.
    (c) If any person has a right to participate as a full party in a 
proceeding under the act and fails to exercise that right by 
participating in each stage of the proceeding, that person may become a 
participant with the rights of a party by order of an administrative law 
judge or the Board.

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



Sec.  4.1106  Hearing sites.

    Unless the act requires otherwise, hearings shall be held in a 
location established by the administrative law judge; however, the 
administrative law judge shall give due regard to the convenience of the 
parties or their representatives and witnesses.



Sec.  4.1107  Filing of documents.

    (a) Any initial pleadings in a proceeding to be conducted or being 
conducted by an administrative law judge under these rules shall be 
filed, by hand or by mail, with the Hearings Division, Office of 
Hearings and Appeals, Department of the Interior, 801 North Quincy 
Street, Arlington, Va. 22203.
    (b) Where a proceeding has been assigned to an administrative law 
judge, the parties will be notified by the Chief Administrative Law 
Judge of the name and address of the administrative law judge assigned 
to the case and thereafter all further documents shall be filed with the 
Administrative Law Judge, Office of Hearings and Appeals, at the address 
designated in the notice.
    (c) Any notice of appeal, petition for review or other documents in 
a proceeding to be conducted or being conducted by the Board shall be 
filed, by hand or by mail, with the Board of Land Appeals, Office of 
Hearings and Appeals, 801 North Quincy Street, Arlington, Va. 22203.
    (d) Any person filing initial pleadings with the Hearings Division 
or a notice of appeal with the Board shall furnish an original and one 
copy. Any person filing other documents with OHA shall furnish only an 
original.
    (e) Any person who has initiated a proceeding under these rules 
before the Hearings Division or filed a notice of appeal with the Board 
shall file proof of service with the same in the form of a return 
receipt where service is by registered or certified mail, or an 
acknowledgement by the party served or a verified return where service 
is made personally. A certificate of service

[[Page 117]]

shall accompany all other documents filed by a party in any proceeding.
    (f) The effective filing date for documents initiating proceedings 
before the Hearings Division, OHA, Arlington, VA, shall be the date of 
receipt in that office, if filed by hand, or the date such document is 
postmarked, if filed by mail.
    (g) The effective filing date for a notice of appeal or a petition 
for discretionary review filed with the Board shall be the date of 
mailing or the date of personal delivery, except the effective filing 
date for a notice of appeal from a decision in an expedited review of a 
cessation order proceeding or from a decision in a suspension or 
revocation proceeding shall be the date of receipt of the document by 
the Board. The burden of establishing the date of mailing shall be on 
the person filing the document.
    (h) The effective filing date for all other documents filed with an 
administrative law judge or with the Board shall be the date of mailing 
or personal delivery. The burden of establishing the date of mailing 
shall be on the person filing the document.

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



Sec.  4.1108  Form of documents.

    (a) Any document filed with OHA in any proceeding brought under the 
act shall be captioned with--
    (1) The names of the parties;
    (2) The name of the mine to which the document relates; and
    (3) If review is being sought under section 525 of the act, 
identification by number of any notice or order sought to be reviewed.
    (b) After a docket number has been assigned to the proceeding by 
OHA, the caption shall contain such docket number.
    (c) The caption may include other information appropriate for 
identification of the proceeding, including the permit number or OSM 
identification number.
    (d) Each document shall contain a title that identifies the contents 
of the document following the caption.
    (e) The original of any document filed with OHA shall be signed by 
the person submitting the document or by that person's attorney.
    (f) The address and telephone number of the person filing the 
document or that person's attorney shall appear beneath the signature.
    (g) Documents filed under this subpart must conform to the 
requirements ofSec. 4.401(d).

[43 FR 34386, Aug. 3, 1978, as amended at 75 FR 64669, Oct. 20, 2010]



Sec.  4.1109  Service.

    (a)(1) Any party initiating a proceeding in OHA under the Act shall, 
on the date of filing, simultaneously serve copies of the initiating 
documents on the officer in the Office of the Solicitor, U.S. Department 
of the Interior, representing OSMRE in the state in which the mining 
operation at issue is located, and on any other statutory parties 
specified underSec. 4.1105 of this part.
    (2) The jurisdictions, addresses, and telephone numbers of the 
applicable officers of the Office of the Solicitor to be served under 
paragraph (a)(1) of this section are:
    (i) For mining operations in Alabama, Arkansas, Georgia, Illinois, 
Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, North 
Carolina, Oklahoma, Tennessee, Texas, and Virginia: Field Solicitor, 
U.S. Department of the Interior, 800 S. Gay Street, Suite 800, 
Knoxville, Tennessee 37929; Telephone: (865) 545-4294; FAX: (865) 545-
4314.
    (ii) For mining operations in Maryland, Massachusetts, Michigan, 
Ohio, Pennsylvania, Rhode Island, and West Virginia: Field Solicitor, 
U.S. Department of the Interior, Three Parkway Center, Suite 385, 
Pittsburgh, Pennsylvania 15220; Telephone: (412) 937-4000; FAX: (412) 
937-4003.
    (iii) For mining operations in Alaska, Colorado, Idaho, Montana, 
North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming, 
including mining operations located on Indian lands within those states: 
Regional Solicitor, Rocky Mountain Region, U.S. Department of the 
Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215;

[[Page 118]]

Telephone: (303) 231-5353; FAX: (303) 231-5363 or 231-5360.
    (iv) For mining operations in Arizona, California, and New Mexico, 
including mining operations located on Indian lands within those states 
except for the challenge of permitting decisions affecting mining 
operations located on Indian lands in those states: Regional Solicitor, 
Southwest Region, U.S. Department of the Interior, 505 Marquette Avenue, 
NW., Suite 1800, Albuquerque, NM 87102; Telephone: (505) 248-5600; FAX: 
(505) 248-5623.
    (v) For the challenge of permitting decisions affecting mining 
operations located on Indian lands within Arizona, California, and New 
Mexico: Regional Solicitor, Rocky Mountain Region, U.S. Department of 
the Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215; 
Telephone: (303) 231-5353; FAX: (303) 231-5363 or 231-5360.
    (3) Any party or other person who subsequently files any other 
document with OHA in the proceeding shall simultaneously serve copies of 
that document on all other parties and persons participating in the 
proceeding.
    (b) Copies of documents by which any proceeding is initiated shall 
be served on all statutory parties personally or by registered or 
certified mail, return receipt requested. All subsequent documents shall 
be served personally or by first class mail.
    (c) Service of copies of all documents is complete at the time of 
personal service or, if service is made by mail, upon receipt.
    (d) Whenever an attorney has entered an appearance for a party in a 
proceeding before an administrative law judge or the Board, service 
thereafter shall be made upon the attorney.

[43 FR 34386, Aug. 3, 1978, as amended at 45 FR 50753, July 31, 1980; 52 
FR 39526, Oct. 22, 1987; 56 FR 2142, Jan. 22, 1991; 56 FR 5061, Feb. 7, 
1991; 59 FR 1488, Jan. 11, 1994; 59 FR 42774, Aug. 19, 1994; 60 FR 
58243, Nov. 27, 1995; 61 FR 40348, Aug. 2, 1996; 67 FR 61510, Oct. 1, 
2002; 75 FR 64669, Oct. 20, 2010]



Sec.  4.1110  Intervention.

    (a) Any person, including a State, or OSM may petition for leave to 
intervene at any stage of a proceeding in OHA under the act.
    (b) A petitioner for leave to intervene shall incorporate in the 
petition a statement setting forth the interest of the petitioner and, 
where required, a showing of why his interest is or may be adversely 
affected.
    (c) The administrative law judge or the Board shall grant 
intervention where the petitioner--
    (1) Had a statutory right to initiate the proceeding in which he 
wishes to intervene; or
    (2) Has an interest which is or may be adversely affected by the 
outcome of the proceeding.
    (d) If neither paragraph (c)(1) nor (c)(2) of this section apply, 
the administrative law judge or the Board shall consider the following 
in determining whether intervention is appropriate--
    (1) The nature of the issues;
    (2) The adequacy of representation of petitioner's interest which is 
provided by the existing parties to the proceeding;
    (3) The ability of the petitioner to present relevant evidence and 
argument; and
    (4) The effect of intervention on the agency's implementation of its 
statutory mandate.
    (e) Any person, including a State, or OSM granted leave to intervene 
in a proceeding may participate in such proceeding as a full party or, 
if desired, in a capacity less than that of a full party. If an 
intervenor wishes to participate in a limited capacity, the extent and 
the terms of the participation shall be in the discretion of the 
administrative law judge or the Board.



Sec.  4.1111  Voluntary dismissal.

    Any party who initiated a proceeding before OHA may seek to withdraw 
by moving to dismiss at any stage of a proceeding and the administrative 
law judge or the Board may grant such a motion.



Sec.  4.1112  Motions.

    (a) Except for oral motions made in proceedings on the record, or 
where the administrative law judge otherwise directs, each motion 
shall--
    (1) Be in writing; and
    (2) Contain a concise statement of supporting grounds.

[[Page 119]]

    (b) Unless the administrative law judge or the Board orders 
otherwise, any party to a proceeding in which a motion is filed under 
paragraph (a) of this section shall have 15 days from service of the 
motion to file a statement in response.
    (c) Failure to make a timely motion or to file a statement in 
response may be construed as a waiver of objection.
    (d) An administrative law judge or the Board shall rule on all 
motions as expeditiously as possible.



Sec.  4.1113  Consolidation of proceedings.

    When proceedings involving a common question of law or fact are 
pending before an administrative law judge or the Board, such 
proceedings are subject to consolidation pursuant to a motion by a party 
or at the initiative of an administrative law judge or the Board.



Sec.  4.1114  Advancement of proceedings.

    (a) Except in expedited review proceedings underSec. 4.1180, or in 
temporary relief proceedings underSec. 4.1266, at any time after 
commencement of a proceeding, any party may move to advance the 
scheduling of a proceeding.
    (b) Except as otherwise directed by the administrative law judge or 
the Board, any party filing a motion under this section shall--
    (1) Make the motion in writing;
    (2) Describe the exigent circumstances justifying advancement;
    (3) Describe the irreparable harm that would result if the motion is 
not granted; and
    (4) Incorporate in the motion affidavits to support any 
representations of fact.
    (c) Service of a motion under this section shall be accomplished by 
personal delivery or by telephonic or telegraphic communication followed 
by mail. Service is complete upon mailing.
    (d) Unless otherwise directed by the administrative law judge or the 
Board, all parties to the proceeding in which the motion is filed shall 
have 10 days from the date of service of the motion to file a statement 
in response to the motion.
    (e) Following the timely receipt by the administrative law judge of 
statements in response to the motion, the administrative law judge may 
schedule a hearing regarding the motion. If the motion is granted, the 
administrative law judge may advance pleading schedules, prehearing 
conferences, and the hearing, as deemed appropriate: Provided, A hearing 
on the merits shall not be scheduled with less than 5 working days 
notice to the parties, unless all parties consent to an earlier hearing.
    (f) If the motion is granted, the Board may, if it deems such action 
to be appropriate, advance the appeal on its calendar and order such 
other advancement as may be appropriate, including an abbreviated 
schedule for briefing or oral argument.



Sec.  4.1115  Waiver of right to hearing.

    Any person entitled to a hearing before an administrative law judge 
under the act may waive such right in writing. Where parties are 
directed by any rule in these regulations to file a responsive pleading 
on or before a specified time, any party who fails to file such 
responsive pleading by the time specified, may be deemed to have waived 
his right to a hearing. Unless all parties to a proceeding who are 
entitled to a hearing waive, or are deemed to have waived such right, a 
hearing will be held.



Sec.  4.1116  Status of notices of violation and orders of cessation 
pending review by the Office of Hearings and Appeals.

    Except where temporary relief is granted pursuant to section 525(c) 
or section 526(c) of the act, notices of violation and orders of 
cessation issued under the act shall remain in effect during the 
pendency of review before an administrative law judge or the Board.



Sec.  4.1117  Reconsideration.

    A party may file a motion for reconsideration of any decision of the 
Board under this subpart within 60 days after the date of the decision. 
The provisions ofSec. 4.403 apply to a motion filed under this 
paragraph.

[75 FR 64669, Oct. 20, 2010]

[[Page 120]]

                          Evidentiary Hearings



Sec.  4.1120  Presiding officers.

    An administrative law judge in the Office of Hearings and Appeals 
shall preside over any hearing required by the act to be conducted 
pursuant to 5 U.S.C. 554 (1970).



Sec.  4.1121  Powers of administrative law judges.

    (a) Under the regulations of this part, an administrative law judge 
may--
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas;
    (3) Issue appropriate orders relating to discovery;
    (4) Rule on procedural requests or similar matters;
    (5) Hold conferences for settlement or simplification of the issues;
    (6) Regulate the course of the hearing;
    (7) Rule on offers of proof and receive relevant evidence;
    (8) Take other actions authorized by this part, by 5 U.S.C. 556 
(1970), or by the act; and
    (9) Make or recommend decisions in accordance with 5 U.S.C. 557 
(1970).
    (b) An administrative law judge may order a prehearing conference--
    (1) To simplify and clarify issues;
    (2) To receive stipulations and admissions;
    (3) To explore the possibility of agreement disposing of any or all 
of the issues in dispute; and
    (4) For such other purposes as may be appropriate.
    (c) Except as otherwise provided in these regulations, the 
jurisdiction of an administrative law judge shall terminate upon--
    (1) The filing of a notice of appeal from an initial decision or 
other order dispositive of the proceeding;
    (2) The issuance of an order of the Board granting a petition for 
review; or
    (3) The expiration of the time period within which a petition for 
review or an appeal to the Board may be filed.



Sec.  4.1122  Conduct of administrative law judges.

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



Sec.  4.1123  Notice of hearing.

    (a) An administrative law judge shall give notice to the parties of 
the time, place and nature of any hearing.
    (b) Except for expedited review proceedings and temporary relief 
proceedings where time is of the essence, notice given under this 
section shall be in writing.
    (c) In an expedited proceeding when there is only opportunity to 
give oral notice, the administrative law judge shall enter that fact 
contemporaneously on the record by a signed and dated memorandum 
describing the notice given.



Sec.  4.1124  Certification of interlocutory ruling.

    Upon motion or upon the initiative of an administrative law judge, 
the judge may certify to the Board a ruling which does not finally 
dispose of the case if the ruling presents a controlling question of law 
and an immediate appeal would materially advance ultimate disposition by 
the judge.



Sec.  4.1125  Summary decision.

    (a) At any time after a proceeding has begun, a party may move for 
summary decision of the whole or part of a case.
    (b) The moving party under this section shall verify any allegations 
of fact with supporting affidavits, unless the moving party is relying 
upon depositions, answers to interrogatories, admissions, or documents 
produced upon request to verify such allegations.
    (c) An administrative law judge may grant a motion under this 
section if the record, including the pleadings, depositions, answers to 
interrogatories, admissions, and affidavits, shows that--
    (1) There is no disputed issue as to any material fact; and
    (2) The moving party is entitled to summary decision as a matter of 
law.
    (d) If a motion for summary decision is not granted for the entire 
case or for all the relief requested and an evidentiary hearing is 
necessary, the administrative law judge shall, if practicable, and upon 
examination of all relevant documents and evidence before him, ascertain 
what material facts

[[Page 121]]

are actually and in good faith controverted. He shall thereupon, issue 
an order specifying the facts that appear without substantial 
controversy and direct such further proceedings as deemed appropriate.



Sec.  4.1126  Proposed findings of fact and conclusions of law.

    The administrative law judge shall allow the parties to a proceeding 
an opportunity to submit proposed findings of fact and conclusions of 
law together with a supporting brief at a time designated by the 
administrative law judge.



Sec.  4.1127  Initial orders and decisions.

    An initial order or decision disposing of a case shall incorporate--
    (a) Findings of fact and conclusions of law and the basis and 
reasons therefore on all the material issues of fact, law, and 
discretion presented on the record; and
    (b) An order granting or denying relief.



Sec.  4.1128  Effect of initial order or decision.

    An initial order or decision shall become final if that order or 
decision is not timely appealed to the Board underSec. 4.1270 orSec. 
4.1271.



Sec.  4.1129  Certification of record.

    Except in expedited review proceedings underSec. 4.1180, within 5 
days after an initial decision has been rendered, the administrative law 
judge shall certify the official record of the proceedings, including 
all exhibits, and transmit the official record for filing in the 
Hearings Division, Office of Hearings and Appeals, Arlington, Va.

                                Discovery



Sec.  4.1130  Discovery methods.

    Parties may obtain discovery by one or more of the following 
methods--
    (a) Depositions upon oral examination or upon written 
interrogatories;
    (b) Written interrogatories;
    (c) Production of documents or things or permission to enter upon 
land or other property, for inspection and other purposes; and
    (d) Requests for admission.



Sec.  4.1131  Time for discovery.

    Following the initiation of a proceeding, the parties may initiate 
discovery at any time as long as it does not interfere with the conduct 
of the hearing.



Sec.  4.1132  Scope of discovery.

    (a) Unless otherwise limited by order of the administrative law 
judge in accordance with these rules, the parties may obtain discovery 
regarding any matter, not privileged, which is relevant to the subject 
matter involved in the proceeding, including the existence, description, 
nature, custody, condition, and location of any books, documents, or 
other tangible things and the identity and location of persons having 
knowledge of any discoverable matter.
    (b) It is not ground for objection that information sought will not 
be admissible at the hearing if the information sought appears 
reasonably calculated to lead to the discovery of admissible evidence.
    (c) A party may obtain discovery of documents and tangible things 
otherwise discoverable under paragraph (a) of this section and prepared 
in anticipation of or for the hearing by or for another party's 
representative (including his attorney, consultant, surety, indemnitor, 
insurer, or agent) only upon a showing that the party seeking discovery 
has substantial need of the materials in the preparation of his case and 
that he is unable without undue hardship to obtain the substantial 
equivalent of the materials by other means. In ordering discovery of 
such materials when the required showing has been made, the 
administrative law judge shall protect against disclosure of the mental 
impressions, conclusions, opinions, or legal theories of an attorney or 
other representative of a party concerning the proceeding.
    (d) Upon motion by a party or the person from whom discovery is 
sought, and for good cause shown, the administrative law judge may make 
any order which justice requires to protect a party or person from 
annoyance, embarrassment, oppression, or undue burden or expense, 
including one or more of the following--
    (1) The discovery not be had;

[[Page 122]]

    (2) The discovery may be had only on specified terms and conditions, 
including a designation of the time or place;
    (3) The discovery may be had only by a method of discovery other 
than that selected by the party seeking discovery;
    (4) Certain matters not relevant may not be inquired into, or that 
the scope of discovery be limited to certain matters;
    (5) Discovery be conducted with no one present except persons 
designated by the administrative law judge; or
    (6) A trade secret or other confidential research, development or 
commercial information may not be disclosed or be disclosed only in a 
designated way.



Sec.  4.1133  Sequence and timing of discovery.

    Unless the administrative law judge upon motion, for the convenience 
of parties and witnesses and in the interests of justice, orders 
otherwise, methods of discovery may be used in any sequence and the fact 
that a party is conducting discovery, whether by deposition or 
otherwise, shall not operate to delay any other party's discovery.



Sec.  4.1134  Supplementation of responses.

    A party who has responded to a request for discovery with a response 
that was complete when made is under no duty to supplement his response 
to include information thereafter acquired, except as follows--
    (a) A party is under a duty to supplement timely his response with 
respect to any question directly addressed to--
    (1) The identity and location of persons having knowledge of 
discoverable matters; and
    (2) The identity of each person expected to be called as an expert 
witness at the hearing, the subject matter on which he is expected to 
testify and the substance of his testimony.
    (b) A party is under a duty to amend timely a prior response if he 
later obtains information upon the basis of which--
    (1) He knows the response was incorrect when made; or
    (2) He knows that the response though correct when made is no longer 
true and the circumstances are such that a failure to amend the response 
is in substance a knowing concealment.
    (c) A duty to supplement responses may be imposed by order of the 
administrative law judge or agreement of the parties.



Sec.  4.1135  Motion to compel discovery.

    (a) If a deponent fails to answer a question propounded, or a party 
upon whom a request is made pursuant toSec. 4.1140, or a party upon 
whom answers to interrogatories are served fails to adequately respond 
or objects to the request, or any part thereof, or fails to permit 
inspection as requested, the discovering party may move the 
administrative law judge for an order compelling a response or 
inspection in accordance with the request.
    (b) The motion shall set forth--
    (1) The nature of the questions or request;
    (2) The response or objection of the party upon whom the request was 
served; and
    (3) Arguments in support of the motion.
    (c) For purposes of this section, an evasive answer or incomplete 
answer or response shall be treated as a failure to answer or respond.
    (d) In ruling on a motion made pursuant to this section, the 
administrative law judge may make such a protective order as he is 
authorized to make on a motion made pursuant toSec. 4.1132(d).



Sec.  4.1136  Failure to comply with orders compelling discovery.

    If a party or an officer, director, or other agent of a party fails 
to obey an order to provide or permit discovery, the administrative law 
judge before whom the action is pending may make such orders in regard 
to the failure as are just, including but not limited to the following--
    (a) An order that the matters sought to be discovered or any other 
designated facts shall be taken to be established for the purposes of 
the action in accordance with the claim of the party obtaining the 
order;
    (b) An order refusing to allow the disobedient party to support or 
oppose designated claims or defenses, or prohibiting him from 
introducing designated matters into evidence; or

[[Page 123]]

    (c) An order striking out pleadings or parts thereof, or staying 
further proceedings until the order is obeyed, or dismissing the action 
or proceeding or any part thereof, or rendering a judgment by default 
against the disobedient party.



Sec.  4.1137  Depositions upon oral examination or upon written
questions.

    (a) Any party desiring to take the testimony of any other party or 
other person by deposition upon oral examination or written questions 
shall, without leave of the administrative law judge, give reasonable 
notice in writing to every other party, to the person to be examined and 
to the administrative law judge of--
    (1) The proposed time and place of taking the deposition;
    (2) The name and address of each person to be examined, if known, or 
if the name is not known, a general description sufficient to identify 
him or the particular group or class to which he belongs;
    (3) The matter upon which each person will be examined; and
    (4) The name or descriptive title and address of the officer before 
whom the deposition is to be taken.
    (b) A deposition may be taken before any officer authorized to 
administer oaths by the laws of the United States or of the place where 
the examination is held.
    (c) The actual taking of the deposition shall proceed as follows--
    (1) The deposition shall be on the record;
    (2) The officer before whom the deposition is to be taken shall put 
the witness on oath or affirmation;
    (3) Examination and cross-examination shall proceed as at a hearing;
    (4) All objections made at the time of the examination shall be 
noted by the officer upon the deposition;
    (5) The officer shall not rule on objections to the evidence, but 
evidence objected to shall be taken subject to the objections.
    (d) When the testimony is fully transcribed, the deposition shall be 
submitted to the deponent for examination and signature, unless 
examination and signature is waived by the deponent. The officer shall 
certify the deposition or, if the deposition is not signed by the 
deponent, shall certify the reasons for the failure to sign.
    (e) Where the deposition is to be taken upon written questions, the 
party taking the deposition shall serve a copy of the questions, showing 
each question separately and consecutively numbered, on every other 
party with a notice stating the name and address of the person who is to 
answer them, and the name, description, title, and address of the 
officer before whom they are to be taken. Within 30 days after service, 
any other party may serve cross-questions. The questions, cross-
questions, and answers shall be recorded and signed, and the deposition 
certified, as in the case of a deposition on oral examination.
    (f) A deposition will not become a part of the record in the hearing 
unless received in evidence. If only part of a deposition is offered in 
evidence by a party, any other party may introduce any other parts.
    (g) A deponent whose deposition is taken and the officer taking a 
deposition shall be entitled to the same fees as are paid for like 
services in the district courts of the United States, to be paid by the 
party at whose instance the deposition is taken.
    (h) The deponent may be accompanied, represented, and advised by 
legal counsel.



Sec.  4.1138  Use of depositions.

    At the hearing, any part or all of a deposition, so far as 
admissible, may be used against any party who was present or represented 
at the taking of the deposition, or who had reasonable notice thereof, 
in accordance with any of the following provisions--
    (a) Any deposition may be used by any party for the purpose of 
contradicting or impeaching the testimony of a deponent as a witness;
    (b) The deposition of a party or of anyone who at the time of taking 
the deposition was an officer, director, or managing agent or a person 
designated to testify on behalf of a public or private corporation, 
partnership, or association or governmental agency which is a party may 
be used by an adverse party for any purpose; or

[[Page 124]]

    (c) The deposition of a witness, whether or not a party, may be used 
by a party for any purpose if the administrative law judge finds that--
    (1) The witness is dead;
    (2) The witness is at a distance greater than 100 miles from the 
place of hearing, or is outside the United States, unless it appears 
that the absence of the witness was procured by the party offering the 
deposition;
    (3) The witness is unable to attend or testify because of age, 
illness, infirmity, or imprisonment;
    (4) The party offering the deposition has been unable to procure the 
attendance of the witness by subpoena; or
    (5) Such exceptional circumstances exist as to make it desirable, in 
the interest of justice and with due regard to the importance of 
presenting the testimony of witnesses orally at the hearing, to allow 
the deposition to be used.



Sec.  4.1139  Written interrogatories to parties.

    (a) Any party may serve upon any other party written interrogatories 
to be answered in writing by the party served, or if the party served is 
a public or private corporation or a partnership or association or 
governmental agency, by any officer or agent, who shall furnish such 
information as is available to the party. A copy of the interrogatories, 
answers, and all related pleadings shall be served on the administrative 
law judge and upon all parties to the proceeding.
    (b) Each interrogatory shall be answered separately and fully in 
writing under oath or affirmation, unless it is objected to, in which 
event the reasons for objection shall be stated in lieu of an answer. 
The answer and objections shall be signed by the person making them. The 
party upon whom the interrogatories were served shall serve a copy of 
the answers and objections upon all parties to the proceeding within 30 
days after service of the interrogatories, or within such shorter or 
longer period as the administrative law judge may allow.
    (c) Interrogatories may relate to any matters which can be inquired 
into underSec. 4.1132. An interrogatory otherwise proper is not 
necessarily objectionable merely because an answer to the interrogatory 
involves an opinion or contention that relates to fact or the 
application of law to fact, but the administrative law judge may order 
that such an interrogatory need not be answered until after designated 
discovery has been completed or until a prehearing conference or other 
later time.



Sec.  4.1140  Production of documents and things and entry upon land
for inspection and other purposes.

    (a) Any party may serve on any other party a request to--
    (1) Produce and permit the party making the request, or a person 
acting on his behalf, to inspect and copy any designated documents, or 
to inspect and copy, test, or sample any tangible things within the 
scope ofSec. 4.1132 and which are in the possession, custody, or 
control of the party upon whom the request is served; or
    (2) Permit entry upon designated land or other property in the 
possession or control of the party upon whom the request is served for 
the purpose of inspection and measuring, surveying, photographing, 
testing, or sampling the property (including the air, water, and soil) 
or any designated object or operation thereon, within the scope ofSec. 
4.1132.
    (b) The request may be served on any party without leave of the 
administrative law judge.
    (c) The request shall--
    (1) Set forth the items to be inspected either by individual item or 
by category;
    (2) Describe each item or category with reasonable particularity; 
and
    (3) Specify a reasonable time, place, and manner of making the 
inspection and performing the related acts.
    (d) The party upon whom the request is served shall serve on the 
party submitting the request a written response within 30 days after 
service of the request.
    (e) The response shall state, with respect to each item or 
category--
    (1) That inspection and related activities will be permitted as 
requested; or
    (2) That objection is made in whole or in part, in which case the 
reasons for objection shall be stated.

[[Page 125]]



Sec.  4.1141  Admissions.

    (a) A party may serve upon any other party a written request for the 
admission, for purposes of the pending action only, of the genuineness 
and authenticity of any relevant document described in or attached to 
the request, or for the admission of the truth of any specified relevant 
matter of fact.
    (b) Each matter of which an admission is requested is admitted 
unless, within 30 days after service of the request or such shorter or 
longer time as the administrative law judge may allow, the party to whom 
the request is directed serves on the requesting party--
    (1) A sworn statement denying specifically the relevant matters of 
which an admission is requested;
    (2) A sworn statement setting forth in detail the reasons why he can 
neither truthfully admit nor deny them; or
    (3) Written objections on the ground that some or all of the matters 
involved are privileged or irrelevant or that the request is otherwise 
improper in whole or in part.
    (c) An answering party may not give lack of information or knowledge 
as a reason for failure to admit or deny unless he states that he has 
made reasonable inquiry and that the information known or readily 
obtainable by him is insufficient to enable him to admit or deny.
    (d) The party who has requested the admissions may move to determine 
the sufficiency of the answers or objections. Unless the administrative 
law judge determines that an objection is justified, he shall order that 
an answer be served. If the administrative law judge determines that an 
answer does not comply with the requirements of this section, he may 
order either that the matter is admitted or that an amended answer be 
served. The administrative law judge may, in lieu of these orders, 
determine that final disposition of the request be made at a prehearing 
conference or at a designated time prior to hearing.
    (e) Any matter admitted under this section is conclusively 
established unless the administrative law judge on motion permits 
withdrawal or amendment of the admission.
    (f) Any admission made by a party under this section is for the 
purpose of the pending action only and is not an admission by him for 
any other purpose nor may it be used against him in any other 
proceeding.

     Petitions for Review of Proposed Assessments of Civil Penalties



Sec.  4.1150  Who may file.

    Any person charged with a civil penalty may file a petition for 
review of a proposed assessment of that penalty with the Hearings 
Division, OHA, 801 North Quincy Street, Arlington, Va. 22203.

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



Sec.  4.1151  Time for filing.

    (a) A petition for review of a proposed assessment of a civil 
penalty must be filed within 30 days of receipt of the proposed 
assessment; or
    (b) If a timely request for a conference has been made pursuant to 
30 CFR 723.18 or 845.18, a petition for review must be filed within 30 
days from service of notice by the conference officer that the 
conference is deemed completed.
    (c) No extension of time will be granted for filing a petition for 
review of a proposed assessment of a civil penalty as required by 
paragraph (a) or (b) of this section. If a petition for review is not 
filed within the time period provided in paragraph (a) or (b) of this 
section, the appropriateness of the amount of the penalty, and the fact 
of the violation if there is no proceeding pending under section 525 of 
the Act to review the notice of violation or cessation order involved, 
shall be deemed admitted, the petition shall be dismissed, and the civil 
penalty assessed shall become a final order of the Secretary.

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



Sec.  4.1152  Contents of petition; payment required.

    (a) The petition shall include--
    (1) A short and plain statement indicating the reasons why either 
the

[[Page 126]]

amount of the penalty or the fact of the violation is being contested;
    (2) If the amount of penalty is being contested based upon a 
misapplication of the civil penalty formula, a statement indicating how 
the civil penalty formula contained in 30 CFR part 723 or 845 was 
misapplied, along with a proposed civil penalty utilizing the civil 
penalty formula;
    (3) Identification by number of all violations being contested;
    (4) The identifying number of the cashier's check, certified check, 
bank draft, personal check, or bank money order accompanying the 
petition; and
    (5) A request for a hearing site.
    (b) The petition shall be accompanied by--
    (1) Full payment of the proposed assessment in the form of a 
cashier's check, certified check, bank draft, personal check or bank 
money order made payable to--Assessment Office, OSM--to be placed in an 
escrow account pending final determination of the assessment; and
    (2) On the face of the payment an identification by number of the 
violations for which payment is being tendered.
    (c) As required by section 518(c) of the act, failure to make timely 
payment of the proposed assessment in full shall result in a waiver of 
all legal rights to contest the violation or the amount of the penalty.
    (d) No extension of time will be granted for full payment of the 
proposed assessment. If payment is not made within the time period 
provided inSec. 4.1151 (a) or (b), the appropriateness of the amount 
of the penalty, and the fact of the violation if there is no proceeding 
pending under section 525 of the Act of review the notice of violation 
or cessation order involved, shall be deemed admitted, the petition 
shall be dismissed, and the civil penalty assessed shall become a final 
order of the Secretary.

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



Sec.  4.1153  Answer.

    OSM shall have 30 days from receipt of a copy of the petition within 
which to file an answer to the petition with the Hearings Division, OHA.



Sec.  4.1154  Review of waiver determination.

    (a) Within 10 days of the filing of a petition under this part, 
petitioner may move the administrative law judge to review the granting 
or denial of a waiver of the civil penalty formula pursuant to 30 CFR 
723.16 or 845.16.
    (b) The motion shall contain a statement indicating all alleged 
facts relevant to the granting or denial of the waiver;
    (c) Review shall be limited to the written determination of the 
Director of OSM granting or denying the waiver, the motion and responses 
to the motion. The standard of review shall be abuse of discretion.
    (d) If the administrative law judge finds that the Director of OSM 
abused his discretion in granting or denying the waiver, the 
administrative law judge shall hold the hearing on the petition for 
review of the proposed assessment required by section 518(b) of the act 
and make a determination pursuant toSec. 4.1157.

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



Sec.  4.1155  Burdens of proof in civil penalty proceedings.

    In civil penalty proceedings, OSM shall have the burden of going 
forward to establish a prima facie case as to the fact of the violation 
and the amount of the civil penalty and the ultimate burden of 
persuasion as to the amount of the civil penalty. The person who 
petitioned for review shall have the ultimate burden of persuasion as to 
the fact of the violation.

[53 FR 47694, Nov. 25, 1988]



Sec.  4.1156  Summary disposition.

    (a) In a civil penalty proceeding where the person against whom the 
proposed civil penalty is assessed fails to comply on time with any 
prehearing order of an administrative law judge, the administrative law 
judge shall issue an order to show cause why--
    (1) That person should not be deemed to have waived his right to a 
hearing; and

[[Page 127]]

    (2) The proceedings should not be dismissed and referred to the 
assessment officer.
    (b) If the order to show cause is not satisfied as required, the 
administrative law judge shall order the proceedings summarily dismissed 
and shall refer the case to the assessment officer who shall enter the 
assessment as the final order of the Department.
    (c) Where the person against whom the proposed civil penalty is 
assessed fails to appear at a hearing, that person will be deemed to 
have waived his right to a hearing and the administration law judge may 
assume for purposes of the assessment--
    (1) That each violation listed in the notice of violation or order 
occurred; and
    (2) The truth of any facts alleged in such notice or order.
    (d) In order to issue an initial decision assessing the appropriate 
penalty when the person against whom the proposed civil penalty is 
assessed fails to appear at the hearing, an administrative law judge 
shall either conduct an ex parte hearing or require OSM to furnish 
proposed findings of fact and conclusions of law.
    (e) Nothing in this section shall be construed to deprive the person 
against whom the penalty is assessed of his opportunity to have OSM 
prove the violations charged in open hearing with confrontation and 
cross-examination of witnesses, except where that person fails to comply 
with a prehearing order or fails to appear at the scheduled hearing.



Sec.  4.1157  Determination by administrative law judge.

    (a) The administrative law judge shall incorporate in his decision 
concerning the civil penalty, findings of fact on each of the four 
criteria set forth in 30 CFR 723.13 or 845.13, and conclusions of law.
    (b) If the administrative law judge finds that--
    (1) A violation occurred or that the fact of violation is 
uncontested, he shall establish the amount of the penalty, but in so 
doing, he shall adhere to the point system and conversion table 
contained in 30 CFR 723.13 and 723.14 or 845.13 and 845.14, except that 
the administrative law judge may waive the use of such point system 
where he determines that a waiver would further abatement of violations 
of the Act. However, the administrative law judge shall not waive the 
use of the point system and reduce the proposed assessment on the basis 
of an argument that a reduction in the proposed assessment could be used 
to abate other violations of the Act; or
    (2) No violation occurred, he shall issue an order that the proposed 
assessment be returned to the petitioner.
    (c) If the administrative law judge makes a finding that no 
violation occurred or if the administrative law judge reduces the amount 
of the civil penalty below that of the proposed assessment and a timely 
petition for review of his decision is not filed with the Board or the 
Board refuses to grant such a petition, the Department of the Interior 
shall have 30 days from the expiration of the date for filing a petition 
with the Board if no petition is filed, or 30 days from the date the 
Board refuses to grant such a petition, within which to remit the 
appropriate amount to the person who made the payment, with interest at 
the rate of 6 percent, or at the prevailing Department of the Treasury 
rate, whichever is greater.
    (d) If the administrative law judge increases the amount of the 
civil penalty above that of the proposed assessment, the administrative 
law judge shall order payment of the appropriate amount within 30 days 
of receipt of the decision.

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



Sec.  4.1158  Appeals.

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

   Review of Section 521 Notices of Violation and Orders of Cessation



Sec.  4.1160  Scope.

    These regulations govern applications for review of--
    (a) Notices of violation or the modification, vacation, or 
termination of a

[[Page 128]]

notice of violation under section 521(a)(3) of the Act; and
    (b) Orders of cessation which are not subject to expedited review 
underSec. 4.1180 or the modification, vacation, or termination of such 
an order of cessation under section 521(a)(2) or section 521(a)(3).



Sec.  4.1161  Who may file.

    A permittee issued a notice or order by the Secretary pursuant to 
the provisions of section 521(a)(2) or section 521(a)(3) of the Act or 
any person having an interest which is or may be adversely affected by a 
notice or order subject to review underSec. 4.1160 may file an 
application for review with the Hearings Division, OHA, 801 North Quincy 
Street, Arlington, Va. 22203.

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



Sec.  4.1162  Time for filing.

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

[51 FR 16321, May 2, 1986]



Sec.  4.1163  Effect of failure to file.

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



Sec.  4.1164  Contents of application.

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



Sec.  4.1165  Answer.

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



Sec.  4.1166  Contents of answer.

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



Sec.  4.1167  Notice of hearing.

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



Sec.  4.1168  Amendments to pleadings.

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

[[Page 129]]



Sec.  4.1169  Failure to state a claim.

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



Sec.  4.1170  Related notices or orders.

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



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

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

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



Sec.  4.1180  Purpose.

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



Sec.  4.1181  Who may file.

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



Sec.  4.1182  Where to file.

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

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



Sec.  4.1183  Time for filing.

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

[[Page 130]]



Sec.  4.1184  Contents of application.

    (a) Any person filing an application for expedited review under 
section 525(b) of the act shall incorporate in that application 
regarding each claim for relief--
    (1) A statement of facts entitling that person to administrative 
relief;
    (2) A request for specific relief;
    (3) A specific statement which delineates each issue to be addressed 
by the applicant during the expedited proceeding;
    (4) A copy of the order sought to be reviewed;
    (5) A list identifying each of applicant's witnesses by name, 
address, and place of employment, including expert witnesses and the 
area of expertise to which they will address themselves at the hearing, 
and a detailed summary of their testimony;
    (6) Copies of all exhibits and other documentary evidence that the 
applicant intends to introduce as evidence at the hearing and 
descriptions of all physical exhibits and evidence which is not capable 
of being copied or attached; and
    (7) Any other relevant information.
    (b) If any applicant fails to comply with all the requirements of 
Sec.  4.1184(a), the administrative law judge may find that the 
applicant has waived the 30-day decision requirement or the 
administrative law judge shall order that the application be perfected 
and the application shall not be considered filed for purposes of the 
30-day decision until perfected. Failure to timely comply with the 
administrative law judge's order shall constitute a waiver of the 30-day 
decision.



Sec.  4.1185  Computation of time for decision.

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



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

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



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

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

[[Page 131]]

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

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



Sec.  4.1190  Initiation of proceedings.

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

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

[[Page 132]]



Sec.  4.1191  Answer.

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



Sec.  4.1192  Contents of answer.

    The permittee's answer to a show cause order shall contain a 
statement setting forth--
    (a) The reasons in detail why a pattern of violations does not exist 
or has not existed, including all reasons for contesting--
    (1) The fact of any of the violations alleged by OSM as constituting 
a pattern of violations;
    (2) The willfulness of such violations; or
    (3) Whether such violations were caused by the unwarranted failure 
of the permittee;
    (b) All mitigating factors the permittee believes exist in 
determining the terms of the revocation or the length and terms of the 
suspension;
    (c) Any other alleged relevant facts; and
    (d) Whether a hearing on the show cause order is desired.

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



Sec.  4.1193  Notice of hearing.

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

[67 FR 61510, Oct. 1, 2002]



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

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

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



Sec.  4.1195  Determination by the administrative law judge.

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

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



Sec.  4.1196  Summary disposition.

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

[[Page 133]]

fails to appear at the hearing, the administrative law judge shall 
either conduct an ex parte hearing or require OSM to furnish proposed 
findings of fact and conclusions of law.

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



Sec.  4.1197  Appeals.

    Any party desiring to appeal the decision of the administrative law 
judge shall have 5 days from receipt of the administrative law judge's 
decision within which to file a notice of appeal with the Board. The 
Board shall act immediately to issue an expedited briefing schedule. The 
decision of the Board shall be issued within 60 days of the date the 
hearing record is closed by the administrative law judge or, if no 
hearing is held, within 60 days of the date the answer is filed.

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

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



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

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

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



Sec.  4.1201  Request for scheduling of a hearing.

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



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

    (a) Any person served with a copy of the request for the scheduling 
of a hearing shall file a response with the Hearings Division, OHA, 
Arlington,

[[Page 134]]

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



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

    (a) On or after 10 days from the filing of an application for review 
under this part, any party may file an application for temporary relief 
from alleged discriminatory acts.
    (b) The application shall be filed in the Hearings Division, OHA, 
Arlington, Va.
    (c) The application shall include--
    (1) A detailed written statement setting forth the reasons why 
relief should be granted;
    (2) A showing that the complaint of discrimination was not 
frivolously brought;
    (3) A description of any exigent circumstances justifying temporary 
relief; and
    (4) A statement of the specific relief requested.
    (d) All parties to the proceeding to which the application relates 
shall have 5 days from receipt of the application to file a written 
response.
    (e) The administrative law judge may convene a hearing on any issue 
raised by the application if he deems it appropriate.
    (f) The administrative law judge shall expeditiously issue an order 
or decision granting or denying such relief.
    (g) If all parties consent, before or after the commencement of any 
hearing on the application for temporary relief, the administrative law 
judge may order the hearing on the application for review of alleged 
discriminatory - acts to be advanced and consolidated with the hearing 
on the application for temporary relief.



Sec.  4.1204  Determination by administrative law judge.

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

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



Sec.  4.1205  Appeals.

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

                    Applications for Temporary Relief



Sec.  4.1260  Scope.

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



Sec.  4.1261  When to file.

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



Sec.  4.1262  Where to file.

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

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

[[Page 135]]



Sec.  4.1263  Contents of application.

    The application shall include--
    (a) A detailed written statement setting forth the reasons why 
relief should be granted;
    (b) A showing that there is a substantial likelihood that the 
findings and decision of the administrative law judge in the matters to 
which the application relates will be favorable to the applicant;
    (c) A statement that the relief sought will not adversely affect the 
health or safety of the public or cause significant, imminent 
environmental harm to land, air, or water resources;
    (d) If the application relates to an order of cessation issued 
pursuant to section 521(a)(2) or section 521(a)(3) of the act, a 
statement of whether the requirement of section 525(c) of the act for 
decision on the application within 5 days is waived; and
    (e) A statement of the specific relief requested.



Sec.  4.1264  Response to application.

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



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

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



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

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

Albuquerque Field Office (serving Arizona, California, and New Mexico) 
(505) 248-5070.
Big Stone Gap Field Office (serving Virginia) (276) 523-4303.
Birmingham Field Office (serving Alabama and Mississippi) (205) 290-7282 
(ext. 16).
Casper Field Office (serving Idaho, Montana, North Dakota, South Dakota, 
and Wyoming) (307) 261-6550.
Charleston Field Office (serving West Virginia) (304) 347-7158.
Columbus Team Office (serving Maryland, Michigan, and Ohio) (412) 937-
2153.
Harrisburg Field Office (serving Massachusetts, Pennsylvania, and Rhode 
Island) (717) 782-4036.
Knoxville Field Office (serving Georgia, Tennessee, and North Carolina) 
(865) 545-4103 (ext. 186).
Lexington Field Office (serving Kentucky) (859) 260-8402.
Mid-Continent Regional Coordinating Center (serving Iowa, Kansas, and 
Missouri) (618) 463-6460.
Olympia Office (serving Washington) (360) 753-9538.
Tulsa Field Office (serving Arkansas, Louisiana, Oklahoma, and Texas) 
(918) 581-6431 (ext. 23).
Western Regional Coordinating Center (serving Alaska, Colorado, Oregon, 
and Utah) (303) 844-1400 (ext. 1424).

    (3) Prior to or at the hearing, the applicant shall file with OHA an 
affidavit stating the date upon which the copy of the application was 
delivered to the office of the field solicitor or the applicant may make 
an oral statement at

[[Page 136]]

the hearing setting forth that information. For purposes of the 
affidavit or statement the applicant may rely upon telephone 
confirmation by the office of the field solicitor that the application 
was received.
    (4) In addition to the service requirements ofSec. 4.1266(b) (1) 
and (2), the applicant shall serve any other parties with a copy of the 
application simultaneously with the filing of the application. If 
service is accomplished by mail, the applicant shall inform such other 
parties by telephone at the time of mailing that an application is being 
filed, the contents of the application, and with whom the application 
was filed.
    (5) The field solicitor and all other parties may indicate their 
objection to the application by communicating such objection to the 
administrative law judge and the applicant by telephone. However, no ex 
parte communication as to the merits of the proceeding may be conducted 
with the administrative law judge. The field solicitor and all other 
parties shall simultaneously reduce their objections to writing. The 
written objections must be immediately filed with the administrative law 
judge and immediately served upon the applicant.
    (6) Upon receipt of communication that there is an objection to the 
request, the administrative law judge shall immediately order a 
location, time, and date for the hearing by communicating such 
information to the field solicitor, all other parties, and the applicant 
by telephone. The administrative law judge shall reduce such 
communications to writing in the form of a memorandum to the file.
    (7) If a hearing is held--
    (i) The administrative law judge may require the parties to submit 
proposed findings of fact and conclusions of law at the hearing which 
may be orally supplemented on the record at the hearing or where written 
proposed findings of fact and conclusions of law have not been submitted 
at the hearing, they may be orally presented for the record at the 
hearing.
    (ii) The administrative law judge shall either rule from the bench 
on the application, orally stating the reasons for his decision or he 
shall within 24 hours of completion of the hearing issue a written 
decision. If the administrative law judge makes an oral ruling, his 
approval of the record of the hearing shall constitute his written 
decision.
    (8) The order or decision of the administrative law judge shall be 
issued within 5 working days of the receipt of the application for 
temporary relief.
    (9) If at any time after the initiation of this expedited procedure, 
the applicant requests a delay or acts in a manner so as to frustrate 
the expeditious nature of this proceeding or fails to supply the 
information required bySec. 4.1263 such action shall constitute a 
waiver of the 5-day requirement of section 525(c) of the act.

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



Sec.  4.1267  Appeals.

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

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

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



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

    (a) Any party may petition the Board to review an order or decision 
by an administrative law judge disposing of a civil penalty proceeding 
underSec. 4.1150.
    (b) A petition under this section shall be filed on or before 30 
days from the date of receipt of the order or decision sought to be 
reviewed and the time for filing may not be extended.
    (c) A petitioner under this section shall list the alleged errors of 
the administrative law judge and shall attach

[[Page 137]]

a copy of the order or decision sought to be reviewed.
    (d) Any party may file with the Board a response to the petition for 
review within 10 days of receipt of a copy of such petition.
    (e) Not later than 30 days from the filing of a petition under this 
section, the Board shall grant or deny the petition in whole or in part.
    (f) If the petition is granted, the rules in Sec.Sec. 4.1273 
through 4.1275 are applicable, and the Board must use the point system 
and conversion table contained in 30 CFR part 723 or 845 in 
recalculating assessments. However, the Board has the same authority to 
waive the civil penalty formula as that granted to administrative law 
judges inSec. 4.1157(b)(1). If the petition is denied, the decision of 
the administrative law judge is final for the Department, subject to 
Sec.  4.5.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61511, Oct. 1, 2002; 75 
FR 64669, Oct. 20, 2010]



Sec.  4.1271  Notice of appeal.

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

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



Sec.  4.1272  Interlocutory appeals.

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



Sec.  4.1273  Briefs.

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

[[Page 138]]



Sec.  4.1274  Remand.

    The Board may remand cases if further proceedings are required.



Sec.  4.1275  Final decisions.

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

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



Sec.  4.1280  Scope.

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



Sec.  4.1281  Who may appeal.

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



Sec.  4.1282  Appeals; how taken.

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

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



Sec.  4.1283  Service.

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



Sec.  4.1284  Answer.

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



Sec.  4.1285  Summary dismissal.

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



Sec.  4.1286  Motion for a hearing on an appeal involving issues of fact.

    (a) Any party may file a motion that the Board refer a case to an 
administrative law judge for a hearing. The motion must state:
    (1) What specific issues of material fact require a hearing;

[[Page 139]]

    (2) What evidence concerning these issues must be presented by oral 
testimony, or be subject to cross-examination;
    (3) What witnesses need to be examined; and
    (4) What documentary evidence requires explanation, if any.
    (b) In response to a motion under paragraph (a) of this section or 
on its own initiative, the Board may order a hearing if there are:
    (1) Any issues of material fact which, if proved, would alter the 
disposition of the appeal; or
    (2) Significant factual or legal issues remaining to be decided and 
the record without a hearing would be insufficient for resolving them.
    (c) If the Board orders a hearing, it must:
    (1) Specify the issues of fact upon which the hearing is to be held; 
and
    (2) Request the administrative law judge to issue:
    (i) Proposed findings of fact on the issues presented at the 
hearing;
    (ii) A recommended decision that includes findings of fact and 
conclusions of law; or
    (iii) A decision that will be final for the Department unless a 
notice of appeal is filed in accordance withSec. 4.411.
    (d) If the Board orders a hearing, it may do one or more of the 
following:
    (1) Suspend the effectiveness of the decision under review pending a 
final Departmental decision on the appeal if it finds good cause to do 
so;
    (2) Authorize the administrative law judge to specify additional 
issues; or
    (3) Authorize the parties to agree to additional issues that are 
material, with the approval of the administrative law judge.
    (e) The hearing will be conducted under Sec.Sec. 4.1100, 4.1102 
through 4.1115, 4.1121 through 4.1127, and 4.1130 through 4.1141. Unless 
the Board orders otherwise, the administrative law judge may consider 
other relevant issues and evidence identified after referral of the case 
for a hearing.

