PART 4—DEPARTMENT OF THE INTERIOR HEARINGS AND APPEALS PROCEDURES

Subtitle A—Office of the Secretary of the Interior

Subpart A—General Information and Authorities—Office of Hearings and Appeals

§ 4.1 Scope of authority; applicable regulations.

(a) In general. The Office of Hearings and Appeals (OHA), 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, including those established by statute, regulations, or policy. OHA may hear, consider, and decide those matters as fully and finally as might the Secretary, subject to any limitations on its delegated authority imposed by the Secretary.

(b) OHA Units—(1) Departmental Cases Hearings Division. (i) The Departmental Cases Hearings Division (DCHD) is composed of administrative law judges (ALJs) who conduct formal hearings under the Administrative Procedure Act, 5 U.S.C. 554, as well as other evidentiary hearings in accordance with statutes and regulations or by referral from an Appeals Board or other Departmental entity.

(ii) Rules applicable to proceedings before DCHD are contained in procedures in subpart C of this part, and, for particular types of proceedings, in regulations located in other parts and subparts of title 43 as well as in other parts of the Code of Federal Regulations.

(2) Probate Hearings Division. (i) The Probate Hearings Division (PHD) is composed of ALJs and Indian probate judges (IPJs) who conduct formal hearings to determine the rightful heirs and devisees of decedents who owned trust or restricted property. ALJs, IPJs, or other presiding officers may also conduct related informal proceedings.

(ii) Rules applicable to proceedings before Ph.D. are contained in part 30 of this subtitle and in regulations in other parts of the Code of Federal Regulations. Wherever there is any conflict between part 30 of this subtitle and subpart B of this part, part 30 will govern.

(3) Interior Board of Indian Appeals. (i) The Interior Board of Indian Appeals (IBIA) is composed of administrative judges (AJs) who issue final decisions for the Department on appeals of decisions issued by Departmental officials including the following:

(A) Administrative actions of officials of the Bureau of Indian Affairs, issued under 25 CFR chapter I, except as limited in 25 CFR chapter I or § 4.330 of this part;

(B) Decisions and orders of ALJs and IPJs in Indian probate matters; and

(C) Such other matters pertaining to Indians as are referred to IBIA by the Secretary, the OHA Director, or the Assistant Secretary-Indian Affairs for exercise of review authority of the Secretary.

(ii) Rules applicable to appeals before IBIA are contained in subpart D of this part and in regulations in other parts of the Code of Federal Regulations.

(4) Interior Board of Land Appeals. (i) The Interior Board of Land Appeals (IBLA) is composed of AJs who issue final decisions for the Department on appeals of decisions issued by Departmental officials related to the following:

(A) The use and disposition of public lands and resources, including land selections arising under the Alaska Native Claims Settlement Act, as amended;

(B) The use and disposition of resources in, and authorization of activities on, the submerged lands of the Outer Continental Shelf;

(C) The collection of revenue from the development of Federal minerals and resources on the Outer Continental Shelf;

(D) In certain instances, minerals held in trust or restricted status for Indian Tribes and individual Indians, and royalties from leases of those minerals, subject to the restrictions in § 4.330 of this part; and

(E) The conduct of surface coal mining under the Surface Mining Control and Reclamation Act of 1977.

(ii) Rules applicable to appeals before IBLA are contained in subpart E of this part and, for specific types of appeals, in subparts J and L of this part, and in regulations in other parts of the Code of Federal Regulations.

(c) Director's Office and Ad Hoc Boards of Appeals. (1) Appeals to the head of the Department that do not lie within the appellate review jurisdiction of a Standing Appeals Board and that are not specifically excepted in the general delegation of authority to the Director may be considered and ruled upon by the Director or an Ad Hoc Boards of Appeals appointed by the Director to consider the appeals and issue decisions.

(2) The Director or Ad Hoc Board of Appeals may decide finally for the Department all questions of fact and law necessary to complete adjudication of the issues. Jurisdiction of the Ad Hoc Board 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.

(3) The Director may designate appropriate presiding officers and identify processes in accordance with statutes and regulations for hearings and appeals that are not specifically covered by an OHA Unit in paragraph (b) of this section. Rules applicable to hearings or appeals in the Director's office are contained in subpart G of this part, in procedures in other subparts in this part, and in other parts of the Code of Federal Regulations that address particular types of proceedings.

§ 4.2 Membership and duties.

(a) Standing Appeals Boards. The Standing Appeals Boards consist of AJs and the Director as an ex officio member.

(1) The Director may designate a chief judge for each Standing Appeals Board. A chief judge is responsible for internal management and administration of the Standing Appeals Board, including management of the case docket. A chief judge is authorized to carry out such other duties as may be necessary to conduct the routine business of the Standing Appeals Board.

(2) A chief judge of a Standing Appeals Board may assign an appeal to a panel of any two AJs of the Standing Appeals Board, but if the AJs assigned to the panel cannot agree on a decision, a chief judge may assign one or more additional AJs to consider the appeal. The concurrence of a majority of the AJs who consider an appeal is sufficient for a decision.

(3) Decisions of a Standing Appeals Board must be in writing and signed by not less than a majority of the AJs who considered the appeal. The Director, being an ex officio member of the Standing Appeals Board, may participate in the consideration of any appeal and sign the resulting decision.

(b) Hearings Divisions. The Hearings Divisions consist of ALJs and, where authorized, IPJs. The Director may designate a chief judge for each Hearings Division. A chief judge is responsible for internal management and administration of the Hearings Division, including management of case dockets. A chief judge is authorized to carry out such other duties as may be necessary to conduct the routine business of the Hearings Division.

(c) Other hearings and appeals. For hearings and appeals that are not within the jurisdiction of an OHA Unit, the Director will designate or appoint the appropriate OHA officials to an Ad Hoc Board of Appeals or as a presiding officer consistent with the applicable statute or regulation.

§ 4.3 Representation before OHA.

(a) Appearances generally. Representation of parties in proceedings before OHA is governed by part 1 of this subtitle, which regulates practice before the Department of the Interior.

(b) Representation of the Government. When the Department's Office of the Solicitor represents an agency, bureau, or office of the Department in a proceeding before OHA, it will do so in the same manner as private counsel represents a client. Government counsel for other agencies, bureaus or offices of the Federal Government involved in any proceeding before OHA will represent the Government agency in the same manner as a private counsel represents a client.

(c) Appearances as amicus curiae. Any person or entity who seeks to appear as amicus curiae in a proceeding must make a timely request within 30 days of the date the matter is docketed by OHA unless another time period is specified by regulation. The request must state the grounds for the request. OHA retains sole discretion to grant or deny each request. If OHA grants a request, it retains sole discretion to determine the scope of the amicus appearance.

§ 4.4 Public records; contact information for offices.

Part 2 of this subtitle prescribes the rules governing availability of the public records of OHA. Contact information for offices referenced in this part is available in the OHA Standing Orders on Contact Information on the Department of the Interior OHA website at https://www.doi.gov/oha.

§ 4.5 Power of the Secretary and Director.

(a) Secretary. Nothing in this part may deprive the Secretary of any power conferred upon the Secretary by law including:

(1) The authority to take jurisdiction at any stage of any case before any employee of the Department, including any judge or other presiding officer of OHA, 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 of the Department, including any judge or other presiding officer of OHA, or to direct any such employee or employees to reconsider a decision; and

(3) The authority to appoint judges to OHA.

(b) Director. Nothing in this part may deprive the Director of any power delegated by the Secretary or otherwise conferred upon the Director by law.

(1) The Director may assume jurisdiction of any case before any Appeals Board or review any decision of any Appeals Board or direct reconsideration of any decision by any Appeals Board.

(2) The Director has the authority to appoint an Ad Hoc Board of Appeals, designate presiding officers to conduct hearings or proceedings, identify appropriate procedures if not otherwise specified by statute or regulations, or fulfill other hearings and appeals needs of the Department.

(3) The Director is responsible for the internal management and administration of OHA and its units including managing case dockets. The Director is authorized to carry out such other duties as may be necessary to conduct the routine business of OHA and its units.

(4) The Director may issue OHA Standing Orders to convey current information to parties and the public. This includes, but is not limited to, the OHA Standing Orders on Contact Information for Department of the Interior offices referenced in this part and the OHA Standing Orders on Electronic Transmission to convey information related to electronic transmission, including filing and service. The OHA Standing Orders may be issued in the event of an emergency or other contingency. The OHA Standing Orders are available on the Department of the Interior OHA website at https://www.doi.gov/oha.

(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 of such action, the administrative record will be requested, and, after the review process is completed, the Secretary or Director will issue a decision.

§ 4.6 Definitions and acronyms.

In this part:

Administrative judge or AJ means an administrative judge in the Office of Hearings and Appeals.

Administrative law judge or ALJ means an administrative law judge in the Office of Hearings and Appeals appointed under the Administrative Procedure Act, 5 U.S.C. 3105.

Appeals Board means the Interior Board of Land Appeals, the Interior Board of Indian Appeals, or an Ad Hoc Board of Appeals in the Office of Hearings and Appeals.

BIA means the Bureau of Indian Affairs in the Department of the Interior.

BIE means the Bureau of Indian Education in the Department of the Interior.

BLM means the Bureau of Land Management in the Department of the Interior.

BOEM means the Bureau of Ocean Energy Management in the Department of the Interior.

BOR means the Bureau of Reclamation in the Department of the Interior.

BSEE means the Bureau of Safety and Environmental Enforcement in the Department of the Interior.

Bureau or Office means one of the bureaus or offices within the Department of the Interior, other than OHA, and may include BIA, BIE, BLM, BOEM, BOR, BSEE, FWS, ONRR, OSMRE, or any predecessor or successor organization, as appropriate.

DCHD means the Departmental Cases Hearings Division in the Office of Hearings and Appeals.

Department means Department of the Interior.

Director means the Director of the Office of Hearings and Appeals.

FWS means the U.S. Fish and Wildlife Service in the Department of the Interior.

IBIA means the Interior Board of Indian Appeals in the Office of Hearings and Appeals.

IBLA means the Interior Board of Land Appeals in the Office of Hearings and Appeals.

Indian probate judge or IPJ means an attorney in the Office of Hearings and Appeals authorized to adjudicate Indian probate cases under 25 U.S.C. 372-2.

Interested person or entity means any person or entity with an interest in the agency proceeding that is greater than the interest that the public as a whole may have.

Judge means an administrative judge, an Indian probate judge, or an administrative law judge in the Office of Hearings and Appeals.

OHA means the Office of Hearings and Appeals in the Department of the Interior.

OHA Standing Order means a notice that contains information for parties and the public that is issued by the OHA Director pursuant to § 4.5(b)(4) and made available on the Department of the Interior OHA website at https://www.doi.gov/oha.

OHA Unit means the DCHD, IBIA, IBLA, or PHD

ONRR means the Office of Natural Resources Revenue in the Department of the Interior.

OSM or OSMRE means the Office of Surface Mining Reclamation and Enforcement in the Department of the Interior.

Person or entity means an individual; a corporation; partnership; trust; institution; association; organization; any other private entity; any officer, employee, agent, department, or instrumentality of the United States; any officer, employee, agent, department, or instrumentality of any Indian Tribe; or any officer, employee, agent, department, or instrumentality of any State or political subdivision.

PHD means the Probate Hearings Division in the Office of Hearings and Appeals.

Presiding officer means a judge, attorney, or other official designated by the Director to adjudicate a matter pending before the Office of Hearings and Appeals.

Secretary means the Secretary of the Interior.

Solicitor's Office means the Department of the Interior Solicitor's office.

Standing Appeals Board means the IBIA or IBLA.

WELSA means White Earth Reservation Land Settlement Act.

Subpart B—General Rules Relating to Procedures and Practice

§ 4.20 Purpose and scope.

(a) Purpose. The purpose of this subpart is to establish general rules of practice, where appropriate.

(b) Scope. General rules applicable to proceedings before OHA are set forth in subparts A and B of this part. Rules applicable to particular units or a particular type of proceeding are set forth in other subparts of this part. Wherever there is any conflict between one of the general rules in subparts A or B of this part and a rule in another subpart of this part, the specific rule will govern. Other laws, regulations, and policies of the Department may also address and be applicable to a particular type of proceeding. In addition, part 1 of this subtitle, which regulates practice before the Department of the Interior, applies to proceedings before OHA.

§ 4.21 Exhaustion and finality.

(a) Exhaustion. An appeal must be filed with the Director or applicable Appeals Board to exhaust administrative remedies unless otherwise provided by applicable law or the decision is immediately effective.

(b) Finality—(1) Decisions not in effect. A decision that is not in effect pending completion of an appeal does not constitute final agency action for the Department.

(2) Decisions in effect. A decision that is in effect, or goes into effect, pending completion of an appeal is final agency action for the Department, subject to being superseded by a final decision of the Director or an Appeals Board.

(3) Final Department Decision. The final decision of the Director or an Appeals Board constitutes the final agency action of the Department and is effective on the date it is issued unless the decision provides otherwise.

§ 4.22 Retention of documents; record address; and extensions of time.

(a) Retention of documents—(1) In general. All documents received in evidence in a hearing or submitted for the record in any proceeding before an OHA Unit will be retained in the official record of the proceedings.

(2) Withdrawal and substitution of original documents. The substitution of original documents may be permitted while the case is pending upon the submission of true copies. When a decision has become final for the Department, an Appeals Board in its discretion may, upon request and after notice to the other party or parties, permit the withdrawal of original documents in whole or in part. As a condition of granting permission for such withdrawal, the Appeals Board may require the substitution of true copies in its discretion and as necessary to ensure an accurate record of the proceeding.

(3) Sealed against disclosure. Transcripts of testimony and/or documents received or reviewed pursuant to § 4.31 will be sealed against disclosure to unauthorized persons and retained with the official record, subject to the withdrawal and substitution provisions.

(b) Record address information. At the time of initial filing, every person or entity who files a document in connection with any proceeding before OHA must provide their mailing address. A person or entity filing electronically must also provide the electronic mailing address that the person or entity intends to use in the proceeding.

(1) Address changes. A person or entity who has provided their address in a proceeding must promptly file and serve upon other parties to the proceeding, written notice of any change to their address information with the OHA Unit in which the matter is pending.

(2) Successors. The successors of a person or entity who has provided their address in a proceeding must promptly file notice of their own addresses.

(3) Failure to provide or update a record address. A person or entity who fails to provide or update their address information as required is not entitled to notice or service in connection with the proceeding until they have provided or updated their address information.

(c) Computation of time for filing and service. Except as otherwise provided by law, the following rules apply when computing any time period specified in a regulation, notice, order, or decision.

(1) Exclude the day of the event that triggers the time period;

(2) Count every day, including intermediate Saturdays, Sundays, and Federal holidays; and

(3) Include the last day of the period, but if the last day is a Saturday, Sunday, Federal holiday, or other nonbusiness day, the period continues to run until the end of the next day that is not a Saturday, Sunday, Federal holiday, or other nonbusiness day.

(d) Extensions of time. (1) The time for filing or serving any document may be extended by the presiding 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 proceeding is pending.

§ 4.23 Hearings or related proceedings.

(a) Transcripts. Hearings may be recorded, transcribed verbatim, or both. Interested parties may request a copy of the transcripts or recording of the hearing. The requesting party is responsible for fees and expenses of preparing their copy of a transcript or recording. For transcripts prepared by a contractor with a Department of the Interior bureau or office, each party is responsible for obtaining and paying for its copy of the transcript consistent with any statutory provisions governing the proceeding.

(b) Video, teleconferencing, or other suitable technology. In circumstances that the presiding officer deems appropriate, a hearing or proceeding may be conducted, in whole or in part, using video, teleconferencing, or other suitable technology.

§ 4.24 Basis of decision.

(a) Record. (1) The record of a hearing consists of the transcript of testimony or summary of testimony and exhibits together with all documents filed in conjunction with the hearing.

(2) If a hearing has been held on a referred issue of fact pursuant to § 4.337 or § 4.415, this record is the sole basis for decision on the referred issues of fact that are involved, except to the extent that official notice may be taken of a fact as provided in paragraph (b) of this section.

(3) Where a hearing has been held in other proceedings, the record made is 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 may be based upon any record, statement, file, or similar document that is not open to inspection by the parties to the hearing or appeal, except for documents or other evidence received or reviewed pursuant to § 4.31(d).

(b) Official notice. The presiding officer or an Appeals Board may take official notice of the public records of the Department of the Interior and of any matter of which the courts may take judicial notice.

§ 4.25 Oral argument and status conferences.

The Director or the presiding officer or an Appeals Board may, in their discretion, order or grant upon a written request, an opportunity for oral argument or status conferences. An oral argument or status conference may be conducted by video, teleconferencing, or other suitable technology.

§ 4.26 Subpoena power and witness provisions for probate proceedings.

(a) Purpose. To the extent authorized by law, subpoenas may be issued by PHD ALJs or IPJs in a probate proceeding under part 30 of this subtitle, or by the presiding officer in a probate proceeding under subpart H of this part, to require the attendance of a person, the giving of testimony, or the production of documents or other relevant materials.

(b) Issuance. The ALJ, IPJ, or presiding officer may issue a subpoena on a form that contains the caption for the proceeding, specifies the name and address of the person or entity from whom the testimony or material is sought, and orders one or more of the following:

(1) If the subpoena requires the person to testify in person at a hearing or deposition, then the subpoena will order the person to appear at a specified date, time, and place;

(2) If the subpoena requires the person to testify at a hearing or deposition using video, teleconferencing, or other suitable technology, then the subpoena will order the person to appear at a specified date and time and will contain the information necessary to testify remotely; or

(3) If the subpoena requires the production of designated documents, electronically stored information, or other tangible materials by a nonparty, then the subpoena will order production by a specified date and will designate whether the production must occur in person, by mail, by third party commercial courier, or by electronic means.

(c) Service. A subpoena must be served by one of the following methods:

(1) In person. A subpoena may be served by any person who is not a party to the proceeding and is 18 years of age or older by hand-delivering a copy of the subpoena to the person or entity named in the subpoena; or

(2) By registered or certified mail. A subpoena may be served by registered or certified mail, with a return receipt requested, to the last known residential address or place of business of the person or entity named in the subpoena.

(d) Geographic limits. A witness may be required to attend a deposition or hearing at a place not more than 100 miles from the place of service, except that no geographic limits apply to attendance at a deposition or hearing that is conducted using video, teleconferencing, or other suitable technology that allows a witness to testify remotely.

(e) Witness fees. Witnesses subpoenaed by any party will be paid the same fees and mileage as are paid for like service in District Courts of the United States under 28 U.S.C. 1821. The witness fees and mileage will be paid by the party who requested the appearance. Any witness who appears without being subpoenaed is also entitled to the same fees and mileage to be paid by the party who requested the appearance. This paragraph does not apply to Government employees who are called as witnesses by the Government.

§ 4.27 Ex parte communication and disqualification.

(a) Definition of ex parte communication. (1) An ex parte communication is any oral or written communication related to the merits of a pending proceeding or appeal before OHA that was not on the record, not furnished to all other parties, or not made in the presence of all parties, and that takes place between:

(i) Any party to the proceeding or appeal or any person or entity interested in the proceeding or appeal; and

(ii) Any OHA personnel who is involved in, or who may reasonably be expected to become involved in, the decision-making process in that proceeding or appeal.

(2) The following types of communications are not ex parte communications:

(i) Communications concerning case status, case scheduling, or the availability of Alternative Dispute Resolution;

(ii) Communications concerning compliance with procedural requirements, unless that compliance is an area of controversy in the proceeding or appeal;

(iii) Communications between Bureau of Indian Affairs (BIA) employees and PHD employees about a probate case held pursuant to 43 CFR part 30, unless BIA has filed a petition for rehearing, reopening, or reconsideration in that case;

(iv) Communications between Interior Business Center (IBC) employees and OHA employees about an employee debt waiver request or appeal held pursuant to § 4.704 of this part; and,

(v) Communications between employees of the WELSA Project Office or the Bureau of Indian Affairs (BIA) and OHA employees about a probate case held pursuant to 43 CFR part 4, subpart H, unless the WELSA Project Office or BIA has filed a request for hearing, petition for reopening, or petition for reconsideration in that case.

(b) Prohibition. Any ex parte communication is prohibited.

(c) Procedure for addressing ex parte communication. (1) OHA personnel receiving an ex parte communication must place in the record for the pending proceeding or appeal the written communication or, if oral, a memorandum stating the substance of the oral communication.

(2) The affected OHA unit must provide, or order the person or entity that made the ex parte communication to provide, the communication to all parties and provide them with an opportunity to respond in writing, and any response must be placed in the record for the pending proceeding or appeal.

(d) Sanctions for ex parte communication. (1) After considering the relevant circumstances and the nature of the violation, the Director, Appeals Board, or presiding officer may impose appropriate sanctions on a party who knowingly made or knowingly caused to be made a prohibited ex parte communication. Appropriate sanctions for an ex parte communication may include:

(i) Ruling adversely on the issue that was the subject of the ex parte communication; or

(ii) Requiring the party to show cause why its claim, motion, or interest should not be dismissed, denied, or otherwise adversely affected.

(2) Before imposing sanctions, the Director, Appeals Board, or presiding officer will provide notice and an opportunity to respond.

(3) The appropriate supervisor is responsible for notifying the Director and, in accordance with Department regulations and policy, disciplining OHA personnel who knowingly made or caused to be made a prohibited ex parte communication.

§ 4.28 Interlocutory appeals.

Interlocutory appeals from a ruling of an ALJ or IPJ are not permitted unless an ALJ or IPJ has certified the interlocutory ruling or abused their discretion in refusing a request to certify and an Appeals Board has granted permission for such an appeal. An Appeals Board will not grant permission for an interlocutory appeal except upon a showing that the interlocutory ruling involves a controlling question of law about which there are substantial grounds for a difference of opinion and that an immediate appeal will materially advance the completion of the proceeding. An interlocutory appeal will not operate to suspend the hearing unless otherwise ordered by the Appeals Board.

§ 4.29 Disqualification of presiding officers and board members.

(a) A presiding officer or Board member must withdraw from a case if circumstances exist that would disqualify a judge under the recognized canons of judicial ethics.

(b) A party may file a motion seeking the disqualification of a presiding officer or Board member, setting forth in detail the circumstances that the party believes require disqualification. Any supporting facts must be established by affidavit or other sufficient evidence. The moving party must also send a copy of the motion to the Director.

(c) The chief judge of the appropriate OHA unit or the Director may decide whether disqualification is required if the presiding officer or Board member does not withdraw under paragraph (a) of this section or in response to a motion under paragraph (b) of this section.

§ 4.30 Alternative dispute resolution.

While a matter is before OHA, the Director or OHA Unit may notify the parties at any time that the matter has been identified as a candidate for Alternative Dispute Resolution (ADR). The notice will describe the available options and may include an order directing the parties to participate in an assessment conference or otherwise communicate whether they are willing to participate in an ADR process. While a matter is pending before OHA, an individual party or the parties jointly may ask the Director or OHA Unit about the availability of ADR in the matter. The use of an ADR process is entirely voluntary and will only be used if all parties agree to participate.

§ 4.31 Limiting disclosure of confidential information.

(a) Confidential information. Confidential information includes information that is exempt from public disclosure under:

(1) The Freedom of Information Act (5 U.S.C. 552);

(2) The Trade Secrets Act (18 U.S.C. 1905); or

(3) Other laws that exempt the information from public disclosure.

(b) Filing a motion for a protective order. A person or entity who intends to file a document that may contain confidential information, and who wishes to prevent or limit disclosure of that confidential information, must also file and serve a motion for a protective order. The motion for a protective order must include the following.

(1) A statement specifying the factual and legal justification for nondisclosure.

(2) A copy of the document with the information exempt from disclosure redacted, or if it is not practicable to submit a copy of the document because redaction of the information would render the document unintelligible, a description of the document.

(3) A statement indicating one of the following:

(i) That the confidential information may be disclosed to other parties to the proceeding or appeal who agree in a written affidavit or declaration under penalty of perjury to the following conditions:

(A) Not to use or disclose the information except in the context of the proceeding or appeal;

(B) Not to retain the information in any format after the conclusion of the proceeding or appeal; and

(C) To return all physical copies of the information at the conclusion of the proceeding or appeal to the person or entity who submitted the information; or

(ii) That disclosure of the identified confidential information in that document to another party to the proceeding is prohibited by law, notwithstanding the conditions provided in paragraph (b)(3)(i) of this section. This paragraph (b)(3)(ii) does not apply to hearings conducted pursuant to 5 U.S.C. 554. When this paragraph (b)(3)(ii) applies, the person or entity submitting the confidential information must include the following in the motion for a protective order:

(A) A request that the presiding officer or Appeals Board consider the confidential information as a basis for its decision without disclosing it to the other party or parties.

(B) A statement explaining why disclosure is prohibited, citing pertinent statutory or regulatory authority. If the prohibition on disclosure is intended to protect the interest of a person or entity who is not a party to the proceeding, the person or entity making the request must demonstrate that such person or entity refused to consent to the disclosure of the confidential information to other parties to the proceeding.

(c) Ruling on motion for a protective order. (1) If the motion for a protective order satisfies the requirements of paragraph (b)(3)(i) of this section, the presiding officer or Appeals Board will grant the protective order. The presiding officer or Appeals Board may direct that the information be filed under seal and will require service of the information on the other parties to the proceeding or appeal upon filing of the written agreement required in paragraph (b)(3)(i) of this section. The information will be disclosed to the parties to the proceeding or appeal only under the conditions of paragraph (b)(3)(i) of this section unless the Department determines the confidential information must be released under the Freedom of Information Act or in accordance with part 2 of this title.

(2) If the motion for a protective order satisfies the requirements of paragraph (b)(3)(ii) of this section, the presiding officer or Appeals Board will grant the protective order. The presiding officer or Appeals Board may direct that the information be filed under seal and will not disclose the information unless the Department determines the confidential information must be released under the Freedom of Information Act or in accordance with part 2 of this title.

(3) If the presiding officer or Appeals Board denies a motion for a protective order seeking to prevent disclosure of confidential information to the parties to a proceeding or appeal under paragraph (b)(3)(ii) of this section, the presiding officer or Appeals Board must provide the person or entity who submitted the information an opportunity to withdraw the information before it is further considered by the presiding officer or Appeals 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.

(d) Waiver. If the person or entity submitting a document does not specify that the document contains confidential information, the presiding officer or Appeals Board may assume that the person or entity submitting the document does not object to public disclosure of any confidential information contained in that document or may allow a reasonable period of time to redact any confidential information identified after filing.

(e) Confidential information in an OHA decision. Where a decision by a presiding officer or Appeals Board is based, in whole or in part, on confidential information subject to a protective order, the presiding officer or Appeals Board must specify the nature of the confidential information and the provision of law under which disclosure was denied and must retain the confidential information under seal as part of the official record.

§ 4.32 Filing; service; issuance.

The provisions of this section do not apply to proceedings under subparts C, D, E, H, J, K and L of this part.

(a) Filing—(1) Generally. A document required or permitted to be filed in a proceeding must be delivered to the office where the filing is required as specified in this part or part 30 of this title, the OHA Standing Orders on Contact Information, and the OHA Standing Orders on Electronic Transmission.

(2) Methods of filing—(i) Electronic. A document may be filed electronically under the terms specified in the OHA Standing Orders on Electronic Transmission. Any Federal, State, or local agency, or any attorney representing a person or entity, must file electronically, unless otherwise specified in the OHA Standing Orders on Electronic Transmission or when the OHA unit where the filing is required has allowed non-electronic filing for good cause.

(ii) Non-electronic. Any document filed non-electronically must be delivered to the office where the filing is required at the address specified in the OHA Standing Orders on Contact Information.

(3) Timeliness—(i) Electronic. A document filed electronically is deemed timely if filed by 11:59 p.m. in the time zone of the office where the document is due on the date the document is due under the terms specified in the OHA Standing Orders on Electronic Transmission.

(ii) Non-electronic. A document not filed electronically is deemed timely filed if, on or before the last day for filing, it is sent by first-class United States mail, or other class of mail that is at least as expeditious, postage prepaid; or it is dispatched to a third-party commercial courier for delivery within 3 days. The date of mailing or dispatch must be documented by a postmark date, acceptance scan, receipt, or similar written acknowledgement from the company delivering the document for filing. A document not received within 7 business days of the filing deadline is presumed untimely, but the presumption may be overcome by the appropriate documentation establishing the date of mailing or dispatch.

(b) Service—(1) Generally. Any person or entity who files a document in a proceeding before OHA must also serve the document under the terms specified in this section and in the OHA Standing Orders on Electronic Transmission and the OHA Standing Orders on Contact Information.

(2) Service on represented parties. Service on a party known to be represented by counsel, or another designated representative, must be made on the representative.

(3) Manner of service—(i) Electronic. Service may be made electronically on the Office of the Solicitor and the bureau or office whose decision is being appealed under the terms specified in the OHA Standing Orders on Electronic Transmission. Service may be made electronically on all other persons or entities who have consented to electronic service under the terms specified in the OHA Standing Orders on Electronic Transmission.

(ii) Non-electronic. Service may be made non-electronically by United States mail or third-party commercial courier for delivery within 3 days.

(c) Issuance—(1) Electronic. A notice, order, or decision by an OHA Unit may be issued electronically under the terms specified in the OHA Standing Orders on Electronic Transmission, or in specific rules applicable to particular OHA Units or particular types of proceedings.

(2) Non-electronic. Unless otherwise specified, non-electronic issuance may be made by U.S. mail, personal delivery, or third-party commercial courier.

Subpart C—Rules Applicable to Proceedings Before the Departmental Cases Hearings Division

Purpose, Scope, and Definitions

§ 4.100 Purpose and scope.

(a) Purpose. This subpart contains the general procedural rules for practice before the Departmental Cases Hearings Division (DCHD) at §§ 4.100 through 4.131, as well as the specific rules applicable to certain types of proceedings before DCHD at §§ 4.150 through 4.175.

(b) Scope. The general procedural rules for practice before DCHD at §§ 4.100 through 4.131 apply to all types of proceedings within the jurisdiction of DCHD except the following:

(1) Hydropower proceedings governed by part 45 of this title;

(2) Tribal Acknowledgement proceedings governed by subpart K of this part;

(3) Indian Self-Determination and Education Assistance Act proceedings governed by 25 CFR part 900 and 42 CFR part 137, subpart P;

(4) Administrative Remedies for Fraudulent Claims and Statements governed by 43 CFR part 35 of this title; and

(5) Debt collection proceedings governed by the Departmental Manual.

(c) Subparts A and B. The general rules contained in subparts A and B of this part are applicable to proceedings before DCHD unless they are inconsistent with the rules in this subpart. Subpart A contains the authority, jurisdiction, and membership of DCHD. Subpart B contains the general rules applicable to proceedings before DCHD and other components of the Office of Hearings and Appeals (OHA).

(d) Other regulations. Rules applicable to specific types of proceedings within the jurisdiction of DCHD are contained throughout title 43 and in other portions of the Code of Federal Regulations, including, but not limited to, titles 25, 30, 34, and 50. To the extent that a rule applicable to a specific type of proceeding directly conflicts with the general procedural rules for practice before DCHD in this subpart, the specific rule will apply. If a specific rule contains references to outdated or inapplicable procedures, the ALJ may direct the parties, in writing, to follow some or all of the procedures contained in the general procedural rules for practice before DCHD in this subpart.

(e) Standing Orders. Standing Orders issued by the Director of OHA may also apply to proceedings before DCHD. Standing Orders are available on the Department of the Interior OHA website at https://www.doi.gov/oha.

§ 4.101 Definitions.

In addition to the definitions in subpart A, the following definitions apply to this subpart:

Administrative law judge (ALJ) means an administrative law judge appointed to the Departmental Cases Hearings Division (DCHD).

DCHD means the Departmental Cases Hearings Division in the Office of Hearings and Appeals.

Filing, Service, and Formatting of Documents

§ 4.102 Filing, service, and issuance.

(a) Filing—(1) Generally. Any document filed in a proceeding before DCHD must be delivered as specified in this subpart and in the OHA Standing Orders on Electronic Transmission and the OHA Standing Orders on Contact Information found on the Department of the Interior OHA website at https://www.doi.gov/oha.

(2) Methods of filing—(i) Electronic. A document may be filed electronically under the terms specified in the OHA Standing Orders on Electronic Transmission. Any Federal, State, or local agency and any attorney representing a person or entity must file electronically, unless otherwise specified in the OHA Standing Orders on Electronic Transmission or when the ALJ has allowed non-electronic filing for good cause.

(ii) Non-electronic. A document not filed electronically must be delivered to DCHD at the address specified in the OHA Standing Orders on Contact Information.

(3) Timeliness—(i) Electronic. A document filed electronically is deemed timely if filed by 11:59 p.m. Mountain Time on the date the document is due under the terms specified in the OHA Standing Orders on Electronic Transmission.

(ii) Non-electronic. A document not filed electronically is deemed timely filed if, on or before the last day for filing, it is sent by first-class United States mail, or other class of mail that is at least as expeditious, postage prepaid; or it is dispatched to a third-party commercial courier for delivery within 3 days. The date of mailing or dispatch must be documented by a postmark date, acceptance scan, receipt, or similar written acknowledgement from the carrier delivering the document for filing. A document not received within 7 business days of the filing deadline is presumed untimely, but the presumption may be overcome by the documentation establishing the date of mailing or dispatch.

(b) Service—(1) Generally. Any person or entity who files a document in a proceeding before DCHD must also serve the document under the terms specified in this section and in accordance with the OHA Standing Orders on Electronic Transmission and the OHA Standing Orders on Contact Information.

(2) Person or entity to serve. A person or entity that files any document with DCHD must serve a copy of the document concurrently as follows:

(i) For a notice of appeal or other document initiating a proceeding, on the bureau or office where the proceeding originated; on each person or entity named in the decision on appeal or identified in the document authorizing the initiation of the proceeding; and on the appropriate official of the Office of the Solicitor as specified in the OHA Standing Orders on Contact Information; and

(ii) For all other documents, on each party to the proceeding (including intervenors).

(3) Service on represented parties. Service on a party known to be represented by an attorney, or another designated representative, must be made on the representative. Parties must serve the appropriate office of the Office of the Solicitor as provided in the OHA Standing Orders on Contact Information until a particular attorney of the Office of the Solicitor files and serves a notice of appearance or other document in the proceeding, after which that attorney must be served. If the proceeding involves another Federal Government agency, such as a mining claim on national forest land, service must be on the appropriate office of the Government agency involved until a particular attorney serves a notice of appearance or other document in the proceeding, after which that attorney must be served.

(4) Service address. Every person or entity who files a document in connection with a proceeding before DCHD must provide the mailing or electronic address that the person or entity intends to use for service in the proceeding. A person or entity seeking to receive service electronically must consent to electronic service as required by paragraph (b)(6)(i) of this section. If a person or entity has not consented to electronic service, then anyone serving a document on that person or entity must use the mailing address in the person's or entity's most recent filing or, if there has not been any filing, the mailing address of the person or entity as provided by the bureau or office where the proceeding originated.

