Title 43—Public Lands: Interior--Volume 2

§ 1.1 Purpose.

This part governs the participation of individuals in proceedings, both formal and informal, in which rights are asserted before, or privileges sought from, the Department of the Interior.

§ 1.2 Definitions.

As used in this part the term:

(a) Department includes any bureau, office, or other unit of the Department of the Interior, whether in Washington, DC, or in the field, and any officer or employee thereof;

(b) Solicitor means the Solicitor of the Department of the Interior or his authorized representative;

(c) Practice includes any action taken to support or oppose the assertion of a right before the Department or to support or oppose a request that the Department grant a privilege; and the term “practice” includes any such action whether it relates to the substance of, or to the procedural aspects of handling, a particular matter. The term “practice” does not include the preparation or filing of an application, the filing without comment of documents prepared by one other than the individual making the filing, obtaining from the Department information that is available to the public generally, or the making of inquiries respecting the status of a matter pending before the Department. Also, the term “practice” does not include the representation of an employee who is the subject of disciplinary, loyalty, or other personnel administrative proceedings.

§ 1.3 Who may practice.

(a) Only those individuals who are eligible under the provisions of this section may practice before the Department, but this provision shall not be deemed to restrict the dealings of Indian tribes or members of Indian tribes with the Department.

(b) Unless disqualified under the provisions of § 1.4 or by disciplinary action taken pursuant to § 1.6:

(1) Any individual who has been formally admitted to practice before the Department under any prior regulations and who is in good standing on December 31, 1963, shall be permitted to practice before the Department.

(2) Attorneys at law who are admitted to practice before the courts of any State, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Trust Territory of the Pacific Islands, or the District Court of the Virgin Islands will be permitted to practice without filing an application for such privilege.

(3) An individual who is not otherwise entitled to practice before the Department may practice in connection with a particular matter on his own behalf or on behalf of

(i) A member of his family;

(ii) A partnership of which he is a member;

(iii) A corporation, business trust, or an association, if such individual is an officer or full-time employee;

(iv) A receivership, decedent's estate, or a trust or estate of which he is the receiver, administrator, or other similar fiduciary;

(v) The lessee of a mineral lease that is subject to an operating agreement or sublease which has been approved by the Department and which grants to such individual a power of attorney;

(vi) A Federal, State, county, district, territorial, or local government or agency thereof, or a government corporation, or a district or advisory board established pursuant to statute; or

(vii) An association or class of individuals who have no specific interest that will be directly affected by the disposition of the particular matter.

§ 1.4 Disqualifications.

No individual may practice before the Department if such practice would violate the provisions of 18 U.S.C. 203, 205, or 207.

§ 1.5 Signature to constitute certificate.

When an individual who appears in a representative capacity signs a paper in practice before the Department, his signature shall constitute his certificate:

(a) That under the provisions of this part and the law, he is authorized and qualified to represent the particular party in the matter;

(b) That, if he is the partner of a present or former officer or employee, including a special Government employee, the matter in respect of which he intends to practice is not a matter in which such officer or employee of the Government or special Government employee participates or has participated personally and substantially as a Government employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise and that the matter is not the subject of such partner's official Government responsibility;

(c) That, if he is a former officer or employee, including a special Government employee, the matter in respect of which he intends to practice is not a matter in which he participated personally and substantially as a Government employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, while so employed and, if a period of one year has not passed since the termination of his employment with the Government, that the matter was not under his official responsibility as an officer or employee of the Government; and

(d) That he has read the paper; that to the best of his knowledge, information, and belief there is good ground to support its contents; that it contains no scandalous or indecent matter; and that it is not interposed for delay.

§ 1.6 Disciplinary proceedings.

(a) Disciplinary proceedings may be instituted against anyone who is practicing or has practiced before the Department on grounds that he is incompetent, unethical, or unprofessional, or that he is practicing without authority under the provisions of this part, or that he has violated any provisions of the laws and regulations governing practice before the Department, or that he has been disbarred or suspended by any court or administrative agency. Individuals practicing before the Department should observe the Canons of Professional Ethics of the American Bar Association and those of the Federal Bar Association, by which the Department will be guided in disciplinary matters.

(b) Whenever in the discretion of the Solicitor the circumstances warrant consideration of the question whether disciplinary action should be taken against an individual who is practicing or has practiced before the Department, the Solicitor shall appoint a hearing officer to consider and dispose of the case. The hearing officer shall give the individual adequate notice of, and an opportunity for a hearing on, the specific charges against him. The hearing shall afford the individual an opportunity to present evidence and cross-examine witnesses. The hearing officer shall render a decision either (1) dismissing the charges, or (2) reprimanding the individual or suspending or excluding him from practice before the Department.

(c) Within 30 days after receipt of the decision of the hearing officer reprimanding, suspending, or excluding an individual from practice before the Department, an appeal may be filed with the Solicitor, whose decision shall be final.

§ 2.1 What should you know up front?

(a) Subparts A through I of this part contain the rules that the Department follows in processing records under the Freedom of Information Act (FOIA), 5 U.S.C. 552.

(b) Definitions of terms used in Subparts A through I of this part are found at § 2.70.

(c) Subparts A through I of this part should be read in conjunction with the text of the FOIA and the OMB Fee Guidelines.

(d) The Department's FOIA Handbook and its attachments contain detailed information about Department procedures for making FOIA requests and descriptions of the types of records maintained by different Department bureaus or offices. This resource is available at https://www.doi.gov/foia/news/guidance.

(e) The Department's regulations for requests made under the Privacy Act of 1974, 5 U.S.C. 552a, are located at subpart K of this part.

(f) Part 2 does not entitle any person to any service or to the disclosure of any record that is not required under the FOIA.

(g) Before you file a FOIA request, you are encouraged to review the Department's electronic FOIA libraries at http://www.doi.gov/foia/libraries. The material you seek may be immediately available electronically at no cost.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11127, Mar. 3, 2016]

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

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

[77 FR 76902, Dec. 31, 2012, as amended at 84 FR 61826, Nov. 14, 2019]

§ 2.3 Where should you send a FOIA request?

(a) The Department does not have a central location for submitting FOIA requests and it does not maintain a central index or database of records in its possession. Instead, the Department's records are decentralized and maintained by various bureaus and offices throughout the country.

(b) To make a request for Department records, you must write directly to the bureau that you believe maintains those records by utilizing the written forms of submission listed on the Department's FOIA website, https://www.doi.gov/foia, or utilizing physical or facsimile addresses of an appropriate FOIA contact, located at http://www.doi.gov/foia/contacts.

(c) Questions about where to send a FOIA request should be directed to the bureau that manages the underlying program or to the appropriate FOIA Requester Center, as discussed in § 2.66 of this part.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11127, Mar. 3, 2016; 84 FR 61826, Nov. 14, 2019]

§ 2.4 Does where you send your request affect its processing?

(a) A request to a particular bureau or a bureau component (for example, a request addressed to a regional or field office) will be presumed to seek only records from that particular bureau or component. A request will not be forwarded to another bureau or component unless it is clear on the face of your request that it was misdirected. For example, if you address your request to an appropriate FOIA contact in the National Park Service and ask for records concerning a specific park, but your request is delivered to the Fish and Wildlife Service, your request was clearly misdirected. In such a case, a FOIA contact in the receiving bureau or component will route the request to a FOIA contact in the proper bureau or component. If you need assistance determining where to send a request, you may seek assistance from the bureau's designated FOIA contact or FOIA Requester Center (see § 2.66 of this part).

(b) If you seek records from an entire bureau, submit your request to the bureau FOIA Officer. The bureau FOIA Officer will forward it to the bureau component(s) that he or she believes has or are likely to have responsive records.

(c) If a request to a bureau states that it seeks records located at another specific component of the same bureau, the appropriate FOIA contact will forward the request to the other component.

(d) If a request to a bureau states that it seeks records from other unspecified components within the same bureau, the appropriate FOIA contact will send the request to the Bureau FOIA Officer. He or she will forward it to the components that the bureau FOIA Officer believes have or are likely to have responsive records.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 92694, Dec. 20, 2016; 84 FR 61826, Nov. 14, 2019]

§ 2.5 How should you describe the records you seek?

(a) You must reasonably describe the records sought. A reasonable description contains sufficient detail to enable bureau personnel familiar with the subject matter of the request to locate the records with a reasonable amount of effort.

(b) You should include as much detail as possible about the specific records or types of records that you are seeking. This will assist the bureau in identifying the requested records (for example, time frames involved or specific personnel who may have the requested records). For example, whenever possible, identify:

(1) The date, title or name, author, recipient, and subject of any particular records you seek;

(2) The office that created the records you seek;

(3) The timeframe for which you are seeking records; and

(4) Any other information that will assist the bureau in locating the records.

(c) The bureau's FOIA Requester Center can assist you in formulating or reformulating a request in an effort to better identify the records you seek.

(d) If the bureau determines that your request does not reasonably describe the records sought, the bureau will inform you what additional information you need to provide in order to reasonably describe the records that you seek so the requested records can be located with a reasonable amount of effort. The bureau will also notify you that it will not be able to comply with your request unless the additional information it has requested is received from you in writing within 20 workdays after the bureau has requested it and that you may appeal its determination. If you receive this type of notification, you may wish to discuss it with the bureau's designated FOIA contact or its FOIA Public Liaison (see § 2.66 of this part). If the bureau does not receive your written response containing the additional information within 20 workdays after the bureau has requested it, the bureau will presume that you are no longer interested in the records and will close the file on the request.

[77 FR 76902, Dec. 31, 2012; 78 FR 6216, Jan. 30, 2013, as amended at 81 FR 11127, Mar. 3, 2016; 84 FR 61826, Nov. 14, 2019]

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

(a) Your request must explicitly state that you will pay all fees associated with processing the request, that you will pay fees up to a specified amount, and/or that you are seeking a fee waiver.

(b) If, after taking into consideration your fee category entitlements (see § 2.39 of this part), the bureau anticipates processing costs will exceed $50.00 (see § 2.37(g) of this part) and these processing costs exceed the amount you have agreed to pay or you did not agree in writing to pay processing fees or request a fee waiver, the bureau will notify you:

(1) Of the estimated processing fees;

(2) Of its need for either an advance payment (see § 2.50 of this part) or your written assurance that you will pay the anticipated fees (or fees up to a specified amount); and

(3) That it will not be able to fully comply with your request unless you provide a fee waiver request and/or the requested written assurance or advance payment.

(c) If the bureau does not receive a written response from you within 20 workdays after requesting the information in paragraph (b) of this section, it will presume that you are no longer interested in the records and will close the file on the request.

(d) If you are seeking a fee waiver, your request must include a justification that addresses and meets the criteria in §§ 2.45 and 2.48 of this part. Failure to provide sufficient justification will result in a denial of the fee waiver request. If you are seeking a fee waiver, you may also indicate the amount you are willing to pay if the fee waiver is denied. This allows the bureau to process the request for records while it considers your fee waiver request. You may also inform us of why you believe your request meets one or more of the criteria for a discretionary fee waiver under § 2.56 of this part.

(e) The bureau will begin processing your request only after all issues regarding fees are resolved.

(f) If you are required to pay a fee and it is later determined on appeal that you were entitled to a full or partial fee waiver or placement in a different fee category, you will receive an appropriate refund.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11128, Mar. 3, 2016; 84 FR 61826, Nov. 14, 2019]

§ 2.7 What information should you include about your fee category?

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

(b) If you submit a FOIA request on behalf of another person or organization (for example, if you are an attorney submitting a request on behalf of a client), the bureau will determine the fee category by considering the underlying requester's identity and intended use of the information.

(c) If your fee category is unclear, the bureau may ask you for additional information (see § 2.51 of this part).

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

(a) Generally, you may choose the form or format of disclosure for records requested. The bureau must provide the records in the requested form or format if the bureau can readily reproduce the record in that form or format. If the bureau cannot readily reproduce the record in that form or format, it must explain why it cannot.

(b) The bureau may charge you the direct costs involved in converting records to the requested format if the bureau does not normally maintain the records in that format (see § 2.44 of this part).

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11128, Mar. 3, 2016]

§ 2.9 What if your request seeks records about another person?

(a) When a request seeks records about another person, you may receive greater access by submitting proof that the person either:

(1) Consents to the release of the records to you (for example, a notarized authorization signed by that person); or

(2) Is deceased (for example, a copy of a death certificate or an obituary).

(b) The bureau can require you to supply additional information if necessary to verify that a particular person has consented to disclosure or is deceased.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11128, Mar. 3, 2016]

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

You may ask for the processing of your request to be expedited. If you are seeking expedited processing, your request must include a justification that addresses and meets the criteria in § 2.20 of this part and includes the certification required at § 2.20(b)(2) of this part. Failure to provide sufficient justification or the required certification will result in a denial of the expedited processing request.

[81 FR 11128, Mar. 3, 2016]

§ 2.11 What contact information should your request include?

A request should include your name and a way (such as a mailing or email address) for the bureau to send responsive records to you and/or to request additional information or clarification of your request. You may also wish to include a daytime telephone number (or the name and telephone number of an appropriate contact).

[81 FR 11128, Mar. 3, 2016]

§ 2.12 What should you know about how bureaus process requests?

(a) Except as described in §§ 2.4 and 2.13 of this part, the bureau to which the request is addressed is responsible for responding to the request and for making a reasonable effort to search for responsive records.

(b) In determining which records are responsive to a request, the bureau will include only records in its possession and control on the date that it begins its search.

(c) The bureau will make reasonable efforts to search for the requested records. As part of its reasonable efforts, the bureau will search paper and/or electronic records (for example, emails), as appropriate. The bureau will not search for records in an electronic form or format if these efforts would significantly interfere with the operation of the bureau's automated information system.

(d) If a bureau receives a request for records in its possession that primarily concern another bureau or Federal Government agency that is subject to FOIA, it may undertake consultations and/or referrals as described in § 2.13.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11128, Mar. 3, 2016; 84 FR 61826, Nov. 14, 2019]

§ 2.13 How do consultations and referrals work?

(a) When a bureau (other than the Office of Inspector General) locates responsive records that primarily concern another bureau or Federal Government agency that is subject to FOIA, the bureau will determine whether that bureau or agency would be better able to determine whether the record is exempt from disclosure.

(b) If the bureau processing the request believes that another bureau or agency would be better able to determine whether the record is exempt from disclosure, the bureau will contact that bureau or agency to determine whether it should refer the record to that bureau or agency or consult with that bureau or agency.

(1) If the bureau processing the request refers a record to another bureau or agency, that other bureau or agency will respond to you directly about that record. If the bureau processing the request consults with another bureau or agency, the bureau processing the request will respond to you directly.

(2) If the bureau receives a request for records that another agency has classified under any applicable executive order concerning record classification, or that the bureau believes may be appropriate for classification by another agency, it will refer the request for those records to that agency for response.

(3) Whenever a bureau refers any part of the responsibility for responding to a request to another bureau or agency, it will:

(i) Document the referral;

(ii) Maintain a copy of the referred record; and

(iii) Notify you in writing of the referral, including whether all or part of your request has been referred, the name of the bureau or agency to which the record was referred, and that bureau or agency's FOIA contact information.

(4) If disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemption that protects ongoing law enforcement investigations, a referral would be inappropriate and the bureau will coordinate with the agency instead.

(c) When a bureau receives a referral, the bureau will assign the referral to the appropriate processing track as described in § 2.15 of this part and process it according to the date that the consulting or referring bureau or agency received your request as described in § 2.14 of this part.

(d) Bureaus may establish written agreements with other bureaus or agencies to eliminate the need for consultations or referrals for particular types of records.

[84 FR 61826, Nov. 14, 2019]

§ 2.14 In what order are responses usually made?

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

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

(a) Bureaus use processing tracks to distinguish simple requests from more complex ones on the basis of the estimated number of workdays needed to process the request.

(b) In determining the number of workdays needed to process the request, the bureau considers factors such as the number of pages involved in processing the request or the need for consultations.

(c) The basic processing tracks are assigned according to the expected complexity of the collection/review/production process of each request and designated as follows:

(1) Simple: requests in this track would generally take between one to five workdays to process;

(2) Normal: requests in this track would generally take between six to twenty workdays to process;

(3) Complex: requests in this track would generally take between twenty-one workdays and sixty workdays to process; or

(4) Extraordinary: requests in this track involve very complex processing challenges, which may include a large number of potentially responsive records, and would generally take over sixty workdays to process.

(d) Bureaus also have a specific processing track for requests that are granted expedited processing under the standards in § 2.20 of this part. These requests will be processed as soon as practicable.

(e) Bureaus must advise you of the track into which your request falls and, when appropriate, will offer you an opportunity to narrow your request so that it can be placed in a different processing track. If you request placement in a particular processing track but the bureau places you in a different processing track, the bureau will provide you with an explanation of why you were not placed in the processing track you requested.

(f) The use of multitrack processing does not alter the statutory deadline for a bureau to determine whether to comply with your FOIA request (see § 2.16 of this part).

(g) You may track the status of your request, including its estimated processing completion date, at https://foia.doi.gov/requeststatus/.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11128, Mar. 3, 2016; 81 FR 92694, Dec. 20, 2016; 84 FR 61827, Nov. 14, 2019]

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

(a) Ordinarily, the bureau has 20 workdays (including the date of receipt) to determine whether to comply with a request, but unusual circumstances may allow the bureau to take longer than 20 workdays (see § 2.19 of this subpart).

(b) A consultation or referral under § 2.13 of this part does not restart the statutory time limit for responding to a request.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11128, Mar. 3, 2016]

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

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

[77 FR 76902, Dec. 31, 2012, as amended at 84 FR 61827, Nov. 14, 2019]

§ 2.18 When can the bureau suspend the basic time limit?

(a) The basic time limit in § 2.16 of this part may be temporarily suspended for the time it takes you to respond to one written communication from the bureau reasonably asking for clarifying information.

(b) The basic time limit in § 2.16 may also repeatedly be temporarily suspended for the time it takes you to respond to written communications from the bureau that are necessary to clarify issues regarding fee assessment (see § 2.51 of this part).

§ 2.19 When may the bureau extend the basic time limit?

(a) The bureau may extend the basic time limit, if unusual circumstances exist, by notifying you in writing of:

(1) The unusual circumstances involved; and

(2) The date by which it expects to complete processing the request.

(b) If the processing time will extend beyond a total of 30 workdays, the bureau will:

(1) Give you an opportunity to limit the scope of the request or agree to an alternative time period for processing; and

(2) Make available the FOIA Public Liaison (see § 2.66 of this part) to assist in resolving any disputes between you and the bureau, and notify you of your right to seek dispute resolution from the Office of Government Information Services (OGIS).

(c) If the bureau extends the time limit under this section and you do not receive a response in accordance with § 2.16(a) in that time period, you may consider the request denied and file an appeal in accordance with the procedures in § 2.59.

(d) Your refusal to reasonably modify the scope of a request or arrange an alternative time frame for processing a request after being given the opportunity to do so may be considered for litigation purposes as a factor when determining whether exceptional circumstances exist.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11128, Mar. 3, 2016; 81 FR 92694, Dec. 20, 2016; 84 FR 61827, Nov. 14, 2019]

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

(a) The bureau will provide expedited processing upon request if you demonstrate to the satisfaction of the bureau that there is a compelling need for the records. The following circumstances demonstrate a compelling need:

(1) Failure to expedite the request could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or

(2) There is an urgency to inform the public about an actual or alleged Federal Government activity and the request is made by a person primarily engaged in disseminating information.

(i) In most situations, a person primarily engaged in disseminating information will be a representative of the news media.

(ii) If you are not a full time member of the news media, to qualify for expedited processing here, you must establish that your main professional activity or occupation is information dissemination, although it need not be your sole occupation.

(iii) The requested information must be the type of information that has particular value that will be lost if not disseminated quickly; this ordinarily refers to a breaking news story that concerns a matter of public exigency.

(iv) Information of historical interest only or information sought for litigation or commercial activities would not qualify, nor would a news media deadline unrelated to breaking news.

(b) If you seek expedited processing, you must submit a statement that:

(1) Explains in detail how all elements and subcomponents of your request meets each element of one or both of the criteria in paragraph (a) of this section; and

(2) Certifies that your explanation is true and correct to the best of your knowledge and belief.

(c) You may ask for expedited processing of your request by writing to the appropriate FOIA contact in the bureau that maintains the records requested any time before the bureau issues its final response to your request. Bureaus will consult with the Office of the Solicitor before granting expedited processing requests and responses to you will include the name and title of the Office of the Solicitor or Office of General Counsel attorney consulted. If only a portion of your request would qualify for expedited processing, we will:

(1) Assign the portion of the request that qualifies for expedited processing a new processing number and place it in the expedited processing track as described in § 2.15;

(2) Place the remainder of the request that does not qualify for expedited processing into the appropriate processing track as described in § 2.15; and

(3) Inform you of the basis for the partial denial of expedited processing and your right to file an appeal as set forth in § 2.20(g) of this subpart.