[75 FR 64669, Oct. 20, 2010]



Sec.  4.1287  Action by administrative law judge.

    (a) Upon completion of the hearing and the incorporation of the 
transcript in the record, the administrative law judge will issue and 
serve on the parties, as specified by the Board underSec. 4.415(c)(2):
    (1) Proposed findings of fact on the issues presented at the 
hearing;
    (2) A recommended decision that includes findings of fact and 
conclusions of law and that advises the parties of their right to file 
exceptions under paragraph (c) of this section; or
    (3) A decision that will be final for the Department unless a notice 
of appeal is filed in accordance withSec. 4.411.
    (b) The administrative law judge will promptly send to the Board the 
record and:
    (1) The proposed findings;
    (2) The recommended decision; or
    (3) The final decision if a timely notice of appeal is filed.
    (c) The parties will have 30 days from service of the recommended 
decision to file exceptions with the Board.

[75 FR 64669, Oct. 20, 2010]

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



Sec.  4.1290  Who may file.

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



Sec.  4.1291  Where to file; time for filing.

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



Sec.  4.1292  Contents of petition.

    (a) A petition filed under this section shall include the name of 
the person from whom costs and expenses are

[[Page 140]]

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



Sec.  4.1293  Answer.

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



Sec.  4.1294  Who may receive an award.

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

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



Sec.  4.1295  Awards.

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



Sec.  4.1296  Appeals.

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

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

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

[[Page 141]]



Sec.  4.1300  Scope.

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



Sec.  4.1301  Who may file.

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

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



Sec.  4.1302  Time for filing.

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



Sec.  4.1303  Contents and service of petition.

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

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



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

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



Sec.  4.1305  Amendment of petition.

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



Sec.  4.1306  Notice of hearing.

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



Sec.  4.1307  Elements; burdens of proof.

    (a) OSM shall have the burden of going forward with evidence to 
establish a prima facie case that:
    (1) A corporate permittee either violated a condition of a permit or 
failed or refused to comply with an order issued under section 521 of 
the Act or an order incorporated in a final decision by the Secretary 
under the Act (except an order incorporated in a decision issued under 
sections 518(b) or 703 of the Act or implementing regulations), unless 
the fact of violation or failure or refusal to comply with an order has 
been upheld in a final decision in a proceeding underSec. 4.1150

[[Page 142]]

through 4.1158,Sec. 4.1160 through 4.1171, orSec. 4.1180 through 
4.1187, andSec. 4.1270 orSec. 4.1271 of this part, and the 
individual is one against whom the doctrine of collateral estoppel may 
be applied to preclude relitigation of fact issues;
    (2) The individual, at the time of the violation, failure or 
refusal, was a director, officer, or agent of the corporation; and
    (3) The individual willfully and knowingly authorized, ordered, or 
carried out the corporate permittee's violation or failure or refusal to 
comply.
    (b) The individual shall have the ultimate burden of persuasion by a 
preponderance of the evidence as to the elements set forth in paragraph 
(a)(1) of this section.
    (c) OSM shall have the ultimate burden of persuasion by a 
preponderance of the evidence as to the elements set forth in paragraphs 
(a)(2) and (a)(3) of this section and as to the amount of the individual 
civil penalty.

[53 FR 8754, Mar. 17, 1988, as amended at 68 FR 66728, Nov. 28, 2003]



Sec.  4.1308  Decision by administrative law judge.

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



Sec.  4.1309  Petition for discretionary review.

    (a) Any party may petition the Board to review an order or decision 
by an administrative law judge disposing of an individual civil penalty 
proceeding underSec. 4.1308 of this part.
    (b) A petition under this section shall be filed on or before 30 
days from the date of receipt of the order or decision sought to be 
reviewed, and the time for filing shall not be extended.
    (c) A petitioner under this section shall list the alleged errors of 
the administrative law judge and shall attach a copy of the order or 
decision sought to be reviewed.
    (d) Any party may file with the Board a response to the petition for 
review within 10 days of receipt of a copy of such petition.
    (e) Not later than 30 days from the filing of a petition for review 
under this section, the Board shall grant or deny the petition in whole 
or in part.
    (f) If the petition for review is granted the rules in Sec.Sec. 
4.1273-4.1276 of this part are applicable. If the petition is denied, 
the decision of the administrative law judge is final for the 
Department, subject toSec. 4.5 of this part.
    (g) Payment of a penalty is due in accordance with 30 CFR 724.18 or 
846.18.

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

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



Sec.  4.1350  Scope.

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

[67 FR 61511, Oct. 1, 2002]



Sec.  4.1351  Preliminary finding by OSM.

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

[[Page 143]]

or operator has agreed to bear the expense for this service. The 
preliminary finding must specifically state the violations upon which it 
is based.

[67 FR 61511, Oct. 1, 2002]



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

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

[67 FR 61511, Oct. 1, 2002]



Sec.  4.1353  Contents of request.

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



Sec.  4.1354  Determination by the administrative law judge.

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



Sec.  4.1355  Burden of proof.

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

[67 FR 61511, Oct. 1, 2002]



Sec.  4.1356  Appeals.

    (a) Any party aggrieved by the decision of the administrative law 
judge may appeal to the Board under procedures set forth inSec. 4.1271 
et seq. of this subpart, except that the notice of appeal must be filed 
within 20 days of receipt of the administrative law judge's decision.
    (b) The Board shall order an expedited briefing schedule and shall 
issue a decision within 45 days of the filing of the appeal.

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

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



Sec.  4.1360  Scope.

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

[[Page 144]]

    (e) Ineligibility for a permit under section 510(c) of the Act and 
30 CFR 773.12.

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



Sec.  4.1361  Who may file.

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



Sec.  4.1362  Where to file; when to file.

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

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



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

    (a) The request for review shall include--
    (1) A clear statement of the facts entitling the one requesting 
review to administrative relief;
    (2) An explanation of each specific alleged error in OSMRE's 
decision, including reference to the statutory and regulatory provisions 
allegedly violated;
    (3) A request for specific relief;
    (4) A statement whether the person requests or waives the 
opportunity for an evidentiary hearing; and
    (5) Any other relevant information.
    (b) All interested parties shall file an answer or motion in 
response to a request for review, or a statement that no answer or 
motion will be filed, within 15 days of receipt of the request 
specifically admitting or denying facts or alleged errors stated in the 
request and setting forth any other matters to be considered on review.
    (c) A request for review may be amended once as a matter of right 
prior to filing of an answer or motion or statement filed in accordance 
with paragraph (b) of this section. Thereafter, a motion for leave to 
amend the request shall be filed with the Administrative Law Judge. An 
Administrative Law Judge may not grant a motion for leave to amend 
unless all parties agree to an extension of the date of commencement of 
the hearing underSec. 4.1364. A request for review may not be amended 
after a hearing commences.
    (d) An interested party shall have 10 days from filing of a request 
for review that is amended as a matter of right or the time remaining 
for response to the original request, whichever is longer, to file an 
answer, motion, or statement in accordance with paragraph (b) of this 
section. If the Administrative Law Judge grants a motion to amend a 
request for review, the time for an interested party to file an answer, 
motion, or statement shall be set forth in the order granting it.
    (e) Failure of any party to comply with the requirements of 
paragraph (a) or (b) of this section may be regarded by an 
Administrative Law Judge as a waiver by that party of the right to 
commencement of a hearing within 30 days of the filing of a request for 
review if the Administrative Law Judge concludes that the failure was 
substantial and that another party was prejudiced as a result.

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



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

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

[[Page 145]]

time limit for commencement of a hearing may specify the length of the 
extension agreed to.



Sec.  4.1365  Status of decision pending administrative review.

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



Sec.  4.1366  Burdens of proof.

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



Sec.  4.1367  Request for temporary relief.

    (a) Where review is requested pursuant toSec. 4.1362, any party 
may file a request for temporary relief at any time prior to a decision 
by an Administrative Law Judge, so long as the relief sought is not the 
issuance of a permit where a permit application has been disapproved in 
whole or in part.
    (b) The request shall be filed with the Administrative Law Judge to 
whom the case has been assigned. If no assignment has been made, the 
application shall be filed in the Hearings Division, Office of Hearings 
and Appeals, U.S. Department of the Interior, 801 North Quincy Street, 
Arlington, Virginia 22203 (phone 703-235-3800).
    (c) The application shall include--
    (1) A detailed written statement setting forth the reasons why 
relief should be granted;

[[Page 146]]

    (2) A statement of the specific relief requested;
    (3) A showing that there is a substantial likelihood that the person 
seeking relief will prevail on the merits of the final determination of 
the proceeding; and
    (4) A showing that the relief sought will not adversely affect the 
public health or safety or cause significant, imminent environmental 
harm to land, air, or water resources.
    (d) The Administrative Law Judge may hold a hearing on any issue 
raised by the application.
    (e) The Administrative Law Judge shall issue expeditiously an order 
or decision granting or denying such temporary relief. Temporary relief 
may be granted only if--
    (1) All parties to the proceeding have been notified and given an 
opportunity to be heard on a request for temporary relief;
    (2) The person requesting such relief shows a substantial likelihood 
of prevailing on the merits of the final determination of the 
proceeding; and
    (3) Such relief will not adversely affect the public health or 
safety or cause significant, imminent environmental harm to land, air, 
or water resources.
    (f) Appeals of temporary relief decisions.
    (1) Any party desiring to appeal the decision of the Administrative 
Law Judge granting or denying temporary relief may appeal to the Board, 
or, in the alternative, may seek judicial review pursuant to section 
526(a), 30 U.S.C. 1276(a), of the Act.
    (2) The Board shall issue an expedited briefing schedule and shall 
issue a decision on the appeal expeditiously.

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



Sec.  4.1368  Determination by the Administrative Law Judge.

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



Sec.  4.1369  Petition for discretionary review; judicial review.

    (a) Any party aggrieved by a decision of an Administrative Law Judge 
may file a petition for discretionary review with the Board within 30 
days of receipt of the decision or, in the alternative, may seek 
judicial review in accordance with 30 U.S.C. 1276(a)(2) (1982). A copy 
of the petition shall be served simultaneously on the Administrative Law 
Judge who issued the decision, who shall forthwith forward the record to 
the Board, and on all other parties to the proceeding.
    (b) The petition shall set forth specifically the alleged errors in 
the decision, with supporting argument, and shall attach a copy of the 
decision.
    (c) Any party may file a response to a petition for discretionary 
review within 20 days of receipt of the petition.
    (d) The Board shall issue a decision denying the petition or 
granting the petition and deciding the merits within 60 days of the 
deadline for filing responses.

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

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



Sec.  4.1370  Scope.

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

[67 FR 61511, Oct. 1, 2002]



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

    (a) A permittee that is served with a notice of proposed suspension 
or rescission under 30 CFR 773.22 or a notice of suspension or 
rescission under 30 CFR 773.23 may file a request for review with the 
Hearings Division, Office of

[[Page 147]]

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

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



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

    (a) The request for review shall include:
    (1) A copy of the notice of proposed suspension or rescission or the 
notice of suspension or rescission;
    (2) Documentary proof, or, where appropriate, offers of proof, 
concerning the matters in 30 CFR 773.21(a) and (b) or 30 CFR 773.14(c) 
for a notice of proposed suspension or rescission, or 30 CFR 
773.23(a)(1) through (a)(6) for a notice of suspension or rescission, 
showing that the person requesting review is entitled to administrative 
relief;
    (3) A statement whether the person requesting review wishes an 
evidentiary hearing or waives the opportunity for such a hearing;
    (4) A request for specific relief; and
    (5) Any other relevant information.
    (b) Within 20 days of service of the request for review by the 
permittee in accordance with 43 CFR 4.1109, OSM and all interested 
parties shall file an answer to the request for review or a motion in 
response to the request or a statement that no answer or motion will be 
filed. OSM or any interested party may request an evidentiary hearing 
even if the person requesting review has waived the opportunity for such 
a hearing.
    (c) The permittee may amend the request for review once as a matter 
of right before a response in accordance with paragraph (b) of this 
section is required to be filed. After the period for filing such a 
response, the permittee may file a motion for leave to amend the request 
for review with the administrative law judge. If the administrative law 
judge grants a motion for leave to amend, he shall provide OSM and any 
other party that filed a response in accordance with paragraph (b) not 
less than 10 days to file an amended response.

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



Sec.  4.1373  Hearing.

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

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



Sec.  4.1374  Burdens of proof.

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

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



Sec.  4.1375  Time for initial decision.

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

[[Page 148]]



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

    (a) Any party may file a petition for temporary relief from the 
notice of proposed suspension or rescission or the notice of suspension 
or rescission in conjunction with the filing of the request for review 
or at any time before an initial decision is issued by the 
administrative law judge.
    (b) The petition for temporary relief shall be filed with the 
administrative law judge to whom the request for review has been 
assigned. If none has been assigned, the petition shall be filed with 
the Hearings Division, Office of Hearings and Appeals, U.S. Department 
of the Interior, 801 North Quincy Street, Arlington, Virginia 22203 
(Telephone 703-235-3800).
    (c) The petition for temporary relief shall include:
    (1) A statement of the specific relief requested;
    (2) A detailed statement of why temporary relief should be granted, 
including--
    (i) A showing that there is a substantial likelihood that petitioner 
will prevail on the merits, and
    (ii) A showing that the relief sought will not adversely affect the 
public health or safety or cause significant, imminent environmental 
harm to land, air or water resources;
    (3) A statement whether the petitioner requests an evidentiary 
hearing.
    (d) Any party may file a response to the petition no later than 5 
days after it was served and may request a hearing even if the 
petitioner has not done so.
    (e) The administrative law judge may hold a hearing on any issue 
raised by the petition within 10 days of the filing of responses to the 
petition, and shall do so if a hearing is requested by any party.
    (f) The administrative law judge shall issue an order or decision 
granting or denying the petition for temporary relief within 5 days of 
the date of a hearing on the petition or, if no hearing is held, of 
service of the responses to the petition on all parties.
    (g) The administrative law judge may only grant temporary relief if:
    (1) All parties to the proceeding have been notified of the petition 
and have had an opportunity to respond and a hearing has been held if 
requested;
    (2) The petitioner has demonstrated a substantial likelihood of 
prevailing on the merits; and
    (3) Temporary relief will not adversely affect public health or 
safety or cause significant, imminent harm to land, air or water 
resources.
    (h) Any party may file an appeal of an order or decision granting or 
denying temporary relief with the Board within 30 days of receipt of the 
order or decision or, in the alternative, may seek judicial review 
within 30 days in accordance with section 526(a) of the Act, 30 U.S.C. 
1276(a). If an appeal is filed with the Board, the Board shall issue an 
expedited briefing schedule and shall decide the appeal expeditiously.

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



Sec.  4.1377  Petition for discretionary review of initial decision.

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

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

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

[[Page 149]]



Sec.  4.1380  Scope.

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

[67 FR 61512, Oct. 1, 2002]



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

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

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



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

    (a) The request for review shall include:
    (1) A copy of the decision of OSM;
    (2) A statement of the alleged errors in the decision and the facts 
that entitle the person requesting review to administrative relief;
    (3) A statement whether the person requesting review wishes an 
evidentiary hearing or waives the opportunity for such a hearing;
    (4) A request for specific relief; and
    (5) Any other relevant information.
    (b) Within 20 days of service of the request for review in 
accordance with 43 CFR 4.1109, OSM and all interested parties shall file 
an answer to the request for review or a motion in response to the 
request or a statement that no answer or motion will be filed. OSM or 
any interested party may request an evidentiary hearing even if the 
person requesting review has waived the opportunity for a hearing.
    (c) The person filing the request for review may amend it once as a 
matter of right before the response in accordance with paragraph (b) of 
this section is required to be filed. After the period for filing such a 
response, the person may file a motion for leave to amend the request 
with the administrative law judge. If the administrative law judge 
grants a motion for leave to amend, he shall provide OSM and any other 
party that filed a response in accordance with paragraph (b) not less 
than 10 days to file an amended response.



Sec.  4.1383  Hearing.

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



Sec.  4.1384  Burdens of proof.

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



Sec.  4.1385  Time for initial decision.

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

[[Page 150]]



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

    (a) Any party may file a petition for temporary relief from the 
decision of OSM in conjunction with the filing of the request for review 
or at any time before an initial decision is issued by the 
administrative law judge.
    (b) The petition for temporary relief shall be filed with the 
administrative law judge to whom the request for review has been 
assigned. If none has been assigned, the petition shall be filed with 
the Hearings Division, Office of Hearings and Appeals, U.S. Department 
of the Interior, 801 North Quincy Street, Arlington, Virginia 22203 
(Telephone 703-235-3800).
    (c) The petition for temporary relief shall include:
    (1) A statement of the specific relief requested:
    (2) A detailed statement of why temporary relief should be granted, 
including:
    (i) A showing that there is a substantial likelihood that petitioner 
will prevail on the merits, and
    (ii) A showing that granting the relief requested will not adversely 
affect the public health or safety or cause significant, imminent 
environmental harm to land, air or water resources;
    (3) A statement whether the petitioner requests an evidentiary 
hearing.
    (d) Any party may file a response to the petition no later than 5 
days after it was served and may request a hearing even if the 
petitioner has not done so.
    (e) The administrative law judge may hold a hearing on any issue 
raised by the petition within 10 days of the filing of responses to the 
petition, and shall do so if a hearing is requested by any party.
    (f) The administrative law judge shall issue an order or decision 
granting or denying the petition for temporary relief within 5 days of 
the date of a hearing on the petition or, if no hearing is held, of 
service of the responses to the petition on all parties.
    (g) The administrative law judge may only grant temporary relief if:
    (1) All parties to the proceeding have been notified of the petition 
and have had an opportunity to respond and a hearing has been held if 
requested;
    (2) The petitioner has demonstrated a substantial likelihood of 
prevailing on the merits; and
    (3) Temporary relief will not adversely affect public health or 
safety or cause significant, imminent environmental harm to land, air or 
water resources.
    (h) Any party may file an appeal of an order or decision granting or 
denying temporary relief with the Board within 30 days of receipt of the 
order or decision or, in the alternative, may seek judicial review 
within 30 days in accordance with section 526(a) of the Act, 30 U.S.C. 
1276(a). If an appeal is filed with the Board, the Board shall issue an 
expedited briefing schedule and shall decide the appeal expeditiously.

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



Sec.  4.1387  Petition for discretionary review of initial decisions.

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

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

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

[[Page 151]]



Sec.  4.1390  Scope.

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

[67 FR 61512, Oct. 1, 2002]



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

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

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



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

    (a) The request for review:
    (1) Must include:
    (i) A clear statement of the reasons for appeal;
    (ii) A request for specific relief;
    (iii) A copy of the decision appealed from; and
    (iv) Any other relevant information; and
    (2) May not exceed 30 pages, excluding exhibits, declarations, and 
other attachments, unless the Board orders otherwise upon motion for 
good cause shown.
    (b) All interested parties shall file an answer or motion in 
response to a request for review or a statement that no answer or motion 
will be filed within 15 days of receipt specifically admitting or 
denying facts or alleged errors stated in the request and setting forth 
any other matters to be considered on review.
    (c) A request for review may be amended once as a matter of right 
prior to receipt of an answer or motion or statement filed in accordance 
with paragraph (b) of this section. Thereafter, a motion for leave to 
amend the request shall be filed with the Board.
    (d) An interested party may file an answer, motion, or statement as 
described in paragraph (b) of this section in response to an amended 
request for review as follows:
    (1) If the request for review is amended as a matter of right, the 
answer, motion, or statement must be filed within the longer of the 
following periods:
    (i) The time remaining for response to the original request for 
review; or
    (ii) Ten days after receipt of the amended request for review; and
    (2) If the Board grants a motion to amend a request for review, the 
answer, motion, or statement must be

[[Page 152]]

filed within the time set by the Board in its order granting the motion.
    (e) The filing of a reply is discouraged. However, a person who 
filed a request for review may file a reply that:
    (1) Is limited to the issues raised in an answer or motion;
    (2) Does not exceed 20 pages, excluding exhibits, declarations, and 
other attachments, unless the Board orders otherwise upon motion for 
good cause shown; and
    (3) Is filed within:
    (i) Fifteen days after service of the answer or motion under 
paragraph (b) or (d)(1) of this section; or
    (ii) The time set by the Board in its order under paragraph (d)(2) 
of this section.

[52 FR 39530, Oct. 22, 1987, as amended at 75 FR 64670, Oct. 20, 2010]



Sec.  4.1393  Status of decision pending administrative review.

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



Sec.  4.1394  Burden of proof.

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

[67 FR 61512, Oct. 1, 2002]



 Subpart M_Special Procedural Rules Applicable to Appeals of Decisions 
                      Made Under OMB Circular A	76

    Authority: 5 U.S.C. 301.

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



Sec.  4.1600  Purpose and nature of the appeal process.

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



Sec.  4.1601  Basis for appeal.

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



Sec.  4.1602  Who may appeal under this procedure.

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

[[Page 153]]



Sec.  4.1603  Appeal period.

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



Sec.  4.1604  Method of filing an appeal.

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

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



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

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



Sec.  4.1606  Department representation.

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



Sec.  4.1607  Processing the appeal.

    (a) The appeals official shall arrange such conferences with the 
concerned parties as are necessary, including (if requested by the 
appellant) an oral presentation.
    (b) The appeals official may require either party to submit any 
additional documents, oral or written testimony, or other items of 
evidence which he considers necessary for a complete review of the 
agency decision.
    (c) All documentary evidence submitted by one party to the appeal 
action shall be made available to the other party (or parties), except 
that availability of proprietary information may be restricted by the 
party holding the proprietary interest in such information.



Sec.  4.1608  Oral presentations.

    (a) Upon request of the appellant, an opportunity for an oral 
presentation to the appeals official shall be granted. The purpose of an 
oral presentation shall be to permit the appellant to discuss or explain 
factual evidence supporting his allegations, and/or to obtain oral 
explanations of pertinent evidence. The time and place of each oral 
presentation shall be determined by the appeals official, after 
consultation with the appropriate parties.
    (b) The appellant may, but is not required to, be represented by 
legal counsel at an oral presentation.
    (c) The Department Counsel and the bureau/office involved shall be 
invited to attend any oral presentation. The appeals official may 
require the attendance and participation of an official or employee of 
the Department, whether or not requested by the appellant, if, in the 
appeals official's judgment, such official or employee may possess 
knowledge or information pertinent to the agency decision being 
appealed, and if this knowledge or information is unobtainable 
elsewhere.
    (d) An oral presentation shall not constitute a judicial proceeding, 
and no such judicial proceeding or hearing shall be provided for in this 
appeals process. There shall be no requirement for legal briefs, sworn 
statements, interrogation under oath, official transcripts of testimony, 
etc., unless the appeals official determines such are necessary for 
effective disposition of the appeal.



Sec.  4.1609  Multiple appeals.

    If two or more appellants submit appeals of the same agency 
decision, which are based on the same or similar allegations, the 
appeals official may,

[[Page 154]]

at his discretion, consider all such appeals concurrently and issue a 
single written decision resolving all of the several appeals.



Sec.  4.1610  Decision of the appeals official.

    (a) Within 30 calendar days after receipt of an appeal by the Office 
of Hearings and Appeals, the appeals official shall issue a written 
decision, either affirming or denying the appeal. This decision shall be 
final, with no judicial review or further avenue of appeal.
    (b) If the appeals official affirms the appeal, his decision 
regarding further action by the agency shall be binding upon the agency.
    (c) If it proves impracticable to issue a decision within the 
prescribed 30 calendar days, the appeals official may extend this 
period, notifying all concerned parties of the anticipated decision 
date.



PART 5_COMMERCIAL FILMING AND SIMILAR PROJECTS AND STILL PHOTOGRAPHY
ON CERTAIN AREAS UNDER DEPARTMENT JURISDICTION--Table of Contents



Subpart A_Areas Administered by the National Park Service, the Bureau of 
         Land Management, and the U.S. Fish and Wildlife Service

Sec.
5.1 What does this subpart cover?
5.2 When do I need a permit for commercial filming or still photography?
5.3 How do I apply for a permit?
5.4 When is a permit required for news-gathering activities?
5.5 When will an agency deny a permit for commercial filming or still 
          photography?
5.6 What type of permit conditions may the agency impose?
5.7 What are my liability and bonding requirements as a permit holder?
5.8 What expenses will I incur?
5.9 How long will it take to process my request?
5.10 Can I appeal a decision not to issue a permit?
5.11 Information collection.
5.12 How are terms defined in this subpart?

      Subpart B_Areas Administered by the Bureau of Indian Affairs

5.15 When must I ask permission from individual Indians to conduct 
          filming and photography?
5.16 When must I ask permission from Indian groups and communities?
5.17 When must I get a lease or permit?
5.18 What wages must I pay to Indian employees?

    Authority: 5 U.S.C. 301; 16 U.S.C. 1-3, 3a, 668dd-ee, 715i, 460l-6d; 
25 U.S.C. 2; 31 U.S.C. 9701; 43 U.S.C. 1701, 1732-1734, 1740.

    Source: 78 FR 52095, Aug. 22, 2013, unless otherwise noted.



Subpart A_Areas Administered by the National Park Service, the Bureau of 
         Land Management, and the U.S. Fish and Wildlife Service



Sec.  5.1  What does this subpart cover?

    This subpart covers commercial filming and still photography 
activities on lands and waters administered by the National Park 
Service, the Bureau of Land Management, and the U.S. Fish and Wildlife 
Service.



Sec.  5.2  When do I need a permit for commercial filming or still 
photography?

    (a) All commercial filming requires a permit.
    (b) Still photography does not require a permit unless:
    (1) It uses a model, set, or prop as defined inSec. 5.12; or
    (2) The agency determines a permit is necessary because:
    (i) It takes place at a location where or when members of the public 
are not allowed; or
    (ii) The agency would incur costs for providing on-site management 
and oversight to protect agency resources or minimize visitor use 
conflicts.
    (c) Visitors do not require a permit for filming or still 
photography activities unless the filming is commercial filming as 
defined inSec. 5.12 or the still photography activity involves one of 
the criteria listed inSec. 5.2 (b).

[[Page 155]]



Sec.  5.3  How do I apply for a permit?

    For information on application procedures and to obtain a permit 
application, contact the site manager at the location at which you seek 
to conduct commercial filming or still photography activities.



Sec.  5.4  When is a permit required for news-gathering activities?

    (a) Permit requirements. News-gathering activities involving 
filming, videography, or still photography do not require a permit 
unless:
    (1) We determine a permit is necessary to protect natural and 
cultural resources, to avoid visitor use conflicts, to ensure public 
safety or authorize entrance into a closed area; and
    (2) Obtaining a permit will not interfere with the ability to gather 
the news.
    (b) Terms and conditions. All permits issued under this section will 
include only terms and conditions necessary to maintain order, ensure 
the safety of the public and the media, and protect natural and cultural 
resources.
    (c) Exemptions. A permit issued for news-gathering activities is not 
subject to location fees or cost recovery charges.



Sec.  5.5  When will an agency deny a permit for commercial filming
or still photography?

    We will deny a permit authorizing commercial filming or still 
photography if we determine that it is likely that the activity would:
    (a) Cause resource damage;
    (b) Unreasonably disrupt or conflict with the public's use and 
enjoyment of the site;
    (c) Pose health or safety risks to the public;
    (d) Result in unacceptable impacts or impairment to National Park 
Service resources or values;
    (e) Be inappropriate or incompatible with the purpose of the Fish 
and Wildlife Service refuge;
    (f) Cause unnecessary or undue degradation of Bureau of Land 
Management lands; or
    (g) Violate the Wilderness Act (16 U.S.C. 1131-1136) or any other 
applicable Federal, State, or local law or regulation.



Sec.  5.6  What type of permit conditions may the agency impose?

    (a) We may impose permit conditions including, but not limited to, 
conditions intended to:
    (1) Protect the site's values, purposes, and resources, and public 
health and safety; and
    (2) Prevent unreasonable disruption of the public's use and 
enjoyment.
    (b) We may revoke your permit if you violate a permit condition.



Sec.  5.7  What are my liability and bonding requirements as a 
permit holder?

    (a) Liability. In accepting a permit, you agree to be fully liable 
for any damage or injury incurred in connection with the permitted 
activity, and to indemnify and hold harmless the United States of 
America as a result of your actions. We may require you to obtain 
property damage, personal injury, commercial liability or public 
liability insurance in an amount sufficient to protect the United States 
from liability or other claims arising from activities under the permit. 
The insurance policy must name the United States of America as an 
additional insured.
    (b) Bond. You are responsible for all response, repair and 
restoration if your activity causes damage to an area. We may also 
require you to provide a bond or other security sufficient to secure any 
obligations you may have under the permit and applicable laws and 
regulations, including the cost of repair, reclamation, or restoration 
of the area. The amount of the bond or security must be in an amount 
sufficient to provide full payment for the costs of response and 
restoration, reclamation, or rehabilitation of the lands in the event 
that you fail to adequately repair, reclaim, or restore the area as 
directed by the agency. If the amount of the bond or other security is 
inadequate to cover cost of the repair, reclamation, or restoration of 
the damaged lands or resources you will also be responsible for the 
additional amount.



Sec.  5.8  What expenses will I incur?

    You must pay us a location fee and reimburse us for expenses that we 
incur, as required in this section.

[[Page 156]]

    (a) Location fee. (1) For commercial filming and still photography 
permits, we will require a reasonable location fee that provides a fair 
return to the United States.
    (2) The location fee charged is in lieu of any entrance or other 
special use fees. However, the location fee is in addition to any cost 
recovery amount assessed in paragraph (b) of this section and represents 
a fee for the use of Federal lands and facilities and does not include 
any cost recovery.
    (3) We will assess location fees in accordance with a fee schedule, 
which we will publish in the Federal Register and also make available on 
the internet and at agency field offices. The location fee does not 
include any cost recovery.
    (b) Cost recovery. You must reimburse us for actual costs incurred 
in processing your request and administering your permit. We will base 
cost recovery charges upon our direct and indirect expenses including, 
but not limited to, administrative costs for application processing, 
preproduction meetings and other activities, on-site monitoring of 
permitted activities, and any site restoration.



Sec.  5.9  How long will it take to process my request?

    We will process applications for commercial filming and still 
photography permits in a timely manner. Processing times will vary 
depending on the complexity of the proposed activity. A pre-application 
meeting with agency personnel is encouraged and may assist us in 
processing your request for a permit more quickly. For information on 
application procedures contact the appropriate agency field office.



Sec.  5.10  Can I appeal a decision not to issue a permit?

    Yes. If your request for a permit is denied, the site manager 
issuing the denial will inform you of how and where to appeal.



Sec.  5.11  Information collection.

    The information collection requirements contained in this subpart 
have been approved by the Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq., and assigned the following OMB clearance numbers: 
1024-0026 for the National Park Service, 1004-0009 for the Bureau of 
Land Management and 1018-0102 for the Fish and Wildlife Service. This 
information is being collected to provide land managers data necessary 
to issue permits for commercial filming or still photography permits on 
Federal lands. This information will be used to grant administrative 
benefits. The obligation to respond is required in order to obtain a 
benefit. You may send comments on this information collection 
requirement to the Departmental Information Collection Clearance 
Officer, U.S. Department of the Interior, 1849 C Street NW., MS3530, 
Washington, DC 20240.



Sec.  5.12  How are terms defined in this subpart?

    The following definitions apply to this subpart:
    Agency, we, our, or us means the National Park Service, the Bureau 
of Land Management, and the U.S. Fish and Wildlife Service, as 
appropriate.
    Commercial filming means the film, electronic, magnetic, digital, or 
other recording of a moving image by a person, business, or other entity 
for a market audience with the intent of generating income. Examples 
include, but are not limited to, feature film, videography, television 
broadcast, or documentary, or other similar projects. Commercial filming 
activities may include the advertisement of a product or service, or the 
use of actors, models, sets, or props.
    Cost recovery means the money that an agency collects as 
reimbursement for actual costs it incurred to permit a particular 
activity, including but not limited to, accepting and processing a 
permit application and monitoring the permitted commercial filming or 
still photography activity.
    Location fee means a land or facility use fee similar to rent that 
provides a fair return to the United States for the use of Federal lands 
or facilities when used for:
    (1) Commercial filming activities or similar projects; and
    (2) Still photography activities where a permit is required.
    Model means a person or object that serves as the subject for 
commercial

[[Page 157]]

filming or still photography for the purpose of promoting the sale or 
use of a product or service. Models include, but are not limited to, 
individuals, animals, or inanimate objects, such as vehicles, boats, 
articles of clothing, and food and beverage products, placed on agency 
lands so that they may be filmed or photographed to promote the sale or 
use of a product or service. For the purposes of this part, portrait 
subjects such as wedding parties and high school graduates are not 
considered models, if the image will not be used to promote or sell a 
product or service.
    News means information that is about current events or that would be 
of current interest to the public, gathered by news-media entities for 
dissemination to the public. Examples of news-media entities include, 
but are not limited to, television or radio stations broadcasting to the 
general public and publishers of periodicals (but only if such entities 
qualify as disseminators of ``news'') who make their products available 
for purchase by or subscription by or free distribution to the general 
public.
    (1) As methods of news delivery evolve (for example, the adoption of 
the electronic dissemination of newspapers through telecommunications 
services), these alternative media will be considered to be news-media 
entities.
    (2) A freelance journalist is regarded as working for a news-media 
entity if the journalist can demonstrate a solid basis for expecting 
publication through that entity, even if the journalist is not actually 
employed by the entity. A contract would present a solid basis for such 
an expectation; we may also consider the past publication record of the 
requester in making such a determination.
    News-gathering activities means filming, videography, and still 
photography activities carried out by a representative of the news 
media.
    Permit means a written authorization to engage in uses or activities 
that are otherwise prohibited or restricted.
    Representative of the news media means any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience.
    Resource damage means harm to the land or its natural or cultural 
resources that cannot reasonably be mitigated or reclaimed.
    Sets and props means items constructed or placed on agency lands to 
facilitate commercial filming or still photography including, but not 
limited to, backdrops, generators, microphones, stages, lighting banks, 
camera tracks, vehicles specifically designed to accommodate camera or 
recording equipment, rope and pulley systems, and rigging for climbers 
and structures. Sets and props also include trained animals and 
inanimate objects, such as camping equipment, campfires, wagons, and so 
forth, when used to stage a specific scene. The use of a camera on a 
tripod, without the use of any other equipment, is not considered a 
prop.
    Still photography means the capturing of a still image on film or in 
a digital format.
    Videography means the process of capturing moving images on 
electronic media, e.g., video tape, hard disk or solid state storage.



      Subpart B_Areas Administered by the Bureau of Indian Affairs



Sec.  5.15  When must I ask permission from individual Indians to
conduct filming and photography?

    Anyone who desires to go on to the land of an Indian to make 
pictures, television productions, or soundtracks is expected to observe 
the ordinary courtesy of first obtaining permission from the Indian and 
of observing any conditions attached to this permission.



Sec.  5.16  When must I ask permission from Indian groups and communities?

    Anyone who desires to take pictures, including motion pictures, or 
to make a television production or a soundtrack of Indian communities, 
churches, kivas, plazas, or ceremonies performed in these places, must:
    (a) Obtain prior permission from the proper officials of the place 
or community; and

[[Page 158]]

    (b) Scrupulously observe any limitations imposed by the officials 
who grant the permission.



Sec.  5.17  When must I get a lease or permit?

    If filming pictures or making a television production or a 
soundtrack requires the actual use of Indian lands, you must obtain a 
lease or permit under 25 CFR part 162.



Sec.  5.18  What wages must I pay to Indian employees?

    Any motion picture or television producer who obtains a lease or 
permit for the use of Indian land under 25 CFR part 162 must pay a fair 
and reasonable wage to any Indian employed in connection with the 
production.



PART 6_PATENT REGULATIONS--Table of Contents



                    Subpart A_Inventions by Employees

Sec.
6.1 Definitions.
6.2 Report of invention.
6.3 Action by supervisory officials.
6.4 Action by Solicitor.
6.5 Rights in inventions.
6.6 Appeals by employees.
6.7 Domestic patent protection.
6.8 Foreign filing.
6.9 Publication and public use of invention before patent application is 
          filed.
6.10 Publicity concerning the invention after patent application is 
          filed.
6.11 Condition of employment.

                           Subpart B_Licenses

6.51 Purpose.
6.52 Patents.
6.53 Unpatented inventions.
6.54 Use or manufacture by or for the Government.
6.55 Terms of licenses or sublicenses.
6.56 Issuance of licenses.
6.57 Evaluation Committee.

    Authority: 5 U.S.C. 301; sec. 2, Reorganization Plan No. 3 of 1950, 
15 FR 3174; E.O. 10096, 15 FR 389; and E.O. 10930, 26 FR 2583.

    Source: 29 FR 260, Jan. 10, 1964; 29 FR 6498, May 19, 1964, unless 
otherwise noted.



                    Subpart A_Inventions by Employees



Sec.  6.1  Definitions.

    As used in this subpart:
    (a) The term Department means the Department of the Interior.
    (b) The term Secretary means the Secretary of the Interior.
    (c) The term Solicitor means the Solicitor of the Department of the 
Interior, or anyone authorized to act for him.
    (d) The term Commissioner means the Commissioner of Patents, or any 
Assistant Commissioner who may act for the Commissioner of Patents.
    (e) The term invention means any new and useful art, process, 
method, machine, manufacture, or composition of matter, or any new and 
useful improvement thereof, or any new variety of plant, or any new, 
original and ornamental design for an article of manufacture, which is 
or may be patentable under the laws of the United States.
    (f) The term employee as used in this part includes a part time 
consultant, a part time employee or a special employee (as defined in 18 
U.S.C. 202) of the Department insofar as inventions made during periods 
of official duty are concerned, except when special circumstances in a 
specific case require an exemption in order to meet the needs of the 
Department, each such exemption to be subject to the approval of the 
Commissioner.
    (g) The term governmental purpose means the right of the Government 
of the United States (including any agency thereof, state, or domestic 
municipal government) to practice and have practiced (made or have made, 
used or have used, sold or have sold) throughout the world by or on 
behalf of the Government of the United States.
    (h) The making of the invention means the conception or first actual 
reduction to practice of such invention.



Sec.  6.2  Report of invention.

    (a) Every invention made by an employee of the Department shall be 
reported by such employee through his supervisor and the head of the 
bureau or office to the Solicitor, unless the invention obviously is 
unpatentable. If the invention is the result of group work, the report 
shall be made by the supervisor and shall be signed by all employees 
participating in the making of the invention. The original and two 
copies of the invention report shall be

[[Page 159]]

furnished to the Solicitor. The Solicitor may prescribe the form of the 
report.
    (b) The report shall be made as promptly as possible, taking into 
consideration such factors as possible publication or public use, 
reduction to practice, and the necessity for protecting any rights of 
the Government in the invention. Although it is not necessary to 
withhold the report until the process or device is completely reduced to 
practice, reduction to practice assists in the preparation of a patent 
application and, if diligently pursued, protects the interests of the 
Government and of the inventor. If an invention is reduced to practice 
after the invention report is filed, the Solicitor must be notified 
forthwith.
    (c) For the protection of the rights of the Government and of the 
inventor, invention reports and memoranda or correspondence concerning 
them are to be considered as confidential documents.
    (d) An invention report shall include the following:
    (1) A brief but pertinently descriptive title of the invention;
    (2) The full name, residence, office address, bureau or office and 
division, position or title, and official working place of the inventor 
or inventors;
    (3) A statement of the evidence that is available as to the making 
of the invention, including information relative to conception, 
disclosures to others, and reduction to practice. Examples of such 
information are references to signed, witnessed and dated laboratory 
notebooks, or other authenticated records pertaining to the conception 
of the invention, operational data sheets, analysis and operation 
evaluation reports pertaining to a reduction to practice, and visitor 
log books, letters and other documents pertaining to disclosures to 
others. These need not be submitted with the report, only the 
identifying data is required, e.g., volume and page number in a 
laboratory notebook;
    (4) Information concerning any past or prospective publication, oral 
presentation or public use of the invention;
    (5) The problem which led to the making of the invention;
    (6) The objects, advantages, and uses of the invention;
    (7) A detailed description of the invention;
    (8) Experimental data;
    (9) The prior art known to the inventor(s) and the manner in which 
the invention distinguishes thereover;
    (10) A statement that the employee:
    (i) Is willing to and does hereby assign to the Government:
    (a) The entire rights (foreign and domestic) in the invention;
    (b) The domestic rights only, but grants to the Government an option 
to file for patent protection in any foreign country, said option to 
expire as to any country when it is decided not to file thereon in the 
United States, or within six months after such filing;
    (ii) Requests, pursuant toSec. 6.2(e), a determination of the 
respective rights of the Government and of the inventor.
    (e) If the inventor believes that he is not required by the 
regulations in this subpart to assign to the Government the entire 
domestic right, title, and interest in and to the invention, and if he 
is unwilling to make such an assignment to the Government, he shall, in 
his invention report, request that the Solicitor determine the 
respective rights of the Government and of the inventor in the 
invention, and he shall include in his invention report information on 
the following points, in addition to the data called for in paragraph 
(d) of this section:
    (1) The circumstances under which the invention was made (conceived, 
actually reduced to practice or constructed and tested);
    (2) The employee's official duties, as given on his job sheet or 
otherwise assigned, at the time of the making of the invention;
    (3) The extent to which the invention was made during the inventor's 
official working hours, the extent use was made of government 
facilities, equipment, funds, material or information, and the time or 
services of other government employees on official duty;
    (4) Whether the employee wishes a patent application to be 
prosecuted under the Act of March 3, 1883, as amended (35 U.S.C. 266), 
if it should be determined that he is not required to assign all 
domestic rights to the invention to the Government; and

[[Page 160]]

    (5) Whether the employee would be willing, upon request, to 
voluntarily assign foreign rights in the invention to the Government if 
it should be determined that an assignment of the domestic rights to the 
Government is not required.



Sec.  6.3  Action by supervisory officials.

    (a) The preparation of an invention report and other official 
correspondence on patent matters is one of the regular duties of an 
employee who has made an invention and the supervisor of such employee 
shall see that he is allowed sufficient time from his other duties to 
prepare such documents. The supervisor shall ascertain that the 
invention report and other papers are prepared in conformity with the 
regulations of this part; and, before transmitting the invention report 
to the head of the bureau or office, shall check its accuracy and 
completeness, especially with respect to the circumstances in which the 
invention was developed, and shall add whatever comments he may deem to 
be necessary or desirable. The supervisor shall add to the file whatever 
information he may have concerning the governmental and commercial value 
of the invention.
    (b) The head of the bureau or office shall make certain that the 
invention report is as complete as circumstances permit. He shall report 
whatever information may be available in his agency concerning the 
governmental and commercial value of the invention, and the foreign 
countries in which it is likely that the invention would be most useful 
and would have the greatest commercial value.
    (c) If the employee inventor requests that the Solicitor determine 
his rights in the invention, the head of the bureau or office shall 
state his conclusions with respect to such rights.
    (d) The head of the bureau or office shall indicate whether, in his 
judgment, the invention is liable to be used in the public interest, and 
he shall set out the facts supporting his conclusion whenever the 
employee's invention report does not contain sufficient information on 
this point.



Sec.  6.4  Action by Solicitor.

    (a) If an employee inventor requests pursuant toSec. 6.2(e), that 
such determination be made, the Solicitor shall determine the respective 
rights of the employee and of the Government in and to the invention. 
His determination shall be subject to review by the Commissioner in 
proper cases under Executive Orders 10096 and 10930 and the rules and 
regulations issued by the Commissioner with the approval of the 
President.
    (b) If the Government is entitled to obtain the entire domestic 
right, title and interest in and to an invention made by an employee of 
the Department, the Solicitor, subject to review by the Commissioner in 
proper cases, may take such action respecting the invention as he deems 
necessary or advisable to protect the interests of the United States.



Sec.  6.5  Rights in inventions.

    (a) The rules prescribed in this section shall be applied in 
determining the respective rights of the Government and of an employee 
of the Department in and to any invention made by the employee.
    (b)(1) Except as indicated in the succeeding paragraphs, (b) (1) 
through (4), of this section, the Government shall obtain the entire 
domestic right, title, and interest in and to any invention made by an 
employee of the Department
    (i) During working hours, or
    (ii) With a contribution by the Government of facilities, equipment, 
materials, funds, or information, or of time or services of other 
government employees on official duty, or
    (iii) Which bears a direct relation to or is made in consequence of 
the official duties of the inventor.
    (2) In any case where the contribution of the Government, as 
measured by any one or more of the criteria set forth in paragraph 
(b)(1) of this section, to the invention is insufficient equitably to 
justify a requirement of assignment to the Government of the entire 
domestic right, title, and interest in and to such invention, or in any 
case where the Government has insufficient interest in an invention to 
obtain the

[[Page 161]]

entire domestic right, title, and interest therein (although the 
Government could obtain same under paragraph (b)(1) of this section), 
the Solicitor, subject to the approval of the Commissioner, shall leave 
title to such invention in the employee, subject, however, to the 
reservation to the Government of a nonexclusive, irrevocable, royalty-
free license in the invention with power to grant sublicenses for all 
governmental purposes, such reservation, in the terms thereof, to 
appear, where practicable, in any patent, domestic or foreign, which may 
issue on such invention.
    (3) In applying the provisions of paragraphs (b) (1) and (2) of this 
section to the facts and circumstances relating to the making of any 
particular invention, it shall be presumed that any invention made by an 
employee who is employed or assigned (i) to invent or improve or perfect 
any art, machine, manufacture, or composition of matter, or (ii) to 
conduct or perform research, development work, or both, or (iii) to 
supervise, direct, coordinate, or review Government financed or 
conducted research, development work, or both, or (iv) to act in a 
liaison capacity among governmental or nongovernmental agencies or 
individuals engaged in such work, falls within the provisions of 
paragraph (b)(1) of this section, and it shall be presumed that any 
invention made by any other employee falls within the provisions of 
paragraph (b)(2) of this section. Either presumption may be rebutted by 
a showing of the facts and circumstances in the case and shall not 
preclude a determination that these facts and circumstances justify 
leaving the entire right, title and interest in and to the invention in 
the government employee, subject to law.
    (4) In any case wherein the Government neither (i) obtains the 
entire domestic right, title, and interest in and to an invention 
pursuant to the provisions of paragraph (b)(1) of this section, nor (ii) 
reserves a nonexclusive, irrevocable, royalty-free license in the 
invention, with power to grant sublicenses for all governmental 
purposes, pursuant to the provisions of paragraph (b)(2) of this 
section, the Solicitor, subject to the approval of the Commissioner, 
shall leave the entire right, title, and interest in and to the 
invention in the employee, subject to law.
    (c) In the event that the Solicitor determines, pursuant to 
paragraph (b) (2) or (4) of this section, that title to an invention 
will be left with an employee, the Solicitor shall notify the employee 
of this determination and promptly prepare, and preserve in appropriate 
files, accessible to the Commissioner, a written signed, and dated 
statement concerning the invention including the following:
    (1) A description of the invention in sufficient detail to identify 
the invention and show the relationship to the employee's duties and 
work assignment;
    (2) The name of the employee and his employment status, including a 
detailed statement of his official duties and responsibilities at the 
time the invention was made; and
    (3) A statement of the Solicitor's determination and reasons 
therefor. The Solicitor shall, subject to considerations of national 
security, or public health, safety, or welfare, submit to the 
Commissioner a copy of this written statement. This submittal in a case 
falling within the provisions of paragraph (b) (2) of this section shall 
be made after the expiration of the period prescribed inSec. 6.6 for 
the taking of an appeal, or it may be made prior to the expiration of 
such period if the employees acquiesces in the Solicitor's 
determination. The Commissioner thereupon shall review the determination 
of the Solicitor and the Commissioner's decision respecting the matter 
shall be final, subject to the right of the employee or the Solicitor to 
submit to the Commissioner within 30 days (or such longer period as the 
Commissioner may, for good cause, shown in writing, fix in any case) 
after receiving notice of such decision, a petition for the 
reconsideration of the decision. A copy of such petition must also be 
filed by the inventor with the Solicitor within the prescribed period.



Sec.  6.6  Appeals by employees.