(5) Address changes. A party whose mailing or electronic address changes during the proceeding must promptly file and serve a written notice of the change. The notice must specify the proceedings to which the notice applies using the applicable docket number or docket numbers when available.

(6) Manner of service. A document may be served electronically or non-electronically as follows:

(i) Electronic. Service may be made electronically on the Office of the Solicitor and the bureau or office under the terms specified in the OHA Standing Orders on Electronic Transmission. Service may be made electronically on all other persons or entities who have consented to electronic service under the terms specified in the OHA Standing Orders on Electronic Transmission.

(ii) Non-electronic. Service may be made non-electronically by United States mail or third-party commercial courier for delivery within 3 days. In contest cases, service may be made by publication for complaints initiated under § 4.163.

(7) Certificate of service. At the conclusion of any document that a party must serve under the regulations in this subpart, the party or the party's representative 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.

(8) Completion of service—(i) Electronic. Service by electronic means is complete on sending or as otherwise provided under the terms specified in the OHA Standing Orders on Electronic Transmission, unless the party making service is notified that the document was not received by the party served.

(ii) Non-electronic. Service by mail or by commercial courier is complete on mailing or dispatch to the carrier. The date of mailing or dispatch must be documented by a postmark date, acceptance scan, receipt, or other similar written acknowledgement from the carrier delivering the document.

(iii) Publication. Service by publication is complete when the requirements set forth in § 4.163 have been satisfied.

(c) Issuance. An ALJ may issue notices, orders, decisions, or other documents electronically or non-electronically as follows:

(1) Electronic. A notice, order, decision, or other document will be issued electronically to the electronic service address provided by the person or entity, and service is complete on sending or as otherwise specified by the OHA Standing Orders on Electronic Transmission.

(2) Non-electronic. If an electronic service address has not been provided, then:

(i) A non-appealable notice, order, decision, or other document will be issued by first-class United States mail or third-party commercial courier to the mailing address provided by the person or entity or, if not provided, to the last known address, and service is complete on mailing or dispatch; and

(ii) An appealable order or decision will be sent by certified United States mail to the mailing address provided by the person or entity or, if not provided, to the last known mailing address, and service is complete when received. If an order or decision sent by certified mail is not claimed by the recipient or is returned as undeliverable, then service will be made by first-class United States mail, and service is deemed complete when mailed.

§ 4.103 Document formatting.

(a) Scope. The formatting requirements of this section apply to any notice, motion, brief, or other document filed under this subpart, whether filed electronically or in paper form. These formatting requirements do not apply to exhibits, attachments, or documents appended to or provided in addition to a party's notice, motion, brief, or other pleading.

(b) General requirements. All documents must:

(1) Be captioned with a docket number and a document title;

(2) Be formatted for 8.5 by 11-inch paper, and if filed in paper form, be printed on just one side of the page with a staple or other binding in the upper left-hand corner;

(3) Be typewritten, printed, or otherwise reproduced so that the document is clearly legible;

(4) Use 12-point font size or larger;

(5) Be double-spaced except for the caption, argument headings, long quotations, and footnotes which may be single-spaced;

(6) Have margins of at least 1 inch on all four sides;

(7) Have pages that are numbered sequentially;

(8) Be signed, or digitally signed, by the party or the party's representative;

(9) Include the mailing or electronic address that the person or entity intends to use for service in the proceeding; and

(10) Be in an electronic text-searchable portable document format (PDF) if filed electronically, maintaining original document formatting unless otherwise provided by the OHA Standing Orders on Electronic Transmission.

(c) Exclusions from page numbering computations. Any document subject to page limitations as set forth in this subpart or an order issued by the ALJ may exclude from the page numbering computations: any cover page, table of contents, table of authorities, signature blocks, certificates of service, indices, attachments, and exhibits.

(d) Consequences of noncompliance. The ALJ may strike and not consider any pleading or document that fails to comply with the requirements of this section.

Prehearing Procedures

§ 4.104 Prehearing conferences.

(a) Purpose. The ALJ may conduct one or more prehearing conferences to facilitate the efficient, fair, and timely resolution of a proceeding.

(b) Notice and timing. At the discretion of the ALJ, prehearing conferences may be scheduled at any appropriate time during the proceeding by issuing an order directing the parties, or their representatives, to appear at a specified date and time. A prehearing conference may occur by telephone, videoconference, or other appropriate means.

(c) Matters for consideration. An ALJ may conduct one or more prehearing conferences to consider scheduling, case management, and other matters including, but not limited to:

(1) Simplifying or narrowing the issues;

(2) Consolidating proceedings;

(3) Discussing the utility of settlement or alternative dispute resolution procedures;

(4) Ascertaining the appropriateness and timing of discovery, including the resolution of any discovery disputes;

(5) Determining the appropriateness and timing of any prehearing motions, including motions for summary judgment and other dispositive motions;

(6) Evaluating the possibility of obtaining agreements or stipulations related to facts or documents;

(7) Scheduling a hearing and establishing appropriate hearing procedures;

(8) Identifying witnesses and exhibits and scheduling the timing for prehearing disclosures;

(9) Addressing issues associated with the admission of evidence;

(10) Resolving specific procedural disputes and adopting procedures to manage any potentially difficult or complex issues;

(11) Establishing appropriate case-management deadlines; and

(12) Discussing any other matters that may aid in the disposition of the proceeding.

(d) Final prehearing conference. Prior to the commencement of any hearing, the ALJ may conduct a final prehearing conference to formulate a hearing plan and to facilitate the admission of evidence and the presentation of witnesses.

(e) Request to schedule prehearing conference. A party may request that the ALJ schedule a prehearing conference by filing a written motion that demonstrates a reasonable justification for the scheduling request.

(f) Post-conference orders. After a prehearing conference, the ALJ will issue an order documenting the actions agreed on and the rulings made by the ALJ during the prehearing conference. The post-conference order will control the subsequent course of the proceeding, unless modified by the ALJ in a written order.

§ 4.105 Prehearing motions.

(a) Overview. A party may apply for an order requesting relief by presenting a motion to the ALJ. A motion made prior to a hearing must be presented in writing, unless otherwise authorized by the ALJ. Motions must conform to the general requirements of this section as well as any provisions in this subpart applicable to the specific type of motion, except that motions for summary judgment are governed by § 4.111.

(b) Motion. A motion must be filed and served in accordance with §§ 4.102 and 4.103 and must comply with the following:

(1) Timing. A motion may be filed any time after the commencement of a proceeding unless a different deadline has been prescribed by a provision of this subpart or in an order issued by the ALJ.

(2) Page limits. A motion may not exceed 15 pages unless the ALJ orders otherwise.

(3) Content. A motion must clearly and concisely state:

(i) The purpose of the motion and the relief sought;

(ii) The factual basis for the relief sought; and

(iii) The legal arguments and reasons supporting the motion, including citations to any applicable legal authority.

(c) Response. A response brief must be filed and served in accordance with §§ 4.102 and 4.103 and must comply with the following:

(1) Timing. A response brief must be filed within 14 days after filing of the motion unless a different response period is prescribed by a provision in this subpart or an order issued by the ALJ.

(2) Page limits. A response may not exceed 15 pages unless the ALJ orders otherwise.

(3) Content. A response must clearly and concisely state:

(i) Whether the party opposes or supports the relief sought in the motion;

(ii) The factual basis for the response; and

(iii) The legal arguments and reasons supporting the response, including citations to any applicable legal authority.

(d) Reply. No reply or further briefing related to the motion will be accepted unless authorized by ALJ.

(e) Supporting documentary materials. Exhibits, attachments, affidavits, declarations, or other documentary materials supporting a motion or response must be directly referenced in the motion or response using pinpoint citations that identify the specific page(s) or paragraph number(s) where the supporting text is located. Supporting documentary materials must be submitted with the motion or response unless the supporting materials have already been filed with DCHD.

(f) Procedural motions. The ALJ may rule on a motion requesting procedural relief without waiting for a response. Types of motions seeking procedural relief include, but are not limited to, requests to modify a deadline, reschedule an action, allow additional briefing, or permit the filing of an overlength brief.

(g) Summary denial. An ALJ may summarily deny a motion without waiting for a response when the motion is frivolous, is repetitive, or would cause undue delay.

§ 4.106 Extension of time.

(a) Scope. A party may request an extension of time for filing a document, other than a notice of appeal or a document initiating the proceeding, by filing and serving a written motion.

(b) Timing. A motion for an extension of time must be filed no later than the day before the document is due, absent a showing of compelling circumstances.

(c) Good cause. A motion for an extension of time must demonstrate good cause.

(d) Duty to confer. Prior to filing a motion for an extension of time, the moving party must make a reasonable effort to contact each party to determine whether an agreement can be reached regarding the requested extension. In the motion, the moving party must state:

(1) Whether any other party agrees to all, or part, of the relief requested;

(2) Whether any other party objects to all, or part, of the relief requested; and

(3) Any steps taken to contact a party it was unable to reach.

(e) Inaction. If the ALJ does not act on the motion before the document is due, the document must be filed no later than 7 calendar days after the original due date, unless the ALJ orders otherwise.

§ 4.107 Consolidation and severance.

(a) Consolidation. The ALJ may consolidate two or more proceedings when they involve common factual or legal issues. Proceedings may be consolidated on the motion of a party or at the initiative of the ALJ.

(b) Severance. Once consolidated, proceedings may be severed by the ALJ on the motion of a party or at the initiative of the ALJ. When determining whether to sever, the ALJ may consider any relevant factors, including any impacts on the efficient, just, and timely resolution of the proceedings.

§ 4.108 Intervention and amicus curiae.

(a) Intervention—(1) Motion to intervene. Any person or entity that wants to participate in a proceeding as an intervenor must file a written motion and must serve a copy of the motion on all parties to the proceeding.

(2) Who may request intervention. A person or entity may seek intervention if:

(i) The person or entity had a legal right to initiate the proceeding; or

(ii) The person or entity has an interest that could be adversely affected by the outcome of the proceeding.

(3) Contents of motion. A motion to intervene must contain:

(i) The factual and legal basis supporting the motion to intervene, including citations to any applicable legal authority; and

(ii) A statement indicating when the person or entity requesting intervention learned of the proceeding.

(4) Ruling on motion. The ALJ may:

(i) Grant the motion;

(ii) Grant the motion but limit participation by the person or entity; or

(iii) Deny the motion if:

(A) The movant fails to meet the requirements of this section; or

(B) The ALJ determines that granting the motion would materially prejudice the existing parties or unduly delay adjudication of the proceeding.

(5) Party status. A person or entity granted full or limited intervenor status is a party to the proceeding. If the ALJ denies the motion to intervene, the ALJ may allow the person or entity to file a brief as amicus curiae.

(b) Amicus curiae—(1) How to request amicus curiae status. Any person or entity that wants to file a brief in the proceeding as amicus curiae must file a written motion. The motion must describe the interest of the person or entity in the proceeding and explain how an amicus brief will contribute to the resolution of the issues. The motion must be served on all parties to the proceeding.

(2) Ruling on motion. The ALJ has the discretion to grant or deny the motion and may consider any relevant factors, including whether an amicus brief would contribute to the resolution of the issues or cause undue delay.

(3) Party status. A person or entity granted amicus curiae status is not a party to the proceeding.

(4) Amicus brief. A person or entity granted amicus curiae status must serve its brief on all parties to the proceeding.

§ 4.109 Notice of appearance; substitution of attorneys; and attorney withdrawal.

(a) Notice of appearance. To ensure proper service of pleadings, notices, orders, and decisions, an attorney or other representative must file and serve a notice of appearance and promptly notify DCHD and all other parties to the proceeding of any changes to legal representation.

(b) Attorney substitution—(1) Form and content. A party may substitute attorneys by filing and serving a notice of substitution that includes the pertinent contact information for the new attorney.

(2) Effectiveness. The notice of substitution is effective upon filing.

(c) Attorney withdrawal—(1) Form and content. Except as provided in paragraph (b) of this section, an attorney may request to withdraw as the representative for a party by filing a written motion. The motion must be served on all parties to the proceeding as well as the attorney's client(s) and must contain:

(i) Pertinent contact information for the attorney's client(s);

(ii) A statement explaining why the withdrawal will not unfairly prejudice the attorney's client(s); and

(iii) A statement that the attorney has taken appropriate steps to protect the interests of the client(s) such as providing reasonable notice, allowing adequate time for the employment of another attorney, and surrendering files related to the proceeding.

(2) Effectiveness. A withdrawal is not effective until the ALJ rules on the motion, which may be conditioned or denied by the ALJ to avoid prejudice to the attorney's client(s) and other parties.

§ 4.110 Voluntary withdrawal and stipulated dismissal.

(a) Voluntary withdrawal. At any time, a party that initiated a proceeding may request a voluntary withdrawal by filing and serving a motion to dismiss that confirms the party's intention to voluntarily withdraw from the proceeding. A party's voluntary withdrawal is effective when the ALJ issues an order of dismissal.

(b) Stipulated dismissal. When all parties to a proceeding agree and stipulate to the dismissal of a proceeding, they may file and serve a joint motion to dismiss. The stipulated dismissal is effective when the ALJ issues an order dismissing the proceeding.

§ 4.111 Summary judgment.

(a) Overview. The summary judgment procedure is a method for resolving proceedings in which there is no genuine dispute as to any material fact. If the ALJ determines that no genuine dispute exists as to any material fact and the movant is entitled to a decision as a matter of law, the ALJ will issue a written order resolving the matter and will not conduct an evidentiary hearing.

(b) Guidance. Although the Federal Rules of Civil Procedure do not apply to proceedings before DCHD, corresponding provisions contained in the Federal summary judgment rule set forth at Rule 56—and Federal case law interpreting Rule 56—may serve as guidance in administrative adjudications when not in conflict with this section.

(c) Motion. A motion for summary judgment must be filed and served in accordance with §§ 4.102 and 4.103 and must comply with the following:

(1) Timing. A motion for summary judgment must be filed by the deadline established in a written order issued by the ALJ.

(2) Page limits. A motion for summary judgment may not exceed 30 pages unless the ALJ orders otherwise.

(3) Scope. A party may move for summary judgment as to all of the issues in the proceeding or may request a partial summary judgment as to some of the issues.

(4) Standard. The moving party must demonstrate that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.

(5) Content. A summary judgment motion must include:

(i) A clear and concise statement identifying each issue on which summary judgment is sought;

(ii) A statement of the material facts for which the moving party asserts there is no genuine dispute, which must be supported by documentary evidence; and

(iii) A discussion of the legal arguments and reasons supporting the motion for summary judgment, including citations to applicable legal authority.

(d) Response. A response to a motion for summary judgment must be filed and served in accordance with §§ 4.102 and 4.103 and must comply with the following:

(1) Timing. Unless the ALJ orders otherwise, any other party to the proceeding may file a response to the summary judgment motion within 28 days after the filing of the summary judgment motion. A response may be accompanied by a cross-motion for summary judgment requesting full or partial relief.

(2) Response to cross-motion. If a party files a cross-motion for summary judgment, any other party to the proceeding may file a response within 28 days after the filing of the cross-motion unless a different response period is ordered by the ALJ.

(3) Page limits. Responses may not exceed 30 pages unless the ALJ orders otherwise. If a party elects to combine a response and cross-motion in a single document, then the combined document may not exceed 50 pages unless the ALJ orders otherwise.

(4) Content. A response must include:

(i) A clear and concise statement indicating whether the party opposes or supports the motion for summary judgment with respect to each issue identified in the motion for summary judgment;

(ii) A statement of any material facts relied on in the response, which must be supported by documentary evidence, and if the party opposes summary judgment on one or more issues, the response must specifically identify any genuinely disputed material facts or the basis for any assertion that a fact cannot be established; and

(iii) A discussion of the legal arguments and reasons for opposing or supporting the summary judgment motion, including citations to applicable legal authority.

(e) Reply. No reply or further briefing related to the summary judgment motion will be accepted unless authorized by the ALJ.

(f) Declaration or affidavit. A declaration or affidavit used to support or oppose a motion for summary judgment must be made on personal knowledge, cite facts that would be admissible in evidence, and show that the declarant or affiant is competent to testify on the matters stated.

(g) Supporting materials. Any assertions of fact in a motion or response must be supported by documentary evidence and must reference any exhibits, attachments, affidavits, declarations, or other materials using pinpoint citations that identify the specific page(s) or paragraph number(s) where the supporting text is located. Documentary evidence must be submitted with the motion or response unless the supporting materials have already been filed with DCHD.

(h) Consideration by ALJ. (1) To facilitate consideration of any summary judgment motion, the ALJ may direct the parties to confer and attempt to agree on joint stipulations of fact.

(2) The ALJ need only consider the materials cited by the parties, but the ALJ may consider other materials that are part of the record of the proceeding.

(3) The ALJ may take official notice of a factual matter under 43 CFR 4.24(b) in the same manner as a Federal district court may take judicial notice.

(4) If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, the ALJ may:

(i) Provide an opportunity to properly support or address the fact;

(ii) Consider the fact undisputed for purposes of the motion;

(iii) Grant summary judgment if the motions and supporting materials, including the facts considered undisputed, show that the moving party is entitled to a summary judgment order; or

(iv) Issue any other appropriate order.

(5) If a nonmoving party establishes by declaration or affidavit that the party cannot, for good cause shown, present facts essential to justify its opposition, the ALJ may:

(i) Defer consideration of the motion;

(ii) Deny the motion;

(iii) Allow time for the nonmoving party to obtain evidence by discovery or other methods; or

(iv) Issue any other appropriate order.

(i) Order. The ALJ will issue a written order granting or denying a motion for summary judgment, in whole or in part. A motion for summary judgment may only be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Discovery

§ 4.112 Discovery generally.

(a) Overview. Discovery is a prehearing process that allows a party to obtain relevant facts and information from another party during a proceeding.

(b) Guidance. Although the Federal Rules of Civil Procedure do not apply to proceedings before DCHD, corresponding Federal discovery provisions in portions of Rules 26 through 37—and Federal case law interpreting Rules 26 through 37—may serve as guidance in administrative adjudications when not in conflict with the discovery rules in this subpart.

(c) Scope. As authorized by an ALJ, a party may engage in discovery regarding any nonprivileged matter that is relevant to the issues in the proceeding and proportional to the needs of the case. Relevant information need not be admissible at hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(d) Methods of discovery. During a prehearing conference, or on the motion of a party, the ALJ may authorize discovery by one or more of the following methods:

(1) Written interrogatories (§ 4.113);

(2) Requests for production (§ 4.114);

(3) Requests for admission (§ 4.115); or

(4) Depositions (§ 4.116).

(e) Signatures. Discovery requests must be signed by the party's representative or the party, if unrepresented. Answers and responses to discovery requests must be signed by the person providing the answers or responses on behalf of the party. Objections must be signed by the party's representative or the party, if unrepresented. A signature certifies that to the best of that person's knowledge, information, and belief formed after a reasonable inquiry that:

(1) The answer or response is complete and accurate at the time it is signed; and

(2) The request, answer, response, or objection is:

(i) Consistent with any applicable regulations or ALJ orders;

(ii) Nonfrivolous;

(iii) Not made for any improper purpose such as delay or harassment; and

(iv) Not unreasonable or unduly burdensome.

(f) Limitations. At the discretion of the ALJ, or on the motion of a party, the ALJ may limit the frequency or extent of discovery authorized in §§ 4.113 through 4.116 by:

(1) Not allowing the requested discovery;

(2) Limiting the number of interrogatories, requests for production, or depositions or restricting the time, place, or length of any deposition;

(3) Imposing specific limits or parameters on the production of electronically stored information when not reasonably accessible because of undue burden or cost;

(4) Allowing only specific methods of discovery;

(5) Finding that certain matters may not be inquired into or that discovery will be limited in scope to certain matters; and

(6) Issuing protective orders.

(g) Protective orders. A protective order may be issued so that confidential, privileged, or sensitive information will not be revealed or only disclosed in a specified manner. The ALJ may issue a protective order based on a motion filed by one party or a joint motion by all parties to the proceeding. A motion for a protective order filed by one party must contain a certification that the movant conferred, or attempted to confer, with the other parties in good faith. Any responses to a motion for protective order must be filed within 14 days after filing of the motion, unless the ALJ specifies a different response period.

(h) Cooperation. The parties are encouraged to cooperate in good faith and reach agreements, where possible, regarding the discovery process, the exchange of information, and the resolution of any discovery disputes.

§ 4.113 Interrogatories.

(a) Generally. When authorized by the ALJ, a party may conduct discovery by serving written interrogatories on any other party. Unless the parties agree or the ALJ orders otherwise, a party may not serve more than 20 written interrogatories on each party. For purposes of the 20-interrogatory limitation, each discrete subpart of an interrogatory counts as a separate interrogatory.

(b) Answers and objections. Unless a longer or shorter time period is agreed to by the parties or ordered by the ALJ, answers and objections must be served within 28 days of service of the interrogatories. Each interrogatory must be answered separately and fully in writing, unless it is objected to, in whole or in part, in which event the reasons for the objection must be stated with specificity in place of the answer. Answers and objections must be signed in accordance with § 4.112(e). Answers must be signed by the person providing the answer, and objections must be signed by the party's representative or the party, if unrepresented.

§ 4.114 Requests for production.

(a) Generally. When authorized by the ALJ, a party may conduct discovery by serving a written request on any other party to:

(1) Produce, or permit the requesting party to arrange for the inspection and copying of, any specified documents or electronically stored information in the responding party's possession, custody, or control;

(2) Permit the requesting party, or someone acting on the requesting party's behalf, to inspect, copy, test, or sample any tangible things in the responding party's possession, custody, or control; or

(3) Permit the requesting party, or someone acting on the requesting party's behalf, to enter onto designated land or property in the possession or control of the responding party for the purpose of inspecting, measuring, surveying, photographing, examining, testing, or sampling.

(b) Content of request. As applicable, each request must set forth with particularity:

(1) The item or category of items to be produced, copied, or inspected;

(2) A reasonable time, place, and manner for any inspection and related acts; and

(3) The form in which electronically stored information is to be produced.

(c) Responses and objections. Unless a longer or shorter time period is agreed to by the parties or ordered by the ALJ, responses and objections must be served within 28 days of receipt of the request. The response must state, with respect to each item, whether the production or inspection will be permitted as requested or whether there are any objections. If the responding party makes any objections, the reasons must be stated with specificity. Responses and objections must be signed in accordance with § 4.112(e). Responses must be signed by the person providing the response, and objections must be signed by the party's representative or the party, if unrepresented.

§ 4.115 Requests for admission.

(a) Generally. When authorized by the ALJ, a party may conduct discovery by serving a written request on any other party to admit the truth of any relevant factual matters or the authenticity of any specified documents. Unless the parties agree or the ALJ orders otherwise, a party may not serve more than 20 written requests for admission. For purposes of this 20-request limitation, each discrete subpart of a request counts as a separate request.

(b) Content of request. Each matter for which an admission is requested must be set forth separately. A request to admit the authenticity of a document must be accompanied by a copy of the document unless it has been otherwise furnished or made available for inspection and copying.

(c) Answers and objections. The party to whom the request is directed must answer or object to each matter within 28 days of being served, unless a longer or shorter time period is agreed to by the parties or ordered by the ALJ. Answers and objections must be signed in accordance with § 4.112(e). Answers must be signed by the person providing the answers, and objections must be signed by the party's representative or the party, if unrepresented. A responding party must specifically answer or object to each matter as follows:

(1) Admit the matter, in whole or in part;

(2) Deny the matter, in whole or in part;

(3) State in detail why the responding party cannot truthfully admit or deny the matter, and if the denial is based on a lack of knowledge or information, demonstrate that the party has made a reasonable inquiry and that the information known, or readily obtainable, is insufficient to admit or deny; or

(4) State the grounds for any objections with specificity.

(d) Effect of not answering. A matter is deemed admitted unless a written answer or objection is served on the requesting party within 28 days of service of the request, except that a longer time period may be agreed to by the parties or ordered by the ALJ.

(e) Withdrawal. A matter admitted under this section is conclusively established unless the ALJ permits, on motion, the admission to be withdrawn or amended or determines that the admission is contrary to law.

(f) Effect of admission. An admission under this section cannot be used against the party in any other proceeding.

§ 4.116 Depositions.

(a) Generally. When authorized by the ALJ, a party may take the deposition of any person by oral examination. Parties are encouraged to schedule and conduct depositions by agreement whenever possible.

(b) Notice of deposition. The party scheduling a deposition must give reasonable notice in writing to every party to the proceeding and to the person being examined. The notice must include:

(1) The name, address, and other contact information for the person to be examined;

(2) The time and place of the deposition, and if conducted by videoconference or other suitable technology, the information necessary to access and attend the deposition remotely;

(3) The subject matter upon which the person will be examined;

(4) The name or descriptive title of the officer before whom the deposition will be taken along with the method of recording and transcribing the deposition;

(5) If a subpoena for document production is issued under § 4.120 to a nonparty deponent, the materials designated for production as set forth in the subpoena; and

(6) If the deposition is being taken for the purpose of preserving testimony for hearing, a statement to that effect.

(c) Deposition of organization, business entity, government agency, or other entity. When the deposition of an organization, business entity, government agency, or other entity is sought, the organization, business entity, government agency, or other entity must designate one or more officers, directors, or agents to testify on its behalf.

(d) Procedure for deposition. Depositions must be conducted, transcribed, and certified in accordance with the following procedures unless the ALJ authorizes an alternative procedure or imposes other requirements:

(1) The deposition must be taken before an officer authorized to administer oaths by Federal law or the law of the place where the examination is held;

(2) The party providing notification of the deposition must arrange and pay the expenses associated with securing the necessary facilities, personnel, and transcript;

(3) The deposition must be under oath or affirmation;

(4) The deponent may be examined and cross-examined and the questions and answers, together with all objections made, must be transcribed by the officer before whom the deposition is taken;

(5) Documents and other tangible things produced for inspection during a deposition must, on a party's request, be marked for identification and appended or attached to the written deposition transcript;

(6) When the testimony is fully transcribed and reduced to writing, the deposition transcript must be submitted to the deponent for examination, identification of any corrections, and signature, unless the deponent has waived the right to review and sign; and

(7) The officer must certify the deposition transcript and, if the deposition is not signed by the deponent, must certify the reasons for the failure to sign.

(e) Procedure for preservation deposition. A party may depose a witness for the purpose of preserving testimony for hearing if:

(1) The ALJ authorizes the preservation deposition based on a written motion or an oral request made during a prehearing conference;

(2) The requesting party demonstrates that one of the following criteria has been met:

(i) The witness will be unable to attend the hearing because of age, illness, or other incapacity; or

(ii) The witness is unwilling or unlikely to attend the hearing and the party is unable to compel the attendance of the witness by subpoena; and

(3) The requesting party complies with any requirements imposed by the ALJ related to transcription, recording, or other deposition procedures.

§ 4.117 Supplementation or correction.

(a) Requirement. A party who responded to an interrogatory, request for production, or request for admission with an answer or response that was complete when made must supplement or correct a prior response in a timely manner if the party learns that the answer or response is materially incomplete or incorrect and if the additional or corrective information has not been otherwise made known to the other parties during the discovery process or in writing.

(b) Order. At any time, an ALJ may issue an order directing the supplementation of an answer or response.

§ 4.118 Motion to compel.

(a) Motion. Any party may file a motion with the ALJ requesting an order compelling disclosure or discovery. A motion must include:

(1) A copy of the discovery request;

(2) A copy of the response or objection or, if a copy is unavailable, a description of the response or objection;

(3) A concise statement of the facts and law supporting the motion to compel, including citations to any applicable legal authority; and

(4) A statement that the moving party has, prior to the filing of the motion, in good faith conferred or attempted to confer with the person, entity, or representative failing to make a disclosure or allow discovery.

(b) Response. A response to a motion to compel must be filed within 14 days of the filing of the motion unless a longer or shorter time period is ordered by the ALJ and must contain a concise statement of the facts and law supporting the response, including citations to any applicable legal authority.

(c) Order. The ALJ may issue an order granting or denying the motion, in whole or in part, and may issue any other appropriate order, including, but not limited to, a protective order or an order imposing curative measures. Curative measures include, but are not limited to, orders extending the discovery period, authorizing additional discovery, or directing a party to conduct an additional search of its records.

§ 4.119 Sanctions for failure to comply with a discovery order.

(a) Failure to comply. If a party fails to comply with an order compelling discovery, the ALJ may issue such orders as are just, including but not limited to, an order imposing appropriate sanctions under this section.

(b) Notice. Appropriate sanctions may be imposed after notice and an opportunity to respond. The notice and opportunity to respond may be in any form directed by the ALJ and may be limited to an oral response during a prehearing conference or hearing.

(c) Types of sanctions. After considering the relevant circumstances and the nature of the violation, the ALJ may impose appropriate sanctions, including but not limited to, the following:

(1) Inferring that the admission, testimony, or other evidence would have been adverse to the party;

(2) Directing that designated facts be taken as established or admitted for purposes of the proceeding in accordance with the claim of the party obtaining the order;

(3) Prohibiting the party withholding discovery from supporting or opposing a designated claim or defense or from introducing designated matters into evidence;

(4) Striking pleadings in whole or in part;

(5) Ordering that the party withholding discovery has waived any objection to the introduction and use of secondary evidence to show what the withheld discovery would have shown; and

(6) Entering a decision or order adjudicating the proceeding, in whole or in part, against the party withholding discovery in violation of a discovery order.

Other Procedures

§ 4.120 Subpoenas.

(a) Purpose. Subpoenas may be issued to the extent authorized by law to require the attendance of a person, the giving of testimony, or the production of documents or other relevant materials.

(b) Contents of application. A party may request the issuance of a subpoena by written application. The application must:

(1) Describe the testimony sought or the materials to be produced with specificity;

(2) Identify the name, address, and contact information for the person or entity to be subpoenaed;

(3) Specify the time, date, location, and method for obtaining the testimony or other material sought; and

(4) Demonstrate that the requested subpoena is reasonable in scope and relevant to the proceeding.

(c) Issuance. The ALJ may issue a subpoena on a form that contains the caption for the proceeding, specifies the name and address of the person or entity from whom the testimony or material is sought, and orders one or more of the following:

(1) If the subpoena requires the person to testify in person at a hearing or deposition, then the subpoena will order the person to appear at a specified date, time, and place;

(2) If the subpoena requires the person to testify at a hearing or deposition using videoconferencing or other suitable technology, then the subpoena will order the person to appear at a specified date and time and will contain the information necessary to testify remotely; or

(3) If the subpoena requires the production of designated documents, electronically stored information, or other tangible materials by a nonparty, then the subpoena will order production by a specified date and will designate whether the production must occur in person, by mail, delivery service, or other electronic means.

(d) Service. A party must serve a copy of the subpoena as follows:

(1) In person. A subpoena may be served by any person who is not a party to the proceeding and is 18 years of age or older by hand-delivering a copy of the subpoena to the person named in the subpoena; or

(2) By registered or certified mail. A subpoena may be served by registered or certified mail, with a return receipt requested, to the last known residential address or place of business of the person or entity named in the subpoena.

(e) Certificate of service. The person serving the subpoena must:

(1) Prepare a certificate of service setting forth the date, time, and manner of service, or the reasons for any failure of service; and

(2) Swear to or affirm the certificate, attach it to a copy of the subpoena, and return it to the party on whose behalf the subpoena was served. That party will then be responsible for filing the certificate of service with the ALJ and serving it on all other parties to the proceeding.

(f) Witness fees. Witnesses subpoenaed by any party must be paid the same fees and mileage expenses that are paid to witnesses in the United States district courts under 28 U.S.C. 1821. The witness fee will be paid by the party who requested the appearance. Any witness who appears without being subpoenaed is entitled to the same fees and mileage expenses as if that person had been subpoenaed, except that witness fees do not apply to Government employees who are called as witnesses by the Government.

(g) Geographic limits. A witness may be required to attend a hearing or deposition at a place not more than 100 miles from where the person resides, is employed, or regularly transacts business in person unless another geographic limit applies by statute to the proceeding. No geographic limit applies to testimony conducted using videoconferencing or other suitable technology that is available to all participants in the proceeding and that allows a witness to testify remotely.

(h) Motion to quash or modify. A party or person to whom a subpoena is directed may file a written motion to quash or modify the subpoena within 10 days of service. A motion to quash or modify the subpoena will stay the effect of the subpoena pending the ALJ's decision on the motion.

(i) Enforcement. If a person fails or refuses to comply with a subpoena, the ALJ may apply to the U.S. Department of Justice to initiate a judicial enforcement proceeding or may authorize the party to seek judicial enforcement in the appropriate United States district court.

§ 4.121 Case management.

An ALJ is vested with the general authority to regulate the course of the proceedings and the conduct of parties to ensure that cases are resolved fairly, efficiently, and in compliance with applicable laws and orders.

§ 4.122 Interlocutory appeal.

(a) Overview. An interlocutory appeal is a challenge brought before an Appeals Board of a non-final order issued by an ALJ prior to the conclusion of the proceeding. Permission must be obtained before an interlocutory appeal can be filed with an Appeals Board and will only be authorized in limited circumstances.

(b) General procedures. Permission to file an interlocutory appeal is a two-step process, requiring a party to:

(1) File an application requesting the ALJ to certify an ALJ order, in whole or in part, for interlocutory appeal; and

(2) Petitioning the Appeals Board for permission to file an interlocutory appeal of the ALJ's order, in whole or in part.

(c) Standards for ALJ certification. The ALJ will certify an order for interlocutory appeal only when the ALJ determines that:

(1) The order involves a controlling question of law about which there are substantial grounds for difference of opinion; and

(2) An immediate appeal will materially advance the completion of the proceeding.

(d) Timing and content of application. An application requesting certification must be filed and served within 14 days of the date of the ALJ's order. The application must:

(1) Identify the order, or portion of the order, for which review is sought;

(2) Clearly and concisely state the grounds for appeal; and

(3) Demonstrate that the standards for certification in paragraph (c) of this section are met.

(e) Responses. Any party that opposes the application for certification may file and serve a response within 14 days of the filing of the application.

(f) ALJ certification. Based on a review of the application and any responses filed, the ALJ may:

(1) Certify the order, or portion of the order, for interlocutory appeal; or

(2) Deny the application.

(g) Petition to Appeals Board. Within 14 days of the ALJ's ruling on the application for certification, the requesting party may petition the Appeals Board for permission to file an interlocutory appeal. The petition must include:

(1) A copy of the ALJ's order for which review is sought;

(2) Copies of all filings made in support of or in opposition to the application for certification before the ALJ;

(3) A copy of the ALJ's certification for interlocutory appeal or the order denying the application for certification; and

(4) If the ALJ denied the application for certification, a clear and concise statement of reasons explaining why the ALJ's denial was an abuse of discretion.