(d) When making a request for expedited processing of an administrative appeal, submit the request to the appropriate deciding official for FOIA appeals.

(e) The bureau must notify you of its decision to grant or deny expedited processing within 10 calendar days of receiving an expedited processing request.

(f) If expedited processing is granted, the request will be given priority, placed in the processing track for expedited requests, and be processed as soon as practicable.

(g) If expedited processing is denied, the bureau will:

(1) Inform you of the basis for the denial, including an explanation of why the expedited processing request does not meet the Department's expedited processing criteria under this section; and

(2) Notify you of the right to appeal the decision on expedited processing in accordance with the procedures in subpart H of this part.

(h) If you appeal the bureau's expedited processing decision, that portion of your appeal (if it is properly formatted under § 2.59) will be processed before appeals that do not challenge expedited processing decisions.

(i) If the bureau has not responded to the request for expedited processing within 10 calendar days, you may file an appeal (for nonresponse in accordance with § 2.57(a)(8)).

[84 FR 61827, Nov. 14, 2019]

§ 2.21 How will the bureau respond to requests?

(a) When the bureau informs you of its decision to comply with a request by granting, partially granting, or denying the request, it will do so in writing and in accordance with the deadlines in subpart D of this part. The bureau's written response will include a statement about the services offered by the FOIA Public Liaison. The bureau's written response will also include a statement about the services offered by OGIS, using standard language that can be found at: https://www.doi.gov/foia/news/guidance.”

(b) If the bureau determines that your request will take longer than 10 workdays to process, the bureau immediately will send you a written acknowledgment that includes the request's individualized tracking number and processing track (see § 2.15(e)). The acknowledgement may also include a brief description of the subject of your request.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016; 81 FR 92694, Dec. 20, 2016; 84 FR 61828, Nov. 14, 2019]

§ 2.22 How will the bureau grant requests?

(a) Once the bureau makes a determination to grant a request in full or in part, it must notify you in writing.

(b) The notification will inform you of any fees charged under subpart G of this part.

(c) The bureau will release records (or portions of records) to you promptly upon payment of any applicable fees (or before then, at its discretion).

(d) If the records (or portions of records) are not included with the bureau's notification, the bureau will advise you how, when, and where the records will be released or made available.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016]

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

(a) A bureau denies a request when it makes a decision that:

(1) A requested record is exempt, in full or in part;

(2) The request does not reasonably describe the records sought;

(3) A requested record does not exist, cannot be located, or is not in the bureau's possession and/or control; or

(4) A requested record is not readily reproducible in the form or format you seek.

(b) A bureau denies a procedural benefit only, and not access to the underlying records, when it makes a decision that:

(1) A fee waiver, or another fee-related issue, will not be granted; or

(2) Expedited processing will not be provided.

(c) The bureau must consult with the Office of the Solicitor before it denies a fee waiver request or withholds all or part of a requested record (unless the Office of the Solicitor has expressly preapproved such a withholding).

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016; 84 FR 61828, Nov. 14, 2019]

§ 2.24 How will the bureau deny requests?

(a)The bureau must notify you in writing of any denial of your request.

(b) The denial notification must include:

(1) The name and title or position of the person responsible for the denial, along with an office phone number or email address;

(2) A statement of the reasons for the denial;

(3) A reference to any FOIA exemption applied by the bureau to withhold records in full or in part, along with a statement that the bureau reasonably foresees that disclosure would harm an interest protected by the applied exemption(s) or disclosure is prohibited by law;

(4) An estimate of the volume of any records withheld in full or in part (for example, by providing the number of pages or some other reasonable form of estimation), unless the bureau notes that it does not have or could not locate responsive records or that including an estimate would harm an interest protected by an exemption used to withhold the records and the bureau explains this harm to you;

(5) The name and title of the Office of the Solicitor or Office of General Counsel attorney consulted (if the bureau is denying a fee waiver request or withholding all or part of a requested record); and

(6) A statement that the denial may be appealed under subpart H of this part and a description of the procedures in subpart H of this part.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016; 81 FR 92694, Dec. 20, 2016; 84 FR 61828, Nov. 14, 2019]

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

If responsive records contain both exempt and nonexempt material, the bureau will consult with the Office of the Solicitor, as discussed in § 2.23(c). After consultation, the bureau will partially grant and partially deny the request by:

(a) Segregating and releasing the nonexempt information, unless the nonexempt material is so intertwined with the exempt material that disclosure of it would leave only meaningless words and phrases;

(b) Indicating on the released portion of the record the amount of information deleted and the FOIA exemption under which the deletion was made, unless doing so would harm an interest protected by the FOIA exemption used to withhold the information; and

(c) If technically feasible, indicating the amount of information deleted and the FOIA exemption under which the deletion was made at the place in the record where the deletion was made.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016]

§ 2.26 May submitters of possibly confidential information designate information as confidential when making Departmental submissions?

(a) The Department encourages, but does not require, submitters to designate confidential information in good faith (in other words, to identify specific information as information the submitter considers protected from disclosure under Exemption 4 of the FOIA, found at 5 U.S.C. 552(b)(4)), at the time of submission or reasonably soon thereafter.

(b) The designations discussed in paragraph (a) of this section assist the bureau in identifying what information obtained from the submitter is possibly confidential and triggers the requirement for bureau-provided notifications under § 2.27(a)(1) of this subpart.

[81 FR 11129, Mar. 3, 2016]

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

(a) Except as outlined in § 2.29 of this subpart, a bureau must exercise due diligence to promptly notify a submitter in writing when it receives a FOIA request if:

(1) The requested information has been designated by the submitter as confidential information under § 2.26(a) of this subpart; or

(2) The requested information has not been designated as confidential information by the submitter under § 2.26(a) of this subpart, but the bureau identifies it as possibly confidential information.

(b) If a voluminous number of submitters are involved, the bureau may publish a notice in a manner reasonably calculated to reach the attention of the submitters (for example, in newspapers or newsletters, the bureau's Web site, or the Federal Register) instead of providing a written notice to each submitter.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016; 84 FR 61828, Nov. 14, 2019]

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

A notice to a submitter must include:

(a) Either a copy of the request, the exact language of the request, or (for notices published under § 2.27(b) of this subpart) a general description of the request;

(b) Either a description of the possibly confidential information located in response to the request or a copy of the responsive records, or portions of records, containing the information;

(c) A description of the procedures for objecting to the release of the possibly confidential information under §§ 2.30 and 2.31 of this subpart;

(d) A time limit for responding to the bureau—no less than 10 workdays from receipt or publication of the notice (as set forth in § 2.27(b) of this subpart)—to object to the release and to explain the basis for the objection;

(e) Notice that information contained in the submitter's objections may itself be subject to disclosure under the FOIA;

(f) Notice that the bureau, not the submitter, is responsible for deciding whether the information will be released or withheld;

(g) A request for the submitter's views on whether they still consider the information to be confidential if the submitter designated the material as confidential commercial or financial information 10 or more years before the request; and

(h) Notice that failing to respond within the time frame specified under § 2.28(d) of this subpart will create a presumption that the submitter has no objection to the disclosure of the information in question.

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016]

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

The notice requirements of § 2.28 of this subpart will not apply if:

(a) The information has been lawfully published or officially made available to the public;

(b) Disclosure of the information is required or prohibited by a statute other than the FOIA or by a regulation (other than this part) issued in accordance with the requirements of Executive Order 12600; or

(c) The bureau has exercised due diligence to notify the submitter, but its efforts were unsuccessful.

[77 FR 76906, Dec. 31, 2012, as amended at 84 FR 61828, Nov. 14, 201]

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

(a) If a submitter has any objections to the disclosure of confidential information, the submitter should provide a detailed written statement to the bureau that specifies all grounds for withholding the particular information under any FOIA exemption (see § 2.31 of this subpart for further discussion of Exemption 4 objection statements).

(b) A submitter who does not respond within the time period specified under § 2.28(d) of this subpart will be considered to have no objection to disclosure of the information. Responses received by the bureau after this time period will not be considered by the bureau unless the appropriate bureau FOIA contact determines, in his or her sole discretion, that good cause exists to accept the late response.

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

(a) To rely on Exemption 4 as a basis for nondisclosure, the submitter must explain why the information is confidential information. To do this, the submitter must provide a detailed written statement that explains why the information is a trade secret or, if the information is not a trade secret, certification that the information is both customarily and actually treated as private by the owner of the information. The statement must also include any available background on whether the information was provided to the government under an assurance that the government would keep it private.

(b) If not already provided, the submitter must include a daytime telephone number, an email and mailing address, and a fax number (if available).

[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016; 84 FR 61828, Nov. 14, 2019]

§ 2.32 How will the bureau consider the submitter's objections?

(a) The bureau must carefully consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.

(b) The bureau, not the submitter, is responsible for deciding whether the information will be released or withheld.

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

If the bureau decides to disclose information over the objection of a submitter, the bureau must notify the submitter by certified mail or other traceable mail, return receipt requested. The notification must be sent to the submitter's last known address and must include:

(a) The specific reasons why the bureau determined that the submitter's disclosure objections do not support withholding the information;

(b) Copies of the records or information the bureau intends to release; and

(c) Notice that the bureau intends to release the records or information no less than 10 workdays after receipt of the notice by the submitter.

§ 2.34 Will a submitter be notified of a FOIA lawsuit?

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

§ 2.35 Will you receive notification of activities involving the submitter?

If any of the following occur, the bureau will notify you:

(a) The bureau provides the submitter with notice and an opportunity to object to disclosure;

(b) The bureau notifies the submitter of its intent to disclose the requested information; or

(c) A submitter files a lawsuit to prevent the disclosure of the information.

§ 2.36 Can a bureau release information protected by Exemption 4?

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

§ 2.37 What general principles govern fees?

(a) The bureau will charge for processing requests under the FOIA in accordance with this subpart and with the OMB Fee Guidelines.

(b) The bureau may contact you for additional information to resolve fee issues.

(c) The bureau ordinarily will collect all applicable fees before sending copies of records to you.

(d) You may usually pay fees by check, certified check, or money order made payable to the “Department of the Interior” or the bureau.

(1) Where appropriate, the bureau may require that your payment be made in the form of a certified check.

(2) You may also be able to pay your fees by credit card. You may contact the bureau to determine what forms of payment it accepts.

(e) The bureau should ensure that it conducts searches, review, and duplication in the most efficient and the least expensive manner so as to minimize costs for both you and the bureau.

(f) If the bureau does not comply with any time limit in the FOIA:

(1) Except as provided in paragraph (f)(2) of this section, the bureau cannot assess any search fees (or, if you are in the fee category of a representative of the news media or an educational and noncommercial scientific institution, duplication fees).

(2)(i) If the bureau has determined that unusual circumstances apply (as the term is defined in § 2.70) and the bureau provided you a timely written notice to extend the basic time limit in accordance with § 2.19, the noncompliance is excused for an additional 10 workdays.

(ii) If the bureau has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, the noncompliance is excused if the bureau has provided you a timely written notice in accordance with § 2.19 and has discussed with you via written mail, email, or telephone (or made not less than 3 good-faith attempts to do so) how you could effectively limit the scope of the request.

(iii) If a court has determined that exceptional circumstances exist (as that term is defined in § 2.70), the noncompliance is excused for the length of time provided by the court order.

(g) If the fee for processing your request is less than $50, you will not be charged unless multiple requests are aggregated under § 2.54 of this subpart to an amount that is $50 or more.

(h) If you fail to pay any FOIA-related fee within 30 calendar days of the date of billing, the processing of any new or ongoing requests and/or appeals from you shall ordinarily be suspended.

(i) If you would like to reformulate your request so it will meet your needs at a lower cost, you may wish to seek assistance from the bureau's designated FOIA contact or its FOIA Requester Center(see § 2.66 of this part).

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016; 81 FR 92694, Dec. 20, 2016; 84 FR 61828, Nov. 14, 2019]

§ 2.38 What are the requester fee categories?

(a) There are four categories of requesters for the purposes of determining fees—commercial-use, educational and noncommercial scientific institutions, representatives of news media, and all others.

(b) The bureau's decision to place you in a particular fee category will be made on a case-by-case basis based on your intended use of the information and, in most cases, your identity. If you do not submit sufficient information in your FOIA request for the bureau to determine your proper fee category, the bureau may ask you to provide additional information (see § 2.51 of this subpart). If you request placement in a particular fee category but the bureau places you in a different fee category, the bureau will provide you with an explanation of why you were not placed in the fee category you requested (for example, if you were placed in the commercial use requester category rather than the category you requested, the bureau will describe how the records would further your commercial, trade, or profit interests).

(c) See § 2.70 of this part for the definitions of each of these fee categories.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016]

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

You will be charged as shown in the following table:

Requester Category | Search fees | Review fees | Duplication fees

Commercial use requester | Yes | Yes | Yes.

Educational and noncommercial scientific institutions | No | No | Yes (first 100 pages, or equivalent volume, free).

Representative of news media requester | No | No | Yes (first 100 pages, or equivalent volume, free).

All other requesters | Yes (first 2 hours free) | No | Yes (first 100 pages, or equivalent volume, free).

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016; 81 FR 92694, Dec. 20, 2016]

§ 2.40 How will fee amounts be determined?

(a) The bureau will charge the types of fees discussed below unless a waiver of fees is required under § 2.39 of this subpart or has been granted under § 2.45 or § 2.56.

(b) Because the types of fees discussed below already account for the overhead costs associated with a given fee type, the bureau should not add any additional costs to those charges.

§ 2.41 What search fees will you have to pay?

(a) The bureau will charge search fees for all requests, subject to the restrictions of §§ 2.37(f), 2.39, and 2.40(a) of this subpart. The bureau may charge you for time spent searching even if it does not locate any responsive records or if it determines that the records are entirely exempt from disclosure.

(b) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be the average hourly General Schedule (GS) base salary, plus the District of Columbia locality payment, plus 16 percent for benefits, of employees in the following three categories, as applicable:

(1) Clerical—Based on GS-6, Step 5, pay (all employees at GS-7 and below are classified as clerical for this purpose);

(2) Professional—Based on GS-11, Step 7, pay (all employees at GS-8 through GS-12 are classified as professional for this purpose); and

(3) Managerial—Based on GS-14, Step 2, pay (all employees at GS-13 and above are classified as managerial for this purpose).

(c) You can review the current fee schedule for the categories discussed above in paragraph (b) of this section at http://www.doi.gov/foia/fees-waivers.

(d) Some requests may require retrieval of records stored at a Federal records center operated by the National Archives and Records Administration. For these requests, bureaus will charge additional costs in accordance with the Transactional Billing Rate Schedule established by the National Archives and Records Administration.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]

§ 2.42 What duplication fees will you have to pay?

(a) The bureau will charge duplication fees, subject to the restrictions of §§ 2.37(f), 2.39, and 2.40(a) of this subpart.

(b) If photocopies or scans are supplied, the bureau will provide one copy per request at the cost determined by the table in appendix A to this part.

(c) For other forms of duplication, the bureau will charge the actual costs of producing the copy, including the time spent by personnel duplicating the requested records. For each quarter hour spent by personnel duplicating the requested records, the fees will be the same as those charged for a search under § 2.41(b) of this subpart.

(d) If the bureau must scan paper records to accommodate your preference to receive records in an electronic format or print electronic records to accommodate your preference to receive records in a paper format, you will pay both the per page amount noted in Appendix A to this part and the time spent by personnel scanning or printing the requested records. For each quarter hour spent by personnel scanning or printing the requested records, the fees will be the same as those charged for a search under § 2.41(b) of this subpart.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]

§ 2.43 What review fees will you have to pay?

(a) The bureau will charge review fees if you make a commercial-use request, subject to the restrictions of §§ 2.37(f), 2.39, and 2.40(a) of this subpart.

(b) The bureau will assess review fees in connection with the initial review of the record (the review conducted by the bureau to determine whether an exemption applies to a particular record or portion of a record).

(c) The Department will not charge for reviews at the administrative appeal stage of exemptions applied at the initial review stage. However, if the appellate authority determines that an exemption no longer applies, any costs associated with the bureau's re-review of the records to consider the use of other exemptions may be assessed as review fees.

(d) The bureau will charge review fees at the same rates as those charged for a search under § 2.41(b) of this subpart.

(e) The bureau can charge review fees even if the record(s) reviewed ultimately is not disclosed.

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

(a) Although not required to provide special services, if the bureau chooses to do so as a matter of administrative discretion, it will charge you the direct costs of providing the service.

(b) Examples of these services include providing multiple copies of the same record, converting records that are not already maintained in a requested format to the requested format, obtaining research data under § 2.69 of this part, sending records by means other than first class mail, and conducting a search that requires the creation of a new computer search program to locate the requested records.

(c) The bureau will notify you of these fees before they accrue and will obtain your written assurance of payment or an advance payment before proceeding. See §§ 2.49 and 2.50 of this subpart.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]

§ 2.45 When will the bureau waive fees?

(a) The bureau will release records responsive to a request without charge (in other words, it will give you a full fee waiver) or at a reduced charge (in other words, it will give you a partial fee waiver, as discussed further in paragraph (b) of this section) if the bureau determines, considering the information you have provided, that you have demonstrated (by addressing and meeting each of the criteria listed in § 2.48 of this subpart) that disclosing the information is:

(1) In the public interest because it is likely to contribute significantly to public understanding of government operations or activities, and

(2) Not primarily in your commercial interest.

(b) A partial fee waiver may be appropriate if some but not all of the requested records are likely to contribute significantly to public understanding of the operations and activities of the government.

(c) When deciding whether to waive or reduce fees, the bureau will rely on the fee waiver justification submitted in your request letter. If the letter does not include sufficient justification, the bureau will deny the fee waiver request. The bureau may, at its discretion, request additional information from you (see § 2.51 of this subpart).

(d) The burden is on you to justify entitlement to a fee waiver. Requests for fee waivers are decided on a case-by-case basis under the criteria discussed above in paragraph (a) of this section and § 2.48 of this subpart. If you have received a fee waiver in the past, that does not mean you are automatically entitled to a fee waiver for every request submitted.

(e) Discretionary fee waivers are addressed in § 2.56 of this subpart.

(f) The bureau must not make value judgments about whether the information at issue is “important” enough to be made public; it is not the bureau's role to attempt to determine the level of public interest in requested information.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016; 84 FR 61828, Nov. 14, 2019]

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

(a) You should request a fee waiver when your request is first submitted to the bureau (see § 2.6 of this part).

(b) You may submit a fee waiver request at a later time if the bureau has not yet completed processing your request.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]

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

If the bureau denies your request for a fee waiver, it will notify you, in writing, of the following:

(a) The basis for the denial, including a full explanation of why the fee waiver request does not meet the Department's fee waiver criteria in § 2.48 of this subpart;

(b) The name and title or position of each person responsible for the denial;

(c) The name and title of the Office of the Solicitor attorney consulted;

(d) Your right to appeal the denial under subpart H of this part and a description of the requirements set forth therein, within 90 workdays from the date of the fee waiver denial letter; and

(e) Your anticipated fees, in accordance with § 2.49 of this subpart.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016; 84 FR 61828, Nov. 14, 2019]

§ 2.48 How will the bureau evaluate your fee waiver request?

(a) In deciding whether your fee waiver request meets the requirements of § 2.45(a)(1) of this subpart, the bureau will consider the criteria listed in paragraphs (a)(1) through (a)(4) of this section. You must address and meet each of these criteria in order to demonstrate that you are entitled to a fee waiver.

(1) How the records concern the operations or activities of the Federal government. The subject of the request must concern discrete, identifiable agency activities, operations, or programs with a connection that is direct and clear, not remote or attenuated.

(2) How disclosure is likely to contribute significantly to public understanding of those operations or activities, including:

(i) How the contents of the records are meaningfully informative. The disclosure of information that is already readily available to you from other sources or easily accessible to the public, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding and the bureau informs you of where the requested information is already available;

(ii) What the logical connection is between the content of the records and the operations or activities of the Federal government;

(iii) How disclosure will contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to your individual understanding;

(iv) Your expertise in the subject area as well as your identity, vocation, qualifications, and your plan to disclose the information in a manner that will be informative to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to furthering your individual understanding;

(v) Your ability and intent to disseminate the information to a reasonably broad audience of persons interested in the subject (for example, how and to whom you intend to disseminate the information). If we have categorized you as a representative of the news media under § 2.38, we will presume you have this ability and intent;

(vi) Whether the records would confirm or clarify data that has been released previously; and

(vii) How the public's understanding of the subject in question will be enhanced to a significant extent by the disclosure.

(b) In deciding whether the fee waiver request meets the requirements in § 2.45(a)(2) of this subpart, the bureau will consider any commercial interest of yours that would be furthered by the requested disclosure. To determine whether disclosure of the requested records is primarily in your commercial interest (based on your intended use of the information), the bureau will consider:

(1) Whether the requested disclosure would further any commercial interest of yours.