    (a) Any employee who is aggrieved by a determination of the 
Solicitor pursuant toSec. 6.5(b) (1) or (2) may obtain a review of the 
determination by filing,

[[Page 162]]

within 30 days (or such longer period as the Commissioner may for good 
cause shown in writing, fix in any case) after receiving notice of such 
determination, two copies of an appeal with the Commissioner. The 
Commissioner then shall forward one copy of the appeal to the Solicitor.
    (b) On receipt of a copy of an appeal filed pursuant to paragraph 
(a) of this section, the Solicitor shall, subject to considerations of 
national security, or public health, safety, or welfare, promptly 
furnish both the Commissioner and the inventor with a copy of a report 
containing the following information about the invention involved in the 
appeal:
    (1) A copy of a statement containing the information specified in 
Sec.  6.5(c), and
    (2) A detailed statement of the points of dispute or controversy, 
together with copies of any statements or written arguments that may 
have been filed, and of any other relevant evidence that the Solicitor 
considered in making his determination of Government interest. Within 25 
days (or such longer period as the Commissioner may, for good cause 
shown, fix in any case) after the transmission of a copy of the 
Solicitor's report to the employee, the employee may file a reply 
thereto with the Commissioner and file one copy thereof with the 
Solicitor.
    (c) After the time for the employee's reply to the Solicitor's 
report has expired and if the employee has so requested in his appeal, a 
date will be set for the hearing of oral arguments by the employee (or 
by an attorney whom he designates by written power of attorney filed 
before, or at the hearing) and the Solicitor. Unless it shall be 
otherwise ordered before the hearing begins, oral arguments will be 
limited to thirty minutes for each side. The employee need not retain an 
attorney or request an oral hearing to secure full consideration of the 
facts and his arguments. He may expedite such consideration by notifying 
the Commissioner when he does not intend to file a reply to the 
Solicitor's report.
    (d) After a hearing on the appeal, if a hearing was requested, or 
after expiration of the period for the inventor's reply to the 
Solicitor's report, if no hearing is set, the Commissioner shall issue a 
decision on the matter, which decision shall be final after the period 
for asking reconsideration expires or on the date that a decision on a 
petition for reconsideration is finally disposed of. Any request for 
reconsideration or modification of the decision must be filed within 30 
days from the date of the original decision (or within such an extension 
thereof as may be set by the Commissioner before the original period 
expires). The Com- missioner's decision shall be made after 
consideration of the statements of fact in the employee's appeal, the 
Solicitor's report, and the employee's reply, but the Commissioner, at 
his discretion and with due respect to the rights and convenience of the 
inventor and the Solicitor, may call for further statements on specific 
questions of fact or may request additional evidence in the form of 
affidavits or depositions on specific facts in dispute.



Sec.  6.7  Domestic patent protection.

    (a) The Solicitor, upon determining that an invention coming within 
the scope ofSec. 6.5(b) (1) or (2) has been made, shall thereupon 
determine whether patent protection will be sought in the United States 
by the Department for such invention. A controversy over the respective 
rights of the Government and of the inventor in any case shall not delay 
the taking of the actions provided for in this section. In cases coming 
within the scope ofSec. 6.5(b)(2), action by the Department looking 
toward such patent protection shall be contingent upon the consent of 
the inventor.
    (b) Where there is a dispute as to whether paragraph (b) (1) or (2) 
ofSec. 6.5 applies in determining the respective rights of the 
Government and of an employee in and to any invention, the Solicitor 
will determine whether patent protection will be sought in the United 
States pending the Commissioner's decision on the dispute, and, if he 
determines that an application for patent should be filed, he will take 
such rights as are specified inSec. 6.5(b)(2), but this shall be 
without prejudice to acquiring the rights specified inSec. 6.5(b)(1) 
should the Commissioner so decide.
    (c) Where the Solicitor has determined to leave title to an 
invention with an employee underSec. 6.5(b)(2), the

[[Page 163]]

Solicitor will, upon the filing of an application for patent and pending 
review of the determination by the Commissioner, take the rights 
specified in that paragraph, without prejudice to the subsequent 
acquisition by the Government of the rights specified inSec. 6.5(b)(1) 
should the Commissioner so decide.
    (d) In the event that the Solicitor determines that an application 
for patent will not be filed on an invention made under the 
circumstances specified inSec. 6.5(b)(1) giving the United States the 
right to title thereto, the Solicitor shall subject to considerations of 
national security, or public health, safety, or welfare, report to the 
Commissioner promptly upon making such determination, the following 
information concerning the invention:
    (1) Description of the invention in sufficient detail to permit a 
satisfactory review;
    (2) Name of the inventor and his employment status;
    (3) Statement of the Solicitor's determination and reasons therefor.

The Commissioner, may, if he determines that the interest of the 
Government so requires and subject to considerations of national 
security, or public health safety, or welfare, bring the invention to 
the attention of any Government agency to whose activities the invention 
may be pertinent, or cause the invention to be fully disclosed by 
publication thereof.



Sec.  6.8  Foreign filing.

    (a) By Government. (1) In every case where the employee has 
indicated pursuant toSec. 6.2(d)(10), his willingness to assign the 
domestic patent rights in the invention to the Government, or where it 
has been determined pursuant toSec. 6.5 that the Government shall 
obtain the entire domestic patent rights, the Government shall reserve 
an option to acquire assignment of all foreign rights including the 
rights to file foreign patent applications or otherwise to seek 
protection abroad on the invention.
    (2) The Government's option shall lapse as regards any foreign 
country:
    (i) When the Solicitor determines after consultation with the agency 
most directly concerned, not to cause an application to be filed in said 
foreign country or otherwise to seek protection of the invention, as by 
publication;
    (ii) When the Solicitor fails to take action to seek protection of 
the invention in said foreign country (a) within six months of the 
filing of an application for a United States patent on the invention, or 
(b) within six months of declassification of an invention previously 
under a security classification, whichever is later.
    (b) By Employee. (1) No Department employee shall file or cause to 
be filed an application for patent in any foreign country on any 
invention in which the Government has acquired the entire (foreign and 
domestic) patent rights, or holds an unexpired option to acquire the 
patent rights in said foreign country, or take any steps which would 
preclude the filing of an application by or on behalf of the Government.
    (2) An employee may file in any foreign country where the Government 
has not exercised its option acquired pursuant toSec. 6.2(d)(10), to 
do so, or determines not to do so.
    (3) The determination or failure to act as set forth inSec. 
6.8(a)(2) shall constitute a decision by the Government to leave the 
foreign patent rights to the invention in the employee, subject to a 
nonexclusive, irrevocable, royalty-free license to the Government in any 
patent which may issue thereon in any foreign country, including the 
power to issue sublicenses for governmental purposes or in furtherance 
of the foreign policies of the Government or both.



Sec.  6.9  Publication and public use of invention before patent 
application is filed.

    (a) Publication or public use of an invention constitutes a 
statutory bar to the granting of a patent for the invention unless a 
patent application is filed within one year of the date of such 
publication or public use. In order to preserve rights in unpatented 
inventions, it shall be the duty of the inventor, or of his supervisor 
if the inventor is not available to make such report, to report 
forthwith to the Solicitor any publication or use (other than 
experimental) of an invention, irrespective of

[[Page 164]]

whether an invention report has previously been filed. If an invention 
report has not been filed, such a report, including information 
concerning the public use or publication, shall be filed at once. If an 
invention is disclosed to any person who is not employed by the 
Department or working in cooperation with the Department upon that 
invention, a record shall be kept of the date and extent of the 
disclosure, the name and address of the person to whom the disclosure 
was made, and the purpose of the disclosure.
    (b) No description, specification, plan, or drawing of any 
unpatented invention upon which a patent application is likely to be 
filed shall be published, nor shall any written description, 
specification, plan, or drawing of such invention be furnished to anyone 
other than an employee of the Department or a person working in 
cooperation with the Department upon that invention, unless the 
Solicitor is of the opinion that the interests of the Government will 
not be prejudiced by such action. If any publication disclosing the 
invention, not previously approved by the Solicitor, comes to the 
attention of the inventor or his supervisor, it shall be the duty of 
such person to report such publication to the Solicitor.



Sec.  6.10  Publicity concerning the invention after patent application
is filed.

    In order that the public may obtain the greatest possible benefit 
from inventions in which the Secretary has transferable interests, 
inventions assigned to the Secretary upon which patent applications have 
been filed shall be publicized as widely as possible, within limitations 
of authority, by the Department, by the originating agency, by the 
division in which the inventor is employed, and by the inventor himself 
in his contacts with industries in which the invention is or may be 
useful. Regular organs of publication shall be utilized to the greatest 
extent possible. In addition, it shall be the duty of the Solicitor, 
upon being advised of the issuance of any patent assigned to the 
Secretary, to take steps towards listing the patent as available for 
licensing, where feasible.



Sec.  6.11  Condition of employment.

    (a) The regulations in this subpart shall be a condition of 
employment of all employees of the Department and shall be effective as 
to all their inventions. These regulations shall be effective without 
regard to any existing or future contracts to the contrary entered into 
by any employee of the Department with any person other than the 
Government.
    (b) If a patent application is filed upon an invention which has 
been made by an employee of the Department under circumstances that 
entitle the Government to the entire domestic right, title and interest 
in and to the invention, but which has not been reported to the 
Solicitor pursuant to the regulations in this subpart, title to such 
invention shall immediately vest in the Government, as represented by 
the Secretary, and the contract of employment shall be considered an 
assignment of such rights.



                           Subpart B_Licenses



Sec.  6.51  Purpose.

    It is the purpose of the regulations in this subpart to secure for 
the people of the United States the full benefits of Government research 
and investigation in the Department of the Interior (a) by providing a 
simple procedure under which the public may obtain licenses to use 
patents and inventions in which the Secretary of the Interior has 
transferable interests and which are available for licensing; and (b) by 
providing adequate protection for the inventions until such time as they 
may be made available for licensing without undue risk of losing patent 
protection to which the public is entitled.

[31 FR 10796, Aug. 13, 1966]



Sec.  6.52  Patents.

    Patents in which the Secretary of the interior has transferable 
interests, and under which he may issue licenses or sublicenses, are 
classified as follows:
    (a) Class A. Patents, other than those referred to in paragraph (c) 
of this section, which are owned by the United States, as represented by 
the Secretary of the Interior, free from restrictions

[[Page 165]]

on licensing except such as are inherent in Government ownership;
    (b) Class B. Patents in which the interest of the United States, as 
represented by the Secretary of the Interior, is less than full 
ownership, or is subject to some express restriction upon licensing or 
sublicensing (including patents upon which the Secretary of the Interior 
holds a license, patents assigned to the Secretary of the Interior as 
trustee for the people of the United States, and patents assigned to the 
Secretary of the Interior upon such terms as to effect a dedication to 
the public);
    (c) Class C. Patents and patent rights acquired by the Secretary of 
the Interior pursuant to the Act of April 5, 1944 (58 Stat. 190; 30 
U.S.C. 321-325), and any amendments thereof.

[29 FR 260, Jan. 10, 1964, as amended at 31 FR 10796, Aug. 13, 1966]



Sec.  6.53  Unpatented inventions.

    The Secretary of the Interior may also have transferable interests 
in inventions which are not yet patented. In order to protect the patent 
rights of the Department, for the eventual benefit of the public, a 
license may be granted with respect to such an invention only if (a) a 
patent application has been filed thereon; (b) the invention has been 
assigned to the United States, as represented by the Secretary of the 
Interior, and the assignment has been recorded in the Patent Office; and 
(c) the Solicitor of the Department is of the opinion that the issuance 
of a license will not prejudice the interests of the Government in the 
invention. Such licenses shall be upon the same terms as licenses 
relating to patents of the same class, as described inSec. 6.52.



Sec.  6.54  Use or manufacture by or for the Government.

    A license is not required with respect to the manufacture or use of 
any invention assigned or required to be assigned without restrictions 
or qualifications to the United States when such manufacture or use is 
by or for the Government for governmental purposes. A license or 
sublicense may be required, however, for such manufacture or use in the 
case of Class B patents or patent rights when the terms under which the 
Secretary of the Interior acquires interests therein necessitate the 
issuance of a license or sublicense in such circumstances.

[31 FR 10796, Aug. 13, 1966]



Sec.  6.55  Terms of licenses or sublicenses.

    (a) No license or sublicense shall be granted under any patent in 
which the Secretary of the Interior has transferable interests, except 
as set forth under these regulations, the terms and conditions of which 
shall be expressly stated in such license and sublicense. The terms of 
licenses and sublicenses issued under this subpart shall not be 
unreasonably restrictive.
    (b) To the extent that they do not conflict with any restrictions to 
which the licensing or sublicensing of Class B patents and unpatented 
inventions may be subject, all licenses and sublicenses relating to 
Class A and Class B patents and unpatented inventions shall be subject 
to the following terms and provisions, and to such other terms and 
conditions as the Solicitor may prescribe:
    (1) The acceptance of a license or sublicense shall not be construed 
as a waiver of the right to contest the validity of the patent. A 
license or sublicense shall be revocable only upon a finding by the 
Solicitor of the Department that the terms of the license or sublicense 
have been violated and that the revocation of the license or sublicense 
is in the public interest. Such finding shall be made only after 
reasonable notice and an opportunity to be heard.
    (2) Licenses and sublicenses shall be nontransferable. Upon a 
satisfactory showing that the Government or public will be benefited 
thereby, they may be granted to properly qualified applicants royalty-
free. If no such showing is made, they shall be granted only upon a 
reasonable royalty or other consideration, the amount or character of 
which is to be determined by the Solicitor. A cross-licensing agreement 
may be considered adequate consideration.
    (3) Licensees and sublicensees may be required to submit annual or 
more frequent technical or statistical reports concerning practical 
experience acquired through the exercise of the license or sublicense, 
the extent of the

[[Page 166]]

production under the license or sublicense, and other related subjects.
    (4) A licensee or sublicensee manufacturing a patented article 
pursuant to a license or sublicense shall give notice to the public that 
the article is patented by affixing thereon the word ``patent'', 
together with the number of the patent, or when, from the character of 
the article, this cannot be done, by fixing to it, or to the package in 
which it is enclosed, a label containing such notice.
    (c) Licenses and sublicenses relating to Class C patents and patent 
rights shall be granted upon such terms and conditions as may be 
prescribed pursuant to sections 3 and 5 of the Act of April 5 1944, and 
any amendments thereof.

[29 FR 260, Jan. 10, 1964, as amended at 31 FR 10796, Aug. 13, 1966]



Sec.  6.56  Issuance of licenses.

    (a) Any person desiring a license relating to an invention upon 
which the Secretary of the Interior holds a patent or patent rights may 
file with the Solicitor of the Department of the Interior an application 
for a license, stating:
    (1) The name, address, and citizenship of the applicant;
    (2) The nature of his business;
    (3) The patent or invention upon which he desires a license;
    (4) The purpose for which he desires a license;
    (5) His experience in the field of the desired license;
    (6) Any patents, licenses, or other patent rights which he may have 
in the field of the desired license; and
    (7) The benefits, if any, which the applicant expects the public to 
derive from his proposed use of the invention
    (b) It shall be the duty of the Solicitor, after consultation with 
the bureau most directly interested in the patent or invention involved 
in an application for a license, and with the Evaluation Committee if 
royalties are to be charged, to determine whether the license shall be 
granted. If he determines that a license is to be granted, he shall 
execute on behalf of the Secretary, an appropriate license.



Sec.  6.57  Evaluation Committee.

    At the request of the Solicitor, an Evaluation Committee will be 
appointed by the Secretary to recommend royalty rates with respect to 
any patents or inventions for which royalties may be charged.



PART 7_PROTECTION OF ARCHAEOLOGICAL RESOURCES--Table of Contents



                      Subpart A_Uniform Regulations

Sec.
7.1 Purpose.
7.2 Authority.
7.3 Definitions.
7.4 Prohibited acts and criminal penalties.
7.5 Permit requirements and exceptions.
7.6 Application for permits and information collection.
7.7 Notification to Indian tribes of possible harm to, or destruction 
          of, sites on public lands having religious or cultural 
          importance.
7.8 Issuance of permits.
7.9 Terms and conditions of permits.
7.10 Suspension and revocation of permits.
7.11 Appeals relating to permits.
7.12 Relationship to section 106 of the National Historic Preservation 
          Act.
7.13 Custody of archaeological resources.
7.14 Determination of archaeological or commercial value and cost of 
          restoration and repair.
7.15 Assessment of civil penalties.
7.16 Civil penalty amounts.
7.17 Other penalties and rewards.
7.18 Confidentiality of archaeological resource information.
7.19 Report.
7.20 Public awareness programs.
7.21 Surveys and schedules.

      Subpart B_Department of the Interior Supplemental Regulations

7.31 Scope and authority.
7.32 Supplemental definitions.
7.33 Determination of loss or absence of archaeological interest.
7.34 Procedural information for securing permits.
7.35 Permitting procedures for Indian lands.
7.36 Permit reviews and disputes.
7.37 Civil penalty hearings procedures.

    Authority: Pub. L. 96-95, 93 Stat. 721, as amended; 102 Stat. 2983 
(16 U.S.C. 470aa-mm) (Sec. 10(a). Related authority: Pub. L. 59-209, 34 
Stat. 225 (16 U.S.C. 432,433); Pub. L. 86-523; 74 Stat. 220, 221 (16 
U.S.C. 469), as amended; 88 Stat. 174 (1974); Pub. L. 89-665, 80 Stat. 
915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204 (1970), 87 Stat. 139 
(1973), 90 Stat. 1320 (1976), 92 Stat.

[[Page 167]]

3467 (1978), 94 Stat. 2987 (1980); Pub. L. 95-341, 92 Stat. 469 (42 
U.S.C. 1996).



                      Subpart A_Uniform Regulations

    Source: 49 FR 1027, Jan. 6, 1984, unless otherwise noted.



Sec.  7.1  Purpose.

    (a) The regulations in this part implement provisions of the 
Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 
470aa-mm) by establishing the uniform definitions, standards, and 
procedures to be followed by all Federal land managers in providing 
protection for archaeological resources, located on public lands and 
Indian lands of the United States. These regulations enable Federal land 
managers to protect archaeological resources, taking into consideration 
provisions of the American Indian Religious Freedom Act (92 Stat. 469; 
42 U.S.C. 1996), through permits authorizing excavation and/or removal 
of archaeological resources, through civil penalties for unauthorized 
excavation and/or removal, through provisions for the preservation of 
archaeological resource collections and data, and through provisions for 
ensuring confidentiality of information about archaeological resources 
when disclosure would threaten the archaeological resources.
    (b) The regulations in this part do not impose any new restrictions 
on activities permitted under other laws, authorities, and regulations 
relating to mining, mineral leasing, reclamation, and other multiple 
uses of the public lands.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]



Sec.  7.2  Authority.

    (a) The regulations in this part are promulgated pursuant to section 
10(a) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ii), which requires that the Secretaries of the Interior, Agriculture 
and Defense and the Chairman of the Board of the Tennessee Valley 
Authority jointly develop uniform rules and regulations for carrying out 
the purposes of the Act.
    (b) In addition to the regulations in this part, section 10(b) of 
the Act (16 U.S.C. 470ii) provides that each Federal land manager shall 
promulgate such rules and regulations, consistent with the uniform rules 
and regulations in this part, as may be necessary for carrying out the 
purposes of the Act.



Sec.  7.3  Definitions.

    As used for purposes of this part:
    (a) Archaeological resource means any material remains of human life 
or activities which are at least 100 years of age, and which are of 
archaeological interest.
    (1) Of archaeological interest means capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics through the application of scientific or 
scholarly techniques such as controlled observation, contextual 
measurement, controlled collection, analysis, interpretation and 
explanation.
    (2) Material remains means physical evidence of human habitation, 
occupation, use, or activity, including the site, location, or context 
in which such evidence is situated.
    (3) The following classes of material remains (and illustrative 
examples), if they are at least 100 years of age, are of archaeological 
interest and shall be considered archaeological resources unless 
determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this 
section:
    (i) Surface or subsurface structures, shelters, facilities, or 
features (including, but not limited to, domestic structures, storage 
structures, cooking structures, ceremonial structures, artificial 
mounds, earthworks, fortifications, canals, reservoirs, horticultural/
agricultural gardens or fields, bedrock mortars or grinding surfaces, 
rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits, 
burial pits or graves, hearths, kilns, post molds, wall trenches, 
middens);
    (ii) Surface or subsurface artifact concentrations or scatters;
    (iii) Whole or fragmentary tools, implements, containers, weapons 
and weapon projectiles, clothing, and ornaments (including, but not 
limited to, pottery and other ceramics, cordage, basketry and other 
weaving, bottles and other glassware, bone, ivory, shell,

[[Page 168]]

metal, wood, hide, feathers, pigments, and flaked, ground, or pecked 
stone);
    (iv) By-products, waste products, or debris resulting from 
manufacture or use of human-made or natural materials;
    (v) Organic waste (including, but not limited to, vegetal and animal 
remains, coprolites);
    (vi) Human remains (including, but not limited to, bone, teeth, 
mummified flesh, burials, cremations);
    (vii) Rock carvings, rock paintings, intaglios and other works of 
artistic or symbolic representation;
    (viii) Rockshelters and caves or portions thereof containing any of 
the above material remains;
    (ix) All portions of shipwrecks (including, but not limited to, 
armaments, apparel, tackle, cargo);
    (x) Any portion or piece of any of the foregoing.
    (4) The following material remains shall not be considered of 
archaeological interest, and shall not be considered to be 
archaeological resources for purposes of the Act and this part, unless 
found in a direct physical relationship with archaeological resources as 
defined in this section:
    (i) Paleontological remains;
    (ii) Coins, bullets, and unworked minerals and rocks.
    (5) The Federal land manager may determine that certain material 
remains, in specified areas under the Federal land manager's 
jurisdiction, and under specified circumstances, are not or are no 
longer of archaeological interest and are not to be considered 
archaeological resources under this part. Any determination made 
pursuant to this subparagraph shall be documented. Such determination 
shall in no way affect the Federal land manager's obligations under 
other applicable laws or regulations.
    (6) For the disposition following lawful removal or excavations of 
Native American human remains and ``cultural items'', as defined by the 
Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L. 
101-601; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is 
referred to NAGPRA and its implementing regulations.
    (b) Arrowhead means any projectile point which appears to have been 
designed for use with an arrow.
    (c) Federal land manager means:
    (1) With respect to any public lands, the secretary of the 
department, or the head of any other agency or instrumentality of the 
United States, having primary management authority over such lands, 
including persons to whom such management authority has been officially 
delegated;
    (2) In the case of Indian lands, or any public lands with respect to 
which no department, agency or instrumentality has primary management 
authority, such term means the Secretary of the Interior;
    (3) The Secretary of the Interior, when the head of any other agency 
or instrumentality has, pursuant to section 3(2) of the Act and with the 
consent of the Secretary of the Interior, delegated to the Secretary of 
the Interior the responsibilities (in whole or in part) in this part.
    (d) Public lands means:
    (1) Lands which are owned and administered by the United States as 
part of the national park system, the national wildlife refuge system, 
or the national forest system; and
    (2) All other lands the fee title to which is held by the United 
States, except lands on the Outer Continental Shelf, lands under the 
jurisdiction of the Smithsonian Institution, and Indian lands.
    (e) Indian lands means lands of Indian tribes, or Indian 
individuals, which are either held in trust by the United States or 
subject to a restriction against alienation imposed by the United 
States, except for subsurface interests not owned or controlled by an 
Indian tribe or Indian individual.
    (f) Indian tribe as defined in the Act means any Indian tribe, band, 
nation, or other organized group or community, including any Alaska 
village or regional or village corporation as defined in, or established 
pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688). In 
order to clarify this statutory definition for purposes of this part, 
``Indian tribe'' means:
    (1) Any tribal entity which is included in the annual list of 
recognized

[[Page 169]]

tribes published in the Federal Register by the Secretary of the 
Interior pursuant to 25 CFR part 54;
    (2) Any other tribal entity acknowledged by the Secretary of the 
Interior pursuant to 25 CFR part 54 since the most recent publication of 
the annual list; and
    (3) Any Alaska Native village or regional or village corporation as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act (85 Stat. 688), and any Alaska Native village or tribe 
which is recognized by the Secretary of the Interior as eligible for 
services provided by the Bureau of Indian Affairs.
    (g) Person means an individual, corporation, partnership, trust, 
institution, association, or any other private entity, or any officer, 
employee, agent, department, or instrumentality of the United States, or 
of any Indian tribe, or of any State or political subdivision thereof.
    (h) State means any of the fifty states, the District of Columbia, 
Puerto Rico, Guam, and the Virgin Islands.
    (i) Act means the Archaeological Resources Protection Act of 1979 
(16 U.S.C. 470aa-mm).

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984, as amended at 60 
FR 5260, Jan. 26, 1995]



Sec.  7.4  Prohibited acts and criminal penalties.

    (a) Under section 6(a) of the Act, no person may excavate, remove, 
damage, or otherwise alter or deface, or attempt to excavate, remove, 
damage, or otherwise alter or deface any archaeological resource located 
on public lands or Indian lands unless such activity is pursuant to a 
permit issued underSec. 7.8 or exempted bySec. 7.5(b) of this part.
    (b) No person may sell, purchase, exchange, transport, or receive 
any archaeological resource, if such resource was excavated or removed 
in violation of:
    (1) The prohibitions contained in paragraph (a) of this section; or
    (2) Any provision, rule, regulation, ordinance, or permit in effect 
under any other provision of Federal law.
    (c) Under section (d) of the Act, any person who knowingly violates 
or counsels, procures, solicits, or employs any other person to violate 
any prohibition contained in section 6 (a), (b), or (c) of the Act will, 
upon conviction, be fined not more than $10,000.00 or imprisoned not 
more than one year, or both: provided, however, that if the commercial 
or archaeological value of the archaeological resources involved and the 
cost of restoration and repair of such resources exceeds the sum of 
$500.00, such person will be fined not more than $20,000.00 or 
imprisoned not more than two years, or both. In the case of a second or 
subsequent such violation upon conviction such person will be fined not 
more than $100,000.00, or imprisoned not more than five years, or both.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]



Sec.  7.5  Permit requirements and exceptions.

    (a) Any person proposing to excavate and/or remove archaeological 
resources from public lands or Indian lands, and to carry out activities 
associated with such excavation and/or removal, shall apply to the 
Federal land manager for a permit for the proposed work, and shall not 
begin the proposed work until a permit has been issued. The Federal land 
manager may issue a permit to any qualified person, subject to 
appropriate terms and conditions, provided that the person applying for 
a permit meets conditions inSec. 7.8(a) of this part.
    (b) Exceptions:
    (1) No permit shall be required under this part for any person 
conducting activities on the public lands under other permits, leases, 
licenses, or entitlements for use, when those activities are exclusively 
for purposes other than the excavation and/or removal of archaeological 
resources, even though those activities might incidentally result in the 
disturbance of archaeological resources. General earth-moving excavation 
conducted under a permit or other authorization shall not be construed 
to mean excavation and/or removal as used in this part. This exception 
does not, however, affect the Federal land manager's responsibility to 
comply with other authorities which protect archaeological resources 
prior to approving permits, leases, licenses, or entitlements for use; 
any excavation

[[Page 170]]

and/or removal of archaeological resources required for compliance with 
those authorities shall be conducted in accordance with the permit 
requirements of this part.
    (2) No permit shall be required under this part for any person 
collecting for private purposes any rock, coin, bullet, or mineral which 
is not an archaeological resource as defined in this part, provided that 
such collecting does not result in disturbance of any archaelogical 
resource.
    (3) No permit shall be required under this part or under section 3 
of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or 
removal by any Indian tribe or member thereof of any archaeological 
resource located on Indian lands of such Indian tribe, except that in 
the absence of tribal law regulating the excavation or removal or 
archaeological resources on Indian lands, an individual tribal member 
shall be required to obtain a permit under this part;
    (4) No permit shall be required under this part for any person to 
carry out any archaeological activity authorized by a permit issued 
under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the 
enactment of the Archaeological Resources Protection Act of 1979. Such 
permit shall remain in effect according to its terms and conditions 
until expiration.
    (5) No permit shall be required under section 3 of the Act of June 
8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit 
is issued under this part.
    (c) Persons carrying out official agency duties under the Federal 
land manager's direction, associated with the management of 
archaeological resources, need not follow the permit application 
procedures ofSec. 7.6. However, the Federal land manager shall insure 
that provisions of Sec.Sec. 7.8 and 7.9 have been met by other 
documented means, and that any official duties which might result in 
harm to or destruction of any Indian tribal religious or cultural site, 
as determined by the Federal land manager, have been the subject of 
consideration underSec. 7.7.
    (d) Upon the written request of the Governor of any State, on behalf 
of the State or its educational institutions, the Federal land manager 
shall issue a permit, subject to the provisions of Sec.Sec. 7.5(b)(5), 
7.7, 7.8(a) (3), (4), (5), (6), and (7), 7.9, 7.10, 7.12, and 7.13(a) to 
such Governor or to such designee as the Governor deems qualified to 
carry out the intent of the Act, for purposes of conducting 
archaeological research, excavating and/or removing archaeological 
resources, and safeguarding and preserving any materials and data 
collected in a university, museum, or other scientific or educational 
institution approved by the Federal land manager.
    (e) Under other statutory, regulatory, or administrative authorities 
governing the use of public lands and Indian lands, authorizations may 
be required for activities which do not require a permit under this 
part. Any person wishing to conduct on public lands or Indian lands any 
activities related to but believed to fall outside the scope of this 
part should consult with the Federal land manager, for the purpose of 
determining whether any authorization is required, prior to beginning 
such activities.



Sec.  7.6  Application for permits and information collection.

    (a) Any person may apply to the appropriate Federal land manager for 
a permit to excavate and/or remove archaeological resources from public 
lands or Indian lands and to carry out activities associated with such 
excavation and/or removal.
    (b) Each application for a permit shall include:
    (1) The nature and extent of the work proposed, including how and 
why it is proposed to be conducted, proposed time of performance, 
locational maps, and proposed outlet for public written dissemination of 
the results.
    (2) The name and address of the individual(s) proposed to be 
responsible for conducting the work, institutional affiliation, if any, 
and evidence of education, training, and experience in accord with the 
minimal qualifications listed inSec. 7.8(a).
    (3) The name and address of the individual(s), if different from the 
individual(s) named in paragraph (b)(2) of this section, proposed to be 
responsible

[[Page 171]]

for carrying out the terms and conditions of the permit.
    (4) Evidence of the applicant's ability to initiate, conduct, and 
complete the proposed work, including evidence of logistical support and 
laboratory facilities.
    (5) Where the application is for the excavation and/or removal of 
archaeological resources on public lands, the names of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store all collections, and copies of records, 
data, photographs, and other documents derived from the proposed work. 
Applicants shall submit written certification, signed by an authorized 
official of the institution, of willingness to assume curatorial 
responsibility for the collections, records, data, photographs and other 
documents and to safeguard and preserve these materials as property of 
the United States.
    (6) Where the application is for the excavation and/or removal of 
archaeological resources on Indian lands, the name of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store copies of records, data, photographs, and 
other documents derived from the proposed work, and all collections in 
the event the Indian owners do not wish to take custody or otherwise 
dispose of the archaeological resources. Applicants shall submit written 
certification, signed by an authorized official of the institution, or 
willingness to assume curatorial responsibility for the collections, if 
applicable, and/or the records, data, photographs, and other documents 
derived from the proposed work.
    (c) The Federal land manager may require additional information, 
pertinent to land management responsibilities, to be included in the 
application for permit and shall so inform the applicant.
    (d) Paperwork Reduction Act. The information collection requirement 
contained inSec. 7.6 of these regulations has been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number 1024-0037. The purpose of the information 
collection is to meet statutory and administrative requirements in the 
public interest. The information will be used to assist Federal land 
managers in determining that applicants for permits are qualified, that 
the work proposed would further archaeological knowledge, that 
archaeological resources and associated records and data will be 
properly preserved, and that the permitted activity would not conflict 
with the management of the public lands involved. Response to the 
information requirement is necessary in order for an applicant to obtain 
a benefit.



Sec.  7.7  Notification to Indian tribes of possible harm to,
or destruction of, sites on public lands having religious 
or cultural importance.

    (a) If the issuance of a permit under this part may result in harm 
to, or destruction of, any Indian tribal religious or cultural site on 
public lands, as determined by the Federal land manager, at least 30 
days before issuing such a permit the Federal land manager shall notify 
any Indian tribe which may consider the site as having religious or 
cultural importance. Such notice shall not be deemed a disclosure to the 
public for purposes of section 9 of the Act.
    (1) Notice by the Federal land manager to any Indian tribe shall be 
sent to the chief executive officer or other designated official of the 
tribe. Indian tribes are encouraged to designate a tribal official to be 
the focal point for any notification and discussion between the tribe 
and the Federal land manager.
    (2) The Federal land manager may provide notice to any other Native 
American group that is known by the Federal land manager to consider 
sites potentially affected as being of religious or cultural importance.
    (3) Upon request during the 30-day period, the Federal land manager 
may meet with official representatives of any Indian tribe or group to 
discuss their interests, including ways to avoid or mitigate potential 
harm or destruction such as excluding sites from the permit area. Any 
mitigation measures which are adopted shall be incorporated into the 
terms and conditions of the permit underSec. 7.9.
    (4) When the Federal land manager determines that a permit applied 
for

[[Page 172]]

under this part must be issued immediately because of an imminent threat 
of loss or destruction of an archaeological resource, the Federal land 
manager shall so notify the appropriate tribe.
    (b)(1) In order to identify sites of religious or cultural 
importance, the Federal land manager shall seek to identify all Indian 
tribes having aboriginal or historic ties to the lands under the Federal 
land manager's jurisdiction and seek to determine, from the chief 
executive officer or other designated official of any such tribe, the 
location and nature of specific sites of religious or cultural 
importance so that such information may be on file for land management 
purposes. Information on sites eligible for or included in the National 
Register of Historic Places may be withheld from public disclosure 
pursuant to section 304 of the Act of October 15, 1966, as amended (16 
U.S.C. 470w-3).
    (2) If the Federal land manager becomes aware of a Native American 
group that is not an Indian tribe as defined in this part but has 
aboriginal or historic ties to public lands under the Federal land 
manager's jurisdiction, the Federal land manager may seek to communicate 
with official representatives of that group to obtain information on 
sites they may consider to be of religious or cultural importance.
    (3) The Federal land manager may enter into agreement with any 
Indian tribe or other Native American group for determining locations 
for which such tribe or group wishes to receive notice under this 
section.
    (4) The Federal land manager should also seek to determine, in 
consultation with official representatives of Indian tribes or other 
Native American groups, what circumstances should be the subject of 
special notification to the tribe or group after a permit has been 
issued. Circumstances calling for notification might include the 
discovery of human remains. When circumstances for special notification 
have been determined by the Federal land manager, the Federal land 
manager will include a requirement in the terms and conditions of 
permits, underSec. 7.9(c), for permittees to notify the Federal land 
manger immediately upon the occurrence of such circumstances. Following 
the permittee's notification, the Federal land manager will notify and 
consult with the tribe or group as appropriate. In cases involving 
Native American human remains and other ``cultural items'', as defined 
by NAGPRA, the Federal land manager is referred to NAGPRA and its 
implementing regulations.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 
1995]



Sec.  7.8  Issuance of permits.

    (a) The Federal land manager may issue a permit, for a specified 
period of time appropriate to the work to be conducted, upon determining 
that:
    (1) The applicant is appropriately qualified, as evidenced by 
training, education, and/or experience, and possesses demonstrable 
competence in archaeological theory and methods, and in collecting, 
handling, analyzing, evaluating, and reporting archaeological data, 
relative to the type and scope of the work proposed, and also meets the 
following minimum qualifications:
    (i) A graduate degree in anthropology or archaeology, or equivalent 
training and experience;
    (ii) The demonstrated ability to plan, equip, staff, organize, and 
supervise activity of the type and scope proposed;
    (iii) The demonstrated ability to carry research to completion, as 
evidenced by timely completion of theses, research reports, or similar 
documents;
    (iv) Completion of at least 16 months of professional experience 
and/or specialized training in archaeological field, laboratory, or 
library research, administration, or management, including at least 4 
months experience and/or specialized training in the kind of activity 
the individual proposes to conduct under authority of a permit; and
    (v) Applicants proposing to engage in historical archaeology should 
have had at least one year of experience in research concerning 
archaeological resources of the historic period. Applicants proposing to 
engage in prehistoric archaeology should have had at least one year of 
experience in research concerning archaeological resources of the 
prehistoric period.

[[Page 173]]

    (2) The proposed work is to be undertaken for the purpose of 
furthering archaeological knowledge in the public interest, which may 
include but need not be limited to, scientific or scholarly research, 
and preservation of archaeological data;
    (3) The proposed work, including time, scope, location, and purpose, 
is not inconsistent with any management plan or established policy, 
objectives, or requirements applicable to the management of the public 
lands concerned;
    (4) Where the proposed work consists of archaeological survey and/or 
data recovery undertaken in accordance with other approved uses of the 
public lands or Indian lands, and the proposed work has been agreed to 
in writing by the Federal land manager pursuant to section 106 of the 
National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a)(2) 
and (a)(3) shall be deemed satisfied by the prior approval.
    (5) Written consent has been obtained, for work proposed on Indian 
lands, from the Indian landowner and the Indian tribe having 
jurisdiction over such lands;
    (6) Evidence is submitted to the Federal land manager that any 
university, museum, or other scientific or educational institution 
proposed in the application as the repository possesses adequate 
curatorial capability for safeguarding and preserving the archaeological 
resources and all associated records; and
    (7) The applicant has certified that, not later than 90 days after 
the date the final report is submitted to the Federal land manager, the 
following will be delivered to the appropriate official of the approved 
university, museum, or other scientific or educational institution, 
which shall be named in the permit:
    (i) All artifacts, samples, collections, and copies of records, 
data, photographs, and other documents resulting from work conducted 
under the requested permit where the permit is for the excavation and/or 
removal of archaeological resources from public lands.
    (ii) All artifacts, samples and collections resulting from work 
under the requested permit for which the custody or disposition is not 
undertaken by the Indian owners, and copies of records, data, 
photographs, and other documents resulting from work conducted under the 
requested permit, where the permit is for the excavation and/or removal 
of archaeological resources from Indian lands.
    (b) When the area of the proposed work would cross jurisdictional 
boundaries, so that permit applications must be submitted to more than 
one Federal land manager, the Federal land managers shall coordinate the 
review and evaluation of applications and the issuance of permits.

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec.  7.9  Terms and conditions of permits.

    (a) In all permits issued, the Federal land manager shall specify:
    (1) The nature and extent of work allowed and required under the 
permit, including the time, duration, scope, location, and purpose of 
the work;
    (2) The name of the individual(s) responsible for conducting the 
work and, if different, the name of the individual(s) responsible for 
carrying out the terms and conditions of the permit;
    (3) The name of any university, museum, or other scientific or 
educational institutions in which any collected materials and data shall 
be deposited; and
    (4) Reporting requirements.
    (b) The Federal land manager may specify such terms and conditions 
as deemed necessary, consistent with this part, to protect public safety 
and other values and/or resources, to secure work areas, to safeguard 
other legitimate land uses, and to limit activities incidental to work 
authorized under a permit.
    (c) The Federal land manager shall include in permits issued for 
archaeological work on Indian lands such terms and conditions as may be 
requested by the Indian landowner and the Indian tribe having 
jurisdiction over the lands, and for archaeological work on public lands 
shall include such terms and conditions as may have been developed 
pursuant toSec. 7.7.
    (d) Initiation of work or other activities under the authority of a 
permit signifies the permittee's acceptance of the terms and conditions 
of the permit.

[[Page 174]]

    (e) The permittee shall not be released from requirements of a 
permit until all outstanding obligations have been satisfied, whether or 
not the term of the permit has expired.
    (f) The permittee may request that the Federal land manager extend 
or modify a permit.
    (g) The permittee's performance under any permit issued for a period 
greater than 1 year shall be subject to review by the Federal land 
manager, at least annually.



Sec.  7.10  Suspension and revocation of permits.

    (a) Suspension or revocation for cause. (1) The Federal land manager 
may suspend a permit issued pursuant to this part upon determining that 
the permittee has failed to meet any of the terms and conditions of the 
permit or has violated any prohibition of the Act orSec. 7.4. The 
Federal land manager shall provide written notice to the permittee of 
the suspension, the cause thereof, and the requirements which must be 
met before the suspension will be removed.
    (2) The Federal land manager may revoke a permit upon assessment of 
a civil penalty underSec. 7.15 upon the permittee's conviction under 
section 6 of the Act, or upon determining that the permittee has failed 
after notice under this section to correct the situation which led to 
suspension of the permit.
    (b) Suspension or revocation for management purposes. The Federal 
land manager may suspend or revoke a permit, without liability to the 
United States, its agents, or employees, when continuation of work under 
the permit would be in conflict with management requirements not in 
effect when the permit was issued. The Federal land manager shall 
provide written notice to the permittee stating the nature of and basis 
for the suspension or revocation.

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec.  7.11  Appeals relating to permits.

    Any affected person may appeal permit issuance, denial of permit 
issuance, suspension, revocation, and terms and conditions of a permit 
through existing administrative appeal procedures, or through procedures 
which may be established by the Federal land manager pursuant to section 
10(b) of the Act and this part.



Sec.  7.12  Relationship to section 106 of the National Historic
Preservation Act.

    Issuance of a permit in accordance with the Act and this part does 
not constitute an undertaking requiring compliance with section 106 of 
the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere issuance 
of such a permit does not excuse the Federal land manager from 
compliance with section 106 where otherwise required.



Sec.  7.13  Custody of archaeological resources.

    (a) Archaeological resources excavated or removed from the public 
lands remain the property of the United States.
    (b) Archaeological resources excavated or removed from Indian lands 
remain the property of the Indian or Indian tribe having rights of 
ownership over such resources.
    (c) The Secretary of the Interior may promulgate regulations 
providing for the exchange of archaeological resources among suitable 
universities, museums, or other scientific or educational institutions, 
for the ultimate disposition of archaeological resources, and for 
standards by which archaeological resources shall be preserved and 
maintained, when such resources have been excavated or removed from 
public lands and Indian lands.
    (d) In the absence of regulations referenced in paragraph (c) of 
this section, the Federal land manager may provide for the exchange of 
archaeological resources among suitable universities, museums, or other 
scientific or educational institutions, when such resources have been 
excavated or removed from public lands under the authority of a permit 
issued by the Federal land manager.
    (e) Notwithstanding the provisions of paragraphs (a) through (d) of 
this section, the Federal land manager will follow the procedures 
required by NAGPRA and its implementing regulations for determining the 
disposition of Native American human remains and

[[Page 175]]

other ``cultural items'', as defined by NAGPRA, that have been 
excavated, removed, or discovered on public lands.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 
1995]



Sec.  7.14  Determination of archaeological or commercial value
and cost of restoration and repair.

    (a) Archaeological value. For purposes of this part, the 
archaeological value of any archaeological resource involved in a 
violation of the prohibitions inSec. 7.4 of this part or conditions of 
a permit issued pursuant to this part shall be the value of the 
information associated with the archaeological resource. This value 
shall be appraised in terms of the costs of the retrieval of the 
scientific information which would have been obtainable prior to the 
violation. These costs may include, but need not be limited to, the cost 
of preparing a research design, conducting field work, carrying out 
laboratory analysis, and preparing reports as would be necessary to 
realize the information potential.
    (b) Commercial value. For purposes of this part, the commercial 
value of any archaeological resource involved in a violation of the 
prohibitions inSec. 7.4 of this part or conditions of a permit issued 
pursuant to this part shall be its fair market value. Where the 
violation has resulted in damage to the archaeological resource, the 
fair market value should be determined using the condition of the 
archaeological resource prior to the violation, to the extent that its 
prior condition can be ascertained.
    (c) Cost of restoration and repair. For purposes of this part, the 
cost of restoration and repair of archaeological resources damaged as a 
result of a violation of prohibitions or conditions pursuant to this 
part, shall be the sum of the costs already incurred for emergency 
restoration or repair work, plus those costs projected to be necessary 
to complete restoration and repair, which may include, but need not be 
limited to, the costs of the following:
    (1) Reconstruction of the archaeological resource;
    (2) Stabilization of the archaeological resource;
    (3) Ground contour reconstruction and surface stabilization;
    (4) Research necessary to carry out reconstruction or stabilization;
    (5) Physical barriers or other protective devices, necessitated by 
the disturbance of the archaeological resource, to protect it from 
further disturbance;
    (6) Examination and analysis of the archaeological resource 
including recording remaining archaeological information, where 
necessitated by disturbance, in order to salvage remaining values which 
cannot be otherwise conserved;
    (7) Reinterment of human remains in accordance with religious custom 
and State, local, or tribal law, where appropriate, as determined by the 
Federal land manager.
    (8) Preparation of reports relating to any of the above activities.



Sec.  7.15  Assessment of civil penalties.

    (a) The Federal land manager may assess a civil penalty against any 
person who has violated any prohibition contained inSec. 7.4 or who 
has violated any term or condition included in a permit issued in 
accordance with the Act and this part.
    (b) Notice of violation. The Federal land manager shall serve a 
notice of violation upon any person believed to be subject to a civil 
penalty, either in person or by registered or certified mail (return 
receipt requested). The Federal land manager shall include in the 
notice:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the provision(s) of this part or to a 
permit issued pursuant to this part allegedly violated;
    (3) The amount of penalty proposed to be assessed, including any 
initial proposal to mitigate or remit where appropriate, or a statement 
that notice of a proposed penalty amount will be served after the 
damages associated with the alleged violation have been ascertained;
    (4) Notification of the right to file a petition for relief pursuant 
to paragraph (d) of this section, or to await the Federal land manager's 
notice of assessment, and to request a hearing in

[[Page 176]]

accordance with paragraph (g) of this section. The notice shall also 
inform the person of the right to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (c) The person served with a notice of violation shall have 45 
calendar days from the date of its service (or the date of service of a 
proposed penalty amount, if later) in which to respond. During this time 
the person may:
    (1) Seek informal discussions with the Federal land manager;
    (2) File a petition for relief in accordance with paragraph (d) of 
this section;
    (3) Take no action and await the Federal land manager's notice of 
assessment;
    (4) Accept in writing or by payment the proposed penalty, or any 
mitigation or remission offered in the notice. Acceptance of the 
proposed penalty or mitigation or remission shall be deemed a waiver of 
the notice of assessment and of the right to request a hearing under 
paragraph (g) of this section.
    (d) Petition for relief. The person served with a notice of 
violation may request that no penalty be assessed or that the amount be 
reduced, by filing a petition for relief with the Federal land manager 
within 45 calendar days of the date of service of the notice of 
violation (or of a proposed penalty amount, if later). The petition 
shall be in writing and signed by the person served with the notice of 
violation. If the person is a corporation, the petition must be signed 
by an officer authorized to sign such documents. The petition shall set 
forth in full the legal or factual basis for the requested relief.
    (e) Assessment of penalty. (1) The Federal land manager shall assess 
a civil penalty upon expiration of the period for filing a petition for 
relief, upon completion of review of any petition filed, or upon 
completion of informal discussions, whichever is later.
    (2) The Federal land manager shall take into consideration all 
available information, including information provided pursuant to 
paragraphs (c) and (d) of this section or furnished upon further request 
by the Federal land manager.
    (3) If the facts warrant a conclusion that no violation has 
occurred, the Federal land manager shall so notify the person served 
with a notice of violation, and no penalty shall be assessed.
    (4) Where the facts warrant a conclusion that a violation has 
occurred, the Federal land manager shall determine a penalty amount in 
accordance withSec. 7.16.
    (f) Notice of assessment. The Federal land manager shall notify the 
person served with a notice of violation of the penalty amount assessed 
by serving a written notice of assessment, either in person or by 
registered or certified mail (return receipt requested). The Federal 
land manager shall include in the notice of assessment:
    (1) The facts and conclusions from which it was determined that a 
violation did occur;
    (2) The basis inSec. 7.16 for determining the penalty amount 
assessed and/or any offer to mitigate or remit the penalty; and
    (3) Notification of the right to request a hearing, including the 
procedures to be followed, and to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (g) Hearings. (1) Except where the right to request a hearing is 
deemed to have been waived as provided in paragraph (c)(4) of this 
section, the person served with a notice of assessment may file a 
written request for a hearing with the adjudicatory body specified in 
the notice. The person shall enclose with the request for hearing a copy 
of the notice of assessment, and shall deliver the request as specified 
in the notice of assessment, personally or by registered or certified 
mail (return receipt requested).
    (2) Failure to deliver a written request for a hearing within 45 
days of the date of service of the notice of assessment shall be deemed 
a waiver of the right to a hearing.
    (3) Any hearing conducted pursuant to this section shall be held in 
accordance with 5 U.S.C. 554. In any such hearing, the amount of civil 
penalty assessed shall be determined in accordance with this part, and 
shall not be limited by the amount assessed by the Federal land manager 
under paragraph

[[Page 177]]

(f) of this section or any offer of mitigation or remission made by the 
Federal land manager.
    (h) Final administrative decision. (1) Where the person served with 
a notice of violation has accepted the penalty pursuant to paragraph 
(c)(4) of this section, the notice of violation shall constitute the 
final administrative decision;
    (2) Where the person served with a notice of assessment has not 
filed a timely request for a hearing pursuant to paragraph (g)(1) of 
this section, the notice of assessment shall constitute the final 
administrative decision;
    (3) Where the person served with a notice of assessment has filed a 
timely request for a hearing pursuant to paragraph (g)(1) of this 
section, the decision resulting from the hearing or any applicable 
administrative appeal therefrom shall constitute the final 
administrative decision.
    (i) Payment of penalty. (1) The person assessed a civil penalty 
shall have 45 calendar days from the date of issuance of the final 
administrative decision in which to make full payment of the penalty 
assessed, unless a timely request for appeal has been filed with a U.S. 
District Court as provided in section 7(b)(1) of the Act.
    (2) Upon failure to pay the penalty, the Federal land manager may 
request the Attorney General to institute a civil action to collect the 
penalty in a U.S. District Court for any district in which the person 
assessed a civil penalty is found, resides, or transacts business. Where 
the Federal land manager is not represented by the Attorney General, a 
civil action may be initiated directly by the Federal land manager.
    (j) Other remedies not waived. Assessment of a penalty under this 
section shall not be deemed a waiver of the right to pursue other 
available legal or administrative remedies.



Sec.  7.16  Civil penalty amounts.