(h) Permission from Appeals Board. The Appeals Board will grant or deny permission to file an interlocutory appeal in accordance with § 4.28 or § 4.414 of this part.

(i) Suspension of proceeding. Neither the certification of an order for interlocutory appeal nor an interlocutory appeal will operate to suspend the proceeding before the ALJ unless so ordered by the ALJ or Appeals Board.

§ 4.123 Alternative dispute resolution.

(a) Purpose. Alternative dispute resolution (ADR) refers to the various processes and techniques used for resolving disputes without the necessity of further litigation or a hearing.

(b) Process. Participation in an ADR process is entirely voluntary. A party cannot be forced to agree to a resolution of the dispute by participating in an ADR process, and if the parties do not agree to participate or cannot reach agreement through the ADR process, the proceeding will be adjudicated by the ALJ.

(c) Availability. At any time during the pendency of a proceeding, a party may file a request to use an ADR process or the ALJ may notify the parties that the matter has been identified as a candidate for ADR. The ALJ may also issue a notice describing the ADR processes used by DCHD and directing the parties to communicate in writing, or verbally during a prehearing status conference, whether they are willing to participate in an ADR process. The written ADR procedures used by DCHD can be made available to the parties on request.

Hearing Process and Procedure

§ 4.124 Hearing scheduling.

(a) Hearing location and date. The ALJ, in coordination with the parties and consistent with any applicable statutory requirements, will schedule the hearing and determine the hearing location and dates. In making this determination, the ALJ may consider other relevant factors such as the convenience of the parties and witnesses, the availability of suitable hearing space, and the need for any special accommodations.

(b) Videoconferencing and other technology. In appropriate circumstances as determined by the ALJ, a hearing may be conducted, in whole or in part, using videoconferencing or other suitable technology.

(c) Notice of hearing. In advance of the hearing, a written notice containing the hearing location and hearing dates will be issued to all parties to the proceeding. If a hearing will be conducted, in whole or in part, using videoconferencing or other technology, the hearing notice will contain instructions and guidance for participating in the hearing.

§ 4.125 Hearing postponements.

(a) Good cause required. Postponement of a scheduled hearing generally will not be approved, except upon a showing of good cause and reasonable diligence in preparing for the hearing.

(b) Timing of motion. A party must file a request for a postponement at least 21 days prior to the date of the hearing absent compelling circumstances. The ALJ will not grant a request for postponement made less than 10 days in advance of the hearing unless all parties agree to the postponement or the party requesting a postponement demonstrates that an emergency occurred which could not have been anticipated and which justifies the granting of a postponement.

(c) Form and content of motion. The motion for a postponement must state in detail the reasons why a postponement is necessary. The moving party must also make a reasonable effort to contact each party to determine whether an agreement can be reached regarding the requested postponement. In the motion, the moving party must state:

(1) Whether any other party agrees to the postponement;

(2) Whether any other party objects to the postponement; and

(3) Any steps taken to contact a party it was unable to reach.

(d) Limitation on postponements. A party generally will not be granted more than one hearing postponement, unless that party can show compelling circumstances that are beyond the party's control. In determining whether to grant more than one postponement to a party, the ALJ may consider the interests of justice and the relative prejudice to the parties.

§ 4.126 Hearing procedures generally.

(a) Overview. A hearing is an opportunity for a party to present its case or defense by any reasonable method. Parties may submit oral, documentary, or demonstrative evidence as well as rebuttal evidence and may conduct such cross-examination as may be required for a full and true disclosure of the facts. During the hearing, a verbatim transcript will be prepared in accordance with § 4.128 that includes the oral arguments, testimony, and exhibits received into evidence. The hearing record, together with any motions, documents filed, and rulings made by the ALJ during the hearing and prehearing process, may inform the ALJ's decision in the matter.

(b) Hearing procedures. The ALJ has the authority to conduct the hearing in an orderly and judicial manner, including the authority to:

(1) Subpoena witnesses for hearing pursuant to § 4.120;

(2) Administer oaths and affirmations;

(3) Regulate the course of the hearing and the conduct of representatives, parties, and witnesses;

(4) Call and examine witnesses;

(5) Provide for the sequestration of witnesses;

(6) Receive, rule on, exclude, or limit evidence;

(7) Take official notice of a factual matter under § 4.24(b) in the same manner as a Federal district court may take judicial notice;

(8) Issue protective orders and impose other measures to protect information or documents that are confidential, privileged, or otherwise sensitive;

(9) Continue or recess the hearing, in whole or in part, for a reasonable period of time;

(10) Direct that written motions or briefs be provided addressing issues raised during the hearing;

(11) Rule on any oral or written motions;

(12) Exercise any other authority necessary to conduct the hearing in an orderly and judicial manner.

(c) Presentation at hearing. The ALJ will determine the order of presentation for witnesses and evidence at hearing based on the applicable legal standards as well as considerations of fairness and judicial efficiency. Each party is responsible for presenting its case or defense at the hearing to ensure the adequacy of the hearing record, subject to any limitations imposed by law, regulation, or order.

(d) Post-hearing briefs. The ALJ may prescribe the format, timing, and content of any post-hearing briefs at the conclusion of the hearing or in a subsequent written order.

(e) Conclusion of hearing. Once the hearing concludes, errors in the transcript may be corrected in accordance with § 4.128, but no additional evidence will be received unless the ALJ directs otherwise. If the ALJ finds good cause to reopen the hearing and allow additional evidence to be received, all parties will have an opportunity to offer responsive evidence and, if necessary, a new hearing may be scheduled.

(f) Waiver of hearing. The ALJ may determine that a party has waived its right to a hearing if, after notice, the party fails to appear at the hearing without good cause. Waiver of a right to a hearing does not mean that the ALJ will rule against the party failing to appear, but it does mean that the party's opportunity to present evidence and examine witnesses has been waived.

§ 4.127 Evidence.

(a) Admissibility and exclusion of evidence. The ALJ has the authority to admit or exclude evidence. The Federal Rules of Evidence, while not directly applicable to hearings conducted under this subpart, may be used as guidance by the ALJ. The ALJ will exclude evidence that is irrelevant, immaterial, or unduly repetitious.

(b) Oral testimony. All oral testimony must be under oath or affirmation. Witnesses will be subject to cross-examination by any other party, and the ALJ may question any witness during the hearing.

(c) Objections. Any objections to the admission of evidence or testimony must concisely state the grounds for the objection. Oral rulings on objections will be made on the record and included in the transcript of the hearing. When the ALJ sustains an objection to the admission of evidence, the affected party may preserve the issue for appeal by making an offer of proof on the record showing what the party expected to establish by the testimony or evidence. Any adverse party may then make an offer of proof in rebuttal on the record.

(d) Stipulations. The parties may stipulate to any relevant factual matters. When received into evidence, stipulations will be binding on the parties with respect to the matters stipulated. Oral stipulations may be made on the record at hearing and written stipulations may be received into evidence as exhibits. The parties are encouraged to agree to stipulations of fact whenever possible.

(e) Depositions. A deposition will not become part of the hearing record unless it has been received into evidence, in whole or in part, as an exhibit by the ALJ.

(1) Requirements. A party may only use a deposition against a party who:

(i) Was present or represented at the taking of the deposition; or

(ii) Had reasonable notice of the taking of the deposition.

(2) Exclusion. The ALJ will exclude from evidence any question and response to which an objection:

(i) Was noted at the taking of the deposition; and

(ii) Would have been sustained if the witness had been personally present and testifying at the hearing.

(3) Completeness. If a party offers only part of a deposition in evidence, another party to the proceeding may request that the party be required to include any other part of the deposition that ought in fairness be considered with the part introduced.

(4) Written and video depositions. A deposition admitted into evidence, in whole or in part, must include a certified written transcript, but the ALJ may, in appropriate circumstances, permit relevant portions of a video deposition to be played at hearing and transcribed into the hearing record by the reporter.

§ 4.128 Transcripts and reporting.

(a) Transcript and reporter's fees. A hearing conducted pursuant to this subpart will be transcribed verbatim. The procedures for obtaining a transcript and paying the associated fees are as follows:

(1) DCHD will secure the services of a reporter to prepare a transcript and will pay the reporter's fees to provide an original transcript to DCHD.

(2) Each party is responsible for obtaining and paying for its copy of the transcript consistent with any statutory or regulatory provisions governing the proceeding.

(3) The government agency, bureau, or office participating in the hearing as a party will be responsible for reimbursing DCHD for reporting fees.

(b) Official transcript. The official transcript, along with any exhibits, must be duly certified by the reporter and submitted to the ALJ for filing as part of the proceeding along with any corrections made pursuant to paragraph (c) of this section.

(c) Corrections. (1) Any party may file a motion proposing corrections to the transcript. The motion must be filed within 10 days of receipt of the transcript unless the ALJ orders otherwise.

(2) If no party files a timely motion, the ALJ will presume that the transcript is correct and complete, except for obvious typographical errors.

(3) As soon as feasible after the conclusion of the hearing and after consideration of any motions proposing correction, the ALJ will issue an order making any corrections to the transcript that the ALJ finds are warranted.

§ 4.129 Decision.

(a) Basis for decision. Following a hearing, the ALJ will issue a written decision that identifies and describes the basis for the decision unless the applicable statute or regulation allows for an oral ruling.

(b) Decision. The decision issued by the ALJ will be final for the Department, unless a notice of appeal, petition for review, or petition for reconsideration is timely filed or the applicable statute, regulation, or order of referral requires the ALJ to issue:

(1) Proposed findings of fact on the issues presented at hearing; or

(2) A recommended decision that includes findings of fact and conclusions of law.

Reconsideration, Appeal, and Review

§ 4.130 Reconsideration.

(a) Procedural requirements. Any party may petition for reconsideration of a dispositive order or decision within 14 days after the date of issuance. A petition for reconsideration must be made in writing and served on all parties to the proceeding in accordance with § 4.102. A petition for reconsideration may not exceed 15 pages unless otherwise authorized by the ALJ.

(b) Standards. A petition for reconsideration must state with specificity the relief sought and must demonstrate that extraordinary circumstances warrant reconsideration. Extraordinary circumstances may include:

(1) An error or misstatement of material fact or law that resulted in an erroneous order or decision or that would require a different outcome;

(2) A failure to cite and address a binding statute, regulation, or decision, including a recent judicial decision, that would require a different outcome; or

(3) The existence of evidence not available to the ALJ when the order or decision issued that would require a different outcome. To satisfy this requirement, the petitioner must:

(i) Proffer the evidence along with the petition for reconsideration, and

(ii) Provide a detailed explanation showing why the petitioner, in the exercise of reasonable diligence, did not submit the evidence prior to issuance of the order or decision.

(c) Responses. No responses may be filed to a petition for reconsideration, unless authorized by the ALJ.

(d) Review by ALJ. The ALJ will review the petition for reconsideration and notify the parties within 10 days whether the petition for reconsideration will be accepted for further analysis. If the ALJ does not take any action on the petition for reconsideration within 10 days, then the petition for reconsideration is deemed denied.

(e) Status while a petition is pending. Filing a petition for reconsideration will not stay the effectiveness of the dispositive order or decision and will not toll any deadlines to seek appeal or review of the order or decision, unless the ALJ accepts the petition for reconsideration for further analysis. If the ALJ accepts the petition for reconsideration for further analysis, then the effectiveness of the dispositive order or decision will automatically be stayed and all applicable deadlines tolled until the ALJ issues a decision on reconsideration.

(f) Appeal or review. A decision on reconsideration issued by the ALJ will be final for purposes of appeal and review under § 4.131. A notice issued by the ALJ declining to accept the petition for further analysis, or a failure by the ALJ to take action on the petition within 10 days, is not subject to appeal or review. If a party files a notice of appeal or requests review of the dispositive order or decision before the petition for reconsideration is resolved, then the ALJ will no longer have jurisdiction over the petition for reconsideration and the matter will be forwarded to the appropriate appellate or reviewing authority.

(g) Petition not required for exhaustion. Filing a petition for reconsideration is not required to exhaust administrative remedies.

§ 4.131 Appeal and review.

Any party seeking to appeal or otherwise obtain review of a final order or decision of the ALJ must comply with the statutory or regulatory provisions applicable to the specific type of proceeding involved.

Specific Rules Applicable to Certain Types of Proceedings Before the Departmental Cases Hearings Division

Specific Rules Applicable to Referrals for Fact-Finding Hearings

§ 4.150 Procedures for hearing referrals.

(a) Overview. A proceeding may be referred to an ALJ for an evidentiary hearing by an Appeals Board or other Departmental entity when it appears that specific issues of material fact require a hearing for resolution.

(b) Applicable rules. In a proceeding referred to an ALJ for fact-finding, the general procedural rules for practice before DCHD at §§ 4.100 through 4.131 govern practice and procedure in addition to the rules applicable to referrals for fact-finding hearings set forth in this section and § 4.151.

(c) Authority of the ALJ. The ALJ has the authority to conduct the proceeding and the hearing in an orderly and judicial manner, subject to any limitations or restrictions prescribed in the referral issued by the Appeals Board or other Departmental entity making the referral.

(d) Issues and evidence. Unless otherwise directed by the Appeals Board or other Departmental entity making the referral, the ALJ may consider other relevant issues or evidence identified after referral of the matter to DCHD.

§ 4.151 Resolution of hearing referrals.

(a) Types of action. At the conclusion of the proceeding, the ALJ will issue one of the following as specified in the referral issued by the Appeals Board or other Departmental entity making the referral:

(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.

(b) Transmittal of record. If the ALJ issues proposed findings of fact or a recommended decision, the ALJ will transmit the entire record of the proceeding, including the hearing transcript, to the Appeals Board or other Departmental entity making the referral.

(c) Exceptions and comments. The parties will have 30 days from service of any proposed findings of fact or a recommended decision to file exceptions or comments with the Appeals Board or other Departmental entity making the referral.

(d) Final decision. If the ALJ issues a final decision that may be appealed to an Appeals Board or other Departmental entity, the ALJ will advise the parties at the conclusion of the decision of their right to file an appeal.

Specific Rules Applicable to Contest Proceedings

§ 4.160 Private contests; initiation of a private contest.

Any person or entity who claims title to or an interest in land adverse to any other person or entity claiming title to or an interest in such land or who seeks to acquire a preference right pursuant to the Act of May 14, 1880, as amended (43 U.S.C. 185), or the Act of March 3, 1891 (43 U.S.C. 329), may initiate proceedings to have the claim of title or interest adverse to that claim invalidated for any reason not shown by BLM's records. Such a proceeding will constitute a private contest and will be governed by the regulations at §§ 4.160 through 4.169.

§ 4.161 Private contests; protests.

Where the elements of a contest are not present, any objection raised by a person or entity to any action proposed to be taken in any proceeding before BLM will be deemed to be a protest and appropriate action will be taken based on the circumstances.

§ 4.162 Private contests; complaint.

(a) Filing a complaint. Any person or entity desiring to initiate a private contest must file a complaint in the proper BLM State Office as identified at 43 CFR 1821.10 and in accordance with the OHA Standing Orders on Contact Information found on the Department of the Interior OHA website at https://www.doi.gov/oha.

(b) Contents of complaint. The complaint must contain the following information, under oath:

(1) The name and address of each interested party;

(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 describing with particularity the facts constituting the grounds for contest;

(5) A statement of the law under which the contestant claims or intends to acquire title to, or an interest in, the land and the facts showing that the contestant is qualified to do so;

(6) A statement that the proceeding is not collusive or speculative but is instituted and will be diligently pursued in good faith;

(7) A request for relief that the adverse interest be invalidated;

(8) The BLM State Office where the complaint is filed and the mailing or electronic address to which documents must be sent for service on the contestant; and

(9) A notice that unless the contestee files an answer to the complaint in the appropriate BLM State Office within 30 days after service of the notice, the allegations of the complaint will be taken as confessed.

(c) Amendment of complaint. Except insofar as the BLM State Office, ALJ, Director, Appeals 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 ALJ permits the complaint to be amended after due notice to the other parties and an opportunity to object.

(d) 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 must be attached to the complaint.

(e) Filing fee. Each complaint must be accompanied by a filing fee of $20 and a deposit of $200 toward the reporter's fees. Any complaint which is not accompanied by the required fee and deposit will not be accepted for filing.

(f) Waiver of issues. Any issue not raised by a private contestant in accordance with the provisions of paragraph (b) or (c) of this section, which was known or could have been known by the exercise of reasonable diligence, will be deemed waived.

§ 4.163 Private contests; service.

(a) Service generally. The complaint must be served upon every contestee in the manner provided in § 4.102(b), except that non-electronic service must be made by personal delivery, registered mail, or certified mail and must include a return receipt. The complaint must be served not later than 30 days after filing the complaint, and proof of service must be filed in the BLM State Office where the contest is pending, unless service is made by publication, in which case, service must be in accordance with the provisions in paragraph (c) 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 served is a minor, then service of the complaint must be made on the minor's parent or guardian, or if neither exists, the adult having care or control over the minor. If the person to be served has been legally adjudged incompetent, then service of the complaint must be made on that person's legal guardian, or if no legal guardian exists, the person having care or control over the incompetent person.

(b) Summary dismissal and waiver of defect in service. If a complaint when filed does not meet all the requirements of § 4.162(b) and (d), or if the complaint is not served upon each contestee as required by this section, the complaint will be summarily dismissed by the BLM State Office. 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.

(c) Service by publication—(1) When service may be made by publication. When the contestant has made a diligent search and inquiry to locate the contestee, but the contestee cannot be located, the contestant may proceed with service by publication after first filing an affidavit with the BLM State Office that includes:

(i) A statement that the contestee could not be located after a diligent search and inquiry along with a detailed description of the efforts made to locate the contestee, which must occur not more than 15 days prior to the filing of the statement;

(ii) The last known address of the contestee; and

(iii) The affidavits or declarations of two individuals who live in the vicinity of the land at issue who either provide the last known address of the contestee or state that they have no knowledge of the contestee's whereabouts.

(2) Contents of published notice. The published notice must give the names of the parties to the contest, a legal description of the land at issue, the substance of the charges contained in the complaint, the address of the BLM State Office where the contest is pending, and a statement that upon the failure to file an answer in the BLM State 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 must also contain a statement of the dates of publication.

(d) Publication, mailing, and posting of notice. (1) Notice by publication must be made by publishing the notice at least once a week for 5 successive weeks in a newspaper of general circulation in the county in which the land at issue is located.

(2) Within 15 days after the first publication of a notice, the contestant must send a copy of the notice and the complaint by registered or certified mail, return receipt requested, to the contestee at the contestee's last known address. The return receipts must be filed in the BLM State Office where the contest is pending.

(3) A copy of the notice as published must be posted in the BLM State Office where the contest is pending and also in a conspicuous place upon the land at issue. Such postings must be made within 15 days after the first publication of notice.

(e) Proof of service. (1) Proof of publication of the notice must be made by filing a copy of the notice as published along with an affidavit or declaration of a representative from the newspaper publishing the notice with the BLM State Office where the contest is pending.

(2) Proof of posting of the notice must be by affidavit or declaration of the person who posted the notice on the land and by the certificate of an authorized officer of BLM as to posting in the State Office.

(3) Proof of the mailing of notice must be by affidavit or declaration of the person who mailed the notice and must contain a copy of the return receipt.

§ 4.164 Private contests; answer to complaint.

(a) Deadline and contents of answer. Within 30 days after service of the complaint or after the last publication of the notice, the contestee must file an answer in the BLM State Office where the contest is pending together with proof of service of the answer upon the contestant. The answer must contain the mailing or electronic address to which all notices or other documents must be sent for service upon the contestee.

(b) Contents of answer. The answer must specifically respond to each of the allegations in the complaint.

(c) Admissions and amendments. Any allegation not denied by the answer will be considered admitted at hearing, unless the ALJ permits the answer to be amended after due notice to the parties and an opportunity to object.

(d) Failure to answer. If an answer is not filed as required, the allegations of the complaint will be taken as admitted by the contestee and the BLM State Office will decide the case without a hearing.

(e) Referral. If an answer is filed, the BLM State Office will refer the matter to DCHD upon determining that the elements of a private contest have been established.

§ 4.165 Government contests; initiation of a Government contest.

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

§ 4.166 Government contests; complaint and service.

(a) Complaint. The proceedings in Government contests are governed by §§ 4.160 through 4.164 of this subpart with the following exceptions:

(1) No corroboration will be required of a Government contest complaint and the complaint need not be under oath.

(2) A Government contest complaint will not be deemed insufficient and subject to dismissal for failure to name all parties interested or for failure to serve every party who has been named.

(3) No filing fee or deposit toward the reporter's fee is required of the Government contestant.

(4) Any action required of the Government contestant may be taken by any authorized Government employee.

(5) The statements required by § 4.162(b)(5) and (6) need not be included in the Government contest complaint.

(6) No posting of the notice of publication on the land at issue will be required of the Government contestant.

(7) The provisions of § 4.162(f) do not apply.

(b) Service. (1) Where service is by publication, the affidavits and declarations required by § 4.163(c)(1) need not be filed. The Government contestant must file a statement with the BLM State Office demonstrating that the contestee could not be located after a diligent search and inquiry, the last known address of the contestee, and a description of the efforts and inquiries made to locate the party sought to be served. The diligent search must occur not more than 15 days prior to the filing of the statement.

(2) In lieu of the requirements of § 4.163(d)(2), the Government contestant must, as part of the diligent search before 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 known address of record. The return receipts must be filed in the BLM State Office where the contest is pending.

(3) The affidavit or declaration required by § 4.163(e)(3) need not be filed.

§ 4.167 Government contests; answer to complaint.

(a) Deadline and contents of answer. Within 30 days after service of the Government contest complaint or after the last publication of the notice, the contestee must file an answer in the BLM State Office where the contest is pending together with proof of service of the answer upon the Government contestant. The answer must contain or be accompanied by the mailing or electronic address to which all notices or other documents must be sent for service upon the contestee.

(b) Contents of answer. The answer must specifically respond to each of the allegations in the complaint.

(c) Admissions and amendments. Any allegation not denied by the answer will be considered admitted at hearing, unless the ALJ permits the answer to be amended after due notice to the parties and an opportunity to object.

(d) Failure to answer. If an answer is not filed as required, the allegations of the complaint will be taken as admitted by the contestee and the BLM State Office will decide the case without a hearing.

(e) Referral. If an answer is filed, the BLM State Office will refer the matter to DCHD.

§ 4.168 Proceedings before administrative law judge.

(a) Applicable rules. In contest proceedings before the ALJ, the general procedural rules for practice before DCHD at §§ 4.100 through 4.131 govern practice and procedure in addition to the specific rules applicable to contest proceedings at §§ 4.160 through 4.169.

(b) Authority of the ALJ. The ALJ has the authority to conduct the proceeding in an orderly and judicial manner and to issue a written decision or order that will be final for the Department, unless appealed to the IBLA.

(c) Reporter fees. (1) The Government agency, bureau, or office initiating the contest proceeding will be responsible for reimbursing DCHD for all reporter's fees in a Government contest proceeding regardless of which party is ultimately successful.

(2) In the case of a private contest, each party will be required to reimburse DCHD for reporter's fees covering that portion of the party's direct evidence and cross-examination of witnesses within 60 days following the hearing. If the ultimate decision is adverse to the contestant, then the contestant must also pay all the reporter's fees otherwise payable by the contestee.

(3) Reporter's fees will be calculated based on the rates established pursuant to the reporting contract.

§ 4.169 Appeal.

Any party, including the Government, adversely affected by the decision of the ALJ may appeal to the IBLA as provided in § 4.403 and the rules set forth in subparts A, B, and E of this part. No further hearing will be allowed in connection with the appeal to the IBLA, but the IBLA, after considering the evidence, may remand any case for further hearing if it considers such action necessary to develop the facts.

Specific Rules Applicable to Grazing Proceedings (Inside and Outside of Grazing Districts)

§ 4.170 Appealing a grazing decision.

(a) Eligibility to file appeal. Any applicant, permittee, lessee, or other person or entity whose interest is adversely affected by a BLM grazing decision may appeal the decision by filing a notice of appeal with DCHD in accordance with §§ 4.102 and 4.103.

(b) Deadline and location for filing appeal. The notice of appeal must be filed with DCHD within 30 days after service of the grazing decision or within 30 days after a proposed grazing decision becomes final as provided in 43 CFR 4160.3(a).

(c) Service of appeal. A copy of the notice of appeal must be served in accordance with § 4.102, the OHA Standing Orders on Electronic Transmission, and the OHA Standing Orders on Contact Information on the following:

(1) Each person or entity named in the BLM grazing decision;

(2) The appropriate official of the Office of the Solicitor; and

(3) The BLM office that issued the decision.

(d) Contents of appeal. A notice of appeal must include the following:

(1) A copy of the decision or proposed decision being appealed;

(2) A statement of standing showing that the person or entity seeking to appeal is adversely affected by the decision;

(3) A statement of timeliness providing the date, and any corroborating documentation, showing when the person or entity filing the notice of appeal received a copy of the decision and showing that the appeal has been timely filed in accordance with paragraph (b) of this section; and

(4) A statement that clearly and concisely states the reasons why the appellant believes the BLM grazing decision is incorrect. The statement must contain specific factual allegations related to the BLM grazing decision being appealed and a summary of the applicable legal arguments.

(e) Waiver and amendment. Any ground for appeal not included in the notice of appeal is waived, unless the ALJ grants permission to amend the notice of appeal based on a motion demonstrating good cause.

(f) Failure to appeal. A person or entity who, after receiving proper notice, does not timely file a notice of appeal from a BLM grazing decision may not later challenge the matters resolved in the grazing decision.

(g) Effect of appeal. Filing an appeal does not by itself stay the effect of a BLM grazing decision. To request a stay of the effect of the decision pending appeal, a person or entity must also comply with § 4.171.

§ 4.171 Petitions for stay.

(a) Standards and procedures for obtaining a stay. An appellant under § 4.170 may petition for a stay of a BLM grazing decision by filing the petition for a stay with DCHD concurrently with the notice of appeal. Filings must be made in accordance with §§ 4.102 and 4.103. Except as otherwise provided by statute or other pertinent regulation, the following requirements apply:

(1) Stay criteria. The appellant must demonstrate that issuance of a stay is warranted based on the following four criteria:

(i) Immediate and irreparable harm. The likelihood of immediate and irreparable harm if the stay is not granted;

(ii) Balance of harms. Whether the harm to the appellant absent a stay exceeds the harm to the United States or other parties from a stay being granted;

(iii) Likelihood of success. The likelihood of the appellant's success on the merits; and

(iv) Public interest. Whether the public interest favors granting the stay.

(2) Burden of proof. The person or entity seeking a stay bears the burden of demonstrating that a stay should be granted, in whole or in part, under all four criteria set forth in paragraph (a)(1) of this section.

(3) Service. The petition for a stay, along with the notice of appeal, must be served in accordance with § 4.102, the OHA Standing Orders on Electronic Transmission, and the OHA Standing Orders on Contact Information on the following:

(i) Each person or entity named in the BLM grazing decision;

(ii) The appropriate official of the Office of the Solicitor; and

(iii) The BLM office that issued the decision.

(b) Response to petition for a stay. If a petition for a stay has been filed, then:

(1) Any BLM response to the petition for a stay must be filed, along with any other documents that BLM wishes the ALJ to consider when adjudicating the petition for a stay, no later than 14 days after receiving a copy of the notice of appeal and petition for a stay. BLM must also serve a copy of its response on all other parties to the appeal in accordance with § 4.102, the OHA Standing Orders on Electronic Transmission, and the OHA Standing Orders on Contact Information.

(2) Any other person or entity who wishes to respond to the petition for a stay may file a motion to intervene in the appeal under § 4.108, together with a response to the petition for a stay, no later than 14 days after being served with a copy of the notice of appeal and petition for a stay. A copy of the motion to intervene and response must be served on all other parties to the appeal in accordance with § 4.102, the OHA Standing Orders on Electronic Transmission, and the OHA Standing Orders on Contact Information on the following:

(i) Each party to the proceeding;

(ii) The appropriate official of the Office of the Solicitor; and

(iii) The BLM office that issued the decision.

(3) The failure to file a response will not be construed as an admission that the petition for a stay should be granted.

(c) Replies. No replies or further briefing related to the petition for a stay will be accepted unless authorized by the ALJ.

(d) Effect of consent or lack of opposition. The ALJ may summarily grant a petition for a stay, in whole or in part, without considering the criteria in paragraph (a)(1) if all parties to the appeal consent to the stay or file responses to the petition affirmatively stating no opposition to the stay.

(e) Deadline for ruling. The ALJ will grant or deny a petition for a stay, in whole or in part, within 45 days of the expiration of the time for filing a notice of appeal.

§ 4.172 BLM document filing requirements and initial disclosures.

(a) BLM document filing requirements. Within 14 days of receiving the notice of appeal, BLM must file and serve a copy of the following documents in accordance with § 4.102:

(1) The final grazing decision;

(2) The proposed grazing decision;

(3) Any proof of service for the decision being appealed;

(4) Any protests of the proposed decision;

(5) Any relevant National Environmental Policy Act (NEPA) documents;

(6) Any relevant rangeland health determinations;

(7) Any relevant resource management plans;

(8) The application, permit, lease, or other documents evidencing authorized use;

(9) Any relevant notices regarding unauthorized use; and

(10) Any other key documents directly cited in the final grazing decision.

(b) BLM initial disclosures. BLM shall serve a copy of its entire record for the grazing decision on all parties to the proceeding within 45 days of receiving the notice of appeal. Failure of BLM to comply with the substance of and/or time limits set forth in paragraphs (a) and/or (b) of this section shall constitute, if proven by a preponderance of the evidence, good grounds for sanctions under § 4.121. The foregoing shall not deprive any party of the discovery procedures set forth in the general procedural rules for practice before DCHD at §§ 4.112 through 4.119 of this subpart.

(1) BLM's entire record for the grazing decision shall contain a copy of any nonprivileged, discoverable materials that the deciding official considered when taking the action at issue in the proceeding.

(2) BLM's initial disclosures are considered discovery materials and should not be filed with DCHD unless otherwise directed by the ALJ.

§ 4.173 Adjudication of grazing appeal.

(a) Applicable rules. In grazing proceedings before the ALJ, the general procedural rules for practice before DCHD at §§ 4.100 through 4.131 of this subpart govern practice and procedure in addition to the rules applicable to grazing proceedings at §§ 4.170 through 4.175 of this subpart.

(b) Authority of ALJ. The ALJ has the authority to conduct the proceeding in an orderly and judicial manner.

(c) Decision or order. The ALJ has the authority to issue a written decision or order that will be final for the Department unless timely appealed under § 4.175.

(1) Basis for decision. The ALJ will issue a written decision that identifies and describes the basis for the decision.

(2) Substantial compliance standard. No grazing decision will be set aside on appeal if it is reasonable and represents substantial compliance with the provisions of part 4100 of this title.

§ 4.174 Effect of decision pending appeal; exhaustion and finality.

(a) Effect of grazing decision pending appeal. Except as otherwise provided by statute or other pertinent regulation:

(1) A BLM grazing decision will not be effective during the time in which a person or entity adversely affected by the grazing decision may file an appeal under § 4.170.

(2) A BLM grazing decision made immediately effective on issuance or on a date established by the grazing decision will remain in effect unless the ALJ grants a stay.

(3) A BLM grazing decision will become effective on the day after expiration of the time during which a person or entity adversely affected may file a notice of appeal unless a petition for a stay is filed concurrently with a timely notice of appeal.

(4) A BLM grazing decision, or that portion of a BLM grazing decision for which a stay is sought but not granted, will become effective immediately after the ALJ denies or partially denies the petition for a stay or fails to act on the petition within the time specified in § 4.171(e).

(b) Exhaustion and finality of grazing decision. To exhaust administrative remedies, a petition for a stay must be filed concurrently with a timely notice of appeal of the BLM grazing decision unless BLM has made the decision immediately effective. The BLM grazing decision will not be considered final and subject to judicial review unless it has been made effective pending a resolution of the appeal in the manner provided by paragraphs (a)(2) or (a)(4) of this section. Exhaustion does not require an appeal of a denial of a petition for a stay.

§ 4.175 Appeal and review.

(a) Appeal to the Interior Board of Land Appeals—(1) Appeal of stay petition order. Although not required for the exhaustion of administrative remedies, any person or entity adversely affected by the ALJ's order granting or denying a petition for a stay may file an appeal with the IBLA in accordance with § 4.403. Unless the IBLA orders otherwise, an appeal of the stay petition order under this section:

(i) Will not suspend the effectiveness of the ALJ's stay petition order; and

(ii) Will not suspend further proceedings before the ALJ.

(2) Appeal of decision or order on the merits. Any person or entity adversely affected by the ALJ's decision or order on the merits may file an appeal with the IBLA in accordance with § 4.403.

(b) Judicial Review. A BLM grazing decision may only be challenged in Federal court under 5 U.S.C. 704 if administrative remedies have been exhausted and the decision has become final and effective in accordance with § 4.174(b).

Subpart D—Rules Applicable to Appeals Before the Interior Board of Indian Appeals

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

§ 4.200 How to use this subpart.

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

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

§ 4.201 Definitions.

In addition to the definitions in subpart A of this part, the following definitions apply to this subpart:

Adversely affected means that a person or entity has a legally protected interest that was or is likely to be injured by the action, decision, or order on appeal.

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. 5321 or 5363.

Appellant means a person or entity appealing an action, decision, or order to the Board.

Board means the Interior Board of Indian Appeals within OHA.

Day means a calendar day.

Decedent means a person who is deceased.

Devise means a gift of property by will. Also, to give property by will.

Devisee means a person or entity that receives property under a will.

Estate means the trust or restricted land and trust personalty owned by the decedent at the time of death.

Formal probate proceeding means a proceeding, conducted by a probate 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.

Interested party means a person or entity adversely affected by the action, decision, or order on appeal, or whose interest would be adversely affected if that action, decision, or order were modified, reversed, or set aside. In an appeal from an order of a probate judge, the term “interested party” is limited to:

(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.

LTRO means the Land Titles and Records Office within BIA.

OHA means Office of Hearings and Appeals, Department of the Interior.

Probate means the legal process by which applicable tribal, Federal, or State law that affects the distribution of a decedent's estate is applied in order to:

(1) Determine the heirs;

(2) Determine the validity of wills and determine devisees;

(3) Determine whether claims against the estate will be paid from trust personalty; and

(4) Order the transfer of any trust or restricted land or trust personalty to the heirs, devisees, or other persons or entities entitled by law to receive them.

Probate judge means an ALJ or IPJ in the Probate Hearings Division.

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.

Trust personalty means all tangible personal property, funds, and securities of any kind that are held in trust in an IIM account or otherwise supervised by the Secretary.