(2) If you have a commercial interest, the bureau must determine whether that is the primary interest furthered by the request by balancing the commercial interest against the public interest in disclosure of the records. When the requirements of paragraph (a) are satisfied and any commercial interest is not the primary interest furthered by the request, this balancing test shows a waiver or reduction of fees is justified. Bureaus ordinarily will presume that, when a news media requester has satisfied paragraph (a) above, the request is not primarily in the commercial interest of the requester.

(3) You are encouraged to provide explanatory information regarding these considerations.

(4) The bureau will not find that disclosing the requested records will be primarily in your commercial interest where the public interest is greater than any identified commercial interest in disclosure.

(5) If you have a commercial interest that would be furthered by disclosure, explain how the public interest in disclosure would be greater than any commercial interest you may have in the documents.

(i) Your identity, vocation, and intended use of the requested records are all factors to be considered in determining whether disclosure would be primarily in your commercial interest.

(ii) If you are a representative of a news media organization seeking records as part of the news gathering process, we will ordinarily presume that the public interest outweighs your commercial interest. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.

(iii) If you represent a business/corporation/association or you are an attorney representing such an organization, we will presume that your commercial interest outweighs the public interest unless you demonstrate otherwise.

[84 FR 61828, Nov. 14, 2019]

§ 2.49 When will you be notified of anticipated fees?

(a) The bureau will notify you under this section unless:

(1) The anticipated fee is less than $50 (see § 2.37(g) of this subpart).

(2) You have been granted a full fee waiver;

(3)Your request does not reasonably describe the records sought and/or does not explicitly state that you will pay all fees associated with the processing of the request, that you will pay fees up to a specified amount, and/or that you are seeking a fee waiver; or

(4) You have already agreed to pay all the fees associated with the request.

(b) If none of the above exceptions apply, the bureau will:

(1) Promptly notify you of the estimated costs for search, review, and/or duplication;

(2) Ask you to provide written assurance within 20 workdays that you will pay all fees or fees up to a designated amount;

(3) Notify you that it will not be able to comply with your FOIA request unless you provide the written assurance requested; and

(4) Give you an opportunity to reduce the fee by modifying the request.

(c) If the bureau does not receive your written response containing the additional information that resolves any fee issues, in accordance with paragraphs (b)(2) and/or (b)(4) of this section, within 20 workdays after the bureau has requested it, the bureau will presume that you are no longer interested in the records and will close the file on the request.

(d) After the bureau begins processing a request, if it finds that the actual cost will exceed the amount you previously agreed to pay, the bureau will:

(1) Stop processing the request;

(2) Promptly notify you of the higher amount and ask you to provide written assurance of payment; and

(3) Notify you that it will not be able to fully comply with your FOIA request unless you provide the written assurance requested; and

(4) Give you an opportunity to reduce the fee by modifying the request.

(e) If you wish to modify your request in an effort to reduce fees, the bureau's FOIA Requester Center can assist you.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016; 84 FR 61829, Nov. 14, 2019]

§ 2.50 When will the bureau require advance payment?

(a) The bureau will require advance payment before starting further work when it finds the estimated fee is over $250 and:

(1) You have never made a FOIA request to the Department requiring the payment of fees; or

(2) You did not pay a previous FOIA fee within 30 calendar days of the date of billing.

(b) If the bureau believes that you did not pay a previous FOIA fee within 30 calendar days of the date of billing, the bureau will require you to either:

(1) Demonstrate you paid prior fee within 30 calendar days of the date of billing; or

(2) Pay any unpaid amount of the previous fee, plus any applicable interest penalties (see § 2.53 of this subpart), and pay in advance the estimated fee for the new request.

(c) When the bureau notifies you that an advance payment is due under paragraph (a) of this section, it will give you an opportunity to reduce the fee by modifying the request.

(d) Your payment of the funds you owe the bureau for work it has already completed before records are sent to you is not an advance payment under paragraph (a) of this section.

(e) If the bureau requires advance payment, it will start further work only after receiving the advance payment. It will also notify you that it will not be able to comply with your FOIA request unless you provide the advance payment. Unless you pay the advance payment within 20 workdays after the date of the bureau's fee letter, the bureau will presume that you are no longer interested and will close the file on the request.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]

§ 2.51 What if the bureau needs clarification about fee issues?

(a) If your FOIA request does not contain sufficient information for the bureau to determine your proper fee category or leaves another fee issue unclear, the bureau may ask you to provide additional clarification. If it does so, the bureau will notify you that it will not be able to comply with your FOIA request unless you provide the clarification requested.

(b) If the bureau asks you to provide clarification, the 20-workday statutory time limit for the bureau to respond to the request is temporarily suspended.

(1) If the bureau receives a written response within 20 workdays after the bureau has requested the additional clarification, the 20-workday statutory time limit for processing the request will resume (see § 2.16 of this part).

(2) If you still have not provided sufficient information to resolve the fee issue, the bureau may ask you again to provide additional clarification and notify you that it will not be able to comply with your FOIA request unless you provide the additional information requested within 20 workdays after the bureau has requested the additional clarification.

(3) If the bureau asks you again for additional clarification, the statutory time limit for response will be temporarily suspended again and will resume again if the bureau receives a written response from you within 20 workdays after the bureau has requested the additional clarification.

(c) If the bureau asks for clarification about a fee issue and does not receive a written response from you within 20 workdays after the bureau has requested the additional clarification, it will presume that you are no longer interested and will close the file on the request.

[77 FR 76906, Dec. 31, 2012; 78 FR 6216, Jan. 30, 2013; 81 FR 11130, Mar. 3, 2016]

§ 2.52 How will you be billed?

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

§ 2.53 How will the bureau collect fees owed?

(a) The bureau may charge interest on any unpaid bill starting on the 31st day following the billing date.

(b) The bureau will assess interest charges at the rate provided in 31 U.S.C. 3717 and implementing regulations and interest will accrue from the billing date until the bureau receives payment.

(c) The bureau will follow the provisions of the Debt Collection Act of 1982 (Public Law 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset to collect overdue amounts and interest.

(d) This section does not apply if you are a state, local, or tribal government.

§ 2.54 When will the bureau combine or aggregate requests?

(a) The bureau may aggregate requests and charge accordingly when it reasonably believes that you, or a group of requesters acting in concert with you, are attempting to avoid fees by dividing a single request into a series of requests on a single subject or related subjects.

(1) The bureau may presume that multiple requests of this type made within a 30-day period have been made to avoid fees.

(2) The bureau may aggregate requests separated by a longer period only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved.

(b) The bureau will not aggregate multiple requests involving unrelated matters.

(c) The bureau may administratively aggregate requests without charging fees accordingly when it reasonably believes you, or a group of requesters acting in concert with you, are dividing a single request into a series of requests on a single subject or related subjects.

(1) The bureau may presume that multiple requests on a single subject or related subjects made within a 30-day period are dividing a single request into a series of requests.

(2) The bureau may administratively aggregate requests separated by a longer period only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved.

[77 FR 76906, Dec. 31, 2019, as amended at 84 FR 61829, Nov. 14, 2019]

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

(a) The fee schedule in appendix A to this part does not apply to fees charged under any statute that specifically requires the bureau to set and collect fees for particular types of records.

(b) If records otherwise responsive to a request are subject to a statutorily-based fee schedule, the bureau will inform you whom to contact to obtain the records.

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

(a) The bureau may waive or reduce fees at its discretion if a request involves furnishing:

(1) A copy of a record that the bureau has reproduced for free distribution;

(2) One copy of a personal document (for example, a birth certificate) to a person who has been required to furnish it for retention by the Department;

(3) One copy of the transcript of a hearing before a hearing officer in a grievance or similar proceeding to the employee for whom the hearing was held;

(4) Records to donors with respect to their gifts;

(5) Records to individuals or private nonprofit organizations having an official, voluntary, or cooperative relationship with the Department if it will assist their work with the Department;

(6) A reasonable number of records to members of the U.S. Congress; state, local, and foreign governments; public international organizations; or Indian tribes, when to do so is an appropriate courtesy, or when the recipient is carrying on a function related to a Departmental function and the waiver will help accomplish the Department's work;

(7) Records in conformance with generally established business custom (for example, furnishing personal reference data to prospective employers of current or former Department employees); or

(8) One copy of a single record to assist you in obtaining financial benefits to which you may be entitled (for example, veterans or their dependents, employees with Government employee compensation claims).

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

§ 2.57 When may you file an appeal?

(a) You may file an appeal when:

(1) The bureau withholds records, or parts of records;

(2) The bureau informs you that your request has not adequately described the records sought;

(3) The bureau informs you that it does not possess or cannot locate responsive records and you have reason to believe this is incorrect or that the search was inadequate;

(4) The bureau did not address all aspects of the request for records;

(5) You believe there is a procedural deficiency (for example, fees are improperly calculated or you have been placed in the wrong fee category);

(6) The bureau denied your request for a fee waiver;

(7) The bureau did not make a decision within the time limits in § 2.16 or, if applicable, § 2.18; or

(8) The bureau denied, or was late in responding to, a request for expedited processing filed under the procedures in § 2.20 of this part.

(b) An appeal under paragraph (a)(8) of this section relates only to the request for expedited processing and does not constitute an appeal of the underlying request for records. Special procedures apply to requests for expedited processing of an appeal (see § 2.63 of this subpart).

(c) Before filing an appeal, you may wish to communicate with the contact person listed in the FOIA response, the bureau's FOIA Officer, and/or the FOIA Public Liaison to see if the issue can be resolved informally. However, appeals must be received by the FOIA Appeals Officer within the time limits in § 2.58 of this subpart or they will not be processed.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]

§ 2.58 How long do you have to file an appeal?

(a) Appeals covered by § 2.57(a)(1) through (5) of this subpart must be received by the FOIA Appeals Officer no later than 90 workdays from the date of the final response.

(b) Appeals covered by § 2.57(a)(6) of this subpart must be received by the FOIA Appeals Officer no later than 90 workdays from the date of the letter denying the fee waiver.

(c) Appeals covered by § 2.57(a)(7) of this subpart may be filed any time after the time limit for responding to the request has passed.

(d) Appeals covered by § 2.57(a)(8) of this subpart should be filed as soon as possible.

(e) Appeals arriving or delivered after 5 p.m. Eastern Time, Monday through Friday, will be deemed received on the next workday.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 92694, Dec. 20, 2016]

§ 2.59 How do you file an appeal?

(a) You must submit the appeal in writing by mail, fax or email to the FOIA Appeals Officer (using the address available at http://www.doi.gov/foia/appeals). Your failure to send an appeal directly to the FOIA Appeals Officer may delay processing.

(b) The appeal must include:

(1) Copies of all correspondence between you and the bureau concerning the FOIA request, including the request and the bureau's response (if there is one); and

(2) An explanation of why you believe the bureau's response was in error.

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

(d) An appeal concerning a denial of expedited processing or a fee waiver denial should also demonstrate fully how the criteria in § 2.20 or §§ 2.45 and 2.48 of this part are met.

(e) All communications concerning an appeal should be clearly marked with the words: “FREEDOM OF INFORMATION APPEAL.”

(f) The Department will reject an appeal that does not attach all correspondence required by paragraph (b)(1) of this section, unless the FOIA Appeals Officer determines, in his or her sole discretion, that good cause exists to accept the defective appeal. The time limits for responding to an appeal will not begin to run until the correspondence is received.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]

§ 2.60 Who makes decisions on appeals?

(a) The FOIA Appeals Officer is the deciding official for FOIA appeals that do not appeal a decision of the Office of Inspector General.

(b) The General Counsel is the deciding official for FOIA appeals that appeal a decision of the Office of Inspector General.

(c) When necessary, the appropriate deciding official for FOIA appeals will consult other appropriate offices, including the Office of the Solicitor or Office of General Counsel for denials of records and fee waivers.

(d) The deciding official for FOIA appeals normally will not make a decision on an appeal if the request becomes a matter of FOIA litigation.

[81 FR 11130, Mar. 3, 2016]

§ 2.61 How are decisions on appeals issued?

(a) A decision on an appeal must be made in writing.

(b) A decision that upholds the bureau's determination will notify you of the decision and your statutory right to file a lawsuit.

(c) A decision that overturns, remands, or modifies the bureau's determination will notify you of the decision. The bureau then must further process the request in accordance with the appeal determination.

§ 2.62 When can you expect a decision on your appeal?

(a) The basic time limit for responding to an appeal is 20 workdays after receipt of an appeal meeting the requirements of § 2.59 of this subpart.

(b) If the Department is unable to reach a decision on your appeal within the given time limit for response, the appropriate deciding official for FOIA appeals will notify you of your statutory right to seek review in a United States District Court.

[81 FR 11131, Mar. 3, 2016]

§ 2.63 Can you receive expedited processing of appeals?

(a) To receive expedited processing of an appeal, you must demonstrate to the Department's satisfaction that the appeal meets one of the criteria under § 2.20 of this part and include a statement that the need for expedited processing is true and correct to the best of your knowledge and belief.

(b) The appropriate deciding official for FOIA appeals will advise you whether the Department will grant expedited processing within 10 calendar days of receiving the appeal.

(c) If the appropriate deciding official for FOIA appeals decides to grant expedited processing, he or she will give the appeal priority over other pending appeals and process it as soon as practicable.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11131, Mar. 3, 2016]

§ 2.64 Must you submit an appeal before seeking judicial review?

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

§ 2.65 Where are records made available?

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

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11131, Mar. 3, 2016]

§ 2.66 What are FOIA Requester Centers and the FOIA Public Liaison?

(a) FOIA Requester Centers typically serve as your first point of contact for questions about how the FOIA works. Before and after you make a request, FOIA Requester Centers can assist you by:

(1) Identifying information that is already posted and available;

(2) Informing you about the types of records maintained by the bureau;

(3) Providing guidance on formulating effective requests;

(4) Describing the Department's various processing tracks and the average processing times for the various tracks;

(5) Answering questions about expedited processing standards and the FOIA's fee provisions; and

(6) Answering questions about the status of an existing request.

(b) The FOIA Public Liaison is responsible for:

(1) Assisting in reducing delays;

(2) Increasing transparency and understanding of the status of requests; and

(3) Assisting in the resolution of disputes between you and the agency.

(c) If you need further information or assistance after contacting the applicable FOIA Requester Center and the FOIA Public Liaison, you may wish to seek dispute resolution services from the Office of Government Information Services.

(d) Contact information for the FOIA Requester Centers and FOIA Public Liaison is available at https://www.doi.gov/foia/foiacenters.

[84 FR 61829, Nov. 14, 2019]

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

(a) Each bureau must:

(1) Determine which of its records must be made publicly available under the FOIA (for example, certain frequently requested records);

(2) Identify additional records of interest to the public that are appropriate for public disclosure; and

(3) Post those records in FOIA libraries.

(b) Because of these proactive disclosures, you are encouraged to review the Department's FOIA libraries before filing a FOIA request. The material you seek may be immediately available electronically at no cost.

§ 2.68 How will FOIA materials be preserved?

(a) Each bureau must preserve all correspondence pertaining to the requests that it receives under subpart B of this part, as well as copies of all requested records, until disposition or destruction is authorized by the General Records Schedule 4.2 of the National Archives and Records Administration (NARA) or another NARA-approved records schedule, such as DAA-0048-2013-0001.

(b) Materials that are identified as responsive to a FOIA request will not be disposed of or destroyed while the request or a related appeal or lawsuit is pending. This is true even if they would otherwise be authorized for disposition or destruction under the General Records Schedule 4.2 of NARA or another NARA-approved records schedule, such as DAA-0048-2013-0001.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11131, Mar. 3, 2016]

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

(a) If you request research data that were used by the Federal Government in developing certain kinds of agency actions, and the research data relate to published research findings produced under an award, in accordance with OMB Circular A-110:

(1) If the bureau was the awarding agency, it will request the research data from the recipient;

(2) The recipient must provide the research data within a reasonable time; and

(3) The bureau will review the research data to see if it can be released under the FOIA.

(b) If the bureau obtains the research data solely in response to your FOIA request, the bureau may charge you a reasonable fee equaling the full incremental cost of obtaining the research data.

(1) This fee should reflect costs incurred by the agency, the recipient, and applicable subrecipients.

(2) This fee is in addition to any fees the agency may assess under the FOIA.

(c) The bureau will forward a copy of the request to the recipient, who is responsible for searching for and reviewing the requested information in accordance with these FOIA regulations. The recipient will forward a copy of any responsive records that are located, along with any recommendations concerning the releasability of the data, and the total cost incurred in searching for, reviewing, and providing the data.

(d) The bureau will review and consider the recommendations of the recipient regarding the releasability of the requested research data. However, the bureau, not the recipient, is responsible for deciding whether the research data will be released or withheld.

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

For the purposes of subparts A through I of this part, the following definitions apply:

Bureau means any major component of the Department administering its own FOIA program. A list of these components is available at: http://www.doi.gov/foia/contacts.

Commercial interest means a commercial, trade, or profit interest as these terms are commonly understood. Your status as profitmaking or non-profitmaking is not the deciding factor in determining whether you have a commercial interest.

Commercial use means a use that furthers your commercial, trade or profit interests or that of the person on whose behalf the request is made.

Confidential information means trade secrets or commercial or financial information (that is privileged or confidential and obtained by the Department from a person) that may be protected from disclosure under Exemption 4 of the FOIA.

Department means the Department of the Interior.

Direct costs means those resources that the bureau expends in searching for and duplicating (and, in the case of commercial-use requests, reviewing) records to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating machinery, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space and of heating or lighting a facility.

Duplication means reproducing a copy of a record or of the information contained in it necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others.

Educational institution means any school that operates a program of scholarly research. In order to fall within this category, you must show that the request is authorized by and made under the auspices of, a qualifying institution and that the records are not sought for a commercial use, but rather are sought to further scholarly research. Teachers (if they demonstrate how the requested records will further their teaching, scholarly research, or production of scholarly works) and students (if they demonstrate how the requested records will further their coursework or other school-sponsored activities) may also qualify as an educational institution for the purposes of this definition.

Exceptional circumstances means a delay that does not result from a predictable workload of requests (unless the bureau demonstrates reasonable progress in reducing its backlog of pending requests).

Exempt means the record in question, or a portion thereof, is not subject to disclosure due to one or more of the FOIA's nine statutory exemptions, found at 5 U.S.C. 552(b)(1)-(9).

Exemption means one or more of the FOIA's nine statutory exemptions, found at 5 U.S.C. 552(b)(1)-(9).

Expedited processing means giving a FOIA request priority and processing it ahead of other requests pending in the bureau because you have shown a compelling need for the records.

Fee category means one of the four categories, discussed in §§ 2.38 and 2.39, that agencies place you in for the purpose of determining whether you will be charged fees for search, review, and duplication.

FOIA means the Freedom of Information Act, 5 U.S.C. 552, as amended.

FOIA libraries means a physical or electronic compilation of records required to be made available to the public for inspection and copying under 5 U.S.C. 552(a)(2). It also includes a physical or electronic compilation of records that the bureau, at its discretion, makes available to the public for inspection and copying.

Frequently requested records means records that have been released to any person in response to a FOIA request and that have been requested, or that the bureau anticipates will be requested, at least two more times under the FOIA.

Multitrack processing means placing simple requests, requiring relatively minimal review, in one processing track and more voluminous and complex requests in one or more other tracks. Requests in each track are ordinarily processed on a first-in/first-out basis, but other factors, such as litigation, may affect the sequence and/or timing of processing.

Noncommercial scientific institution means an institution that is not operated for commerce, trade or profit, and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. To be in this category, you must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scientific research.

OMB Fee Guidelines means the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget at 52 FR 10012 (Mar. 27, 1987).

Published means, for the purposes of § 2.69 of this subpart only, when:

(1) Research findings are published in a peer-reviewed scientific or technical journal; or

(2) A Federal agency publicly and officially cites the research findings in support of an agency action that has the force and effect of law.

Recipient means, for the purposes of § 2.69 of this subpart only, an organization receiving financial assistance directly from Federal awarding agencies to carry out a project or program. The term includes public and private institutions of higher education, public and private hospitals, and other quasi-public and private non-profit organizations. The term may include commercial organizations, foreign or international organizations (such as agencies of the United Nations) which are recipients, subrecipients, or contractors or subcontractors of recipients or subrecipients at the discretion of the Federal awarding agency. The term does not include government-owned contractor-operated facilities or research centers providing continued support for mission-oriented, large-scale programs that are government-owned or controlled, or are designated as federally-funded research and development centers.

Record means an agency record that is either created or obtained by an agency and is under agency possession and control at the time of the FOIA request, or is maintained by an entity under Government contract for the purposes of records management.

Representative of the news media means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term news as used in this definition means information that is about current events or that would be of current interest to the public. Simply distributing copies of released records, electronically or otherwise, does not qualify as using editorial skills to turn the raw materials into a distinct work. Examples of news media entities are newspapers, television, Web sites, or radio stations broadcasting to the public at large, and publishers of periodicals (but only if such entities qualify as disseminators of news) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all inclusive. As methods of news delivery evolve, alternative representatives of news media may come into being. A freelance journalist will qualify as a news-media entity if he or she can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by that entity (for example, a publication contract would present a solid basis for such an expectation).