    (a) Maximum amount of penalty. (1) Where the person being assessed a 
civil penalty has not committed any previous violation of any 
prohibition inSec. 7.4 or of any term or condition included in a 
permit issued pursuant to this part, the maximum amount of the penalty 
shall be the full cost of restoration and repair of archaeological 
resources damaged plus the archaeological or commercial value of 
archaeological resources destroyed or not recovered.
    (2) Where the person being assessed a civil penalty has committed 
any previous violation of any prohibition inSec. 7.4 or of any term or 
condition included in a permit issued pursuant to this part, the maximum 
amount of the penalty shall be double the cost of restoration and repair 
plus double the archaeological or commercial value of archaeological 
resources destroyed or not recovered.
    (3) Violations limited to the removal of arrowheads located on the 
surface of the ground shall not be subject to the penalties prescribed 
in this section.
    (b) Determination of penalty amount, mitigation, and remission. The 
Federal land manager may assess a penalty amount less than the maximum 
amount of penalty and may offer to mitigate or remit the penalty.
    (1) Determination of the penalty amount and/or a proposal to 
mitigate or remit the penalty may be based upon any of the following 
factors:
    (i) Agreement by the person being assessed a civil penalty to return 
to the Federal land manager archaeological resources removed from public 
lands or Indian lands;
    (ii) Agreement by the person being assessed a civil penalty to 
assist the Federal land manager in activity to preserve, restore, or 
otherwise contribute to the protection and study of archaeological 
resources on public lands or Indian lands;
    (iii) Agreement by the person being assessed a civil penalty to 
provide information which will assist in the detection, prevention, or 
prosecution of violations of the Act or this part;
    (iv) Demonstration of hardship or inability to pay, provided that 
this factor shall only be considered when the person being assessed a 
civil penalty has not been found to have previously violated the 
regulations in this part;
    (v) Determination that the person being assessed a civil penalty did 
not willfully commit the violation;
    (vi) Determination that the proposed penalty would constitute 
excessive punishment under the circumstances;

[[Page 178]]

    (vii) Determination of other mitigating circumstances appropriate to 
consideration in reaching a fair and expeditious assessment.
    (2) When the penalty is for a violation on Indian lands, the Federal 
land manager shall consult with and consider the interests of the Indian 
landowner and the Indian tribe having jurisdiction over the Indian lands 
prior to proposing to mitigate or remit the penalty.
    (3) When the penalty is for a violation which may have had an effect 
on a known Indian tribal religious or cultural site on public lands, the 
Federal land manager should consult with and consider the interests of 
the affected tribe(s) prior to proposing to mitigate or remit the 
penalty.

[49 FR 1027, Jan. 6, 1984, as amended at 52 FR 47721, Dec. 16, 1987]



Sec.  7.17  Other penalties and rewards.

    (a) Section 6 of the Act contains criminal prohibitions and 
provisions for criminal penalties. Section 8(b) of the Act provides that 
archaeological resources, vehicles, or equipment involved in a violation 
may be subject to forfeiture.
    (b) Section 8(a) of the Act provides for rewards to be made to 
persons who furnish information which leads to conviction for a criminal 
violation or to assessment of a civil penalty. The Federal land manager 
may certify to the Secretary of the Treasury that a person is eligible 
to receive payment. Officers and employees of Federal, State, or local 
government who furnish information or render service in the performance 
of their official duties, and persons who have provided information 
underSec. 7.16(b)(1)(iii) shall not be certified eligible to receive 
payment of rewards.
    (c) In cases involving Indian lands, all civil penalty monies and 
any item forfeited under the provisions of this section shall be 
transferred to the appropriate Indian or Indian tribe.



Sec.  7.18  Confidentiality of archaeological resource information.

    (a) The Federal land manager shall not make available to the public, 
under subchapter II of chapter 5 of title 5 of the United States Code or 
any other provision of law, information concerning the nature and 
location of any archaeological resource, with the following exceptions:
    (1) The Federal land manager may make information available, 
provided that the disclosure will further the purposes of the Act and 
this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469 
through 469c), without risking harm to the archaeological resource or to 
the site in which it is located.
    (2) The Federal land manager shall make information available, when 
the Governor of any State has submitted to the Federal land manager a 
written request for information, concerning the archaeological resources 
within the requesting Governor's State, provided that the request 
includes:
    (i) The specific archaeological resource or area about which 
information is sought;
    (ii) The purpose for which the information is sought; and
    (iii) The Governor's written commitment to adequately protect the 
confidentiality of the information.
    (b) [Reserved]

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec.  7.19  Report.

    (a) Each Federal land manager, when requested by the Secretary of 
the Interior, will submit such information as is necessary to enable the 
Secretary to comply with section 13 of the Act and comprehensively 
report on activities carried out under provisions of the Act.
    (b) The Secretary of the Interior will include in the annual 
comprehensive report, submitted to the Committee on Interior and Insular 
Affairs of the United States House of Representatives and to the 
Committee on Energy and Natural Resources of the United States Senate 
under section 13 of the Act, information on public awareness programs 
submitted by each Federal land manager underSec. 7.20(b). Such 
submittal will fulfill the Federal land manager's responsibility under 
section 10(c) of the Act to report on public awareness programs.

[[Page 179]]

    (c) The comprehensive report by the Secretary of the Interior also 
will include information on the activities carried out under section 14 
of the Act. Each Federal land manager, when requested by the Secretary, 
will submit any available information on surveys and schedules and 
suspected violations in order to enable the Secretary to summarize in 
the comprehensive report actions taken pursuant to section 14 of the 
Act.

[60 FR 5260, 5261, Jan. 26, 1995]



Sec.  7.20  Public awareness programs.

    (a) Each Federal land manager will establish a program to increase 
public awareness of the need to protect important archaeological 
resources located on public and Indian lands. Educational activities 
required by section 10(c) of the Act should be incorporated into other 
current agency public education and interpretation programs where 
appropriate.
    (b) Each Federal land manager annually will submit to the Secretary 
of the Interior the relevant information on public awareness activities 
required by section 10(c) of the Act for inclusion in the comprehensive 
report on activities required by section 13 of the Act.

[60 FR 5260, 5261, Jan. 26, 1995]



Sec.  7.21  Surveys and schedules.

    (a) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Board of the Tennessee Valley Authority will develop 
plans for surveying lands under each agency's control to determine the 
nature and extent of archaeological resources pursuant to section 14(a) 
of the Act. Such activities should be consistent with Federal agency 
planning policies and other historic preservation program 
responsibilities required by 16 U.S.C. 470 et seq. Survey plans prepared 
under this section will be designed to comply with the purpose of the 
Act regarding the protection of archaeological resources.
    (b) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Tennessee Valley Authority will prepare schedules 
for surveying lands under each agency's control that are likely to 
contain the most scientifically valuable archaeological resources 
pursuant to section 14(b) of the Act. Such schedules will be developed 
based on objectives and information identified in survey plans described 
in paragraph (a) of this section and implemented systematically to cover 
areas where the most scientifically valuable archaeological resources 
are likely to exist.
    (c) Guidance for the activities undertaken as part of paragraphs (a) 
through (b) of this section is provided by the Secretary of the 
Interior's Standards and Guidelines for Archeology and Historic 
Preservation.
    (d) Other Federal land managing agencies are encouraged to develop 
plans for surveying lands under their jurisdictions and prepare 
schedules for surveying to improve protection and management of 
archaeological resources.
    (e) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Tennessee Valley Authority will develop a system for 
documenting and reporting suspected violations of the various provisions 
of the Act. This system will reference a set of procedures for use by 
officers, employees, or agents of Federal agencies to assist them in 
recognizing violations, documenting relevant evidence, and reporting 
assembled information to the appropriate authorities. Methods employed 
to document and report such violations should be compatible with 
existing agency reporting systems for documenting violations of other 
appropriate Federal statutes and regulations. Summary information to be 
included in the Secretary's comprehensive report will be based upon the 
system developed by each Federal land manager for documenting suspected 
violations.

[60 FR 5260, 5261, Jan. 26, 1995]



      Subpart B_Department of the Interior Supplemental Regulations

    Source: 52 FR 9168, Mar. 23, 1987, unless otherwise noted.



Sec.  7.31  Scope and authority.

    The regulations in this subpart are promulgated pursuant to section 
10(b)

[[Page 180]]

of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ii), which requires agencies to develop rules and regulations for 
carrying out the purposes of the Act, consistent with the uniform 
regulations issued pursuant to section 10(a) of the Act (subpart A of 
this part).



Sec.  7.32  Supplemental definitions.

    For purposes of this subpart, the following definitions will be 
used:
    (a) Site of religious or cultural importance means, for purposes of 
Sec.  7.7 of this part, a location which has traditionally been 
considered important by an Indian tribe because of a religious event 
which happened there; because it contains specific natural products 
which are of religious or cultural importance; because it is believed to 
the be dwelling place of, the embodiment of, or a place conducive to 
communication with spiritual beings; because it contains elements of 
life-cycle rituals, such as burials and associated materials; or because 
it has other specific and continuing significance in Indian religion or 
culture.
    (b) Allotted lands means lands granted to Indian individuals by the 
United States and held in trust for those individuals by the United 
States.



Sec.  7.33  Determination of loss or absence of archaeological
interest.

    (a) Under certain circumstances, a Federal land manager may 
determine, pursuant toSec. 7.3(a)(5) of this part, that certain 
material remains are not or are no longer of archaeological interest, 
and therefore are not to be considered archaeological resources under 
this part.
    (b) The Federal land manager may make such a determination if he/she 
finds that the material remains are not capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics.
    (c) Prior to making a determination that material remains are not or 
are no longer archaeological resources, the Federal land manager shall 
ensure that the following procedures are completed:
    (1) A professional archaeological evaluation of material remains and 
similar materials within the area under consideration shall be 
completed, consistent with the Secretary of the Interior's Standards and 
Guidelines for Archeology and Historic Preservation (48 FR 44716, Sept. 
29, 1983) and with 36 CFR parts 60, 63, and 65.
    (2) The principal bureau archaeologist or, in the absence of a 
principal bureau archaeologist, the Department Consulting Archeologist, 
shall establish whether the material remains under consideration 
contribute to scientific or humanistic understandings of past human 
behavior, cultural adaptation and related topics. The principal bureau 
archaeologist or the Department Consulting Archeologist, as appropriate, 
shall make a recommendation to the Federal land manager concerning these 
material remains.
    (d) The Federal land manager shall make the determination based upon 
the facts established by and the recommendation of the principal bureau 
archaeologist or the Departmental Consulting Archeologist, as 
appropriate, and shall fully document the basis therefor, including 
consultation with Indian tribes for determinations regarding sites of 
religious or cultural importance.
    (e) The Federal land manager shall make public notice of the 
determination and its limitations, including any permitting requirements 
for activities associated with the materials determined not to be 
archaeological resources for purposes of this part.
    (f) Any interested individual may request in writing that the 
Departmental Consulting Archeologist review any final determination by 
the Federal land manager that certain remains, are not, or are no 
longer, archaeological resources. Two (2) copies of the request should 
be sent to the Departmental Consulting Archeologist, National Park 
Service, P.O. Box 37127, Washington, DC 20013-7127, and should document 
why the requestor disagrees with the determination of the Federal land 
manager. The Departmental Consulting Archeologist shall review the 
request, and, if appropriate, shall review the Federal land manager's 
determination and its supporting documentation. Based on this review, 
the Departmental Consulting Archeologist

[[Page 181]]

shall prepare a final professional recommendation, and shall transmit 
the recommendation and the basis therefor to the head of the bureau for 
further consideration within 60 days of the receipt of the request.
    (g) Any determination made pursuant to this section shall in no way 
affect the Federal land manager's obligations under other applicable 
laws or regulations.



Sec.  7.34  Procedural information for securing permits.

    Information about procedures to secure a permit to excavate or 
remove archaeological resources from public lands or Indian lands can be 
obtained from the appropriate Indian tribal authorities, the Federal 
land manager of the bureau that administers the specific area of the 
public lands or Indian lands for which a permit is desired, or from the 
state, regional, or national office of that bureau.



Sec.  7.35  Permitting procedures for Indian lands.

    (a) If the lands involved in a permit application are Indian lands, 
the consent of the appropriate Indian tribal authority or individual 
Indian landowner is required by the Act and these regulations.
    (b) When Indian tribal lands are involved in an application for a 
permit or a request for extension or modification of a permit, the 
consent of the Indian tribal government must be obtained. For Indian 
allotted lands outside reservation boundaries, consent from only the 
individual landowner is needed. When multiple-owner allotted lands are 
involved, consent by more than 50 percent of the ownership interest is 
sufficient. For Indian allotted lands within reservation boundaries, 
consent must be obtained from the Indian tribal government and the 
individual landowner(s).
    (c) The applicant should consult with the Bureau of Indian Affairs 
concerning procedures for obtaining consent from the appropriate Indian 
tribal authorities and submit the permit application to the area office 
of the Bureau of Indian Affairs that is responsible for the 
administration of the lands in question. The Bureau of Indian Affairs 
shall insure that consultation with the appropriate Indian tribal 
authority or individual Indian landowner regarding terms and conditions 
of the permit occurs prior to detailed evaluation of the application. 
Permits shall include terms and conditions requested by the Indian tribe 
or Indian landowner pursuant toSec. 7.9 of this part.
    (d) The issuance of a permit under this part does not remove the 
requirement for any other permit required by Indian tribal law.



Sec.  7.36  Permit reviews and disputes.

    (a) Any affected person disputing the decision of a Federal land 
manager with respect to the issuance or denial of a permit, the 
inclusion of specific terms and conditions in a permit, or the 
modification, suspension, or revocation of a permit may request the 
Federal land manager to review the disputed decision and may request a 
conference to discuss the decision and its basis.
    (b) The disputant, if unsatisfied with the outcome of the review or 
conference, may request that the decision be reviewed by the head of the 
bureau involved.
    (c) Any disputant unsatisfied with the higher level review, and 
desiring to appeal the decision, pursuant toSec. 7.11 of this part, 
should consult with the appropriate Federal land manager regarding the 
existence of published bureau appeal procedures. In the absence of 
published bureau appeal procedures, the review by the head of the bureau 
involved will constitute the final decision.
    (d) Any affected person may request a review by the Departmental 
Consulting Archeologist of any professional issues involved in a bureau 
permitting decision, such as professional qualifications, research 
design, or other professional archaeological matters. The Departmental 
Consulting Archeologist shall make a final professional recommendation 
to the head of the bureau involved. The head of the bureau involved will 
consider the recommendation, but may reject it, in whole or in part, for 
good cause. This request should be in writing, and

[[Page 182]]

should state the reasons for the request. SeeSec. 7.33(f) for the 
address of the Departmental Consulting Archeologist.



Sec.  7.37  Civil penalty hearings procedures.

    (a) Requests for hearings. Any person wishing to request a hearing 
on a notice of assessment of civil penalty, pursuant toSec. 7.15(g) of 
this part, may file a written, dated request for a hearing with the 
Hearing Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203-1923. The 
respondent shall enclose a copy of the notice of violation and the 
notice of assessment. The request shall state the relief sought, the 
basis for challenging the facts used as the basis for charging the 
violation and fixing the assessment, and respondent's preference as to 
the place and date for a hearing. A copy of the request shall be served 
upon the Solicitor of the Department of the Interior personally or by 
registered or certified mail (return receipt requested), at the address 
specified in the notice of assessment. Hearings shall be conducted in 
accordance with 43 CFR part 4, subparts A and B.
    (b) Waiver of right to a hearing. Failure to file a written request 
for a hearing within 45 days of the date of service of a notice of 
assessment shall be deemed a waiver of the right to a hearing.
    (c) Commencement of hearing procedures. Upon receipt of a request 
for a hearing, the Hearing Division shall assign an administrative law 
judge to the case. Notice of assignment shall be given promptly to the 
parties, and thereafter, all pleadings, papers, and other documents in 
the proceeding shall be filed directly with the administrative law 
judge, with copies served on the opposing party.
    (d) Appearance and practice. (1) Subject to the provisions of 43 CFR 
1.3, the respondent may appear in person, by representative, or by 
counsel, and may participate fully in those proceedings. If respondent 
fails to appear and the administrative law judge determines such failure 
is without good cause, the administrative law judge may, in his/her 
discretion, determine that such failure shall constitute a waiver of the 
right to a hearing and consent to the making of a decision on the record 
made at the hearing.
    (2) Departmental counsel, designated by the Solicitor of the 
Department, shall represent the Federal land manager in the proceedings. 
Upon notice to the Federal land manager of the assignment of an 
administrative law judge to the case, said counsel shall enter his/her 
appearance on behalf of the Federal land manager and shall file all 
petitions and correspondence exchanges by the Federal land manager and 
the respondent pursuant toSec. 7.15 of this part which shall become 
part of the hearing record. Thereafter, service upon the Federal land 
manager shall be made to his/her counsel.
    (e) Hearing administration. (1) The administrative law judge shall 
have all powers accorded by law and necessary to preside over the 
parties and the proceedings and to make decisions in accordance with 5 
U.S.C. 554-557.
    (2) The transcript of testimony, the exhibits, and all papers, 
documents and requests filed in the proceedings, shall constitute the 
record for decision. The administrative law judge shall render a written 
decision upon the record, which shall set forth his/her findings of fact 
and conclusions of law, and the reasons and basis therefor, and an 
assessment of a penalty, if any.
    (3) Unless a notice of appeal is filed in accordance with paragraph 
(f) of this section, the administrative law judge's decision shall 
constitute the final administrative determination of the Secretary in 
the matter and shall become effective 30 calendar days from the date of 
this decision.
    (4) In any such hearing, the amount of civil penalty assessed shall 
be determined in accordance with this part, and shall not be limited by 
the amount assessed by the Federal land manager underSec. 7.15 of this 
part or any offer of mitigation or remission made by the Federal land 
manager.
    (f) Appeal. (1) Either the respondent or the Federal land manager 
may appeal the decision of an administrative law judge by the filing of 
a ``Notice of Appeal'' with the Director, Office of Hearings and 
Appeals, U.S. Department of the Interior, 801 North Quincy Street, 
Arlington, Virginia 22203-1923,

[[Page 183]]

within 30 calendar days of the date of the administrative law judge's 
decision. Such notice shall be accompanied by proof of service on the 
administrative law judge and the opposing party.
    (2) Upon receipt of such a notice, the Director, Office of Hearings 
and Appeals, shall appoint an ad hoc appeals board to hear and decide an 
appeal. To the extent they are not inconsistent herewith, the provision 
of the Department of Hearings and Appeals Procedures in 43 CFR part 4, 
subparts A, B, and G shall apply to appeal proceedings under this 
subpart. The decision of the board on the appeal shall be in writing and 
shall become effective as the final administrative determination of the 
Secretary in the proceeding on the date it is rendered, unless otherwise 
specified therein.
    (g) Report service. Copies of decisions in civil penalty proceedings 
instituted under the Act may be obtained by letter of request addressed 
to the Director, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203-1923. Fees 
for this service shall be as established by the Director of that Office.

[52 FR 9168, Mar. 23, 1987, as amended at 67 FR 4368, Jan. 30, 2002]



PART 8_JOINT POLICIES OF THE DEPARTMENTS OF THE INTERIOR AND OF THE
ARMY RELATIVE TO RESERVOIR PROJECT LANDS--Table of Contents



Sec.
8.0 Acquisition of lands for reservoir projects.
8.1 Lands for reservoir construction and operation.
8.2 Additional lands for correlative purposes.
8.3 Easements.
8.4 Blocking out.
8.5 Mineral rights.
8.6 Buildings.

    Authority: Sec. 7, 32 Stat. 389, sec. 14, 53 Stat. 1197; 43 U.S.C. 
421, 389.

    Source: 31 FR 9108, July 2, 1966, unless otherwise noted.



Sec.  8.0  Acquisition of lands for reservoir projects.

    In so far as permitted by law, it is the policy of the Departments 
of the Interior and of the Army to acquire, as a part of reservoir 
project construction, adequate interest in lands necessary for the 
realization of optimum values for all purposes including additional land 
areas to assure full realization of optimum present and future outdoor 
recreational and fish and wildlife potentials of each reservoir.



Sec.  8.1  Lands for reservoir construction and operation.

    The fee title will be acquired to the following:
    (a) Lands necessary for permanent structures.
    (b) Lands below the maximum flowage line of the reservoir including 
lands below a selected freeboard where necessary to safeguard against 
the effects of saturation, wave action, and bank erosion and the permit 
induced surcharge operation.
    (c) Lands needed to provide for public access to the maximum flowage 
line as described in paragraph (b) of this section, or for operation and 
maintenance of the project.



Sec.  8.2  Additional lands for correlative purposes.

    The fee title will be acquired for the following:
    (a) Such lands as are needed to meet present and future requirements 
for fish and wildlife as determined pursuant to the Fish and Wildlife 
Coordination Act.
    (b) Such lands as are needed to meet present and future public 
requirements for outdoor recreation, as may be authorized by Congress.



Sec.  8.3  Easements.

    Easements in lieu of fee title may be taken only for lands that meet 
all of the following conditions:
    (a) Lands lying above the storage pool.
    (b) Lands in remote portions of the project area.
    (c) Lands determined to be of no substantial value for protection or 
enhancement of fish and wildlife resources, or for public outdoor 
recreation.
    (d) It is to the financial advantage of the Government to take 
easements in lieu of fee title.

[[Page 184]]



Sec.  8.4  Blocking out.

    Blocking out will be accomplished in accordance with sound real 
estate practices, for example, on minor sectional subdivision lines; and 
normally land will not be acquired to avoid severance damage if the 
owner will waive such damage.



Sec.  8.5  Mineral rights.

    Mineral, oil and gas rights will not be acquired except where the 
development thereof would interfere with project purposes, but mineral 
rights not acquired will be subordinated to the Government's right to 
regulate their development in a manner that will not interfere with the 
primary purposes of the project, including public access.



Sec.  8.6  Buildings.

    Buildings for human occupancy as well as other structures which 
would interfere with the operation of the project for any project 
purpose will be prohibited on reservoir project lands.



PART 9_INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF THE INTERIOR PROGRAMS
AND ACTIVITIES--Table of Contents



Sec.
9.1 What is the purpose of these regulations?
9.2 What definitions apply to these regulations?
9.3 What programs and activities of the Department are subject to these 
          regulations?
9.4 [Reserved]
9.5 What is the Secretary's obligation with respect to Federal 
          interagency coordination?
9.6 What procedures apply to the selection of programs and activities 
          under these regulations?
9.7 How does the Secretary communicate with state and local officials 
          concerning the Department's programs and activities?
9.8 How does the Secretary provide states an opportunity to comment on 
          proposed federal financial assistance and direct federal 
          development?
9.9 How does the Secretary receive and respond to comments?
9.10 How does the Secretary make efforts to accommodate 
          intergovernmental concerns?
9.11 What are the Secretary's obligations in interstate situations?
9.12 How may a state simplify, consolidate, or substitute federally 
          required state plans?
9.13 May the Secretary waive any provision of these regulations?

    Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended April 
8, 1983 (48 FR 15887); and sec. 401 of the Intergovernmental Cooperation 
Act of 1968 as amended (31 U.S.C. 6506).

    Source: 48 FR 29232, June 24, 1983, unless otherwise noted.



Sec.  9.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on state, areawide, regional and local coordination for review of 
proposed federal financial assistance and direct federal development.
    (c) These regulations are intended to aid the internal management of 
the Department, and are not intended to create any right or benefit 
enforceable at law by a party against the Department or its officers.



Sec.  9.2  What definitions apply to these regulations?

    Department means the U.S. Department of the Interior.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983 and titled ``Intergovernmental Review of Federal 
Programs.''
    Secretary means the Secretary of the U.S. Department of the Interior 
or an official or employee of the Department acting for the Secretary 
under a delegation of authority.
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.

[[Page 185]]



Sec.  9.3  What programs and activities of the Department are subject
to these regulations?

    (a) The Secretary publishes in the Federal Register a list of the 
Department's programs and activities that are subject to these 
regulations and a list of programs and activities that have existing 
consultation processes.
    (b) With respect to programs and activities that a state chooses to 
cover, and that have existing consultation processes, the state must 
agree to adopt those existing processes.



Sec.  9.4  [Reserved]



Sec.  9.5  What is the Secretary's obligation with respect to Federal
interagency coordination?

    The Secretary, to the extent practicable, consults with and seeks 
advice from all other substantially affected federal departments and 
agencies in an effort to assure full coordination between such agencies 
and the Department regarding programs and activities covered under these 
regulations.



Sec.  9.6  What procedures apply to the selection of programs and 
activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance withSec. 9.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Secretary of 
the Department's programs and activities selected for that process.
    (c) A state may notify the Secretary of changes in its selections at 
any time. For each change, the state shall submit to the Secretary an 
assurance that the state has consulted with local elected officials 
regarding the change. The Department may establish deadlines by which 
states are required to inform the Secretary of changes in their program 
selections.
    (d) The Secretary uses a state's process as soon as feasible, 
depending on individual programs and activities, after the Secretary is 
notified of its selections.



Sec.  9.7  How does the Secretary communicate with state and local 
officials concerning the Department's programs and activities?

    (a) For those programs and activities covered by a state process 
underSec. 9.6, the Secretary, to the extent permitted by law:
    (1) Uses the state process to determine views of state and local 
elected officials; and,
    (2) Communicates with state and local elected officials, through the 
state process, as early in a program planning cycle as in reasonably 
feasible to explain specific plans and actions.
    (b) The Secretary provides notice to directly affected state, 
areawide, regional, and local entities in a state of proposed federal 
financial assistance or direct federal development if:
    (1) The state has not adopted a process under the Order; or
    (2) The assistance or development involves a program or activity not 
selected for the state process.

This notice may be made by publication in the Federal Register or other 
appropriate means, which the Department in its discretion deems 
appropriate.



Sec.  9.8  How does the Secretary provide states an opportunity
to comment on proposed federal financial assistance and direct 
federal development?

    (a) Except in unusual circumstances, the Secretary gives state 
processes or directly affected state, areawide, regional and local 
officials and entities:
    (1) At least 30 days from the date established by the Secretary to 
comment on proposed federal financial assistance in the form of 
noncompeting continuation awards; and
    (2) At least 60 days from the date established by the Secretary to 
comment on proposed direct federal development or federal financial 
assistance other than noncompeting continuation awards.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Department have been 
delegated.

[[Page 186]]



Sec.  9.9  How does the Secretary receive and respond to comments?

    (a) The Secretary follows the procedures inSec. 9.10 if:
    (1) A state office or official is designated to act as a single 
point of contact between a state process and all federal agencies, and
    (2) That office or official transmits a state process recommendation 
for a program selected underSec. 9.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from state, areawide, regional or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.
    (c) If a state has not established a process, or is unable to submit 
a state process recommendation, state, areawide, regional and local 
officials and entities may submit comments either to the applicant or to 
the Department.
    (d) If a program or activity is not selected for a state process, 
state, areawide, regional and local officials and entities may submit 
comments either to the applicant or to the Department. In addition, if a 
state process recommendation for a nonselected program or activity is 
transmitted to the Department by a single point of contact, the 
Secretary follows the procedures ofSec. 9.10 of this part.
    (e) The Secretary considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Secretary is not required to apply the procedures ofSec. 9.10 of 
this part, when such comments are provided by a single point of contact, 
by the applicant, or directly to the Department by a commenting party.



Sec.  9.10  How does the Secretary make efforts to accommodate 
intergovernmental concerns?

    (a) If a state process provides a state process recommendation to 
the Department through its single point of contact, the Secretary 
either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with such written 
explanation of the decision, as the Secretary in his or her discretion 
deems appropriate. The Secretary may also supplement the written 
explanation by providing the explanation to the single point of contact 
by telephone, other telecommunication, or other means.
    (b) In any explanation under paragraph (a)(3) of the section, the 
Secretary informs the single point of contact that:
    (1) The Department will not implement its decision for at least ten 
days after the single point of contact receives the explanation; or
    (2) The Secretary has reviewed the decision and determined that, 
because of unusual circumstances, the waiting period of at least ten 
days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1) of this section, a single point of contact is presumed to have 
received written notification 5 days after the date of mailing of such 
notification.



Sec.  9.11  What are the Secretary's obligations in interstate
situations?

    (a) The Secretary is responsible for:
    (1) Identifying proposed federal financial assistance and direct 
Federal development that have an impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select the Department's program or 
activity;
    (3) Making efforts to identify and notify the affected state, 
areawide, regional, and local officials and entities in those states 
that have not adopted a process under the Order or do not select the 
Department's program or activity;
    (4) Responding pursuant toSec. 9.10 of this part if the Secretary 
receives a recommendation from a designated areawide agency transmitted 
by a single point of contact, in cases in which the review, 
coordination, and communication with the Department have been delegated.
    (b) The Secretary uses the procedures inSec. 9.10 if a state 
process provides a

[[Page 187]]

state process recommendation to the Department through a single point of 
contact.



Sec.  9.12  How may a state simplify, consolidate, or substitute 
federally required state plans?

    (a) As used in this section:
    (1) Simplify means that a state may develop its own format, choose 
its own submission date, and select the planning period for a state 
plan.
    (2) Consolidate means that a state may meet statutory and regulatory 
requirements by combining two or more plans into one document and that 
the state can select the format, submission date, and planning period 
for the consolidated plan.
    (3) Substitute means that a state may use a plan or other document 
that it has developed for its own purposes to meet Federal requirements.
    (b) If not inconsistent with law, a state may decide to try to 
simplify, consolidate, or substitute Federally required state plans 
without prior approval by the Secretary.
    (c) The Secretary reviews each state plan that a state has 
simplified, consolidated, or substituted and accepts the plan only if 
its contents meet Federal requirements.



Sec.  9.13  May the Secretary waive any provision of these regulations?

    In an emergency, the Secretary may waive any provision of these 
regulations.



PART 10_NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS
--Table of Contents



                         Subpart A_Introduction

Sec.
10.1 Purpose, applicability, and information collection.
10.2 Definitions

Subpart B_Human Remains, Funerary Objects, Sacred Objects, or Objects of 
             Cultural Patrimony From Federal or Tribal Lands

10.3 Intentional archaeological excavations.
10.4 Inadvertent discoveries.
10.5 Consultation.
10.6 Custody.
10.7 Disposition of unclaimed human remains, funerary objects, sacred 
          objects, or objects of cultural patrimony. [Reserved]

Subpart C_Human Remains, Funerary Objects, Sacred Objects, or Objects of 
          Cultural Patrimony in Museums and Federal Collections

10.8 Summaries.
10.9 Inventories.
10.10 Repatriation.
10.11 Disposition of culturally unidentifiable human remains.
10.12 Civil penalties.
10.13 Future applicability.

                            Subpart D_General

10.14 Lineal descent and cultural affiliation.
10.15 Limitations and remedies.
10.16 Review committee.
10.17 Dispute resolution.

    Authority: 16 U.S.C. 470dd; 25 U.S.C. 9, 3001 et seq.

    Source: 60 FR 62158, Dec. 4, 1995, unless otherwise noted.



                         Subpart A_Introduction



Sec.  10.1  Purpose, applicability, and information collection.

    (a) Purpose. These regulations carry out provisions of the Native 
American Graves Protection and Repatriation Act of 1990 (Pub.L. 101-601; 
25 U.S.C. 3001-3013;104 Stat. 3048-3058). These regulations develop a 
systematic process for determining the rights of lineal descendants and 
Indian tribes and Native Hawaiian organizations to certain Native 
American human remains, funerary objects, sacred objects, or objects of 
cultural patrimony with which they are affiliated.
    (b) Applicability. (1) These regulations pertain to the 
identification and appropriate disposition of human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that are:
    (i) In Federal possession or control; or
    (ii) In the possession or control of any institution or State or 
local government receiving Federal funds; or
    (iii) Excavated intentionally or discovered inadvertently on Federal 
or tribal lands.

[[Page 188]]

    (2) These regulations apply to human remains, funerary objects, 
sacred objects, or objects of cultural patrimony which are indigenous to 
Alaska, Hawaii, and the continental United States, but not to 
territories of the United States.
    (3) Throughout this part are decision points which determine how 
this part applies in particular circumstances, e.g., a decision as to 
whether a museum ``controls'' human remains and cultural objects within 
the meaning of the regulations, or a decision as to whether an object is 
a ``human remain,'' ``funerary object,'' ``sacred object,'' or ``object 
of cultural patrimony'' within the meaning of the regulations. Any final 
determination making the Act or this part inapplicable is subject to 
review under section 15 of the Act. With respect to Federal agencies, 
the final denial of a request of a lineal descendant, Indian tribe, or 
Native Hawaiian organization for the repatriation or disposition of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony brought under, and in compliance with, the Act and this part 
constitutes a final agency action under the Administrative Procedure Act 
(5 U.S.C. 704).
    (c) The information collection requirements contained in this part 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. and assigned control number 1024-0144. A Federal 
agency may not conduct or sponsor, and you are not required to respond 
to, a collection of information unless it displays a currently valid OMB 
control number.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 75 
FR 12402, Mar. 15, 2010]



Sec.  10.2  Definitions.

    In addition to the term Act, which means the Native American Graves 
Protection and Repatriation Act as described above, definitions used in 
these regulations are grouped in seven classes: Parties required to 
comply with these regulations; Parties with standing to make claims 
under these regulations; Parties responsible for implementing these 
regulations; Objects covered by these regulations; Cultural affiliation; 
Types of land covered by these regulations; and Procedures required by 
these regulations.
    (a) Who must comply with these regulations? (1) Federal agency means 
any department, agency, or instrumentality of the United States. Such 
term does not include the Smithsonian Institution as specified in 
section 2 (4) of the Act.
    (2) Federal agency official means any individual authorized by 
delegation of authority within a Federal agency to perform the duties 
relating to these regulations.
    (3) Museum means any institution or State or local government agency 
(including any institution of higher learning) that has possession of, 
or control over, human remains, funerary objects, sacred objects, or 
objects of cultural patrimony and receives Federal funds.
    (i) The term ``possession'' means having physical custody of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony with a sufficient legal interest to lawfully treat the objects 
as part of its collection for purposes of these regulations. Generally, 
a museum or Federal agency would not be considered to have possession of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony on loan from another individual, museum, or Federal agency.
    (ii) The term ``control'' means having a legal interest in human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony sufficient to lawfully permit the museum or Federal agency to 
treat the objects as part of its collection for purposes of these 
regulations whether or not the human remains, funerary objects, sacred 
objects or objects of cultural patrimony are in the physical custody of 
the museum or Federal agency. Generally, a museum or Federal agency that 
has loaned human remains, funerary objects, sacred objects, or objects 
of cultural patrimony to another individual, museum, or Federal agency 
is considered to retain control of those human remains, funerary 
objects, sacred objects, or objects of cultural patrimony for purposes 
of these regulations.
    (iii) The phrase ``receives Federal funds'' means the receipt of 
funds by a museum after November 16, 1990, from a Federal agency through 
any grant,

[[Page 189]]

loan, contract (other than a procurement contract), or other arrangement 
by which a Federal agency makes or made available to a museum aid in the 
form of funds. Federal funds provided for any purpose that are received 
by a larger entity of which the museum is a part are considered Federal 
funds for the purposes of these regulations. For example, if a museum is 
a part of a State or local government or a private university and the 
State or local government or private university receives Federal funds 
for any purpose, the museum is considered to receive Federal funds for 
the purpose of these regulations.
    (4) Museum official means the individual within a museum designated 
as being responsible for matters relating to these regulations.
    (5) Person means an individual, partnership, corporation, trust, 
institution, association, or any other private entity, or, any official, 
employee, agent, department, or instrumentality of the United States, or 
of any Indian tribe or Native Hawaiian organization, or of any State or 
political subdivision thereof that discovers or discovered human 
remains, funerary objects, sacred objects or objects of cultural 
patrimony on Federal or tribal lands after November 16, 1990.
    (b) Who has standing to make a claim under these regulations? (1) 
Lineal descendant means an individual tracing his or her ancestry 
directly and without interruption by means of the traditional kinship 
system of the appropriate Indian tribe or Native Hawaiian organization 
or by the common law system of descendance to a known Native American 
individual whose remains, funerary objects, or sacred objects are being 
claimed under these regulations.
    (2) [Reserved]
    (3)(i) Native Hawaiian organization means any organization that:
    (A) Serves and represents the interests of Native Hawaiians;
    (B) Has as a primary and stated purpose the provision of services to 
Native Hawaiians; and
    (C) Has expertise in Native Hawaiian affairs.
    (ii) The term Native Hawaiian means any individual who is a 
descendant of the aboriginal people who, prior to 1778, occupied and 
exercised sovereignty in the area that now constitutes the State of 
Hawaii. Such organizations must include the Office of Hawaiian Affairs 
and Hui Malama I NaKupuna 'O Hawai'i Nei.
    (4) Indian tribe official means the principal leader of an Indian 
tribe or Native Hawaiian organization or the individual officially 
designated by the governing body of an Indian tribe or Native Hawaiian 
organization or as otherwise provided by tribal code, policy, or 
established procedure as responsible for matters relating to these 
regulations.
    (c) Who is responsible for carrying out these regulations? (1) 
Secretary means the Secretary of the Interior or a designee.
    (2) Review Committee means the advisory committee established 
pursuant to section 8 of the Act.
    (3) Manager, National NAGPRA Program means the official of the 
Department of the Interior designated by the Secretary as responsible 
for administration of matters relating to this part. Communications to 
the Manager, National NAGPRA Program should be sent to the mailing 
address listed on the National NAGPRA Contact Information Web site, 
http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM.
    (d) What objects are covered by these regulations? The Act covers 
four types of Native American objects. The term Native American means 
of, or relating to, a tribe, people, or culture indigenous to the United 
States, including Alaska and Hawaii.
    (1) Human remains means the physical remains of the body of a person 
of Native American ancestry. The term does not include remains or 
portions of remains that may reasonably be determined to have been 
freely given or naturally shed by the individual from whose body they 
were obtained, such as hair made into ropes or nets. For the purposes of 
determining cultural affiliation, human remains incorporated into a 
funerary object, sacred object, or object of cultural patrimony, as 
defined below, must be considered as part of that item.
    (2) Funerary objects means items that, as part of the death rite or 
ceremony of

[[Page 190]]

a culture, are reasonably believed to have been placed intentionally at 
the time of death or later with or near individual human remains. 
Funerary objects must be identified by a preponderance of the evidence 
as having been removed from a specific burial site of an individual 
affiliated with a particular Indian tribe or Native Hawaiian 
organization or as being related to specific individuals or families or 
to known human remains. The term burial site means any natural or 
prepared physical location, whether originally below, on, or above the 
surface of the earth, into which, as part of the death rite or ceremony 
of a culture, individual human remains were deposited, and includes rock 
cairns or pyres which do not fall within the ordinary definition of 
gravesite. For purposes of completing the summary requirements inSec. 
10.8 and the inventory requirements ofSec. 10.9:
    (i) Associated funerary objects means those funerary objects for 
which the human remains with which they were placed intentionally are 
also in the possession or control of a museum or Federal agency. 
Associated funerary objects also means those funerary objects that were 
made exclusively for burial purposes or to contain human remains.
    (ii) Unassociated funerary objects means those funerary objects for 
which the human remains with which they were placed intentionally are 
not in the possession or control of a museum or Federal agency. Objects 
that were displayed with individual human remains as part of a death 
rite or ceremony of a culture and subsequently returned or distributed 
according to traditional custom to living descendants or other 
individuals are not considered unassociated funerary objects.
    (3) Sacred objects means items that are specific ceremonial objects 
needed by traditional Native American religious leaders for the practice 
of traditional Native American religions by their present-day adherents. 
While many items, from ancient pottery sherds to arrowheads, might be 
imbued with sacredness in the eyes of an individual, these regulations 
are specifically limited to objects that were devoted to a traditional 
Native American religious ceremony or ritual and which have religious 
significance or function in the continued observance or renewal of such 
ceremony. The term traditional religious leader means a person who is 
recognized by members of an Indian tribe or Native Hawaiian organization 
as:
    (i) Being responsible for performing cultural duties relating to the 
ceremonial or religious traditions of that Indian tribe or Native 
Hawaiian organization, or
    (ii) Exercising a leadership role in an Indian tribe or Native 
Hawaiian organization based on the tribe or organization's cultural, 
ceremonial, or religious practices.
    (4) Objects of cultural patrimony means items having ongoing 
historical, traditional, or cultural importance central to the Indian 
tribe or Native Hawaiian organization itself, rather than property owned 
by an individual tribal or organization member. These objects are of 
such central importance that they may not be alienated, appropriated, or 
conveyed by any individual tribal or organization member. Such objects 
must have been considered inalienable by the culturally affiliated 
Indian tribe or Native Hawaiian organization at the time the object was 
separated from the group. Objects of cultural patrimony include items 
such as Zuni War Gods, the Confederacy Wampum Belts of the Iroquois, and 
other objects of similar character and significance to the Indian tribe 
or Native Hawaiian organization as a whole.
    (e)(1) What is cultural affiliation? Cultural affiliation means that 
there is a relationship of shared group identity that can be reasonably 
traced historically or prehistorically between members of a present-day 
Indian tribe or Native Hawaiian organization and an identifiable earlier 
group. Cultural affiliation is established when the preponderance of the 
evidence--based on geographical, kinship, biological, archeological, 
anthropological, linguistic, folklore, oral tradition, historical 
evidence, or other information or expert opinion--reasonably leads to 
such a conclusion.
    (2) What does culturally unidentifiable mean? Culturally 
unidentifiable refers

[[Page 191]]

to human remains and associated funerary objects in museum or Federal 
agency collections for which no lineal descendant or culturally 
affiliated Indian tribe or Native Hawaiian organization has been 
identified through the inventory process.
    (f) What types of lands do the excavation and discovery provisions 
of these regulations apply to? (1) Federal lands means any land other 
than tribal lands that are controlled or owned by the United States 
Government, including lands selected by but not yet conveyed to Alaska 
Native Corporations and groups organized pursuant to the Alaska Native 
Claims Settlement Act (43 U.S.C. 1601 et seq.). United States 
``control,'' as used in this definition, refers to those lands not owned 
by the United States but in which the United States has a legal interest 
sufficient to permit it to apply these regulations without abrogating 
the otherwise existing legal rights of a person.
    (2) Tribal lands means all lands which:
    (i) Are within the exterior boundaries of any Indian reservation 
including, but not limited to, allotments held in trust or subject to a 
restriction on alienation by the United States; or
    (ii) Comprise dependent Indian communities as recognized pursuant to 
18 U.S.C. 1151; or
    (iii) Are administered for the benefit of Native Hawaiians pursuant 
to the Hawaiian Homes Commission Act of 1920 and section 4 of the 
Hawaiian Statehood Admission Act (Pub.L. 86-3; 73 Stat. 6).
    (iv) Actions authorized or required under these regulations will not 
apply to tribal lands to the extent that any action would result in a 
taking of property without compensation within the meaning of the Fifth 
Amendment of the United States Constitution.
    (g) What procedures are required by these regulations? (1) Summary 
means the written description of collections that may contain 
unassociated funerary objects, sacred objects, and objects of cultural 
patrimony required bySec. 10.8 of these regulations.
    (2) Inventory means the item-by-item description of human remains 
and associated funerary objects.
    (3) Intentional excavation means the planned archeological removal 
of human remains, funerary objects, sacred objects, or objects of 
cultural patrimony found under or on the surface of Federal or tribal 
lands pursuant to section 3 (c) of the Act.
    (4) Inadvertent discovery means the unanticipated encounter or 
detection of human remains, funerary objects, sacred objects, or objects 
of cultural patrimony found under or on the surface of Federal or tribal 
lands pursuant to section 3 (d) of the Act.
    (5) Disposition means the transfer of control over Native American 
human remains, funerary objects, sacred objects, and objects of cultural 
patrimony by a museum or Federal agency under this part. This part 
establishes disposition procedures for several different situations:
    (i) Custody of human remains, funerary objects, sacred objects, and 
objects of cultural patrimony excavated intentionally from, or 
discovered inadvertently on, Federal or tribal lands after November 16, 
1990, is established underSec. 10.6.
    (ii) Repatriation of human remains, funerary objects, sacred 
objects, and objects of cultural patrimony in museum and Federal agency 
collections to a lineal descendant or culturally affiliated Indian tribe 
or Native Hawaiian organization is established underSec. 10.10.
    (iii) Disposition of culturally unidentifiable human remains, with 
or without associated funerary objects, in museum or Federal agency 
collections is established underSec. 10.11.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 70 
FR 57179, Sept. 30, 2005; 71 FR 16501, Apr. 3, 2006; 75 FR 12403, Mar. 
15, 2010; 76 FR 39009, July 5, 2011; 78 FR 27082, May 9, 2013]



Subpart B_Human Remains, Funerary Objects, Sacred Objects, or Objects of 
             Cultural Patrimony From Federal or Tribal Lands



Sec.  10.3  Intentional archaeological excavations.

    (a) General. This section carries out section 3 (c) of the Act 
regarding the custody of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony that are excavated

[[Page 192]]

intentionally from Federal or tribal lands after November 16, 1990.
    (b) Specific Requirements. These regulations permit the intentional 
excavation of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony from Federal or tribal lands only if:
    (1) The objects are excavated or removed following the requirements 
of the Archaeological Resources Protection Act (ARPA) (16 U.S.C. 470aa 
et seq.) and its implementing regulations. Regarding private lands 
within the exterior boundaries of any Indian reservation, the Bureau of 
Indian Affairs (BIA) will serve as the issuing agency for any permits 
required under the Act. For BIA procedures for obtaining such permits, 
see 25 CFR part 262 or contact the Deputy Commissioner of Indian 
Affairs, Department of the Interior, Washington, DC 20240. Regarding 
lands administered for the benefit of Native Hawaiians pursuant to the 
Hawaiian Homes Commission Act, 1920, and section 4 of Pub. L. 86-3, the 
Department of Hawaiian Home Lands will serve as the issuing agency for 
any permits required under the Act, with the Hawaii State Historic 
Preservation Division of the Department of Land and Natural Resources 
acting in an advisory capacity for such issuance. Procedures and 
requirements for issuing permits will be consistent with those required 
by the ARPA and its implementing regulations;
    (2) The objects are excavated after consultation with or, in the 
case of tribal lands, consent of, the appropriate Indian tribe or Native 
Hawaiian organization pursuant toSec. 10.5;
    (3) The disposition of the objects is consistent with their custody 
as described inSec. 10.6; and
    (4) Proof of the consultation or consent is shown to the Federal 
agency official or other agency official responsible for the issuance of 
the required permit.
    (c) Procedures. (1) The Federal agency official must take reasonable 
steps to determine whether a planned activity may result in the 
excavation of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony from Federal lands. Prior to issuing any 
approvals or permits for activities, the Federal agency official must 
notify in writing the Indian tribes or Native Hawaiian organizations 
that are likely to be culturally affiliated with any human remains, 
funerary objects, sacred objects, or objects of cultural patrimony that 
may be excavated. The Federal agency official must also notify any 
present-day Indian tribe which aboriginally occupied the area of the 
planned activity and any other Indian tribes or Native Hawaiian 
organizations that the Federal agency official reasonably believes are 
likely to have a cultural relationship to the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that are 
expected to be found. The notice must be in writing and describe the 
planned activity, its general location, the basis upon which it was 
determined that human remains, funerary objects, sacred objects, or 
objects of cultural patrimony may be excavated, and, the basis for 
determining likely custody pursuant toSec. 10.6. The notice must also 
propose a time and place for meetings or consultations to further 
consider the activity, the Federal agency's proposed treatment of any 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony that may be excavated, and the proposed disposition of any 
excavated human remains, funerary objects, sacred objects, or objects of 
cultural patrimony. Written notification should be followed up by 
telephone contact if there is no response in 15 days. Consultation must 
be conducted pursuant toSec. 10.5.
    (2) Following consultation, the Federal agency official must 
complete a written plan of action (described inSec. 10.5(e)) and 
execute the actions called for in it.
    (3) If the planned activity is also subject to review under section 
106 of the National Historic Preservation Act (16 U.S.C. 470 et seq.), 
the Federal agency official should coordinate consultation and any 
subsequent agreement for compliance conducted under that Act with the 
requirements ofSec. 10.3 (c)(2) andSec. 10.5. Compliance with these 
regulations does not relieve Federal agency officials of requirements to 
comply with section 106 of the National Historic Preservation Act (16 
U.S.C. 470 et seq.).

[[Page 193]]

    (4) If an Indian tribe or Native Hawaiian organization receives 
notice of a planned activity or otherwise becomes aware of a planned 
activity that may result in the excavation of human remains, funerary 
objects, sacred objects, or objects of cultural patrimony on tribal 
lands, the Indian tribe or Native Hawaiian organization may take 
appropriate steps to:
    (i) Ensure that the human remains, funerary objects, sacred objects, 
or objects of cultural patrimony are excavated or removed following 
Sec.  10.3 (b), and
    (ii) Make certain that the disposition of any human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
excavated intentionally or discovered inadvertently as a result of the 
planned activity are carried out followingSec. 10.6.



Sec.  10.4  Inadvertent discoveries.