Trust property means real or personal property, or an interest therein, the title to which is held in trust by the United States for the benefit of an individual Indian or tribe.

Will means a written testamentary document that was executed by the decedent and attested to by two disinterested adult witnesses, and that states who will receive the decedent's trust or restricted property.

§§ 4.202-4.308 [Reserved]

General Rules for Practice Before the Interior Board of Indian Appeals

§ 4.310 Documents; filing, service, computing time, and extensions.

(a) Filing with the Board generally. A document required or permitted to be filed with the Board must be delivered to the Board as specified in this subpart and in the OHA Standing Orders on Contact Information and the OHA Standing Orders on Electronic Transmission found on the Department of the Interior OHA website, at https://www.doi.gov/oha.

(b) Methods of filing—(1) Electronic. A document may be filed electronically with the Board under the terms specified in the OHA Standing Orders on Electronic Transmission. Any Federal, State, or local agency and any attorney representing a person or entity must file electronically, unless otherwise specified in the OHA Standing Orders on Electronic Transmission or the Board has allowed non-electronic filing for good cause.

(2) Non-electronic. A document filed by mail, commercial courier, or hand delivery must be delivered to the Board at the address specified in the OHA Standing Orders on Contact Information.

(c) Timeliness and effective date of filing. When the Board is determining timeliness, the effective date for filing a notice of appeal or other document with the Board depends on the method of filing.

(1) Electronic. For documents filed by electronic transmission under the terms specified in the OHA Standing Orders on Electronic Transmission, the effective date of filing is the date of transmission to the Board. A document filed electronically will be considered timely filed if it is transmitted to the Board by 11:59 p.m. Eastern Time on the last day of the period prescribed for filing.

(2) Mail. For documents sent by United States mail or a foreign government's mail system, the effective date of filing is the date of mailing to the Board.

(i) If the envelope bears a legible postmark dated on or before the last day of the period prescribed for filing, the document will be considered timely filed although it is received after the prescribed deadline.

(ii) If the envelope bears a legible postmark dated after the last day of the period prescribed for filing the document, the document will not be considered timely filed, regardless of when the document is deposited in the mail.

(iii) If the envelope bears an illegible postmark, the person or entity who is required to file the document has the burden of proving the date of mailing to the Board.

(3) Commercial courier or hand delivery. For documents delivered by commercial courier or hand delivery, the effective date of filing is the date of receipt in the Board's office during its regular business hours by a person authorized to receive the filing. A document delivered by commercial courier or hand delivery that is received after the Board's regular business hours is considered filed on the next business day.

(d) Serving Notices of Appeal and other documents. Any party filing a notice of appeal or other document with the Board must concurrently serve complete copies of the document, including any attachments, on all interested parties in the proceeding, except as provided at 43 CFR 4.31. Service must be made by electronic transmission, mailing, delivery by commercial courier, or delivery by hand. Service may be made electronically on the Office of the Solicitor and Department of the Interior bureaus and offices under the terms specified in the OHA Standing Orders on Electronic Transmission. Service may be made electronically on all other persons or entities, through means they have consented to in writing, under the terms specified in the OHA Standing Orders on Electronic Transmission. All documents filed with the Board must include a certification that service was made as required by this section.

(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:

(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.

(f) 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.

(g) 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.

§ 4.311 Briefs on appeal.

(a) The appellant may file an opening brief within 30 days after receiving the notice of docketing. The appellant must serve copies of the opening brief upon all interested parties or counsel and file a certificate with the Board showing service upon the named parties. Opposing parties or counsel will have 30 days from receiving the appellant's brief to file answer briefs, copies of which must be served upon the appellant or counsel and all other interested parties. A certificate showing service of the answer brief upon all parties or counsel must be attached to the answer filed with the Board.

(b) The appellant may reply to an answering brief within 15 days from its receipt. A certificate showing service of the reply brief upon all parties or counsel must be attached to the reply filed with the Board. Except by special permission of the Board, no other briefs will be allowed on appeal.

(c) BIA is considered an interested party in any proceeding before the Board. The Board may request that BIA submit a brief in any case before the Board.

(d) An original only of each document should be filed with the Board. Documents should not be bound along the side.

(e) The Board may also specify a date on or before which a brief is due. Unless expedited briefing has been granted, such date may not be less than the appropriate period of time established in this section.

§ 4.312 Board decisions.

(a) 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.

(b) The Board may issue an order affirming, without opinion, a decision or order of an administrative law judge, Indian probate judge, or BIA official if the Board determines that: the result reached was correct; any errors in the decision or order under review were harmless or nonmaterial; and either the issues on appeal are squarely controlled by existing Board or Federal court precedent and do not involve the application of precedent to a novel factual situation, or the factual and legal issues raised on appeal are not so substantial that the case warrants the issuance of a written opinion by the Board. An order affirming without opinion under this paragraph will cite the Board's delegated authority and this paragraph; and state, without further explanation or reasoning, that the result of the decision or order under review is affirmed without opinion. Such an order approves the result reached but does not necessarily imply approval of all the reasoning of the decision or order under review.

(c) Nothing in paragraph (a) or (b) of this section limits the Board's authority to summarily dismiss an appeal or to summarily adopt, modify, reverse, or set aside a decision or order under review.

(d) If the Board does not issue a decision in a case within 36 months after the notice of appeal is received by the Board and the decision or order of an administrative law judge, Indian probate judge, or BIA official being appealed is not in effect, the appellant may move for the Board to issue an order dismissing the case without an opinion by the Board on the merits and making the decision or order being appealed final for the Department. In consolidated appeals, the 36-month period will begin after the last notice of appeal is received by the Board. If each appellant in a case, including any consolidated appeals, submits or joins a written motion for dismissal under this paragraph, the Board will issue an order dismissing the case without an opinion by the Board. The Board's order, issued under authority of this paragraph, will make the decision or order being appealed final for the Department. The date of the Board's order is the date of finality of the decision or order being appealed for the purpose of judicial review.

§ 4.313 Amicus curiae; intervention; joinder motions.

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

(b) Motions to intervene, to appear as amicus curiae, to join additional parties, or to obtain an order in an appeal pending before the Board must be served in the same manner as appeal briefs.

§ 4.314 Effect of decision pending appeal and exhaustion of administrative remedies.

(a) Except as otherwise provided by applicable statute or regulation, the provisions of 43 CFR 4.21 and this section govern the effect of a decision pending appeal and exhaustion of administrative remedies.

(b) A decision of an administrative law judge, Indian probate judge, or BIA official will not be effective during the time in which an interested party may file a notice of appeal, and the timely filing of a notice of appeal will suspend the effect of the decision appealed from pending the Board's decision on appeal, unless by order of the Board the decision, or any part of it, is made immediately effective.

(c) No further appeal will lie within the Department from a decision of the Board.

(d) The filing of a petition for reconsideration is not required to exhaust administrative remedies.

§ 4.315 Reconsideration of a Board decision.

(a) Reconsideration of a decision of the Board will be granted only in extraordinary circumstances. Any party to the decision may petition for reconsideration. The petition must be filed with the Board within 30 days from the date of the decision and must contain a detailed statement of the reasons why reconsideration should be granted.

(b) A party may file only one petition for reconsideration.

(c) The filing of a petition will not stay the effect of any decision or order and will not affect the finality of any decision or order for purposes of judicial review, unless so ordered by the Board.

(d) A petition for reconsideration based solely on an argument that the case should not have been affirmed without opinion under § 4.312(b) is not permitted.

§ 4.316 Remands from courts.

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

§ 4.317 Standards of conduct.

(a) Inquiries about cases. Except for ex parte communications that are prohibited under 43 CFR 4.27, all inquiries by a party to a matter pending before the Board should be directed to the Board's clerk, and all inquiries by a non-party to a matter pending before the Board should be directed to the chief administrative judge of the Board or the administrative judge assigned the matter.

(b) Disqualification. An administrative judge may withdraw from a case in accordance with standards found in the recognized canons of judicial ethics if the judge deems this action appropriate. If, before a decision of the Board, a party files an affidavit of personal bias or disqualification with substantiating facts, and the administrative judge concerned does not withdraw, the OHA Director will determine the matter of disqualification.

§ 4.318 Scope of review.

An appeal will be limited to those issues that were before the administrative law judge or Indian probate judge upon the petition for rehearing or reopening, or regarding added or omitted property or purchase of interests in an estate, 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.

Specific Rules for Appeals in Probate Matters

§ 4.320 Who may appeal a probate judge's order?

Any interested party has a right to appeal to the Board if he or she is adversely affected by an order of a probate 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 added or omitted property; or

(e) Determining that a person for whom a probate proceeding is sought is not deceased.

§ 4.321 How do I appeal a probate judge's order?

(a) A person wishing to appeal an order within the scope of § 4.320 must file a written notice of appeal within 30 days after the probate judge has sent the 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 at 43 CFR 1.3, and must be filed with the Board of Indian Appeals by electronic transmission, mail, commercial courier, or hand delivery, in accordance with § 4.310(b).

§ 4.322 What must an appeal contain?

(a) Each appeal must contain a written statement of the errors of fact and law upon which the appeal is based. This statement may be included in either the notice of appeal filed under § 4.321(a) or an opening brief filed under § 4.311(a).

(b) The notice of appeal must include the names and addresses of the parties served.

§ 4.323 Who receives service of the notice of appeal?

(a) The appellant must file the original notice of appeal with the Board.

(b) A copy of the notice of appeal must be served on the probate judge whose order is being appealed, as well as on every other interested party, in accordance with § 4.310(d).

(c) The notice of appeal filed with the Board must include a certification that service was made as required by this section.

§ 4.324 How is the record on appeal prepared?

(a) On receiving a copy of the notice of appeal, the probate judge whose order is being appealed must notify:

(1) The agency concerned; and

(2) The LTRO where the original record was filed under § 30.233 of this subtitle.

(b) If a transcript of the hearing was not prepared, the probate judge must have a transcript prepared and forwarded to the LTRO within 30 days after receiving a copy of the notice of appeal. The LTRO must include the original transcript in the record.

(c) Within 30 days of the receipt of the transcript, the LTRO must do the following:

(1) Prepare a table of contents for the record;

(2) Make two complete copies of the original record, including the transcript and table of contents;

(3) Certify that the record is complete;

(4) Forward the certified original record, together with the table of contents, to the Board by certified mail, electronic transmission in accordance with § 4.310(b), or other service with delivery confirmation; and

(5) Send one copy of the complete record to the agency.

(d) While the appeal is pending, the copies of the record will be available for inspection at the LTRO and the agency.

(e) Any party may file an objection to the record. The party must file his or her objection with the Board within 15 days after receiving the notice of docketing under § 4.325.

(f) For any of the following appeals, the probate judge must prepare an administrative record for the order and a table of contents for the record and must forward them to the Board:

(1) An interlocutory appeal under § 4.28;

(2) An appeal from an order under 43 CFR 30.253 regarding added or omitted property; or

(3) An appeal from an order under 43 CFR 30.124 determining that a person for whom a probate proceeding is sought is not deceased.

§ 4.325 How will the appeal be docketed?

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

§ 4.326 What happens to the record after disposition?

(a) After the Board makes a decision other than a remand, it must forward to the designated LTRO:

(1) The record filed with the Board under § 4.324(d) or (f); and

(2) All documents added during the appeal proceedings, including any transcripts and the Board's decision.

(b) The LTRO must conform the duplicate record retained under § 4.324(b) to the original sent under paragraph (a) of this section and forward the duplicate record to the agency concerned.

Specific Rules for Appeals from Administrative Actions Not Relating to Probate Proceedings

§ 4.330 Scope.

(a) 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 I; 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 Office of Natural Resources Revenue or any predecessor or successor organization, unless the decision is based on an interpretation of Federal Indian law (decisions not so based which arise from determinations of the Office of Natural Resources Revenue or any predecessor or successor organization, are appealable to the Interior Board of Land Appeals in accordance with subpart E of this part).

§ 4.331 Who may appeal.

Any interested party adversely affected by a final administrative action or decision of an official of the Bureau of Indian Affairs issued under regulations in title 25 of the Code of Federal Regulations may appeal to the Board of Indian appeals, except—

(a) To the extent that decisions which are subject to appeal to a higher official within the Bureau of Indian Affairs must first be appealed to that official;

(b) Where the decision has been approved in writing by the Secretary or Assistant Secretary—Indian Affairs prior to promulgation; or

(c) Where otherwise provided by law or regulation.

§ 4.332 Appeal to the Board; how taken; mandatory time for filing; preparation assistance; requirement for bond.

(a) A notice of appeal must 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 by electronic transmission, mail, commercial courier, or hand delivery, in accordance with § 4.310(b). The notice of appeal must be filed within 30 days after receipt by the appellant of the decision from which the appeal is taken. A copy of the notice of appeal must simultaneously be sent to the Assistant Secretary—Indian Affairs and the Associate Solicitor, Division of Indian Affairs. As required by § 4.333, the notice of appeal sent to the Board must certify that a copy has been sent to the Assistant Secretary—Indian Affairs and to the Associate Solicitor, Division of Indian Affairs. A notice of appeal not timely filed will be dismissed for lack of jurisdiction. A notice of appeal must 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 2.508, within 40 days from the Board's receipt of a notice of appeal, the Assistant Secretary—Indian Affairs may decide to review the appeal. If within that time the Board receives proper notice from the Assistant Secretary—Indian Affairs that a decision has been made to review the appeal, any documents concerning the case filed with the Board will be transmitted to the Assistant Secretary—Indian Affairs.

(c) When the appellant is an Indian or Indian tribe not represented by counsel, the official who issued the decision appealed shall, upon request of the appellant, render such assistance as is appropriate in the preparation of the appeal.

(d) At any time during the pendency of an appeal, an appropriate bond may be required to protect the interest of any Indian, Indian tribe, or other parties involved.

§ 4.333 Service of notice of appeal.

On or before the date of filing of the notice of appeal the appellant must 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, upon the Assistant Secretary—Indian Affairs, and upon the Associate Solicitor, Division of Indian Affairs. The notice of appeal filed with the Board must certify that service was made as required by this section and must 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.

§ 4.334 Extensions of time.

Requests for extensions of time to file documents may be granted upon a showing of good cause, except for the time fixed for filing a notice of appeal which, as specified in § 4.332 of this part, may not be extended.

§ 4.335 Preparation and transmittal of record by official of the Bureau of Indian Affairs.

(a) Within 20 days after receipt of a notice of appeal, or upon notice from the Board, the official of the Bureau of Indian Affairs whose decision is appealed shall assemble and transmit the record to the Board. The record on appeal shall include, without limitation, copies of transcripts of testimony taken; all original documents, petitions, or applications by which the proceeding was initiated; all supplemental documents which set forth claims of interested parties; and all documents upon which all previous decisions were based.

(b) The administrative record shall include a Table of Contents noting, at a minimum, inclusion of the following:

(1) The decision appealed from;

(2) The notice of appeal or copy thereof; and

(3) Certification that the record contains all information and documents utilized by the deciding official in rendering the decision appealed.

(c) If the deciding official receives notification that the Assistant Secretary—Indian Affairs has decided to review the appeal before the administrative record is transmitted to the Board, the administrative record shall be forwarded to the Assistant Secretary—Indian Affairs rather than to the Board.

§ 4.336 Docketing and objections to the administrative record.

(a) An appeal will be assigned a docket number by the Board 40 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. If, prior to the time that the Board would ordinarily assign a docket number, the Board receives notice that the Assistant Secretary—Indian Affairs has decided not to assume jurisdiction over the appeal, the Board will assign a docket number to the appeal upon receipt of that notice. A notice of docketing will be sent to all interested parties as shown by the record on appeal upon receipt of the administrative record and assignment of a docket number. The docketing notice will specify the time within briefs must be filed, cite the procedural regulations governing the appeal, and include a copy of the Table of Contents furnished by the deciding official if it was not previously sent to the interested parties.

(b) Any objection to the administrative record as constituted must be filed with the Board within 15 days of the objecting party's receipt of the Table of Contents.

§ 4.337 Action by the Board.

(a) The Board may make a final decision, or where the record indicates a need for further inquiry to resolve a genuine issue of material fact, the Board may require a hearing. All hearings shall be conducted by an administrative law judge of the Office of Hearings and Appeals. The Board may, in its discretion, grant oral argument before the Board.

(b) Where the Board finds that one or more issues involved in an appeal or a matter referred to it were decided by the Bureau of Indian Affairs based upon the exercise of discretionary authority committed to the Bureau, and the Board has not otherwise been permitted to adjudicate the issue(s) pursuant to § 4.330(b) of this part, the Board shall dismiss the appeal as to the issue(s) or refer the issue(s) to the Assistant Secretary—Indian Affairs for further consideration.

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

(a) When an evidentiary hearing pursuant to § 4.337(a) of this part is concluded, the administrative law judge shall recommend findings of fact and conclusions of law, stating the reasons for such recommendations. A copy of the recommended decision shall be sent to each party to the proceeding, the Bureau official involved, and the Board. Simultaneously, the entire record of the proceedings, including the transcript of the hearing before the administrative law judge, shall be forwarded to the Board.

(b) The administrative law judge shall advise the parties at the conclusion of the recommended decision of their right to file exceptions or other comments regarding the recommended decision with the Board in accordance with § 4.339 of this part.

§ 4.339 Exceptions or comments regarding recommended decision by administrative law judge.

Within 30 days after receipt of the recommended decision of the administrative law judge, any party may file exceptions to or other comments on the decision with the Board.

§ 4.340 Disposition of the record.

Subsequent to a decision by the Board, the record filed with the Board and all documents added during the appeal proceedings, including the Board's decision, shall be forwarded to the official of the Bureau of Indian Affairs whose decision was appealed for proper disposition in accordance with rules and regulations concerning treatment of Federal records.

Subpart E—Rules Applicable to Appeals Before the Interior Board of Land Appeals

§ 4.400 Scope of rules.

The regulations in this subpart set forth rules applicable to appeals before the Interior Board of Land Appeals. General rules in subparts A and B of this part are applicable to the proceedings before the Board unless they are inconsistent with these rules. Wherever there is any conflict between the general rules in subpart B and the rules in this subpart, the rules in this subpart will govern. In addition, the OHA Standing Orders apply to appeals before the Board and are available on the Department of the Interior OHA website, at https://www.doi.gov/oha.

§ 4.401 Definitions.

In addition to the definitions in subpart A of this part, the following definitions apply to this subpart:

Administrative law judge (ALJ) means an administrative law judge appointed to the Departmental Cases Hearings Division.

Adversely affected means that a person or entity has a legally cognizable interest, and the decision on appeal has caused or is substantially likely to cause injury to that interest. A legally cognizable interest may include, but is not limited to, a property or economic interest in the affected lands or resources, or a cultural, recreational, or aesthetic interest in the affected lands or resources.

Appealable decision is a final bureau or office decision as described at § 4.1(b)(4) of this part that authorizes, denies, prohibits, or requires some action that adversely affects a person or entity having or seeking some right, title, or interest in lands or resources.

Appellant means a person or entity appealing a decision to the Board.

Board means the Interior Board of Land Appeals in OHA.

Office or officer includes an administrative law judge or the Board where the context so requires.

Party to the case is a person or entity that has taken action that is the subject of the decision on appeal or 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.

§ 4.402 Who may appeal; decisions not subject to appeal.

(a) Standing. Any person or entity that is a party to the case and is adversely affected by an appealable decision of a bureau or office or an ALJ has the right to appeal to the Board, except as provided in paragraph (b) of this section.

(b) Decisions not subject to appeal. An appeal cannot be filed:

(1) Where a statute or regulation provides a different review process or makes a decision final for the Department; or

(2) Where a decision has been made or approved by the Secretary, Deputy Secretary, or an Assistant Secretary unless otherwise provided by statute or regulation.

(c) Land selections under the Alaska Native Claims Settlement Act. For appealable 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 an appropriate regional corporation has a right to appeal to the Board.

§ 4.403 How to appeal.

(a) What to file with the notice of appeal. A person or entity that wishes to appeal to the Board must file a notice that the person or entity wishes to appeal. When a person or entity files a notice of appeal, they must also file the following documents:

(1) A copy of the decision being appealed;

(2) A statement of facts showing that the person or entity seeking to appeal is a party to the case who is adversely affected by the decision and thereby meets the standing requirements set forth at § 4.402; and

(3) A statement and any corroborating documentation providing the date when the person or entity filing the appeal received notice of the decision to show that the appeal has been timely filed in accordance with paragraph (c) of this section.

(b) Where to file and serve the notice of appeal. Except as otherwise provided by statute or regulation:

(1) The notice of appeal must be filed with the Board as specified in § 4.407(a); and

(2) The notice of appeal must be concurrently served as specified at § 4.407(b).

(c) When to file and serve the notice of appeal—(1) Except as otherwise provided by statute or regulation, a person or entity must file the notice of appeal no later than 30 days after the date of receiving notice of the decision.

(2) Notwithstanding the provisions of other regulations, a person or entity receives notice of a decision at the earliest of the following dates:

(i) The date of delivery by mail or delivery service as indicated on a U.S. Postal Service or delivery service tracking report or, if no tracking report exists, then, absent contrary evidence, 7 days after the date of the postmark on the envelope containing the decision as long as the envelope was properly addressed and had proper postage prepaid;

(ii) The date the bureau or office electronically transmits the decision, or a notice that the decision is available on a public website, to the person or entity at an electronic address provided by the person or entity, and the bureau or office does not receive electronic notification that the transmission was unsuccessful;

(iii) The date the bureau or office notifies the public in an online news release that the decision is available on a public website;

(iv) The date of the decision's publication in the Federal Register; or

(v) If none of these dates apply, the date the person or entity receives actual notice of the decision.

(3) Filing is accomplished as provided at § 4.407.

(4) No extension of time will be granted for filing the notice of appeal. If a notice of appeal is filed with the Board after the last day for filing a timely notice of appeal, then the notice of appeal will not be considered, and the Board will dismiss the appeal for lack of jurisdiction.

§ 4.404 Effect of appeal.

Once an appeal has been filed, the issuing bureau or office cannot modify, rescind, or supersede the decision on appeal without first seeking a remand of the decision from the Board. If the decision is stayed during the appeal, the bureau or office may only make decisions related to the subject of the decision on appeal if those decisions are functionally independent of the decision on appeal.

§ 4.405 Effect of decision pending appeal; petitions for stay.

(a) Effect of decision pending appeal. Except as otherwise provided by law:

(1) A decision will not be effective during the time in which a person or entity adversely affected may file a notice of appeal; however, when the public interest requires or to protect trust resources, the Board may provide that a decision, or any part of a decision, will be effective immediately.

(2) A decision will become effective on the day after the expiration of the time during which a person or entity adversely affected may file a notice of appeal unless a petition for a stay pending appeal is filed at the same time as a timely notice of appeal.

(3) A decision, or that portion of a decision, for which a stay is sought but not granted will become effective immediately after the Board denies or partially denies the petition for a stay or fails to act on the petition within the time specified in paragraph (b)(7) of this section.

(b) Petitions for Stay—(1) Who may file a petition for a stay. Only an appellant who properly files an appeal may petition to stay the effect of a decision during an appeal.

(2) Filing and service. An appellant seeking a stay must file a petition for a stay with the Board and serve the petition on the bureau or office that made the decision being appealed, the proper Office of the Solicitor, and each party named in the decision. Filing and service must be made as specified in § 4.407 of this subpart.

(3) Stay criteria. Except as otherwise provided by law, an appellant seeking a stay must demonstrate that issuance of a stay is warranted based upon the following criteria:

(i) Immediate and irreparable harm. The likelihood of immediate and irreparable harm if the stay is not granted;

(ii) Balance of harms. Whether the harm to the appellant absent a stay exceeds the harm to the United States or other parties from a stay being granted;

(iii) Likelihood of success. The likelihood of the appellant's success on the merits; and

(iv) Public interest. Whether the public interest favors granting the stay.

(4) Burden of proof. An appellant seeking a stay has the burden to demonstrate that a stay should be granted in whole or in part, under all four criteria set forth at paragraph (b)(3) of this section.

(5) Responses to a petition for a stay. Any party may file a response to a petition for a stay within 14 days after service; failure to file a response will not be construed as an admission that the Board should grant the petition.

(6) Replies. No replies to a response will be accepted.

(7) Ruling on a petition for stay. The Board will grant or deny a petition for a stay that is filed at the same time as a notice of appeal, in whole or in part, within 45 days of the expiration of the time for filing a notice of appeal. If the Board fails to act on a petition for a stay within 45 days of the expiration of the time for filing a notice of appeal, the petition will be deemed denied.

(8) Effect of consent or lack of opposition. The Board may summarily grant a petition for a stay, in whole or in part, without considering the criteria listed in paragraph (b)(3) of this section if all parties to the appeal consent to the stay or file responses to the petition affirmatively stating no opposition to the petition.

§ 4.406 Record on appeal.

(a) Filing the record. The bureau or office must promptly file the record with the Board and concurrently serve a copy of the record on all parties to the appeal no later than 60 days after being served with the notice of appeal unless the bureau or office seeks and the Board grants a different filing deadline.

(b) Contents. All documents and materials that the deciding officer directly or indirectly considered in reaching a final decision must be included in the record.

(c) Format. Unless otherwise ordered by the Board upon motion by the bureau or office, the record must be formatted as follows:

(1) The record must be in digital or electronic form;

(2) The record must include an index of all documents;

(3) The pages of each document must be sequentially numbered; and

(4) If possible, the text of all documents must be electronically searchable.

(d) Completion of record. The bureau or office may file and serve documents inadvertently omitted from the record either by stipulation of the parties or by order of the Board upon motion.

§ 4.407 Filing, service, deadline computations, and issuance.

(a) Filing—(1) Generally. A document filed with the Board must be delivered to the Board as specified in this subpart and the OHA Standing Orders on Electronic Transmission and the OHA Standing Orders on Contact Information found on the Department of the Interior OHA website, at https://www.doi.gov/oha.

(2) Methods of filing—(i) Electronic. A document may be filed electronically under the terms specified in the OHA Standing Orders on Electronic Transmission. Any Federal, State, or local agency and any attorney representing a person or entity must file electronically, unless otherwise specified in the OHA Standing Orders on Electronic Transmission or when the Board has allowed non-electronic filing for good cause.

(ii) Non-electronic. Any document filed non-electronically must be delivered to the Board at the address specified in the OHA Standing Orders on Contact Information.

(3) Timeliness—(i) Electronic. A document that is filed electronically is deemed timely filed if it is filed by 11:59 p.m. Eastern Time on the date the document is due, under the terms specified in the OHA Standing Orders on Electronic Transmission.

(ii) Non-electronic. A document that is not filed electronically is deemed timely filed if, on or before the last day for filing, it is mailed to the Board by first-class United States mail, or other class of mail that is at least as expeditious, postage prepaid; or it is dispatched to a third-party commercial courier for delivery to the Board within 3 days. The date of mailing or dispatch must be documented by a postmark date, acceptance scan, receipt, or similar written acknowledgement from the carrier delivering the document for filing. A document not received within 7 days of the filing deadline is presumed untimely, but the presumption may be overcome by the documentation establishing the date of mailing or dispatch.

(b) Service—(1) Generally. Any person or entity who files a document in an appeal must also serve the document under the terms specified in this section and in the OHA Standing Orders on Electronic Transmission and the OHA Standing Orders on Contact Information.

(2) Person or entity to serve. A person or entity that files any document under this subpart must serve a copy of it concurrently as follows:

(i) For a notice of appeal, on the office of the officer who made the decision; each person or entity named in the decision; the appropriate official of the Office of the Solicitor as set forth at paragraph (b)(2)(iii) of this section; and if the decision involved a mining claim on national forest land, then on all parties who participated in the proceeding below.

(ii) For all other documents, on the appropriate official of the Office of the Solicitor as set forth at paragraph (b)(2)(iii) of this section and on each party to the appeal (including intervenors).

(iii) Parties must serve the Office of the Solicitor as provided in the OHA Standing Orders on Contact Information until a particular attorney of the Office of the Solicitor files and serves a document in the appeal, after which that attorney must be served.

(3) Service on represented parties. Service on a party known to be represented by an attorney or other designated representative must be made on the representative.

(4) Service address. Every person or entity who files a document in connection with an appeal must provide the physical or electronic address that the person or entity intends to use for service in the appeal. A person or entity seeking to receive service by electronic mail must consent to electronic service as required at paragraph (b)(6)(i) of this section. If a person or entity has not consented to electronic service, then anyone serving a document on that person or entity must use the mailing address in the person's or entity's most recent filing or, if there has not been any filing, the mailing address of the person or entity as provided by the bureau or office where the appeal originated.

(5) Address changes. A party whose mailing or email address changes while an appeal is pending must promptly file and serve a written notice of the change. The notice must specify the appeal or appeals to which the notice applies using the applicable docket number or docket numbers when available.

(6) Manner of service. A document may be served electronically or non-electronically as follows:

(i) Electronic. Service may be made electronically on the Office of the Solicitor and the bureau or office whose decision is being appealed under the terms specified in the OHA Standing Orders on Electronic Transmission. Service may be made electronically on all other persons or entities who have consented to electronic service in writing under the terms specified in the OHA Standing Orders on Electronic Transmission.

(ii) Non-electronic. Service may be made non-electronically by United States mail or commercial courier for delivery within 3 days.

(7) Certificate of service. At the conclusion of any document that a party must serve under this subpart, the party or the party's representative must sign a written statement that:

(i) Certifies service has been or will be made in accordance with the applicable rules; and

(ii) Specifies the date and manner of service.

(8) Completion of service—(i) Electronic. Service by electronic means is complete on sending or as otherwise directed by the OHA Standing Orders on Electronic Transmission, unless the party making service is notified that the document was not received by the party served.

(ii) Non-electronic. Service by mail or by commercial courier is complete on mailing or delivery to the carrier. The date of mailing or delivery must be documented by a postmark date, acceptance scan, receipt, or similar written acknowledgement from the carrier delivering the document.

(c) Computing deadlines. When a party may or must act within a specified time period after being served, and the document is not served electronically on the party or delivered to the party on the date stated in the proof of service, 3 days are added after the period would otherwise expire.

(d) Issuance. The Board will issue notices, orders, and decisions to the party's electronic mail address unless the party requests otherwise. If an electronic mail address is not provided by the party in a document filed in the appeal or in a document filed in the proceedings below, then the Board will issue notices, orders, and decisions by U.S. mail, personal delivery, or commercial courier using the party's record address as provided under § 4.22(b) or, if not provided, the party's last known mailing address.

§ 4.408 Document formatting requirements.

(a) Documents subject to formatting requirements. The formatting requirements of this section apply to any notice, motion, brief, or other document filed in an appeal subject to this subpart, whether filed electronically or in paper form. These formatting requirements do not apply to an exhibit, an attachment, or the administrative record.

(b) General requirements. Each motion, brief, or other document must be filed separately. In addition, all documents must:

(1) Be captioned with a docket number and a concise title that clearly conveys what is being filed;

(2) Use 12-point font size or larger throughout the document;

(3) Be double-spaced except for the case caption, headings, long quotations, and footnotes, which may be single-spaced;

(4) Have margins of at least 1 inch on all four sides;

(5) Have pages that are numbered sequentially;

(6) Be signed by the party or the party's representative;

(7) Be 8 1/2 by 11 inches in size if filed in paper form, with print on just one side of the page and the document stapled or bound in the upper left-hand corner; and

(8) Be in electronic text-searchable portable document format (PDF) if filed electronically, maintaining original document formatting unless specified differently in the OHA Standing Orders on Electronic Transmission.

(c) Document elements excluded from page computations. Documents subject to page limitations may exclude from the number computation any cover page, table of contents, table of citations, signature blocks, certificates of service, indices, attachments, and exhibits.

(d) Consequences of non-compliance. The Board may decide not to consider any document that does not comply with the requirements in paragraphs (b) and (c) of this section.

§ 4.409 Motions.

(a) In general—(1) Form and content. Any motion filed with the Board must be in writing and state with particularity the relief sought and provide the reasons for the motion.

(2) Duty to confer. (i) Except as provided in paragraph (a)(2)(ii) of this section, before filing a motion, the moving party must make reasonable efforts to contact each party to determine whether agreement can be reached on the relief sought in the motion. The moving party must state in its motion:

(A) Whether any party it reached agrees to all or part of the motion; and

(B) What steps it took to contact any party it was unable to reach.

(ii) The duty to confer does not apply to a motion by an appellant to withdraw or voluntarily dismiss an appeal or an adversarial motion (for example, a motion to dismiss for lack of jurisdiction).

(3) Responses. Except as provided in paragraph (b)(4) of this section or a Board order, any party has 14 days after service of the motion to file a response.

(4) Replies. A party has 7 days from service of the response to file a reply. The reply may not exceed 10 pages and is limited to new issues or arguments raised in the response.

(b) Extensions of time. (1) Except as otherwise provided in this subpart, a party may seek additional time by filing with the Board a motion for an extension of time.

(2) A motion for an extension must be filed no later than the day before the date the document is due, absent extenuating circumstances.

(3) The party must support its motion for an extension of time by showing there is good cause to grant it.

(4) If a party opposes the motion for an extension of time, the party must file its response within 3 business days after service of the motion.

(5) A Board order granting or denying a motion for an extension will state when the document must be filed. If the Board does not act on a motion before the document is due, the document must be filed no later than 7 days after the original due date, unless the Board orders otherwise.

(c) Intervention—(1) How to intervene. A person or entity that wishes to intervene must file a motion to intervene within 60 days after the person or entity knew or should have known that the decision had been appealed. The person or entity filing a motion to intervene must serve the motion on all parties to the appeal.

(2) Who may file a motion to intervene. A person or entity may seek to intervene if they had a right to appeal the decision under these rules or would be adversely affected if the Board reversed, vacated, set aside, or modified the decision.

(3) Contents of a motion to intervene. The motion must identify how the proposed intervenor meets the eligibility requirements set forth at paragraph (c)(2) of this section and when the proposed intervenor learned of the appeal.

(4) The Board's action on a motion to intervene. The Board may grant the motion to intervene; grant the motion to intervene but limit the person's or entity's participation in the appeal; or deny the motion to intervene if the proposed intervenor fails to meet the requirements of this paragraph (c) or if the Board determines that granting the motion would prejudice the existing parties or unduly delay adjudication of the appeal. If the intervenor had a right to appeal the decision, the Board will limit participation to the issues raised by the other parties to the appeal, along with any additional limitations deemed necessary to avoid prejudice or undue delay. If the Board denies the motion to intervene, the Board may allow the person or entity to file a brief as amicus curiae. A person or entity granted full or limited intervenor status is a party to the appeal.

(d) Amicus curiae. (1) A person or entity may file a motion to file a brief as an amicus curiae. The motion must state the person's or entity's interest in the appeal and how their brief will contribute to resolving the issues on appeal.

(2) The Board may grant or deny the motion in its discretion.