Research data means, for the purposes of § 2.69 of this subpart only, the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not any of the following: preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues. The term recorded as used in this definition excludes physical objects (e.g., laboratory samples). Research data also do not include:

(1) Trade secrets, commercial information, materials necessary to be held confidential by a researcher until they are published, or similar information which is protected under law; and

(2) Personnel and medical information and similar information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, such as information that could be used to identify a particular person in a research study.

Review means the examination of a record located in response to a request to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential information submitter under subpart G of this part, but it excludes time spent resolving general legal or policy issues regarding the application of FOIA exemptions.

Search means the process of looking for and retrieving records responsive to a request. Search time includes page-by-page or line-by-line identification of information within records; and the reasonable efforts expended to locate and retrieve electronic records.

Submitter means any person or entity outside the Federal Government from whom the Department obtains confidential information, directly or indirectly. The term includes, but is not limited to individuals, corporations, and state, local, tribal, and foreign governments.

Unusual circumstances means the need to search for and collect requested records from field facilities or other establishments that are separate from the office processing the request; the need to search for, collect, and examine a voluminous amount of separate and distinct records which are demanded in a single request; or the need for consultation, which shall be conducted with all practicable speed, with another agency, or among two or more components of the Department, having a substantial interest in the determination of the request.

Workday means a regular Federal workday. It excludes Saturdays, Sundays, or Federal legal public holidays. Items arriving or delivered after 5 p.m. Eastern Time will be deemed received on the next workday.

You means a person requesting records, or filing an appeal, under the FOIA.

[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11131, Mar. 3, 2016; 84 FR 61829, Nov. 14, 2019]

§ 2.200 Declassification of classified documents.

(a) Request for classification review. (1) Requests for a classification review of a document of the Department of the Interior pursuant to section 5(c) of Executive Order 11652 (37 FR 5209, March 10, 1972) and section III B of the National Security Council Directive Governing Classification, Downgrading, Declassification and Safeguarding of National Security Information (37 FR 10053, May 1972) shall be made in accordance with the procedures established by this section.

(2) Any person desiring a classification review of a document of the Department of the Interior containing information classified as National Security Information by reason of the provisions of Executive Order 12065 (or any predecessor executive order) and which is more than 10 years old, should address such request to the Chief, Division of Enforcement and Security Management, Office of Administrative Services, U.S. Department of the Interior, Washington, DC 20240.

(3) Requests need not be made on any special form, but shall, as specified in the executive order, describe the document with sufficient particularity to enable identification of the document requested with expenditure of no more than a reasonable amount of effort.

(4) Charges for locating and reproducing copies of records will be made when deemed applicable in accordance with appendix A to this part and the requester will be notified.

(b) Action on requests for classification review. (1) The Chief, Division of Enforcement and Security Management, shall, unless the request is for a document over 30 years old, assign the request to the bureau having custody of the requested records for action. In the case of requests for declassification of records in the custody of the Office of the Secretary and less than 30 years old, the request shall be processed by the Chief, Division of Enforcement and Security Management. Requests for declassification of documents over 30 years shall be referred directly to the Archivist of the United States. The bureau which has been assigned the request, or the Chief, Division of Enforcement and Security Management, in the case of requests assigned to him, shall immediately acknowledge the request in writing. Every effort will be made to complete action on each request within thirty (30) days of its receipt. If action cannot be completed within thirty (30) days, the requester shall be so advised.

(2) If the requester does not receive a decision on his request within sixty (60) days from the date of receipt of his request, or from the date of his most recent response to a request for more particulars, he may apply to the Department of the Interior Oversight Committee for Security, U.S. Department of the Interior, Washington, DC 20240, for a decision on his request. The Committee must render a decision within thirty (30) days.

(c) Form of decision and appeal to Oversight Committee for Security. In the event that the bureau to which a request is assigned or the Chief, Division of Enforcement and Security Management, in the case of a request assigned to him, determines that the requested information must remain classified by reason of the provisions of Executive Order 11652, the requester shall be given prompt notification of that decision and, whenever possible, shall be provided with a brief statement as to why the information or material cannot be declassified. He shall also be advised that if he desires he may appeal the determination to the Chairman, Department of the Interior Oversight Committee for Security, U.S. Department of the Interior, Washington, DC 20240. An appeal shall include a brief statement as to why the requester disagrees with the decision which he is appealing. The Department Oversight Committee for Security shall render its decision within thirty (30) days of receipt of an appeal. The Departmental Committee shall be authorized to over-rule previous determinations in whole or in part when, in its judgement, continued protection is no longer required.

(d) Appeal to Interagency Classification Review Committee. Whenever the Department of the Interior Oversight Committee for Security confirms a determination for continued classification, it shall so notify the requester and advise him that he is entitled to appeal the decision to the Interagency Classification Review Committee established under section 8(A) of the Executive Order 11652. Such appeals shall be addressed to the Interagency Classification Review Committee, the Executive Office Building, Washington, DC 20500.

(e) Suggestions and complaints. Any person may also direct suggestions or complaints with respect to the administration of the other provisions of Executive Order 11652 and the NSC Directive by the Department of the Interior to the Department of the Interior Oversight Committee for Security, U.S. Department of the Interior, Washington, DC 20240.

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

§ 2.220 Purpose and scope.

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

[48 FR 56583, Dec. 22, 1983]

§ 2.221 Definitions.

(a) Act. As used in this subpart, “Act” means section 3 of the Privacy Act, 5 U.S.C. 552a.

(b) Bureau. For purposes of this subpart, a “bureau” is any constituent bureau or office of the Department, including the Office of the Secretary and any other Departmental office.

(c) Individual. As used in this subpart, “individual” means a citizen of the United States or an alien lawfully admitted for permanent residence.

(d) Maintain. As used in this subpart, the term “maintain” includes maintain, collect, use or disseminate.

(e) Record. As used in this subpart, “record” means any item, collection, or grouping of information about an individual that is maintained by the Department or a bureau thereof, including, but not limited to, education, financial transactions, medical history, and criminal or employment history and that contains the individual's name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print, or a photograph.

(f) System of records. As used in this subpart, “System of records” means a group of any records under the control of the Department or a bureau thereof from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.

(g) Medical records. As used in this subpart, “medical records” means records which relate to the identification, prevention, cure or alleviation of any disease, illness or injury including psychological disorders, alcoholism and drug addiction.

(h) Office of Personnel Management personnel records. As used in the subpart, “Office of Personnel Management personnel records” means records maintained for the Office of Personnel Management by the Department and used for personnel management programs or processes such as staffing, employee development, retirement, and grievances and appeals.

(i) Statistical records. As used in this subpart, “statistical records” means records in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual.

(j) Routine use. As used in this subpart, “routine use” means a use of a record for a purpose which is compatible with the purpose for which it was collected.

(k) System notice. As used in this subpart, “system notice” means the notice describing a system of records required by 5 U.S.C. 552a(e)(4) to be published in the Federal Register upon establishment or revision of the system of records.

(l) System manager. As used in this subpart, “system manager” means the official designated in a system notice as having administrative responsibility for a system of records.

(m) Departmental Privacy Act Officer. As used in this subpart, “Departmental Privacy Act Officer” means the official in the Office of the Assistant Secretary—Policy, Budget and Administration charged with responsibility for assisting the Assistant Secretary—Policy, Budget and Administration in carrying out the functions assigned in this subpart and for coordinating the activities of the bureaus of the Department in carrying out the functions which they are assigned in this subpart.

(n) Bureau Privacy Act Officer. As used in this subpart, “Bureau Privacy Act Officer” means the official within each bureau assigned responsibility for bureau implementation of the Act and the regulations of this subpart.

(o) Working day. As used in this subpart, “working day” means a regular Federal work day. It does not include Saturdays, Sundays or public legal holidays.

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

§ 2.222 Records subject to Privacy Act.

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

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

(a) Content of records. Records subject to the Act shall contain only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or Executive Order of the President.

(b) Standards of accuracy. Records subject to the Act which are used in making any determination about any individual shall be maintained with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in making the determination.

(c) Collection of information. (1) Information which may be used in making determinations about an individual's rights, benefits, and privileges under Federal programs shall, to the greatest extent practicable, be collected directly from that individual.

(2) In deciding whether collection of information from an individual, as opposed to a third party source, is practicable, the following factors, among others, may be considered:

(i) Whether the nature of the information sought is such that it can only be obtained from a third party;

(ii) Whether the cost of collecting the information from the individual is unreasonable when compared with the cost of collecting it from a third party;

(iii) Whether there is a risk that information collected from third parties, if inaccurate, could result in an adverse determination to the individual concerned;

(iv) Whether the information, if supplied by the individual, would have to be verified by a third party; or

(v) Whether provisions can be made for verification, by the individual, of information collected from third parties.

(d) Advice to individuals concerning uses of information. (1) Each individual who is asked to supply information about him or herself which will be added to a system of records shall be informed of the basis for requesting the information, how it may be used, and what the consequences, if any, are of not supplying the information.

(2) At a minimum, the notice to the individual must state:

(i) The authority (whether granted by statute or Executive Order of the President) which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary;

(ii) The principal purpose or purposes for which the information is intended to be used;

(iii) The routine uses which may be made of the information; and

(iv) The effects on the individual, if any, of not providing all or any part of the requested information.

(3)(i) When information is collected on a standard form, the notice to the individual shall be provided on the form, on a tear-off sheet attached to the form, or on a separate sheet, whichever is most practical.

(ii) When information is collected by an interviewer, the interviewer shall provide the individual with a written notice which the individual may retain. If the interview is conducted by telephone, however, the interviewer may summarize the notice for the individual and need not provide a copy to the individual unless the individual requests a copy.

(iii) An individual may be asked to acknowledge, in writing, that the notice required by this section has been provided.

(e) Records concerning activity protected by the First Amendment. No record may be maintained describing how any individual exercises rights guaranteed by the First Amendment to the Constitution unless the maintenance of the record is (1) expressly authorized by statute or by the individual about whom the record is maintained or (2) pertinent to and within the scope of an authorized law enforcement activity.

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

§ 2.224 [Reserved]

§ 2.225 Federal Register notices describing systems of records.

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

(b) Each bureau shall notify the Departmental Privacy Act Officer promptly of any modifications or amendments which are required in the then-current notice describing a system of records for which it is responsible.

(c) A bureau desiring to establish a new system of records or a new use for an existing system of records shall notify the Departmental Privacy Act Officer, no fewer than ninety (90) calendar days in advance.

[48 FR 56583, Dec. 22, 1983]

§ 2.226 Assuring integrity of records.

(a) Statutory requirement. The Privacy Act requires that records subject to the Act be maintained with appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained, 5 U.S.C. 552a(e)(10).

(b) Records maintained in manual form. When maintained in manual form, records subject to the Privacy Act shall be maintained in a manner commensurate with the sensitivity of the information contained in the system of records. The following minimum safeguards, or safeguards affording comparable protection, are applicable to Privacy Act systems of records containing sensitive information:

(1) Areas in which the records are maintained or regularly used shall be posted with an appropriate warning stating that access to the records is limited to authorized persons. The warning also shall summarize the requirements of § 2.52 and state that the Privacy Act contains a criminal penalty for the unauthorized disclosure of records to which it applies.

(2) During working hours, (i) the area in which the records are maintained or regularly used shall be occupied by authorized personnel or (ii) access to the records shall be restricted by their storage in locked metal file cabinets or a locked room.

(3) During non-working hours, access to the records shall be restricted by their storage in locked metal file cabinets or a locked room.

(4) Where a locked room is the method of security provided for a system, the bureau responsible for the system shall supplement that security by (i) providing lockable file cabinets or containers for the records or (ii) changing the lock or locks for the room so that they may not be opened with a master key. For the purposes of this paragraph, a master key is a key which may be used to open rooms other than the room containing records subject to the Privacy Act, unless those rooms are utilized by officials or employees authorized to have access to the records subject to the Privacy Act.

(c) Records maintained in computerized form. When maintained in computerized form, records subject to the Privacy Act shall be maintained, at a minimum, subject to safeguards based on those recommended in the National Bureau of Standard's booklet “Computer Security Guidelines for Implementing the Privacy Act of 1974” (May 30, 1975), and any supplements thereto, which are adequate and appropriate to assuring the integrity of records in the system.

(d) Office of Personnel Management personnel records. A system of records made up of Office of Personnel Management personnel records shall be maintained under the security requirements set out in 5 CFR 293.106 and 293.107.

(e) Bureau responsibility. (1) The bureau responsible for a system of records shall be responsible for assuring that specific procedures are developed to assure that the records in the system are maintained with security meeting the requirements of the Act and this section.

(2) These procedures shall be in writing and shall be posted or otherwise periodically brought to the attention of employees working with the records contained in the system.

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

§ 2.227 Conduct of employees.

(a) Handling of records subject to the Act. Employees whose duties require handling of records subject to the Privacy Act shall, at all times, take care to protect the integrity, security and confidentiality of these records.

(b) Disclosure of records. No employee of the Department may disclose records subject to the Privacy Act unless disclosure is permitted under § 2.56 or is to the individual to whom the record pertains.

(c) Alteration of records. No employee of the Department may alter or destroy a record subject to the Privacy Act unless (1) such alteration or destruction is properly undertaken in the course of the employee's regular duties or (2) such alteration or destruction is required by a decision under §§ 2.70 through 2.75 or the decision of a court of competent jurisdiction.

(d) Bureau responsibility. The bureau responsible for a system of records shall be responsible for assuring that employees with access to the system are made aware of the requirements of this section and of 5 U.S.C. 552a(i)(1), which imposes criminal penalties for knowingly and willfully disclosing a record about an individual without the written request or consent of that individual unless disclosure is permitted under one of the exceptions listed in § 2.56 (b) and (c).

§ 2.228 Government contracts.

(a) Required contract provisions. When a contract provides for the operation by or on behalf of the Department of a system of records to accomplish a Department function, the contract shall, consistent with the Department's authority, cause the requirements of 5 U.S.C. 552a and the regulations contained in this subpart to be applied to such system.

(b) System manager. The head of the bureau responsible for the contract shall designate a regular employee of the bureau to be the manager for a system of records operated by a contractor.

§§ 2.229-2.230 [Reserved]

§ 2.231 Disclosure of records.

(a) Prohibition of disclosure. No record contained in a system of records may be disclosed by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.

(b) General exceptions. The prohibition contained in paragraph (a) does not apply where disclosure of the record would be:

(1) To those officers or employees of the Department who have a need for the record in the performance of their duties; or

(2) Required by the Freedom of Information Act, 5 U.S.C. 552.

(c) Specific exceptions. The prohibition contained in paragraph (a) of this section does not apply where disclosure of the record would be:

(1) For a routine use as defined in § 2.46(j) which has been described in a system notice published in the Federal Register;

(2) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of Title 13, U.S. Code.

(3) To a recipient who has provided the system manager responsible for the system in which the record is maintained with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;

(4) To the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the U.S. Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;

(5) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the Department specifying the particular portion desired and the law enforcement activity for which the record is sought;

(6) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;

(7) To either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;

(8) To the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the General Accounting Office;

(9) Pursuant to the order of a court of competent jurisdiction; or

(10) To a consumer reporting agency in accordance with section 3(d) of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3711(f)).

(d) Reviewing records prior to disclosure. (1) Prior to any disclosure of a record about an individual, unless disclosure is required by the Freedom of Information Act, reasonable efforts shall be made to assure that the records are accurate, complete, timely and relevant for agency purposes.

(2) When a record is disclosed in connection with a Freedom of Information request made under subpart B of this part and it is appropriate and administratively feasible to do so, the requester shall be informed of any information known to the Department indicating that the record may not be fully accurate, complete, or timely.

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

§ 2.232 Accounting for disclosures.

(a) Maintenance of an accounting. (1) Where a record is disclosed to any person, or to another agency, under any of the specific exceptions provided by § 2.56 (c), an accounting shall be made.

(2) The accounting shall record (i) the date, nature, and purpose of each disclosure of a record to any person or to another agency and (ii) the name and address of the person or agency to whom the disclosure was made.

(3) Accountings prepared under this section shall be maintained for at least five years or the life of the record, whichever is longer, after the disclosure for which the accounting is made.

(b) Access to accountings. (1) Except for accountings of disclosures made under § 2.56(c)(5), accountings of all disclosures of a record shall be made available to the individual to whom the record relates at the individual's request.

(2) An individual desiring access to an accounting of disclosures of a record pertaining to the individual shall submit a request by following the procedures of § 2.63.

(c) Notification of disclosure. When a record is disclosed pursuant to § 2.56(c)(9) as the result of the order of a court of competent jurisdiction, reasonable efforts shall be made to notify the individual to whom the record pertains as soon as the order becomes a matter of public record.

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

§§ 2.233-2.234 [Reserved]

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

(a) Submission of requests. (1)(i) Individuals desiring to determine under the Privacy Act whether a system of records contains records pertaining to them shall address inquiries to the system manager having responsibility for the system unless the system notice describing the system prescribes or permits submission to some other official or officials.

(ii) If a system notice describing a system requires individuals to contact more than two officials concerning the existence of records in the system, individuals desiring to determine whether the system contains records pertaining to them may contact the system manager for assistance in determining which official is most likely to be in possession of records pertaining to those individuals.

(2) Individuals desiring to determine whether records pertaining to them are maintained in two or more systems shall make a separate inquiry concerning each system.

(b) Form of request. (1) An inquiry to determine whether a system of records contains records pertaining to an individual shall be in writing.

(2) To insure expeditious handling, the request shall be prominently marked, both on the envelope and on the face of the request, with the legend “PRIVACY ACT INQUIRY.”

(3) The request shall state that the individual is seeking information concerning records pertaining to him or herself and shall supply such additional identifying information, if any, as is called for in the system notice describing the system.

(4) Individuals who have reason to believe that information pertaining to them may be filed under a name other than the name they are currently using (e.g., maiden name), shall include such information in the request.

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

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

(a) Decisions on request. (1) Individuals inquiring to determine whether a system of records contains records pertaining to them shall be promptly advised whether the system contains records pertaining to them unless (i) the records were compiled in reasonable anticipation of a civil action or proceeding or (ii) the system of records is one which has been excepted from the notification provisions of the Privacy Act by rulemaking (§ 2.79).

(2) If the records were compiled in reasonable anticipation of a civil action or proceeding or the system of records is one which has been excepted from the notification provisions of the Privacy Act by rulemaking, the individuals will be promptly notified that they are not entitled to notification of whether the system contains records pertaining to them.

(b) Authority to deny requests. A decision to deny a request for notification of the existence of records shall be made by the system manager responsible for the system of records concerning which inquiry has been made and shall be concurred in by the bureau Privacy Act officer for the bureau which maintains the system, provided, however that the head of a bureau may, in writing, require (1) that the decision be made by the bureau Privacy Act officer and/or (2) that the bureau head's own concurrence in the decision be obtained.

(c) Form of decision. (1) No particular form is required for a decision informing individuals whether a system of records contains records pertaining to them.

(2) A decision declining to inform an individual whether or not a system of records contains records pertaining to him or her shall be in writing and shall:

(i) State the basis for denial of the request.

(ii) Advise the individual that an appeal of the declination may be made to the Assistant Secretary—Policy, Budget and Administration pursuant to § 2.65 by writing to the Privacy Act Officer, Office of the Assistant Secretary—Policy, Budget and Administration, U.S. Department of the Interior, Washington, DC 20240.

(iii) State that the appeal must be received by the foregoing official within twenty (20) working days of the date of the decision.

(3) If the decision declining a request for notification of the existence of records involves Department employee records which fall under the jurisdiction of the Office of Personnel Management, the individual shall be informed in a written response which shall:

(i) State the reasons for the denial.

(ii) Include the name, position title, and address of the official responsible for the denial.

(iii) Advise the individual that an appeal of the declination may be made only to the Assistant Director for Workforce Information, Personnel Systems Oversight Group, Office of Personnel Management, 1900 E Street NW., Washington, DC 20415.

(4) Copies of decisions declining a request for notification of the existence of records made pursuant to paragraphs (c)(2) and (c)(3) of this section shall be provided to the Departmental and Bureau Privacy Act Officers.

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

§ 2.237 Requests for access to records.

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

[48 FR 56584, Dec. 22, 1983]

§ 2.238 Requests for access to records: Submission.

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

(ii) If a system notice describing a system requires individuals to contact more than two officials concerning access to records in the system, individuals desiring to request access to records pertaining to them may contact the system manager for assistance in determining which official is most likely to be in custody of records pertaining to that individual.

(2) Individuals desiring access to records maintained in two or more separate systems shall submit a separate request for access to the records in each system.

(b) Form of request. (1) A request for access to records subject to the Privacy Act shall be in writing.

(2) To insure expeditious handling, the request shall be prominently marked, both on the envelope and on the face of the request, with the legend “PRIVACY ACT REQUEST FOR ACCESS.”