    (a) General. This section carries out section 3 (d) of the Act 
regarding the custody of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony that are discovered 
inadvertently on Federal or tribal lands after November 16, 1990.
    (b) Discovery. Any person who knows or has reason to know that he or 
she has discovered inadvertently human remains, funerary objects, sacred 
objects, or objects of cultural patrimony on Federal or tribal lands 
after November 16, 1990, must provide immediate telephone notification 
of the inadvertent discovery, with written confirmation, to the 
responsible Federal agency official with respect to Federal lands, and, 
with respect to tribal lands, to the responsible Indian tribe official. 
The requirements of these regulations regarding inadvertent discoveries 
apply whether or not an inadvertent discovery is duly reported. If 
written confirmation is provided by certified mail, the return receipt 
constitutes evidence of the receipt of the written notification by the 
Federal agency official or Indian tribe official.
    (c) Ceasing activity. If the inadvertent discovery occurred in 
connection with an on-going activity on Federal or tribal lands, the 
person, in addition to providing the notice described above, must stop 
the activity in the area of the inadvertent discovery and make a 
reasonable effort to protect the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony discovered inadvertently.
    (d) Federal lands. (1) As soon as possible, but no later than three 
(3) working days after receipt of the written confirmation of 
notification with respect to Federal lands described inSec. 10.4 (b), 
the responsible Federal agency official must:
    (i) Certify receipt of the notification;
    (ii) Take immediate steps, if necessary, to further secure and 
protect inadvertently discovered human remains, funerary objects, sacred 
objects, or objects of cultural patrimony, including, as appropriate, 
stabilization or covering;
    (iii) Notify any known lineal descendants of a deceased Native 
American individual whose human remains and associated funerary objects 
were discovered of such discovery, and, with respect to a discovery of 
human remains, associated funerary objects, unassociated funerary 
objects, sacred objects, or objects of cultural patrimony, notify the 
Indian tribes or Native Hawaiian organizations likely to be culturally 
affiliated with the cultural items, the Indian tribe or Native Hawaiian 
organization that aboriginally occupied the area, and any other Indian 
tribe or Native Hawaiian organization known to have a cultural 
relationship to the cultural items. This notification must be by 
telephone with written confirmation and must include information about 
the kinds of human remains, associated funerary objects, unassociated 
funerary objects, sacred objects, or objects of cultural patrimony, 
their condition, and the circumstances of their discovery;
    (iv) Initiate consultation on the inadvertent discovery pursuant to 
Sec.  10.5;
    (v) If the human remains, funerary objects, sacred objects, or 
objects of cultural patrimony must be excavated or removed, follow the 
requirements and procedures inSec. 10.3 (b) of these regulations; and
    (vi) Ensure that disposition of all inadvertently discovered human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is carried out followingSec. 10.6.

[[Page 194]]

    (2) Resumption of activity. The activity that resulted in the 
inadvertent discovery may resume thirty (30) days after certification by 
the notified Federal agency of receipt of the written confirmation of 
notification of inadvertent discovery if the resumption of the activity 
is otherwise lawful. The activity may also resume, if otherwise lawful, 
at any time that a written, binding agreement is executed between the 
Federal agency and the affiliated Indian tribes or Native Hawaiian 
organizations that adopt a recovery plan for the excavation or removal 
of the human remains, funerary objects, sacred objects, or objects of 
cultural patrimony followingSec. 10.3 (b)(1) of these regulations. The 
disposition of all human remains, funerary objects, sacred objects, or 
objects of cultural patrimony must be carried out followingSec. 10.6.
    (e) Tribal lands. (1) As soon as possible, but no later than three 
(3) working days after receipt of the written confirmation of 
notification with respect to Tribal lands described inSec. 10.4 (b), 
the responsible Indian tribe official may:
    (i) Certify receipt of the notification;
    (ii) Take immediate steps, if necessary, to further secure and 
protect inadvertently discovered human remains, funerary objects, sacred 
objects, or objects of cultural patrimony, including, as appropriate, 
stabilization or covering;
    (iii) If the human remains, funerary objects, sacred objects, or 
objects of cultural patrimony must be excavated or removed, follow the 
requirements and procedures inSec. 10.3 (b) of these regulations; and
    (iv) Ensure that disposition of all inadvertently discovered human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is carried out followingSec. 10.6.
    (2) Resumption of Activity. The activity that resulted in the 
inadvertent discovery may resume if otherwise lawful after thirty (30) 
days of the certification of the receipt of notification by the Indian 
tribe or Native Hawaiian organization.
    (f) Federal agency officials. Federal agency officials should 
coordinate their responsibilities under this section with their 
emergency discovery responsibilities under section 106 of the National 
Historical Preservation Act (16 U.S.C. 470 (f) et seq.), 36 CFR 800.11 
or section 3 (a) of the Archeological and Historic Preservation Act (16 
U.S.C. 469 (a-c)). Compliance with these regulations does not relieve 
Federal agency officials of the requirement to comply with section 106 
of the National Historical Preservation Act (16 U.S.C. 470 (f) et seq.), 
36 CFR 800.11 or section 3 (a) of the Archeological and Historic 
Preservation Act (16 U.S.C. 469 (a-c)).
    (g) Notification requirement in authorizations. All Federal 
authorizations to carry out land use activities on Federal lands or 
tribal lands, including all leases and permits, must include a 
requirement for the holder of the authorization to notify the 
appropriate Federal or tribal official immediately upon the discovery of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony pursuant toSec. 10.4 (b) of these regulations.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 78 
FR 27082, May 9, 2013]



Sec.  10.5  Consultation.

    Consultation as part of the intentional excavation or inadvertent 
discovery of human remains, funerary objects, sacred objects, or objects 
of cultural patrimony on Federal lands must be conducted in accordance 
with the following requirements.
    (a) Consulting parties. Federal agency officials must consult with 
known lineal descendants and Indian tribe officials:
    (1) From Indian tribes on whose aboriginal lands the planned 
activity will occur or where the inadvertent discovery has been made; 
and
    (2) From Indian tribes and Native Hawaiian organizations that are, 
or are likely to be, culturally affiliated with the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony; and
    (3) From Indian tribes and Native Hawaiian organizations that have a 
demonstrated cultural relationship with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony.

[[Page 195]]

    (b) Initiation of consultation. (1) Upon receiving notice of, or 
otherwise becoming aware of, an inadvertent discovery or planned 
activity that has resulted or may result in the intentional excavation 
or inadvertent discovery of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony on Federal lands, the 
responsible Federal agency official must, as part of the procedures 
described in Sec.Sec. 10.3 and 10.4, take appropriate steps to 
identify the lineal descendant, Indian tribe, or Native Hawaiian 
organization entitled to custody of the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony pursuant toSec. 10.6 
andSec. 10.14. The Federal agency official shall notify in writing:
    (i) Any known lineal descendants of the deceased Native American 
individual whose human remains and associated funerary objects have been 
or are likely to be excavated intentionally or discovered inadvertently; 
and
    (ii) The Indian tribes or Native Hawaiian organizations that are 
likely to be culturally affiliated with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that have been 
or are likely to be excavated intentionally or discovered inadvertently; 
and
    (iii) The Indian tribes which aboriginally occupied the area in 
which the human remains, funerary objects, sacred objects, or objects of 
cultural patrimony have been or are likely to be excavated intentionally 
or discovered inadvertently; and
    (iv) The Indian tribes or Native Hawaiian organizations that have a 
demonstrated cultural relationship with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that have been 
or are likely to be excavated intentionally or discovered inadvertently.
    (2) The notice must propose a time and place for meetings or 
consultation to further consider the intentional excavation or 
inadvertent discovery, the Federal agency's proposed treatment of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony that may be excavated, and the proposed disposition of any 
intentionally excavated or inadvertently discovered human remains, 
funerary objects, sacred objects, or objects of cultural patrimony.
    (3) The consultation must seek to identify traditional religious 
leaders who should also be consulted and seek to identify, where 
applicable, lineal descendants and Indian tribes or Native Hawaiian 
organizations affiliated with the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony.
    (c) Provision of information. During the consultation process, as 
appropriate, the Federal agency official must provide the following 
information in writing to the lineal descendants and the officials of 
Indian tribes or Native Hawaiian organizations that are or are likely to 
be affiliated with the human remains, funerary objects, sacred objects, 
or objects of cultural patrimony excavated intentionally or discovered 
inadvertently on Federal lands:
    (1) A list of all lineal descendants and Indian tribes or Native 
Hawaiian organizations that are being, or have been, consulted regarding 
the particular human remains, funerary objects, sacred objects, or 
objects of cultural patrimony;
    (2) An indication that additional documentation used to identify 
affiliation will be supplied upon request.
    (d) Requests for information. During the consultation process, 
Federal agency officials must request, as appropriate, the following 
information from Indian tribes or Native Hawaiian organizations that 
are, or are likely to be, affiliated pursuant toSec. 10.6 (a) with 
intentionally excavated or inadvertently discovered human remains, 
funerary objects, sacred objects, or objects of cultural patrimony:
    (1) Name and address of the Indian tribe official to act as 
representative in consultations related to particular human remains, 
funerary objects, sacred objects, or objects of cultural patrimony;
    (2) Names and appropriate methods to contact lineal descendants who 
should be contacted to participate in the consultation process;

[[Page 196]]

    (3) Recommendations on how the consultation process should be 
conducted; and
    (4) Kinds of cultural items that the Indian tribe or Native Hawaiian 
organization considers likely to be unassociated funerary objects, 
sacred objects, or objects of cultural patrimony.
    (e) Written plan of action. Following consultation, the Federal 
agency official must prepare, approve, and sign a written plan of 
action. A copy of this plan of action must be provided to the lineal 
descendants, Indian tribes and Native Hawaiian organizations involved. 
Lineal descendants and Indian tribe official(s) may sign the written 
plan of action as appropriate. At a minimum, the plan of action must 
comply withSec. 10.3 (b)(1) and document the following:
    (1) The kinds of objects to be considered as cultural items as 
defined inSec. 10.2 (b);
    (2) The specific information used to determine custody pursuant to 
Sec.  10.6;
    (3) The planned treatment, care, and handling of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
recovered;
    (4) The planned archeological recording of the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
recovered;
    (5) The kinds of analysis planned for each kind of object;
    (6) Any steps to be followed to contact Indian tribe officials at 
the time of intentional excavation or inadvertent discovery of specific 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony;
    (7) The kind of traditional treatment, if any, to be afforded the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony by members of the Indian tribe or Native Hawaiian 
organization;
    (8) The nature of reports to be prepared; and
    (9) The planned disposition of human remains, funerary objects, 
sacred objects, or objects of cultural patrimony followingSec. 10.6.
    (f) Comprehensive agreements. Whenever possible, Federal Agencies 
should enter into comprehensive agreements with Indian tribes or Native 
Hawaiian organizations that are affiliated with human remains, funerary 
objects, sacred objects, or objects of cultural patrimony and have 
claimed, or are likely to claim, those human remains, funerary objects, 
sacred objects, or objects of cultural patrimony excavated intentionally 
or discovered inadvertently on Federal lands. These agreements should 
address all Federal agency land management activities that could result 
in the intentional excavation or inadvertent discovery of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony. 
Consultation should lead to the establishment of a process for 
effectively carrying out the requirements of these regulations regarding 
standard consultation procedures, the determination of custody 
consistent with procedures in this section andSec. 10.6, and the 
treatment and disposition of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony. The signed agreements, or the 
correspondence related to the effort to reach agreements, must 
constitute proof of consultation as required by these regulations.
    (g) Traditional religious leaders. The Federal agency official must 
be cognizant that Indian tribe officials may need to confer with 
traditional religious leaders prior to making recommendations. Indian 
tribe officials are under no obligation to reveal the identity of 
traditional religious leaders.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 78 
FR 27083, May 9, 2013]



Sec.  10.6  Custody.

    (a) Priority of custody. This section carries out section 3 (a) of 
the Act, subject to the limitations ofSec. 10.15, regarding the 
custody of human remains, funerary objects, sacred objects, or objects 
of cultural patrimony excavated intentionally or discovered 
inadvertently in Federal or tribal lands after November 16, 1990. For 
the purposes of this section, custody means ownership or control of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony excavated intentionally or discovered inadvertently in Federal 
or tribal lands after November

[[Page 197]]

16, 1990. Custody of these human remains, funerary objects, sacred 
objects, or objects of cultural patrimony is, with priority given in the 
order listed:
    (1) In the case of human remains and associated funerary objects, in 
the lineal descendant of the deceased individual as determined pursuant 
toSec. 10.14 (b);
    (2) When a lineal descendant of a deceased Native American 
individual cannot be ascertained with respect to the human remains and 
associated funerary objects, and with respect to unassociated funerary 
objects, sacred objects, and objects of cultural patrimony:
    (i) In the Indian tribe on whose tribal land the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony were 
excavated intentionally or discovered inadvertently;
    (ii) In the Indian tribe or Native Hawaiian organization that has 
the closest cultural affiliation with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony as determined 
pursuant toSec. 10.14 (c); or
    (iii) In circumstances in which the cultural affiliation of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony cannot be ascertained and the objects were excavated 
intentionally or discovered inadvertently on Federal land that is 
recognized by a final judgment of the Indian Claims Commission or the 
United States Court of Claims as the aboriginal land of an Indian tribe:
    (A) In the Indian tribe aboriginally occupying the Federal land on 
which the human remains, funerary objects, sacred objects, or objects of 
cultural patrimony were excavated intentionally or discovered 
inadvertently, or
    (B) If a preponderance of the evidence shows that a different Indian 
tribe or Native Hawaiian organization has a stronger cultural 
relationship with the human remains, associated funerary objects, 
unassociated funerary objects, sacred objects, or objects of cultural 
patrimony, in the Indian tribe or Native Hawaiian organization that has 
the strongest demonstrated relationship with the cultural items.
    (b) Custody of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony and other provisions of the Act apply to 
all intentional excavations and inadvertent discoveries made after 
November 16, 1990, including those made before the effective date of 
these regulations.
    (c) Final notice, claims and disposition with respect to Federal 
lands. Upon determination of the lineal descendant, Indian tribe, or 
Native Hawaiian organization that under these regulations appears to be 
entitled to custody of particular human remains, funerary objects, 
sacred objects, or objects of cultural patrimony excavated intentionally 
or discovered inadvertently on Federal lands, the responsible Federal 
agency official must, subject to the notice required herein and the 
limitations ofSec. 10.15, transfer custody of the objects to the 
lineal descendant, Indian tribe, or Native Hawaiian organization 
following appropriate procedures, which must respect traditional customs 
and practices of the affiliated Indian tribes or Native Hawaiian 
organizations in each instance. Prior to any such disposition by a 
Federal agency official, the Federal agency official must publish 
general notices of the proposed disposition in a newspaper of general 
circulation in the area in which the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony were excavated 
intentionally or discovered inadvertently and, if applicable, in a 
newspaper of general circulation in the area(s) in which affiliated 
Indian tribes or Native Hawaiian organizations members now reside. The 
notice must provide information as to the nature and affiliation of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony and solicit further claims to custody. The notice must be 
published at least two (2) times at least a week apart, and the transfer 
must not take place until at least thirty (30) days after the 
publication of the second notice to allow time for any additional 
claimants to come forward. If additional claimants do come forward and 
the Federal agency official cannot clearly determine which claimant is 
entitled to custody, the Federal agency must not transfer custody of the 
objects until such time as the proper recipient is determined pursuant 
to these

[[Page 198]]

regulations. The Federal agency official must send a copy of the notice 
and information on when and in what newspaper(s) the notice was 
published to the Manager, National NAGPRA Program.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 71 
FR 16501, Apr. 3, 2006; 78 FR 27083, May 9, 2013]



Sec.  10.7  Disposition of unclaimed human remains, funerary objects,
sacred objects, or objects of cultural patrimony. [Reserved]



Subpart C_Human Remains, Funerary Objects, Sacred Objects, or Objects of 
          Cultural Patrimony in Museums and Federal Collections



Sec.  10.8  Summaries.

    (a) General. This section carries out section 6 of the Act. Under 
section 6 of the Act, each museum or Federal agency that has possession 
or control over collections which may contain unassociated funerary 
objects, sacred objects, or objects of cultural patrimony must complete 
a summary of these collections based upon available information held by 
the museum or Federal agency. The purpose of the summary is to provide 
information about the collections to lineal descendants and culturally 
affiliated Indian tribes or Native Hawaiian organizations that may wish 
to request repatriation of such objects. The summary serves in lieu of 
an object-by-object inventory of these collections, although, if an 
inventory is available, it may be substituted. Federal agencies are 
responsible for ensuring that these requirements are met for all 
collections from their lands or generated by their actions whether the 
collections are held by the Federal agency or by a non-Federal 
institution.
    (b) Contents of summaries. For each collection or portion of a 
collection, the summary must include: an estimate of the number of 
objects in the collection or portion of the collection; a description of 
the kinds of objects included; reference to the means, date(s), and 
location(s) in which the collection or portion of the collection was 
acquired, where readily ascertainable; and information relevant to 
identifying lineal descendants, if available, and cultural affiliation.
    (c) Completion. Summaries must be completed not later than November 
16, 1993.
    (d) Consultation. (1) Consulting parties. Museum and Federal agency 
officials must consult with Indian tribe officials and traditional 
religious leaders:
    (i) From whose tribal lands unassociated funerary objects, sacred 
objects, or objects of cultural patrimony originated;
    (ii) That are, or are likely to be, culturally affiliated with 
unassociated funerary objects, sacred objects, or objects of cultural 
patrimony; and
    (iii) From whose aboriginal lands unassociated funerary objects, 
sacred objects, or objects of cultural patrimony originated.
    (2) Initiation of consultation. Museum and Federal agency officials 
must begin summary consultation no later than the completion of the 
summary process. Consultation may be initiated with a letter, but should 
be followed up by telephone or face-to-face dialogue with the 
appropriate Indian tribe official.
    (3) Provision of information. During summary consultation, museum 
and Federal agency officials must provide copies of the summary to 
lineal descendants, when known, and to officials and traditional 
religious leaders representing Indian tribes or Native Hawaiian 
organizations that are, or are likely to be, culturally affiliated with 
the cultural items. A copy of the summary must also be provided to the 
Manager, National NAGPRA Program. Upon request by lineal descendants or 
Indian tribe officials, museum and Federal agency officials must provide 
lineal descendants, Indian tribe officials and traditional religious 
leaders with access to records, catalogues, relevant studies, or other 
pertinent data for the limited purposes of determining the geographic 
origin, cultural affiliation, and basic facts surrounding acquisition 
and accession of objects covered by the summary. Access to this 
information may be requested at any time and must be provided in a 
reasonable manner to

[[Page 199]]

be agreed upon by all parties. The Review committee also must be 
provided access to such materials.
    (4) Requests for information. During the summary consultation, 
museum and Federal agency officials must request, as appropriate, the 
following information from Indian tribes and Native Hawaiian 
organizations that are, or are likely to be, culturally affiliated with 
their collections:
    (i) Name and address of the Indian tribe official to act as 
representative in consultations related to particular objects;
    (ii) Recommendations on how the consultation process should be 
conducted, including:
    (A) Names and appropriate methods to contact any lineal descendants, 
if known, of individuals whose unassociated funerary objects or sacred 
objects are included in the summary;
    (B) Names and appropriate methods to contact any traditional 
religious leaders that the Indian tribe or Native Hawaiian organization 
thinks should be consulted regarding the collections; and
    (iii) Kinds of cultural items that the Indian tribe or Native 
Hawaiian organization considers to be funerary objects, sacred objects, 
or objects of cultural patrimony.
    (e) Using summaries to determine affiliation. Museum and Federal 
agency officials must document in the summary the following information. 
They must use this information in determining, as appropriate, the 
lineal descendants of a deceased Native American individual with whom 
unassociated funerary objects and sacred objects are affiliated, and the 
Indian tribes and Native Hawaiian organizations with which unassociated 
funerary objects, sacred objects, or objects of cultural patrimony are 
affiliated:
    (1) Accession and catalogue entries;
    (2) Information related to the acquisition of unassociated funerary 
object, sacred object, or object of cultural patrimony, including:
    (i) The name of the person or organization from whom the object was 
obtained, if known;
    (ii) The date of acquisition;
    (iii) The place each object was acquired, i.e., name or number of 
site, county, State, and Federal agency administrative unit, if 
applicable; and
    (iv) The means of acquisition, i.e., gift, purchase, or excavation;
    (3) A description of each unassociated funerary object, sacred 
object, or object of cultural patrimony, including dimensions, 
materials, and photographic documentation, if appropriate, and the 
antiquity of such objects, if known;
    (4) A summary of the evidence used to determine the cultural 
affiliation of the unassociated funerary objects, sacred objects, or 
objects of cultural patrimony pursuant toSec. 10.14 of these 
regulations.
    (f) Notification. Repatriation of unassociated funerary objects, 
sacred objects, or objects of cultural patrimony to lineal descendants, 
culturally affiliated Indian tribes, or Native Hawaiian organizations as 
determined pursuant toSec. 10.10 (a), must not proceed prior to 
submission of a notice of intent to repatriate to the Manager, National 
NAGPRA Program, and publication of the notice of intent to repatriate in 
the Federal Register. The notice of intent to repatriate must describe 
the unassociated funerary objects, sacred objects, or objects of 
cultural patrimony being claimed in sufficient detail so as to enable 
other individuals, Indian tribes or Native Hawaiian organizations to 
determine their interest in the claimed objects. It must include 
information that identifies each claimed unassociated funerary object, 
sacred object, or object of cultural patrimony and the circumstances 
surrounding its acquisition, and describes the objects that are clearly 
identifiable as to cultural affiliation. It must also describe the 
objects that are not clearly identifiable as being culturally affiliated 
with a particular Indian tribe or Native Hawaiian organization, but 
which, given the totality of circumstances surrounding acquisition of 
the objects, are likely to be culturally affiliated with a particular 
Indian tribe or Native Hawaiian organization. The Manager, National 
NAGPRA Program must publish the notice of intent to repatriate in the 
Federal Register. Repatriation may not occur until at least thirty (30) 
days after publication of the

[[Page 200]]

notice of intent to repatriate in the Federal Register.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 71 
FR 16501, Apr. 3, 2006; 78 FR 27083, May 9, 2013]



Sec.  10.9  Inventories.

    (a) General. This section carries out section 5 of the Act. Under 
section 5 of the Act, each museum or Federal agency that has possession 
or control over holdings or collections of human remains and associated 
funerary objects must compile an inventory of such objects, and, to the 
fullest extent possible based on information possessed by the museum or 
Federal agency, must identify the geographical and cultural affiliation 
of each item. The purpose of the inventory is to facilitate repatriation 
by providing clear descriptions of human remains and associated funerary 
objects and establishing the cultural affiliation between these objects 
and present-day Indian tribes and Native Hawaiian organizations. Museums 
and Federal agencies are encouraged to produce inventories first on 
those portions of their collections for which information is readily 
available or about which Indian tribes or Native Hawaiian organizations 
have expressed special interest. Early focus on these parts of 
collections will result in determinations that may serve as models for 
other inventories. Federal agencies must ensure that these requirements 
are met for all collections from their lands or generated by their 
actions whether the collections are held by the Federal agency or by a 
non-Federal institution.
    (b) Consultation--(1) Consulting parties. Museum and Federal agency 
officials must consult with:
    (i) Lineal descendants of individuals whose remains and associated 
funerary objects are likely to be subject to the inventory provisions of 
these regulations; and
    (ii) Indian tribe officials and traditional religious leaders:
    (A) From whose tribal lands the human remains and associated 
funerary objects originated;
    (B) That are, or are likely to be, culturally affiliated with human 
remains and associated funerary objects; and
    (C) From whose aboriginal lands the human remains and associated 
funerary objects originated.
    (2) Initiation of consultation. Museum and Federal agency officials 
must begin inventory consultation as early as possible, no later in the 
inventory process than the time at which investigation into the cultural 
affiliation of human remains and associated funerary objects is being 
conducted. Consultation may be initiated with a letter, but should be 
followed up by telephone or face-to-face dialogue.
    (3) Provision of information. During inventory consultation, museums 
and Federal agency officials must provide the following information in 
writing to lineal descendants, when known, and to officials and 
traditional religious leaders representing Indian tribes or Native 
Hawaiian organizations that are, or are likely to be, culturally 
affiliated with the human remains and associated funerary objects.
    (i) A list of all Indian tribes and Native Hawaiian organizations 
that are, or have been, consulted regarding the particular human remains 
and associated funerary objects;
    (ii) A general description of the conduct of the inventory;
    (iii) The projected time frame for conducting the inventory; and
    (iv) An indication that additional documentation used to identify 
cultural affiliation will be supplied upon request.
    (4) Requests for information. During the inventory consultation, 
museum and Federal agency officials must request, as appropriate, the 
following information from Indian tribes and Native Hawaiian 
organizations that are, or are likely to be, culturally affiliated with 
their collections:
    (i) Name and address of the Indian tribe official to act as 
representative in consultations related to particular human remains and 
associated funerary objects;
    (ii) Recommendations on how the consultation process should be 
conducted, including:
    (A) Names and appropriate methods to contact any lineal descendants 
of individuals whose remains and associated funerary objects are or are 
likely to be included in the inventory; and

[[Page 201]]

    (B) Names and appropriate methods to contact traditional religious 
leaders who should be consulted regarding the human remains and 
associated funerary objects.
    (iii) Kinds of objects that the Indian tribe or Native Hawaiian 
organization reasonably believes to have been made exclusively for 
burial purposes or to contain human remains of their ancestors.
    (c) Required information. The following documentation must be 
included, if available, for all inventories completed by museum or 
Federal agency officials:
    (1) Accession and catalogue entries, including the accession/
catalogue entries of human remains with which funerary objects were 
associated;
    (2) Information related to the acquisition of each object, 
including:
    (i) The name of the person or organization from whom the object was 
obtained, if known;
    (ii) The date of acquisition,
    (iii) The place each object was acquired, i.e., name or number of 
site, county, State, and Federal agency administrative unit, if 
applicable; and
    (iv) The means of acquisition, i.e., gift, purchase, or excavation;
    (3) A description of each set of human remains or associated 
funerary object, including dimensions, materials, and, if appropriate, 
photographic documentation, and the antiquity of such human remains or 
associated funerary objects, if known;
    (4) A summary of the evidence, including the results of 
consultation, used to determine the cultural affiliation of the human 
remains and associated funerary objects pursuant toSec. 10.14 of these 
regulations.
    (d) Documents. Two separate documents comprise the inventory:
    (1) A listing of all human remains and associated funerary objects 
that are identified as being culturally affiliated with one or more 
present-day Indian tribes or Native Hawaiian organizations. The list 
must indicate for each item or set of items whether cultural affiliation 
is clearly determined or likely based upon the preponderance of the 
evidence; and
    (2) A listing of all culturally unidentifiable human remains and 
associated funerary objects for which no culturally affiliated present-
day Indian tribe or Native Hawaiian organization can be determined.
    (e) Notification. (1) If the inventory results in the identification 
or likely identification of the cultural affiliation of any particular 
human remains or associated funerary objects with one or more Indian 
tribes or Native Hawaiian organizations, the museum or Federal agency, 
not later than six (6) months after completion of the inventory, must 
send such Indian tribes or Native Hawaiian organizations the inventory 
of culturally affiliated human remains and associated funerary objects, 
including all information required underSec. 10.9 (c), and a notice of 
inventory completion that summarizes the results of the inventory.
    (2) The notice of inventory completion must:
    (i) Summarize the contents of the inventory in sufficient detail so 
as to enable the recipients to determine their interest in claiming the 
inventoried items;
    (ii) Identify each particular set of human remains or each 
associated funerary object and the circumstances surrounding its 
acquisition;
    (iii) Describe the human remains or associated funerary objects that 
are clearly culturally affiliated with an Indian tribe or Native 
Hawaiian organization and identify the Indian tribe or Native Hawaiian 
organization;
    (iv) Describe the human remains or associated funerary objects that 
are not clearly identifiable as culturally affiliated with an Indian 
tribe or Native Hawaiian organization, but that are likely to be 
culturally affiliated with a particular Indian tribe or Native Hawaiian 
organization given the totality of circumstances surrounding acquisition 
of the human remains or associated objects; and
    (v) Describe those human remains, with or without associated 
funerary objects, that are culturally unidentifiable but that are 
subject to disposition underSec. 10.11.
    (3) If the inventory results in a determination that the human 
remains are of an identifiable individual, the museum or Federal agency 
official must convey this information to the lineal

[[Page 202]]

descendant of the deceased individual, if known, and to the Indian tribe 
or Native Hawaiian organization of which the deceased individual was 
culturally affiliated.
    (4) The notice of inventory completion and a copy of the inventory 
must also be sent to the Manager, National NAGPRA Program. These 
submissions should be sent in both printed hard copy and electronic 
formats. Information on the proper format for electronic submission and 
suggested alternatives for museums and Federal agencies unable to meet 
these requirements are available from the Manager, National NAGPRA 
Program.
    (5) Upon request by an Indian tribe or Native Hawaiian organization 
that has received or should have received a notice and inventory under 
paragraphs (e)(1) and (e)(2) of this section, a museum or Federal agency 
must supply additional available documentation.
    (i) For purposes of this paragraph, ``documentation'' means a 
summary of existing museum or Federal agency records including 
inventories or catalogues, relevant studies, or other pertinent data for 
the limited purpose of determining the geographic origin, cultural 
affiliation, and basic facts surrounding the acquisition and accession 
of human remains and associated funerary objects.
    (ii) Documentation supplied under this paragraph by a Federal agency 
or to a Federal agency is considered a public record except as exempted 
under relevant laws, such as the Freedom of Information Act (5 U.S.C. 
552), Privacy Act (5 U.S.C. 552a), Archaeological Resources Protection 
Act (16 U.S.C. 470hh), National Historic Preservation Act (16 U.S.C. 
470w-3), and any other legal authority exempting the information from 
public disclosure.
    (iii) Neither a request for documentation nor any other provisions 
of this part may be construed as authorizing either:
    (A) The initiation of new scientific studies of the human remains 
and associated funerary objects; or
    (B) Other means of acquiring or preserving additional scientific 
information from the remains and objects.
    (6) This paragraph applies when a the museum or Federal agency 
official determines that it has possession of or control over human 
remains or associated funerary objects that cannot be identified as 
affiliated with a lineal descendent, Indian tribe, or Native Hawaiian 
organization The museum or Federal agency must provide the Manager, 
National NAGPRA Program notice of its determination and a list of the 
culturally unidentifiable human remains and any associated funerary 
objects. The Manager, National NAGPRA Program must make this information 
available to members of the Review Committee. Culturally unidentifiable 
human remains, with or without associated funerary objects, are subject 
to disposition underSec. 10.11.
    (7) The Manager, National NAGPRA Program must publish notices of 
inventory completion received from museums and Federal agencies in the 
Federal Register.
    (f) Completion. Inventories must be completed not later than 
November 16, 1995. Any museum that has made a good faith effort to 
complete its inventory, but which will be unable to complete the process 
by this deadline, may request an extension of the time requirements from 
the Secretary. An indication of good faith efforts must include, but not 
necessarily be limited to, the initiation of active consultation and 
documentation regarding the collections and the development of a written 
plan to carry out the inventory process. Minimum components of an 
inventory plan are: a definition of the steps required; the position 
titles of the persons responsible for each step; a schedule for carrying 
out the plan; and a proposal to obtain the requisite funding.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 71 
FR 16501, Apr. 3, 2006; 75 FR 12403, Mar. 15, 2010]



Sec.  10.10  Repatriation.

    (a) Unassociated funerary objects, sacred objects, and objects of 
cultural patrimony--(1) Criteria. Upon the request of a lineal 
descendant, Indian tribe, or Native Hawaiian organization, a museum or 
Federal agency must expeditiously repatriate unassociated funerary 
objects, sacred objects, or objects of cultural patrimony if all the 
following criteria are met:

[[Page 203]]

    (i) The object meets the definitions established inSec. 10.2 
(d)(2)(ii), (d)(3), or (d)(4); and
    (ii) The cultural affiliation of the object is established:
    (A) Through the summary, consultation, and notification procedures 
inSec. 10.14 of these regulations; or
    (B) By presentation of a preponderance of the evidence by a 
requesting Indian tribe or Native Hawaiian organization under section 
7(a)(4) of the Act; and
    (iii) The known lineal descendant or culturally affiliated Indian 
tribe or Native Hawaiian organization presents evidence which, if 
standing alone before the introduction of evidence to the contrary, 
would support a finding that the museum or Federal agency does not have 
a right of possession to the objects as defined inSec. 10.10 (a)(2); 
and
    (iv) The agency or museum is unable to present evidence to the 
contrary proving that it does have a right of possession as defined 
below; and
    (v) None of the specific exceptions listed inSec. 10.10 (c) apply.
    (2) Right of possession. For purposes of this section, ``right of 
possession'' means possession obtained with the voluntary consent of an 
individual or group that had authority of alienation. The original 
acquisition of a Native American unassociated funerary object, sacred 
object, or object of cultural patrimony from an Indian tribe or Native 
Hawaiian organization with the voluntary consent of an individual or 
group with authority to alienate such object is deemed to give right of 
possession to that object.
    (3) Notification. Repatriation must take place within ninety (90) 
days of receipt of a written request for repatriation that satisfies the 
requirements of paragraph (a)(1) of this section from a lineal 
descendent or culturally affiliated Indian tribe or Native Hawaiian 
organization, provided that the repatriation may not occur until at 
least thirty (30) days after publication of the notice of intent to 
repatriate in the Federal Register as described inSec. 10.8.
    (b) Human remains and associated funerary objects--(1) Criteria. 
Upon the request of a lineal descendant, Indian tribe, or Native 
Hawaiian organization, a museum and Federal agency must expeditiously 
repatriate human remains and associated funerary objects if all of the 
following criteria are met:
    (i) The human remains or associated funerary object meets the 
definitions established inSec. 10.2 (d)(1) or (d)(2)(i); and
    (ii) The affiliation of the deceased individual to known lineal 
descendant, present day Indian tribe, or Native Hawaiian organization:
    (A) Has been reasonably traced through the procedures outlined in 
Sec.  10.9 andSec. 10.14 of these regulations; or
    (B) Has been shown by a preponderance of the evidence presented by a 
requesting Indian tribe or Native Hawaiian organization under section 
7(a)(4) of the Act; and
    (iii) None of the specific exceptions listed inSec. 10.10 (c) 
apply.
    (2) Notification. Repatriation must take place within ninety (90) 
days of receipt of a written request for repatriation that satisfies the 
requirements ofSec. 10.10 (b)(1) from the culturally affiliated Indian 
tribe or Native Hawaiian organization, provided that the repatriation 
may not occur until at least thirty (30) days after publication of the 
notice of inventory completion in the Federal Register as described in 
Sec.  10.9.
    (c) Exceptions. These requirements for repatriation do not apply to:
    (1) Circumstances where human remains, funerary objects, sacred 
objects, or objects of cultural patrimony are indispensable to the 
completion of a specific scientific study, the outcome of which is of 
major benefit to the United States. Human remains, funerary objects, 
sacred objects, or objects of cultural patrimony in such circumstances 
must be returned no later than ninety (90) days after completion of the 
study; or
    (2) Circumstances where there are multiple requests for repatriation 
of human remains, associated funerary objects, unassociated funerary 
objects, sacred objects, or objects of cultural patrimony and the museum 
or Federal agency, after complying with this part, cannot determine by a 
preponderance of the evidence which competing requesting party is the 
most appropriate claimant. In these circumstances, the museum or Federal 
agency may retain

[[Page 204]]

the cultural items in question until the competing requesting parties 
agree upon the appropriate recipient or the dispute is otherwise 
resolved pursuant to these regulations or by a court of competent 
jurisdiction; or
    (3) Circumstances where a court of competent jurisdiction has 
determined that the repatriation of the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony in the possession or 
control of a museum would result in a taking of property without just 
compensation within the meaning of the Fifth Amendment of the United 
States Constitution, in which event the custody of the objects must be 
as provided under otherwise applicable law. Nothing in these regulations 
must prevent a museum or Federal agency, where otherwise so authorized, 
or a lineal descendant, Indian tribe, or Native Hawaiian organization, 
from expressly relinquishing title to, right of possession of, or 
control over any human remains, funerary objects, sacred objects, or 
objects of cultural patrimony.
    (4) Circumstances where the repatriation is not consistent with 
other repatriation limitations identified inSec. 10.15 of these 
regulations.
    (d) Place and manner of repatriation. The repatriation of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony must be accomplished by the museum or Federal agency in 
consultation with the requesting lineal descendants, or culturally 
affiliated Indian tribe or Native Hawaiian organization, as appropriate, 
to determine the place and manner of the repatriation.
    (e) The museum official or Federal agency official must inform the 
recipients of repatriations of any presently known treatment of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony with pesticides, preservatives, or other substances that 
represent a potential hazard to the objects or to persons handling the 
objects.
    (f) Record of repatriation. (1) Museums and Federal agencies must 
adopt internal procedures adequate to permanently document the content 
and recipients of all repatriations.
    (2) The museum official or Federal agency official, at the request 
of the Indian tribe official, may take such steps as are considered 
necessary pursuant to otherwise applicable law, to ensure that 
information of a particularly sensitive nature is not made available to 
the general public.
    (g) Culturally unidentifiable human remains. If the cultural 
affiliation of human remains cannot be established under this part, the 
human remains must be considered culturally unidentifiable.
    (1) Museum and Federal agency officials must report the inventory 
information regarding these human remains in their holdings to the 
Manager, National NAGPRA Program, who will send this information to the 
Review Committee.
    (2) The Review Committee will:
    (i) Compile an inventory of culturally unidentifiable human remains 
in the possession or control of each museum and Federal agency; and
    (ii) Recommend to the Secretary specific actions for disposition of 
any human remains not already addressed inSec. 10.11.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997; 71 
FR 16501, Apr. 3, 2006; 78 FR 27083, May 9, 2013]



Sec.  10.11  Disposition of culturally unidentifiable human remains.

    (a) General. This section implements section 8(c)(5) of the Act and 
applies to human remains previously determined to be Native American 
underSec. 10.9, but for which no lineal descendant or culturally 
affiliated Indian tribe or Native Hawaiian organization has been 
identified.
    (b) Consultation. (1) The museum or Federal agency official must 
initiate consultation regarding the disposition of culturally 
unidentifiable human remains and associated funerary objects:
    (i) Within 90 days of receiving a request from an Indian tribe or 
Native Hawaiian organization to transfer control of culturally 
unidentifiable human remains and associated funerary objects; or
    (ii) If no request is received, before any offer to transfer control 
of culturally unidentifiable human remains and associated funerary 
objects.

[[Page 205]]

    (2) The museum or Federal agency official must initiate consultation 
with officials and traditional religious leaders of all Indian tribes 
and Native Hawaiian organizations:
    (i) From whose tribal lands, at the time of the removal, the human 
remains and associated funerary objects were removed; and
    (ii) From whose aboriginal lands the human remains and associated 
funerary objects were removed. Aboriginal occupation for purposes of 
this section may be recognized by a final judgment of the Indian Claims 
Commission or the United States Court of Claims, or by a treaty, Act of 
Congress, or Executive Order.
    (3) The museum or Federal agency official must provide the following 
information in writing to all Indian tribes and Native Hawaiian 
organizations with which the museum or Federal agency consults:
    (i) A list of all Indian tribes and Native Hawaiian organizations 
that are being, or have been, consulted regarding the particular human 
remains and associated funerary objects;
    (ii) A list of any Indian groups that are not federally-recognized 
and are known to have a relationship of shared group identity with the 
particular human remains and associated funerary objects; and
    (iii) An offer to provide a copy of the original inventory and 
additional documentation regarding the particular human remains and 
associated funerary objects.
    (4) During consultation, museum and Federal agency officials must 
request, as appropriate, the following information from Indian tribes 
and Native Hawaiian organizations:
    (i) The name and address of the Indian tribal official to act as 
representative in consultations related to particular human remains and 
associated funerary objects;
    (ii) The names and appropriate methods to contact any traditional 
religious leaders who should be consulted regarding the human remains 
and associated funerary objects;
    (iii) Temporal and geographic criteria that the museum or Federal 
agency should use to identify groups of human remains and associated 
funerary objects for consultation;
    (iv) The names and addresses of other Indian tribes, Native Hawaiian 
organizations, or Indian groups that are not federally-recognized who 
should be included in the consultations; and
    (v) A schedule and process for consultation.
    (5) During consultation, the museum or Federal agency official 
should seek to develop a proposed disposition for culturally 
unidentifiable human remains and associated funerary objects that is 
mutually agreeable to the parties specified in paragraph (b)(2) of this 
section. The agreement must be consistent with this part.
    (6) If consultation results in a determination that human remains 
and associated funerary objects previously determined to be culturally 
unidentifiable are actually related to a lineal descendant or culturally 
affiliated with an Indian tribe or Native Hawaiian organization, the 
notification and repatriation of the human remains and associated 
funerary objects must be completed as required bySec. 10.9(e) and 
Sec.  10.10(b).
    (c) Disposition of culturally unidentifiable human remains and 
associated funerary objects. (1) A museum or Federal agency that is 
unable to prove that it has right of possession, as defined atSec. 
10.10(a)(2), to culturally unidentifiable human remains must offer to 
transfer control of the human remains to Indian tribes and Native 
Hawaiian organizations in the following priority order:
    (i) The Indian tribe or Native Hawaiian organization from whose 
tribal land, at the time of the excavation or removal, the human remains 
were removed; or
    (ii) The Indian tribe or tribes that are recognized as aboriginal to 
the area from which the human remains were removed. Aboriginal 
occupation may be recognized by a final judgment of the Indian Claims 
Commission or the United States Court of Claims, or a treaty, Act of 
Congress, or Executive Order.
    (2) If none of the Indian tribes or Native Hawaiian organizations 
identified in paragraph (c)(1) of this section agrees to accept control, 
a museum or Federal agency may:

[[Page 206]]

    (i) Transfer control of culturally unidentifiable human remains to 
other Indian tribes or Native Hawaiian organizations; or
    (ii) Upon receiving a recommendation from the Secretary or 
authorized representative:
    (A) Transfer control of culturally unidentifiable human remains to 
an Indian group that is not federally-recognized; or
    (B) Reinter culturally unidentifiable human remains according to 
State or other law.
    (3) The Secretary may make a recommendation under paragraph 
(c)(2)(ii) of this section only with proof from the museum or Federal 
agency that it has consulted with all Indian tribes and Native Hawaiian 
organizations listed in paragraph (c)(1) of this section and that none 
of them has objected to the proposed transfer of control.
    (4) A museum or Federal agency may also transfer control of funerary 
objects that are associated with culturally unidentifiable human 
remains. The Secretary recommends that museums and Federal agencies 
transfer control if Federal or State law does not preclude it.
    (5) The exceptions listed atSec. 10.10(c) apply to the 
requirements in paragraph (c)(1) of this section.
    (6) Any disposition of human remains excavated or removed from 
Indian lands as defined by the Archaeological Resources Protection Act 
(16 U.S.C. 470bb (4)) must also comply with the provisions of that 
statute and its implementing regulations.
    (d) Notification. (1) Disposition of culturally unidentifiable human 
remains and associated funerary objects under paragraph (c) of this 
section may not occur until at least 30 days after publication of a 
notice of inventory completion in the Federal Register as described in 
Sec.  10.9.
    (2) Within 30 days of publishing the notice of inventory completion, 
the National NAGPRA Program manager must:
    (i) Revise the Review Committee inventory of culturally 
unidentifiable human remains and associated funerary objects to indicate 
the notice's publication; and
    (ii) Make the revised Review Committee inventory accessible to 
Indian tribes, Native Hawaiian organizations, Indian groups that are not 
federally-recognized, museums, and Federal agencies.
    (e) Disputes. Any person who wishes to contest actions taken by 
museums or Federal agencies regarding the disposition of culturally 
unidentifiable human remains and associated funerary objects should do 
so through informal negotiations to achieve a fair resolution. The 
Review Committee may facilitate informal resolution of any disputes that 
are not resolved by good faith negotiation underSec. 10.17. In 
addition, the United States District Courts have jurisdiction over any 
action brought that alleges a violation of the Act.

[75 FR 12403, Mar. 15, 2010, as amended at 78 FR 27083, May 9, 2013]



Sec.  10.12  Civil penalties.

    (a) The Secretary's authority to assess civil penalties. The 
Secretary is authorized by section 9 of the Act to assess civil 
penalties on any museum that fails to comply with the requirements of 
the Act. The Assistant Secretary for Fish and Wildlife and Parks may act 
on behalf of the Secretary.
    (b) Definition of ``failure to comply.'' (1) Your museum has failed 
to comply with the requirements of the Act if it:
    (i) After November 16, 1990, sells or otherwise transfers human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony contrary to provisions of the Act, including, but not limited 
to, an unlawful sale or transfer to any individual or institution that 
is not required to comply with the Act; or
    (ii) After November 16, 1993, or a date specified underSec. 10.13, 
whichever deadline is applicable, has not completed summaries as 
required by the Act; or
    (iii) After November 16, 1995, or a date specified underSec. 
10.13, or the date specified in an extension issued by the Secretary, 
whichever deadline is applicable, has not completed inventories as 
required by the Act; or
    (iv) After May 16, 1996, or 6 months after completion of an 
inventory under an extension issued by the Secretary, or 6 months after 
the date specified for

[[Page 207]]

completion of an inventory underSec. 10.13, whichever deadline is 
applicable, has not notified culturally affiliated Indian tribes and 
Native Hawaiian organizations; or
    (v) Refuses, absent any of the exemptions specified inSec. 
10.10(c) of this part, to repatriate human remains, funerary object, 
sacred object, or object of cultural patrimony to a lineal descendant or 
culturally affiliated Indian tribe or Native Hawaiian; or
    (vi) Repatriates a human remains, funerary object, sacred object, or 
object of cultural patrimony before publishing the required notice in 
the Federal Register;
    (vii) Does not consult with lineal descendants, Indian tribe 
officials, and traditional religious leaders as required; or
    (viii) Does not inform the recipients of repatriations of any 
presently known treatment of the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony with pesticides, 
preservatives, or other substances that represent a potential hazard to 
the objects or to persons handling the objects.
    (ix) Upon receipt of a claim consistent withSec. 10.11(c)(1), 
refuses to offer to transfer control of culturally unidentifiable human 
remains for which it cannot prove right of possession.
    (2) Each instance of failure to comply will constitute a separate 
violation.
    (c) How to notify the Secretary of a failure to comply. Any person 
may file an allegation of failure to comply. Allegations are to be sent 
to the NAGPRA Civil Penalties Coordinator, National NAGPRA Program, at 
the mailing address listed on the National NAGPRA Contact Information 
Web site, http://www.nps.gov/nagpra/CONTACTS/INDEX.HTM. The allegation 
must be in writing, and should:
    (1) Identify each provision of the Act with which there has been a 
failure to comply by a museum;
    (2) Include facts supporting the allegation;
    (3) Include evidence that the museum has possession or control of 
Native American cultural items; and
    (4) Include evidence that the museum receives Federal funds.
    (d) Steps the Secretary may take upon receiving such an allegation. 
(1) The Secretary must acknowledge receipt of the allegation in writing.
    (2) The Secretary also may:
    (i) Compile and review information relevant to the alleged failure 
to comply. The Secretary may request additional information, such as 
declarations and relevant papers, books, and documents, from the person 
making the allegation, the museum, and other parties;
    (ii) Identify the specific provisions of the Act with which you have 
allegedly failed to comply; and
    (iii) Determine if the institution of a civil penalty action is an 
appropriate remedy.
    (3) The Secretary must provide written notification to the person 
making the allegation and the museum if the review of the evidence does 
not show a failure comply.
    (e) How the Secretary notifies you of a failure to comply. (1) If 
the allegations are verified, the Secretary must serve you with a 
written notice of failure to comply either by personal delivery or by 
registered or certified mail (return receipt requested). The notice of 
failure to comply must include:
    (i) A concise statement of the facts believed to show a failure to 
comply;
    (ii) A specific reference to the provisions of the Act and/or these 
regulations with which you allegedly have not complied; and
    (iii) Notification of the right to request an informal discussion 
with the Secretary or a designee, to request a hearing, as provided 
below, or to await the Secretary's notice of assessment. The notice of 
failure to comply also must inform you of your right to seek judicial 
review of any final administrative decision assessing a civil penalty.
    (2) With your consent, the Secretary may combine the notice of 
failure to comply with the notice of assessment described in paragraph 
(h) of this section.
    (3) The Secretary also must send a copy of the notice of failure to 
comply to:
    (i) Any lineal descendant of a known Native American individual 
whose human remains, funerary objects, or sacred objects are in 
question; and

[[Page 208]]

    (ii) Any Indian tribes or Native Hawaiian organizations that are, or 
are likely to be, culturally affiliated with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony in question.
    (f) Actions you may take upon receipt of a notice of failure to 
comply. If you are served with a notice of failure to comply, you may:
    (1) Seek informal discussions with the Secretary;
    (2) Request a hearing. Figure 1 outlines the civil penalty hearing 
and appeal process. Where the Secretary has issued a combined notice of 
failure to comply and notice of assessment, the hearing and appeal 
processes will also be combined.
    (3) Take no action and await the Secretary's notice of assessment.