(3) A person or entity seeking to participate as amicus curiae must serve its motion, and its brief if the motion is granted, on all parties to the appeal.

(4) A person or entity granted amicus curiae status is not a party to the appeal.

(e) Consolidation. The Board, either on a party's motion or at the Board's initiative, may consolidate two or more appeals when they involve common factual or legal issues.

(f) Suspension of consideration of appeal. Any party may file a motion to suspend consideration of a pending appeal. If granted, the Board will toll any remaining filing deadlines until a date specified in a Board notice or order. The Board may require the parties to file periodic status reports. The Board may lift the suspension and place an appeal in an active status upon motion by either party or at the Board's initiative.

(g) Evidentiary Hearing before an ALJ. (1) Any party may file a motion that the Board refer an appeal to an ALJ for a hearing. The motion must state:

(i) What specific issues of material fact require a hearing;

(ii) What evidence concerning these issues must be presented by oral testimony, or be subject to cross-examination;

(iii) What witnesses need to be examined; and

(iv) What documentary evidence requires explanation, if any.

(2) In response to a motion for hearing or on its own initiative, the Board may order a hearing before an ALJ if there are:

(i) Any disputed issues of material fact which, if proved, would alter the disposition of the appeal; or

(ii) Significant factual or legal issues remaining to be decided, and the record without a hearing would be insufficient for resolving them.

(3) If the Board orders a hearing, it must:

(i) Specify the issues of fact upon which the hearing is to be held; and

(ii) Request the ALJ to issue:

(A) Proposed findings of fact on the issues presented at the hearing;

(B) A recommended decision that includes findings of fact and conclusions of law; or

(C) A decision that will be final for the Department unless a notice of appeal is filed in accordance with § 4.403.

(4) The hearing will be conducted under the general rules in subpart C of this part. Unless the Board orders otherwise, the ALJ may consider other relevant issues and evidence identified after referral of the case for a hearing.

(h) Attorney substitution and withdrawal—(1) Attorney substitution—(i) Form and content. A party may substitute attorneys by filing and serving a notice of substitution that includes the pertinent contact information for the new attorney.

(ii) Effective date. The notice of substitution is effective upon filing.

(2) Attorney withdrawal—(i) Form and content. An attorney may request to withdraw from representing a party to an appeal without providing a substitute by filing a written motion to withdraw. The attorney must serve the motion on all parties and the attorney's client(s). The motion must contain the following:

(A) Pertinent contact information for the attorney's client(s);

(B) A statement explaining why the withdrawal will not unfairly prejudice the attorney's client(s); and

(C) A statement that the attorney has taken appropriate steps to protect the interests of the client(s) such as providing reasonable notice, allowing adequate time for the employment of another attorney, and surrendering files related to the appeal.

(ii) Effective date. A withdrawal is not effective unless the Board grants the motion to withdraw. The Board may condition or deny withdrawal to avoid prejudice to the client(s) and other parties.

§ 4.410 Briefs.

(a) Applicability. Unless otherwise ordered by the Board, the provisions of this section govern the briefing of an appeal. A party is required to seek and obtain the Board's leave to exceed the page limits, extend the time periods, file a brief not expressly provided for in this section, or otherwise depart from the requirements of this section.

(b) Statement of reasons. (1) An appellant must file a statement of reasons supporting an appeal with the Board no later than 30 days after the record on appeal is filed with the Board.

(2) The statement of reasons may not exceed 30 pages, excluding exhibits, declarations, or other attachments.

(3) The statement of reasons must set forth with specificity all legal or factual errors alleged to have been made in the decision being appealed. However, where the bureau or office provided an opportunity for participation in its decision-making process, a party may raise on appeal only those issues:

(i) Raised to the bureau or office by anyone who participated in the decision-making process; or

(ii) That arose after the close of the opportunity for such participation.

(4) All arguments in support of the appeal must be set forth in the statement of reasons. An appellant may not incorporate by reference arguments made in other documents.

(c) Answer. (1) The bureau or office may file one answer responding to a statement of reasons within 60 days after service of the statement of reasons or, if an intervenor files a brief in support of an appellant, 60 days after service of an intervenor's brief filed under paragraph (d)(1) of this section.

(2) The answer may not exceed 30 pages, excluding exhibits, declarations, or other attachments.

(3) Failure to file an answer will not result in a default.

(d) Intervenor brief. Unless otherwise ordered by the Board, the following requirements apply to an intervenor brief:

(1) An intervenor in support of an appellant may file a brief within 14 days after service of the statement of reasons.

(2) An intervenor in support of the bureau or office may file a brief within 14 days after service of the answer.

(3) An intervenor's brief may not exceed 20 pages, excluding exhibits, declarations, or other attachments.

(e) Reply brief. (1) An appellant may file one reply brief responding to an answer within 21 days after service of the answer or, if an intervenor files a brief in support of the bureau or office, within 14 days of service of an intervenor's brief filed under paragraph (d)(2) of this section.

(2) The reply brief is limited to addressing new issues raised in the answer or intervenor's brief(s).

(3) The reply brief may not exceed 20 pages, excluding exhibits, declarations, or other attachments.

(f) Sur-reply. No sur-reply may be filed unless a party first files a motion demonstrating a compelling reason to file a sur-reply and the Board grants the motion.

(g) Attachments. A party may attach exhibits, declarations, or other documents with a brief. The Board will consider the attachments to the extent the Board finds them reliable and relevant to the issues on appeal.

(h) Notices of supplemental authority. If pertinent and significant authorities come to a party's attention after the party's brief has been filed, a party may promptly advise the Board by filing a notice (with service on all parties) setting forth the citations to the authorities. The notice must state the reasons for providing the supplemental authorities and may not exceed three pages. Any response to the notice must be filed and served within 7 days and may not exceed three pages.

§ 4.411 Management of appeals.

The Board is vested with the general authority to regulate the course of appeals and the conduct of parties to ensure that appeals are resolved fairly, efficiently, and in compliance with applicable laws and orders.

§ 4.412 Affirming without opinion.

(a) Failure to file a statement of reasons. The Board may affirm without opinion a decision on appeal if the appellant has not filed a statement of reasons for the appeal within the time required in § 4.410(b) and has not otherwise included the reasons for appeal in its filings with the Board.

(b) Previous level of administrative review. Where the bureau or office has provided a level of administrative review before the appeal to the Board, or the appeal is from a decision of an ALJ, the Board may affirm without opinion the decision on appeal if the Board determines:

(1) The result reached was correct;

(2) Any errors in the decision were harmless or nonmaterial; and

(3) The issues on appeal are squarely controlled by existing Board or Federal court precedent and do not involve the application of precedent to a novel factual situation, or the factual and legal issues raised on appeal are not so substantial that the appeal warrants the issuance of a written opinion by the Board.

(c) Order affirming without opinion. When the Board affirms without opinion a decision on appeal, it will issue an order citing this section, affirming the decision on appeal, and expressly adopting the decision on appeal. The Board's order will be the final decision for the Department.

§ 4.413 Scope of review and burden to show error.

(a) Scope of review. The Board has authority to review decisions on appeal as fully and finally as might the Secretary, subject to any limitations on its authority imposed by the Secretary. The Board may at any time before issuance of its decision raise or consider any matter that it deems material, whether or not raised by the parties. The Board may affirm, modify, vacate, set aside, or reverse any decision properly brought before it for review, and may remand the matter as may be just under the circumstances.

(b) Burden to show error. Except as otherwise provided by law, the party appealing a decision of a bureau, office, or ALJ has the burden to show that an error was made.

§ 4.414 Interlocutory appeals of ALJ orders.

(a) General procedures. Permission to file an interlocutory appeal is a two-step process, requiring a party to do both of the following:

(1) File an application in accordance with § 4.122(d) asking the ALJ to certify an ALJ order, in whole or in part, for interlocutory appeal; and

(2) Within 14 days of the ALJ's ruling on the application for certification, petition the Board in accordance with § 4.122(g) for permission to file an interlocutory appeal of the ALJ's order, in whole or in part.

(b) Permission from the Board. The Board will grant permission to file an interlocutory appeal under the following circumstances:

(1) The ALJ grants certification, and the Board agrees that the ALJ's interlocutory ruling involves a controlling question of law about which there are substantial grounds for a difference of opinion and that an immediate appeal will materially advance the completion of the proceeding; or

(2) The ALJ denies certification, and the Board determines that the ALJ abused their discretion in doing so.

§ 4.415 Petition for reconsideration.

(a) Procedural requirements. Any party may petition for reconsideration of a dispositive order or decision within 60 days after the date of the order or decision. The deadline to file a petition for reconsideration cannot be extended. The petition may include a request to stay the effectiveness of the order or decision. The petition may not exceed 15 pages. The Board will not accept a petition for reconsideration of a Board order affirming without opinion the decision on appeal under § 4.412.

(b) Substantive requirements. The Board will grant the petition only in extraordinary circumstances where sufficient reason exists and will deny a petition that merely repeats arguments made in the original appeal. The petitioner must establish that one of the following reasons exists:

(1) The Board misstated a material fact, resulting in an erroneous decision. The Board's findings concerning disputed material facts do not constitute a misstatement warranting reconsideration.

(2) Evidence exists that was not before the Board at the time it issued the final decision and that demonstrates error in the decision. The petitioner must submit the evidence with the petition and explain why the evidence was not provided to the Board during the course of the appeal.

(3) The Board's decision fails to cite and address a binding statute, regulation, or decision that would require a different outcome in the decision. Disagreement with the Board's interpretation or application of the law cited in the decision does not warrant reconsideration.

(c) Responses. Any other party to the original appeal may file a response to a petition for reconsideration within 21 days after service of the petition. The response may not exceed 15 pages.

(d) Status of decision while petition is pending. A petition for reconsideration will not stay the effectiveness or affect the finality of the Board's order or decision unless so ordered by the Board for good cause. If the Board stays the effectiveness of the order or decision, then finality is deferred until the Board rules on the petition.

(e) Petition Not Required for Exhaustion. A party does not need to file a petition for reconsideration to exhaust its administrative remedies.

§ 4.416 Appeals of wildfire management decisions.

The Board must decide an appeal of a BLM decision under 43 CFR 4190.1 and 5003.1(b) within 180 days after the notice of appeal was filed. The Board may issue an expedited briefing schedule to meet this deadline. If the Board does not rule on the appeal within 180 days after the notice of appeal was filed, BLM's decision will be deemed final for the Department.

§ 4.417 Coordination with judicial review.

Upon motion or on its own initiative after notice to the parties, the Board may suspend consideration or dismiss an appeal when the decision on appeal has been challenged in Federal court.

§ 4.418 Precedential effect of decisions and orders.

The Board may dispose of an appeal by an order or a decision. Dispositive orders resolve an appeal and are binding on the parties, but they are not precedential. Non-precedential orders may be cited, but the Board is not obligated to follow or distinguish them in future appeals except when cited for the purpose of establishing res judicata, estoppel, or the law of the case. Decisions are precedential. Unless superseded or overruled, decisions may be cited as binding precedent in other appeals.

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

General Provisions

§ 4.601 What is the purpose of this subpart?

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

(b) The regulations in this subpart apply to any application for an award of attorney fees and other expenses that is:

(1) Pending on February 8, 2006; or

(2) Filed on or after February 8, 2006.

§ 4.602 What definitions apply to this subpart?

As used in this subpart:

Act means section 203(a)(1) of the Equal Access to Justice Act, Public Law 96-481, 5 U.S.C. 504, as amended.

Adjudicative officer means the deciding official(s) who presided at the adversary adjudication, or any successor official(s) assigned to decide the application.

Adversary adjudication means any of the following:

(1) An adjudication under 5 U.S.C. 554 in which the position of the Department or other agency is presented by an attorney or other representative who enters an appearance and participates in the proceeding;

(2) Any hearing conducted under section 6103(a) of the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.); or

(3) Any hearing or appeal involving the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.).

Affiliate means:

(1) Any individual, corporation, or other entity that directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant; or

(2) Any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest.

Demand means the express demand of the Department or other agency that led to the adversary adjudication, but does not include a recitation by the Department or other agency of the maximum statutory penalty:

(1) In the administrative complaint; or

(2) Elsewhere when accompanied by an express demand for a lesser amount.

Department means the Department of the Interior or the component of the Department that is a party to the adversary adjudication (e.g., Bureau of Land Management).

Final disposition means the date on which either of the following becomes final and unappealable, both within the Department and to the courts:

(1) A decision or order disposing of the merits of the proceeding; or

(2) Any other complete resolution of the proceeding, such as a settlement or voluntary dismissal.

Other agency means any agency of the United States or the component of the agency that is a party to the adversary adjudication before the Office of Hearings and Appeals, other than the Department of the Interior and its components.

Party means a party as defined in 5 U.S.C. 551(3).

Position of the Department or other agency means:

(1) The position taken by the Department or other agency in the adversary adjudication; and

(2) The action or failure to act by the Department or other agency upon which the adversary adjudication is based.

Proceeding means an adversary adjudication as defined in this section.

You means a party to an adversary adjudication.

§ 4.603 What proceedings are covered by this subpart?

(a) The Act applies to adversary adjudications conducted by the Office of Hearings and Appeals, including proceedings to modify, suspend, or revoke licenses if they are otherwise adversary adjudications.

(b) The Act does not apply to:

(1) Other hearings and appeals conducted by the Office of Hearings and Appeals, even if the Department uses procedures comparable to those in 5 U.S.C. 554 in such cases;

(2) Any proceeding in which the Department or other agency may prescribe a lawful present or future rate; or

(3) Proceedings to grant or renew licenses.

(c) If a hearing or appeal includes both matters covered by the Act and matters excluded from coverage, any award made will include only fees and expenses related to covered issues.

§ 4.604 When am I eligible for an award?

(a) To be eligible for an award of attorney fees and other expenses under the Act, you must:

(1) Be a party to the adversary adjudication for which you seek an award; and

(2) Show that you meet all conditions of eligibility in this section.

(b) You are an eligible applicant if you are any of the following:

(1) An individual with a net worth of $2 million or less;

(2) The sole owner of an unincorporated business who has a net worth of $7 million or less, including both personal and business interests, and 500 or fewer employees;

(3) A charitable or other tax-exempt organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) with 500 or fewer employees;

(4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) with 500 or fewer employees;

(5) Any other partnership, corporation, association, unit of local government, or organization with a net worth of $7 million or less and 500 or fewer employees; or

(6) For purposes of § 4.605(c), a small entity as defined in 5 U.S.C. 601(6).

(c) For the purpose of eligibility, your net worth and the number of your employees must be determined as of the date the proceeding was initiated.

(1) Your employees include all persons who regularly perform services for remuneration under your direction and control.

(2) Part-time employees must be included on a proportional basis.

(d) You are considered an “individual” rather than a “sole owner of an unincorporated business” if:

(1) You own an unincorporated business; and

(2) The issues on which you prevail are related primarily to personal interests rather than to business interests.

(e) To determine your eligibility, your net worth and the number of your employees must be aggregated with the net worth and the number of employees of all of your affiliates. However, this paragraph does not apply if the adjudicative officer determines that aggregation would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities.

(f) The adjudicative officer may determine that financial relationships other than those described in the definition of “affiliate” in § 4.602 constitute special circumstances that would make an award unjust.

(g) If you participate in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible, you are not eligible for an award.

§ 4.605 Under what circumstances may I receive an award?

(a) You may receive an award for your fees and expenses in connection with a proceeding if:

(1) You prevailed in the proceeding or in a significant and discrete substantive portion of a proceeding; and

(2) The position of the Department or other agency over which you prevailed was not substantially justified. The Department or other agency has the burden of proving that its position was substantially justified.

(b) An award will be reduced or denied if you have unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust.

(c) This paragraph applies to an adversary adjudication arising from an action by the Department or other agency to enforce compliance with a statutory or regulatory requirement:

(1) If the demand of the Department or other agency in the action is excessive and unreasonable compared with the adjudicative officer's decision, then the adjudicative officer must award you your fees and expenses related to defending against the excessive demand, unless:

(i) You have committed a willful violation of law;

(ii) You have acted in bad faith; or

(iii) Special circumstances make an award unjust.

(2) Fees and expenses awarded under this paragraph will be paid only if appropriations to cover the payment have been provided in advance.

§ 4.606 What fees and expenses may be allowed?

(a) If the criteria in §§ 4.603 through 4.605 are met, you may receive an award under this subpart only for the fees and expenses of your attorney(s) and expert witness(es).

(b) The adjudicative officer must base an award on rates customarily charged by persons engaged in the business of acting as attorneys and expert witnesses, even if the services were made available to you without charge or at a reduced rate.

(1) The maximum that can be awarded for the fee of an attorney is $125 per hour.

(2) The maximum that can be awarded for the fee of an expert witness is the highest rate at which the Department or other agency pays expert witnesses with similar expertise.

(3) An award may also include the reasonable expenses of the attorney or expert witness as a separate item, if the attorney or expert witness ordinarily charges clients separately for those expenses.

(c) The adjudicative officer may award only reasonable fees and expenses under this subpart. In determining the reasonableness of the fee for an attorney or expert witness, the adjudicative officer must consider the following:

(1) If the attorney or expert witness is in private practice, his or her customary fee for similar services;

(2) If the attorney or expert witness is your employee, the fully allocated cost of the services;

(3) The prevailing rate for similar services in the community in which the attorney or expert witness ordinarily performs services;

(4) The time actually spent in representing you in the proceeding;

(5) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and

(6) Any other factors that bear on the value of the services provided.

(d) The adjudicative officer may award the reasonable cost of any study, analysis, engineering report, test, project, or similar matter prepared on your behalf to the extent that:

(1) The charge for the service does not exceed the prevailing rate for similar services; and

(2) The study or other matter was necessary for preparation of your case.

Information Required From Applicants

§ 4.610 What information must my application for an award contain?

(a) Your application for an award of fees and expenses under the Act must:

(1) Identify you;

(2) Identify the proceeding for which an award is sought;

(3) Show that you have prevailed;

(4) Specify the position of the Department or other agency that you allege was not substantially justified;

(5) Unless you are an individual, state the number of your employees and those of all your affiliates, and describe the type and purpose of your organization or business;

(6) State the amount of fees and expenses for which you seek an award;

(7) Be signed by you or your authorized officer or attorney;

(8) Contain or be accompanied by a written verification under oath or under penalty of perjury that the information in the application is true and correct; and

(9) Unless one of the exceptions in paragraph (b) of this section applies, include a statement that:

(i) Your net worth does not exceed $2 million, if you are an individual; or

(ii) Your net worth and that of all your affiliates does not exceed $7 million in the aggregate, if you are not an individual.

(b) You do not have to submit the statement of net worth required by paragraph (a)(9) of this section if you do any of the following:

(1) Attach a copy of a ruling by the Internal Revenue Service that you qualify as a tax-exempt organization described in 26 U.S.C. 501(c)(3);

(2) Attach a statement describing the basis for your belief that you qualify under 26 U.S.C. 501(c)(3), if you are a tax-exempt organization that is not required to obtain a ruling from the Internal Revenue Service on your exempt status;

(3) State that you are a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)); or

(4) Seek fees and expenses under § 4.605(c) and provide information demonstrating that you qualify as a small entity under 5 U.S.C. 601.

(c) You may also include in your application any other matters that you wish the adjudicative officer to consider in determining whether and in what amount an award should be made.

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

(a) Unless you meet one of the criteria in § 4.610(b), you must file with your application a net worth exhibit that meets the requirements of this section. The adjudicative officer may also require that you file additional information to determine your eligibility for an award.

(b) The exhibit must show your net worth and that of any affiliates when the proceeding was initiated. The exhibit may be in any form that:

(1) Provides full disclosure of your and your affiliates' assets and liabilities; and

(2) Is sufficient to determine whether you qualify under the standards in this subpart.

(c) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, if you object to public disclosure of information in any portion of the exhibit and believe there are legal grounds for withholding it from disclosure, you may submit that portion of the exhibit directly to the adjudicative officer in a sealed envelope labeled “Confidential Financial Information,” accompanied by a motion to withhold the information from public disclosure.

(1) The motion must describe the information sought to be withheld and explain, in detail:

(i) Why it falls within one or more of the exemptions from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552(b);

(ii) Why public disclosure of the information would adversely affect you; and

(iii) Why disclosure is not required in the public interest.

(2) You must serve the net worth exhibit and motion on counsel representing the agency against which you seek an award, but you are not required to serve it on any other party to the proceeding.

(3) If the adjudicative officer finds that the information should not be withheld from disclosure, it must be placed in the public record of the proceeding. Otherwise, any request to inspect or copy the exhibit will be disposed of in accordance with the Department's procedures under the Freedom of Information Act, 43 CFR 2.7 et seq.

§ 4.612 What documentation of fees and expenses must I provide?

(a) Your application must be accompanied by full documentation of the fees and expenses for which you seek an award, including the cost of any study, analysis, engineering report, test, project, or similar matter.

(b) You must submit a separate itemized statement for each professional firm or individual whose services are covered by the application, showing:

(1) The hours spent in connection with the proceeding by each individual;

(2) A description of the specific services performed;

(3) The rates at which each fee has been computed;

(4) Any expenses for which reimbursement is sought;

(5) The total amount claimed; and

(6) The total amount paid or payable by you or by any other person or entity for the services provided.

(c) The adjudicative officer may require you to provide vouchers, receipts, logs, or other substantiation for any fees or expenses claimed, in accordance with § 4.624.

§ 4.613 When may I file an application for an award?

(a) You may file an application whenever you have prevailed in the proceeding or in a significant and discrete substantive portion of the proceeding. You must file the application no later than 30 days after the final disposition of the proceeding.

(b) Consideration of an application for an award must be stayed if:

(1) Any party seeks review or reconsideration of a decision in a proceeding in which you believe you have prevailed; or

(2) The Department or other agency (or the United States on its behalf) appeals an adversary adjudication to a court.

(c) A stay under paragraph (b)(1) of this section will continue until there has been a final disposition of the review or reconsideration of the decision. A stay under paragraph (b)(2) of this section will continue until either:

(1) A final and unreviewable decision is rendered by the court on the appeal; or

(2) The underlying merits of the case have been finally determined.

Procedures for Considering Applications

§ 4.620 How must I file and serve documents?

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

(b) A document may be electronically transmitted under the terms specified in the OHA Standing Orders on Electronic Transmission issued by the Director. When done in accordance with the Standing Orders, a document may be:

(1) Filed by electronic transmission; and

(2) Served on or transmitted to a person or party by electronic transmission if that person or party has consented to such means.

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

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

(1) Except as provided in paragraph (a)(2) of this section, failure to file an answer within the 30-day period may be treated as a consent to the award requested. In such case, the adjudicative officer will issue a decision in accordance with § 4.625 based on the record before him or her.

(2) Failure to file an answer within the 30-day period will not be treated as a consent to the award requested if the Department or other agency either:

(i) Requests an extension of time for filing; or

(ii) Files a statement of intent to negotiate under paragraph (b) of this section.

(b) If the Department or other agency and you believe that the issues in the fee application can be settled, you may jointly file a statement of intent to negotiate a settlement. Filing this statement will extend for an additional 30 days the time for filing an answer, and the adjudicative officer may grant further extensions if you and the agency counsel so request.

(c) The answer must explain in detail any objections to the award requested and identify the facts relied on to support the Department's or other agency's position. If the answer is based on any alleged facts not already in the record of the proceeding, the Department or other agency must include with the answer either supporting affidavits or a request for further proceedings under § 4.624.

§ 4.622 When may I file a reply?

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

§ 4.623 When may other parties file comments?

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

§ 4.624 When may further proceedings be held?

(a) Ordinarily, the determination of an award will be made on the basis of the written record. However, the adjudicative officer may order further proceedings, which will be held only when necessary for full and fair resolution of the issues and will be conducted as promptly as possible.

(b) The adjudicative officer may order further proceedings on his or her own initiative or in response to a request by you or by the Department or other agency. A request for further proceedings under this section must:

(1) Identify the information sought or the disputed issues; and

(2) Explain why the additional proceedings are necessary to resolve the issues.

(c) As to issues other than substantial justification (such as your eligibility or substantiation of fees and expenses), further proceedings under this section may include an informal conference, oral argument, additional written submissions, pertinent discovery, or an evidentiary hearing.

(d) The adjudicative officer will determine whether the position of the Department or other agency was substantially justified based on the administrative record of the adversary adjudication as a whole.

§ 4.625 How will my application be decided?

The adjudicative officer must issue a decision on the application promptly after completion of proceedings on the application. The decision must include written findings and conclusions on all of the following that are relevant to the decision:

(a) Your eligibility and status as a prevailing party;

(b) The amount awarded, and an explanation of the reasons for any difference between the amount requested and the amount awarded;

(c) Whether the position of the Department or other agency was substantially justified;

(d) Whether you unduly protracted the proceedings; and

(e) Whether special circumstances make an award unjust.

§ 4.626 How will an appeal from a decision be handled?

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

(b) If the adjudicative officer is a panel of appeals board judges, their decision on the application is final for the Department or other agency.

§ 4.627 May I seek judicial review of a final decision?

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

§ 4.628 How will I obtain payment of an award?

(a) To obtain payment of an award against the Department or other agency, you must submit:

(1) A copy of the final decision granting the award; and

(2) A certification that no party is seeking review of the underlying decision in the United States courts, or that the process for seeking review of the award has been completed.

(b) If the award is against the Department:

(1) You must submit the material required by paragraph (a) of this section to the following address:

Director, Office of Financial Management, Policy, Management and Budget, U.S. Department of the Interior, Washington, DC 20240.

(2) Payment will be made by electronic funds transfer whenever possible. A representative of the Department will contact you for the information the Department needs to process the electronic funds transfer.

(c) If the award is against another agency, you must submit the material required by paragraph (a) of this section to the chief financial officer or other disbursing official of that agency. Agency counsel must promptly inform you of the title and address of the appropriate official.

(d) The Department or other agency will pay the amount awarded to you within 60 days of receiving the material required by this section.

Subpart G—Rules Applicable to Proceedings before the Director

§ 4.700 Scope.

Subpart A of this part provides the authority and jurisdiction of the OHA Director, including the appointment or delegation of other OHA officials to an Ad Hoc Board of Appeals or as a hearing official. The general rules contained in subpart B of this part apply to all matters before the OHA Director unless they are inconsistent with the rules in this subpart G or other procedural rules applicable to specific types of proceedings.

§ 4.701 Who may appeal; who may request a hearing.

(a) Appeals. Any party may appeal a decision of a Departmental official when the applicable regulations or Departmental policy allow a right of appeal to the head of the Department. If the matter does not fall within the jurisdiction of a standing unit, the party must direct their appeal to the OHA Director.

(b) Hearing requests. Any party may request a hearing to contest a decision of a Departmental official when the applicable regulations or Departmental policy allow a right to request a hearing. If the matter does not fall within the jurisdiction of a Hearings Division, the party must direct their hearing request to the OHA Director.

§ 4.702 Appeals procedures.

(a) Appointment of an Ad Hoc Board of Appeals. The Director may appoint an Ad Hoc Board of Appeals to consider and decide a properly filed notice of appeal. The parties will be notified when an Ad Hoc Board has been appointed.

(b) Action on appeals. The Director or appointed Ad Hoc Board will review the record and take one of the following actions:

(1) Decide the appeal upon the Appeal file submitted according to paragraph (d) of this section or other written record before the Director or Ad Hoc Board;

(2) Refer the entire matter or specified portions for a hearing pursuant to paragraph (g) of this section; or

(3) Make other disposition of the case.

(c) Notice of appeal. The appellant must file a written notice of appeal to the Director within 30 days after receipt of the decision they seek to appeal. The notice must identify the decision being appealed, give a concise but complete statement of the relevant facts, and specify the relief sought. The appellant must serve a copy of the notice of appeal and any written arguments or briefs on each person or entity whose interest is affected and on the Departmental official whose decision is being appealed. The appellant must otherwise follow the provisions of § 4.32 regarding filing and service.

(d) Transmittal of appeal file. Within 10 days after receipt of a copy of the notice of appeal, the Departmental official whose decision is being appealed must transmit 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.

(e) Briefing. If the parties wish to file briefs, they must comply with the following requirements:

(1) An appellant has 30 days from the date of filing of their notice of appeal within which to file an opening brief.

(2) An opposing party will have 30 days from the date of receipt of an appellant's brief in which to file an answer brief.

(3) An appellant or opposing party who wishes to file additional or rebuttal briefs must first obtain permission from the Director or the Ad Hoc Appeals Board presiding over the appeal.

(f) Oral argument. Upon request and for good cause, the Director or appointed Ad Hoc Board may grant an opportunity for and conduct an oral argument. Oral arguments may be recorded, and parties may request the recording or a transcript thereof. The requesting party is responsible for any fees and expenses pursuant to § 4.23 and any applicable Standing Orders available on the Department of the Interior OHA website at https://www.doi.gov/oha.

(g) Referrals for hearing. The Director or appointed Ad Hoc Board may refer an appeal to an ALJ or other presiding officer for a hearing pursuant to this section.

§ 4.703 Hearings procedures.

(a) Appointment of hearing official. The Director may appoint a presiding officer to consider a hearing referral or a properly filed hearing request and conduct a hearing. The appointed presiding officer will be an ALJ for any matter where a formal hearing is required under the Administrative Procedure Act, 5 U.S.C. 554, or other statute. For all other hearings, the Director may appoint an ALJ or other presiding officer.

(b) Action on hearing requests. The Director or presiding officer will review the record and take one of the following actions:

(1) Conduct a hearing on the basis of the record pursuant to paragraph (d) of this section;

(2) Schedule and conduct a hearing and any necessary prehearing procedures as appropriate and necessary to resolve the matter; or,

(3) Make other disposition of the case.

(c) General procedures. All hearings may be governed as appropriate and practicable by subpart C of this part, except where specific rules or other hearing procedures are provided by law or regulation.

(d) Hearings based on the record. The Director or presiding officer may conduct a hearing on the basis of the written record if permitted by the regulation giving rise to the hearing right, and when the Director or presiding officer determines that the written record is sufficient to resolve the factual disputes raised in the hearing request.

(e) Administrative Wage Garnishment Hearings. Administrative Wage Garnishment hearings are governed by 31 CFR 285.11, and any applicable OHA Standing Orders.

(f) National Indian Gaming Commission appeals. In those matters where the National Indian Gaming Commission (NIGC) requests that the Director provide a presiding official under 25 CFR 584.6, the Director will appoint an OHA official to conduct a hearing and issue a recommended decision.

§ 4.704 Reconsideration.

Unless otherwise provided by regulation, reconsideration of a decision may be granted only in extraordinary circumstances and upon a finding of sufficient reasons by the Director or a presiding officer appointed by them. Requests for reconsideration must specify the purported error and must be filed within 15 days of the date of the decision, or the specific deadline provided in the regulations relating to the particular type of proceeding. The filing of a request for reconsideration will not stay the effectiveness of a decision unless ordered by the Director or appointed Ad Hoc Board or presiding officer or otherwise provided by statute or regulation. A request for reconsideration need not be filed to exhaust administrative remedies unless otherwise provided by statute or regulation.

§ 4.705 Department of the Interior employee matters.

The Director may appoint an Ad Hoc Board or presiding officer to conduct proceedings in matters where the Departmental Manual or other Department policy grants a right of direct or appellate review to current or former Department of the Interior employees or their survivors. Rules on practice and procedure applying to employee matters may be published in OHA Standing Orders.

Subpart H—Specific Rules Applicable to White Earth Reservation Land Settlement Act Proceedings

General Provisions

§ 4.710 What is this subpart's authority and scope?

This subpart contains the rules and procedures that apply to the process for determining the heirs of any person who dies 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), Public Law 100-212 (101 Stat. 1443), Public Law 101-301 (104 Stat. 210), and Public Law 103-263 (103 Stat. 707). See subparts A and B of this part for the authority and jurisdiction of presiding officers and the Board of Indian Appeals, Office of Hearings and Appeals, and the rules generally applicable to proceedings before them. See §§ 4.310 through 4.318 for general rules applicable to proceedings before the Board of Indian Appeals.

§ 4.711 To what extent do other regulations and OHA Standing Orders apply?

(a) Subparts A and B. The general rules contained in subparts A and B of this part apply to the determination process unless they are inconsistent with the rules in this subpart or the rules in those subparts provide otherwise.

(b) 43 CFR part 30. Although the rules in 43 CFR part 30 do not apply to the determination process, the rules in subparts H and J of 43 CFR part 30 and in 43 CFR 30.124 may serve as guidance unless they are inconsistent with the rules in this subpart.

(c) 43 CFR 4.310-4.318. The general rules in §§ 4.310 through 4.318 of this part apply to appeals to the Interior Board of Indian Appeals under this subpart unless they are inconsistent with the rules in this subpart.

(d) OHA Standing Orders. The OHA Standing Order on WELSA Proceedings issued by the OHA Director applies to the determination process. OHA Standing Orders are available on the Department of the Interior OHA website, at https://www.doi.gov/oha.

§ 4.712 What definitions apply to this subpart?

In addition to the definitions in subpart A of this part, the following definitions apply to this subpart:

Act means the White Earth Reservation Land Settlement Act of 1985, as amended.

Board means OHA's Board of Indian Appeals.

Compensation means a monetary sum, as determined by the Project Director pursuant to section 8(c) of the Act.

Decedent means a person who died entitled to receive compensation under the Act.

Determination process means the legal process established in this subpart for determining distribution of a decedent's estate.

Estate means the compensation due a decedent under the Act.

Final decision means a written document issued by the presiding officer under § 4.744 or § 4.745(a) that finally determines a decedent's heirs and each heir's share of the estate and directs distribution of the estate.

Heir means any individual eligible to receive a share of the estate pursuant to the Minnesota inheritance laws of intestate succession in effect on March 26, 1986.

Party (parties) in interest means any potential or actual heir of a decedent, or of any subsequently deceased potential or actual heir of a decedent.

Preliminary decision means a written non-final document issued by the presiding officer under § 4.732(c) that preliminarily determines a decedent's heirs and each heir's share of the estate.

Presiding officer means a judge, attorney advisor, or other appropriate official to whom the OHA Director has delegated the authority for making heirship determinations as provided for in this subpart.

Project Director means the Superintendent of the Minnesota Agency, Bureau of Indian Affairs, another Bureau of Indian Affairs official with delegated authority to serve as the Federal officer in charge of the WELSA Project, or a person in charge of that project pursuant to authority derived from a contract executed under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 5321-5332.

§ 4.713 What law governs the determination of heirs?

As directed by the Act, the presiding officer will determine a decedent's heirs under the Minnesota inheritance laws of intestate succession in effect on March 26, 1986, even though the decedent may have died with a valid will.

§ 4.714 What authority does the presiding officer have during the determination process?