(3) Requesters shall specify whether they seek all of the records contained in the system which relate to them or only some portion thereof. If only a portion of the records which relate to the individual are sought, the request shall reasonably describe the specific record or records sought.

(4) If the requester seeks to have copies of the requested records made, the request shall state the maximum amount of copying fees which the requester is willing to pay. A request which does not state the amount of fees the requester is willing to pay will be treated as a request to inspect the requested records. Requesters are further notified that under § 2.64(d) the failure to state willingness to pay fees as high as are anticipated by the Department will delay processing of a request.

(5) The request shall supply such identifying information, if any, as is called for in the system notice describing the system.

(6) Requests failing to meet the requirements of this paragraph shall be returned to the requester with a written notice advising the requester of the deficiency in the request.

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

§ 2.239 Requests for access to records: Initial decision.

(a) Decisions on requests. A request made under this subpart for access to a record shall be granted promptly unless (1) the record was compiled in reasonable anticipation of a civil action or proceeding or (2) the record is contained in a system of records which has been excepted from the access provisions of the Privacy Act by rulemaking (§ 2.79).

(b) Authority to deny requests. A decision to deny a request for access under this subpart shall be made by the system manager responsible for the system of records in which the requested record is located and shall be concurred in by the bureau Privacy Act officer for the bureau which maintains the system, provided, however, that the head of a bureau may, in writing, require (1) that the decision be made by the bureau Privacy Act officer and/or (2) that the bureau head's own concurrence in the decision be obtained.

(c) Form of decision. (1) No particular form is required for a decision granting access to a record. The decision shall, however, advise the individual requesting the record as to where and when the record is available for inspection or, as the case may be, where and when copies will be available. If fees are due under § 2.64(d), the individual requesting the record shall also be notified of the amount of fees due or, if the exact amount has not been determined, the approximate amount of fees due.

(2) A decision denying a request for access, in whole or part, shall be in writing and shall:

(i) State the basis for denial of the request.

(ii) Contain a statement that the denial may be appealed to the Assistant Secretary—Policy, Budget and Administration pursuant to § 2.65 by writing to the Privacy Act Officer, Office of the Assistant Secretary—Policy, Budget and Administration, U.S. Department of the Interior, Washington, DC 20240.

(iii) State that the appeal must be received by the foregoing official within twenty (20) working days of the date of the decision.

(3) If the decision denying a request for access involves Department employee records which fall under the jurisdiction of the Office of Personnel Management, the individual shall be informed in a written response which shall:

(i) State the reasons for the denial.

(ii) Include the name, position title, and address of the official responsible for the denial.

(iii) Advise the individual that an appeal of the denial may be made only to the Assistant Director for Workforce Information, Personnel Systems and Oversight Group, Office of Personnel Management, 1900 E Street NW., Washington, DC 20415.

(4) Copies of decisions denying requests for access made pursuant to paragraphs (c)(2) and (c)(3) of this section will be provided to the Departmental and Bureau Privacy Act Officers.

(d) Fees. (1) No fees may be charged for the cost of searching for or reviewing a record in response to a request made under § 2.63.

(2) Fees for copying a record in response to a request made under § 2.63 shall be charged in accordance with the schedule of charges contained in Appendix A to this part, unless the official responsible for processing the request determines that reduction or waiver of fees is appropriate.

(3) Where it is anticipated that fees chargeable in connection with a request will exceed the amount the person submitting the request has indicated a willingness to pay, the official processing the request shall notify the requester and shall not complete processing of the request until the requester has agreed, in writing, to pay fees as high as are anticipated.

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

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

(a) Right of appeal. Except for appeals pertaining to Office of Personnel Management records, individuals who have been notified that they are not entitled to notification of whether a system of records contains records pertaining to them or have been denied access, in whole or part, to a requested record may appeal to the Assistant Secretary—Policy, Budget and Administration.

(b) Time for appeal. (1) An appeal must be received by the Privacy Act Officer no later than twenty (20) working days after the date of the initial decision on a request.

(2) The Assistant Secretary—Policy, Budget and Administration may, for good cause shown, extend the time for submission of an appeal if a written request for additional time is received within twenty (20) working days of the date of the initial decision on the request.

(c) Form of appeal. (1) An appeal shall be in writing and shall attach copies of the initial request and the decision on the request.

(2) The appeal shall contain a brief statement of the reasons why the appellant believes the decision on the initial request to have been in error.

(3) The appeal shall be addressed to Privacy Act Officer, Office of the Assistant Secretary—Policy, Budget and Administration, U.S. Department of the Interior, Washington, DC 20240.

(d) Action on appeals. (1) Appeals from decisions on initial requests made pursuant to §§ 2.61 and 2.63 shall be decided for the Department by the Assistant Secretary—Policy, Budget and Administration or an official designated by the Assistant Secretary after consultation with the Solicitor.

(2) The decision on an appeal shall be in writing and shall state the basis for the decision.

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

§ 2.241 Requests for access to records: Special situations.

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

(2) If it is determined that disclosure of medical records directly to the individual to whom they pertain could have an adverse effect on that individual, the individual may designate a medical doctor to receive the records and the records will be disclosed to that doctor.

(b) Inspection in presence of third party. (1) Individuals wishing to inspect records pertaining to them which have been opened for their inspection may, during the inspection, be accompanied by a person of their own choosing.

(2) When such a procedure is deemed appropriate, individuals to whom the records pertain may be required to furnish a written statement authorizing discussion of their records in the accompanying person's presence.

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

§§ 2.242-2.244 [Reserved]

§ 2.245 Amendment of records.

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

[48 FR 56585, Dec. 22, 1983]

§ 2.246 Petitions for amendment: Submission and form.

(a) Submission of petitions for amendment. (1) A request for amendment of a record shall be submitted to the system manager for the system of records containing the record unless the system notice describing the system prescribes or permits submission to a different official or officials. If an individual wishes to request amendment of records located in more than one system, a separate petition must be submitted to each system manager.

(2) A petition for amendment of a record may be submitted only if the individual submitting the petition has previously requested and been granted access to the record and has inspected or been given a copy of the record.

(b) Form of petition. (1) A petition for amendment shall be in writing and shall specifically identify the record for which amendment is sought.

(2) The petition shall state, in detail, the reasons why the petitioner believes the record, or the objectionable portion thereof, is not accurate, relevant, timely or complete. Copies of documents or evidence relied upon in support of these reasons shall be submitted with the petition.

(3) The petition shall state, specifically and in detail, the changes sought in the record. If the changes involve rewriting the record or portions thereof or involve adding new language to the record, the petition shall propose specific language to implement the changes.

[48 FR 56585, Dec. 22, 1983]

§ 2.247 Petitions for amendment: Processing and initial decision.

(a) Decisions on petitions. In reviewing a record in response to a petition for amendment, the accuracy, relevance, timeliness and completeness of the record shall be assessed against the criteria set out in § 2.48. In addition, personnel records shall be assessed against the criteria for determining record quality published in the Federal Personnel Manual and the Departmental Manual addition thereto.

(b) Authority to decide. An initial decision on a petition for amendment may be made only by the system manager responsible for the system of records containing the challenged record. If the system manager declines to amend the record as requested, the bureau Privacy Act officer for the bureau which maintains the system must concur in the decision, provided, however, that the head of a bureau may, in writing, require (1) that the decision be made by the bureau Privacy Act officer and/or (2) that the bureau head's own concurrence in the decision be obtained.

(c) Acknowledgement of receipt. Unless processing of a petition is completed within ten (10) working days, the receipt of the petition for amendment shall be acknowledged in writing by the system manager to whom it is directed.

(d) Inadequate petitions. (1) If a petition does not meet the requirements of § 2.71, the petitioner shall be so advised and shall be told what additional information must be submitted to meet the requirements of § 2.71.

(2) If the petitioner fails to submit the additional information within a reasonable time, the petition may be rejected. The rejection shall be in writing and shall meet the requirements of paragraph (e) of this section.

(e) Form of decision. (1) A decision on a petition for amendment shall be in writing and shall state concisely the basis for the decision.

(2) If the petition for amendment is rejected, in whole or part, the petitioner shall be informed in a written response which shall:

(i) State concisely the basis for the decision.

(ii) Advise the petitioner that the rejection may be appealed to the Assistant Secretary—Policy, Budget and Administration by writing to the Privacy Act Officer, Office of the Assistant Secretary—Policy, Budget and Administration, U.S. Department of the Interior, Washington, DC 20240.

(iii) State that the appeal must be received by the foregoing official within twenty (20) working days of the decision.

(3) If the petition for amendment involves Department employee records which fall under the jurisdiction of the Office of Personnel Management and is rejected, in whole or part, the petitioner shall be informed in a written response which shall:

(i) State concisely the basis for the decision.

(ii) Advise the petitioner that an appeal of the rejection may be made pursuant to 5 CFR 297.306 only to the Assistant Director for Workforce Information, Personnel Systems and Oversight Group, Office of Personnel Management, 1900 E Street NW., Washington, DC 20415.

(4) Copies of rejections of petitions for amendment made pursuant to paragraphs (e)(2) and (e)(3) of this section will be provided to the Departmental and Bureau Privacy Act Officers.

(f) Implementation of initial decision. If a petition for amendment is accepted, in whole or part, the bureau maintaining the record shall:

(1) Correct the record accordingly and,

(2) Where an accounting of disclosures has been made pursuant to § 2.57, advise all previous recipients of the record that the correction was made and the substance of the correction.

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

§ 2.248 Petitions for amendments: Time limits for processing.

(a) Acknowledgement of receipt. The acknowledgement of receipt of a petition required by § 2.72(c) shall be dispatched not later than ten (10) working days after receipt of the petition by the system manager responsible for the system containing the challenged record, unless a decision on the petition has been previously dispatched.

(b) Decision on petition. A petition for amendment shall be processed promptly. A determination whether to accept or reject the petition for amendment shall be made within thirty (30) working days after receipt of the petition by the system manager responsible for the system containing the challenged record.

(c) Suspension of time limit. The thirty (30) day time limit for a decision on a petition shall be suspended if it is necessary to notify the petitioner, pursuant to § 2.72(d), that additional information in support of the petition is required. Running of the thirty (30) day time limit shall resume on receipt of the additional information by the system manager responsible for the system containing the challenged record.

(d) Extensions of time. (1) The thirty (30) day time limit for a decision on a petition may be extended if the official responsible for making a decision on the petition determines that an extension is necessary for one of the following reasons:

(i) A decision on the petition requires analysis of voluminous record or records;

(ii) Some or all of the challenged records must be collected from facilities other than the facility at which the official responsible for making the decision is located.

(iii) Some or all of the challenged records are of concern to another bureau of the Department or another agency of the Federal Government whose assistance and views are being sought in processing the request.

(2) If the official responsible for making a decision on the petition determines that an extension is necessary, the official shall promptly inform the petitioner of the extension and the date on which a decision is expected to be dispatched.

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

§ 2.249 Petitions for amendment: Appeals.

(a) Right of appeal. Except for appeals pertaining to Office of Personnel Management records, where a petition for amendment has been rejected in whole or in part, the individual submitting the petition may appeal the denial to the Assistant Secretary—Policy, Budget and Administration.

(b) Time for appeal. (1) An appeal must be received no later than twenty (20) working days after the date of the decision on a petition.

(2) The Assistant Secretary—Policy, Budget and Administration may, for good cause shown, extend the time for submission of an appeal if a written request for additional time is received within twenty (20) working days of the date of the decision on a petition.

(c) Form of appeal. (1) An appeal shall be in writing and shall attach copies of the initial petition and the decision on that petition.

(2) The appeal shall contain a brief statement of the reasons why the appellant believes the decision on the petition to have been in error.

(3) The appeal shall be addressed to Privacy Act Officer, Office of the Assistant Secretary—Policy, Budget and Administration, U.S. Department of the Interior, Washington, DC 20240.

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

§ 2.250 Petitions for amendment: Action on appeals.

(a) Authority. Appeals from decisions on initial petitions for amendment shall be decided for the Department by the Assistant Secretary—Policy, Budget and Administration or an official designated by the Assistant Secretary, after consultation with the Solicitor.

(b) Time limit. (1) A final determination on any appeal shall be made within thirty (30) working days after receipt of the appeal.

(2) The thirty (30) day period for decision on an appeal may be extended, for good cause shown, by the Secretary of the Interior. If the thirty (30) day period is extended, the individual submitting the appeal shall be notified of the extension and of the date on which a determination on the appeal is expected to be dispatched.

(c) Form of decision. (1) The final determination on an appeal shall be in writing and shall state the basis for the determination.

(2) If the determination upholds, in whole or part, the initial decision rejecting the petition for amendment, the determination shall also advise the individual submitting the appeal:

(i) Of his or her right to file a concise statement of the reasons for disagreeing with the decision of the agency;

(ii) Of the procedure established by § 2.77 for the filing of the statement of disagreement;

(iii) That the statement which is filed will be made available to anyone to whom the record is subsequently disclosed together with, at the discretion of the Department, a brief statement by the Department summarizing its reasons for refusing to amend the record;

(iv) That prior recipients of the challenged record will be provided a copy of any statement of dispute to the extent that an accounting of disclosure was maintained; and

(v) Of his or her right to seek judicial review of the Department's refusal to amend the record.

(3) If the determination reverses, in whole or in part, the initial decision rejecting the petition for amendment, the system manager responsible for the system containing the challenged record shall be directed to:

(i) Amend the challenged record accordingly; and

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

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

§ 2.251 [Reserved]

§ 2.252 Statements of disagreement.

(a) Filing of statement. If the determination of the Assistant Secretary—Policy, Budget and Administration under § 2.75 rejects in whole or part, a petition for amendment, the individual submitting the petition may file with the system manager for the system containing the challenged record a concise written statement setting forth the reasons for disagreement with the determination of the Department.

(b) Disclosure of statements. In any disclosure of a record containing information about which an individual has filed a statement of disagreement under this section which occurs after the filing of the statement, the disputed portion of the record will be clearly noted and the recipient shall be provided copies of the statement of disagreement. If appropriate, a concise statement of the reasons of the Department for not making the requested amendments may also be provided to the recipient.

(c) Maintenance of statements. System managers shall develop procedures to assure that statements of disagreement filed with them shall be maintained in such a way as to assure dissemination of the statements to recipients of the records to which the statements pertain.

[48 FR 56586, Dec. 22, 1983]

§ 2.253 [Reserved]

§ 2.254 Exemptions.

(a) Criminal law enforcement records exempt under 5 U.S.C. 552a(j)(2). Pursuant to 5 U.S.C. 552a(j)(2) the following systems of records are exempted from all of the provisions of 5 U.S.C. 552a and the regulations in this subpart except paragraphs (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), (11), and (12), and (i) of 5 U.S.C. 552a and the portions of the regulations in this subpart implementing these paragraphs:

(1) INTERIOR/FWS-20, Investigative Case File System.

(2) INTERIOR/BIA-18, Law Enforcement Services System.

(3) INTERIOR/NPS-19, Law Enforcement Statistical Reporting System.

(4) INTERIOR/OIG-02, Investigative Records.

(5) INTERIOR/DOI-10, DOI Law Enforcement Records Management System (LE RMS).

(6) INTERIOR/DOI-50, Insider Threat Program.

(b) Classified records exempt under 5 U.S.C. 552a(k)(1). Pursuant to 5 U.S.C. 552a(k)(1), the following systems of records have been exempted from paragraphs (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) of 5 U.S.C. 552a and the provisions of the regulations in this subpart implementing these paragraphs:

(1) INTERIOR/DOI-50, Insider Threat Program.

(2) INTERIOR/DOI-45, Personnel Security Program Files.

(3) INTERIOR/OIG-02, Investigative Records.

(4) INTERIOR/DOI-10, DOI Law Enforcement Records Management System (LE RMS).

(c) Law enforcement records exempt under 5 U.S.C. 552a(k)(2). Pursuant to 5 U.S.C. 552a(k)(2), the following systems of records are exempted from paragraphs (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) of 5 U.S.C. 552a and the provisions of the regulations in this subpart implementing these paragraphs:

(1) INTERIOR/OIG-2, Investigative Records.

(2) INTERIOR/FWS-21, Permits System.

(3) INTERIOR/BLM-18, Criminal Case Investigation System.

(4) INTERIOR/BLM-19, Civil Trespass Case Investigations.

(5) INTERIOR/BLM-20, Employee Conduct Investigations.

(6)-(7) [Reserved]

(8) INTERIOR/NPS-17, Employee Financial Irregularities.

(9) INTERIOR/Reclamation-37, Trespass Cases.

(10) INTERIOR/SOL-1, Litigation, Appeal and Case Files System, to the extent that it consists of investigatory material compiled for law enforcement purposes.

(11) INTERIOR/FWS-19, Endangered Species Licenses System.

(12) INTERIOR/FWS-20, Investigative Case File System.

(13) INTERIOR/BIA-24, Timber Cutting and Trespass Claims Files.

(14) INTERIOR/DOI-11, Debarment and Suspension Program.

(15) INTERIOR/DOI-10, DOI Law Enforcement Records Management System (LE RMS).

(16) INTERIOR/DOI-50, Insider Threat Program.

(17) INTERIOR/DOI-24, Indian Arts and Crafts Board.

(18) INTERIOR/BSEE-01, Investigations Case Management System (CMS).

(19) INTERIOR/DOI-46, Physical Security Access Files.

(20) INTERIOR/DOI-45, Personnel Security Program Files.

(d) Records maintained in connection with providing protective services exempt under 5 U.S.C. 552a(k)(3). Pursuant to 5 U.S.C. 552a(k)(3), the following systems of records have been exempted from paragraphs (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of 5 U.S.C. 552a and the provisions of the regulations in this subpart implementing these paragraphs:

(1) INTERIOR/DOI-46, Physical Security Access Files.

(2) INTERIOR/DOI-45, Personnel Security Program Files.

(3) INTERIOR/OIG-02, Investigative Records.

(4) INTERIOR/DOI-10, DOI Law Enforcement Records Management System (LE RMS).

(e) Investigatory records exempt under 5 U.S.C. 552a(k)(5). Pursuant to 5 U.S.C. 552a(k)(5), the following systems of records have been exempted from paragraphs (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) of 5 U.S.C. 552a and the provisions of the regulations in this subpart implementing these paragraphs:

(1) [Reserved]

(2) INTERIOR/GS-9, National Research Council Grants Program.

(3) INTERIOR/OS-68, Committee Management Files.

(4) INTERIOR/DOI-11, Debarment and Suspension Program.

(5) INTERIOR/DOI-46, Physical Security Access Files.

(6) INTERIOR/DOI-50, Insider Threat Program.

(7) INTERIOR/DOI-45, Personnel Security Program Files.

(8) INTERIOR/OIG-02, Investigative Records.

(9) INTERIOR/DOI-10, DOI Law Enforcement Records Management System (LE RMS).

(f) Records maintained on testing and examination material exempt under 5 U.S.C. 552a(k)(6). Pursuant to U.S.C. 552a(k)(6), the following systems of records have been exempted from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f) and the provisions of the regulations in this subpart implementing these paragraphs.

(1) INTERIOR/DOI-45, Personnel Security Program Files.

(2) INTERIOR/DOI-10, DOI Law Enforcement Records Management System (LE RMS).

[86 FR 49928, Sept. 7, 2021, as amended at 87 FR 8428, Feb. 15, 2022; 88 FR 10480, Feb. 21, 2023; 89 FR 2148, Jan. 12, 2024; 89 FR 63830, Aug. 6, 2024]

§ 2.280 What does this subpart cover?

(a) This subpart describes how the Department of the Interior (including all its bureaus and offices) responds to requests or subpoenas for:

(1) Testimony by employees in State, territorial or Tribal judicial, legislative or administrative proceedings concerning information acquired while performing official duties or because of an employee's official status;

(2) Testimony by employees in Federal court civil proceedings in which the United States is not a party concerning information acquired while performing official duties or because of an employee's official status;

(3) Testimony by employees in any judicial or administrative proceeding in which the United States, while not a party, has a direct and substantial interest;

(4) Official records or certification of such records for use in Federal, State, territorial or Tribal judicial, legislative or administrative proceedings.

(b) In this subpart, “employee” means a current or former Department employee, including a contract or special government employee.

(c) This subpart does not apply to:

(1) Congressional requests or subpoenas for testimony or records;

(2) Federal court civil proceedings in which the United States is a party;

(3) Federal administrative proceedings;

(4) Federal, State and Tribal criminal court proceedings;

(5) Employees who voluntarily testify, while on their own time or in approved leave status, as private citizens as to facts or events that are not related to the official business of the Department. The employee must state for the record that the testimony represents the employee's own views and is not necessarily the official position of the Department. See 5 CFR §§ 2635.702(b), 2635.807 (b).

(6) Testimony by employees as expert witnesses on subjects outside their official duties, except that they must obtain prior approval if required by § 2.90.

(d) This subpart does not affect the rights of any individual or the procedures for obtaining records under the Freedom of Information Act (FOIA), Privacy Act, or statutes governing the certification of official records. The Department FOIA and Privacy Act regulations are found at 43 CFR part 2, subparts B and D.