[[Page 209]]

[GRAPHIC] [TIFF OMITTED] TR03AP03.002

    (g) How the Secretary determines the penalty amount. (1) The penalty 
amount must be determined on the record;
    (2) The penalty amount must be .25 percent of your museum's annual 
budget, or $5,000, whichever is less, and such additional sum as the 
Secretary may

[[Page 210]]

determine is appropriate after taking into account:
    (i) The archeological, historical, or commercial value of the human 
remains, funerary object, sacred object, or object of cultural patrimony 
involved; and
    (ii) The damages suffered, both economic and non-economic, by the 
aggrieved party or parties including, but not limited to, expenditures 
by the aggrieved party to compel the museum to comply with the Act; and
    (iii) The number of violations that have occurred at your museum.
    (3) An additional penalty of up to $1,000 per day after the date 
that the final administrative decision takes effect may be assessed if 
your museum continues to violate the Act.
    (4) The Secretary may reduce the penalty amount if there is:
    (i) A determination that you did not willfully fail to comply; or
    (ii) An agreement by you to mitigate the violation, including, but 
not limited to, payment of restitution to the aggrieved party or 
parties; or
    (iii) A determination that you are unable to pay, provided that this 
factor may not apply if you have been previously found to have failed to 
comply with these regulations; or,
    (iv) A determination that the penalty constitutes excessive 
punishment under the circumstances.
    (h) How the Secretary assesses the penalty. (1) The Secretary 
considers all available information, including information provided 
during the process of assessing civil penalties or furnished upon 
further request by the Secretary.
    (2) The Secretary may assess the civil penalty upon completing 
informal discussions or when the period for requesting a hearing 
expires, whichever is later.
    (3) The Secretary notifies you in writing of the penalty amount 
assessed by serving a written notice of assessment, either in person or 
by registered or certified mail (return receipt requested). The notice 
of assessment includes:
    (i) The basis for determining the penalty amount assessed and/or any 
offer to mitigate or remit the penalty; and
    (ii) Notification of the right to request a hearing, including the 
procedures to follow, and to seek judicial review of any final 
administrative decision that assesses a civil penalty.
    (i) Actions that you may take upon receipt of a notice of 
assessment. If you are served with a notice of assessment, you may do 
one of the following:
    (1) Accept in writing or by payment of the proposed penalty, or any 
mitigation or remission offered in the notice of assessment. If you 
accept the proposed penalty, mitigation, or remission, you waive the 
right to request a hearing.
    (2) Seek informal discussions with the Secretary.
    (3) File a petition for relief. You may file a petition for relief 
within 45 calendar days of receiving the notice of assessment. A 
petition for relief is to be sent to the NAGPRA Civil Penalties 
Coordinator, National NAGPRA Program, at the mailing address listed on 
the National NAGRPA Contact Information Web site, http://www.nps.gov/
nagpra/CONTACTS/INDEX.HTM. Your petition may ask the Secretary not to 
assess a penalty or to reduce the penalty amount. Your petition must:
    (i) Be in writing and signed by an official authorized to sign such 
documents; and
    (ii) Fully explain the legal or factual basis for the requested 
relief.
    (4) Request a hearing. Figure 1 outlines the civil penalty hearing 
and appeal process.
    (i) In addition to the documentation required in paragraph (g) of 
this section, your request must include a copy of the notice of 
assessment and must identify the basis for challenging the assessment.
    (ii) In this hearing, the amount of the civil penalty assessed must 
be determined in accordance with paragraph (h) of this section, and will 
not be limited to the amount assessed by the Secretary or any offer of 
mitigation or remission made by the Secretary.
    (j) How you request a hearing. You may file a written, dated request 
for a hearing on a notice of failure to comply or notice of assessment 
with the Departmental Cases Hearings Division, Office of Hearings and 
Appeals, U.S. Department of the Interior, 405 South Main Street, Suite 
400, Salt Lake City, UT 84111. You must also serve a copy of

[[Page 211]]

the request on the Solicitor of the Department of the Interior 
personally or by registered or certified mail (return receipt requested) 
at the address specified in the notice.
    (1) Your request for a hearing must:
    (i) Include a copy of the notice of failure to comply or the notice 
of assessment;
    (ii) State the relief sought;
    (iii) State the basis for challenging the facts used as the basis 
for determining the failure to comply or fixing the assessment; and
    (iv) State your preferred place and date for a hearing.
    (2) Your failure to file a written request for a hearing within 45 
days of the date of service of a notice of failure to comply or notice 
of assessment waives your right to a hearing.
    (3) Upon receiving a request for a hearing, the Hearings Division 
assigns an administrative law judge to the case, gives notice of 
assignment promptly to the parties, and files all pleadings, papers, and 
other documents in the proceeding directly with the administrative law 
judge, with copies served on the opposing party.
    (4) Subject to the provisions of 43 CFR 1.3, you may appear by 
representative or by counsel, and may participate fully in the 
proceedings. If you fail to appear and the administrative law judge 
determines that this failure is without good cause, the administrative 
law judge may, in his/her discretion, determine that this failure waives 
your right to a hearing and consent to the making of a decision on the 
record.
    (5) Departmental counsel, designated by the Solicitor of the 
Department of the Interior, represents the Secretary in the proceedings. 
Upon notice to the Secretary of the assignment of an administrative law 
judge to the case, this counsel must enter his/her appearance on behalf 
of the Secretary and must file all petitions and correspondence 
exchanges by the Secretary and the respondent that become part of the 
hearing record. Thereafter, you must serve all documents for the 
Secretary on his/her counsel.
    (6) Hearing Administration. Hearings must take place following the 
procedures in 43 CFR Part 4, Subparts A and B.
    (i) The administrative law judge has all powers accorded by law and 
necessary to preside over the parties and the proceedings and to make 
decisions under 5 U.S.C. 554-557.
    (ii) The transcript of testimony; the exhibits; and all papers, 
documents, and requests filed in the proceedings constitute the record 
for decision. The administrative law judge renders a written decision 
upon the record, which sets forth his/her findings of fact and 
conclusions of law, and the reasons and basis for them.
    (iii) Unless you file a notice of appeal described in these 
regulations, the administrative law judge's decision constitutes the 
final administrative determination of the Secretary in the matter and 
takes effect 30 calendar days from this decision.
    (k) How you appeal a decision. (1) Either you or the Secretary may 
appeal the decision of an administrative law judge by filing a Notice of 
Appeal. Send your Notice of Appeal to the Interior Board of Indian 
Appeals, Office of Hearings and Appeals, U.S. Department of the 
Interior, 800 North Quincy Street, Suite 300, Arlington, VA 22203, 
within 30 calendar days of the date of the administrative law judge's 
decision. The notice must be accompanied by proof of service on the 
administrative law judge and the opposing party.
    (2) To the extent they are not inconsistent with these regulations, 
the provisions of the Department of the Interior Hearings and Appeals 
Procedures in 43 CFR part 4, subpart D, apply to such appeal 
proceedings. The appeal board's decision on the appeal must be in 
writing and takes effect as the final administrative determination of 
the Secretary on the date that the decision is rendered, unless 
otherwise specified in the decision.
    (3) You may obtain copies of decisions in civil penalty proceedings 
instituted under the Act by sending a request to the Interior Board of 
Indian Appeals, Office of Hearings and Appeals, U.S. Department of the 
Interior, 800 North Quincy Street, Suite 300, Arlington, VA 22203. Fees 
for this service are established by the director of that office.

[[Page 212]]

    (l) The final administrative decision. (1) When you have been served 
with a notice of assessment and have accepted the penalty as provided in 
these regulations, the notice constitutes the final administrative 
decision.
    (2) When you have been served with a notice of assessment and have 
not filed a timely request for a hearing as provided in these 
regulations, the notice of assessment constitutes the final 
administrative decision.
    (3) When you have been served with a notice of assessment and have 
filed a timely request for a hearing as provided in these regulations, 
the decision resulting from the hearing or any applicable administrative 
appeal from it constitutes the final administrative decision.
    (m) How you pay the penalty. (1) If you are assessed a civil 
penalty, you have 45 calendar days from the date of issuance of the 
final administrative decision to make full payment of the penalty 
assessed to the Secretary, unless you have filed a timely request for 
appeal with a court of competent jurisdiction.
    (2) If you fail to pay the penalty, the Secretary may request the 
Attorney General of the United States to collect the penalty by 
instituting a civil action in the U.S. District Court for the district 
in which your museum is located. In these actions, the validity and 
amount of the penalty is not subject to review by the court.
    (3) Assessing a penalty under this section is not a waiver by the 
Secretary of the right to pursue other available legal or administrative 
remedies.

[68 FR 16360, Apr. 3, 2003, as amended at 70 FR 57179, Sept. 30, 2005; 
75 FR 12404, Mar. 15, 2010; 75 FR 64670, Oct. 20, 2010; 78 FR 27083, May 
9, 2013]



Sec.  10.13  Future applicability.

    (a) General. This section sets forth the applicability of the Act to 
museums and Federal agencies after expiration of the statutory deadlines 
for completion of summaries and inventories.
    (b) New holdings or collections.
    (1) Any museum or Federal agency that, after completion of the 
summaries and inventories as required by Sec.Sec. 10.8 and 10.9, 
receives a new holding or collection or locates a previously unreported 
current holding or collection that may include human remains, funerary 
objects, sacred objects or objects of cultural patrimony, must:
    (i) Within 6 months of receiving a new holding or collection or 
locating a previously unreported current holding or collection, or 
within 6 months of the effective date of this rule, whichever is later, 
provide a summary of the holding or collection as required bySec. 10.8 
to any Indian tribe or Native Hawaiian organization that is, or is 
likely to be, affiliated with the collection; and
    (ii) Within 2 years of receiving a new holding or collection or 
locating a previously unreported current holding or collection, or 
within 2 years of the effective date of this rule, whichever is later, 
prepare, in consultation with any affiliated Indian tribe or Native 
Hawaiian organization, an inventory as required bySec. 10.9 of these 
regulations. Any museum that has made a good faith effort to complete 
its inventory, but which will be unable to complete the process by this 
deadline, may request an extension of the time requirements underSec. 
10.9(f).
    (2) Additional pieces or fragments of previously repatriated human 
remains, funerary objects, sacred objects and objects of cultural 
patrimony may be returned to the appropriate Indian tribe or Native 
Hawaiian organization without publication of a notice in the Federal 
Register, as otherwise required under Sec.Sec. 10.8(f) and 10.9(e), if 
they do not change the number or cultural affiliation of the cultural 
items listed in the previous notice.
    (3) A museum or Federal agency that receives a new holding or 
collection for which a summary or inventory was previously prepared, as 
required by Sec.Sec. 10.8 or 10.9, may rely upon the previously 
prepared documents. The receiving museum or Federal agency must provide 
a copy of the previously prepared summary or inventory to all affiliated 
Indian tribes or Native Hawaiian organizations, along with notification 
that the receiving museum or Federal agency has assumed possession and 
control of the holding or collection.
    (c) New Indian tribes.

[[Page 213]]

    (1) Any museum or Federal agency that has possession or control of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony that are, or are likely to be, culturally affiliated with a 
newly Federally recognized Native American tribe, must:
    (i) Within 6 months of the publication in the Federal Register of 
the Native American group's placement on the list of Indian Entities 
Recognized and Eligible to Receive Services from the United States 
Bureau of Indian Affairs, or within 6 months of the effective date of 
this rule, whichever is later, provide a summary of the collection as 
required bySec. 10.8 to that Indian tribe; and
    (ii) Within 2 years of the publication in the Federal Register of 
the Native American group's placement on the list of Indian Entities 
Recognized and Eligible to Receive Services from the United States 
Bureau of Indian Affairs, or within 2 years of the effective date of 
this rule, whichever is later, prepare, in consultation with the newly 
recognized culturally affiliated Indian tribe an inventory as required 
bySec. 10.9. Any museum that has made a good faith effort to complete 
its inventory, but which will be unable to complete the process by this 
deadline, may request an extension of the time requirements underSec. 
10.9(f).
    (2) The list of Indian Entities Recognized and Eligible to Receive 
Services from the United States Bureau of Indian Affairs is published in 
the Federal Register as required by section 104 of the Federally 
Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1 (2006)).
    (d) New Federal funds. Any museum that has possession or control of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony and receives Federal funds for the first time after expiration 
of the statutory deadlines for completion of summaries and inventories 
must:
    (1) Within 3 years of the date of receipt of Federal funds, or 
within 3 years of the effective date of this rule, whichever is later, 
provide a summary of the collection as required bySec. 10.8 to any 
Indian tribe or Native Hawaiian organization that is, or is likely to 
be, culturally affiliated with the collections; and
    (2) Within 5 years of the date of receipt of Federal funds, or 
within 5 years of the effective date of this rule, whichever is later, 
prepare, in consultation with any affiliated Indian tribe or Native 
Hawaiian organization, an inventory as required bySec. 10.9.
    (e) Amendment of previous decision.
    (1) Any museum or Federal agency that has previously published a 
notice in the Federal Register regarding the intent to repatriate 
unassociated funerary objects, sacred objects, and objects of cultural 
patrimony underSec. 10.8(f), or the completion of an inventory of 
Native American human remains and associated funerary objects as 
required bySec. 10.9(e), must publish an amendment to that notice if, 
based on subsequent information, the museum or Federal agency revises 
its decision in a way that changes the number or cultural affiliation of 
the cultural items listed.
    (2) Repatriation may not occur until at least 30 days after 
publication of the amended notice in the Federal Register.
    (f) All actions taken as required by this section must also comply 
with all other relevant sections of 43 CFR 10.

[72 FR 13189, Mar. 21, 2007, as amended at 78 FR 27084, May 9, 2013]



                            Subpart D_General



Sec.  10.14  Lineal descent and cultural affiliation.

    (a) General. This section identifies procedures for determining 
lineal descent and cultural affiliation between present-day individuals 
and Indian tribes or Native Hawaiian organizations and human remains, 
funerary objects, sacred objects, or objects of cultural patrimony in 
museum or Federal agency collections or excavated intentionally or 
discovered inadvertently from Federal lands. They may also be used by 
Indian tribes and Native Hawaiian organizations with respect to tribal 
lands.
    (b) Criteria for determining lineal descent. A lineal descendant is 
an individual tracing his or her ancestry directly and without 
interruption by

[[Page 214]]

means of the traditional kinship system of the appropriate Indian tribe 
or Native Hawaiian organization or by the common law system of 
descendence to a known Native American individual whose remains, 
funerary objects, or sacred objects are being requested under these 
regulations. This standard requires that the earlier person be 
identified as an individual whose descendants can be traced.
    (c) Criteria for determining cultural affiliation. Cultural 
affiliation means a relationship of shared group identity that may be 
reasonably traced historically or prehistorically between a present-day 
Indian tribe or Native Hawaiian organization and an identifiable earlier 
group. All of the following requirements must be met to determine 
cultural affiliation between a present-day Indian tribe or Native 
Hawaiian organization and the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony of an earlier group:
    (1) Existence of an identifiable present-day Indian tribe or Native 
Hawaiian organization with standing under these regulations and the Act; 
and
    (2) Evidence of the existence of an identifiable earlier group. 
Support for this requirement may include, but is not necessarily limited 
to evidence sufficient to:
    (i) Establish the identity and cultural characteristics of the 
earlier group,
    (ii) Document distinct patterns of material culture manufacture and 
distribution methods for the earlier group, or
    (iii) Establish the existence of the earlier group as a biologically 
distinct population; and
    (3) Evidence of the existence of a shared group identity that can be 
reasonably traced between the present-day Indian tribe or Native 
Hawaiian organization and the earlier group. Evidence to support this 
requirement must establish that a present-day Indian tribe or Native 
Hawaiian organization has been identified from prehistoric or historic 
times to the present as descending from the earlier group.
    (d) A finding of cultural affiliation should be based upon an 
overall evaluation of the totality of the circumstances and evidence 
pertaining to the connection between the claimant and the material being 
claimed and should not be precluded solely because of some gaps in the 
record.
    (e) Evidence. Evidence of a kin or cultural affiliation between a 
present-day individual, Indian tribe, or Native Hawaiian organization 
and human remains, funerary objects, sacred objects, or objects of 
cultural patrimony must be established by using the following types of 
evidence: Geographical, kinship, biological, archeological, 
anthropological, linguistic, folklore, oral tradition, historical, or 
other relevant information or expert opinion.
    (f) Standard of proof. Lineal descent of a present-day individual 
from an earlier individual and cultural affiliation of a present-day 
Indian tribe or Native Hawaiian organization to human remains, funerary 
objects, sacred objects, or objects of cultural patrimony must be 
established by a preponderance of the evidence. Claimants do not have to 
establish cultural affiliation with scientific certainty.



Sec.  10.15  Limitations and remedies.

    (a) Failure to claim prior to repatriation. (1) Any person who fails 
to make a timely claim prior to the repatriation or disposition of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is deemed to have irrevocably waived any right to claim such 
items pursuant to these regulations or the Act. For these purposes, a 
``timely claim'' means the filing of a written claim with a responsible 
museum or Federal agency official prior to the time the particular human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony at issue are duly repatriated or disposed of to a claimant by 
a museum or Federal agency pursuant to these regulations.
    (2) If there is more than one (1) claimant, the human remains, 
funerary object, sacred object, or objects of cultural patrimony may be 
held by the responsible museum or Federal agency or person in possession 
thereof pending resolution of the claim. Any person

[[Page 215]]

who is in custody of such human remains, funerary objects, sacred 
objects, or objects of cultural patrimony and does not claim entitlement 
to them must place the objects in the possession of the responsible 
museum or Federal agency for retention until the question of custody is 
resolved.
    (b) Failure to claim where no repatriation or disposition has 
occurred. [Reserved]
    (c) Exhaustion of remedies. (1) A person's administrative remedies 
are exhausted only when the person has filed a written claim with the 
responsible Federal agency and the claim has been duly denied under this 
part. This paragraph applies to both:
    (i) Human remains, associated funerary objects, unassociated 
funerary objects, sacred objects, or objects of cultural patrimony 
subject to Subpart B of this part; and
    (ii) Federal collections subject to Subpart C of this part.
    (2) A Federal agency's final denial of a repatriation request 
constitutes a final agency action under the Administrative Procedure Act 
(5 U.S.C. 704). As used in this paragraph, ``repatriation request'' 
means the request of a lineal descendant, Indian tribe, or Native 
Hawaiian organization for repatriation or disposition of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
brought under the Act and this part.
    (d) Savings provisions. Nothing in these regulations can be 
construed to:
    (1) Limit the authority of any museum or Federal agency to:
    (i) Return or repatriate human remains, funerary objects, sacred 
objects, or objects of cultural patrimony to Indian tribes, Native 
Hawaiian organizations, or individuals; and
    (ii) Enter into any other agreement with the consent of the 
culturally affiliated Indian tribe or Native Hawaiian organization as to 
the disposition of, or control over, human remains, funerary objects, 
sacred objects, or objects of cultural patrimony.
    (2) Delay actions on repatriation requests that were pending on 
November 16, 1990;
    (3) Deny or otherwise affect access to court;
    (4) Limit any procedural or substantive right which may otherwise be 
secured to individuals or Indian tribes or Native Hawaiian 
organizations; or
    (5) Limit the application of any State or Federal law pertaining to 
theft of stolen property.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997; 75 
FR 12405, Mar. 15, 2010; 78 FR 27084, May 9, 2013]



Sec.  10.16  Review committee.

    (a) General. The Review Committee will advise Congress and the 
Secretary on matters relating to these regulations and the Act, 
including, but not limited to, monitoring the performance of museums and 
Federal agencies in carrying out their responsibilities, facilitating 
and making recommendations on the resolution of disputes as described 
further inSec. 10.17, and compiling a record of culturally 
unidentifiable human remains that are in the possession or control of 
museums and Federal agencies and recommending actions for their 
disposition.
    (b) Recommendations. Any recommendation, finding, report, or other 
action of the Review Committee is advisory only and not binding on any 
person. Any records and findings made by the Review Committee may be 
admissible as evidence in actions brought by persons alleging a 
violation of the Act.



Sec.  10.17  Dispute resolution.

    (a) Formal and informal resolutions. Any person who wishes to 
contest actions taken by museums, Federal agencies, Indian tribes, or 
Native Hawaiian organizations with respect to the repatriation and 
disposition of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony is encouraged to do so through informal 
negotiations to achieve a fair resolution of the matter. The Review 
Committee may aid in this regard as described below. In addition, the 
United States District Courts have jurisdiction over any action brought 
that alleges a violation of the Act.
    (b) Review Committee Role. The Review Committee may facilitate the 
informal resolution of disputes relating to these regulations among 
interested parties that are not resolved by good faith negotiations. 
Review Committee actions

[[Page 216]]

may include convening meetings between parties to disputes, making 
advisory findings as to contested facts, and making recommendations to 
the disputing parties or to the Secretary as to the proper resolution of 
disputes consistent with these regulations and the Act.



PART 11_NATURAL RESOURCE DAMAGE ASSESSMENTS--Table of Contents



                         Subpart A_Introduction

Sec.
11.10 Scope and applicability.
11.11 Purpose.
11.12 Biennial review of regulations.
11.13 Overview.
11.14 Definitions.
11.15 What damages may a trustee recover?
11.16 [Reserved]
11.17 Compliance with applicable laws and standards.
11.18 Incorporation by reference.
11.19 [Reserved]

                      Subpart B_Preassessment Phase

11.20 Notification and detection.
11.21 Emergency restorations.
11.22 Sampling of potentially injured natural resources.
11.23 Preassessment screen--general.
11.24 Preassessment screen--information on the site.
11.25 Preassessment screen--preliminary identification of resources 
          potentially at risk.

                     Subpart C_Assessment Plan Phase

11.30 What does the authorized official do if an assessment is 
          warranted?
11.31 What does the Assessment Plan include?
11.32 How does the authorized official develop the Assessment Plan?
11.33 What types of assessment procedures are available?
11.34 When may the authorized official use a type A procedure?
11.35 How does the authorized official decide whether to use type A or 
          type B procedures?
11.36 May the authorized official use both type A and type B procedures 
          for the same release?
11.37 Must the authorized official confirm exposure before implementing 
          the Assessment Plan?
11.38 Assessment Plan--preliminary estimate of damages.

                       Subpart D_Type A Procedures

11.40 What are type A procedures?
11.41 What data must the authorized official supply?
11.42 How does the authorized official apply the NRDAM/CME or NRDAM/GLE?
11.43 Can interested parties review the results of the preliminary 
          application?
11.44 What does the authorized official do after the close of the 
          comment period?

                       Subpart E_Type B Procedures

11.60 Type B assessments--general.
11.61 Injury determination phase--general.
11.62 Injury determination phase--injury definition.
11.63 Injury determination phase--pathway determination.
11.64 Injury determination phase--testing and sampling methods.
11.70 Quantification phase--general.
11.71 Quantification phase--service reduction quantification.
11.72 Quantification phase--baseline services determination.
11.73 Quantification phase--resource recoverability analysis.
11.80 Damage determination phase--general.
11.81 Damage determination phase--restoration and compensation 
          determination plan.
11.82 Damage determination phase--alternatives for restoration, 
          rehabilitation, replacement, and/or acquisition of equivalent 
          resources.
11.83 Damage determination phase--use value methodologies.
11.84 Damage determination phase--implementation guidance.

                     Subpart F_Post-Assessment Phase

11.90 What documentation must the authorized official prepare after 
          completing the assessment?
11.91 How does the authorized official seek recovery of the assessed 
          damages from the potentially responsible party?
11.92 Post-assessment phase--restoration account.
11.93 Post-assessment phase--restoration plan.

Appendix I to Part 11--Methods for Estimating the Areas of Ground Water 
          and Surface Water Exposure During the Preassessment Screen
Appendix II to Part 11--Format for Data Inputs and Modifications to the 
          NRDAM/CME
Appendix III to Part 11--Format for Data Inputs and Modifications to the 
          NRDAM/GLE

    Authority: 42 U.S.C. 9651(c), as amended.

[[Page 217]]


    Source: 51 FR 27725, Aug. 1, 1986, unless otherwise noted.



                         Subpart A_Introduction



Sec.  11.10  Scope and applicability.

    The Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (CERCLA), as amended, 42 U.S.C. 9601 et seq., and 
the Clean Water Act (CWA), 33 U.S.C. 1251-1376, provide that natural 
resource trustees may assess damages to natural resources resulting from 
a discharge of oil or a release of a hazardous substance covered under 
CERCLA or the CWA and may seek to recover those damages. This part 
supplements the procedures established under the National Oil and 
Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300, 
for the identification, investigation, study, and response to a 
discharge of oil or release of a hazardous substance, and it provides a 
procedure by which a natural resource trustee can determine compensation 
for injuries to natural resources that have not been nor are expected to 
be addressed by response actions conducted pursuant to the NCP. The 
assessment procedures set forth in this part are not mandatory. However, 
they must be used by Federal or State natural resource trustees in order 
to obtain the rebuttable presumption contained in section 107(f)(2)(C) 
of CERCLA. This part applies to assessments initiated after the 
effective date of this final rule.

[53 FR 5171, Feb. 22, 1988]



Sec.  11.11  Purpose.

    The purpose of this part is to provide standardized and cost-
effective procedures for assessing natural resource damages. The results 
of an assessment performed by a Federal or State natural resource 
trustee according to these procedures shall be accorded the evidentiary 
status of a rebuttable presumption as provided in section 107(f)(2)(C) 
of CERCLA.

[53 FR 5171, Feb. 22, 1988]



Sec.  11.12  Biennial review of regulations.

    The regulations and procedures included within this part shall be 
reviewed and revised as appropriate 2 years from the effective date of 
these rules and every second anniversary thereafter.



Sec.  11.13  Overview.

    (a) Purpose. The process established by this part uses a planned and 
phased approach to the assessment of natural resource damages. This 
approach is designed to ensure that all procedures used in an 
assessment, performed pursuant to this part, are appropriate, necessary, 
and sufficient to assess damages for injuries to natural resources.
    (b) Preassessment phase. Subpart B of this part, the preassessment 
phase, provides for notification, coordination, and emergency 
activities, if necessary, and includes the preassessment screen. The 
preassessment screen is meant to be a rapid review of readily available 
information that allows the authorized official to make an early 
decision on whether a natural resource damage assessment can and should 
be performed.
    (c) Assessment Plan phase. If the authorized official decides to 
perform an assessment, an Assessment Plan, as described in subpart C of 
this part, is prepared. The Assessment Plan ensures that the assessment 
is performed in a planned and systematic manner and that the 
methodologies chosen demonstrate reasonable cost.
    (d) Type A assessments. The simplified assessments provided for in 
section 301(c)(2)(A) of CERCLA are performed using the standard 
procedures specified in subpart D of this part.
    (e) Type B assessments. Subpart E of this part covers the 
assessments provided for in section 301(c)(2)(B) of CERCLA. The process 
for implementing type B assessments has been divided into the following 
three phases.
    (1) Injury Determination phase. The purpose of this phase is to 
establish that one or more natural resources have been injured as a 
result of the discharge of oil or release of a hazardous substance. The 
sections of subpart E comprising the Injury Determination phase include 
definitions of injury, guidance on determining pathways, and testing and 
sampling methods. These methods are to be used to determine both the 
pathways through which resources have been exposed to oil or a

[[Page 218]]

hazardous substance and the nature of the injury.
    (2) Quantification phase. The purpose of this phase is to establish 
the extent of the injury to the resource in terms of the loss of 
services that the injured resource would have provided had the discharge 
or release not occurred. The sections of subpart E comprising the 
Quantification phase include methods for establishing baseline 
conditions, estimating recovery periods, and measuring the degree of 
service reduction stemming from an injury to a natural resource.
    (3) Damage Determination phase. The purpose of this phase is to 
establish the appropriate compensation expressed as a dollar amount for 
the injuries established in the Injury Determination phase and measured 
in the Quantification phase. The sections of subpart E of this part 
comprising the Damage Determination phase include guidance on acceptable 
cost estimating and valuation methodologies for determining compensation 
based on the costs of restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources, plus, at the discretion of the 
authorized official, compensable value, as defined inSec. 11.83(c) of 
this part.
    (f) Post-assessment phase. Subpart F of this part includes 
requirements to be met after the assessment is complete. The Report of 
Assessment contains the results of the assessment, and documents that 
the assessment has been carried out according to this rule. Other post-
assessment requirements delineate the manner in which the demand for a 
sum certain shall be presented to a responsible party and the steps to 
be taken when sums are awarded as damages.

[51 FR 27725, Aug. 1, 1986, as amended at 59 FR 14281, Mar. 25, 1994]



Sec.  11.14  Definitions.

    Terms not defined in this section have the meaning given by CERCLA 
or the CWA. As used in this part, the phrase:
    (a) Acquisition of the equivalent or replacement means the 
substitution for an injured resource with a resource that provides the 
same or substantially similar services, when such substitutions are in 
addition to any substitutions made or anticipated as part of response 
actions and when such substitutions exceed the level of response actions 
determined appropriate to the site pursuant to the NCP.
    (b) Air or air resources means those naturally occurring 
constituents of the atmosphere, including those gases essential for 
human, plant, and animal life.
    (c) Assessment area means the area or areas within which natural 
resources have been affected directly or indirectly by the discharge of 
oil or release of a hazardous substance and that serves as the 
geographic basis for the injury assessment.
    (d) Authorized official means the Federal or State official to whom 
is delegated the authority to act on behalf of the Federal or State 
agency designated as trustee, or an official designated by an Indian 
tribe, pursuant to section 126(d) of CERCLA, to perform a natural 
resource damage assessment. As used in this part, authorized official is 
equivalent to the phrase ``authorized official or lead authorized 
official,'' as appropriate.
    (e) Baseline means the condition or conditions that would have 
existed at the assessment area had the discharge of oil or release of 
the hazardous substance under investigation not occurred.
    (f) Biological resources means those natural resources referred to 
in section 101(16) of CERCLA as fish and wildlife and other biota. Fish 
and wildlife include marine and freshwater aquatic and terrestrial 
species; game, nongame, and commercial species; and threatened, 
endangered, and State sensitive species. Other biota encompass 
shellfish, terrestrial and aquatic plants, and other living organisms 
not otherwise listed in this definition.
    (g) CERCLA means the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, 42 U.S.C. 9601 et seq., as 
amended.
    (h) Committed use means either: a current public use; or a planned 
public use of a natural resource for which there is a documented legal, 
administrative, budgetary, or financial commitment established before 
the discharge of oil or release of a hazardous substance is detected.

[[Page 219]]

    (i) Control area or control resource means an area or resource 
unaffected by the discharge of oil or release of the hazardous substance 
under investigation. A control area or resource is selected for its 
comparability to the assessment area or resource and may be used for 
establishing the baseline condition and for comparison to injured 
resources.
    (j) Cost-effective or cost-effectiveness means that when two or more 
activities provide the same or a similar level of benefits, the least 
costly activity providing that level of benefits will be selected.
    (k) CWA means the Clean Water Act, as amended, 33 U.S.C. 1251 et 
seq., also referred to as the Federal Water Pollution Control Act.
    (l) Damages means the amount of money sought by the natural resource 
trustee as compensation for injury, destruction, or loss of natural 
resources as set forth in section 107(a) or 111(b) of CERCLA.
    (m) Destruction means the total and irreversible loss of a natural 
resource.
    (n) Discharge means a discharge of oil as defined in section 
311(a)(2) of the CWA, as amended, and includes, but is not limited to, 
any spilling, leaking, pumping, pouring, emitting, emptying, or dumping 
of oil.
    (o) Drinking water supply means any raw or finished water source 
that is or may be used by a public water system, as defined in the SDWA, 
or as drinking water by one or more individuals.
    (p) EPA means the U.S. Environmental Protection Agency.
    (q) Exposed to or exposure of means that all or part of a natural 
resource is, or has been, in physical contact with oil or a hazardous 
substance, or with media containing oil or a hazardous substance.
    (r) Fund means the Hazardous Substance Superfund established by 
section 517 of the Superfund Amendments and Reauthorization Act of 1986.
    (s) Geologic resources means those elements of the Earth's crust 
such as soils, sediments, rocks, and minerals, including petroleum and 
natural gas, that are not included in the definitions of ground and 
surface water resources.
    (t) Ground water resources means water in a saturated zone or 
stratum beneath the surface of land or water and the rocks or sediments 
through which ground water moves. It includes ground water resources 
that meet the definition of drinking water supplies.
    (u) Hazardous substance means a hazardous substance as defined in 
section 101(14) of CERCLA.
    (v) Injury means a measurable adverse change, either long- or short-
term, in the chemical or physical quality or the viability of a natural 
resource resulting either directly or indirectly from exposure to a 
discharge of oil or release of a hazardous substance, or exposure to a 
product of reactions resulting from the discharge of oil or release of a 
hazardous substance. As used in this part, injury encompasses the 
phrases ``injury,'' ``destruction,'' and ``loss.'' Injury definitions 
applicable to specific resources are provided inSec. 11.62 of this 
part.
    (w) Lead authorized official means a Federal or State official 
authorized to act on behalf of all affected Federal or State agencies 
acting as trustees where there are multiple agencies, or an official 
designated by multiple tribes where there are multiple tribes, affected 
because of coexisting or contiguous natural resources or concurrent 
jurisdiction.
    (x) Loss means a measurable adverse reduction of a chemical or 
physical quality or viability of a natural resource.
    (y) Natural Contingency Plan or NCP means the National Oil and 
Hazardous Substances Contingency Plan and revisions promulgated by EPA, 
pursuant to section 105 of CERCLA and codified in 40 CFR part 300.
    (z) Natural resources or resources means land, fish, wildlife, 
biota, air, water, ground water, drinking water supplies, and other such 
resources belonging to, managed by, held in trust by, appertaining to, 
or otherwise controlled by the United States (including the resources of 
the fishery conservation zone established by the Magnuson Fishery 
Conservation and Management Act of 1976), any State or local government, 
any foreign government, any Indian tribe, or, if such resources are 
subject to a trust restriction on alienation, any member of an Indian 
tribe.

[[Page 220]]

These natural resources have been categorized into the following five 
groups: Surface water resources, ground water resources, air resources, 
geologic resources, and biological resources.
    (aa) Natural resource damage assessment or assessment means the 
process of collecting, compiling, and analyzing information, statistics, 
or data through prescribed methodologies to determine damages for 
injuries to natural resources as set forth in this part.
    (bb) Oil means oil as defined in section 311(a)(1) of the CWA, as 
amended, of any kind or in any form, including, but not limited to, 
petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other 
than dredged spoil.
    (cc) On-Scene Coordinator or OSC means the On-Scene Coordinator as 
defined in the NCP.
    (dd) Pathway means the route or medium through which oil or a 
hazardous substance is or was transported from the source of the 
discharge or release to the injured resource.
    (ee) Reasonable cost means the amount that may be recovered for the 
cost of performing a damage assessment. Costs are reasonable when: the 
Injury Determination, Quantification, and Damage Determination phases 
have a well-defined relationship to one another and are coordinated; the 
anticipated increment of extra benefits in terms of the precision or 
accuracy of estimates obtained by using a more costly injury, 
quantification, or damage determination methodology are greater than the 
anticipated increment of extra costs of that methodology; and the 
anticipated cost of the assessment is expected to be less than the 
anticipated damage amount determined in the Injury, Quantification, and 
Damage Determination phases.
    (ff) Rebuttable presumption means the procedural device provided by 
section 107(f)(2)(C) of CERCLA describing the evidentiary weight that 
must be given to any determination or assessment of damages in any 
administrative or judicial proceeding under CERCLA or section 311 of the 
CWA made by a Federal or State natural resource trustee in accordance 
with the rule provided in this part.
    (gg) Recovery period means either the longest length of time 
required to return the services of the injured resource to their 
baseline condition, or a lesser period of time selected by the 
authorized official and documented in the Assessment Plan.
    (hh) Release means a release of a hazardous substance as defined in 
section 101(22) of CERCLA.
    (ii) Replacement or acquisition of the equivalent means the 
substitution for an injured resource with a resource that provides the 
same or substantially similar services, when such substitutions are in 
addition to any substitutions made or anticipated as part of response 
actions and when such substitutions exceed the level of response actions 
determined appropriate to the site pursuant to the NCP.
    (jj) Response means remove, removal, remedy, or remedial actions as 
those phrases are defined in sections 101(23) and 101(24) of CERCLA.
    (kk) Responsible party or parties and potentially responsible party 
or parties means a person or persons described in or potentially 
described in one or more of the categories set forth in section 107(a) 
of CERCLA.
    (ll) Restoration or rehabilitation means actions undertaken to 
return an injured resource to its baseline condition, as measured in 
terms of the injured resource's physical, chemical, or biological 
properties or the services it previously provided, when such actions are 
in addition to response actions completed or anticipated, and when such 
actions exceed the level of response actions determined appropriate to 
the site pursuant to the NCP.
    (mm) SDWA means the Safe Drinking Water Act, 42 U.S.C. 300f-300j-10.
    (nn) Services means the physical and biological functions performed 
by the resource including the human uses of those functions. These 
services are the result of the physical, chemical, or biological quality 
of the resource.
    (oo) Site means an area or location, for purposes of response 
actions under the NCP, at which oil or hazardous substances have been 
stored, treated, discharged, released, disposed, placed, or otherwise 
came to be located.
    (pp) Surface water resources means the waters of the United States, 
including the sediments suspended in water or lying on the bank, bed, or 
shoreline

[[Page 221]]

and sediments in or transported through coastal and marine areas. This 
term does not include ground water or water or sediments in ponds, 
lakes, or reservoirs designed for waste treatment under the Resource 
Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6901-6987 or the 
CWA, and applicable regulations.
    (qq) Technical feasibility or technically feasible means that the 
technology and management skills necessary to implement an Assessment 
Plan or Restoration and Compensation Determination Plan are well known 
and that each element of the plan has a reasonable chance of successful 
completion in an acceptable period of time.
    (rr) Trustee or natural resource trustee means any Federal natural 
resources management agency designated in the NCP and any State agency 
designated by the Governor of each State, pursuant to section 
107(f)(2)(B) of CERCLA, that may prosecute claims for damages under 
section 107(f) or 111(b) of CERCLA; or an Indian tribe, that may 
commence an action under section 126(d) of CERCLA.
    (ss) Type A assessment means standard procedures for simplified 
assessments requiring minimal field observation to determine damages as 
specified in section 301(c)(2)(A) of CERCLA.
    (tt) Type B assessment means alternative methodologies for 
conducting assessments in individual cases to determine the type and 
extent of short- and long-term injury and damages, as specified in 
section 301(c)(2)(B) of CERCLA.
    (uu) Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaska Native village but 
not including any Alaska Native regional or village corporation, which 
is recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5171, Feb. 22, 1988; 59 
FR 14281, Mar. 25, 1994]



Sec.  11.15  What damages may a trustee recover?

    (a) In an action filed pursuant to section 107(f) or 126(d) of 
CERCLA, or sections 311(f) (4) and (5) of the CWA, a natural resource 
trustee who has performed an assessment in accordance with this rule may 
recover:
    (1) Damages as determined in accordance with this part and 
calculated based on injuries occurring from the onset of the release 
through the recovery period, less any mitigation of those injuries by 
response actions taken or anticipated, plus any increase in injuries 
that are reasonably unavoidable as a result of response actions taken or 
anticipated;
    (2) The costs of emergency restoration efforts underSec. 11.21 of 
this part;
    (3) The reasonable and necessary costs of the assessment, to 
include:
    (i) The cost of performing the preassessment and Assessment Plan 
phases and the methodologies provided in subpart D or E of this part; 
and
    (ii) Administrative costs and expenses necessary for, and incidental 
to, the assessment, assessment planning, and restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
planning, and any restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources undertaken; and
    (4) Interest on the amounts recoverable as set forth in section 
107(a) of CERCLA. The rate of interest on the outstanding amount of the 
claim shall be the same rate as is specified for interest on investments 
of the Hazardous Substance Superfund established under subchapter A of 
chapter 98 of the Internal Revenue Code of 1954. Such interest shall 
accrue from the later of: The date payment of a specified amount is 
demanded in writing, or the date of the expenditure concerned;
    (b) The determination of the damage amount shall consider any 
applicable limitations provided for in section 107(c) of CERCLA.
    (c) Where an assessment determines that there is, in fact, no 
injury, as defined inSec. 11.62 of this part, the natural resource 
trustee may not recover assessment costs.
    (d) There shall be no double recovery under this rule for damages or 
for assessment costs, that is, damages or assessment costs may only be 
recovered once, for the same discharge or release

[[Page 222]]

and natural resource, as set forth in section 107(f)(1) of CERCLA.
    (e) Actions for damages and assessment costs shall comply with the 
statute of limitations set forth in section 113(g), or, where 
applicable, section 126(d) of CERCLA.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 
FR 5172, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 
1996]



Sec.  11.16  [Reserved]



Sec.  11.17  Compliance with applicable laws and standards.

    (a) Worker health and safety. All worker health and safety 
considerations specified in the NCP shall be observed, except that 
requirements applying to response actions shall be taken to apply to the 
assessment process.
    (b) Resource protection. Before taking any actions under this part, 
particularly before taking samples or making determinations of 
restoration or replacement, compliance is required with any applicable 
statutory consultation or review requirements, such as the Endangered 
Species Act; the Migratory Bird Treaty Act; the Marine Protection, 
Research, and Sanctuaries Act; and the Marine Mammal Protection Act, 
that may govern the taking of samples or in other ways restrict 
alternative management actions.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5172, Feb. 22, 1988]



Sec.  11.18  Incorporation by reference.

    (a) The following publications or portions of publications are 
incorporated by reference:
    (1) Part II only (Fish-Kill Counting Guidelines) of ``Monetary 
Values of Freshwater Fish and Fish-Kill Guidelines,'' American Fisheries 
Society Special Publication Number 13, 1982; available for purchase from 
the American Fisheries Society, 5410 Grosvenor Lane, Bethesda, MD 20814, 
ph: (301) 897-8616. Reference is made to this publication in Sec.Sec. 
11.62(f)(4)(i)(B) and 11.71(l)(5)(iii)(A) of this part.
    (2) Appendix 1 (Travel Cost Method), Appendix 2 (Contingent 
Valuation (Survey) Methods), and Appendix 3 (Unit Day Value Method) only 
of Section VIII of ``National Economic Development (NED) Benefit 
Evaluation Procedures'' (Procedures), which is Chapter II of Economic 
and Environmental Principles and Guidelines for Water and Related Land 
Resources Implementation Studies, U.S. Department of the Interior, Water 
Resources Council, Washington, DC, 1984, DOI/WRC/-84/01; available for 
purchase from the National Technical Information Service (NTIS), 5285 
Port Royal Road, Springfield, VA 22161; PB No. 84-199-405; ph: (703) 
487-4650. Reference is made to this publication inSec. 11.83(a)(3) of 
this part.
    (3) ``Uniform Appraisal Standards for Federal Land Acquisition'' 
(Uniform Appraisal Standards), Interagency Land Acquisition Conference, 
Washington, DC, 1973; available for purchase from the Superintendent of 
Documents, U.S. Government Printing Office, Washington, DC 20402; Stock 
Number 052-059-00002-0; ph: (202) 783-3238. Reference is made to this 
publication inSec. 11.83(c)(2)(i) of this part.
    (4) The CERCLA Type A Natural Resource Damage Assessment Model for 
Coastal and Marine Environments Technical Documentation, Volumes I-VI, 
dated April 1996, including Revision I dated October 1997, and Revision 
II dated December 1999, prepared for the U.S. Department of the Interior 
by Applied Science Associates, Inc., A.T. Kearney, Inc., and Hagler 
Bailly Consulting, Inc. (NRDAM/CME technical document). Interested 
parties may obtain a copy of this document from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161; PB96-
501788; ph: (703) 487-4650. Sections 11.34 (a), (b), and (e), 11.35(a), 
11.36(b), 11.40(a), and 11.42(a), and Appendix II refer to this 
document.
    (5) The CERCLA Type A Natural Resource Damage Assessment Model for 
Great Lakes Environments Technical Documentation, Volumes I-IV, dated 
April 1996, including Revision I dated October 1997, and Revision II 
dated December 1999, prepared for the U.S. Department of the Interior by 
Applied Science Associates, Inc., and Hagler Bailly Consulting, Inc. 
(NRDAM/GLE technical document). Interested parties may obtain a copy of 
this document from the National Technical Information Service, 5285 Port 
Royal Road,

[[Page 223]]

Springfield, VA 22161; PB96-501770; ph: (703) 487-4650. Sections 11.34 
(a), (b), and (e), 11.35(a), 11.36(b), 11.40(a), and 11.42(a), and 
Appendix III refer to this document.
    (b) The publications or portions of publications listed in paragraph 
(a) of this section are available for inspection at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html. These incorporations by reference were 
approved by the Director of the Federal Register in accordance with 5 
U.S.C. 552(a). These materials are incorporated as they exist on the 
date of the approval and a notice of any change in these materials will 
be published in the Federal Register.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 9772, Mar. 25, 1988; 61 
FR 20609, May 7, 1996; 62 FR 60459, Nov. 10, 1997; 65 FR 6014, Feb. 8, 
2000; 69 FR 18803, Apr. 9, 2004]



Sec.  11.19  [Reserved]



                      Subpart B_Preassessment Phase



Sec.  11.20  Notification and detection.

    (a) Notification. (1) Section 104(b)(2) of CERCLA requires prompt 
notification of Federal and State natural resource trustees of potential 
damages to natural resources under investigation and requires 
coordination of the assessments, investigations, and planning under 
section 104 of CERCLA with such trustees.
    (2) The NCP provides for the OSC or lead agency to notify the 
natural resource trustee when natural resources have been or are likely 
to be injured by a discharge of oil or a release of a hazardous 
substance being investigated under the NCP.
    (3) Natural resource trustees, upon such notification described in 
paragraphs (a) (1) and (2) of this section, shall take such actions, as 
may be consistent with the NCP.
    (b) Previously unreported discharges or releases. If a natural 
resource trustee identifies or is informed of apparent injuries to 
natural resources that appear to be a result of a previously 
unidentified or unreported discharge of oil or release of a hazardous 
substance, he should first make reasonable efforts to determine whether 
a discharge or release has taken place. In the case of a discharge or 
release not yet reported or being investigated under the NCP, the 
natural resource trustee shall report that discharge or release to the 
appropriate authority as designated in the NCP.
    (c) Identification of co-trustees. The natural resource trustee 
should assist the OSC or lead agency, as needed, in identifying other 
natural resource trustees whose resources may be affected as a result of 
shared responsibility for the resources and who should be notified.

[53 FR 5172, Feb. 22, 1988]



Sec.  11.21  Emergency restorations.

    (a) Reporting requirements and definition. (1) In the event of a 
natural resource emergency, the natural resource trustee shall contact 
the National Response Center (800/424-8802) to report the actual or 
threatened discharge or release and to request that an immediate 
response action be taken.
    (2) An emergency is any situation related to a discharge or release 
requiring immediate action to avoid an irreversible loss of natural 
resources or to prevent or reduce any continuing danger to natural 
resources, or a situation in which there is a similar need for emergency 
action.
    (b) Emergency actions. If no immediate response actions are taken at 
the site of the discharge or release by the EPA or the U.S. Coast Guard 
within the time that the natural resource trustee determines is 
reasonably necessary, or if such actions are insufficient, the natural 
resource trustee should exercise any existing authority he may have to 
take on-site response actions. The natural resource trustee shall 
determine whether the potentially responsible party, if his identity is 
known, is taking or will take any response action. If no on-site 
response actions are taken, the natural resource trustee may undertake 
limited off-site restoration action consistent with its

[[Page 224]]

existing authority to the extent necessary to prevent or reduce the 
immediate migration of the oil or hazardous substance onto or into the 
resource for which the Federal or State agency or Indian tribe may 
assert trusteeship.
    (c) Limitations on emergency actions. The natural resource trustee 
may undertake only those actions necessary to abate the emergency 
situation, consistent with its existing authority. The normal procedures 
provided in this part must be followed before any additional restoration 
actions other than those necessary to abate the emergency situation are 
undertaken. The burden of proving that emergency restoration was 
required and that restoration costs were reasonable and necessary based 
on information available at the time rests with the natural resource 
trustee.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5173, Feb. 22, 1988]



Sec.  11.22  Sampling of potentially injured natural resources.

    (a) General limitations. Until the authorized official has made the 
determination required inSec. 11.23 of this part to proceed with an 
assessment, field sampling of natural resources should be limited to the 
conditions identified in this section. All sampling and field work shall 
be subject to the provisions ofSec. 11.17 of this part concerning 
safety and applicability of resource protection statutes.
    (b) Early sampling and data collection. Field samples may be 
collected or site visits may be made before completing the preassessment 
screen to preserve data and materials that are likely to be lost if not 
collected at that time and that will be necessary to the natural 
resource damage assessment. Field sampling and data collection at this 
stage should be coordinated with the lead agency under the NCP to 
minimize duplication of sampling and data collection efforts. Such field 
sampling and data collection should be limited to:
    (1) Samples necessary to preserve perishable materials considered 
likely to have been affected by, and contain evidence of, the oil or 
hazardous substance. These samples generally will be biological 
materials that are either dead or visibly injured and that evidence 
suggests have been injured by oil or a hazardous substance;
    (2) Samples of other ephemeral conditions or material, such as 
surface water or soil containing or likely to contain oil or a hazardous 
substance, where those samples may be necessary for identification and 
for measurement of concentrations, and where necessary samples may be 
lost because of factors such as dilution, movement, decomposition, or 
leaching if not taken immediately; and
    (3) Counts of dead or visibly injured organisms, which may not be 
possible to take if delayed because of factors such as decomposition, 
scavengers, or water movement. Such counts shall be subject to the 
provisions ofSec. 11.71(l)(5)(iii) of this part.



Sec.  11.23  Preassessment screen--general.