The presiding officer has the authority to conduct the determination process in an orderly and judicial manner, including the authority to:

(a) Determine the manner, location, and time of any hearing conducted under this subpart, and otherwise administer the case;

(b) Determine whether an individual is deemed deceased by reason of extended unexplained absence or other pertinent circumstance;

(c) Accept or reject any full or partial renunciation of interest;

(d) Determine the heirs of a decedent and each heir's share of the estate;

(e) Order the distribution of the estate to a decedent's heirs and determine and reserve the share to which any potential heir who is missing but not found to be deceased is entitled;

(f) Issue subpoenas for the appearance of persons, the testimony of witnesses, and the production of documents at hearings or depositions on the judge's own initiative or if requested by the Project Director or a party in interest and approved by the presiding officer;

(g) Administer oaths and affirmations;

(h) Issue discovery orders including those:

(1) Ordering the taking of depositions and determining the scope and use of deposition testimony;

(2) Ordering the production of documents and determining the scope and use of the documents; or

(3) Ruling on matters involving interrogatories and any other requests for discovery;

(i) Grant or deny stays, waivers, and extensions;

(j) Rule on motions, requests, and objections;

(k) Rule on the admissibility of evidence;

(l) Permit the cross-examination of witnesses;

(m) Appoint a guardian ad litem for any party in interest who is a minor or found by the presiding officer not to be competent to represent their own interests in accordance with § 4.715;

(n) Ask the Project Director to file additional evidence;

(o) Dismiss a case and return the case file to the Project Director if the presiding officer determines that the evidence provided by the Project Director under §§ 4.730(a) and 4.731 is incomplete;

(p) Regulate the course of any hearing and the conduct of witnesses, parties in interest, attorneys, and attendees at a hearing; and

(q) Take any action necessary to preserve the estate.

§ 4.715 How may minors or other legal incompetents be represented?

Minors and other legal incompetents who are parties in interest may be represented by legally appointed guardians, or by guardians ad litem appointed by the presiding officer.

Filing and Issuance

§ 4.720 Where and how must documents be filed with the presiding officer?

(a) General. A document required or permitted to be filed with the presiding officer must be delivered to the presiding officer as specified in this subpart and the OHA Standing Order on WELSA Proceedings.

(b) Methods of filing—(1) Electronic. A document may be filed electronically under the terms specified in the OHA Standing Order on WELSA Proceedings. The Project Director, or any attorney representing a person or entity, must file electronically, unless otherwise specified in the OHA Standing Order on WELSA Proceedings or when the presiding officer has allowed non-electronic filing for good cause.

(2) Non-electronic. Any document filed non-electronically must be delivered to the presiding officer at the address specified in the OHA Standing Order on WELSA Proceedings.

§ 4.721 When is a filing with the presiding officer timely?

(a) Electronic. A document filed electronically is deemed timely if filed by 11:59 p.m. Central Time on the date the document is due under the terms specified in the OHA Standing Order on WELSA Proceedings.

(b) Non-electronic. A document not filed electronically is deemed timely if, on or before the last day for filing, it is sent by first-class United States mail, or other class of mail that is at least as expeditious, postage prepaid; or it is dispatched to a commercial courier for delivery within 3 days. The date of mailing or dispatch must be documented by a postmark date, acceptance scan, receipt, or similar written acknowledgement from the company delivering the document for filing. A document not received within 7 business days of the filing deadline is presumed untimely, but the presumption may be overcome by the documentation establishing the date of mailing or dispatch.

§ 4.722 To whom will a presiding officer issue a notice, order, or decision?

The presiding officer will issue a notice, order, or decision to each party in interest and the Project Director.

§ 4.723 By what means may the presiding officer issue a notice, order, or decision?

(a) Electronic. A presiding officer's notice, order, or decision may be issued electronically under the terms specified in the OHA Standing Order on WELSA Proceedings.

(b) Non-electronic. A presiding officer's notice, order, or decision may be issued non-electronically by U.S. mail or commercial courier to the Project Director or a party in interest using their record address as provided under § 4.22(b) or, if not provided, their last known mailing address.

§ 4.724 How will issuance of a presiding officer's notice, order, or decision be documented?

A presiding officer's notice, order, or decision must include the date on which it is issued, the names of the persons to whom it is issued, and the method of issuance.

Commencement of Determination Process

§ 4.730 How does the Project Director commence the determination process?

Unless an heirship determination which is recognized by the Act already exists, the Project Director will commence the process of determining the heirs of a decedent by filing with the presiding officer the evidence described in § 4.731.

§ 4.731 What evidence must the Project Director file with the presiding officer?

The Project Director must file with the presiding officer sufficient evidence to enable the presiding officer to determine a decedent's heirs under the Act. That evidence must include:

(a)(1) A copy of the decedent's death certificate if one exists; or

(2) 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; or

(3) If there is no death certificate and no other form of official written evidence, then a secondary form 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;

(b) A document containing information for heirship finding and family history, including:

(1) The facts and alleged facts of:

(i) The decedent's marriages, separations, and divorces; and

(ii) Whether the relationships of decedent's potential heirs and other known parties in interest arose by marriage, blood, or adoption;

(2) The names and last known addresses of decedent's potential heirs and other known parties in interest; and

(3) Other relevant information regarding the parties in interest, including dates of births and deaths;

(c) A certification by the Project Director or their designee that the information required in paragraph (b)(2) of this section was filed after having made a reasonable and diligent search;

(d) A copy of each document evidencing the information required in paragraphs (b)(1) and (3) of this section, such as marriage licenses and certificates, divorce and adoption decrees, birth and death certificates, and affidavits or adjudications of paternity;

(e) Known and relevant determinations of heirs of relatives of the decedent, including those recognized as effective under section 5(a) of the Act and those rendered by courts of Minnesota or other States, by tribal courts, or by tribunals authorized by the laws of other countries; and

(f) 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 the compensation containing:

(1) Its real property origins and the succession of the compensation to the decedent; and

(2) All of the intervening heirs under the Act, their fractional shares, and the amount of compensation attributed to each of them.

§ 4.732 What will the presiding officer do after receiving the evidence filed by the Project Director?

(a) After the presiding officer receives and reviews the evidence filed by the Project Director, the presiding officer will determine whether there are any apparent issues of fact to be resolved.

(b) To resolve any apparent issues of fact, the presiding officer may do one or more of the following:

(1) Request information from the Project Director, parties in interest, or other persons or entities;

(2) Schedule and hold a prehearing conference;

(3) Schedule and hold a hearing; or

(4) Take any other action authorized by this subpart.

(c) If the presiding officer does not hold a hearing, they will issue a preliminary decision determining the decedent's heirs.

(d) If the presiding officer does hold a hearing, they may issue a final decision determining the decedent's heirs without first issuing a preliminary decision.

Preliminary Decision—Content, Notification, Objections

§ 4.740 What will a preliminary decision include?

If the presiding officer issues a preliminary decision, the decision will include each heir's name, birth date, relationship to the decedent, and share of the estate, or a statement that the decedent died without heirs.

§ 4.741 How will notification of the preliminary decision be provided?

(a) The presiding officer will issue a notice of preliminary decision on the same day they issue a preliminary decision. The notice will inform the Project Director and parties in interest of their right to file with the presiding officer an objection to the preliminary decision, with or without a request for hearing, within 40 days of the date of issuance of the notice.

(b) The Project Director:

(1) Will ensure that the notice is posted at the following entities, whose addresses are specified in the OHA Standing Order on WELSA Proceedings:

(i) The White Earth Band of the Minnesota Chippewa Tribe; and

(ii) Minnesota Agency, Bureau of Indian Affairs; and

(2) Has the discretion to identify additional appropriate locations where the notice will be posted and the addresses of those locations will be specified in the OHA Standing Order on WELSA Proceedings.

(c) The postings of the notice must occur within 7 days of the Project Director's receipt of the notice.

§ 4.742 What evidence of posting of the notice of preliminary decision must be filed with the presiding officer?

(a) The Project Director will prepare a signed certificate of transmission stating when the notice of the preliminary decision was transmitted for posting, and to which locations it will be posted.

(b) Each person at these locations who posts the notice must:

(1) Prepare and sign a posting certificate stating the date and place of posting; and

(2) Transmit the certificate to the Project Director.

(c) The Project Director must file with the presiding officer the Project Director's certificate and each posting certificate transmitted to the Project Director under paragraph (b) of this section.

§ 4.743 What are the filing requirements for objecting to a preliminary decision and requesting a hearing?

(a) The Project Director or any party in interest may file with the presiding officer a written objection to a preliminary decision within 40 days after the date of issuance of the notice of preliminary decision.

(b) The objection must allege an error of fact or law in the preliminary decision and state specifically and concisely the grounds on which the objection is based.

(c) The objection may include a request for hearing, which must set forth any disputed issues of fact.

§ 4.744 What happens if no timely objection to the preliminary decision is filed?

If no written objection to a preliminary decision is timely filed in accordance with § 4.743(a), the presiding officer will issue a final decision.

§ 4.745 What happens if an objection to the preliminary decision is filed?

(a) General. If a written objection to a preliminary decision is filed with the presiding officer before the final decision is issued, they may take any action listed in § 4.732(b) to resolve any issues of fact and will issue a final decision that includes a resolution of the objection.

(b) Denial without opportunity to respond. The presiding officer may deny the objection without providing the Project Director and the parties in interest with an opportunity to respond to the objection, if the objection:

(1) Is not timely filed;

(2) Alleges mere disagreement with the preliminary decision; or

(3) Otherwise fails to assert proper grounds for objecting, as determined by the presiding officer.

(c) Consideration after opportunity to respond. If the presiding officer does not deny the objection under paragraph (b) of this section, the presiding officer will:

(1) Issue a notice allowing the Project Director and the parties in interest a reasonable, specified time in which to file a written response to the objection;

(2) Issue with the notice, a copy of the objection and all papers filed by the objector; and

(3) Consider, with or without a hearing, the issues raised in the objection, including any request for hearing, and in any written responses to the objection.

Final Decision and Lodging of Record

§ 4.750 What must the final decision determining decedent's heirs contain?

(a) The final decision must contain:

(1) Each heir's name, birth date, relationship to the decedent, and share of the estate, or a statement that the decedent died without heirs, and this information may be incorporated into the final decision from the preliminary decision if no timely objection to the preliminary decision was filed or if otherwise appropriate; and

(2) A notice that any party in interest who is adversely affected by the final decision, as well as the Project Director, have a right to file a petition for reconsideration with the presiding officer or an appeal with the Board within 30 days of the date of issuance of the final decision.

(b) If an objection to the preliminary decision is filed before the final decision is issued, the final decision must also resolve the objection and set forth the reasons for the resolution.

§ 4.751 What happens to the determination process record and what must it include?

(a) After issuance of the final decision and any order upon reconsideration, the presiding officer must lodge the original record of the determination process with the Project Director.

(b) The record must contain, where applicable, the following materials:

(1) A copy of the posted notice of preliminary decision, the Project Director's certificate of transmission of the notice for posting, and the posting certificates;

(2) A copy of each notice, order, or decision issued to the parties in interest or Project Director;

(3) The record of evidence received, including any transcript made of testimony;

(4) Information for heirship finding and family history, and information supplementary thereto; and

(5) Any other material or documents deemed relevant by the presiding officer.

Reconsideration of Final Decision

§ 4.760 How can a final decision be challenged?

A party in interest adversely affected by a final decision, or the Project Director, may file either a petition for reconsideration with the presiding officer or an appeal with the Board under § 4.783, but not both.

§ 4.761 What are the requirements for filing a petition for reconsideration?

(a) Deadline to file. A petition for reconsideration must be filed with the presiding officer within 30 days after the date of issuance of the final decision.

(b) Petition content. (1) A petition for reconsideration must allege a substantive error of fact or law in the final decision and must state specifically and concisely the grounds on which the petition is based.

(2) If the petition is based on evidence newly discovered after, or evidence that was unavailable before, issuance of the final decision, the petition must:

(i) Be accompanied by documentation of that evidence, including, but not limited to, one or more affidavits of a witness stating fully the content of the new evidence; and

(ii) State the reasons for failure to discover and present that evidence before that date.

§ 4.762 Does any distribution of the estate occur while a petition for reconsideration is pending?

The Project Director must not initiate distribution of any portion of the estate while the petition for reconsideration is pending. If the petition is filed by a party in interest and not the Project Director, the presiding officer will issue a notice of receipt of the petition to the Project Director as soon as practicable.

§ 4.763 How will the presiding officer decide a petition for reconsideration?

(a) General. The presiding officer may take any action listed in § 4.732(b) to resolve any issues of fact and will issue an order upon reconsideration resolving the petition.

(b) Denial without opportunity to respond. The presiding officer may deny the petition without providing the Project Director and the parties in interest with an opportunity to respond to the petition, if the petition:

(1) Is not timely filed;

(2) Is based on newly discovered evidence and fails to meet the requirements of § 4.761(b)(2);

(3) Is based solely on issues raised for the first time on reconsideration;

(4) Alleges mere disagreement with the final decision; or

(5) Otherwise fails to assert proper grounds for reconsideration, as determined by the presiding officer.

(c) Consideration after opportunity to respond. If the presiding officer does not deny the petition under paragraph (b) of this section, the presiding officer will:

(1) Issue a notice allowing the Project Director and the parties in interest a reasonable, specified time in which to file a written response to the petition;

(2) Issue with the notice, a copy of the petition and all papers filed by the petitioner; and

(3) Consider, with or without a hearing, the issues raised in the petition and in any written responses to the petition.

§ 4.764 What will the order upon reconsideration contain?

In the order upon reconsideration, the presiding officer may deny the petition in accordance with § 4.763(b) or affirm, modify, or vacate the final decision; and must:

(a) Set forth the reasons for doing so; and

(b) Include a notice stating that any party in interest who is adversely affected by the order upon reconsideration, as well as the Project Director, have the right to appeal the order to the Board within 30 days of the date of issuance of the order.

§ 4.765 How can an order upon reconsideration be challenged?

(a) An order upon reconsideration may be appealed to the Board as provided in § 4.783 of this subpart.

(b) No person or entity may file successive petitions for reconsideration in the same case.

Reopening of Closed Case and Correction of Errors

§ 4.770 What are the methods and standards for reopening a closed case?

(a) General. The presiding officer may reopen a closed case to correct an error of fact or law in a final decision, including any modification of the final decision.

(b) Methods. (1) A party in interest adversely affected by a final decision, or the Project Director, may seek correction of an error of fact or law by filing a petition for reopening with the presiding officer.

(2) The presiding officer may reopen a case on their own initiative if they become aware of sufficient evidence to justify correction of an error.

(c) Standards. The presiding officer may reopen a closed case:

(1) If the error is discovered more than 30 days after the date of issuance of the final decision; and

(2) If the petition for reopening is filed or the presiding officer reopens the case on their own initiative:

(i) Within 3 years or less of the date of issuance of the final decision; or

(ii) More than 3 years after the date of issuance of the final decision if the presiding officer finds that the need to correct the error outweighs the interests of the public and heirs in the finality of the final decision.

§ 4.771 When must a petition for reopening be filed?

(a) The Project Director may file a petition at any time. All other petitioners must file their petition within one year after the petitioner discovers the alleged error.

(b) If the petitioner files their petition for reopening before the deadline for filing a petition for reconsideration under § 4.761(a), it will be treated as a petition for reconsideration.

§ 4.772 What must be included in a petition for reopening?

(a) A petition for reopening must:

(1) State specifically and concisely the grounds on which the petition is based and the relief requested; and

(2) Append all relevant documentary evidence, including any sworn affidavits, supporting the allegations and relief requested in the petition.

(b) A petition filed by a party in interest must also:

(1) State in the petition the date the petitioner discovered the alleged error; and

(2) Append all relevant documentary evidence, including any sworn affidavits, concerning when and how the petitioner discovered the alleged error.

(c) A petition filed more than 3 years after the date of issuance of the final decision must also show that the need to correct the error outweighs the interests of the public and heirs in the finality of the final decision, which may be shown by addressing the following factors in the petition, as applicable:

(1) The nature of the error;

(2) The passage of time;

(3) Whether the petitioner exercised due diligence in pursuing their rights;

(4) Whether the petitioner's ancestor exercised due diligence in pursuing their rights and whether a failure to exercise should be imputed to the petitioner;

(5) The availability of witnesses and documents;

(6) The general interest in administrative finality;

(7) The number of other estates that would be affected by the reopening, if known; and

(8) Whether the property that was in the estate is still available for redistribution if the case is reopened, if known.

§ 4.773 What is not appropriate for a petition for reopening?

In a petition for reopening, the petitioner may not:

(a) Raise issues or objections that were previously addressed in an order issued in the case;

(b) Submit evidence that was available or discoverable at the time the final decision was issued, or available during any period of reconsideration of the final decision. The requirements at § 4.761(b)(2) concerning presentation of new evidence upon reconsideration also apply to the presentation of new evidence on reopening; or

(c) Raise issues or objections when the petitioner had the opportunity to raise them earlier because the petitioner received proper notice of the preliminary decision or hearing, if any. This paragraph does not apply to the Project Director.

§ 4.774 How will the presiding officer decide a petition for reopening?

(a) General. The presiding officer may take any action listed in § 4.732(b) to resolve any issues of fact and will issue an order upon reopening resolving the petition.

(b) Denial without opportunity to respond. The presiding officer may deny the petition without providing the Project Director and the parties in interest with an opportunity to respond to the petition, if the petition:

(1) Does not meet the standards set forth at § 4.770(c);

(2) Alleges mere disagreement with a final decision;

(3) Raises issues that were previously addressed in an order issued in the case;

(4) Raises only issues or objections for the first time on reopening and the petitioner is a party in interest who received proper notice of the preliminary decision or of any hearing;

(5) Is based on newly discovered evidence and fails to meet the requirements of § 4.761(b)(2); or

(6) Otherwise fails to assert proper grounds for reopening, as determined by the presiding officer.

(c) Consideration after opportunity to respond. If the presiding officer does not deny the petition under paragraph (b) of this section, the presiding officer will:

(1) Issue a notice allowing the Project Director and the parties in interest a reasonable, specified time in which to file a written response to the petition;

(2) Issue with the notice, a copy of the petition and all papers filed by the petitioner;

(3) Suspend further distribution of the estate during the reopening proceedings, if appropriate, by order to the Project Director; and

(4) Consider, with or without a hearing, the issues raised in the petition.

§ 4.775 How will the presiding officer decide a case reopened on their own initiative?

When a presiding officer reopens a case on their own initiative to correct an error in a final decision, they will:

(a) Issue a notice which must:

(1) Identify the error and explain how the presiding officer intends to modify the final decision to correct the error; and

(2) Allow the Project Director and the parties in interest a reasonable, specified time in which to file a written response to the notice;

(b) Suspend further distribution of the estate during the reopening proceedings, if appropriate, by order to the Project Director; and

(c) Consider, with or without a hearing, the issues raised by any timely written response to the notice and issue an order upon reopening.

§ 4.776 What will the order upon reopening contain?

In the order upon reopening, the presiding officer may deny the petition for reopening, if any, in accordance with § 4.774(b) or affirm, modify, or vacate the final decision; and must:

(a) Set forth the reasons for doing so; and

(b) Include a notice stating that any party in interest who is adversely affected by the order upon reopening, as well as the Project Director, have the right to appeal the order to the Board within 30 days of the date of issuance of the order.

§ 4.777 What happens to the record after the presiding officer issues an order upon reopening?

After the presiding officer issues an order upon reopening, they must submit the record made on reopening to the Project Director.

§ 4.778 What are non-substantive errors in an order or decision and how may they be corrected?

(a) Errors are non-substantive if they are merely typographical, clerical, or their correction would not change the distribution of a decedent's property.

(b) If, after issuance of an order or decision, it appears that the order or decision contains non-substantive errors, the presiding officer may issue a correction order to the Project Director and the parties in interest correcting them.

(c) The presiding officer may issue a correction order on their own initiative. The Project Director and the parties in interest may also file a request for a correction order at any time.

(d) The correction order is not subject to appeal to the Board.

Finality and Appeal of Final Decision and Orders

§ 4.780 When will the final decision and orders upon reconsideration, reopening, or remand become final?

(a) A final decision will become final on the expiration of the 30 days allowed for filing a notice of appeal with the Board under § 4.783(a) or a petition for reconsideration with the presiding officer under § 4.761(a) unless a notice of appeal or a petition for reconsideration is timely filed.

(b) Each of the following orders will become final on the expiration of the 30 days allowed for filing a notice of appeal with the Board under § 4.783(a) unless a notice of appeal is timely filed:

(1) An order upon reconsideration issued under § 4.763(a);

(2) An order upon reopening issued under § 4.774(a) or § 4.775(c); and

(3) An order upon remand issued under § 4.790(b).

§ 4.781 Which presiding officer decisions or orders may be appealed and who may appeal them?

Any of the following decisions or orders of the presiding officer may be appealed to the Board by the Project Director and by any party in interest who is adversely affected by that decision or order:

(a) A final decision;

(b) An order upon reconsideration issued under § 4.763(a);

(c) An order upon reopening issued under § 4.774(a) or § 4.775(c); or

(d) An order upon remand issued under § 4.790(b).

§ 4.782 What happens if a petition for reconsideration and a notice of appeal are timely filed?

If a petition for reconsideration is timely filed with the presiding officer and a notice of appeal is timely filed with the Board, the Board will dismiss the appeal without prejudice and the presiding officer will issue an order upon reconsideration.

§ 4.783 When and how may a presiding officer's decision or order be appealed?

(a) When. (1) A person wishing to appeal a presiding officer's decision or order listed in § 4.781 must file a written notice of appeal with the Board in accordance with § 4.310 within 30 days of the date of issuance of the decision or order. The Board will dismiss any appeal not filed by this deadline.

(2) Within 30 days after filing the notice of appeal, the appellant must also file with the Board, in accordance with § 4.310, a statement of reasons why the presiding officer's decision or order is in error.

(b) How. Both the notice of appeal and statement of reasons must be signed by the appellant, the appellant's attorney, or other qualified representative as provided in 43 CFR 1.3 of this subtitle, and must be filed with the Board by electronic transmission, mail, commercial courier, or hand delivery, in accordance with § 4.310(b).

§ 4.784 What are the requirements for serving the notice of appeal and statement of reasons?

(a) The appellant must serve a copy of the notice of appeal and the statement of reasons on the Project Director and on the presiding officer whose decision or order is being appealed in accordance with the methods identified in § 4.310(d).

(b) The notice of appeal and the statement of reasons filed with the Board must include a certification that service was made as required by this section.

§ 4.785 When will the determination process record be forwarded to the Board?

The Project Director will ensure that the determination process record is expeditiously forwarded to the Board.

§ 4.786 What actions may the Board take to resolve a timely appeal?

(a) If the Board finds that the appellant has set forth sufficient reasons for questioning the presiding officer's decision or order, the Board will issue an order giving all parties in interest an opportunity to respond, following which a decision will be issued.

(b) If the Board finds that the appellant has not set forth sufficient reasons for questioning the presiding officer's decision or order, the Board may issue a decision on the appeal without further briefing.

(c) The Board may issue a decision affirming, reversing, modifying, or vacating the presiding officer's decision or order. If the Board vacates the presiding officer's decision or order, the case will be remanded to the appropriate presiding officer for reconsideration, hearing, or both.

§ 4.787 What happens to the record after disposition?

The record filed with the Board under § 4.785 and all documents added during the appeal proceeding, including the Board's decision, must be forwarded to:

(a) The presiding officer after the Board makes a decision remanding the case to the presiding officer, or

(b) The Project Director if the Board makes a decision other than a remand.

Procedures After Board Remand

§ 4.790 What happens if the Board remands the case to the presiding officer?

If the Board issues a decision remanding a case to the presiding officer, the presiding officer:

(a) May, subject to any directions or restrictions in the Board's decision and § 4.315, do one or more of the following to resolve any issues of fact or law:

(1) Request information from the Project Director and the parties in interest or other persons or entities;

(2) Schedule and hold a prehearing conference;

(3) Schedule and hold a hearing; or

(4) Take any other action authorized by this subpart; and

(b) Will issue an order upon remand determining the issues of fact or law.

§ 4.791 What will the order upon remand contain?

In the order upon remand, the presiding officer will resolve the issues of fact or law and must:

(a) Set forth the reasons for doing so; and

(b) Include a notice stating that any party in interest who is adversely affected by the order upon remand, as well as the Project Director have the right to appeal the order to the Board within 30 days of the date of issuance of the order.

§ 4.792 What happens to the record after the presiding officer issues an order upon remand?

After the presiding officer issues an order upon remand, they must submit the record made upon remand to the Project Director.

Subpart I— Specific Rules Applicable to Proceedings Under Part 17—Nondiscrimination of Federally Assisted Programs

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

§ 4.800 Scope and construction of rules.

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

(b) These regulations shall be liberally construed to secure the just, prompt, and inexpensive determination of all proceedings consistent with adequate consideration of the issues involved and full protection of the rights of all interested parties including the Government.

§ 4.801 Suspension of rules.

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

§ 4.802 Definitions.

(a) The definitions set forth in § 17.12 of this title apply also to this subpart.

(b) Director means the Director, Office for Equal Opportunity, Department of the Interior.

(c) Administrative law judge means an administrative law judge designated by the Office of Hearings and Appeals, Office of the Secretary, in accordance with 5 U.S.C. 3105 and 3344.

(d) Notice means a notice of hearing in a proceeding instituted under Part 17 of this title and these regulations.

(e) Party means a recipient or applicant; the Director; and any person or organization participating in a proceeding pursuant to § 4.808.

§ 4.803 Computation of time.

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

§ 4.804 Extensions of time.

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

§ 4.805 Reduction of time to file documents.

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

Designation and Responsibilities of Administrative Law Judge

§ 4.806 Designation.

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

§ 4.807 Authority and responsibilities.

The administrative law judge shall have all powers necessary to preside over the parties and the proceedings, conduct the hearing, and make decisions in accordance with 5 U.S.C. 554 through 557. The administrative law judge's 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 them.

(e) Regulate the course of the hearing, the conduct of counsel, parties, witnesses, and other participants.

(f) Administer oaths, call witnesses on the administrative law judge's 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 the administrative law judge.

(i) Take any action authorized by these regulations, by 5 U.S.C. 556, or by other pertinent law.

Appearance and Practice

§ 4.808 Participation by a party.

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

§ 4.809 Determination of parties.

(a) The affected applicant or recipient to whom a notice of hearing or a notice of an opportunity for hearing has been mailed in accordance with part 17 of this title and § 4.815, and the Director, are the initial parties to the proceeding.

(b) Other persons or organizations shall have the right to participate as parties if the final decision could directly and adversely affect them or the class they represent, and if they may contribute materially to the disposition of the proceedings.

(c) A person or organization wishing to participate as a party under this section shall submit a petition to the administrative law judge within 15 days after the notice has been served. The petition should be filed with the administrative law judge and served on the affected applicant or recipient, on the Director, and on any other person or organization who has been made a party at the time of filing. Such petition shall concisely state:

(1) Petitioner's interest in the proceeding,

(2) How petitioner's 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. The administrative law judge 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 the administrative law judge 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 their petition. If the petition is denied, the administrative law judge shall briefly state the grounds for denial and shall then treat the petition as a request for participation as amicus curiae. The administrative law judge shall give written notice to each party of each petition granted.

(e) Persons or organizations whose petition for party participation is denied may appeal the decision to the Director, Office of Hearings and Appeals, within 7 days of receipt of denial. The Director, Office of Hearings and Appeals, will make the final decision for the Department to grant or deny the petition.

§ 4.810 Complainants not parties.

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

§ 4.811 Determination and participation of amici.

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

(b) The administrative law judge will grant the petition if the administrative law judge 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 the 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. An amicus curiae 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. The amicus curiae's brief or written statement must be filed and served on each party within the time limits applicable to the party whose position the amicus curiae supports; or if the amicus curiae does not 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 has discretion to grant any such request if the administrative law judge believes the proposed additional testimony may assist materially in elucidating factual matters at issue between the parties without expanding the issues.

Form and Filing of Documents

§ 4.812 Form.

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

§ 4.813 Filing and service.

(a) All documents submitted in a proceeding shall be served on all parties. The original and two copies of each document shall be submitted for filing. Filings shall be made with the administrative law judge or other appropriate Departmental official before whom the proceeding is pending. With respect to exhibits and transcripts of testimony, only originals need be filed.

(b) Service upon a party or amicus shall be made by delivering one copy of each document requiring service in person or by certified mail, return receipt requested, properly addressed with postage prepaid, to the party or amicus or their attorney, or designated representative. Filing will be made in person or by certified mail, return receipt requested, to the administrative law judge or other appropriate Departmental official before whom the proceeding is pending.

(c) The date of filing or of service shall be the day when the matter is deposited in the U.S. mail or is delivered in person.

(d) A document may be electronically transmitted under the terms specified in § 4.22, subpart B.

§ 4.814 Certificate of service.

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

Procedures

§ 4.815 How proceedings are commenced.

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

§ 4.816 Notice of hearing and response thereto.

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

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

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

§ 4.818 Answer.

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

§ 4.819 Amendment of notice or answer.

The Director may amend the notice of hearing or opportunity for hearing once as a matter of course before an answer is filed, and each respondent may amend their 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 the respondent's original answer. Other amendments of the notice or of the answer to the notice shall be made only by leave of the administrative law judge. An amended notice shall be answered within 10 days of its service, or within the time for filing an answer to the original notice, whichever period is longer.

§ 4.820 Consolidated or joint hearings.

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

§ 4.821 Motions.

(a) Motions and petitions must state the relief sought, the basis for relief and the authority relied upon. If made before or after the hearing itself, these matters must 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.

(b) Within 8 days after a written motion or petition is served, any party may file a response to a motion or petition. An immediate oral response may be made to an oral motion. Oral argument on motions will be at the discretion of the administrative law judge.

§ 4.822 Disposition of motions.

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

§ 4.823 Interlocutory appeals.

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

§ 4.824 Exhibits.

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

§ 4.825 Admissions as to facts and documents.

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

§ 4.826 Discovery.

(a) Methods. Parties may obtain discovery as provided in these rules by depositions, written interrogatories, production of documents, or other items; or by permission to enter property, for inspection and other purposes.

(b) Scope. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the hearing.

(c) Protective orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the administrative law judge may make any order which justice requires to limit or condition discovery in order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.

(d) Sequence and timing. Methods of discovery may be used in any sequence. The fact that a party is conducting discovery shall not operate to delay any other party's discovery.

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

§ 4.827 Depositions.

(a) A party may take the testimony of any person, including a party, by deposition upon oral examination. This may be done by stipulation or by notice, as set forth in paragraph (b) of this section. On motion of any party or other person upon whom the notice is served, the administrative law judge may for cause shown enlarge or shorten the time for the deposition, change the place of the deposition, limit the scope of the deposition or quash the notice. Depositions of persons other than parties or their representatives shall be upon consent of the deponent.

(b)(1) The party will give reasonable notice in writing to every other party of the time and place for taking depositions, the name and address of each person to be examined, if known, or a general description sufficient to identify the party or the particular class or group to which they belong.

(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 their objections to the deposition conduct or proceedings. The administrative law judge may then limit the scope or manner of the taking of the deposition.

(e) The officer shall certify the deposition and promptly file it with the administrative law judge. Documents or true copies of documents and other items produced for inspection during the examination of the witness shall, upon the request of a party, be marked for identification and annexed to the deposition.

(f) The party taking the deposition shall give prompt notice of its filing to all other parties.

§ 4.828 Use of depositions at hearing.

(a) Any part or all of a deposition so far as admissible under § 4.835 applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof as follows:

(1) Any deposition may be used for contradiction or impeachment of the deponent as a witness.

(2) The deposition of a party, or of an agent designated to testify on behalf of a party, may be used by an adverse party for any purpose.

(3) The deposition of any witness may be used for any purpose if the party offering the deposition has been unable to procure the attendance of the witness because the witness is dead; or if the witness is at a greater distance than 100 miles from the place of hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or if the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or, upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open hearing, to allow the deposition to be used.

(b) If only part of a deposition is offered in evidence, the remainder becomes subject to introduction by any party.

(c) Objection may be made at the hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

§ 4.829 Interrogatories to parties.

(a) Any party may serve upon any other party written interrogatories after the notice of hearing has been filed. If the party served is a corporation, partnership, association, or governmental agency, an agent shall furnish such information as is available to the party.

(b) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney or other representative making them. Answers and objections shall be made within 30 days after the service of the interrogatories. The party submitting the interrogatories may move for an order under § 4.831 with respect to any objection to or other failure to answer an interrogatory.

(c) Interrogatories shall relate to any matter not privileged which is relevant to the subject matter of the hearing.

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

(a) After the notice of hearing has been filed, any party may serve on any other party a request to produce and/or permit the party, or someone acting on their behalf, to inspect and copy any designated documents, phonorecords, and other data compilations from which information can be obtained and which are in the possession, custody, or control of the party upon whom the request is served. If necessary, translation of data compilations shall be done by the party furnishing the information.

(b) After the notice of hearing has been filed, any party may serve on any other party a request to permit entry upon designated property in the possession or control of the party upon whom the request is served for the purpose of inspection, measuring, surveying or photographing, testing, or sampling the property or any designated object.

(c) Each request shall set forth with reasonable particularity the items to be inspected and shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.

(d) The party upon whom the request is served shall respond within 15 days after the service of the request. The response shall state, with respect to each item, that inspection and related activities will be permitted as requested, unless there are objections in which case the reasons for each objection shall be stated. The party submitting the request may move for an order under § 4.831 with respect to any objection to or other failure to respond.

§ 4.831 Sanctions.

(a) A party, upon reasonable notice to other parties and all persons affected thereby, may move for an order as follows:

(1) If a deponent fails to answer a question propounded or submitted under § 4.827(c), or a corporation or other entity fails to make a designation under § 4.827(b)(3), or a party fails to answer an interrogatory submitted under § 4.829, or if a party, under § 4.830 fails to respond that inspection will be permitted or fails to permit inspection, the discovering party may move for an order compelling an answer, a designation, or inspection.

(2) An evasive or incomplete answer is to be treated as a failure to answer.

(b) If a party or an agent designated to testify fails to obey an order to permit discovery, the administrative law judge may make such orders as are just, including:

(1) That the matters regarding which the order was made or any other designated facts shall be established in accordance with the claim of the party obtaining the order;

(2) Refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the administrative law judge from introducing designated matters in evidence.

(c) If a party or an agent designated to testify fails after proper service (1) to appear for their deposition, (2) to serve answers or objections to interrogatories submitted under § 4.829 or (3) to serve a written response to a request for inspection, submitted under § 4.830, the administrative law judge on motion may make such orders as are just, including those authorized under paragraphs (b) (1) and (2) of this section.

§ 4.832 Consultation and advice.

(a) The administrative law judge shall not consult any person, or party, on any fact in issue or on the merits of the matter before the disobedient party unless upon notice and opportunity for all parties to participate.