(e) Nothing in this subpart is intended to impede the appropriate disclosure under applicable laws of Department information to Federal, State, territorial, Tribal, or foreign law enforcement, prosecutorial, or regulatory agencies.

(f) This subpart only provides guidance for the internal operations of the Department, and neither creates nor is intended to create any enforceable right or benefit against the United States.

§ 2.281 What is the Department's policy on granting requests for employee testimony or Department records?

(a) Except for proceedings covered by § 2.80(c) and (d), it is the Department's general policy not to allow its employees to testify or to produce Department records either upon request or by subpoena. However, if you request in writing, the Department will consider whether to allow testimony or production of records under this subpart. The Department's policy ensures the orderly execution of its mission and programs while not impeding any proceeding inappropriately.

(b) No Department employee may testify or produce records in any proceeding to which this subpart applies unless authorized by the Department under §§ 2.80 through 2.90 United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

§ 2.282 How can I obtain employee testimony or Department records?

(a) To obtain employee testimony, you must submit:

(1) A written request (hereafter a “Touhy Request;” see § 2.84 and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)); and

(2) A statement that you will submit a check for costs to the Department of the Interior, in accordance with § 2.85, if your Touhy Request is granted.

(b) To obtain official Department records, you must submit:

(1) A Touhy Request; and

(2) A Statement that you agree to pay the costs of duplication in accordance with 43 CFR part 2, appendix A, if your Touhy Request is granted.

(c) You must send your Touhy Request to:

(1) The employee's office address;

(2) The official in charge of the employee's bureau, division, office or agency; and

(3) The appropriate unit of the Solicitor's Office.

(d) To obtain employee testimony or records of the Office of Inspector General, you must send your Touhy Request to the General Counsel for the Office of Inspector General.

(e) 43 CFR part 2, appendix B contains a list of the addresses of the Department's bureaus and offices and the units of the Solicitor's Office. The General Counsel for the Inspector General is located at the address for the Office of the Inspector General. If you do not know the employee's address, you may obtain it from the employee's bureau or office.

§ 2.283 If I serve a subpoena duces tecum, must I also submit a Touhy request?

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

§ 2.284 What information must I put in my Touhy Request?

Your Touhy Request must:

(a) Identify the employee or record;

(b) Describe the relevance of the desired testimony or records to your proceeding and provide a copy of the pleadings underlying your request;

(c) Identify the parties to your proceeding and any known relationships they have to the Department's mission or programs;

(d) Show that the desired testimony or records are not reasonably available from any other source;

(e) Show that no record could be provided and used in lieu of employee testimony;

(f) Provide the substance of the testimony expected of the employee; and

(g) Explain why you believe your Touhy Request complies with § 2.88.

§ 2.285 How much will I be charged?

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

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

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

§ 2.287 How will the Department process my Touhy Request?

(a) The appropriate Department official will decide whether to grant or deny your Touhy Request. Our Solicitor's Office or, in the case of the Office of Inspector General, its General Counsel, may negotiate with you or your attorney to refine or limit both the timing and content of your Touhy Request. When necessary, the Solicitor's Office or, in the case of the Office of Inspector General, its General Counsel, also will coordinate with the Department of Justice to file appropriate motions, including motions to remove the matter to Federal court, to quash, or to obtain a protective order.

(b) We will limit our decision to allow employee testimony to the scope of your Touhy Request.

(c) If you fail to follow the requirements of this Subpart, we will not allow the testimony or produce the records.

(d) If your Touhy Request is complete, we will consider the request under § 2.88.

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

In deciding whether to grant your Touhy Request, the appropriate Department official will consider:

(a) Your ability to obtain the testimony or records from another source;

(b) The appropriateness of the employee testimony and record production under the relevant regulations of procedure and substantive law, including the FOIA or the Privacy Act; and

(c) Our ability to:

(1) Conduct our official business unimpeded;

(2) Maintain impartiality in conducting our business;

(3) Minimize the possibility that we will become involved in issues that are not related to our mission or programs;

(4) Avoid spending public employee's time for private purposes;

(5) Avoid the negative cumulative effect of granting similar requests;

(6) Ensure that privileged or protected matters remain confidential; and

(7) Avoid undue burden on us.

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

(a) If you receive a request or subpoena that does not include a Touhy Request, you must immediately notify your supervisor and the Solicitor's Office, or the General Counsel of the Office of the Inspector General, as applicable, for assistance in issuing the proper response.

(b) If you receive a Touhy Request, you must promptly notify your supervisor and forward the request to the head of your bureau, division or office. After consulting with the Solicitor's Office or, in the case of the Office of Inspector General, its General Counsel, the official in charge will decide whether to grant the Touhy Request under § 2.88.

(c) All decisions granting or denying a Touhy Request must be in writing. The official in charge must ask the applicable unit of the Solicitor's Office or, in the case of the Office of Inspector General, its General Counsel, for advice when preparing the decision.

(d) Under 28 U.S.C. 1733, Federal Rule of Civil Procedure 44(a)(1), or comparable State or Tribal law, a request for an authenticated copy of a Department record may be granted by the person having the legal custody of the record. If you believe that you have custody of a record:

(1) Consult your delegated authority to determine if you can grant a request for authentication of records; and

(2) Consult the Solicitor's Office or, in the case of the Office of Inspector General, its General Counsel, concerning the proper form of the authentication (as authentication requirements may vary by jurisdiction).

§ 2.290 Must I get approval before testifying as an expert witness on a subject outside the scope of my official duties?

(a) You must comply with 5 CFR 2635.805(c), which details the authorization procedure for an employee to testify as an expert witness, not on behalf of the United States, in any judicial or administrative proceeding in which the United States is a party or has a direct and substantial interest. This procedure means:

(1) You must obtain the written approval of your Deputy Ethics Official;

(2) You must be in an approved leave status if you testify during duty hours; and

(3) You must state for the record that you are appearing as a private individual and that your testimony does not represent the official views of the Department.

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

§ 2.300 What is the purpose of this subpart?

(a) The purpose of this subpart is to implement the requirements of the Social Security Number Fraud Prevention Act of 2017 (the Act), Public Law 115-59, 42 U.S.C. 405 note, September 15, 2017.

(b) The Act:

(1) Prohibits Federal agencies from including any individual's Social Security account number (SSN) on any document sent by mail unless the head of the agency determines that such inclusion is necessary; and

(2) Requires agencies to issue regulations that specify the circumstances under which such inclusion is necessary.

§ 2.301 What does this subpart cover?

(a) This subpart describes how DOI, including all its bureaus and offices, handles the use and protection of individuals' SSNs in documents that are mailed. SSNs may only be included in documents that are mailed when authorized and necessary, and where appropriate safeguards are employed to protect individual privacy in accordance with the Act.

(b) This subpart includes the circumstances under which inclusion of an individual's SSN on a document is authorized to be mailed;

(c) This subpart requires SSNs to be safeguarded when mailed by:

(1) Requiring the partial redaction of SSNs where feasible; and

(2) Prohibiting the display of SSNs on the outside of any package or mailing envelope sent by mail or through the window of an envelope or package.

§ 2.302 What terms are used in this subpart?

Act means the Social Security Number Fraud Prevention Act of 2017, Public Law 115-59.

Bureau is any component or constituent bureau or office of DOI, including the Office of the Secretary and any other Departmental office.

Department or DOI means the Department of the Interior.

Document means a piece of written or printed matter that provides information or evidence or that serves as an official record.

Individual means a natural person who is a citizen of the United States or an alien lawfully admitted for permanent residence as defined by the Privacy Act of 1974, as amended, 5 U.S.C. 552a.

Mail means artifacts used to assemble letters and packages that are sent or delivered by means of an authorized carrier of postal delivery or United States Postal Service (USPS) postal system. (For purposes of the subpart, the postal system that is managed by the U.S. Postal Service.)

Social Security number or Social Security account number means the nine-digit number issued by the Social Security Administration to U.S. citizens, permanent residents, and temporary (working) residents under section 205(c)(2) of the Social Security Act, codified as 42 U.S.C. 405(c)(2).

Truncated or partial SSN means the shortened or partial Social Security account number.

§ 2.303 What are DOI's requirements for protecting SSNs in document sent by mail?

(a) DOI bureaus and offices may not include the full or partial SSN of an individual on any document sent via mail unless:

(1) The inclusion of an SSN on a document sent by mail is required or authorized by law;

(2) The responsible program office has conducted the proper assessment and taken steps to mitigate the use of the SSN and any impacts to individual privacy; and

(3) The Secretary of the Interior has determined that the inclusion of the SSN on the document is necessary and appropriate to meet legal and mission requirements in accordance with this subpart.

(b) Bureaus and offices shall partially redact or truncate SSNs in documents sent by mail where feasible to reduce the unnecessary use of SSNs and mitigate risk to individuals' privacy.

(c) In no case shall any complete or partial SSN be visible on the outside of any envelope or package sent by mail or displayed on correspondence that is visible through the window of an envelope or package.

§ 3.1 Jurisdiction.

Jurisdiction over ruins, archeological sites, historic and prehistoric monuments and structures, objects of antiquity, historic landmarks, and other objects of historic and scientific interest, shall be exercised under the act by the respective Departments as follows:

(a) By the Secretary of Agriculture over lands within the exterior limits of forest reserves;

(b) By the Secretary of the Army over lands within the exterior limits of military reservations;

(c) By the Secretary of the Interior over all other lands owned or controlled by the Government of the United States, Provided, The Secretaries of the Army and Agriculture may by agreement cooperate with the Secretary of the Interior in the supervision of such monuments and objects covered by the Act of June 8, 1906 (34 Stat. 225; 16 U.S.C. 431-433), as may be located on lands near or adjacent to forest reserves and military reservations, respectively.

§ 3.2 Limitation on permits granted.

No permit for the removal of any ancient monument or structure which can be permanently preserved under the control of the United States in situ, and remain an object of interest, shall be granted.

§ 3.3 Permits; to whom granted.

Permits for the examination of ruins, the excavation of archeological sites, and the gathering of objects of antiquity will be granted, by the respective Secretaries having jurisdiction, to reputable museums, universities, colleges, or other recognized scientific or educational institutions, or to their duly authorized agents.

§ 3.4 No exclusive permits granted.

No exclusive permits shall be granted for a larger area than the applicant can reasonably be expected to explore fully and systematically within the time limit named in the permit.

§ 3.5 Application.

Each application for a permit should be filed with the Secretary having jurisdiction, and must be accompanied by a definite outline of the proposed work, indicating the name of the institution making the request, the date proposed for beginning the field work, the length of time proposed to be devoted to it, and the person who will have immediate charge of the work. The application must also contain an exact statement of the character of the work, whether examination, excavation, or gathering, and the public museum in which the collections made under the permit are to be permanently preserved. The application must be accompanied by a sketch plan or description of the particular site or area to be examined, excavated, or searched, so definite that it can be located on the map with reasonable accuracy.

§ 3.6 Time limit of permits granted.

No permit will be granted for a period of more than 3 years, but if the work has been diligently prosecuted under the permit, the time may be extended for proper cause upon application.

§ 3.7 Permit to become void.

Failure to begin work under a permit within 6 months after it is granted, or failure to diligently prosecute such work after it has been begun, shall make the permit void without any order or proceeding by the Secretary having jurisdiction.

§ 3.8 Applications referred for recommendation.

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

§ 3.9 Form and reference of permit.

Every permit shall be in writing and copies shall be transmitted to the Smithsonian Institution and the field officer in charge of the land involved. The permitee will be furnished with a copy of the regulations in this part.

§ 3.10 Reports.

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

§ 3.11 Restoration of lands.

Institutions and persons receiving permits for excavation shall, after the completion of the work, restore the lands upon which they have worked to their customary condition, to the satisfaction of the field officer in charge.

§ 3.12 Termination.

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

§ 3.13 Report of field officer.

The field officer in charge of land owned or controlled by the Government of the United States shall, from time to time, inquire and report as to the existence, on or near such lands, of ruins and archaeological sites, historic or prehistoric ruins or monuments, objects of antiquity, historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.

§ 3.14 Examinations by field officer.

The field officer in charge may at all times examine the permit of any person or institution claiming privileges granted in accordance with the act and this part, and may fully examine all work done under such permit.

§ 3.15 Persons who may apprehend or cause to be arrested.

All persons duly authorized by the Secretaries of Agriculture, Army and Interior may apprehend or cause to be arrested, as provided in the Act of February 6, 1905 (33 Stat. 700) any person or persons who appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument, or any object of antiquity on lands under the supervision of the Secretaries of Agriculture, Army, and Interior, respectively.

§ 3.16 Seizure.

Any object of antiquity taken, or collection made, on lands owned or controlled by the United States, without a permit, as prescribed by the act and this part, or there taken or made, contrary to the terms of the permit, or contrary to the act and this part, may be seized wherever found and at any time, by the proper field officer or by any person duly authorized by the Secretary having jurisdiction, and disposed of as the Secretary shall determine, by deposit in the proper national depository or otherwise.

§ 3.17 Preservation of collection.

Every collection made under the authority of the act and of this part shall be preserved in the public museum designated in the permit and shall be accessible to the public. No such collection shall be removed from such public museum without the written authority of the Secretary of the Smithsonian Institution, and then only to another public museum, where it shall be accessible to the public; and when any public museum, which is a depository of any collection made under the provisions of the act and this part, shall cease to exist, every such collection in such public museum shall thereupon revert to the national collections and be placed in the proper national depository.

Note to § 3.17:

Regulations concerning curation of federally owned or administered archeological collections are found in 36 CFR part 79. Objects excavated under the Antiquities Act may be eligible for disposal under subpart E of 36 CFR part 79.

[19 FR 8838, Dec. 23, 1954, as amended at 87 FR 22462, Apr. 15, 2022]

§ 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.

[90 FR 2390, Jan. 10, 2025;90 FR 23291, June 2, 2025]

§ 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.

§ 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.

[90 FR 2390, Jan. 10, 2025; 90 FR 23291, June 2, 2025]

§ 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.

[90 FR 2390, Jan. 10, 2025; 90 FR 23291, June 2, 2025]

§ 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.

§ 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.

§ 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.

§ 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.

[90 FR 2395, Jan. 10, 2025, as amended at 91 FR 29918, May 21, 2026]

§ 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.

§ 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.

§ 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.

[91 FR 29918, May 21, 2026]

§ 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.

§ 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.

[90 FR 2395, Jan. 10, 2025, as amended at 91 FR 29919, May 21, 2026]

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

[90 FR 2395, Jan. 10, 2025, as amended at 91 FR 29919, May 21, 2026]

§ 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.

[90 FR 2395, Jan. 10, 2025, as amended at 91 FR 29919, May 21, 2026]

§ 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.

[90 FR 2395, Jan. 10, 2025, as amended at 91 FR 29919, May 21, 2026]

§ 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).

[90 FR 2395, Jan. 10, 2025, as amended at 91 FR 29919, May 21, 2026]

§ 4.200 How to use this subpart.

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

For provisions relating to . . . | Consult . . .

(1) Appeals to the Board of Indian Appeals generally | §§ 4.200, 4.201, and 4.310 through 4.318.

(2) Appeals to the Board of Indian Appeals from orders of the Probate Hearings Division in Indian probate matters | §§ 4.201 and 4.320 through 4.326.

(3) Appeals to the Board of Indian Appeals from actions or decisions of the Bureau of Indian Affairs | §§ 4.201 and 4.330 through 4.340.

(4) Review by the Board of Indian Appeals of other matters referred to it by the Secretary, Assistant Secretary—Indian Affairs, or Director—Office of Hearings and Appeals | §§ 4.201 and 4.330 through 4.340.

(5) Determinations under the White Earth Reservation Land Settlement Act of 1985, as amended. | Subpart H of this part.

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

[73 FR 67287, Nov. 13, 2008, as amended at 90 FR 2410, Jan. 10, 2025]

§ 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.

[73 FR 67287, Nov. 13, 2008, as amended at 88 FR 5793, Jan. 30, 2023; 90 FR 2410, Jan. 10, 2025]

§§ 4.202-4.308 [Reserved]

§ 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.

[36 FR 7186, Apr. 15, 1971, as amended at 88 FR 5793, Jan. 30, 2023; 90 FR 2411, Jan. 10, 2025]

§ 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.

[90 FR 2411, Jan. 10, 2025]

§ 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.

[90 FR 2412, Jan. 10, 2025]

§ 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.

[70 FR 11825, Mar. 9, 2005, as amended at 90 FR 2412, Jan. 10, 2025]

§ 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.

[70 FR 11825, Mar. 9, 2005, as amended at 90 FR 2412, Jan. 10, 2025]

§ 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.

[70 FR 11825, Mar. 9, 2005, as amended at 90 FR 2412, Jan. 10, 2025]

§ 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.

[76 FR 7505, Feb. 10, 2011, as amended at 90 FR 2412, Jan. 10, 2025]

§ 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).

[90 FR 2412, Jan. 10, 2025]

§ 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.

[73 FR 67288, Nov. 13, 2008]

§ 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.

[73 FR 67288, Nov. 13, 2008, as amended at 88 FR 5793, Jan. 30, 2023; 90 FR 2412, Jan. 10, 2025]

§ 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.

[76 FR 7505, Feb. 10, 2011, as amended at 88 FR 5793, Jan. 30, 2023; 90 FR 2412, Jan. 10, 2025]

§ 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.

[73 FR 67288, Nov. 13, 2008, as amended at 90 FR 2412, Jan. 10, 2025]

§ 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.

[73 FR 67288, Nov. 13, 2008]

§ 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).

[54 FR 6487, Feb. 10, 1989, as amended at 90 FR 2412, Jan. 10, 2025]

§ 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.

[54 FR 6487, Feb. 10, 1989, as amended at 90 FR 2413, Jan. 10, 2025]

§ 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.

[54 FR 6487, Feb. 10, 1989, as amended at 67 FR 4368, Jan. 30, 2002; 90 FR 2413, Jan. 10, 2025]

§ 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.

[90 FR 2413, Jan. 10, 2025]

§ 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.

[90 FR 2413, Jan. 10, 2025]

§ 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.

§ 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.

[90 FR 2413, Jan. 10, 2025, as amended at 91 FR 29919, May 21, 2026]

§ 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.

[91 FR 29919, May 21, 2026]

§ 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.

[90 FR 2413, Jan. 10, 2025, as amended at 91 FR 29920, May 21, 2026]

§ 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.

[91 FR 29920, May 21, 2026]

§ 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.

[91 FR 29920, May 21, 2026]

§ 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.

§ 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.

[36 FR 7186, Apr. 15, 1971, as amended at 88 FR 5794, Jan. 30, 2023]

§ 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.

§ 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.

§ 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.

[36 FR 7186, Apr. 15, 1971, as amended at 88 FR 5794, Jan. 30, 2023]

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2426, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2426, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2426, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2426, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2426, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2426, Jan. 10, 2025]

§ 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.

[36 FR 7186, Apr. 15, 1971, as amended at 88 FR 5794, Jan. 30, 2023; 90 FR 2426, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2426, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2426, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2426, Jan. 10, 2025]

§ 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.

[90 FR 2426, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2426, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2426, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2427, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2427, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2427, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2427, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 50 FR 43706, Oct. 29, 1985; 90 FR 2427, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2427, Jan. 10, 2025]

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2427, Jan. 10, 2025]

§ 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.

[90 FR 2427, Jan. 10, 2025]

§ 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.

§ 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.

[38 FR 21162, Aug. 6, 1973, as amended at 90 FR 2427, Jan. 10, 2025]

§ 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.

[90 FR 2427, Jan. 10, 2025]

§ 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.

§ 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.

[90 FR 2427, Jan. 10, 2025]

§ 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.

[64 FR 26259, May 13, 1999, as amended at 79 FR 62051, Oct. 16, 2014]

§ 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.

[64 FR 26259, May 13, 1999, as amended at 79 FR 62051, 62052, Oct. 16, 2014; 88 FR 5794, Jan. 30, 2023; 90 FR 2427, Jan. 10, 2025]

§ 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.

[90 FR 2427, Jan. 10, 2025]

§ 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.

[90 FR 2427, Jan. 10, 2025]

§ 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.

[90 FR 2427, Jan. 10, 2025]

§ 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.

[64 FR 26259, May 13, 1999, as amended at 79 FR 62051, Oct. 16, 2014]

§ 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.

[64 FR 26259, May 13, 1999, as amended at 79 FR 62051, Oct. 16, 2014]

§ 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.

[90 FR 2428, Jan. 10, 2025]

§ 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.

[36 FR 7186, Apr. 15, 1971, as amended at 88 FR 5794, Jan. 30, 2023]

§ 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.

§ 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.

§ 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.

[90 FR 2428, Jan. 10, 2025]

§ 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.

[90 FR 2428, Jan. 10, 2025]

§ 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.