    (a) Requirement. Before beginning any assessment efforts under this 
part, except as provided for under the emergency restoration provisions 
ofSec. 11.21 of this part, the authorized official shall complete a 
preassessment screen and make a determination as to whether an 
assessment under this part shall be carried out.
    (b) Purpose. The purpose of the preassessment screen is to provide a 
rapid review of readily available information that focuses on resources 
for which the Federal or State agency or Indian tribe may assert 
trusteeship under section 107(f) or section 126(d) of CERCLA. This 
review should ensure that there is a reasonable probability of making a 
successful claim before monies and efforts are expended in carrying out 
an assessment.
    (c) Determination. When the authorized official has decided to 
proceed with an assessment under this part, the authorized official 
shall document the decision in terms of the criteria provided in 
paragraph (e) of this section in a Preassessment Screen Determination. 
This Preassessment Screen Determination shall be included in the Report 
of Assessment described inSec. 11.90 of this part.
    (d) Content. The preassessment screen shall be conducted in 
accordance with the guidance provided in this section and inSec. 
11.24--Preassessment screen--information on the site andSec. 11.25--

[[Page 225]]

Preassessment screen--preliminary identification of resources 
potentially at risk, of this part.
    (e) Criteria. Based on information gathered pursuant to the 
preassessment screen and on information gathered pursuant to the NCP, 
the authorized official shall make a preliminary determination that all 
of the following criteria are met before proceeding with an assessment:
    (1) A discharge of oil or a release of a hazardous substance has 
occurred;
    (2) Natural resources for which the Federal or State agency or 
Indian tribe may assert trusteeship under CERCLA have been or are likely 
to have been adversely affected by the discharge or release;
    (3) The quantity and concentration of the discharged oil or released 
hazardous substance is sufficient to potentially cause injury, as that 
term is used in this part, to those natural resources;
    (4) Data sufficient to pursue an assessment are readily available or 
likely to be obtained at reasonable cost; and
    (5) Response actions, if any, carried out or planned do not or will 
not sufficiently remedy the injury to natural resources without further 
action.
    (f) Coordination. (1) In a situation where response activity is 
planned or underway at a particular site, assessment activity shall be 
coordinated with the lead agency consistent with the NCP.
    (2) Whenever, as part of a response action under the NCP, a 
preliminary assessment or an OSC Report is to be, or has been, prepared 
for the site, the authorized official should consult with the lead 
agency under the NCP, as necessary, and to the extent possible use 
information or materials gathered for the preliminary assessment or OSC 
Report, unless doing so would unnecessarily delay the preassessment 
screen.
    (3) Where a preliminary assessment or an OSC Report does not exist 
or does not contain the information described in this section, that 
additional information may be gathered.
    (4) If the natural resource trustee already has a process similar to 
the preassessment screen, and the requirements of the preassessment 
screen can be satisfied by that process, the processes may be combined 
to avoid duplication.
    (g) Preassessment phase costs. (1) The following categories of 
reasonable and necessary costs may be incurred in the preassessment 
phase of the damage assessment:
    (i) Release detection and identification costs;
    (ii) Trustee identification and notification costs;
    (iii) Potentially injured resource identification costs;
    (iv) Initial sampling, data collection, and evaluation costs;
    (v) Site characterization and preassessment screen costs; and
    (vi) Any other preassessment costs for activities authorized by 
Sec.Sec. 11.20 through 11.25 of this part.
    (2) The reasonable and necessary costs for these categories shall be 
limited to those costs incurred by the authorized official for, and 
specifically allocable to, site-specific efforts taken during the 
preassessment phase for assessment of damages to natural resources for 
which the agency or Indian tribe is acting as trustee. Such costs shall 
be supported by appropriate records and documentation and shall not 
reflect regular activities performed by the agency or Indian tribe in 
management of the natural resource. Activities undertaken as part of the 
preassessment phase shall be taken in a manner that is cost-effective, 
as that phrase is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5173, Feb. 22, 1988]



Sec.  11.24  Preassessment screen--information on the site.

    (a) Information on the site and on the discharge or release. The 
authorized official shall obtain and review readily available 
information concerning:
    (1) The time, quantity, duration, and frequency of the discharge or 
release;
    (2) The name of the hazardous substance, as provided for in Table 
302.4--List of Hazardous Substances and Reportable Quantities, 40 CFR 
302.4;
    (3) The history of the current and past use of the site identified 
as the source of the discharge of oil or release of a hazardous 
substance;
    (4) Relevant operations occurring at or near the site;

[[Page 226]]

    (5) Additional oil or hazardous substances potentially discharged or 
released from the site; and
    (6) Potentially responsible parties.
    (b) Damages excluded from liability under CERCLA. (1) The authorized 
official shall determine whether the damages:
    (i) Resulting from the discharge or release were specifically 
identified as an irreversible and irretrievable commitment of natural 
resources in an environmental impact statement or other comparable 
environmental analysis, that the decision to grant the permit or license 
authorizes such commitment of natural resources, and that the facility 
or project was otherwise operating within the terms of its permit or 
license, so long as, in the case of damages to an Indian tribe occurring 
pursuant to a Federal permit or license, the issuance of that permit or 
license was not inconsistent with the fiduciary duty of the United 
States with respect to such Indian tribe; or
    (ii) And the release of a hazardous substance from which such 
damages resulted have occurred wholly before enactment of CERCLA; or
    (iii) Resulted from the application of a pesticide product 
registered under the Federal Insecticide, Fungicide, and Rodenticide 
Act, 7 U.S.C. 135-135k; or
    (iv) Resulted from any other federally permitted release, as defined 
in section 101(10) of CERCLA; or
    (v) Resulting from the release or threatened release of recycled oil 
from a service station dealer described in section 107(a)(3) or (4) of 
CERCLA if such recycled oil is not mixed with any other hazardous 
substance and is stored, treated, transported or otherwise managed in 
compliance with regulations or standards promulgated pursuant to section 
3014 of the Solid Waste Disposal Act and other applicable authorities.
    (2) An assessment under this part shall not be continued for 
potential injuries meeting one or more of the criteria described in 
paragraph (b)(1) of this section, which are exceptions to liability 
provided in sections 107(f), (i), and (j) and 114(c) of CERCLA.
    (c) Damages excluded from liability under the CWA. (1) The 
authorized official shall determine whether the discharge meets one or 
more of the exclusions provided in section 311 (a)(2) or (b)(3) of the 
CWA.
    (2) An assessment under this part shall not be continued for 
potential injuries from discharges meeting one or more of the CWA 
exclusions provided for in paragraph (c)(1) of this section.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 
FR 5173, Feb. 22, 1988]



Sec.  11.25  Preassessment screen--preliminary identification 
of resources potentially at risk.

    (a) Preliminary identification of pathways. (1) The authorized 
official shall make a preliminary identification of potential exposure 
pathways to facilitate identification of resources at risk.
    (2) Factors to be considered in this determination should include, 
as appropriate, the circumstances of the discharge or release, the 
characteristics of the terrain or body of water involved, weather 
conditions, and the known physical, chemical, and toxicological 
properties of the oil or hazardous substance.
    (3) Pathways to be considered shall include, as appropriate, direct 
contact, surface water, ground water, air, food chains, and particulate 
movement.
    (b) Exposed areas. An estimate of areas where exposure or effects 
may have occurred or are likely to occur shall be made. This estimate 
shall identify:
    (1) Areas where it has been or can be observed that the oil or 
hazardous substance has spread;
    (2) Areas to which the oil or hazardous substance has likely spread 
through pathways; and
    (3) Areas of indirect effect, where no oil or hazardous substance 
has spread, but where biological populations may have been affected as a 
result of animals moving into or through the site.
    (c) Exposed water estimates. The area of ground water or surface 
water that may be or has been exposed may be estimated by using the 
methods described in appendix I of this part.
    (d) Estimates of concentrations. An estimate of the concentrations 
of oil or a hazardous substance in those areas of potential exposure 
shall be developed.

[[Page 227]]

    (e) Potentially affected resources. (1) Based upon the estimate of 
the areas of potential exposure, and the estimate of concentrations in 
those areas, the authorized official shall identify natural resources 
for which he may assert trusteeship that are potentially affected by the 
discharge or release. This preliminary identification should be used to 
direct further investigations, but it is not intended to preclude 
consideration of other resources later found to be affected.
    (2) A preliminary estimate, based on information readily available 
from resource managers, of the services of the resources identified as 
potentially affected shall be made. This estimate will be used in 
determining which resources to consider if further assessment efforts 
are justified.



                     Subpart C_Assessment Plan Phase



Sec.  11.30  What does the authorized official do if an assessment
is warranted?

    (a) If the authorized official determines during the Preassessment 
Phase that an assessment is warranted, the authorized official must 
develop a plan for the assessment of natural resource damages.
    (b) Purpose. The purpose of the Assessment Plan is to ensure that 
the assessment is performed in a planned and systematic manner and that 
methodologies selected from subpart D for a type A assessment or from 
subpart E for a type B assessment, including the Injury Determination, 
Quantification, and Damage Determination phases, can be conducted at a 
reasonable cost, as that phrase is used in this part.
    (c) Assessment Plan phase costs. (1) The following categories of 
reasonable and necessary costs may be incurred in the Assessment Plan 
phase of the damage assessment:
    (i) Methodology identification and screening costs;
    (ii) Potentially responsible party notification costs;
    (iii) Public participation costs;
    (iv) Exposure confirmation analysis costs;
    (v) Preliminary estimate of damages costs; and
    (vi) Any other Assessment Plan costs for activities authorized by 
Sec.Sec. 11.30 through 11.38.
    (2) The reasonable and necessary costs for these categories shall be 
limited to those costs incurred or anticipated by the authorized 
official for, and specifically allocable to, site specific efforts taken 
in the development of an Assessment Plan for a resource for which the 
agency or Indian tribe is acting as trustee. Such costs shall be 
supported by appropriate records and documentation, and shall not 
reflect regular activities performed by the agency or tribe in 
management of the natural resource. Activities undertaken as part of the 
Assessment Plan phase shall be taken in a manner that is cost-effective, 
as that phrase is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5174, Feb. 22, 1988; 59 
FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 1996]



Sec.  11.31  What does the Assessment Plan include?

    (a) General content and level of detail. (1) The Assessment Plan 
must identify and document the use of all of the type A and/or type B 
procedures that will be performed.
    (2) The Assessment Plan shall be of sufficient detail to serve as a 
means of evaluating whether the approach used for assessing the damage 
is likely to be cost-effective and meets the definition of reasonable 
cost, as those terms are used in this part. The Assessment Plan shall 
include descriptions of the natural resources and the geographical areas 
involved. The Assessment Plan shall also include a statement of the 
authority for asserting trusteeship, or co-trusteeship, for those 
natural resources considered within the Assessment Plan. The authorized 
official's statement of the authority for asserting trusteeship shall 
not have the force and effect of a rebuttable presumption underSec. 
11.91(c) of this part. In addition, for type B assessments, the 
Assessment Plan shall include the sampling locations within those 
geographical areas, sample and survey design, numbers and types of 
samples to be collected, analyses to be performed, preliminary 
determination of the recovery period, and

[[Page 228]]

other such information required to perform the selected methodologies.
    (3) The Assessment Plan shall contain information sufficient to 
demonstrate that the damage assessment has been coordinated to the 
extent possible with any remedial investigation feasibility study or 
other investigation performed pursuant to the NCP.
    (4) The Assessment Plan shall contain procedures and schedules for 
sharing data, split samples, and results of analyses, when requested, 
with any identified potentially responsible parties and other natural 
resource trustees.
    (b) Identification of types of assessment procedures. The Assessment 
Plan must identify whether the authorized official plans to use a type A 
procedure, type B procedures, or a combination. Sections 11.34 through 
11.36 contain standards for deciding which types of procedures to use. 
The Assessment Plan must include a detailed discussion of how these 
standards are met.
    (c) Specific requirements for type B procedures. If the authorized 
official plans to use type B procedures, the Assessment Plan must also 
include the following:
    (1) The results of the confirmation of exposure performed under 
Sec.  11.37;
    (2) A Quality Assurance Plan that satisfies the requirements listed 
in the NCP and applicable EPA guidance for quality control and quality 
assurance plans;
    (3) The objectives, as required inSec. 11.64(a)(2) of this part, 
of any testing and sampling for injury or pathway determination; and
    (4) The Restoration and Compensation Determination Plan developed in 
accordance with the guidance inSec. 11.81 of this part. If existing 
data are not sufficient to develop the Restoration and Compensation 
Determination Plan as part of the Assessment Plan, the Restoration and 
Compensation Determination Plan may be developed later, after the 
completion of the Injury Determination or Quantification phases. If the 
Restoration and Compensation Determination Plan is published separately, 
the public review and comment will be conducted pursuant toSec. 
11.81(d) of this part.
    (d) Specific requirements for type A procedures. If the authorized 
official plans to use a type A procedure, the Assessment Plan must also 
contain the information described in subpart D.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 
FR 5174, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 
1996; 73 FR 57265, Oct. 2, 2008]



Sec.  11.32  How does the authorized official develop the Assessment
Plan?

    (a) Pre-development requirements. The authorized official shall 
fulfill the following requirements before developing an Assessment Plan.
    (1) Coordination. (i) If the authorized official's responsibility is 
shared with other natural resource trustees as a result of coexisting or 
contiguous natural resources or concurrent jurisdiction, the authorized 
official shall ensure that all other known affected natural resource 
trustees are notified that an Assessment Plan is being developed. This 
notification shall include the results of the Preassessment Screen 
Determination.
    (ii) Authorized officials from different agencies or Indian tribes 
are encouraged to cooperate and coordinate any assessments that involve 
coexisting or contiguous natural resources or concurrent jurisdiction. 
They may arrange to divide responsibility for implementing the 
assessment in any manner that is agreed to by all of the affected 
natural resource trustees with the following conditions:
    (A) A lead authorized official shall be designated to administer the 
assessment. The lead authorized official shall act as coordinator and 
contact regarding all aspects of the assessment and shall act as final 
arbitrator of disputes if consensus among the authorized officials 
cannot be reached regarding the development, implementation, or any 
other aspect of the Assessment Plan. The lead authorized official shall 
be designated by mutual agreement of all the natural resource trustees. 
If consensus cannot be reached as to the designation of the lead 
authorized official, the lead authorized official shall be designated in 
accordance with paragraphs (a)(1)(ii) (B), (C), or (D) of this section:

[[Page 229]]

    (B) When the natural resources being assessed are located on lands 
or waters subject to the administrative jurisdiction of a Federal 
agency, a designated official of the Federal agency shall act as the 
lead authorized official.
    (C) When the natural resources being assessed, pursuant to section 
126(d) of CERCLA, are located on lands or waters of an Indian tribe, an 
official designated by the Indian tribe shall act as the lead authorized 
official.
    (D) For all other natural resources for which the State may assert 
trusteeship, a designated official of the State agency shall act as the 
lead authorized official.
    (iii) If there is a reasonable basis for dividing the assessment, 
the natural resource trustee may act independently and pursue separate 
assessments, actions, or claims so long as the claims do not overlap. In 
these instances, the natural resource trustees shall coordinate their 
efforts, particularly those concerning the sharing of data and the 
development of the Assessment Plans.
    (2) Identification and involvement of the potentially responsible 
party. (i) If the lead agency under the NCP for response actions at the 
site has not identified potentially responsible parties, the authorized 
official shall make reasonable efforts to identify any potentially 
responsible parties.
    (ii) In the event the number of potentially responsible parties is 
large or if some of the potentially responsible parties cannot be 
located, the authorized official may proceed against any one or more of 
the parties identified. The authorized official should use reasonable 
efforts to proceed against most known potentially responsible parties or 
at least against all those potentially responsible parties responsible 
for significant portions of the potential injury.
    (iii)(A) The authorized official shall send a Notice of Intent to 
Perform an Assessment to all identified potentially responsible parties. 
The Notice shall invite the participation of the potentially responsible 
party, or, if several parties are involved and if agreed to by the lead 
authorized official, a representative or representatives designated by 
the parties, in the development of the type and scope of the assessment 
and in the performance of the assessment. The Notice shall briefly 
describe, to the extent known, the site, vessel, or facility involved, 
the discharge of oil or release of hazardous substance of concern to the 
authorized official, and the resources potentially at risk. The Notice 
shall also contain a statement of authority for asserting trusteeship, 
or co-trusteeship, over those natural resources identified as 
potentially at risk.
    (B) The authorized official shall allow at least 30 calendar days, 
with reasonable extensions granted as appropriate, for the potentially 
responsible party or parties notified to respond to the Notice before 
proceeding with the development of the Assessment Plan or any other 
assessment actions.
    (b) Plan approval. The authorized official shall have final approval 
as to the appropriate methodologies to include in the Assessment Plan 
and any modifications to the Assessment Plan.
    (c) Public involvement in the Assessment Plan. (1) The authorized 
official must make the Assessment Plan available for review by any 
identified potentially responsible parties, other natural resource 
trustees, other affected Federal or State agencies or Indian tribes, and 
any other interested member of the public for a period of at least 30 
calendar days, with reasonable extensions granted as appropriate. The 
authorized official may not perform any type B procedures described in 
the Assessment Plan until after this review period.
    (2) Any comments concerning the Assessment Plan received from 
identified potentially responsible parties, other natural resource 
trustees, other affected Federal or State agencies or Indian tribes, and 
any other interested members of the public, together with responses to 
those comments, shall be included as part of the Report of Assessment, 
described inSec. 11.90 of this part.
    (d) Plan implementation. At the option of the authorized official 
and if agreed to by any potentially responsible party, or parties acting 
jointly, the potentially responsible party or any other party under the 
direction, guidance, and monitoring of the authorized

[[Page 230]]

official may implement all or any part of the Assessment Plan finally 
approved by the authorized official. Any decision by the authorized 
official to allow or not allow implementation by the potentially 
responsible party shall be documented in the Assessment Plan.
    (e) Plan modification. (1) The Assessment Plan may be modified at 
any stage of the assessment as new information becomes available.
    (2)(i) Any modification to the Assessment Plan that in the judgment 
of the authorized official is significant shall be made available for 
review by any identified potentially responsible party, any other 
affected natural resource trustees, other affected Federal or State 
agencies or Indian tribes, and any other interested members of the 
public for a period of at least 30 calendar days, with reasonable 
extensions granted as appropriate, before tasks called for in the 
modified plan are begun.
    (ii) Any modification to the Assessment Plan that in the judgment of 
the authorized official is not significant shall be made available for 
review by any identified potentially responsible party, any other 
affected natural resource trustees, other affected Federal or State 
agencies or Indian tribes, and any other interested members of the 
public, but the implementation of such modification need not be delayed 
as a result of such review.
    (f) Plan review. (1) After the Injury Determination phase is 
completed and before the Quantification phase is begun, the authorized 
official shall review the decisions incorporated in the Assessment Plan.
    (2) The purpose of this review is to ensure that the selection of 
methodologies for the Quantification and Damage Determination phases is 
consistent with the results of the Injury Determination phase, and that 
the use of such methodologies remains consistent with the requirements 
of reasonable cost, as that term is used in this part.
    (3) Paragraphs (f)(1) and (f)(2) of this section do not apply to the 
use of a type A procedure.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5174, Feb. 22, 1988; 59 
FR 14282, Mar. 25, 1994; 61 FR 20609, May 7, 1996]



Sec.  11.33  What types of assessment procedures are available?

    There are two types of assessment procedures:
    (a) Type A procedures are simplified procedures that require minimal 
field observation. Subpart D describes the type A procedures. There are 
two type A procedures: a procedure for coastal or marine environments, 
which incorporates the Natural Resource Damage Assessment Model for 
Coastal and Marine Environments, Version 2.51 (NRDAM/CME); and a 
procedure for Great Lakes environments, which incorporates the Natural 
Resource Damage Assessment Model for Great Lakes Environments, Version 
1.51 (NRDAM/GLE).
    (b) Type B procedures require more extensive field observation than 
the type A procedures. Subpart E describes the type B procedures.

[61 FR 20610, May 7, 1996, as amended at 62 FR 60459, Nov. 10, 1997; 65 
FR 6014, Feb. 8, 2000]



Sec.  11.34  When may the authorized official use a type A procedure?

    The authorized official may use a type A procedure only if:
    (a) The released substance entered an area covered by the NRDAM/CME 
or NRDAM/GLE. Section 3.4, Volume III of the NRDAM/CME technical 
document (incorporated by reference, seeSec. 11.18) identifies the 
areas that the NRDAM/CME covers. Section 6.2, Volume III of the NRDAM/
GLE technical document (incorporated by reference, seeSec. 11.18) 
describes the areas that the NRDAM/GLE covers;
    (b) The NRDAM/CME or NRDAM/GLE cover the released substance. Table 
7.1, Volume I of the NRDAM/CME technical document lists the substances 
that the NRDAM/CME covers. Table 7.1, Volume I of the NRDAM/GLE 
technical document lists the substances that the NRDAM/GLE covers;
    (c) The released substance entered water at or near the surface;
    (d) At the time of the release, winds did not vary spatially over 
the area affected by the release in a way that would significantly 
affect the level or extent of injuries;
    (e) The authorized official is not aware of any reliable evidence 
that, for

[[Page 231]]

species that are likely to represent a significant portion of the claim, 
the species biomass is significantly lower than the species biomass 
assigned by the NRDAM/CME or the NRDAM/GLE Tables IV.2.1 through 
IV.2.115 and IV.5.1 through IV.5.77, Volume III of the NRDAM/CME 
technical document list the species biomasses in the NRDAM/CME. Tables 
III.3.17 through III.3.27 and III.3.40 through III.3.50, Volume III of 
the NRDAM/GLE technical document list the species biomasses in the 
NRDAM/GLE ; and
    (f) Subsurface currents either: are not expected to significantly 
affect the level or extent of injuries; or are reasonably uniform with 
depth over the water column in the area affected by the release.

[61 FR 20610, May 7, 1996]



Sec.  11.35  How does the authorized official decide whether to use
type A or type B procedures?

    (a) If the authorized official determines underSec. 11.34 that a 
type A procedure is available, the authorized official must then decide 
whether to use that procedure or use type B procedures. The authorized 
official must make this decision by weighing the difficulty of 
collecting site-specific data against the suitability of the averaged 
data and simplifying assumptions in the type A procedure for the release 
being assessed. The authorized official may use type B procedures if 
they can be performed at a reasonable cost and if the increase in 
accuracy provided by those procedures outweighs the increase in 
assessment costs. Section 1, Volume I of the NRDAM/CME technical 
document (incorporated by reference, seeSec. 11.18) lists the 
simplifying assumptions made in the NRDAM/CME. Volumes III through IV of 
the NRDAM/CME technical document list the data in the NRDAM/CME. Section 
1, Volume I of the NRDAM/GLE technical document (incorporated by 
reference, seeSec. 11.18) lists the simplifying assumptions made in 
the NRDAM/GLE. Volume III of the NRDAM/GLE technical document lists the 
data in the NRDAM/GLE.
    (b) The authorized official must use type B procedures rather than a 
type A procedure whenever a potentially responsible party:
    (1) Submits a written request for use of type B procedures along 
with documentation of the reasons supporting the request; and
    (2) Advances all reasonable costs of using type B procedures within 
a time frame acceptable to the authorized official.
    (c) If there is no available type A procedure, the authorized 
official must use type B procedures to calculate all damages.
    (d) Except as provided in paragraph (b) of this section, the 
authorized official may change the type of procedure used in light of 
comments received on the Assessment Plan. [SeeSec. 11.32(e)(2) to 
determine if the authorized official must provide for additional public 
review.] However, if the authorized official decides to use type B 
procedures in lieu of a type A procedure, and cannot confirm exposure 
underSec. 11.37, the authorized official may not then use a type A 
procedure.

[61 FR 20610, May 7, 1996]



Sec.  11.36  May the authorized official use both type A and 
type B procedures for the same release?

    (a) The authorized official may use both a type A procedure and type 
B procedures for the same release if:
    (1) The type B procedures are cost-effective and can be performed at 
a reasonable cost;
    (2) There is no double recovery; and
    (3) The type B procedures are used only to determine damages for 
injuries or compensable values that do not fall into the categories 
addressed by the type A procedure. [Sections 11.14(v) and 11.62 define 
``injury.'' Section 11.83(c)(1) defines ``compensable value.'']
    (b) The type A procedures address the following categories of injury 
and compensable value:
    (1) Direct mortality of species covered by the NRDAM/CME or NRDAM/
GLE resulting from short-term exposure to the released substance. Volume 
IV of the NRDAM/CME technical document (incorporated by reference, see 
Sec.  11.18) lists the species that the NRDAM/CME covers. Section 3, 
Volume III of the NRDAM/GLE technical document (incorporated by 
reference,

[[Page 232]]

seeSec. 11.18) lists the species that the NRDAM/GLE covers;
    (2) Direct loss of production of species covered by the NRDAM/CME or 
NRDAM/GLE resulting from short-term exposure to the released substance;
    (3) Indirect mortality of species covered by the NRDAM/CME or NRDAM/
GLE resulting from disruption of the food web by direct mortality or 
direct loss of production;
    (4) Indirect loss of production of species covered by the NRDAM/CME 
or NRDAM/GLE resulting from disruption of the food web by direct 
mortality or direct loss of production;
    (5) Lost assimilative capacity of water column and sediments;
    (6) Lost economic rent for lost commercial harvests resulting from 
any closures specified by the authorized official and/or from population 
losses;
    (7) Lost recreational harvests resulting from any closures specified 
by the authorized official and/or from population losses;
    (8) For the type A procedure for coastal and marine environments, 
lost wildlife viewing, resulting from population losses, by residents of 
the States bordering the provinces in which the population losses 
occurred. [A province is one of the geographic areas delineated in Table 
6.1, Volume I of the NRDAM/CME technical document.] For the type A 
procedure for Great Lakes environments, lost wildlife viewing, resulting 
from population losses, by residents of local areas bordering the 
provinces in which the population losses occurred. [A province is one of 
the geographic areas delineated in Table 8.1, Volume I of the NRDAM/GLE 
technical document.];
    (9) Lost beach visitation due to closure; and
    (10) For the type A procedure for Great Lakes environments, lost 
boating due to closure.
    (c) If the authorized official uses both type A and type B 
procedures, he or she must explain in the Assessment Plan how he or she 
intends to prevent double recovery.
    (d) When the authorized official uses type B procedures for injuries 
not addressed in a type A procedure, he or she must follow all of 
subpart E (which contains standards for determining and quantifying 
injury as well as determining damages),Sec. 11.31(c) (which addresses 
content of the Assessment Plan), andSec. 11.37 (which addresses 
confirmation of exposure). When the authorized official uses type B 
procedures for compensable values that are not included in a type A 
procedure but that result from injuries that are addressed in the type A 
procedure, he or she need not follow all of subpart E,Sec. 11.31(c), 
andSec. 11.37. Instead, the authorized official may rely on the injury 
predictions of the type A procedure and simply use the valuation 
methodologies authorized bySec. 11.83(c) to calculate compensable 
value. When using valuation methodologies, the authorized official must 
comply withSec. 11.84.

[61 FR 20610, May 7, 1996]



Sec.  11.37  Must the authorized official confirm exposure before 
implementing the Assessment Plan?

    (a) Before including any type B methodologies in the Assessment 
Plan, the authorized official must confirm that at least one of the 
natural resources identified as potentially injured in the preassessment 
screen has in fact been exposed to the released substance.
    (b) Procedures. (1) Whenever possible, exposure shall be confirmed 
by using existing data, such as those collected for response actions by 
the OSC, or other available studies or surveys of the assessment area.
    (2) Where sampling has been done before the completion of the 
preassessment screen, chemical analyses of such samples may be performed 
to confirm that exposure has occurred. Such analyses shall be limited to 
the number and type required for confirmation of exposure.
    (3) Where existing data are unavailable or insufficient to confirm 
exposure, one or more of the analytical methodologies provided in the 
Injury Determination phase may be used. The collection and analysis of 
new data shall be limited to that necessary to confirm exposure and 
shall not include testing for baseline levels or for injury, as those 
phrases are used in this part.

[51 FR 27725, Aug. 1, 1986. Redesignated and amended at 61 FR 20610, 
20611, May 7, 1996]

[[Page 233]]



Sec.  11.38  Assessment Plan--preliminary estimate of damages.

    (a) Requirement. When performing a type B assessment pursuant to the 
requirements of subpart E of this part, the authorized official shall 
develop a preliminary estimate of: the anticipated costs of restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
for the injured natural resources; and the compensable value, as defined 
inSec. 11.83(c) of this part, of the injured natural resources, if the 
authorized official intends to include compensable value in the damage 
claim. This preliminary estimate is referred to as the preliminary 
estimate of damages. The authorized official shall use the guidance 
provided in this section, to the extent possible, to develop the 
preliminary estimate of damages.
    (b) Purpose. The purpose of the preliminary estimate of damages is 
for reference in the scoping of the Assessment Plan to ensure that the 
choice of the scientific, cost estimating, and valuation methodologies 
expected to be used in the damage assessment fulfills the requirements 
of reasonable cost, as that term is used in this part. The authorized 
official will also use the preliminary estimate of damages in the review 
of the Assessment Plan, as required inSec. 11.32(f) of this part, to 
ensure the requirements of reasonable cost are still met.
    (c) Steps. The preliminary estimate of damages should include 
consideration of the ability of the resources to recover naturally and, 
if relevant, the compensable value through the recovery period with and 
without possible alternative actions. The authorized official shall 
consider the following factors, to the extent possible, in making the 
preliminary estimate of damages:
    (1) The preliminary estimate of costs of restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
should include consideration of a range of possible alternative actions 
that would accomplish the restoration, rehabilitation, replacement, and/
or acquisition of the equivalent of the injured natural resources.
    (i) The preliminary estimate of costs should take into account the 
effects, or anticipated effects, of any response actions.
    (ii) The preliminary estimate of costs should represent the expected 
present value of anticipated costs, expressed in constant dollars, and 
should include direct and indirect costs, and include the timing of 
those costs. The provisions detailed in Sec.Sec. 11.80-11.84 of this 
part are the basis for the development of the estimate.
    (iii) The discount rate to be used in developing the preliminary 
estimate of costs shall be that determined in accordance with the 
guidance inSec. 11.84(e) of this part.
    (2) The preliminary estimate of compensable value should be 
consistent with the range of possible alternatives for restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
being considered.
    (i) The preliminary estimate of compensable value should represent 
the expected present value of the anticipated compensable value, 
expressed in constant dollars, accrued through the period for the 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources to baseline conditions, i.e., between the 
occurrence of the discharge or release and the completion of (A) the 
restoration or rehabilitation of the injured natural resources to a 
condition where they can provide the level of services available at 
baseline, or (B) the replacement and/or acquisition of equivalent 
natural resources capable of providing such services. The estimate 
should use the same base year as the preliminary estimate of costs of 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources. The provisions detailed in Sec.Sec. 11.80-11.84 
of this part are the basis for the development of this estimate.
    (ii) The preliminary estimate of compensable value should take into 
account the effects, or anticipated effects, of any response actions.
    (iii) The discount rate to be used in developing the preliminary 
estimate of compensable value shall be that determined in accordance 
with the guidance inSec. 11.84(e) of this part.
    (d) Content and timing. (1) In making the preliminary estimate of 
damages, the authorized official should rely upon

[[Page 234]]

existing data and studies. The authorized official should not undertake 
significant new data collection or perform significant modeling efforts 
at this stage of the assessment planning phase.
    (2) Where possible, the authorized official should make the 
preliminary estimate of damages before the completion of the Assessment 
Plan as provided for inSec. 11.31 of this part. If there is not 
sufficient existing data to make the preliminary estimate of damages at 
the same time as the assessment planning phase, this analysis may be 
completed later, at the end of the Injury Determination phase of the 
assessment, at the time of the Assessment Plan review.
    (3) The authorized official is not required to disclose the 
preliminary estimate before the conclusion of the assessment. At the 
conclusion of the assessment, the preliminary estimate of damages, along 
with its assumptions and methodology, shall be included in the Report of 
the Assessment as provided for inSec. 11.91 of this part.
    (e) Review. The authorized official shall review, and revise as 
appropriate, the preliminary estimate of damages at the end of the 
Injury Determination and Quantification phases. If there is any 
significant modification of the preliminary estimate of damages, the 
authorized official shall document it in the Report of the Assessment.

[59 FR 14282, Mar. 25, 1994. Redesignated at 61 FR 20610, May 7, 1996, 
as amended at 73 FR 57266, Oct. 2, 2008]



                       Subpart D_Type A Procedures



Sec.  11.40  What are type A procedures?

    (a) A type A procedure is a standardized methodology for performing 
Injury Determination, Quantification, and Damage Determination that 
requires minimal field observation. There are two type A procedures: the 
type A procedure for coastal and marine environments; and the type A 
procedure for Great Lakes environments. The type A procedure for coastal 
and marine environments incorporates a computer model called the Natural 
Resource Damage Assessment Model for Coastal and Marine Environments 
Version 2.51 (NRDAM/CME). The NRDAM/CME technical document (incorporated 
by reference, seeSec. 11.18) includes and explains the NRDAM/CME. The 
type A procedure for Great Lakes environments incorporates a computer 
model called the Natural Resource Damage Assessment Model for Great 
Lakes Environments Version 1.51 (NRDAM/GLE). The NRDAM/GLE technical 
document (incorporated by reference, seeSec. 11.18) includes and 
explains the NRDAM/GLE. The authorized official must follow Sec.Sec. 
11.41 through 11.44 when using the type A procedures.
    (b) The reasonable and necessary costs incurred in conducting 
assessments under this subpart shall be limited to those costs incurred 
or anticipated by the authorized official for, and specifically 
allocable to, incident-specific efforts taken in the assessment of 
damages for natural resources for which the agency or Indian tribe is 
acting as trustee. Such costs shall be supported by appropriate records 
and documentation, and shall not reflect regular activities performed by 
the agency or the Indian tribe in management of the natural resource. 
Activities undertaken as part of the damage assessment shall be taken in 
a manner that is cost-effective, as that phrase is used in this part.

[52 FR 9096, Mar. 20, 1987, as amended at 53 FR 5175, Feb. 22, 1988; 61 
FR 20611, May 7, 1996; 62 FR 60459, Nov. 10, 1997; 65 FR 6014, Feb. 8, 
2000]



Sec.  11.41  What data must the authorized official supply?

    (a) The NRDAM/CME and the NRDAM/GLE require several data inputs to 
operate. The authorized official must develop the following data inputs:
    (1) The identity of the released substance;
    (2) The mass or volume of the identified substance that was 
released;
    (3) The duration of the release;
    (4) The time of the release;
    (5) The location of the release;
    (6) The wind conditions;
    (7) The extent of response actions;
    (8) The extent of any closures;
    (9) The implicit price deflator; and
    (10) For the NRDAM/CME, the condition of the currents and tides.
    (b) The authorized official must change the data in the NRDAM/CME

[[Page 235]]

and the NRDAM/GLE for the following parameters if he or she is aware of 
more accurate data:
    (1) Air temperature;
    (2) Water temperature at the surface;
    (3) Total suspended sediment concentration;
    (4) Mean settling velocity of suspended solids; and
    (5) Habitat type.
    (c)(1) If the release occurred in Alaska and the authorized official 
is not aware of any reliable evidence that ice was absent from the site 
of the release, then he or she must turn on the ice modeling function. 
Otherwise, the authorized official must leave the ice modeling function 
off.
    (2) If the release occurred in the Great Lakes and the authorized 
official is aware of reliable evidence that ice was absent from the site 
of the release, then he or she must turn off the ice modeling function.
    (d) The authorized official must develop the data inputs and 
modifications and include them in the Assessment Plan in the format 
specified in Appendix II (for the NRDAM/CME) or Appendix III (for the 
NRDAM/GLE).

[61 FR 20611, May 7, 1996]



Sec.  11.42  How does the authorized official apply the NRDAM/CME
or NRDAM/GLE?

    (a) The authorized official must perform a preliminary application 
of the NRDAM/CME or NRDAM/GLE with the data inputs and modifications 
developed underSec. 11.41. Volume II of the NRDAM/CME technical 
document (incorporated by reference, seeSec. 11.18) describes how to 
apply the NRDAM/CME. Volume II of the NRDAM/GLE technical document 
(incorporated by reference, seeSec. 11.18) describes how to apply the 
NRDAM/GLE. For cases involving releases of two or more substances or a 
release of a mixture of substances, the authorized official may only 
apply the NRDAM/CME or NRDAM/GLE once using only one of the substances.
    (b) If the preliminary application of the NRDAM/CME or NRDAM/GLE 
indicates damages in excess of $100,000, then the authorized official 
must decide whether to:
    (1) Limit the portion of his or her claim calculated with the type A 
procedure to $100,000; or
    (2) Compute all damages using type B procedures.

[61 FR 20611, May 7, 1996]



Sec.  11.43  Can interested parties review the results of the 
preliminary application?

    After completing the preliminary application of the NRDAM/CME or 
NRDAM/GLE, if the authorized official decides to continue with the type 
A procedure, he or she must issue an Assessment Plan for public comment 
as described inSec. 11.32. The Assessment Plan must include the 
information described inSec. 11.31, the data inputs and modifications 
developed underSec. 11.41, and a summary of the results of the 
preliminary application. The Assessment Plan must also identify a 
contact from whom a complete copy of the printout of the preliminary 
application can be obtained.

[61 FR 20612, May 7, 1996]



Sec.  11.44  What does the authorized official do after the close
of the comment period?

    (a) The authorized official must carefully review all comments 
received on the Assessment Plan, provide substantive responses to all 
comments, and modify the Plan as appropriate. [SeeSec. 11.32(e)(2) to 
determine if the authorized official must provide for additional public 
review.]
    (b) If, after reviewing the public comments, the authorized official 
decides to continue with the type A procedure, he or she must then 
perform a final application of the NRDAM/CME or NRDAM/GLE, using final 
data inputs and modifications based onSec. 11.41 and any reliable 
information received during the public review and comment period.
    (c) After completing the final application of the NRDAM/CME or 
NRDAM/GLE, the authorized official must prepare a Report of Assessment. 
The Report of Assessment must include the printed output from the final 
application as well as the Preassessment Screen Determination and the 
Assessment Plan.

[[Page 236]]

    (d) If the authorized official is aware of reliable evidence that a 
private party has recovered damages for commercial harvests lost as a 
result of the release, the authorized official must eliminate from the 
claim any damages for such lost harvests that are included in the lost 
economic rent calculated by the NRDAM/CME or NRDAM/GLE.
    (e) If the authorized official is aware of reliable evidence that 
the NRDAM/CME or NRDAM/GLE application covers resources beyond his or 
her trustee jurisdiction, the authorized official must either:
    (1) Have the other authorized official(s) who do have trustee 
jurisdiction over those resources join in the type A assessment; or
    (2) Eliminate any damages for those resources from the claim for 
damages.
    (f) If the final application of the NRDAM/CME or NRDAM/GLE, adjusted 
as needed under paragraphs (d) and (e), calculates damages in excess of 
$100,000, then the authorized official must limit the portion of his or 
her claim calculated with the type A procedure to $100,000.
    (g) After preparing the Report of Assessment, the authorized 
official must follow the steps described in subpart F.

[61 FR 20612, May 7, 1996]



                       Subpart E_Type B Procedures



Sec.  11.60  Type B assessments--general.

    (a) Purpose. The purpose of the type B assessment is to provide 
alternative methodologies for conducting natural resource damage 
assessments in individual cases.
    (b) Steps in the type B assessment. The type B assessment consists 
of three phases:Sec. 11.61--Injury Determination;Sec. 11.70--
Quantification; andSec. 11.80--Damage Determination, of this part.
    (c) Completion of type B assessment. After completion of the type B 
assessment, a Report of Assessment, as described inSec. 11.90 of this 
part, shall be prepared. The Report of Assessment shall include the 
determinations made in each phase.
    (d) Type B assessment costs. (1) The following categories of 
reasonable and necessary costs may be incurred in the assessment phase 
of the damage assessment:
    (i) Sampling, testing, and evaluation costs for injury and pathway 
determination;
    (ii) Quantification costs (including baseline service determination 
and resource recoverability analysis);
    (iii) Restoration and Compensation Determination Plan development 
costs including:
    (A) Development of alternatives;
    (B) Evaluation of alternatives;
    (C) Potentially responsible party, agency, and public reviews;
    (D) Other such costs for activities authorized bySec. 11.81 of 
this part;
    (iv) Cost estimating and valuation methodology calculation costs; 
and
    (v) Any other assessment costs authorized by Sec.Sec. 11.60-11.84 
of this part.
    (2) The reasonable and necessary costs for these categories shall be 
limited to those costs incurred or anticipated by the authorized 
official for, and specifically allocable to, site-specific efforts taken 
in the assessment of damages for a natural resource for which the agency 
or Indian tribe is acting as trustee. Such costs shall be supported by 
appropriate records and documentation, and shall not reflect regular 
activities performed by the agency or the Indian tribe in management of 
the natural resource. Activities undertaken as part of the damage 
assessment phase shall be taken in a manner that is cost-effective, as 
that phrase is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5175, Feb. 22, 1988; 59 
FR 14283, Mar. 25, 1994]



Sec.  11.61  Injury determination phase--general.

    (a) Requirement. (1) The authorized official shall, in accordance 
with the procedures provided in the Injury Determination phase of this 
part, determine: whether an injury to one or more of the natural 
resources has occurred; and that the injury resulted from the discharge 
of oil or release of a hazardous substance based upon the exposure 
pathway and the nature of the injury.

[[Page 237]]

    (2) The Injury Determination phase consists ofSec. 11.61--general; 
Sec.  11.62--injury definition;Sec. 11.63--pathway determination; and 
Sec.  11.64--testing and sampling methods, of this part.
    (b) Purpose. The purpose of the Injury Determination phase is to 
ensure that only assessments involving well documented injuries 
resulting from the discharge of oil or release of a hazardous substance 
proceed through the type B assessment.
    (c) Injury Determination phase steps. (1) The authorized official 
shall determine whether the potentially injured resource constitutes a 
surface water, ground water, air, geologic, or biological resource as 
defined inSec. 11.14 of this part. The authorized official shall then 
proceed in accordance with the guidance provided in the injury 
definition section,Sec. 11.62 of this part, to determine if the 
resource is injured.
    (2) The authorized official shall follow the guidance provided in 
the testing and sampling methods section,Sec. 11.64 of this part, in 
selecting the methodology for determining injury. The authorized 
official shall select from available testing and sampling procedures one 
or more procedures that meet the requirements of the selected 
methodologies.
    (3) The authorized official shall follow the guidance provided in 
the pathway section,Sec. 11.63 of this part, to determine the route 
through which the oil or hazardous substance is or was transported from 
the source of the discharge or release to the injured resource.
    (4) If more than one resource, as defined inSec. 11.14(z) of this 
part, has potentially been injured, an injury determination for each 
resource shall be made in accordance with the guidance provided in each 
section of the Injury Determination phase.
    (d) Selection of methodologies. (1) One of the methodologies 
provided inSec. 11.64 of this part for the potentially injured 
resource, or one that meets the acceptance criteria provided for that 
resource, shall be used to establish injury.
    (2) Selection of the methodologies for the Injury Determination 
phase shall be based upon cost-effectiveness as that phrase is used in 
this part.
    (e) Completion of Injury Determination phase. (1) Upon completion of 
the Injury Determination phase, the Assessment Plan shall be reviewed in 
accordance with the requirements ofSec. 11.32(f) of this part.
    (2) When the authorized official has determined that one or more of 
the natural resources has been injured as a result of the discharge or 
release, the authorized official may proceed to the Quantification and 
the Damage Determination phases.
    (3) When the authorized official has determined that an injury has 
not occurred to at least one of the natural resources or that an injury 
has occurred but that the injury cannot be linked to the discharge or 
release, the authorized official shall not pursue further assessment 
under this part.



Sec.  11.62  Injury determination phase--injury definition.

    (a) The authorized official shall determine that an injury has 
occurred to natural resources based upon the definitions provided in 
this section for surface water, ground water, air, geologic, and 
biological resources. The authorized official shall test for injury 
using the methodologies and guidance provided inSec. 11.64 of this 
part. The test results of the methodologies must meet the acceptance 
criteria provided in this section to make a determination of injury.
    (b) Surface water resources. (1) An injury to a surface water 
resource has resulted from the discharge of oil or release of a 
hazardous substance if one or more of the following changes in the 
physical or chemical quality of the resource is measured:
    (i) Concentrations and duration of substances in excess of drinking 
water standards as established by sections 1411-1416 of SDWA, or by 
other Federal or State laws or regulations that establish such standards 
for drinking water, in surface water that was potable before the 
discharge or release;
    (ii) Concentrations and duration of substances in excess of water 
quality criteria established by section 1401(1)(D) of SDWA, or by other 
Federal or State laws or regulations that establish such criteria for 
public water supplies, in surface water that before the

[[Page 238]]

discharge or release met the criteria and is a committed use, as the 
phrase is used in this part, as a public water supply;
    (iii) Concentrations and duration of substances in excess of 
applicable water quality criteria established by section 304(a)(1) of 
the CWA, or by other Federal or State laws or regulations that establish 
such criteria, in surface water that before the discharge or release met 
the criteria and is a committed use, as that phrase is used in this 
part, as a habitat for aquatic life, water supply, or recreation. The 
most stringent criterion shall apply when surface water is used for more 
than one of these purposes;
    (iv) Concentrations of substances on bed, bank, or shoreline 
sediments sufficient to cause the sediment to exhibit characteristics 
identified under or listed pursuant to section 3001 of the Solid Waste 
Disposal Act, 42 U.S.C. 6921; or
    (v) Concentrations and duration of substances sufficient to have 
caused injury as defined in paragraphs (c), (d), (e), or (f) of this 
section to ground water, air, geologic, or biological resources, when 
exposed to surface water, suspended sediments, or bed, bank, or 
shoreline sediments.
    (2)(i) The acceptance criterion for injury to the surface water 
resource is the measurement of concentrations of oil or a hazardous 
substance in two samples from the resource. The samples must be one of 
the following types, except as specified in paragraph (b)(3) of this 
section:
    (A) Two water samples from different locations, separated by a 
straight-line distance of not less than 100 feet; or
    (B) Two bed, bank, or shoreline sediment samples from different 
locations separated by a straight-line distance of not less than 100 
feet; or
    (C) One water sample and one bed, bank, or shoreline sediment 
sample; or
    (D) Two water samples from the same location collected at different 
times.
    (ii) In those instances when injury is determined and no oil or 
hazardous substances are detected in samples from the surface water 
resource, it must be demonstrated that the substance causing injury 
occurs or has occurred in the surface water resource as a result of 
physical, chemical, or biological reactions initiated by the discharge 
of oil or release of a hazardous substance.
    (3) If the maximum straight-line distance of the surface water 
resource is less than 100 feet, then the samples required in paragraph 
(b)(2)(i) (A) and (B) of this section should be separated by one-half 
the maximum straight-line distance of the surface water resource.
    (c) Ground water resources. (1) An injury to the ground water 
resource has resulted from the discharge of oil or release of a 
hazardous substance if one or more of the following changes in the 
physical or chemical quality of the resource is measured:
    (i) Concentrations of substances in excess of drinking water 
standards, established by sections 1411-1416 of the SDWA, or by other 
Federal or State laws or regulations that establish such standards for 
drinking water, in ground water that was potable before the discharge or 
release;
    (ii) Concentrations of substances in excess of water quality 
criteria, established by section 1401(1)(d) of the SDWA, or by other 
Federal or State laws or regulations that establish such criteria for 
public water supplies, in ground water that before the discharge or 
release met the criteria and is a committed use, as the phrase is used 
in this part, as a public water supply;
    (iii) Concentrations of substances in excess of applicable water 
quality criteria, established by section 304(a)(1) of the CWA, or by 
other Federal or State laws or regulations that establish such criteria 
for domestic water supplies, in ground water that before the discharge 
or release met the criteria and is a committed use as that phrase is 
used in this part, as a domestic water supply; or
    (iv) Concentrations of substances sufficient to have caused injury 
as defined in paragraphs (b), (d), (e), or (f) of this section to 
surface water, air, geologic, or biological resources, when exposed to 
ground water.
    (2) The acceptance criterion for injury to ground water resources is 
the measurement of concentrations of oil or hazardous substance in two 
ground water samples. The water samples must be from the same 
geohydrologic unit and must be obtained from one of

[[Page 239]]

the following pairs of sources, except as specified in paragraph (c)(3) 
of this section:
    (i) Two properly constructed wells separated by a straight-line 
distance of not less than 100 feet; or
    (ii) A properly constructed well and a natural spring or seep 
separated by a straight-line distance of not less than 100 feet; or
    (iii) Two natural springs or seeps separated by a straight-line 
distance of not less than 100 feet.
    (3) If the maximum straight-line distance of the ground water 
resource is less than 100 feet, the samples required in paragraph (c)(2) 
of this section should be separated by one-half of the maximum straight-
line distance of the ground water resource.
    (4) In those instances when injury is determined and no oil or 
hazardous substance is detected in samples from the ground water 
resource, it must be demonstrated that the substance causing injury 
occurs or has occurred in the ground water resource as a result of 
physical, chemical, or biological reactions initiated by the discharge 
of oil or release of hazardous substances.
    (d) Air resources. An injury to the air resource has resulted from 
the discharge of oil or release of a hazardous substance if one or more 
of the following changes in the physical or chemical quality of the 
resource is measured:
    (1) Concentrations of emissions in excess of standards for hazardous 
air pollutants established by section 112 of the Clean Air Act, 42 
U.S.C. 7412, or by other Federal or State air standards established for 
the protection of public welfare or natural resources; or
    (2) Concentrations and duration of emissions sufficient to have 
caused injury as defined in paragraphs (b), (c), (e), or (f) of this 
section to surface water, ground water, geologic, or biological 
resources when exposed to the emissions.
    (e) Geologic resources. An injury to the geologic resource has 
resulted from the discharge of oil or release of a hazardous substance 
if one or more of the following changes in the physical or chemical 
quality of the resource is measured:
    (1) Concentrations of substances sufficient for the materials in the 
geologic resource to exhibit characteristics identified under or listed 
pursuant to section 3001 of the Solid Waste Disposal Act, 42 U.S.C. 
6921;
    (2) Concentrations of substances sufficient to raise the negative 
logarithm of the hydrogen ion concentration of the soil (pH) to above 
8.5 (above 7.5 in humid areas) or to reduce it below 4.0;
    (3) Concentrations of substances sufficient to yield a salt 
saturation value greater than 2 millimhos per centimeter in the soil or 
a sodium adsorption ratio of more than 0.176;
    (4) Concentrations of substances sufficient to decrease the water 
holding capacity such that plant, microbial, or invertebrate populations 
are affected;
    (5) Concentrations of substances sufficient to impede soil microbial 
respiration to an extent that plant and microbial growth have been 
inhibited;
    (6) Concentrations in the soil of substances sufficient to inhibit 
carbon mineralization resulting from a reduction in soil microbial 
populations;
    (7) Concentrations of substances sufficient to restrict the ability 
to access, develop, or use mineral resources within or beneath the 
geologic resource exposed to the oil or hazardous substance;
    (8) Concentrations of substances sufficient to have caused injury to 
ground water, as defined in paragraph (c) of this section, from physical 
or chemical changes in gases or water from the unsaturated zone;
    (9) Concentrations in the soil of substances sufficient to cause a 
toxic response to soil invertebrates;
    (10) Concentrations in the soil of substances sufficient to cause a 
phytotoxic response such as retardation of plant growth; or
    (11) Concentrations of substances sufficient to have caused injury 
as defined in paragraphs (b), (c), (d), or (f), of this section to 
surface water, ground water, air, or biological resources when exposed 
to the substances.
    (f) Biological resources. (1) An injury to a biological resource has 
resulted from the discharge of oil or release of a hazardous substance 
if concentration of the substance is sufficient to:

[[Page 240]]

    (i) Cause the biological resource or its offspring to have undergone 
at least one of the following adverse changes in viability: death, 
disease, behavioral abnormalities, cancer, genetic mutations, 
physiological malfunctions (including malfunctions in reproduction), or 
physical deformations; or
    (ii) Exceed action or tolerance levels established under section 402 
of the Food, Drug and Cosmetic Act, 21 U.S.C. 342, in edible portions of 
organisms; or
    (iii) Exceed levels for which an appropriate State health agency has 
issued directives to limit or ban consumption of such organism.
    (2) The method for determining injury to a biological resource, as 
defined in paragraph (f)(1)(i) of this section, shall be chosen based 
upon the capability of the method to demonstrate a measurable biological 
response. An injury can be demonstrated if the authorized official 
determines that the biological response under consideration can satisfy 
all of the following acceptance criteria:
    (i) The biological response is often the result of exposure to oil 
or hazardous substances. This criterion excludes biological responses 
that are caused predominately by other environmental factors such as 
disturbance, nutrition, trauma, or weather. The biological response must 
be a commonly documented response resulting from exposure to oil or 
hazardous substances.
    (ii) Exposure to oil or hazardous substances is known to cause this 
biological response in free-ranging organisms. This criterion identifies 
biological responses that have been documented to occur in a natural 
ecosystem as a result of exposure to oil or hazardous substances. The 
documentation must include the correlation of the degree of the 
biological response to the observed exposure concentration of oil or 
hazardous substances.
    (iii) Exposure to oil or hazardous substances is known to cause this 
biological response in controlled experiments. This criterion provides a 
quantitative confirmation of a biological response occurring under 
environmentally realistic exposure levels that may be linked to oil or 
hazardous substance exposure that has been observed in a natural 
ecosystem. Biological responses that have been documented only in 
controlled experimental conditions are insufficient to establish 
correlation with exposure occurring in a natural ecosystem.
    (iv) The biological response measurement is practical to perform and 
produces scientifically valid results. The biological response 
measurement must be sufficiently routine such that it is practical to 
perform the biological response measurement and to obtain scientifically 
valid results. To meet this criterion, the biological response 
measurement must be adequately documented in scientific literature, must 
produce reproducible and verifiable results, and must have well defined 
and accepted statistical criteria for interpreting as well as rejecting 
results.
    (3) Unless otherwise provided for in this section, the injury 
determination must be based upon the establishment of a statistically 
significant difference in the biological response between samples from 
populations in the assessment area and in the control area. The 
determination as to what constitutes a statistically significant 
difference must be consistent with the quality assurance provisions of 
the Assessment Plan. The selection of the control area shall be 
consistent with the guidance provided inSec. 11.72 of this part.
    (4) The biological responses listed in this paragraph have been 
evaluated and found to satisfy the acceptance criteria provided in 
paragraph (f)(2) of this section. The authorized official may, when 
appropriate, select from this list to determine injury to fish and 
wildlife resources or may designate another response as the determiner 
of injury provided that the designated response can satisfy the 
acceptance criteria provided in paragraph (f)(2) of this section. The 
biological responses are listed by the categories of injury for which 
they may be applied.
    (i) Category of injury--death. Five biological responses for 
determining when death is a result of exposure to the discharge of oil 
or release of a hazardous substance have met the acceptance criteria.
    (A) Brain cholinesterase (ChE) enzyme activity. Injury has occurred 
when brain

[[Page 241]]

ChE activity in a sample from the population has been inhibited by at 
least 50 percent compared to the mean for normal brain ChE activity of 
the wildlife species. These enzymes are in the nervous system of 
vertebrate organisms and the rate of ChE activity is associated with the 
regulation of nerve impulse transmission. This biological response may 
be used to confirm injury when anti-ChE substances, such as 
organophosphorus and carbamate pesticides, are suspected to have 
resulted in death to bird and mammal species.
    (B) Fish kill investigations. Injury has occurred when a significant 
increase in the frequency or numbers of dead or dying fish can be 
measured in accordance with the procedures for counting dead or dying 
fish contained in Part II (Fish-Kill Counting Guidelines) of ``Monetary 
Values of Freshwater Fish and Fish-Kill Counting Guidelines,'' American 
Fisheries Society Special Publication Number 13, 1982 (incorporated by 
reference, seeSec. 11.18).
    (C) Wildlife kill investigations. Injury has occurred when a 
significant increase in the frequency or number of dead or dying birds 
or mammal species can be measured in a population sample from the 
assessment area as compared to a population sample from a control area. 
Wildlife kill investigations may be used when acute mortality has 
occurred to multiple wildlife species, or when detectable quantities of 
oil or hazardous substances have adherred to, bound to, or otherwise 
covered surface tissue, or had been ingested or inhaled by dead or dying 
bird or mammal species.
    (D) In situ bioassay. Injury has occurred when a statistically 
significant difference can be measured in the total mortality and/or 
mortality rates between population samples exposed in situ to a 
discharge of oil or a release of hazardous substance and those in a 
control site. In situ caged or confined bioassay may be used to confirm 
injury when oil or hazardous substances are suspected to have caused 
death to fish species.
    (E) Laboratory toxicity testing. Injury has occurred when a 
statistically significant difference can be measured in the total 
mortality and/or mortality rates between population samples of the test 
organisms placed in exposure chambers containing concentrations of oil 
or hazardous substances and those in a control chamber. Published 
standardized laboratory fish toxicity testing methodologies for acute 
flow-through, acute static, partial-chronic (early life stage), and 
chronic (life cycle) toxicity tests may be used to confirm injury. The 
oil or hazardous substance used in the test must be the exact substance 
or a substance that is reasonably comparable to that suspected to have 
caused death to the natural population of fish.
    (ii) Category of injury--disease. One biological response for 
determining when disease is a result of exposure to the discharge of oil 
or release of a hazardous substance has met the acceptance criteria.
    (A) Fin erosion. Injury has occurred when a statistically 
significant difference can be measured in the frequency of occurrence of 
fin erosion (also referred to as fin rot) in a population sample from 
the assessment area as compared to a sample from the control area. Fin 
erosion shall be confirmed by appropriate histological procedures. Fin 
erosion may be used when oil or hazardous substances are suspected to 
have caused the disease.
    (iii) Category of injury--behavioral abnormalities. Two biological 
responses for determining when behavioral abnormalities are a result of 
the exposure to the discharge of oil or release of a hazardous substance 
have met the acceptance criteria.
    (A) Clinical behavioral signs of toxicity. Injury has occurred when 
a statistically significant difference can be measured in the frequency 
of occurrence of clinical behavioral signs of toxicity in a population 
sample from the assessment area as compared to a sample from the control 
area. Clinical behavioral signs of toxicity are characteristic 
behavioral symptoms expressed by an organism in response to exposure to 
an oil or hazardous substance. The clinical behavioral signs of toxicity 
used shall be those that have been documented in published literature.