(b) No employee or agent of the Federal Government engaged in the investigation and prosecution of a proceeding governed by these rules shall participate or advise in the rendering of any recommended or final decision, except as witness or counsel in the proceeding.

Prehearing

§ 4.833 Prehearing conferences.

(a) Within 15 days after the answer has been filed, the administrative law judge will establish a prehearing conference date for all parties including persons or organizations whose petition requesting party status has not been ruled upon. Written notice of the prehearing conference shall be sent by the administrative law judge.

(b) At the prehearing conference the following matters, among others, shall be considered: (1) Simplification and delineation of the issues to be heard; (2) stipulations; (3) limitation of number of witnesses; and exchange of witness lists; (4) procedure applicable to the proceeding; (5) offers of settlement; and (6) scheduling of the dates for exchange of exhibits. Additional prehearing conferences may be scheduled at the discretion of the administrative law judge, upon the administrative law judge's own motion or the motion of a party.

Hearing

§ 4.834 Purpose.

(a) The hearing is directed primarily to receiving factual evidence and expert opinion testimony related to the issues in the proceeding. A hearing will be held only in cases where issues of fact must be resolved in order to determine whether the applicant or recipient has failed to comply with one or more applicable requirements of title VI of the Civil Rights Act of 1964 (sec. 602, 42 U.S.C. 2000d-1) and part 17 of this title. However, this shall not prevent the parties from entering into a stipulation of the facts.

(b) If all facts are stipulated, the proceedings shall go to conclusion in accordance with part 17 of this title and the rules in this subpart.

(c) In any case where it appears from the answer of the applicant or recipient to the notice of hearing or notice of opportunity to request a hearing, from their failure timely to answer, or from their admissions or stipulations in the record that there are no matters of material fact in dispute, the administrative law judge may enter an order so finding, vacating the hearing date if one has been set, and fixing the time for the submission of evidence by the Government for the record. Thereafter, the proceedings shall go to conclusion in accordance with part 17 of this title and the rules in this subpart. An appeal from such order may be allowed in accordance with the rules for interlocutory appeal in § 4.823.

§ 4.835 Evidence.

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

§ 4.836 Official notice.

Whenever a party offers a public document, or part thereof, in evidence, and such document, or part thereof, has been shown by the offeror to be reasonably available to the public, such document need not be produced or marked for identification, but may be offered for official notice as a public document item by specifying the document or relevant part thereof. Official notice may also be taken of other matters, at the discretion of the administrative law judge.

§ 4.837 Testimony.

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

§ 4.838 Objections.

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

§ 4.839 Exceptions.

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

§ 4.840 Offer of proof.

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

§ 4.841 Official transcript.

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

Posthearing Procedures

§ 4.842 Proposed findings of fact and conclusions of law.

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

§ 4.843 Record for decision.

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

§ 4.844 Notification of right to file exceptions.

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

§ 4.845 Final review by Secretary.

Paragraph (f) of § 17.9 of this title requires that any final decision of an administrative law judge or of the Director, Office of Hearings and Appeals, which provides for the suspension or termination of, or the refusal to grant or continue Federal financial assistance, or the imposition of any other sanction available under part 17 of this title or the Act, shall be transmitted to the Secretary. The applicant or recipient shall have 20 days following service 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—Specific Rules Applicable to Appeals Concerning Federal Oil and Gas Royalties

§ 4.900 Scope of rules.

The regulations in this subpart set forth specific rules applicable to appeals before the Interior Board of Land Appeals concerning Federal oil and gas royalties. See subpart A for the authority, jurisdiction, and membership of the Interior Board of Land Appeals. For general rules applicable to appeals before the Board of Land Appeals as well as the other components of OHA, see subpart B. For rules applicable only to appeals before the Board of Land Appeals, see subpart E. Rules in subpart E are applicable to these appeals unless the rules in subpart E of this part are inconsistent with the rules in this subpart J. For purposes of appeals concerning Federal oil and gas royalties, wherever there is any conflict between the rules in subpart E and the rules in this subpart, the rules in this subpart will govern.

§ 4.901 What is the purpose of this subpart?

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

§ 4.902 What appeals are subject to this subpart?

(a) This subpart applies to appeals under 30 CFR part 1290, and 43 CFR part 4, subpart E, of Office of Natural Resources Revenue (ONRR) or delegated State orders or portions of orders concerning payment (or computation and payment) of royalties and other payments due, and delivery or taking of royalty in kind, under Federal oil and gas leases.

(b) This subpart does not apply to appeals of orders, or portions of orders, that

(1) Involve Indian leases or Federal leases for minerals other than oil and gas; or

(2) Relate to Federal oil and gas leases but do not involve a monetary or nonmonetary obligation.

§ 4.903 What definitions apply to this subpart?

For the purposes of this subpart only:

Administrative proceeding means any process in which an order is issued by ONRR or a delegated State and is subject to appeal or has been appealed either to the ONRR Director or IBLA under 30 CFR 1290.105.

Assessment means any fee or charge levied or imposed by the Secretary or a delegated State other than:

(1) The principal amount of any royalty, minimum royalty, rental, bonus, net profit share or proceed of sale;

(2) Any interest; or

(3) Any civil or criminal penalty.

Delegated State means a State to which ONRR has delegated authority to perform royalty management functions under an agreement or agreements under 30 CFR part 1227.

Designee means the person designated by a lessee under 30 CFR 1218.52 to make all or part of the royalty or other payments due on a lease on the lessee's behalf.

IBLA means the Interior Board of Land Appeals.

Lease means any agreement authorizing exploration for or extraction of any mineral, regardless of whether the instrument is expressly denominated as a “lease,” including any:

(1) Contract;

(2) Net profit share arrangement; or

(3) Joint venture.

Lessee means any person to whom the United States issues a Federal oil and gas lease, or any person to whom all or part of the lessee's interest or operating rights in a Federal oil and gas lease has been assigned.

Monetary obligation means a lessee's, designee's or payor's duty to pay, or to compute and pay, any obligation in any order, or the Secretary's duty to pay, refund, offset, or credit the amount of any obligation that is the subject of a decision by the ONRR or a delegated State denying a lessee's, designee's, or payor's written request for the payment, refund, offset, or credit. To determine the amount of any monetary obligation, for purposes of the default rule of decision in § 4.906 and 30 U.S.C. 1724(h):

(1) If an order asserts a monetary obligation arising from one issue or type of underpayment that covers multiple leases or production months, the total obligation for all leases or production months involved constitutes a single monetary obligation;

(2) If an order asserts monetary obligations arising from different issues or types of underpayments for one or more leases, the obligations arising from each separate issue, subject to paragraph (1) of this definition, constitute separate monetary obligations; and

(3) If an order asserts a monetary obligation with a stated amount of additional royalties due, plus an order to perform a restructured accounting arising from the same issue or cause as the specifically stated underpayment, the stated amount of royalties due plus the estimated amount due under the restructured accounting, subject to paragraphs (1) and (2) of this definition, together constitutes a single monetary obligation.

Nonmonetary obligation means any duty of a lessee or its designee to deliver oil or gas in kind, or any duty of the Secretary to take oil or gas royalty in kind.

Notice of Order means the notice that ONRR or a delegated State issues to a lessee that informs the lessee that ONRR or the delegated State has issued an order to the lessee's designee.

Obligation means:

(1) A lessee's, designee's or payor's duty to:

(i) Deliver oil or gas royalty in kind; or

(ii) Make a lease-related payment, including royalty, minimum royalty, rental, bonus, net profit share, proceeds of sale, interest, penalty, civil penalty, or assessment; and

(2) The Secretary's duty to:

(i) Take oil or gas royalty in kind; or

(ii) Make a lease-related payment, refund, offset, or credit, including royalty, minimum royalty, rental, bonus, net profit share, proceeds of sale, or interest.

OHA means Office of Hearings and Appeals, Department of the Interior.

Order means any document or portion of a document issued by ONRR or a delegated State that contains mandatory or ordering language regarding any monetary or nonmonetary obligation under any Federal oil and gas lease or leases.

(1) Order includes:

(i) An order to pay (Order to Pay) or to compute and pay (Order to Perform a Restructured Accounting); and

(ii) An ONRR or delegated State decision to deny a lessee's, designee's, or payor's written request that asserts an obligation due the lessee, designee, or payor.

(2) Order does not include:

(i) A non-binding request, information, or guidance, such as:

(A) Advice or guidance on how to report or pay, including valuation determination, unless it contains mandatory or ordering language; and

(B) A policy determination;

(ii) A subpoena;

(iii) An order to pay that ONRR issues to a refiner or other person involved in disposition of royalty taken in kind; or

(iv) A Notice of Noncompliance or a Notice of Civil Penalty issued under 30 U.S.C. 1719 and 30 CFR part 1241, or a decision of an administrative law judge or of the IBLA following a hearing on the record on a Notice of Noncompliance or Notice of Civil Penalty.

(v) A “Dear Payor,” “Dear Operator,” or “Dear Reporter” letter unless it explicitly includes the right to appeal in writing; or

(vi) Any correspondence that does not include the right to appeal in writing.

Party means ONRR, any person who files a Notice of Appeal under 30 CFR part 290 in effect prior to May 13, 1999 and contained in the 30 CFR, parts 200 to 699, edition revised as of July 1, 1998, 30 CFR part 1290, or 43 CFR part 4, subpart E, and any person who files a Notice of Joinder in an appeal under 30 CFR part 1290.

Payor means any person responsible for reporting and paying royalties for Federal oil and gas leases.

§ 4.904 When does my administrative proceeding commence and end?

For purposes of the period in which the Department must issue a final decision in your administrative proceeding under § 4.906:

(a) Your administrative proceeding commences on the date you receive ONRR's order.

(b) Your administrative proceeding ends on the same day of the 33rd calendar month after your administrative proceeding commenced under paragraph (a) of this section, plus the number of days of any applicable time extensions under § 4.909 or 30 CFR 1290.109. If the 33rd calendar month after your administrative proceeding commenced does not have the same day of the month as the day of the month your administrative proceeding commenced, then the initial 33-month period ends on the last day of the 33rd calendar month.

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

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

§ 4.906 What if the Department does not issue a decision by the date my administrative proceeding 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 administrative proceeding ends under § 4.904(b), then the Secretary will be deemed to have decided the appeal in accordance with 30 U.S.C. 1724(h)(2).

(b)(1) If your administrative proceeding ends before the ONRR Director issues a decision in your appeal, then the Secretary will be deemed to have decided the appeal in accordance with 30 U.S.C. 1724(h)(2).

(2) If the ONRR Director issues an order or a decision in your appeal, and if you do not appeal the Director's order or decision to IBLA within the time required under 30 CFR part 1290, then the ONRR Director's order or decision is the final decision of the Department and 30 U.S.C. 1724(h)(2) has no application.

(c) If the IBLA issues a decision before the date your administrative proceeding 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 your administrative proceeding ends while your appeal is pending before the IBLA, the IBLA loses jurisdiction as of the date determined under § 4.904(b), and the appeal will be dismissed. The dismissal will be reflected in an IBLA order, and your receipt of this order serves as the notice that begins the period in which a judicial proceeding challenging the final agency action must be brought under 30 U.S.C. 1724(j).

(e) If any part of the principal amount of any monetary obligation is not specifically stated in an order or ONRR Director's decision and must be computed to comply with the order or ONRR Director's decision, then the principal amount referred to in paragraph (a) of this section means the principal amount ONRR estimates you would be required to pay as a result of the computation required under the order, plus any amount due stated in the order.

§ 4.907 What if an IBLA decision requires ONRR or a delegated State to recalculate royalties or other payments?

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

(b) ONRR or the delegated State must provide to IBLA and all parties any recalculation IBLA requires under paragraph (a) of this section within 60 days of receiving IBLA's decision.

(c) There is no further appeal within the Department from ONRR's or the State's recalculation under paragraph (b) of this section.

(d) The IBLA decision issued under paragraph (a) of this section together with recalculation under paragraph (b) of this section are the final action of the Department that is judicially reviewable under 5 U.S.C. 704.

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

If your appeal is deemed decided under § 4.906, the record for your appeal consists of:

(a) The record established in an appeal before the ONRR Director;

(b) Any additional correspondence or submissions to the ONRR Director;

(c) The ONRR Director's decision in an appeal;

(d) Any pleadings or submissions to the IBLA; and

(e) Any IBLA orders and decisions.

§ 4.909 How do I request an extension of time?

(a) If you are a party to an appeal subject to this subpart before the IBLA, and you need additional time after an appeal commences for any purpose, you may obtain an extension of time under this section.

(b) You must file a written motion for an extension of time as specified in § 4.407 of this part before the required filing date.

(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 motion to extend the period in which the Department must issue a final decision in your appeal under § 4.906 by the amount of time for which you are requesting an extension.

(d) If you are any other party, the IBLA may require you to submit a written agreement signed by the appellant to extend the period in which the Department must issue a final decision in the appeal under § 4.906 by the amount of time for which you are requesting an extension.

(e) The IBLA has the discretion to decline any motion for an extension of time.

(f) You must serve your motion on all parties to the appeal as specified at § 4.407.

Subpart K—Specific Rules Applicable to Hearings Concerning the Acknowledgment of American Indian Tribes

General Provisions

§ 4.1001 What terms are used in this subpart?

As used in this subpart:

ALJ means an administrative law judge in DCHD appointed under 5 U.S.C. 3105 and assigned to preside over the hearing process.

Assistant Secretary means the Assistant Secretary—Indian Affairs within the Department of the Interior, or that officer's authorized representative, but does not include representatives of OFA.

Day means a calendar day. Computation of time periods is discussed in § 4.1004.

Department means the Department of the Interior, including the Assistant Secretary and OFA.

DCHD means the Departmental Cases Hearings Division, Office of Hearings and Appeals, Department of the Interior.

Discovery means a prehearing process for obtaining facts or information to assist a party in preparing or presenting its case.

Ex parte communication means an oral or written communication to the ALJ that is made without providing all parties reasonable notice and an opportunity to participate.

Full intervenor means a person granted leave by the ALJ to intervene as a full party under § 4.1021.

Hearing process means the process by which DCDH handles a case forwarded to DCHD by OFA pursuant to 25 CFR 83.39(a), from receipt to issuance of a recommended decision as to whether the petitioner should be acknowledged as a federally recognized Indian tribe for purposes of federal law.

OFA means the Office of Federal Acknowledgment within the Office of the Assistant Secretary—Indian Affairs, Department of the Interior.

OHA means Office of Hearings and Appeals, Department of the Interior.

Party means the petitioner, OFA, or a full intervenor.

Person means an individual; a partnership, corporation, association, or other legal entity; an unincorporated organization; and any federal, state, tribal, county, district, territorial, or local government or agency.

Petitioner means an entity that has submitted a documented petition to OFA requesting Federal acknowledgment as a federally recognized Indian tribe under 25 CFR part 83 and has elected to have a hearing under 25 CFR 83.38.

Representative means a person who:

(1) Is authorized by a party to represent the party in a hearing process under this subpart; and

(2) Has filed an appearance under § 4.1010.

Secretary means the Secretary of the Interior or his or her designee.

Senior Department employee has the same meaning as the term “senior employee” in 5 CFR 2641.104.

§ 4.1002 What is the purpose of this subpart?

(a) The purpose of this subpart is to establish rules of practice and procedure for the hearing process available under 25 CFR 83.38(a)(1) and 83.39 to a petitioner for Federal acknowledgment that receives from OFA a negative proposed finding on Federal acknowledgment and elects to have a hearing before an ALJ. This subpart includes provisions governing prehearing conferences, discovery, motions, an evidentiary hearing, briefing, and issuance by the ALJ of a recommended decision on Federal acknowledgment for consideration by the Assistant Secretary—Indian Affairs (AS-IA).

(b) This subpart will be construed and applied to each hearing process to achieve a just and speedy determination, consistent with adequate consideration of the issues involved.

§ 4.1003 Which rules of procedure and practice apply?

(a) The rules which apply to the hearing process under this subpart are the provisions of §§ 4.1001 through 4.1051.

(b) Notwithstanding the provisions of § 4.20, the general rules in subpart B of this part, do not apply to the hearing process, except as provided in § 4.1017(a).

§ 4.1004 How are time periods computed?

(a) General. Time periods are computed as follows:

(1) The day of the act or event from which the period begins to run is not included.

(2) The last day of the period is included.

(i) If that day is a Saturday, Sunday, or other day on which the Federal government is closed for business, the period is extended to the next business day.

(ii) The last day of the period ends at 5 p.m. at the place where the filing or other action is due.

(3) If the period is less than 7 days, any Saturday, Sunday, or other day on which the Federal government is closed for business that falls within the period is not included.

(b) Extensions of time. (1) No extension of time can be granted to file a motion for intervention under § 4.1021.

(2) An extension of time to file any other document under this subpart may be granted only upon a showing of good cause.

(i) To request an extension of time, a party must file a motion under § 4.1018 stating how much additional time is needed and the reasons for the request.

(ii) The party must file the motion before the applicable time period expires, unless the party demonstrates extraordinary circumstances that justify a delay in filing.

(iii) The ALJ may grant the extension only if:

(A) It would not unduly prejudice other parties; and

(B) It would not delay the recommended decision under § 4.1051.

Representatives

§ 4.1010 Who may represent a party, and what requirements apply to a representative?

(a) Individuals. A party who is an individual may either act as his or her own representative in the hearing process under this subpart or authorize an attorney to act as his or her representative.

(b) Organizations. A party that is an organization or other entity may authorize one of the following to act as its representative:

(1) An attorney;

(2) A partner, if the entity is a partnership;

(3) An officer or full-time employee, if the entity is a corporation, association, or unincorporated organization;

(4) A receiver, administrator, executor, or similar fiduciary, if the entity is a receivership, trust, or estate; or

(5) An elected or appointed official or an employee, if the entity is a federal, state, tribal, county, district, territorial, or local government or component.

(c) OFA. OFA's representative will be an attorney from the Office of the Solicitor.

(d) Appearance. A representative must file a notice of appearance. The notice must:

(1) Meet the form and content requirements for documents under § 4.1011;

(2) Include the name and address of the person on whose behalf the appearance is made;

(3) If the representative is an attorney (except for an attorney with the Office of the Solicitor), include a statement that he or she is a member in good standing of the bar of the highest court of a state, the District of Columbia, or any territory or commonwealth of the United States (identifying which one); and

(4) If the representative is not an attorney, include a statement explaining his or her authority to represent the entity.

(e) Disqualification. The ALJ may disqualify any representative for misconduct or other good cause.

Document Filing and Service

§ 4.1011 What are the form and content requirements for documents under this subpart?

(a) Form. Each document filed in a case under this subpart must:

(1) Measure 8-1/2 by 11 inches, except that a table, chart, diagram, or other attachment may be larger if folded to 8-1/2 by 11 inches and attached to the document;

(2) Be printed on just one side of the page;

(3) Be clearly typewritten, printed, or otherwise reproduced by a process that yields legible and permanent copies;

(4) Use 12-point font size or larger;

(5) Be double-spaced except for footnotes and long quotations, which may be single-spaced;

(6) Have margins of at least 1 inch; and

(7) Be bound on the left side, if bound.

(b) Caption. Each document must begin with a caption that includes:

(1) The name of the case under this subpart and the docket number, if one has been assigned;

(2) The name and docket number of the proceeding to which the case under this subpart relates; and

(3) A descriptive title for the document, indicating the party for whom it is filed and the nature of the document.

(c) Signature. The original of each document must be signed by the representative of the person for whom the document is filed. The signature constitutes a certification by the representative that:

(1) He or she has read the document;

(2) The statements in the document are true to the best of his or her knowledge, information, and belief; and

(3) The document is not being filed for the purpose of causing delay.

(d) Contact information. Below the representative's signature, the document must provide the representative's name, mailing address, street address (if different), telephone number, facsimile number (if any), and electronic mail address (if any).

§ 4.1012 Where and how must documents be filed?

(a) Generally. Any documents relating to a case under this subpart must be delivered for filing to DCHD under the terms specified in the OHA Standing Orders on Electronic Transmission and the OHA Standing Orders on Contact Information found on the Department of the Interior OHA website, at https://www.doi.gov/oha.

(b) Methods of filing—(1) Electronic. A document may be filed electronically under the terms specified in the OHA Standing Orders on Electronic Transmission. A person or entity represented by an attorney must file electronically, unless otherwise specified in the OHA Standing Orders on Electronic Transmission or when the ALJ has allowed non-electronic filing for good cause.

(2) Non-electronic. A document not filed electronically must be delivered for filing to DCHD at the address specified in the OHA Standing Orders on Contact Information.

(c) Timeliness—(1) Electronic. A document filed electronically is deemed timely if filed by 11:59 p.m. Mountain Time on the date the document is due under the terms specified in the OHA Standing Orders on Electronic Transmission.

(2) Non-electronic. A document not filed electronically is deemed timely if, on or before the last day for filing, it is sent by express mail or dispatched to a third-party commercial courier for delivery on the next business day. The date of mailing or dispatch must be documented by a postmark date, acceptance scan, receipt, or similar written acknowledgement from the carrier delivering the document for filing. A document not received within 2 business days of the filing deadline is presumed untimely, but the presumption may be overcome by the documentation establishing the date of mailing or dispatch.

(d) Nonconforming documents. If any document submitted for filing under this subpart does not comply with the requirements of this subpart or any applicable order, it may be rejected. If the defect is minor, the filer may be notified of the defect and given an opportunity to correct.

§ 4.1013 How must documents be served?

(a) Generally. Any document filed in a case under this subpart must be served concurrently on each party to the proceeding under the terms specified in this section and in accordance with the OHA Standing Orders on Electronic Transmission and the OHA Standing Orders on Contact Information.

(b) Service on represented parties. Service on a party known to be represented by an attorney, or another designated representative, must be made on the representative. Parties must serve the appropriate office of the Office of the Solicitor as provided in the OHA Standing Orders on Contact Information until a particular attorney of the Office of the Solicitor files and serves a notice of appearance in the proceeding, after which that attorney must be served.

(c) Service address. Every person or entity who files a document in connection with the proceeding must provide the mailing or electronic address that the person or entity intends to use for service in the proceeding. A person or entity seeking to receive service electronically must consent to electronic service as required by paragraph (e)(1) of this section. If a person or entity has not consented to electronic service, then anyone serving a document on that person or entity must use the mailing address in the person's or entity's most recent filing or, if there has not been any filing, the mailing address of the person or entity as provided by OFA.

(d) Address changes. A party whose mailing or electronic address changes during the proceeding must promptly file and serve a written notice of the change and must specify the applicable docket number or docket numbers when available.

(e) Manner of service. A document must be served electronically or non-electronically as follows:

(1) Electronic. Service may be made electronically on the Office of the Solicitor as specified in the OHA Standing Orders on Electronic Transmission. Service may be made electronically on all other persons or entities who have consented to electronic service under the terms specified in the OHA Standing Orders on Electronic Transmission.

(2) Non-electronic. Service may be made non-electronically by personal delivery, express mail, or third-party commercial courier for delivery on the next business day.

(f) Certificate of service. At the conclusion of any document that a party must serve under this subpart, the party or the party's representative must sign a written statement that:

(1) Certifies that service has been or will be made in accordance with the applicable rules; and

(2) Specifies the date and manner of service.

(g) Completion of service—(1) Electronic. Service by electronic means is complete on sending or as otherwise provided by the OHA Standing Orders on Electronic Transmission, unless the party making service is notified that the document was not received by the party served.

(2) Non-electronic. Service by express mail or by commercial courier for delivery on the next business day is complete on mailing or dispatch to the carrier. The date of mailing or dispatch must be documented by a postmark date, acceptance scan, receipt, or other similar written acknowledgement from the carrier delivering the document.

(h) Issuance. An ALJ may issue notices, orders, recommended decisions, or other documents electronically or non-electronically as follows:

(1) Electronic. A notice, order, recommended decision, or other document will be issued electronically to the electronic service address provided by the person or entity, and service is complete on sending or as otherwise specified by the OHA Standing Orders on Electronic Transmission.

(2) Non-electronic. If an electronic service address has not been provided, then

(i) A notice, order, or other document will be issued by first-class United States mail or third-party commercial courier to the mailing address provided by the person or entity or, if not provided, to the last known address, and service is complete on mailing or dispatch; and

(ii) A recommended decision will be sent by certified United States mail to the mailing address provided by the person or entity or, if not provided, to the last known mailing address, and service is complete when received. If a recommended decision sent by certified mail is not claimed by the recipient or is returned as undeliverable, then service will be made by first-class United States mail, and service is deemed complete when mailed.

ALJ's Powers, Unavailability, Disqualification, and Communications

§ 4.1014 What are the powers of the ALJ?

The ALJ has all powers necessary to conduct the hearing process in a fair, orderly, expeditious, and impartial manner, including the powers to:

(a) Administer oaths and affirmations;

(b) Issue subpoenas to the extent authorized by law;

(c) Rule on motions;

(d) Authorize discovery under exceptional circumstances as provided in this subpart;

(e) Hold hearings and conferences;

(f) Regulate the course of hearings;

(g) Call and question witnesses;

(h) Exclude any person from a hearing or conference for misconduct or other good cause;

(i) Impose non-monetary sanctions for a person's failure to comply with an ALJ order or provision of this subpart;

(j) Issue a recommended decision; and

(k) Take any other action authorized by law.

§ 4.1015 What happens if the ALJ becomes unavailable?

(a) If the ALJ becomes unavailable or otherwise unable to perform the duties described in § 4.1014, DCHD will designate a successor.

(b) If a hearing has commenced and the ALJ cannot proceed with it, a successor ALJ may do so. At the request of a party, the successor ALJ may recall any witness whose testimony is material and disputed, and who is available to testify again without undue burden. The successor ALJ may, within his or her discretion, recall any other witness.

§ 4.1016 When can an ALJ be disqualified?

(a) The ALJ may withdraw from a case at any time the ALJ deems himself or herself disqualified.

(b) At any time before issuance of the ALJ's recommended decision, any party may move that the ALJ disqualify himself or herself for personal bias or other valid cause.

(1) The party must file the motion promptly after discovering facts or other reasons allegedly constituting cause for disqualification.

(2) The party must file with the motion an affidavit or declaration setting forth the facts or other reasons in detail.

(c) The ALJ must rule upon the motion, stating the grounds for the ruling.

(1) If the ALJ concludes that the motion is timely and meritorious, he or she must disqualify himself or herself and withdraw from the case.

(2) If the ALJ does not disqualify himself or herself and withdraw from the case, the ALJ must continue with the hearing process and issue a recommended decision.

§ 4.1017 Are ex parte communications allowed?

(a) Ex parte communications with the ALJ or his or her staff are prohibited in accordance with § 4.27.

(b) This section does not prohibit ex parte inquiries concerning case status or procedural requirements, unless the inquiry involves an area of controversy in the hearing process.

Motions

§ 4.1018 What are the requirements for motions?

(a) General. Any party may apply for an order or ruling on any matter related to the hearing process by presenting a motion to the ALJ. A motion may be presented any time after DCHD issues the docketing notice.

(1) A motion made at a hearing may be stated orally on the record, unless the ALJ directs that it be written.

(2) Any other motion must:

(i) Be in writing;

(ii) Comply with the requirements of this subpart with respect to form, content, filing, and service; and

(iii) Not exceed 10 pages, unless the ALJ orders otherwise.

(b) Content. (1) Each motion must state clearly and concisely:

(i) Its purpose and the relief sought;

(ii) The facts constituting the grounds for the relief sought; and

(iii) Any applicable statutory or regulatory authority.

(2) A proposed order must accompany the motion.

(c) Response. Except as otherwise required by this subpart or by order of the ALJ, any other party may file a response to a written motion within 14 days after service of the motion. When a party presents a motion at a hearing, any other party may present a response orally on the record.

(d) Reply. Unless the ALJ orders otherwise, no reply to a response may be filed.

(e) Effect of filing. Unless the ALJ orders otherwise, the filing of a motion does not stay the hearing process.

(f) Ruling. The ALJ will rule on the motion as soon as feasible, either orally on the record or in writing. The ALJ may summarily deny any dilatory, repetitive, or frivolous motion.

Prior Decisions

§ 4.1019 How may a party submit prior Departmental final decisions?

A party may submit as an appendix to a motion, brief, or other filing a prior Departmental final decision in support of a finding that the evidence or methodology is sufficient to satisfy one or more criteria for Federal acknowledgment of the petitioner because the Department found that evidence or methodology sufficient to satisfy the same criteria in the prior decision.

Hearing Process

Docketing, Intervention, Prehearing Conferences, and Summary Decision

§ 4.1020 What will DCHD do upon receiving the election of hearing from a petitioner?

Within 5 days after petitioner files its election of hearing under 25 CFR 83.38(a), the actions required by this section must be taken.

(a) DCHD must:

(1) Docket the case;

(2) Assign an ALJ to preside over the hearing process and issue a recommended decision; and

(3) Issue a docketing notice that informs the parties of the docket number and the ALJ assigned to the case.

(b) The ALJ assigned under paragraph (a)(2) of this section must issue a notice setting the time, place, and method for conducting an initial prehearing conference under § 4.1022(a). This notice may be combined with the docketing notice under paragraph (a)(3) of this section.

§ 4.1021 What are the requirements for motions for intervention and responses?

(a) General. A person may file a motion for intervention within 30 days after OFA issues the notice of the election of hearing under 25 CFR 83.39(a)(1).

(b) Content of the motion. The motion for intervention must contain the following:

(1) A statement setting forth the interest of the person and, if the person seeks intervention under paragraph (d) of this section, a showing of why that interest may be adversely affected by the final determination of the Assistant Secretary under 25 CFR 83.43;

(2) An explanation of the person's position with respect to the issues of law and issues of material fact raised in the election of hearing in no more than five pages; and

(3) A list of the witnesses and exhibits the person intends to present at the hearing, other than solely for impeachment purposes, including:

(i) For each witness listed, his or her name, address, telephone number, and qualifications and a brief narrative summary of his or her expected testimony; and

(ii) For each exhibit listed, a statement specifying where the exhibit is located in the administrative record reviewed by OFA.

(c) Timing of response to a motion. Any response to a motion for intervention must be filed by a party within 7 days after service of the motion.

(d) Intervention of right. The ALJ will grant intervention where the person has an interest that may be adversely affected by the Assistant Secretary's final determination under 25 CFR 83.43.

(e) Permissive intervention. If paragraph (d) of this section does not apply, the ALJ will consider the following in determining whether intervention is appropriate:

(1) The nature of the issues;

(2) The adequacy of representation of the person's interest which is provided by the existing parties to the proceeding; and

(3) The ability of the person to present relevant evidence and argument.

(f) How an intervenor may participate. (1) A person granted leave to intervene under paragraph (d) of this section may participate as a full party or in a capacity less than that of a full party.

(2) If the intervenor wishes to participate in a limited capacity or if the intervenor is granted leave to intervene under paragraph (e) of this section, the extent and the terms of the participation will be determined by the ALJ.

(3) An intervenor may not raise issues of law or issues of material fact beyond those raised in the election of hearing under 25 CFR 83.38(a)(1).

§ 4.1022 How are prehearing conferences conducted?

(a) Initial prehearing conference. The ALJ will conduct an initial prehearing conference with the parties at the time specified in the docketing notice under § 4.1020, within 55 days after issuance of the docketing notice.

(1) The initial prehearing conference will be used:

(i) To identify, narrow, and clarify the disputed issues of material fact and exclude issues that do not qualify for review as factual, material, and disputed;

(ii) To discuss the evidence on which each party intends to rely at the hearing; and

(iii) To set the date, time, and place of the hearing.

(2) The initial prehearing conference may also be used:

(i) To discuss limiting and grouping witnesses to avoid duplication;

(ii) To discuss stipulations of fact and of the content and authenticity of documents;

(iii) To consider requests that the ALJ take official notice of public records or other matters;

(iv) To discuss pending or anticipated motions, if any; and

(v) To consider any other matters that may aid in the disposition of the case.

(b) Other conferences. The ALJ may direct the parties to attend one or more other prehearing conferences, if consistent with the need to complete the hearing process within 180 days. Any party may by motion request a conference.

(c) Notice. The ALJ must give the parties reasonable notice of the time and place of any conference.

(d) Method. A conference will ordinarily be held by telephone, unless the ALJ orders otherwise.

(e) Representatives' preparation and authority. Each party's representative must be fully prepared during the prehearing conference for a discussion of all procedural and substantive issues properly raised. The representative must be authorized to commit the party that he or she represents respecting those issues.

(f) Parties' meeting. Before the initial prehearing conference, the parties' representatives must make a good faith effort:

(1) To meet in person, by telephone, or by other appropriate means; and

(2) To reach agreement on the schedule of remaining steps in the hearing process.

(g) Failure to attend. Unless the ALJ orders otherwise, a party that fails to attend or participate in a conference, after being served with reasonable notice of its time and place, waives all objections to any agreements reached in the conference and to any consequent orders or rulings.

(h) Scope. During a conference, the ALJ may dispose of any procedural matters related to the case.

(i) Order. Within 3 days after the conclusion of each conference, the ALJ must issue an order that recites any agreements reached at the conference and any rulings made by the ALJ during or as a result of the conference.

§ 4.1023 What are the requirements for motions for recommended summary decision, responses, and issuance of a recommended summary decision?

(a) Motion for recommended summary decision or partial recommended summary decision. A party may move for a recommended summary decision, identifying each issue on which summary decision is sought. The ALJ may issue a recommended summary decision if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a recommended decision as a matter of law. The ALJ should state on the record the reasons for granting or denying the motion.

(b) Time to file a motion. Except as otherwise ordered by the ALJ, a party may file a motion for recommended summary decision on all or part of the proceeding at any time after DCHD issues a docketing notice under § 4.1020.

(c) Procedures—(1) Supporting factual positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(i) Citing to particular parts of materials in the hearing process record, including affidavits or declarations, stipulations (including those made for purposes of the motion only), or other materials; or

(ii) Showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection that a fact is not supported by admissible evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials not cited. The ALJ need consider only the cited materials, but the ALJ may consider other materials in the hearing process record.

(4) Affidavits or declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

(d) When facts are unavailable to the nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the ALJ may:

(1) Defer considering the motion or deny it;

(2) Allow time to obtain affidavits or declarations or, under extraordinary circumstances, to take discovery; or

(3) Issue any other appropriate order.

(e) Failing to properly support or address a fact. If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by paragraph (c) of this section, the ALJ may:

(1) Give an opportunity to properly support or address the fact;

(2) Consider the fact undisputed for purposes of the motion;

(3) Issue a recommended summary decision if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or

(4) Issue any other appropriate order.

(f) Issuing a recommended summary decision independent of the motion. After giving notice and a reasonable time to respond, the ALJ may:

(1) Issue a recommended summary decision for a nonmovant;

(2) Grant a motion for recommended summary decision on grounds not raised by a party; or

(3) Consider issuing a recommended summary decision on his or her own after identifying for the parties material facts that may not be genuinely in dispute.