[80 FR 48459, Aug. 13, 2015, as amended at 90 FR 2429, Jan. 10, 2025]

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

[90 FR 2429, Jan. 10, 2025]

§ 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.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61509, Oct. 1, 2002; 90 FR 2429, Jan. 10, 2025]

§ 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.

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

§ 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.

[90 FR 2429, Jan. 10, 2025]

§ 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.

[90 FR 2429, Jan. 10, 2025]

§ 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.

[90 FR 2429, Jan. 10, 2025]

§ 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.

[36 FR 7186, Apr. 15, 1971, as amended at 88 FR 5795, Jan. 30, 2023]

§ 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.

[90 FR 2430, Jan. 10, 2025]

§ 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.

[90 FR 2430, Jan. 10, 2025]

§ 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.

[90 FR 2430, Jan. 10, 2025]

§ 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.

[90 FR 2430, Jan. 10, 2025]

§ 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.

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

§ 4.1151 Time for filing.

(a) A petition for review of a proposed assessment of a civil penalty must be filed within 30 days of receipt of the proposed assessment; or

(b) If a timely request for a conference has been made pursuant to 30 CFR 723.18 or 845.18, a petition for review must be filed within 30 days from service of notice by the conference officer that the conference is deemed completed.

(c) No extension of time will be granted for filing a petition for review of a proposed assessment of a civil penalty as required by paragraph (a) or (b) of this section. If a petition for review is not filed within the time period provided in paragraph (a) or (b) of this section, the appropriateness of the amount of the penalty, and the fact of the violation if there is no proceeding pending under section 525 of the Act to review the notice of violation or cessation order involved, shall be deemed admitted, the petition shall be dismissed, and the civil penalty assessed shall become a final order of the Secretary.

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

§ 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.

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

§ 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.

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

§ 4.1155 Burdens of proof in civil penalty proceedings.

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

[53 FR 47694, Nov. 25, 1988]

§ 4.1156 Summary disposition.

(a) In a civil penalty proceeding where the person against whom the proposed civil penalty is assessed fails to comply on time with any prehearing order of an administrative law judge, the administrative law judge shall issue an order to show cause why—

(1) That person should not be deemed to have waived his right to a hearing; and

(2) The proceedings should not be dismissed and referred to the assessment officer.

(b) If the order to show cause is not satisfied as required, the administrative law judge shall order the proceedings summarily dismissed and shall refer the case to the assessment officer who shall enter the assessment as the final order of the Department.

(c) Where the person against whom the proposed civil penalty is assessed fails to appear at a hearing, that person will be deemed to have waived his right to a hearing and the administration law judge may assume for purposes of the assessment—

(1) That each violation listed in the notice of violation or order occurred; and

(2) The truth of any facts alleged in such notice or order.

(d) In order to issue an initial decision assessing the appropriate penalty when the person against whom the proposed civil penalty is assessed fails to appear at the hearing, an administrative law judge shall either conduct an ex parte hearing or require OSM to furnish proposed findings of fact and conclusions of law.

(e) Nothing in this section shall be construed to deprive the person against whom the penalty is assessed of his opportunity to have OSM prove the violations charged in open hearing with confrontation and cross-examination of witnesses, except where that person fails to comply with a prehearing order or fails to appear at the scheduled hearing.

§ 4.1157 Determination by administrative law judge.

(a) The administrative law judge shall incorporate in his decision concerning the civil penalty, findings of fact on each of the four criteria set forth in 30 CFR 723.13 or 845.13, and conclusions of law.

(b) If the administrative law judge finds that—

(1) A violation occurred or that the fact of violation is uncontested, he shall establish the amount of the penalty, but in so doing, he shall adhere to the point system and conversion table contained in 30 CFR 723.13 and 723.14 or 845.13 and 845.14, except that the administrative law judge may waive the use of such point system where he determines that a waiver would further abatement of violations of the Act. However, the administrative law judge shall not waive the use of the point system and reduce the proposed assessment on the basis of an argument that a reduction in the proposed assessment could be used to abate other violations of the Act; or

(2) No violation occurred, he shall issue an order that the proposed assessment be returned to the petitioner.

(c) If the administrative law judge makes a finding that no violation occurred or if the administrative law judge reduces the amount of the civil penalty below that of the proposed assessment and a timely petition for review of his decision is not filed with the Board or the Board refuses to grant such a petition, the Department of the Interior shall have 30 days from the expiration of the date for filing a petition with the Board if no petition is filed, or 30 days from the date the Board refuses to grant such a petition, within which to remit the appropriate amount to the person who made the payment, with interest at the rate of 6 percent, or at the prevailing Department of the Treasury rate, whichever is greater.

(d) If the administrative law judge increases the amount of the civil penalty above that of the proposed assessment, the administrative law judge shall order payment of the appropriate amount within 30 days of receipt of the decision.

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

§ 4.1158 Appeals.

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

§ 4.1160 Scope.

These regulations govern applications for review of—

(a) Notices of violation or the modification, vacation, or termination of a notice of violation under section 521(a)(3) of the Act; and

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

§ 4.1161 Who may file.

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

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 88 FR 5795, Jan. 30, 2023]

§ 4.1162 Time for filing.

(a) Any person filing an application for review under § 4.1160 et seq. shall file that application within 30 days of the receipt of a notice or order or within 30 days of receipt of notice of modification, vacation, or termination of such a notice or order. Any person not served with a copy of the document shall file the application for review within 40 days of the date of issuance of the document.

(b) No extension of time will be granted for filing an application for review as provided by paragraph (a) of this section. If an application for review is not filed within the time period provided in paragraph (a) of this section, the application shall be dismissed.

[51 FR 16321, May 2, 1986]

§ 4.1163 Effect of failure to file.

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

§ 4.1164 Contents of application.

Any person filing an application for review shall incorporate in that application regarding each claim for relief—

(a) A statement of facts entitling that person to administrative relief;

(b) A request for specific relief;

(c) A copy of any notice or order sought to be reviewed;

(d) A statement as to whether the person requests or waives the opportunity for an evidentiary hearing; and

(e) Any other relevant information.

§ 4.1165 Answer.

(a) Where an application for review is filed by a permittee, OSM as well as any other person granted leave to intervene pursuant to § 4.1110 shall file an answer within 20 days of service of a copy of such application.

(b) Where an application for review is filed by a person other than a permittee, the following shall file an answer within 20 days of service of a copy of such application—

(1) OSM;

(2) The permittee; or

(3) Any other person granted leave to intervene pursuant to § 4.1110.

§ 4.1166 Contents of answer.

An answer to an application for review shall incorporate—

(a) A statement specifically admitting or denying the alleged facts stated by the applicant;

(b) A statement of any other relevant facts;

(c) A statement whether an evidentiary hearing is requested or waived; and

(d) Any other relevant information.

§ 4.1167 Notice of hearing.

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

§ 4.1168 Amendments to pleadings.

(a) An application for review may be amended once as a matter of right prior to the filing of an answer and thereafter by leave of the administrative law judge upon proper motion.

(b) Upon receipt of an initial or amended application for review or subsequent to granting leave to amend, the administrative law judge shall issue an order setting a time for filing an amended answer if the judge determines that such an answer is appropriate.

§ 4.1169 Failure to state a claim.

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

§ 4.1170 Related notices or orders.

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

(b) An applicant for review of a notice shall file a copy of an order of cessation for failure timely to abate the violation which is the subject of the notice under review within 10 days of receipt of such order.

(c) If an applicant for review desires to challenge any subsequent notice or order, the applicant must file a separate application for review.

(d) Applications for review of related notices or orders are subject to consolidation.

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

(a) In review of section 521 notices of violation or orders of cessation or the modification, vacation, or termination thereof, including expedited review under § 4.1180, OSM shall have the burden of going forward to establish a prima facie case as to the validity of the notice, order, or modification, vacation, or termination thereof.

(b) The ultimate burden of persuasion shall rest with the applicant for review.

§ 4.1180 Purpose.

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

§ 4.1181 Who may file.

(a) An application for review of an order of cessation may be filed under this section, whenever temporary relief has not been granted under section 525(c) or section 526(c) of the act, by—

(1) A permittee who has been issued an order of cessation under section 521(a)(2) or section 521(a)(3) of the act; or

(2) Any person having an interest which is or may be adversely affected by the issuance of an order of cessation under section 521(a)(2) or section 521(a)(3) of the act.

(b) A permittee or any person having an interest which is or may be adversely affected by a section 521(a)(2) or section 521(a)(3) order of cessation waives his right to expedited review upon being granted temporary relief pursuant to section 525(c) or section 526(c) of the act.

§ 4.1182 Where to file.

The application shall be filed in DCHD.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 88 FR 5795, Jan. 30, 2023]

§ 4.1183 Time for filing.

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

(b) Any person filing an application for review under § 4.1184 shall file the application within 30 days of receipt of the order. Any person not served with a copy of the order shall file an application for review within 40 days of the date of issuance of the order.

§ 4.1184 Contents of application.

(a) Any person filing an application for expedited review under section 525(b) of the act shall incorporate in that application regarding each claim for relief—

(1) A statement of facts entitling that person to administrative relief;

(2) A request for specific relief;

(3) A specific statement which delineates each issue to be addressed by the applicant during the expedited proceeding;

(4) A copy of the order sought to be reviewed;

(5) A list identifying each of applicant's witnesses by name, address, and place of employment, including expert witnesses and the area of expertise to which they will address themselves at the hearing, and a detailed summary of their testimony;

(6) Copies of all exhibits and other documentary evidence that the applicant intends to introduce as evidence at the hearing and descriptions of all physical exhibits and evidence which is not capable of being copied or attached; and

(7) Any other relevant information.

(b) If any applicant fails to comply with all the requirements of § 4.1184(a), the administrative law judge may find that the applicant has waived the 30-day decision requirement or the administrative law judge shall order that the application be perfected and the application shall not be considered filed for purposes of the 30-day decision until perfected. Failure to timely comply with the administrative law judge's order shall constitute a waiver of the 30-day decision.

§ 4.1185 Computation of time for decision.

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

§ 4.1186 Waiver of the 30-day decision requirement.

(a) Any person qualified to receive a 30-day decision may waive that right—

(1) By filing an application pursuant to § 4.1160-71;

(2) By failing to comply with all the requirements of § 4.1184(a); or

(3) In accordance with § 4.1187(j).

(b) Any person qualified to receive a 30-day decision shall waive that right—

(1) By obtaining temporary relief pursuant to section 525(c) or section 526(c) of the act;

(2) By failing to perfect an application pursuant to § 4.1184(b); or

(3) In accordance with § 4.1187(i).

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

If the applicant does not waive the 30-day decision requirement of section 525(b) of the act, the following special rules shall apply—

(a) The applicant shall serve all known parties with a copy of the application simultaneously with the filing of the application with OHA. If service is accomplished by mail, the applicant shall inform all known parties by telephone at the time of mailing that an application is being filed and shall inform the administrative law judge by telephone that such notice has been given. However, no ex parte communication as to the merits of the proceeding may be conducted with the administrative law judge.

(b) Any party desiring to file a response to the application for review shall file a written response within 5 working days of service of the application.

(c) If the applicant has requested a hearing, the administrative law judge shall act immediately upon receipt of the application to notify the parties of the time and place of the hearing at least 5 working days prior to the hearing date.

(d) The administrative law judge may require the parties to submit proposed findings of fact and conclusions of law at the hearing which may be orally supplemented on the record at the hearing or, where proposed findings of fact and conclusions of law have not been submitted at the hearing, they may be orally presented for the record at the hearing.

(e) The administrative law judge shall make an initial decision. He shall either rule from the bench on the application, orally stating the reasons for his decision or he shall issue a written decision. If the administrative law judge makes an oral ruling, his approval of the record of the hearing shall constitute his written decision. The decision of the administrative law judge must be issued within 15 days of the filing of the perfected application under § 4.1184.

(f) If any party desires to appeal to the Board, such party shall—

(1) If the administrative law judge makes an oral ruling, make an oral statement, within a time period as directed by the administrative law judge, that the decision is being appealed and request that the administrative law judge certify the record to the Board; or

(2) If the administrative law judge issues a written decision after the close of the hearing, file a notice of appeal with the administrative law judge and with the Board within 2 working days of receipt of the administrative law judge's decision.

(g) If the decision of the administrative law judge is appealed, the Board shall act immediately to issue an expedited briefing schedule, and the Board shall act expeditiously to review the record and issue its decision. The decision of the Board must be issued within 30 days of the date the perfected application is filed with OHA pursuant to § 4.1184.

(h) If all parties waive the opportunity for a hearing and the administrative law judge determines that a hearing is not necessary, but the applicant does not waive the 30-day decision requirement, the administrative law judge shall issue an initial decision on the application within 15 days of receipt of the application. The decision shall contain findings of fact and an order disposing of the application. The decision shall be served upon all the parties and the parties shall have 2 working days from receipt of such decision within which to appeal to the Board. The Board shall issue its decision within 30 days of the date the perfected application is filed with OHA pursuant to § 4.1184.

(i) If at any time after the initiation of this expedited procedure, the applicant requests a delay or acts in a manner so as to frustrate the expeditious nature of this proceeding or fails to comply with any requirement of § 4.1187(a), such action shall constitute a waiver of the 30-day requirement of section 525(b) of the act.

(j) If the applicant seeks to offer witnesses, exhibits, or testimony at the hearing in addition to those identified, submitted, described, or summarized in the application for expedited review perfected in accordance with the requirements of § 4.1184, upon objection by an opposing party to such offer, the administrative law judge may allow such objecting party additional time in order to prepare for cross-examination of unidentified witnesses or to identify and prepare rebuttal evidence or otherwise uncover any additional prejudice which may result to such party. The administrative law judge may rule that the running of the 30-day time for decision is stayed for the period of any additional time allowed pursuant to this subsection or may determine that the applicant has waived his right to the 30-day decision.

§ 4.1190 Initiation of proceedings.

(a) A proceeding on a show cause order issued by the Director of OSM pursuant to section 521(a)(4) of the Act shall be initiated by the Director of OSM filing a copy of such an order with DCHD, promptly after the order is issued to the permittee.

(b) A show cause order filed with OHA shall set forth—

(1) A list of the unwarranted or willful violations which contribute to a pattern of violations;

(2) A copy of each order or notice which contains one or more of the violations listed as contributing to a pattern of violations;

(3) The basis for determining the existence of a pattern or violations; and

(4) Recommendations whether the permit should be suspended or revoked, including the length and terms of a suspension.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 67 FR 61510, Oct. 1, 2002; 88 FR 5795, Jan. 30, 2023]

§ 4.1191 Answer.

The permittee shall have 30 days from receipt of the order within which to file an answer with DCHD.

[36 FR 7186, Apr. 15, 1971, as amended at 88 FR 5795, Jan. 30, 2023]

§ 4.1192 Contents of answer.

The permittee's answer to a show cause order shall contain a statement setting forth—

(a) The reasons in detail why a pattern of violations does not exist or has not existed, including all reasons for contesting—

(1) The fact of any of the violations alleged by OSM as constituting a pattern of violations;

(2) The willfulness of such violations; or

(3) Whether such violations were caused by the unwarranted failure of the permittee;

(b) All mitigating factors the permittee believes exist in determining the terms of the revocation or the length and terms of the suspension;

(c) Any other alleged relevant facts; and

(d) Whether a hearing on the show cause order is desired.

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

§ 4.1193 Notice of hearing.

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

[67 FR 61510, Oct. 1, 2002]

§ 4.1194 Burden of proof in suspension or revocation proceedings.

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

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

§ 4.1195 Determination by the administrative law judge.

(a) Upon a determination by the administrative law judge that a pattern of violations exists or has existed, the administrative law judge shall order the permit either suspended or revoked. In making such a determination, the administrative law judge need not find that all the violations listed in the show cause order occurred, but only that sufficient violations occurred to establish a pattern.

(b) If the permit is suspended, the minimum suspension period shall be 3 working days unless the administrative law judge finds that imposition of the minimum suspension period would result in manifest injustice and would not further the purposes of the act. Also, the administrative law judge may impose preconditions to be satisfied prior to the suspension being lifted.

(c) The decision of the administrative law judge shall be issued within 20 days following the date the hearing record is closed by the administrative law judge or within 20 days of receipt of the answer, if no hearing is requested by any party and the administrative law judge determines that no hearing is necessary.

(d) At any stage of a suspension or revocation proceeding being conducted by an administrative law judge, the parties may enter into a settlement, subject to the approval of the administrative law judge.

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

§ 4.1196 Summary disposition.

(a) In a proceeding under this section where the permittee fails to appear at a hearing, the permittee shall be deemed to have waived his right to a hearing and the administrative law judge may assume for purposes of the proceeding that—

(1) Each violation listed in the order occurred;

(2) Such violations were caused by the permittee's unwarranted failure or were willfully caused; and

(3) A pattern of violations exists.

(b) In order to issue an initial decision concerning suspension or revocation of the permit when the permittee fails to appear at the hearing, the administrative law judge shall either conduct an ex parte hearing or require OSM to furnish proposed findings of fact and conclusions of law.

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

§ 4.1197 Appeals.

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

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

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

(a) Pursuant to 30 CFR 865.13, within 7 days of receipt of an application for review of alleged discriminatory acts, OSM shall file a copy of the application in DCHD. OSM shall also file in DCHD, a copy of any answer submitted in response to the application for review.

(b) The application for review, as filed in DCHD, shall be held in suspense until one of the following takes place—

(1) A request for temporary relief is filed pursuant to § 4.1203;

(2) A request is made by OSM for the scheduling of a hearing pursuant to 30 CFR 865.14(a);

(3) A request is made by the applicant for the scheduling of a hearing pursuant to 30 CFR 865.14(a);

(4) A request is made by the applicant for the scheduling of a hearing pursuant to 30 CFR 865.14(b);

(5) A request is made by OSM that OHA close the case because OSM, the applicant, and the alleged discriminating person have entered into an agreement in resolution of the discriminatory acts and there has been compliance with such agreement.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 67 FR 61510, Oct. 1, 2002; 88 FR 5795, Jan. 30, 2023]

§ 4.1201 Request for scheduling of a hearing.

(a) If OSM determines that a violation of section 703(a) of the act has probably occurred and was not resolved at the informal conference, it shall file with DCHD, a request on behalf of the applicant that a hearing be scheduled. The request shall be filed within 10 days of the completion of the informal conference, or where no conference is held, within 10 days following the scheduled conference. Where OSM makes such a request, it shall represent the applicant in the administrative proceedings, unless the applicant desires to be represented by private counsel.

(b) If OSM declines to request that a hearing be scheduled and to represent the applicant, it shall within 10 days of the completion of the informal conference, or where no conference is held, within 10 days following the scheduled conference, notify the applicant of his right to request the scheduling of a hearing on his own behalf. An applicant shall file a request for the scheduling of a hearing in DCHD, within 30 days of service of such notice from OSM.

(c) If no request for the scheduling of a hearing has been made pursuant to paragraph (a) or (b) of this section and 60 days have elapsed from the filing of the application for review with OSM, the applicant may file on his own behalf a request for the scheduling of a hearing with DCHD. Where such a request is made, the applicant shall proceed on his own behalf, but OSM may intervene pursuant to § 4.1110.

[43 FR 34386, Aug. 3, 1978, as amended at 90 FR 2430, Jan. 10, 2025]

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

(a) Any person served with a copy of the request for the scheduling of a hearing shall file a response with DCHD, within 20 days of service of such request.

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

[36 FR 7186, Apr. 15, 1971, as amended at 88 FR 5795, Jan. 30, 2023]

§ 4.1203 Application for temporary relief from alleged discriminatory acts.

(a) On or after 10 days from the filing of an application for review under this part, any party may file an application for temporary relief from alleged discriminatory acts.

(b) The application shall be filed in DCHD.

(c) The application shall include—

(1) A detailed written statement setting forth the reasons why relief should be granted;

(2) A showing that the complaint of discrimination was not frivolously brought;

(3) A description of any exigent circumstances justifying temporary relief; and

(4) A statement of the specific relief requested.

(d) All parties to the proceeding to which the application relates shall have 5 days from receipt of the application to file a written response.

(e) The administrative law judge may convene a hearing on any issue raised by the application if he deems it appropriate.

(f) The administrative law judge shall expeditiously issue an order or decision granting or denying such relief.

(g) If all parties consent, before or after the commencement of any hearing on the application for temporary relief, the administrative law judge may order the hearing on the application for review of alleged discriminatory - acts to be advanced and consolidated with the hearing on the application for temporary relief.

[36 FR 7186, Apr. 15, 1971, as amended at 88 FR 5795, Jan. 30, 2023]

§ 4.1204 Determination by administrative law judge.

Upon a finding of a violation of section 703 of the act or 30 CFR 865.11, the administrative law judge shall order the appropriate affirmative relief, including but not limited to—

(a) The rehiring or reinstatement of the applicant to his former position with full rights and privileges, full backpay, and any special damages sustained as a result of the discrimination; and

(b) All other relief which the administrative law judge deems appropriate to abate the violation or to prevent recurrence of discrimination.