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    (B) Avoidance. Injury has occurred when a statistically significant 
difference can be measured in the frequency of avoidance behavior in 
population samples of fish placed in testing chambers with equal access 
to water containing oil or a hazardous substance and the control water. 
The oil or hazardous substance used in the test must be the exact 
substance or a substance that is reasonably comparable to that suspected 
to have caused avoidance to the natural populations of fish. This 
biological response may be used to confirm injury when oil or hazardous 
substances are suspected to have resulted in avoidance behavior in fish 
species.
    (iv) Category of injury--cancer. One biological response for 
determining when cancer is a result of exposure to the discharge of oil 
or release of a hazardous substance has met the acceptance criteria.
    (A) Fish neoplasm. Injury has occurred when a statistically 
significant difference can be measured in the frequency of occurrence of 
the fish neoplasia when comparing population samples from the assessment 
area and a control area. Neoplasms are characterized by relatively 
autonomous growth of abnormal cells that by proliferation infiltrate, 
press upon, or invade healthy tissue thereby causing destruction of 
cells, interference with physiological functions, or death of the 
organism. The following type of fish neoplasia may be used to determine 
injury: liver neoplasia and skin neoplasia. The neoplasms shall be 
confirmed by histological procedures and such confirmation procedures 
may also include special staining techniques for specific tissue 
components, ultra-structural examination using electron microscopy to 
identify cell origin, and to rule out or confirm viral, protozoan, or 
other causal agents. Fish neoplasm may be used to determine injury when 
oil or hazardous substances are suspected to have been the causal agent.
    (v) Category of injury--physiological malfunctions. Five biological 
responses for determining when physiological malfunctions are a result 
of exposure to the discharge of oil or release of a hazardous substance 
have met the acceptance criteria.
    (A) Eggshell thinning. Injury has occurred when eggshell thicknesses 
for samples for a population of a given species at the assessment area 
are thinner than those for samples from a population at a control area, 
or are at least 15 percent thinner than eggshells collected before 1946 
from the same geographic area and stored in a museum. This biological 
response is a measure of avian eggshell thickness resulting from the 
adult bird having assimilated the oil or hazardous substance. This 
biological response may be used when the organochlorine pesticide DDT or 
its metabolites are suspected to have caused such physiological 
malfunction injury.
    (B) Reduced avian reproduction. Injury has occurred when a 
statistically significant difference can be measured in the mean number 
of young fledged per active nest when comparing samples from populations 
in the assessment area and a control area. The fledging success (the 
number of healthy young leaving the nest) shall be used as the 
measurement of injury. Factors that may contribute to this measurement 
include egg fertility, hatching success, and survival of young. This 
biological response may be used when oil or hazardous substances are 
suspected to have reduced the nesting success of avian species.
    (C) Cholinesterase (ChE) enzyme inhibition. Injury has occurred when 
brain ChE activity in a sample from the population at the assessment 
area shows a statistically significant inhibition when compared to the 
mean activity level in samples from populations in a control area. These 
enzymes are in the nervous systems of vertebrate organisms and the rate 
of ChE activity is associated with the regulation of nerve impulse 
transmission. This biological response may be used as a demonstration of 
physiological malfunction injury to birds, mammals, and reptiles when 
anti-ChE substances, such as organophosphorus and carbamate pesticides, 
have been discharged or released.
    (D) Delta-aminolevulinic acid dehydratase (ALAD) inhibition. Injury 
has occurred when the activity level of whole blood ALAD in a sample 
from the population of a given species at an

[[Page 243]]

assessment area is significantly less than mean values for a population 
at a control area, and ALAD depression of at least 50 percent can be 
measured. The ALAD enzyme is associated with the formation of hemoglobin 
in blood and in chemical detoxification processes in the liver. This 
biological response is a measure of the rate of ALAD activity. This 
biological response may be used to determine injury to bird and mammal 
species that have been exposed to lead.
    (E) Reduced fish reproduction. Injury has occurred when a 
statistically significant difference in reproduction success between the 
control organisms and the test organisms can be measured based on the 
use of published standardized laboratory toxicity testing methodologies. 
This biological response may be used when the oil or hazardous substance 
is suspected to have caused a reduction in the reproductive success of 
fish species. Laboratory partial-chronic and laboratory chronic toxicity 
tests may be used. The oil or hazardous substance used in the test must 
be the exact substance or a substance that is reasonably comparable to 
that suspected to have caused reduced reproductive success in the 
natural population of fish.
    (vi) Category of injury--physical deformation. Four biological 
responses for determining when physical deformations are a result of 
exposure to the discharge of oil or release of a hazardous substance 
have met the injury acceptance criteria.
    (A) Overt external malformations. Injury has occurred when a 
statistically significant difference can be measured in the frequency of 
overt external malformation, such as small or missing eyes, when 
comparing samples from populations of wildlife species from the 
assessment area and a control area. This biological response may be used 
as a demonstration of injury when such physical deformations are 
observed in wildlife species exposed to oil or hazardous substances.
    (B) Skeletal deformities. Injury has occurred when a statistically 
significant difference can be measured in the frequency of skeletal 
deformities, such as defects in growth of bones, when comparing samples 
from populations of wildlife species from the assessment area and a 
control area. This biological response may be used as a demonstration of 
injury when such physical deformations are observed in wildlife species 
exposed to oil or hazardous substances.
    (C) Internal whole organ and soft tissue malformation. Injury has 
occurred when a statistically significant difference can be measured in 
the frequency of malformations to brain, heart, liver, kidney, and other 
organs, as well as soft tissues of the gastrointestinal tract and 
vascular system, when comparing samples from populations of wildlife 
species in the assessment area and a control area. This biological 
response may be used as a demonstration of injury when such physical 
deformations are observed in wildlife species exposed to oil or 
hazardous substances.
    (D) Histopathological lesions. Injury has occurred when a 
statistically significant difference can be measured in the frequency of 
tissue or cellular lesions when comparing samples from populations of 
wildlife species from the assessment area and a control area. This 
biological response may be used as a demonstration of injury when such 
physical deformations are observed in wildlife species exposed to oil or 
hazardous substances.



Sec.  11.63  Injury determination phase--pathway determination.

    (a) General. (1) To determine the exposure pathways of the oil or 
hazardous substance, the following shall be considered:
    (i) The chemical and physical characteristics of the discharged oil 
or released hazardous substance when transported by natural processes or 
while present in natural media;
    (ii) The rate or mechanism of transport by natural processes of the 
discharged oil or released hazardous substance; and
    (iii) Combinations of pathways that, when viewed together, may 
transport the discharged oil or released hazardous substance to the 
resource.
    (2) The pathway may be determined by either demonstrating the 
presence of the oil or hazardous substance in sufficient concentrations 
in the pathway resource or by using a model that

[[Page 244]]

demonstrates that the conditions existed in the route and in the oil or 
hazardous substance such that the route served as the pathway.
    (3) To the extent that the information needed to make this 
determination is not available, tests shall be conducted and necessary 
data shall be collected to meet the requirements of this section. 
Methods that may be used to conduct these additional tests and collect 
new information are described inSec. 11.64 of this part.
    (b) Surface water pathway. (1) When the surface water resource is 
suspected as the pathway or a component of the pathway, the authorized 
official shall determine, using guidance provided in this paragraph, 
whether the surface water resource, either solely or in combination with 
other media, served as the exposure pathway for injury to the resource.
    (2)(i) Using available information and such additional tests as 
necessary, it should be determined whether the surface water resource 
downstream or downcurrent of the source of discharge or release has been 
exposed to the oil or hazardous substance.
    (ii) When the source of discharge or release is on an open water 
body, such as a marsh, pond, lake, reservoir, bay, estuary, gulf, or 
sound, it should be determined, using available information and such 
additional tests as necessary, whether the surface water resource in the 
vicinity of the source of discharge or release has been exposed to the 
oil or hazardous substance.
    (3)(i) If a surface water resource is or likely has been exposed, 
the areal extent of the exposed surface water resource should be 
estimated, including delineation of:
    (A) Channels and reaches:
    (B) Seasonal boundaries of open water bodies; and
    (C) Depth of exposed bed, bank, or shoreline sediments.
    (ii) As appropriate to the exposed resource, the following should be 
determined:
    (A) Hydraulic parameters and streamflow characteristics of channels 
and reaches;
    (B) Bed sediment and suspended sediment characteristics, including 
grain size, grain mineralogy, and chemistry of grain surfaces;
    (C) Volume, inflow-outflow rates, degree of stratification, 
bathymetry, and bottom sediment characteristics of surface water bodies;
    (D) Suspended sediment concentrations and loads and bed forms and 
loads of streams and tidally affected waters; and
    (E) Tidal flux, current direction, and current rate in coastal and 
marine waters.
    (4)(i) Using available information and data from additional tests as 
necessary, the mobility of the oil or hazardous substance in the exposed 
surface water resource should be estimated. This estimate should 
consider such physical and chemical characteristics of the oil or 
hazardous substance as aqueous solubility, aqueous miscibility, density, 
volatility, potential for chemical degradation, chemical precipitation, 
biological degradation, biological uptake, and adsorption.
    (ii) Previous studies of the characteristics discussed in paragraph 
(b)(4)(i) of this section should be relied upon if hydraulic, physical, 
and chemical conditions in the exposed surface water resource are 
similar to experimental conditions of the previous studies. In the 
absence of this information, those field and laboratory studies 
necessary to estimate the mobility of the oil or hazardous substance in 
surface water flow may be performed.
    (5)(i) The rate of transport of the oil or hazardous substance in 
surface water should be estimated using available information and with 
consideration of the hydraulic properties of the exposed resource and 
the physical and chemical characteristics of the oil or hazardous 
substance.
    (ii) Transport rates may be estimated using:
    (A) The results of previous time-of-travel and dispersion studies 
made in the exposed surface water resource before the discharge or 
release;
    (B) The results of previous studies, conducted with the same or 
similar chemical substances to those discharged or released under 
experimental conditions similar to the hydraulic, chemical, and 
biological conditions in the exposed surface water resource;

[[Page 245]]

    (C) The results of field measurements of time-of-travel and 
dispersion made in the exposed or comparable surface water resource, 
using natural or artificial substances with transport characteristics 
that reasonably approximate those of the oil or hazardous substance; and
    (D) The results of simulation studies using the results of 
appropriate time-of-travel and dispersion studies in the exposed or 
comparable surface water resource.
    (c) Ground water pathway. (1) When ground water resources are 
suspected as the pathway or a component of the pathway, the authorized 
official shall determine, using guidance provided in this paragraph, 
whether ground water resources, either solely or in combination with 
other media, served as the exposure pathway for injury to the resource.
    (2) Using available information and such additional tests as 
necessary, it should be determined whether the unsaturated zone, the 
ground water, or the geologic materials beneath or downgradient of the 
source of discharge or release have been exposed to the oil or hazardous 
substance.
    (3) If a ground water resource is or likely has been exposed, 
available information and such additional tests should be used as 
necessary to determine the characteristics of the unsaturated zone, as 
well as any aquifers and confining units containing the exposed ground 
water, in the vicinity of the source of discharge or release. The 
characteristics of concern include:
    (i) Local geographical extent of aquifers and confining units;
    (ii) Seasonal depth to saturated zone beneath the site;
    (iii) Direction of ground water flow in aquifers;
    (iv) Local variation in direction of ground water flow resulting 
from seasonal or pumpage effects;
    (v) Elevation of top and bottom of aquifer and confining units;
    (vi) Lithology, mineralogy, and porosity of rocks or sediments 
comprising the unsaturated zone, aquifers, and confining units;
    (vii) Transmissivity and hydraulic conductivity of aquifers and 
confining units; and
    (viii) Nature and amount of hydraulic connection between ground 
water and local surface water resources.
    (4)(i) Using available information and such additional tests as 
necessary, the mobility of the oil or hazardous substance within the 
unsaturated zone and in the exposed ground water resources should be 
estimated. This estimate should consider local recharge rates and such 
physical and chemical characteristics of the oil or hazardous substance 
as aqueous solubility, aqueous miscibility, density, volatility, 
potential for chemical degradation, chemical precipitation, biological 
degradation, biological uptake, and adsorption onto solid phases in the 
unsaturated zone, aquifers, and confining units.
    (ii) Previous studies of the characteristics discussed in paragraph 
(c)(4)(i) of this section should be relied upon if geohydrologic, 
physical, and chemical conditions in the exposed ground water resource 
are similar to experimental conditions of the previous studies. In the 
absence of this information, field and laboratory studies may be 
performed as necessary to estimate the mobility of the oil or hazardous 
substance within the unsaturated zone and in ground water flows.
    (5)(i) The rate of transport of the oil or hazardous substance in 
ground water should be estimated using available information and with 
consideration of the site hydrology, geohydrologic properties of the 
exposed resource, and the physical and chemical characteristics of the 
oil or hazardous substance.
    (ii) Transport rates may be estimated using:
    (A) Results of previous studies conducted with the same or similar 
chemical substance, under experimental geohydrological, physical, and 
chemical conditions similar to the ground water resource exposed to the 
oil or hazardous substance;
    (B) Results of field measurements that allow computation of arrival 
times of the discharged or released substance at downgradient wells, so 
that an empirical transport rate may be derived; or
    (C) Results of simulation studies, including analog or numerical 
modeling of the ground water system.

[[Page 246]]

    (d) Air pathway. (1) When air resources are suspected as the pathway 
or a component of the pathway, the authorized official shall determine, 
using guidance provided in this paragraph, whether the air resources 
either solely or in combination with other media, served as the exposure 
pathway for injury to the resource.
    (2) Using available information, air modeling, and additional field 
sampling and analysis, it should be determined whether air resources 
have been exposed to the discharge of oil or release of a hazardous 
substance.
    (3)(i) If an air resource is or has likely been exposed, available 
information and such additional tests as necessary should be used to 
estimate the areal extent of exposure and the duration and frequency of 
exposure of such areas to emissions from the discharge of oil or release 
of a hazardous substance.
    (ii) The areal extent of exposure is defined as the geographical 
surface area or space where emissions from the source of discharge or 
release are found or otherwise determined to be present for such 
duration and frequency as to potentially result in injury to resources 
present within the area or space.
    (4) Previous studies of the characteristics discussed in paragraph 
(d)(3)(i) of this section should be relied upon if the conditions in the 
exposed air resource are similar to experimental conditions of the 
previous studies. In the absence of this information, air sampling and 
analysis methods identified inSec. 11.64(d) of this part, air modeling 
methods, or a combination of these methods may be used in identifying 
the air exposure pathway and in estimating the areal extent of exposure 
and duration and frequency of exposure.
    (5) For estimating the areal extent, duration, and frequency of 
exposure from the discharge or release, the following factors shall be 
considered as may be appropriate for each emissions event:
    (i) The manner and nature in which the discharge or release occurs, 
including the duration of the emissions, amount of the discharge or 
release, and emergency or other time critical factors;
    (ii) The configuration of the emitting source, including sources 
such as ponds, lagoons, pools, puddles, land and water surface spills, 
and venting from containers and vessels;
    (iii) Physical and chemical properties of substances discharged or 
released, including volatility, toxicity, solubility, and physical 
state;
    (iv) The deposition from the air and re-emission to the air of 
gaseous and particulate emissions that provide periodic transport of the 
emissions; and
    (v) Air transport and dispersion factors, including wind speed and 
direction, and atmospheric stability and temperature.
    (e) Geologic pathway. (1) When geologic resources are suspected as 
the pathway or a component of the pathway, the authorized official shall 
determine, using guidance provided in this paragraph, whether geologic 
resources, either solely or in combination with other media, served as 
the exposure pathway for injury to the resource.
    (2)(i) Using available information and the methods listed inSec. 
11.64(e) of this part, it should be determined whether any element of 
the geologic resource has been exposed to the oil or hazardous 
substance. If a geologic resource is or has likely been exposed, the 
areal extent of the exposed geologic resource, including the lateral and 
vertical extent of the dispersion, should be estimated.
    (ii) To determine whether the unsaturated zone served as a pathway, 
the guidance provided in paragraph (c) of this section should be 
followed.
    (f) Biological pathway. (1) When biological resources are suspected 
as the pathway or a component of the pathway, the authorized official 
shall determine, using the guidance provided in this paragraph, whether 
biological resources, either solely or in combination with other media, 
served as the exposure pathway for injury to the resource.
    (2) Biological pathways that resulted from either direct or indirect 
exposure to the oil or hazardous substance, or from exposure to products 
of chemical or biological reactions initiated by the discharge or 
release shall be identified. Direct exposure can result from direct

[[Page 247]]

physical contact with the discharged oil or released hazardous 
substance. Indirect exposure can result from food chain processes.
    (3) If the oil or hazardous substance adhered to, bound to, or 
otherwise covered surface tissue, or was ingested, or inhaled but not 
assimilated, the area of dispersion may be determined based upon 
chemical analysis of the appropriate tissues or organs (such as leaves, 
lungs, stomach, intestine, or their contents) that were directly exposed 
to the oil or hazardous substance.
    (4) If the oil or hazardous substance was assimilated, the areal 
dispersion may be determined based upon one or more of the following 
alternative procedures:
    (i) If direct exposure to the biological resource has occurred, 
chemical analysis of the organisms that have been exposed may be 
performed.
    (ii) If indirect exposure to the biological resource has occurred, 
either chemical analysis of free-ranging biological resources using one 
or more indicator species as appropriate, or laboratory analysis of one 
or more in situ placed indicator species as appropriate may be 
performed.
    (A) Indicator species, as used in this section, means a species of 
organism selected consistent with the following factors to represent a 
trophic level of a food chain:
    (1) General availability of resident organisms in the assessment 
area;
    (2) Potential for exposure to the oil or hazardous substance through 
ingestion, assimilation, or inhalation;
    (3) Occurrence of the substance in a chemical form that can be 
assimilated by the organism;
    (4) Capacity of the organism to assimilate, bioconcentrate, 
bioaccumulate, and/or biomagnify the substance;
    (5) Capacity of the organism to metabolize the substance to a form 
that cannot be detected through available chemical analytical 
procedures; and
    (6) Extent to which the organism is representative of the food chain 
of concern.
    (B) Collection of the indicator species should be limited to the 
number necessary to define the areal dispersion and to provide 
sufficient sample volume for chemical analysis.
    (C) When in situ procedures are used, indicator species that behave 
comparably to organisms existing under free-ranging conditions shall be 
collected. The indicator species used in this procedure shall be 
obtained either from a control area selected consistent with provisions 
ofSec. 11.72 of this part or obtained from a suitable supply of wild-
strain organisms reared in a laboratory setting. Appropriate chemical 
analysis shall be performed on a representative subsample of the 
indicator species before in situ placement.
    (iii) In situ placement procedures shall be used where the 
collection of samples would be inconsistent with the provisions ofSec. 
11.17(b) of this part.
    (5) Sampling sites and the number of replicate samples to be 
collected at the sampling sites shall be consistent with the quality 
assurance provisions of the Assessment Plan.
    (6) Chemical analysis of biological resource samples collected for 
the purpose of this section shall be conducted in accordance with the 
quality assurance provisions of the Assessment Plan.



Sec.  11.64  Injury determination phase--testing and sampling methods.

    (a) General. (1) The guidance provided in this section shall be 
followed for selecting methodologies for the Injury Determination phase.
    (2) Before selecting methodologies, the objectives to be achieved by 
testing and sampling shall be defined. These objectives shall be listed 
in the Assessment Plan. In developing these objectives, the availability 
of information from response actions relating to the discharge or 
release, the resource exposed, the characteristics of the oil or 
hazardous substance, potential physical, chemical, or biological 
reactions initiated by the discharge or release, the potential injury, 
the pathway of exposure, and the potential for injury resulting from 
that pathway should be considered.
    (3) When selecting testing and sampling methods, only those 
methodologies shall be selected:
    (i) For which performance under conditions similar to those 
anticipated at the assessment area has been demonstrated;

[[Page 248]]

    (ii) That ensure testing and sampling performance will be cost-
effective;
    (iii) That will produce data that were previously unavailable and 
that are needed to make the determinations; and
    (iv) That will provide data consistent with the data requirements of 
the Quantification phase.
    (4) Specific factors that should be considered when selecting 
testing and sampling methodologies to meet the requirements in paragraph 
(a)(3) of this section include:
    (i) Physical state of the discharged or released substance;
    (ii) The duration, frequency, season, and time of the discharge or 
release;
    (iii) The range of concentrations of chemical compounds to be 
analyzed in different media;
    (iv) Detection limits, accuracy, precision, interferences, and time 
required to perform alternative methods;
    (v) Potential safety hazards to obtain and test samples;
    (vi) Costs of alternative methods; and
    (vii) Specific guidance provided in paragraphs (b), (c), (d), (e), 
and (f) of this section.
    (b) Surface water resources. (1) Testing and sampling for injury to 
surface water resources shall be performed using methodologies described 
in the Assessment Plan.
    (2) Chemical analyses performed to meet the requirements of the 
Injury Determination phase for surface water resources shall be 
conducted in accordance with methods that are generally accepted or have 
been scientifically verified and documented.
    (3) The term ``water sample'' shall denote a volume of water 
collected and preserved to represent the bulk water and any dissolved or 
suspended materials or microorganisms occurring in the surface water 
resource.
    (4) Sampling of water and sediments from surface water resources 
shall be conducted according to generally accepted methods.
    (5) Measurement of the hydrologic properties of the resource shall 
be conducted according to generally accepted methods.
    (6)(i) Interpretation of surface-water flow or estimation of 
transport of oil or hazardous substance in surface water through the use 
of models shall be based on hydrologic literature and current practice.
    (ii) The applicability of models used during the assessment should 
be demonstrated, including citation or description of the following:
    (A) Physical, chemical, and biological processes simulated by the 
model;
    (B) Mathematical or statistical methods used in the model; and
    (C) Model computer code (if any), test cases proving the code works, 
and any alteration of previously documented code made to adapt the model 
to the assessment area.
    (iii) The validity of models used during the assessment should be 
established, including a description of the following:
    (A) Hydraulic geometry, physiographic features, and flow 
characteristics of modeled reaches or areas;
    (B) Sources of hydrological, chemical, biological, and 
meteorological data used in the model;
    (C) Lists or maps of data used to describe initial conditions;
    (D) Time increments or time periods modeled;
    (E) Comparison of predicted fluxes of water and solutes with 
measured fluxes;
    (F) Calibration-verification procedures and results; and
    (G) Types and results of sensitivity analyses made.
    (c) Ground water resources. (1) Testing and sampling for injury to 
ground water resources shall be performed using methodologies described 
in the Assessment Plan.
    (2) Chemical analyses performed to meet the requirements of the 
Injury Determination phase for ground water resources shall be conducted 
in accordance with methods that are generally accepted or have been 
scientifically verified and documented.
    (3)(i) The term ``water sample'' shall denote a volume of water 
collected and preserved to represent the bulk water and any dissolved or 
suspended materials or microorganisms occurring in the ground water 
resource.
    (ii) The source of ground water samples may be from natural springs, 
in seeps, or from wells constructed according to generally accepted 
methods.

[[Page 249]]

    (4) Sampling of ground water or of geologic materials through which 
the ground water migrates shall be conducted according to generally 
accepted methods.
    (5) Measurement of the geohydrologic properties of the resource 
shall be conducted according to generally accepted practice.
    (6) Description of lithologies, minerals, cements, or other 
sedimentary characteristics of the ground water resource should follow 
generally accepted methods.
    (7) Interpretation of the geohydrological setting, including 
identifying geologic layers comprising aquifers and any confining units, 
shall be based on geohydrologic and geologic literature and generally 
accepted practice.
    (8)(i) Interpretation of ground-water flow systems or estimation of 
transport of oil or hazardous substances in ground water through the use 
of models shall be based on geohydrologic literature and current 
practice.
    (ii) The applicability of models used during the assessment should 
be demonstrated, including citation or description of the following.
    (A) Physical, chemical, and biological processes simulated by the 
model;
    (B) Mathematical or statistical methods used in the model; and
    (C) Model computer code (if any), test cases proving the code works, 
and any alteration of previously documented code made to adapt the model 
to the assessment area.
    (iii) The validity of models used during the assessment should be 
established, including a description of the following:
    (A) Model boundary conditions and stresses simulated;
    (B) How the model approximates the geohydrological framework of the 
assessment area;
    (C) Grid size and geometry;
    (D) Sources of geohydrological, chemical, and biological data used 
in the model;
    (E) Lists or maps of data used to describe initial conditions;
    (F) Time increments or time periods modeled;
    (G) Comparison of predicted fluxes of water and solutes with 
measured fluxes;
    (H) Calibration-verification procedures and results; and
    (I) Type and results of sensitivity analyses made.
    (d) Air resources. (1) Testing and sampling for injury to air 
resources shall be performed using methodologies that meet the selection 
and documentation requirements in this paragraph. Methods identified in 
this section and methods meeting the selection requirements identified 
in this section shall be used to detect, identify, and determine the 
presence and source of emissions of oil or a hazardous substance, and 
the duration, frequency, period of exposure (day, night, seasonal, 
etc.), and levels of exposure.
    (2) The sampling and analysis methods identified in this paragraph 
are the primary methods to be used for determining injury to the air 
resource. Air modeling methods may be used for injury determination only 
when air sampling and analysis methods are not available or the 
discharge or release occurred with no opportunity to monitor or sample 
the emissions.
    (3)(i) Methods developed, evaluated, approved, and published by the 
U.S. Environmental Protection Agency may be used for sampling and 
analysis to determine injury to the air resource.
    (ii) Methods selected for air sampling and analysis may include 
those methods that have been formally reviewed, evaluated, and published 
by the following government and professional organizations: the National 
Institute for Occupational Safety and Health, the American Society for 
Testing and Materials, and the American Public Health Association.
    (iii) Methods selected for air sampling and analysis shall be 
methods that are documented for each of the following:
    (A) The range of field conditions for which the methods are 
applicable;
    (B) Quality assurance and quality control requirements necessary to 
achieve the data quality the methods are capable of producing;
    (C) Operational costs of conducting the methods; and

[[Page 250]]

    (D) Time required to conduct the methods.
    (iv) The determination of concentrations in excess of emission 
standards for hazardous air pollutants established under section 112 of 
the Clean Air Act, 42 U.S.C. 7412, shall be conducted in accordance with 
the primary methods or alternative methods as required in ``National 
Emission Standards for Hazardous Air Pollutants: Source Test and 
Analytical Methods,'' 40 CFR 61.14, and as may be applicable to the 
determination of injury to air resources.
    (4) In selecting methods for testing and sampling for injury to air 
resources, the following performance factors of the sampling and 
analysis methods and the influencing characteristics of the assessment 
area and the general vicinity shall be considered:
    (i) Method detection limits, accuracy, precision, specificity, 
interferences, and analysis of time and cost;
    (ii) Sampling area locations and frequency, duration of sampling, 
and chemical stability of emissions; and
    (iii) Meteorological parameters that influence the transport of 
emissions and the spatial and temporal variation in concentration.
    (e) Geologic resources. (1) Testing and sampling for injury to 
geologic resources shall be performed using methodologies described in 
this paragraph.
    (2) Testing pH level in soils shall be performed using standard pH 
measurement techniques, taking into account the nature and type of 
organic and inorganic constituents that contribute to soil acidity; the 
soil/solution ratio; salt or electrolytic content; the carbon dioxide 
content; and errors associated with equipment standardization and liquid 
junction potentials.
    (3) Salinity shall be tested by measuring the electrical 
conductivity of the saturation extraction of the soil.
    (4) Soil microbial respiration shall be tested by measuring uptake 
of oxygen or release of carbon dioxide by bacterial, fungal, algal, and 
protozoan cells in the soil. These tests may be made in the laboratory 
or in situ.
    (5) Microbial populations shall be tested using microscopic 
counting, soil fumigation, glucose response, or adenylate enegry charge.
    (6) Phytotoxicity shall be tested by conducting tests of seed 
germination, seedling growth, root elongation, plant uptake, or soil-
core microcosms.
    (7) Injury to mineral resources shall be determined by describing 
restrictions on access, development, or use of the resource as a result 
of the oil or hazardous substance. Any appropriate health and safety 
considerations that led to the restrictions should be documented.
    (f) Biological resources. (1) Testing and sampling for injury to 
biological resources shall be performed using methodologies provided for 
in this paragraph.
    (2)(i) Testing may be performed for biological responses that have 
satisfied the acceptance criteria ofSec. 11.62(f)(2) of this part.
    (ii) Testing methodologies that have been documented and are 
applicable to the biological response being tested may be used.
    (3) Injury to biological resources, as such injury is defined in 
Sec.  11.62(f)(1)(ii) of this part, may be determined by using methods 
acceptable to or used by the Food and Drug Administration or the 
appropriate State health agency in determining the levels defined in 
that paragraph.



Sec.  11.70  Quantification phase--general.

    (a) Requirement. (1) Upon completing the Injury Determination phase, 
the authorized official shall quantify for each resource determined to 
be injured and for which damages will be sought, the effect of the 
discharge or release in terms of the reduction from the baseline 
condition in the quantity and quality of services, as the phrase is used 
in this part, provided by the injured resource using the guidance 
provided in the Quantification phase of this part.
    (2) The Quantification phase consists ofSec. 11.70--general;Sec. 
11.71--service reduction quantification;Sec. 11.72--baseline services 
determination; andSec. 11.73--resource recoverability analysis, of 
this part.
    (b) Purpose. The purpose of the Quantification phase is to quantify 
the effects of the discharge or release on the

[[Page 251]]

injured natural resources for use in determining the appropriate amount 
of compensation.
    (c) Steps in the Quantification phase. In the Quantification phase, 
the extent of the injury shall be measured, the baseline condition of 
the injured resource shall be estimated, the baseline services shall be 
identified, the recoverability of the injured resource shall be 
determined, and the reduction in services that resulted from the 
discharge or release shall be estimated.
    (d) Completion of Quantification phase. Upon completing the 
Quantification phase, the authorized official shall make a determination 
as to the reduction in services that resulted from the discharge or 
release. This Quantification Determination shall be used in the Damage 
Determination phase and shall be maintained as part of the Report of 
Assessment described inSec. 11.90 of this part.



Sec.  11.71  Quantification phase--service reduction quantification.

    (a) Requirements. (1) The authorized official shall quantify the 
effects of a discharge of oil or release of a hazardous substance by 
determining the extent to which natural resource services have been 
reduced as a result of the injuries determined in the Injury 
Determination phase of the assessment.
    (2) This determination of the reduction in services will be used in 
the Damage Determination phase of the assessment.
    (3) Quantification will be done only for resources for which damages 
will be sought.
    (b) Steps. Except as provided inSec. 11.71(f) of this part, the 
following steps are necessary to quantify the effects:
    (1) Measure the extent to which the injury demonstrated in the 
Injury Determination phase has occurred in the assessment area;
    (2) Measure the extent to which the injured resource differs from 
baseline conditions, as described inSec. 11.72 of this part, to 
determine the change attributable to the discharge or release;
    (3) Determine the services normally produced by the injured 
resource, which are considered the baseline services or the without-a-
discharge-or-release condition as described inSec. 11.72 of this part;
    (4) Identify interdependent services to avoid double counting in the 
Damage Determination phase and to discover significant secondary 
services that may have been disrupted by the injury; and
    (5) Measure the disruption of services resulting from the discharge 
or release, which is considered the change in services or the with-a-
discharge-or-release condition.
    (c) Contents of the quantification. The following factors should be 
included in the quantification of the effects of the discharge or 
release on the injured resource:
    (1) Total area, volume, or numbers affected of the resource in 
question;
    (2) Degree to which the resource is affected, including 
consideration of subunits or subareas of the resource, as appropriate;
    (3) Ability of the resource to recover, expressed as the time 
required for restoration of baseline services as described inSec. 
11.73 of this part;
    (4) Proportion of the available resource affected in the area;
    (5) Services normally provided by the resource that have been 
reduced as a result of the discharge or release; and
    (6) Factors identified in the specific guidance in paragraphs (h), 
(i), (j), (k), and (l) of this section dealing with the different kinds 
of natural resources.
    (d) Selection of resources, services, and methodologies. Specific 
resources or services to quantify and the methodology for doing so 
should be selected based upon the following factors:
    (1) Degree to which a particular resource or service is affected by 
the discharge or release;
    (2) Degree to which a given resource or service can be used to 
represent a broad range of related resources or services;
    (3) Consistency of the measurement with the requirements of the 
economic methodology to be used;
    (4) Technical feasibility, as that phrase is used in this part, of 
quantifying changes in a given resource or service at reasonable cost; 
and
    (5) Preliminary estimates of services at the assessment area and 
control

[[Page 252]]

area based on resource inventory techniques.
    (e) Services. In quantifying changes in natural resource services, 
the functions provided in the cases of both with- and without-a-
discharge-or-release shall be compared. For the purposes of this part, 
services include provision of habitat, food and other needs of 
biological resources, recreation, other products or services used by 
humans, flood control, ground water recharge, waste assimilation, and 
other such functions that may be provided by natural resources.
    (f) Direct quantification of services. The effects of a discharge or 
release on a resource may be quantified by directly measuring changes in 
services provided by vhe resource, instead of quantifying the changes in 
the resource itself, when it is determined that all of the following 
conditions are met:
    (1) The change in the services from baseline can be demonstrated to 
have resulted from the injury to the natural resource;
    (2) The extent of change in the services resulting from the injury 
can be measured without also calculating the extent of change in the 
resource; and
    (3) The services to be measured are anticipated to provide a better 
indication of damages caused by the injury than would direct 
quantification of the injury itself.
    (g) Statutory exclusions. In quantifying the effects of the injury, 
the following statutory exclusions shall be considered, as provided in 
sections 107 (f), (i), and (j) and 114(c) of CERCLA, that exclude 
compensation for damages to natural resources that were a result of:
    (1) An irreversible and irretrievable commitment of natural 
resources identified in an environmental impact statement or other 
comparable environmental analysis, and the decision to grant the permit 
or license authorizes such a commitment, and the facility was otherwise 
operating within the terms of its permit or license, so long as, in the 
case of damages to an Indian tribe occurring pursuant to a Federal 
permit or license, the issuance of that license or permit was not 
inconsistent with the fiduciary duty of the United States with respect 
to such Indian tribe; or
    (2) The damages and the release of a hazardous substance from which 
such damages resulted have occurred wholly before the enactment of 
CERCLA; or
    (3) The application of a pesticide product registered under the 
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 135-135k; 
or
    (4) Any other federally permitted release, as defined in section 
101(10) of CERCLA; or
    (5) Resulting from the release or threatened release of recycled oil 
from a service station dealer as described in section 107(a) (3) or (4) 
of CERCLA if such recycled oil is not mixed with any other hazardous 
substance and is stored, treated, transported or otherwise managed in 
compliance with regulations or standards promulgated pursuant to section 
3014 of the Solid Waste Disposal Act and other applicable authorities.
    (h) Surface water resources. (1) The area where the injured surface 
water resource differs from baseline shall be determined by determining 
the areal extent of oil or hazardous substances in the water or on the 
sediments.
    (2)(i) Areal variation in concentrations of the discharged or 
released substances dissolved in or floating on water, adhering to 
suspended sediments, or adhering to bed, bank, or shoreline sediments 
from exposed areas should be determined in sufficient detail to 
approximately map the boundary separating areas with concentrations 
above baseline from areas with concentrations equal to or less than 
baseline.
    (ii) The size, shape, and location of the plume may be estimated 
using time of travel and dispersion data obtained underSec. 11.63 of 
this part, since plumes of dissolved or floating substances may be 
rapidly transported and dispersed in surface water.
    (3) Water and sediment samples may be collected and chemically 
analyzed and stage, water discharge, or tidal flux measurements made, as 
appropriate, to collect new data required by this section.
    (4)(i) Within the area determined in paragraph (h)(2) of this 
section to be above baseline, the services provided by the surface water 
or sediments that are affected should be determined. This

[[Page 253]]

determination may include computation of volumes of water or sediments 
affected, total areas of water or sediment affected, volume of water 
used from the affected surface water resource, or other appropriate 
measures.
    (ii) The services should be determined with consideration of 
potential effects on downstream or downcurrent resources during the 
recovery period, as determined inSec. 11.73 of this part, resulting 
from transport of dissolved substances and of substances adhering to 
sediments.
    (i) Ground water resources. (1) The area where the injured ground 
water resource differs from baseline should be determined by determining 
the areal extent of oil or hazardous substances in water or geologic 
materials in the unsaturated zone and identified geohydrological units, 
which are aquifers or confining layers, within the assessment area.
    (2)(i) The lateral and vertical extent of discharged or released 
substances in the unsaturated zone, if it is known to be exposed, should 
be determined.
    (ii) The lateral and vertical extent of plumes within geohydrologic 
units known to be exposed should be determined. Concentrations of 
substances within and adjacent to each plume should be determined in 
sufficient detail to approximately locate the boundary separating areas 
with concentrations above baseline from areas with concentrations equal 
to or less than baseline.
    (3) Water or geologic materials may be sampled and chemically 
analyzed, or surface-geophysical techniques may be used for collecting 
new data required by this section. General verification of the plume 
boundaries by chemical analysis of selected water samples should be done 
if boundary locations are initially determined by surface-geophysical 
measurements.
    (4)(i) Within the area determined in paragraph (i)(2)(ii) of this 
section to be above baseline, the services provided by the ground water 
that is affected should be determined. This determination may include 
computation of the volume of water affected, volume of affected ground 
water pumped from wells, volume of affected ground water discharged to 
streams or lakes, or other appropriate measures.
    (ii) The services should be determined with consideration of 
potential enlargement of the plume during the recovery period, as 
determined inSec. 11.73 of this part, resulting from ground water 
transport of the substances.
    (iii) The effects on the ground water resource during the recovery 
period resulting from potential remobilization of discharged or released 
substances that may be adhering, coating, or otherwise bonding to 
geologic materials should be considered.
    (j) Air resources. The area where the injured air resource differs 
from baseline should be determined by determining the geographical area 
affected, the degree of impairment of services, and the period of time 
impairment occurred.
    (k) Geologic resources. The area where the injured geologic resource 
differs from baseline should be determined by determining:
    (1) The surface area of soil with reduced ability to sustain the 
growth of vegetation from the baseline level;
    (2) The surface area or volume of soil with reduced suitability as 
habitat for biota from the baseline level;
    (3) The volume of geologic resources that may act as a source of 
toxic leachate;
    (4) The tonnage of mineral resources whose access, development, or 
use is restricted as a result of the discharge or release.
    (l) Biological resources. (1) The extent to which the injured 
biological resource differs from baseline should be determined by 
analysis of the population or the habitat or ecosystem levels. Although 
it may be necessary to measure populations to determine changes in the 
habitats or ecosystems, and vice versa, the final result should be 
expressed as either a population change or a habitat or ecosystem change 
in order to prevent double counting in the economic analysis. This 
separation may be ignored only for resources that do not interact 
significantly and where it can be demonstrated that double counting is 
being avoided.
    (2) Analysis of population changes or habitat or ecosystem changes 
should be

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based upon species, habitats, or ecosystems that have been selected from 
one or more of the following categories:
    (i) Species or habitats that can represent broad components of the 
ecosystem, either as representatives of a particular ecological type, of 
a particular food chain, or of a particular service;
    (ii) Species, habitats, or ecosystems that are especially sensitive 
to the oil or hazardous substance and the recovery of which will provide 
a useful indicator of successful restoration; or
    (iii) Species, habitats, or ecosystems that provide especially 
significant services.
    (3) Analysis of populations, habitats, or ecosystems shall be 
limited to those populations, habitats, or ecosystems for which injury 
has been determined in the Injury Determination phase or those that can 
be linked directly through services to resources for which injury has 
been so determined. Documentation of the service link to the injured 
resource must be provided in the latter case.
    (4) Population, habitat, or ecosystem measurement methods that 
provide data that can be interpreted in terms of services must be 
selected. To meet this requirement, a method should:
    (i) Provide numerical data that will allow comparison between the 
assessment area data and the control area or baseline data;
    (ii) Provide data that will be useful in planning efforts for 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources, and in later measuring the success of those 
efforts, and, where relevant, will allow calculation of compensable 
value; and
    (iii) Allow correction, as applicable, for factors such as dispersal 
of organisms in or out of the assessment area, differential 
susceptibility of different age classes of organisms to the analysis 
methods and other potential systematic biases in the data collection.
    (5) When estimating population differences of animals, standard and 
widely accepted techniques, such as census, mark-recapture, density, and 
index methods, and other estimation techniques appropriate to the 
species and habitat shall be used. Frequencies of injury observed in the 
population shall be measured as applicable.
    (i) In general, methods used for estimates of wildlife populations 
should follow standard and widely accepted techniques such as those 
recommendations provided in the ``Wildlife Management Techniques 
Manual'' (4th edition, Wildlife Society, 1980, available from the 
Wildlife Society, 5410 Grosvenor Lane, Bethesda, MD 20814), including 
references cited and recommended in that manual. The specific technique 
used need not be cited in that manual, but should meet its 
recommendations for producing reliable estimates or indices.
    (ii) Measurement of age structures, life table statistics, or age 
structure models generally will not provide satisfactory measurement of 
changes due to a discharge of oil or release of a hazardous substance 
unless there is clear evidence that the oil or hazardous substance has 
differentially affected different age classes and there are reliable 
baseline age structure data available for the population being assessed.
    (iii) Mortality from single incidents may be used to estimate 
changes in populations only when there are available baseline population 
data for the area, so that the proportion lost can be estimated, and 
when corrections can be made for potential sampling biases, such as 
natural mortality and factors influencing distribution of carcasses and 
ability of investigators to find them. Specific techniques for measuring 
mortality include the following:
    (A) Fish mortality in freshwater areas may be estimated from counts 
of carcasses, using methods and guidelines for estimating numbers of 
fish killed contained in Part II (Fish-Kill Counting Guidelines) of the 
``Monetary Values of Freshwater Fish and Fish-Kill Counting 
Guidelines,'' American Fisheries Society Special Publication Number 13, 
1982 (incorporation by reference, seeSec. 11.18), including use of 
appropriate random sampling methods and tagged carcasses as identified 
and discussed in Part II of that publication.
    (B) The authorized official may adapt the techniques discussed in 
paragraph (l) (5) (iii) (A) of this section for counting dead aquatic 
birds or for counting marine or estuarine fish or birds. Such

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adaptation will require the documentation of the methods used to avoid 
sampling biases.
    (C) Fish mortality may also be estimated by use of an in situ 
bioassay technique that is similar to that identified inSec. 
11.62(f)(4)(i)(C) of this part, if the oil or hazardous substance is 
still present at levels that resulted in injury and if appropriate 
instream controls can be maintained at control areas.
    (6) Plant populations may be measured using standard techniques, 
such as population density, species composition, diversity, dispersion, 
and cover,
    (7) Forest and range resources may be estimated by standard forestry 
and range management eva