(g) Failing to grant all the requested relief. If the ALJ does not grant all the relief requested by the motion, the ALJ may enter an order stating any material fact that is not genuinely in dispute and treating the fact as established in the case.

Information Disclosure

§ 4.1030 What are the requirements for OFA's witness and exhibit list?

Within 14 days after OFA issues the notice of the election of hearing under 25 CFR 83.39(a)(1), OFA must file a list of the witnesses and exhibits it intends to present at the hearing, other than solely for impeachment purposes, including:

(a) For each witness listed, his or her name, address, telephone number, qualifications, and a brief narrative summary of his or her expected testimony; and

(b) For each exhibit listed, a statement specifying where the exhibit is in the administrative record reviewed by OFA.

§ 4.1031 Under what circumstances will the ALJ authorize a party to obtain discovery of information?

(a) General. A party may obtain discovery of information to assist in preparing or presenting its case only if the ALJ determines that the party has met the criteria set forth in paragraph (b) of this section and authorizes the discovery in a written order or during a prehearing conference. Available methods of discovery are:

(1) Written interrogatories;

(2) Depositions; and

(3) Requests for production of designated documents or tangible things or for entry on designated land for inspection or other purposes.

(b) Criteria. The ALJ may authorize discovery only under extraordinary circumstances and if the party requesting discovery demonstrates:

(1) That the discovery will not unreasonably delay the hearing process;

(2) That the scope of the discovery is not unduly burdensome;

(3) That the method to be used is the least burdensome method available;

(4) That any confidential information can be adequately safeguarded; and

(5) That the information sought:

(i) Will be admissible at the hearing or appears reasonably calculated to lead to the discovery of admissible evidence;

(ii) Is not otherwise obtainable by the party;

(iii) Is not cumulative or repetitious; and

(iv) Is not privileged or protected from disclosure by applicable law.

(c) Motions. A party seeking the ALJ's authorization for discovery must file a motion that:

(1) Briefly describes the proposed methodology, purpose, and scope of the discovery;

(2) Explains how the discovery meets the criteria in paragraph (b) of this section; and

(3) Attaches a copy of any proposed discovery request (written interrogatories, notice of deposition, or request for production of designated documents or tangible things or for entry on designated land).

(d) Timing of motions. Any discovery motion under paragraph (c) of this section must be filed:

(1) Within 30 days after issuance of the docketing notice under § 4.1020 if the discovery sought is between the petitioner and OFA; and

(2) Within 50 days after issuance of the docketing notice under § 4.1020 if the discovery sought is between a full intervenor and another party.

(e) Objections. (1) A party must file any objections to a discovery motion or to specific portions of a proposed discovery request within 10 days after service of the motion.

(2) An objection must explain how, in the objecting party's view, the discovery sought does not meet the criteria in paragraph (b) of this section.

§ 4.1032 When must a party supplement or amend information?

(a) Witnesses and exhibits. (1) Each party must file an updated version of the list of witnesses and exhibits required under 25 CFR 83.38(a)(2), § 4.1021(b)(3), or § 4.1030 by no later than 15 days prior to the hearing date, unless otherwise ordered by the ALJ.

(2) If a party wishes to include any new witness or exhibit on its updated list, it must provide an explanation of why it was not feasible for the party to include the witness or exhibit on its list under 25 CFR 83.38(a)(2), § 4.1021(b)(3), or § 4.1030.

(b) Failure to disclose. (1) A party that fails to disclose information required under 25 CFR 83.38(a)(2), § 4.1021(b)(3), § 4.1030, or paragraph (a)(1) of this section will not be permitted to introduce as evidence at the hearing testimony from a witness or other information that it failed to disclose.

(2) Paragraph (b)(1) of this section does not apply if the failure to disclose was substantially justified or is harmless.

(3) Before or during the hearing, a party may object under paragraph (b)(1) of this section to the admission of evidence.

(4) The ALJ will consider the following in determining whether to exclude evidence under paragraphs (b)(1) through (3) of this section:

(i) The prejudice to the objecting party;

(ii) The ability of the objecting party to cure any prejudice;

(iii) The extent to which presentation of the evidence would disrupt the orderly and efficient hearing of the case;

(iv) The importance of the evidence; and

(v) The reason for the failure to disclose, including any bad faith or willfulness regarding the failure.

§ 4.1033 Under what circumstances will the ALJ authorize a party to depose a witness to preserve testimony?

(a) General. A party may depose a witness to preserve testimony only if the ALJ determines that the party has met the criteria set forth in paragraph (b) of this section and authorizes the deposition in a written order or during a prehearing conference. Authorization of depositions for discovery purposes is governed by § 4.1031.

(b) Criteria. (1) The ALJ may authorize a deposition to preserve testimony only if the party shows that the witness:

(i) Will be unable to attend the hearing because of age, illness, or other incapacity; or

(ii) Is unwilling to attend the hearing voluntarily, and the party is unable to compel the witness's attendance at the hearing by subpoena.

(2) Paragraph (b)(1)(ii) of this section does not apply to any person employed by or under contract with the party seeking the deposition.

(3) A party may depose a senior Department employee of OFA only if the party shows:

(i) That the employee's testimony is necessary in order to provide significant, unprivileged information that is not available from any other source or by less burdensome means; and

(ii) That the deposition would not significantly interfere with the employee's ability to perform his or her official duties.

(c) Motion and notice. A party seeking the ALJ's authorization to take a deposition to preserve testimony must file a motion which explains how the criteria in paragraph (b) of this section have been met and states:

(1) The time and place that the deposition is to be taken;

(2) The name and address of the person before whom the deposition is to be taken;

(3) The name and address of the witness whose deposition is to be taken; and

(4) Any documents or materials that the witness is to produce.

§ 4.1034 What are the procedures for limiting disclosure of information which is confidential or exempt by law from public disclosure?

(a) A party or a prospective witness or deponent may file a motion requesting a protective order to limit from disclosure to other parties or to the public a document or testimony containing information which is confidential or exempt by law from public disclosure.

(b) In the motion the person must describe the information sought to be protected from disclosure and explain in detail:

(1) Why the information is confidential or exempt by law from public disclosure;

(2) Why disclosure of the information would adversely affect the person; and

(3) Why disclosure is not required in the public interest.

(c) If the person seeks non-disclosure of information in a document:

(1) The motion must include a copy of the document with the confidential information deleted. If it is not practicable to submit such a copy of the document because deletion of the information would render the document unintelligible, a description of the document may be substituted.

(2) The ALJ may require the person to file a sealed copy of the document for in camera inspection.

(d) Ordinarily, documents and testimony introduced into the public hearing process are presumed to be public. In issuing a protective order, the ALJ may make any order which justice requires to protect the person, consistent with the mandatory public disclosure requirements of the Freedom of Information Act, 5 U.S.C. 552(b), and other applicable law.

§ 4.1035 What are the requirements for subpoenas and witness fees?

(a) Request for subpoena. (1) Except as provided in paragraph (a)(2) of this section, any party may file a motion requesting the ALJ to issue a subpoena to the extent authorized by law for the attendance of a person, the giving of testimony, or the production of documents or other relevant evidence during discovery or for the hearing.

(2) A party may subpoena an OFA employee if the employee participated in the preparation of the negative proposed finding, except that if the OFA employee is a senior Department employee, the party must show:

(i) That the employee's testimony is necessary in order to provide significant, unprivileged information that is not available from any other source or by less burdensome means; and

(ii) That the employee's attendance would not significantly interfere with the ability to perform his or her government duties.

(b) Service. (1) A subpoena may be served by any person who is not a party and is 18 years of age or older.

(2) Service must be made by hand delivering a copy of the subpoena to the person named therein.

(3) The person serving the subpoena must:

(i) Prepare a certificate of service setting forth the date, time, and manner of service or the reason for any failure of service; and

(ii) Swear to or affirm the certificate, attach it to a copy of the subpoena, and return it to the party on whose behalf the subpoena was served.

(c) Witness fees. (1) A party who subpoenas a witness who is not a party must pay him or her the same fees and mileage expenses that are paid witnesses in the district courts of the United States.

(2) A witness who is not a party and who attends a deposition or hearing at the request of any party without having been subpoenaed to do so is entitled to the same fees and mileage expenses as if he or she had been subpoenaed. However, this paragraph does not apply to federal employees who are called as witnesses by OFA.

(d) Motion to quash. (1) A person to whom a subpoena is directed may request by motion that the ALJ quash or modify the subpoena.

(2) The motion must be filed:

(i) Within 5 days after service of the subpoena; or

(ii) At or before the time specified in the subpoena for compliance, if that is less than 5 days after service of the subpoena.

(3) The ALJ may quash or modify the subpoena if it:

(i) Is unreasonable;

(ii) Requires evidence beyond the limits on witnesses and evidence found in §§ 4.1042 and 4.1046;

(iii) Requires evidence during discovery that is not discoverable; or

(iv) Requires evidence during a hearing that is privileged or irrelevant.

(e) Enforcement. For good cause shown, the ALJ may apply to the appropriate United States District Court for the issuance of an order compelling the appearance and testimony of a witness or the production of evidence as set forth in a subpoena that has been duly issued and served.

Hearing, Briefing, and Recommended Decision

§ 4.1040 When and where will the hearing be held?

(a) Time and place. (1) Except as provided in paragraph (b) of this section, the hearing will be held at the time and place set at the initial prehearing conference under § 4.1022(a)(1)(iii), generally within 90 days after the date DCHD issues the docketing notice under § 4.1020(a)(3).

(2) The ALJ will consider the convenience of all parties, their representatives, and witnesses in setting the time and place for hearing.

(b) Change. On motion by a party or on the ALJ's initiative, the ALJ may change the date, time, or place of the hearing if he or she finds:

(1) That there is good cause for the change; and

(2) That the change will not unduly prejudice the parties and witnesses.

§ 4.1041 What are the parties' rights during the hearing?

Consistent with the provisions of this subpart, and as necessary to ensure full and accurate disclosure of the facts, each party may exercise the following rights during the hearing:

(a) Present direct and rebuttal evidence;

(b) Make objections, motions, and arguments; and

(c) Cross-examine witnesses, including OFA staff, and conduct re-direct and re-cross examination as permitted by the ALJ.

§ 4.1042 Who may testify?

(a) Except as provided in paragraph (b) of this section, each party may present as witnesses the following persons only:

(1) Persons who qualify as expert witnesses; and

(2) OFA staff who participated in the preparation of the negative proposed finding, except that if the OFA employee is a senior Department employee, any party other than OFA must first obtain a subpoena for that employee under § 4.1035.

(b) The ALJ may authorize testimony from witnesses in addition to those identified in paragraph (a) of this section only under extraordinary circumstances.

§ 4.1043 What are the methods for testifying?

Oral examination of a witness in a hearing, including on cross-examination or redirect, must be conducted under oath with an opportunity for all parties to question the witness. The witness must testify in the presence of the ALJ unless the ALJ authorizes the witness to testify by telephonic conference call. The ALJ may issue a subpoena under § 4.1035 directing a witness to testify by telephonic conference call.

§ 4.1044 How may a party use a deposition in the hearing?

(a) In general. Subject to the provisions of this section, a party may use in the hearing any part or all of a deposition taken against any party who:

(1) Was present or represented at the taking of the deposition; or

(2) Had reasonable notice of the taking of the deposition.

(b) Admissibility. (1) No part of a deposition will be included in the hearing record, unless received in evidence by the judge.

(2) The judge will exclude from evidence any question and response to which an objection:

(i) Was noted at the taking of the deposition; and

(ii) Would have been sustained if the witness had been personally present and testifying at a hearing.

(3) If a party offers only part of a deposition in evidence:

(i) An adverse party may require the party to introduce any other part that ought in fairness to be considered with the part introduced; and

(ii) Any other party may introduce any other parts.

(c) Video-recorded deposition. If the deposition was video recorded and is admitted into evidence, relevant portions will be played during the hearing and transcribed into the record by the reporter.

§ 4.1045 What are the requirements for exhibits, official notice, and stipulations?

(a) General. (1) Except as provided in paragraphs (d) and (e) of this section, any material offered in evidence, other than oral testimony, must be offered in the form of an exhibit.

(2) Each exhibit offered by a party must be marked for identification.

(3) Any party who seeks to have an exhibit admitted into evidence must provide:

(i) The original of the exhibit to the reporter, unless the ALJ permits the substitution of a copy; and

(ii) A copy of the exhibit to the ALJ.

(b) ALJ exhibits. (1) At any time prior to issuance of the recommended decision, the ALJ, on his or her own initiative, may admit into evidence as an exhibit any document from the administrative record reviewed by OFA.

(2) If the ALJ admits a document under paragraph (b)(1) of this section, the ALJ must notify the parties and give them a brief opportunity to submit comments on the document.

(c) Material not offered. If a document offered as an exhibit contains material not offered as evidence:

(1) The party offering the exhibit must:

(i) Designate the matter offered as evidence;

(ii) Segregate and exclude the material not offered in evidence, to the extent feasible; and

(iii) Provide copies of the entire document to the other parties appearing at the hearing.

(2) The ALJ must give the other parties an opportunity to inspect the entire document and offer in evidence any other portions of the document.

(d) Official notice. (1) At the request of any party at the hearing, the ALJ may take official notice of any matter of which the courts of the United States may take judicial notice, including the public records of the Department, except materials in the administrative record reviewed by OFA.

(2) The ALJ must give the other parties appearing at the hearing an opportunity to show the contrary of an officially noticed fact.

(3) Any party requesting official notice of a fact after the conclusion of the hearing must show good cause for its failure to request official notice during the hearing.

(e) Stipulations. (1) The parties may stipulate to any relevant facts or to the authenticity of any relevant documents.

(2) If received in evidence at the hearing, a stipulation is binding on the stipulating parties.

(3) A stipulation may be written or made orally at the hearing.

§ 4.1046 What evidence is admissible at the hearing?

(a) Scope of evidence. (1) The ALJ may admit as evidence only documentation in the administrative record reviewed by OFA, including comments on OFA's proposed finding and petitioner's responses to those comments, and testimony clarifying or explaining the information in that documentation, except as provided in paragraph (a)(2) of this section.

(2) The ALJ may admit information outside the scope of paragraph (a)(1) of this section only if the party seeking to admit the information explains why the information was not submitted for inclusion in the administrative record reviewed by OFA and demonstrates that extraordinary circumstances exist justifying admission of the information.

(3) Subject to the provisions of § 4.1032(b) and paragraphs (a)(1) and (2) of this section, the ALJ may admit any written, oral, documentary, or demonstrative evidence that is:

(i) Relevant, reliable, and probative; and

(ii) Not privileged or unduly repetitious or cumulative.

(b) General. (1) The ALJ may exclude evidence if its probative value is substantially outweighed by the risk of undue prejudice, confusion of the issues, or delay.

(2) Hearsay evidence is admissible. The ALJ may consider the fact that evidence is hearsay when determining its probative value.

(3) The Federal Rules of Evidence do not directly apply to the hearing, but may be used as guidance by the ALJ and the parties in interpreting and applying the provisions of this section.

(c) Objections. Any party objecting to the admission or exclusion of evidence shall concisely state the grounds. A ruling on every objection must appear in the record.

§ 4.1047 What are the requirements for transcription of the hearing?

(a) Transcript and reporter's fees. The hearing must be transcribed verbatim.

(1) DCHD will secure the services of a reporter and pay the reporter's fees to provide an original transcript to DCHD on an expedited basis.

(2) Each party must pay the reporter for any copies of the transcript obtained by that party.

(b) Transcript corrections. (1) Any party may file a motion proposing corrections to the transcript. The motion must be filed within 5 days after receipt of the transcript, unless the ALJ sets a different deadline.

(2) Unless a party files a timely motion under paragraph (b)(1) of this section, the transcript will be presumed to be correct and complete, except for obvious typographical errors.

(3) As soon as feasible after the close of the hearing and after consideration of any motions filed under paragraph (b)(1) of this section, the ALJ will issue an order making any corrections to the transcript that the ALJ finds are warranted.

§ 4.1048 What is the standard of proof?

The ALJ will consider a criterion to be met if the evidence establishes a reasonable likelihood of the validity of the facts related to the criteria. Conclusive proof of the facts relating to a criterion shall not be required in order for the criterion to be considered met.

§ 4.1049 When will the hearing record close?

(a) The hearing record will close when the ALJ closes the hearing, unless he or she directs otherwise.

(b) Except as provided in § 4.1045(b)(1), evidence may not be added after the hearing record is closed, but the transcript may be corrected under § 4.1047(b).

§ 4.1050 What are the requirements for post-hearing briefs?

(a) General. (1) Each party may file a post-hearing brief within 20 days after the close of the hearing, unless the ALJ sets a different deadline.

(2) A party may file a reply brief only if requested by the ALJ. The deadline for filing a reply brief, if any, will be set by the ALJ.

(3) The ALJ may limit the length of the briefs to be filed under this section.

(b) Content. (1) An initial brief must include:

(i) A concise statement of the case;

(ii) A separate section containing proposed findings regarding the issues of material fact, with supporting citations to the hearing record;

(iii) Arguments in support of the party's position; and

(iv) Any other matter required by the ALJ.

(2) A reply brief, if requested by the ALJ, must be limited to any issues identified by the ALJ.

(c) Form. (1) An exhibit admitted into evidence or marked for identification in the record may not be reproduced in the brief.

(i) Such an exhibit may be reproduced, within reasonable limits, in an appendix to the brief.

(ii) Any pertinent analysis of an exhibit may be included in a brief.

(2) If a brief exceeds 30 pages, it must contain:

(i) A table of contents and of points made, with page references; and

(ii) An alphabetical list of citations to legal authority, with page references.

§ 4.1051 What are the requirements for the ALJ's recommended decision?

(a) Timing. The ALJ must issue a recommended decision within 180 days after issuance of the docketing notice under § 4.1020(a)(3), unless the ALJ issues an order finding good cause to issue the recommended decision at a later date.

(b) Content. (1) The recommended decision must contain all of the following:

(i) Recommended findings of fact on all disputed issues of material fact;

(ii) Recommended conclusions of law:

(A) Necessary to make the findings of fact (such as rulings on materiality and on the admissibility of evidence); and

(B) As to whether the applicable criteria for Federal acknowledgment have been met; and

(iii) Reasons for the findings and conclusions.

(2) The ALJ may adopt any of the findings of fact proposed by one or more of the parties.

(c) Service. Promptly after issuing a recommended decision, the ALJ must:

(1) Serve the recommended decision on each party to the hearing process; and

(2) Forward the complete hearing record to the Assistant Secretary—Indian Affairs, including the recommended decision.

Subpart L—Specific Rules Applicable to Hearings and Appeals Concerning Surface Coal Mining

General Provisions

§ 4.1100 Scope and definitions.

(a) Scope. This subpart contains the rules applicable to hearings and appeals concerning surface coal mining. Subpart A contains the authority, jurisdiction, and membership of the Departmental Cases Hearings Division (DCHD) and the Interior Board of Land Appeals (Board) within the Office of Hearings and Appeals (OHA). Subpart B contains the general rules applicable to proceedings before DCHD and the Board as well as other components of OHA. For additional rules specific to proceedings before DCHD and the Board, see subparts C and E respectively.

(b) Definitions. In addition to the definitions in subpart A, the following definitions apply to this subpart:

(1) Act means the Surface Mining Control and Reclamation Act of 1977, 91 Stat. 445 et seq., 30 U.S.C. 1201 et seq.

(2) Administrative law judge or ALJ means an administrative law judge appointed to the Departmental Cases Hearings Division (DCHD) in the Office of Hearings and Appeals.

(3) Board means the Interior Board of Land Appeals in the Office of Hearings and Appeals.

§ 4.1101 Jurisdiction of the Board.

(a) The jurisdiction of the Board includes the authority to exercise the final decision-making power of the Secretary under the act pertaining to—

(1) Applications for review of decisions by OSM regarding determinations concerning permits for surface coal mining operations pursuant to section 514 of the act;

(2) Petitions for review of proposed assessments of civil penalties issued by OSM pursuant to section 518 of the act;

(3) Applications for review of notices of violation and orders of cessation or modifications, vacations, or terminations thereof, issued pursuant to section 521(a)(2) or section 521(a)(3) of the act;

(4) Proceedings for suspension or revocation of permits pursuant to section 521(a)(4) of the act;

(5) Applications for review of alleged discriminatory acts filed pursuant to section 703 of the act;

(6) Applications for temporary relief;

(7) Petitions for award of costs and expenses under section 525(e) of the act;

(8) Preliminary findings concerning a demonstrated pattern of willful violations under section 510(c) of the act;

(9) Suspension or rescission of improvidently-issued permits;

(10) Challenges to ownership or control listings or findings;

(11) Determinations under 30 CFR part 761;

(12) Appeals from orders or decisions of administrative law judges; and

(13) All other appeals and review procedures under the act which are permitted by these regulations.

(b) In performing its functions under paragraph (a) of this section, the Board is authorized to—

(1) Order hearings; and

(2) Issue orders to secure the just and prompt determination of all proceedings.

§ 4.1102 Construction.

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

§ 4.1103 Eligibility to practice.

(a) An administrative law judge or the Board may determine the eligibility of persons to practice before OHA in any proceeding under the act pursuant to 43 CFR part 1.

(b) If an administrative law judge or the Board determines that any person is not qualified to practice before OHA, the administrative law judge or the Board shall disqualify the person and report the disqualification to the Director of OHA.

(c) Upon receipt of a report under paragraph (b) of this section, the Director of OHA may request the Solicitor to initiate a disciplinary proceeding under 43 CFR 1.6.

§ 4.1104 General rules relating to procedure and practice.

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

§ 4.1105 Parties.

(a) All persons indicated in the act as parties to administrative review proceedings under the act shall be considered statutory parties. Such statutory parties include—

(1) In a civil penalty proceeding under § 4.1150, OSM, as represented by the Office of the Solicitor, Department of the Interior, and any person against whom a proposed assessment is made who files a petition;

(2) In a review proceeding under §§ 4.1160 through 4.1171, 4.1180 through 4.1187, 4.1300 through 4.1309, 4.1350 through 4.1356, 4.1360 through 4.1369, 4.1370 through 4.1377, 4.1380 through 4.1387 or 4.1390 through 4.1394 of this part, OSM, as represented by the Office of the Solicitor, Department of the Interior, and—

(i) If an applicant, operator, or permittee files an application or request for review, the applicant, operator, or permittee; and

(ii) If any other person having an interest which is or may be adversely affected files an application or request for review, the applicant, operator, or permittee and the person filing such application or request;

(3) In a proceeding to suspend or revoke a permit under § 4.1190 et seq. OSM, as represented by the Office of the Solicitor, Department of the Interior, and the permittee who is ordered to show cause why the permit should not be suspended or revoked; and

(4) In a discriminatory discharge proceeding under § 4.1200 et seq. OSM, as represented by the Office of the Solicitor, Department of the Interior, any employee or any authorized representative of employees who files an application for review, and the alleged discriminating party, except where the applicant files a request for the scheduling of a hearing under § 4.1201(c) only such applicant and the alleged discriminating party.

(5) In an appeal to the Board in accordance with 43 CFR 4.1280 through 4.1286 from a determination of the Director of OSM or his or her designee under 30 CFR 842.15(d) or a determination of an authorized representative under 30 CFR 843.12(i), the permittee of the operation that is the subject of the determination and any person whose interests may be adversely affected by the outcome on appeal and who participated before OSM. A person who wishes his or her identity kept confidential under 30 CFR 842.12(b) is responsible for maintaining that confidentiality when serving documents in accordance with § 4.1109.

(b) Any other person claiming a right to participate as a party may seek leave to intervene in a proceeding by filing a petition to do so pursuant to § 4.1110.

(c) If any person has a right to participate as a full party in a proceeding under the act and fails to exercise that right by participating in each stage of the proceeding, that person may become a participant with the rights of a party by order of an administrative law judge or the Board.

§ 4.1106 Hearing sites.

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

§ 4.1107 Filing of documents.

(a) Proceedings before an administrative law judge (ALJ). (1) Any initial pleadings or other documents in a proceeding to be conducted or being conducted by an ALJ under these rules must be filed with DCHD as specified in § 4.102 of this part as well as the OHA Standing Orders on Electronic Transmission and the OHA Standing Orders on Contact Information available on the Department of the Interior OHA website at https://www.doi.gov/oha.

(2) The effective filing date for documents filed with DCHD will be determined as specified in § 4.102(a). The person or entity filing the document has the burden of establishing the filing date.

(b) Proceedings before the Board. (1) Any notice of appeal, petition for review, or other documents in a proceeding to be conducted or being conducted by the Board must be filed as specified in § 4.407 of this part, the OHA Standing Orders on Electronic Transmission, and the OHA Standing Orders on Contact Information.

(2) The effective filing date for documents filed with the Board will be determined as specified in § 4.407(a) of this part. The person or entity filing the document has the burden of establishing the filing date.

§ 4.1108 Form of documents.

(a) Any document filed with OHA in any proceeding brought under the act must 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 must contain the assigned docket number.

(c) The caption may include other information appropriate for identification of the proceeding, including the permit number or OSMRE identification number.

(d) Each document must contain a title that identifies the contents of the document following the caption.

(e) The original of any document filed with OHA must be signed, or digitally signed, by the person or entity submitting the document or by the representative of the person or entity.

(f) The mailing address, email address, telephone number, and other contact information for the person or entity filing the document or the attorney representing the person or entity must appear beneath the signature.

(g) Documents filed under this subpart with DCHD must also conform to the requirements of § 4.103 of this part, and documents filed under this subpart with the Board must also conform to § 4.408 of this part.

§ 4.1109 Service.

(a) Any party initiating a proceeding under the act must concurrently serve copies of the initiating documents on the appropriate office of the Office of the Solicitor representing OSMRE in the State or on the Indian lands in which the mining operation at issue is located and on any other statutory parties as specified under § 4.1105.

(b) The jurisdiction and contact information for the appropriate office of the Office of the Solicitor to be served under paragraph (a) of this section are set forth in the OHA Standing Orders on Contact Information.

(c) All other documents filed with DCHD must be served as specified in § 4.102.

(d) All other documents filed with the Board must be served as specified in § 4.407.

§ 4.1110 Intervention.

(a) Any person, including a State, or OSM may petition for leave to intervene at any stage of a proceeding in OHA under the act.

(b) A petitioner for leave to intervene shall incorporate in the petition a statement setting forth the interest of the petitioner and, where required, a showing of why his interest is or may be adversely affected.

(c) The administrative law judge or the Board shall grant intervention where the petitioner—

(1) Had a statutory right to initiate the proceeding in which he wishes to intervene; or

(2) Has an interest which is or may be adversely affected by the outcome of the proceeding.

(d) If neither paragraph (c)(1) nor (c)(2) of this section apply, the administrative law judge or the Board shall consider the following in determining whether intervention is appropriate—

(1) The nature of the issues;

(2) The adequacy of representation of petitioner's interest which is provided by the existing parties to the proceeding;

(3) The ability of the petitioner to present relevant evidence and argument; and

(4) The effect of intervention on the agency's implementation of its statutory mandate.

(e) Any person, including a State, or OSM granted leave to intervene in a proceeding may participate in such proceeding as a full party or, if desired, in a capacity less than that of a full party. If an intervenor wishes to participate in a limited capacity, the extent and the terms of the participation shall be in the discretion of the administrative law judge or the Board.

§ 4.1111 Voluntary dismissal.

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

§ 4.1112 Motions.

(a) Except for oral motions made in proceedings on the record, or where the administrative law judge otherwise directs, each motion shall—

(1) Be in writing; and

(2) Contain a concise statement of supporting grounds.

(b) Unless the administrative law judge or the Board orders otherwise, any party to a proceeding in which a motion is filed under paragraph (a) of this section shall have 15 days from service of the motion to file a statement in response.

(c) Failure to make a timely motion or to file a statement in response may be construed as a waiver of objection.

(d) An administrative law judge or the Board shall rule on all motions as expeditiously as possible.

§ 4.1113 Consolidation of proceedings.

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

§ 4.1114 Advancement of proceedings.

(a) Except in expedited review proceedings under § 4.1180, or in temporary relief proceedings under § 4.1266, at any time after commencement of a proceeding, any party may move to advance the scheduling of a proceeding.

(b) Except as otherwise directed by the administrative law judge or the Board, any party filing a motion under this section shall—

(1) Make the motion in writing;

(2) Describe the exigent circumstances justifying advancement;

(3) Describe the irreparable harm that would result if the motion is not granted; and

(4) Incorporate in the motion affidavits to support any representations of fact.

(c) Service of a motion under this section shall be accomplished by personal delivery or telephonic communication followed by mail or by electronic transmission under the terms specified in the OHA Standing Orders on Electronic Transmission. Service is complete upon mailing or, if service is made by electronic transmission, at the time of transmission.

(d) Unless otherwise directed by the administrative law judge or the Board, all parties to the proceeding in which the motion is filed shall have 10 days from the date of service of the motion to file a statement in response to the motion.

(e) Following the timely receipt by the administrative law judge of statements in response to the motion, the administrative law judge may schedule a hearing regarding the motion. If the motion is granted, the administrative law judge may advance pleading schedules, prehearing conferences, and the hearing, as deemed appropriate: Provided, A hearing on the merits shall not be scheduled with less than 5 working days notice to the parties, unless all parties consent to an earlier hearing.

(f) If the motion is granted, the Board may, if it deems such action to be appropriate, advance the appeal on its calendar and order such other advancement as may be appropriate, including an abbreviated schedule for briefing or oral argument.

§ 4.1115 Waiver of right to hearing.

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

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

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

§ 4.1117 Reconsideration.

A party may file a petition for reconsideration from an order or decision of an ALJ or the Board as follows:

(a) A petition for reconsideration from an order or decision of an ALJ may only be filed in accordance with the provisions of § 4.130 of this part, except that a petition for reconsideration may not be filed in an expedited review proceeding under § 4.1180 or in a suspension or revocation proceeding under § 4.1190.

(b) A petition for reconsideration from an order or decision of the Board may only be filed in accordance with the provisions of § 4.415 of this part.

Hearings and Discovery

§ 4.1120 Presiding officers.

(a) General rules. The general procedural rules for practice before DCHD at §§ 4.100 through 4.131 of this part govern practice and procedure in addition to the specific rules set forth in subpart L.

(b) Presiding officer. An ALJ will preside over any hearings required by the act to be conducted pursuant to 5 U.S.C. 554. The ALJ has the authority to conduct the proceeding in an orderly and judicial manner and may take any action authorized by the act, subpart C of this part, subpart L of this part, or 5 U.S.C. 554-57.

§ 4.1121 Initial orders and decisions.

(a) An initial order or decision disposing of a case must contain:

(1) Findings of fact and conclusions of law as well as the reasons for those findings and conclusions as they relate to all material issues of fact, law, and discretion presented on the record; and

(2) An order granting or denying the relief.

(b) An initial order or decision will become final if that order or decision is not timely appealed to the Board under § 4.1270 or § 4.1271, unless the ALJ accepts a petition for reconsideration for further analysis under §§ 4.1117 and 4.130 of this part.

§ 4.1122 Termination of jurisdiction.

Except as otherwise provided in these regulations, the jurisdiction of an ALJ will terminate upon:

(a) The filing of a notice of appeal from an initial decision or other order dispositive of the proceeding;

(b) The issuance of an order by the Board granting a petition for review; or

(c) The expiration of the time period within which a petition for review or an appeal to the Board may be filed.

Petitions for Review of Proposed Assessments of Civil Penalties

§ 4.1150 Who may file.

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

§ 4.1151 Time for filing.

(a) A petition for review of a proposed assessment of a civil penalty must be filed within 30 days of receipt of the proposed assessment; or

(b) If a timely request for a conference has been made pursuant to 30 CFR 723.18 or 845.18, a petition for review must be filed within 30 days from service of notice by the conference officer that the conference is deemed completed.

(c) No extension of time will be granted for filing a petition for review of a proposed assessment of a civil penalty as required by paragraph (a) or (b) of this section. If a petition for review is not filed within the time period provided in paragraph (a) or (b) of this section, the appropriateness of the amount of the penalty, and the fact of the violation if there is no proceeding pending under section 525 of the Act to review the notice of violation or cessation order involved, shall be deemed admitted, the petition shall be dismissed, and the civil penalty assessed shall become a final order of the Secretary.

§ 4.1152 Contents of petition; payment required.

(a) The petition shall include—

(1) A short and plain statement indicating the reasons why either the amount of the penalty or the fact of the violation is being contested;

(2) If the amount of penalty is being contested based upon a misapplication of the civil penalty formula, a statement indicating how the civil penalty formula contained in 30 CFR part 723 or 845 was misapplied, along with a proposed civil penalty utilizing the civil penalty formula;

(3) Identification by number of all violations being contested;

(4) The identifying number of the cashier's check, certified check, bank draft, personal check, or bank money order accompanying the petition; and

(5) A request for a hearing site.

(b) The petition shall be accompanied by—

(1) Full payment of the proposed assessment in the form of a cashier's check, certified check, bank draft, personal check or bank money order made payable to—Assessment Office, OSM—to be placed in an escrow account pending final determination of the assessment; and

(2) On the face of the payment an identification by number of the violations for which payment is being tendered.

(c) As required by section 518(c) of the act, failure to make timely payment of the proposed assessment in full shall result in a waiver of all legal rights to contest the violation or the amount of the penalty.

(d) No extension of time will be granted for full payment of the proposed assessment. If payment is not made within the time period provided in § 4.1151 (a) or (b), the appropriateness of the amount of the penalty, and the fact of the violation if there is no proceeding pending under section 525 of the Act of review the notice of violation or cessation order involved, shall be deemed admitted, the petition shall be dismissed, and the civil penalty assessed shall become a final order of the Secretary.

§ 4.1153 Answer.

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

§ 4.1154 Review of waiver determination.

(a) Within 10 days of the filing of a petition under this part, petitioner may move the administrative law judge to review the granting or denial of a waiver of the civil penalty formula pursuant to 30 CFR 723.16 or 845.16.

(b) The motion shall contain a statement indicating all alleged facts relevant to the granting or denial of the waiver;

(c) Review shall be limited to the written determination of the Director of OSM granting or denying the waiver, the motion and responses to the motion. The standard of review shall be abuse of discretion.

(d) If the administrative law judge finds that the Director of OSM abused his discretion in granting or denying the waiver, the administrative law judge shall hold the hearing on the petition for review of the proposed assessment required by section 518(b) of the act and make a determination pursuant to § 4.1157.

§ 4.1155 Burdens of proof in civil penalty proceedings.

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

§ 4.1156 Summary disposition.

(a) In a civil penalty proceeding where the person against whom the proposed civil penalty is assessed fails to comply on time with any prehearing order of an administrative law judge, the administrative law judge shall issue an order to show cause why—

(1) That person should not be deemed to have waived his right to a hearing; and