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

§ 4.1205 Appeals.

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

§ 4.1260 Scope.

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

§ 4.1261 When to file.

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

§ 4.1262 Where to file.

The application shall be filed with the administrative law judge to whom the case has been assigned. If no assignment has been made, the application shall be filed in DCHD.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 88 FR 5795, Jan. 30, 2023]

§ 4.1263 Contents of application.

The application shall include—

(a) A detailed written statement setting forth the reasons why relief should be granted;

(b) A showing that there is a substantial likelihood that the findings and decision of the administrative law judge in the matters to which the application relates will be favorable to the applicant;

(c) A statement that the relief sought will not adversely affect the health or safety of the public or cause significant, imminent environmental harm to land, air, or water resources;

(d) If the application relates to an order of cessation issued pursuant to section 521(a)(2) or section 521(a)(3) of the act, a statement of whether the requirement of section 525(c) of the act for decision on the application within 5 days is waived; and

(e) A statement of the specific relief requested.

§ 4.1264 Response to application.

(a) Except as provided in § 4.1266(b), all parties to the proceeding to which the application relates shall have 5 days from the date of receipt of the application to file a written response.

(b) Except as provided in § 4.1266(b), the administrative law judge may hold a hearing on any issue raised by the application if he deems it appropriate.

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

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

§ 4.1266 Determination on application concerning an order of cessation.

(a) If the 5-day requirement of section 525(c) of the act is waived, the administrative law judge shall expeditiously conduct a hearing and render a decision on the application.

(b) If there is no waiver of the 5-day requirement of section 525(c) of the act, the following special rules shall apply—

(1) The 5-day time for decision shall not begin to run until the application is filed pursuant to § 4.1262 or a copy of the application is received by the field solicitor for the region in which the mine site subject to the order is located, whichever occurs at a later date (see the OHA Standing Orders on Contact Information for addresses);

(2) The application shall include an affidavit stating that notice has been given to the field office of OSM serving the state in which the minesite subject to the order is located. The notice shall identify the mine, the mine operator, the date and number of the order from which relief is requested, the name of the OSM inspector involved, and the name and contact information of the applicant. OSMRE's' field offices' contact information is provided in the OHA Standing Orders on Contact Information field offices and their numbers follow:

(3) Prior to or at the hearing, the applicant shall file with the Hearings Division an affidavit stating the date upon which the copy of the application was delivered to the office of the field solicitor or the applicant may make an oral statement at the hearing setting forth that information. For purposes of the affidavit or statement the applicant may rely upon telephone confirmation by the office of the field solicitor that the application was received.

(4) In addition to the service requirements of § 4.1266(b) (1) and (2), the applicant shall serve any other parties with a copy of the application simultaneously with the filing of the application. If service is accomplished by mail, the applicant shall inform such other parties by telephone at the time of mailing that an application is being filed, the contents of the application, and with whom the application was filed.

(5) The field solicitor and all other parties may indicate their objection to the application by communicating such objection to the administrative law judge and the applicant by telephone. However, no ex parte communication as to the merits of the proceeding may be conducted with the administrative law judge. The field solicitor and all other parties shall simultaneously reduce their objections to writing. The written objections must be immediately filed with the administrative law judge and immediately served upon the applicant.

(6) Upon receipt of communication that there is an objection to the request, the administrative law judge shall immediately order a location, time, and date for the hearing by communicating such information to the field solicitor, all other parties, and the applicant by telephone. The administrative law judge shall reduce such communications to writing in the form of a memorandum to the file.

(7) If a hearing is held—

(i) The administrative law judge may require the parties to submit proposed findings of fact and conclusions of law at the hearing which may be orally supplemented on the record at the hearing or where written proposed findings of fact and conclusions of law have not been submitted at the hearing, they may be orally presented for the record at the hearing.

(ii) The administrative law judge shall either rule from the bench on the application, orally stating the reasons for his decision or he shall within 24 hours of completion of the hearing issue a written decision. If the administrative law judge makes an oral ruling, his approval of the record of the hearing shall constitute his written decision.

(8) The order or decision of the administrative law judge shall be issued within 5 working days of the receipt of the application for temporary relief.

(9) If at any time after the initiation of this expedited procedure, the applicant requests a delay or acts in a manner so as to frustrate the expeditious nature of this proceeding or fails to supply the information required by § 4.1263 such action shall constitute a waiver of the 5-day requirement of section 525(c) of the act.

[43 FR 34386, Aug. 3, 1978, as amended at 49 FR 7565, Mar. 1, 1984; 59 FR 1489, Jan. 11, 1994; 67 FR 61510, Oct. 1, 2002; 88 FR 5795, Jan. 30, 2023]

§ 4.1267 Appeals.

(a) Any party desiring to appeal a decision of an administrative law judge granting temporary relief may appeal to the Board.

(b) Any party desiring to appeal a decision of an administrative law judge denying temporary relief may appeal to the Board or, in the alternative, may seek judicial review pursuant to section 526(a) of the act.

(c) The Board shall issue an expedited briefing schedule and shall issue a decision on the appeal expeditiously.

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

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

(a) Any party may petition the Board to review an order or decision by an administrative law judge disposing of a civil penalty proceeding under § 4.1150.

(b) A petition under this section shall be filed on or before 30 days from the date of receipt of the order or decision sought to be reviewed and the time for filing may not be extended.

(c) A petitioner under this section shall list the alleged errors of the administrative law judge and shall attach a copy of the order or decision sought to be reviewed.

(d) Any party may file with the Board a response to the petition for review within 10 days of receipt of a copy of such petition.

(e) Not later than 30 days from the filing of a petition under this section, the Board shall grant or deny the petition in whole or in part.

(f) If the petition is granted, the rules in §§ 4.1273 through 4.1275 are applicable, and the Board must use the point system and conversion table contained in 30 CFR part 723 or 845 in recalculating assessments. However, the Board has the same authority to waive the civil penalty formula as that granted to administrative law judges in § 4.1157(b)(1). If the petition is denied, the decision of the administrative law judge is final for the Department, subject to § 4.5.

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

§ 4.1271 Notice of appeal.

(a) Any aggrieved party may file a notice of appeal from an order or decision of an administrative law judge disposing of a proceeding under §§ 4.1160 through 4.1171, 4.1200 through 4.1205, 4.1260 through 4.1267, 4.1290 through 4.1296, and 4.1350 through 4.1356.

(b) Except in an expedited review proceeding under § 4.1180, or in a suspension or revocation proceeding under § 4.1190, a notice of appeal shall be filed with the Board on or before 30 days from the date of receipt of the order or decision sought to be reviewed and the time for filing may not be extended.

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

§ 4.1272 Interlocutory appeals.

(a) A party seeking permission to file an interlocutory appeal must comply with the requirements of §§ 4.122 and 4.414 of this part.

(b) Upon affirmance, reversal, or modification of the administrative law judge's interlocutory ruling or order, the jurisdiction of the Board will terminate, and the case will be remanded promptly to the administrative law judge for further proceedings.

[90 FR 2430, Jan. 10, 2025]

§ 4.1273 Briefs.

(a) Unless the Board orders otherwise, an appellant's brief is due on or before 30 days from the date of receipt of notice by the appellant that the Board has agreed to exercise discretionary review authority pursuant to § 4.1270 or a notice of appeal is filed.

(b) If any appellant fails to file a timely brief, an appeal under this part may be subject to summary dismissal.

(c) An appellant shall state specifically the rulings to which there is an objection, the reasons for such objections, and the relief requested. The failure to specify a ruling as objectionable may be deemed by the Board as a waiver of objection.

(d) Unless the Board orders otherwise, within 20 days after service of appellant's brief, any other party to the proceeding may file a brief.

(e) If any argument is based upon the evidence of record and there is a failure to include specific record citations, when available, the Board need not consider the arguments.

(f) Further briefing may take place by permission of the Board.

(g) Unless the Board provides otherwise, appellant's brief shall not exceed 50 typed pages and an appellee's brief shall not exceed 25 typed pages.

§ 4.1274 Remand.

The Board may remand cases if further proceedings are required.

§ 4.1275 Final decisions.

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

§ 4.1280 Scope.

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

§ 4.1281 Who may appeal.

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

§ 4.1282 Appeals; how taken.

(a) A person appealing under this section shall file a written notice of appeal with the office of the OSM official whose decision is being appealed and at the same time shall send a copy of the notice to the Board of Land Appeals.

(b) The notice of appeal shall be filed within 20 days from the date of receipt of the decision. If the person appealing has not been served with a copy of the decision, such appeal must be filed within 30 days of the date of the decision.

(c) The notice of appeal shall indicate that an appeal is intended and must identify the decision being appealed. The notice should include the serial number or other identification of the case and the date of the decision. The notice of appeal may include a statement of reasons for the appeal and any arguments the appellant desires to make.

(d) If the notice of appeal did not include a statement of reasons for the appeal, such a statement shall be filed with the Board within 20 days after the notice of appeal was filed. In any case, the appellant shall be permitted to file with the Board additional statements of reasons and written arguments or briefs within the 20-day period after filing the notice of appeal.

[43 FR 34386, Aug. 3, 1978, as amended at 49 FR 7565, Mar. 1, 1984; 67 FR 4368, Jan. 30, 2002; 88 FR 5796, Jan. 30, 2023]

§ 4.1283 Service.

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

(b) Failure to serve may subject the appeal to summary dismissal pursuant to § 4.1285.

§ 4.1284 Answer.

(a) Any party served with a notice of appeal who wishes to participate in the proceedings on appeal shall file an answer with the Board within 20 days after service of the notice of appeal or statement of reasons where such statement was not included in the notice of appeal.

(b) If additional reasons, written arguments or other documents are filed by the appellant, a party shall have 20 days after service thereof within which to answer. The answer shall state the reasons the party opposes or supports the appeal.

§ 4.1285 Summary dismissal.

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

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

(a) Any party may file a motion that the Board refer a case to an administrative law judge for a hearing. The motion must state:

(1) What specific issues of material fact require a hearing;

(2) What evidence concerning these issues must be presented by oral testimony, or be subject to cross-examination;

(3) What witnesses need to be examined; and

(4) What documentary evidence requires explanation, if any.

(b) In response to a motion under paragraph (a) of this section or on its own initiative, the Board may order a hearing if there are:

(1) Any issues of material fact which, if proved, would alter the disposition of the appeal; or

(2) Significant factual or legal issues remaining to be decided and the record without a hearing would be insufficient for resolving them.

(c) If the Board orders a hearing, it must:

(1) Specify the issues of fact upon which the hearing is to be held; and

(2) Request the administrative law judge to issue:

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

(ii) A recommended decision that includes findings of fact and conclusions of law; or

(iii) A decision that will be final for the Department unless a notice of appeal is filed.

(d) If the Board orders a hearing, it may do one or more of the following:

(1) Suspend the effectiveness of the decision under review pending a final Departmental decision on the appeal if it finds good cause to do so;

(2) Authorize the administrative law judge to specify additional issues; or

(3) Authorize the parties to agree to additional issues that are material, with the approval of the administrative law judge.

(e) The hearing will be conducted under §§ 4.1100, 4.1102 through 4.1115, and 4.1120 through 4.1122. Unless the Board orders otherwise, the administrative law judge may consider other relevant issues and evidence identified after referral of the case for a hearing.

[75 FR 64669, Oct. 20, 2010, as amended at 90 FR 2430, Jan. 10, 2025]

§ 4.1287 Action by administrative law judge.

The administrative law judge will adjudicate the referral in accordance with §§ 4.150 through 4.151.

[90 FR 2430, Jan. 10, 2025]

§ 4.1290 Who may file.

(a) Any person may file a petition for award of costs and expenses including attorneys' fees reasonably incurred as a result of that person's participation in any administrative proceeding under the Act which results in—

(1) A final order being issued by an administrative law judge; or

(2) A final order being issued by the Board.

(b) [Reserved]

§ 4.1291 Where to file; time for filing.

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

§ 4.1292 Contents of petition.

(a) A petition filed under this section shall include the name of the person from whom costs and expenses are sought and the following shall be submitted in support of the petition—

(1) An affidavit setting forth in detail all costs and expenses including attorneys' fees reasonably incurred for, or in connection with, the person's participation in the proceeding;

(2) Receipts or other evidence of such costs and expenses; and

(3) Where attorneys' fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for such services in the area, and the experience, reputation and ability of the individual or individuals performing the services.

(b) [Reserved]

§ 4.1293 Answer.

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

§ 4.1294 Who may receive an award.

Appropriate costs and expenses including attorneys' fees may be awarded—

(a) To any person from the permittee, if—

(1) The person initiates or participates in any administrative proceeding reviewing enforcement actions upon a finding that a violation of the Act, regulations, or permit has occurred, or that an imminent hazard existed, and the administrative law judge or Board determines that the person made a substantial contribution to the full and fair determination of the issues, except that a contribution of a person who did not initiate a proceeding must be separate and distinct from the contribution made by a person initiating the proceeding; or

(2) The person initiates an application for review of alleged discrimina- tory acts, pursuant to 30 CFR part 830, upon a finding of discriminatory discharge or other acts of discrimination.

(b) From OSM to any person, other than a permittee or his representative, who initiates or participates in any proceeding under the Act, and who prevails in whole or in part, achieving at least some degree of success on the merits, upon a finding that such person made a substantial contribution to a full and fair determination of the issues.

(c) To a permittee from OSM when the permittee demonstrates that OSM issued an order of cessation, a notice of violation or an order to show cause why a permit should not be suspended or revoked, in bad faith and for the purpose of harassing or embarrassing the permittee; or

(d) To a permittee from any person where the permittee demonstrates that the person initiated a proceeding under section 525 of the Act or participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the permittee.

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

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

§ 4.1295 Awards.

An award under these sections may include—

(a) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred as a result of initiation and/or participation in a proceeding under the Act; and

(b) All costs and expenses, including attorneys' fees and expert witness fees, reasonably incurred in seeking the award in OHA.

§ 4.1296 Appeals.

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

§ 4.1300 Scope.

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

§ 4.1301 Who may file.

Any individual served a notice of proposed individual civil penalty assessment may file a petition for review with DCHD.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 88 FR 5796, Jan. 30, 2023]

§ 4.1302 Time for filing.

(a) A petition for review of a notice of proposed individual civil penalty assessment must be filed within 30 days of its service on the individual.

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

§ 4.1303 Contents and service of petition.

(a) An individual filing a petition for review of a notice of proposed individual civil penalty assessment shall provide—

(1) A concise statement of the facts entitling the individual to relief;

(2) A copy of the notice of proposed assessment;

(3) A copy of the notice(s) of violation, order(s) or final decision(s) the corporate permittee is charged with failing or refusing to comply with that have been served on the individual by OSM; and

(4) A statement whether the individual requests or waives the opportunity for an evidentiary hearing.

(b) Copies of the petition shall be served in accordance with § 4.1109 of this part.

[53 FR 8754, Mar. 17, 1988; 53 FR 10036, Mar. 28, 1988, as amended at 90 FR 2430, Jan. 10, 2025]

§ 4.1304 Answer, motion, or statement of OSM.

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

§ 4.1305 Amendment of petition.

(a) An individual filing a petition may amend it once as a matter of right before receipt by the individual of an answer, motion, or statement of OSM made in accordance with § 4.1304 of this part. Thereafter, a motion for leave to amend the petition shall be filed with the administrative law judge.

(b) OSM shall have 30 days from receipt of a petition amended as a matter of right to file an answer, motion, or statement in accordance with § 4.1304 of this part. If the administrative law judge grants a motion to amend a petition, the time for OSM to file an answer, motion, or statement shall be set forth in the order granting the motion to amend.

§ 4.1306 Notice of hearing.

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

§ 4.1307 Elements; burdens of proof.

(a) OSM shall have the burden of going forward with evidence to establish a prima facie case that:

(1) A corporate permittee either violated a condition of a permit or failed or refused to comply with an order issued under section 521 of the Act or an order incorporated in a final decision by the Secretary under the Act (except an order incorporated in a decision issued under sections 518(b) or 703 of the Act or implementing regulations), unless the fact of violation or failure or refusal to comply with an order has been upheld in a final decision in a proceeding under § 4.1150 through 4.1158, § 4.1160 through 4.1171, or § 4.1180 through 4.1187, and § 4.1270 or § 4.1271 of this part, and the individual is one against whom the doctrine of collateral estoppel may be applied to preclude relitigation of fact issues;

(2) The individual, at the time of the violation, failure or refusal, was a director, officer, or agent of the corporation; and

(3) The individual willfully and knowingly authorized, ordered, or carried out the corporate permittee's violation or failure or refusal to comply.

(b) The individual shall have the ultimate burden of persuasion by a preponderance of the evidence as to the elements set forth in paragraph (a)(1) of this section.

(c) OSM shall have the ultimate burden of persuasion by a preponderance of the evidence as to the elements set forth in paragraphs (a)(2) and (a)(3) of this section and as to the amount of the individual civil penalty.

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

§ 4.1308 Decision by administrative law judge.

(a) The administrative law judge shall issue a written decision containing findings of fact and conclusions of law on each of the elements set forth in § 4.1307 of this part.

(b) If the administrative law judge concludes that the individual is liable for an individual civil penalty, he shall order that it be paid in accordance with 30 CFR 724.18 or 846.18, absent the filing of a petition for discretionary review in accordance with § 4.1309 of this part.

§ 4.1309 Petition for discretionary review.

(a) Any party may petition the Board to review an order or decision by an administrative law judge disposing of an individual civil penalty proceeding under § 4.1308 of this part.

(b) A petition under this section shall be filed on or before 30 days from the date of receipt of the order or decision sought to be reviewed, and the time for filing shall not be extended.

(c) A petitioner under this section shall list the alleged errors of the administrative law judge and shall attach a copy of the order or decision sought to be reviewed.

(d) Any party may file with the Board a response to the petition for review within 10 days of receipt of a copy of such petition.

(e) Not later than 30 days from the filing of a petition for review under this section, the Board shall grant or deny the petition in whole or in part.

(f) If the petition for review is granted the rules in §§ 4.1273-4.1276 of this part are applicable. If the petition is denied, the decision of the administrative law judge is final for the Department, subject to § 4.5 of this part.

(g) Payment of a penalty is due in accordance with 30 CFR 724.18 or 846.18.

§ 4.1350 Scope.

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

[67 FR 61511, Oct. 1, 2002]

§ 4.1351 Preliminary finding by OSM.

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

(b) OSM must serve the preliminary finding by certified mail, or by overnight delivery service if the applicant or operator has agreed to bear the expense for this service. The preliminary finding must specifically state the violations upon which it is based.

[67 FR 61511, Oct. 1, 2002]

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

(a) The applicant or operator may file a request for hearing on OSM's preliminary finding of permanent permit ineligibility.

(b) The request for hearing must be filed with DCHD, within 30 days of receipt of the preliminary finding by the applicant or operator.

(c) Failure to file a timely request constitutes a waiver of the opportunity for a hearing before OSM makes its final finding concerning permanent permit ineligibility. Any untimely request will be denied.

[67 FR 61511, Oct. 1, 2002, as amended at 88 FR 5796, Jan. 30, 2023]

§ 4.1353 Contents of request.

The request for hearing shall include—

(a) A clear statement of the facts entitling the one requesting the hearing to administrative relief;

(b) An explanation of the alleged errors in OSM's preliminary finding; and

(c) Any other relevant information.

§ 4.1354 Determination by the administrative law judge.

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

§ 4.1355 Burden of proof.

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

[67 FR 61511, Oct. 1, 2002]

§ 4.1356 Appeals.

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

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

§ 4.1360 Scope.

These rules set forth the exclusive procedures for administrative review of decisions by OSMRE concerning—

(a) Applications for new permits, including applications under 30 CFR part 785, and the terms and conditions imposed or not imposed in permits by those decisions. They do not apply to decisions on applications to mine on Federal lands in states where the terms of a cooperative agreement provide for the applicability of alternative administrative procedures (see 30 CFR 775.11(c)), but they do apply to OSMRE decisions on applications for Federal lands in states with cooperative agreements where OSMRE as well as the state issue Federal lands permits;

(b) Applications for permit revisions, permit renewals, and the transfer, assignment, or sale of rights granted under permit;

(c) Permit revisions ordered by OSMRE;

(d) Applications for coal exploration permits; and

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

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

§ 4.1361 Who may file.

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

§ 4.1362 Where to file; when to file.

(a) The request for review shall be filed with DCHD, within 30 days after the applicant or permittee is notified by OSMRE of the written decision by certified mail or by overnight delivery service if the applicant or permittee has agreed to bear the expense for this service.

(b) Failure to file a request for review within the time specified in paragraph (a) of this section shall constitute a waiver of a hearing and the request shall be dismissed.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 88 FR 5796, Jan. 30, 2023]

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

(a) The request for review shall include—

(1) A clear statement of the facts entitling the one requesting review to administrative relief;

(2) An explanation of each specific alleged error in OSMRE's decision, including reference to the statutory and regulatory provisions allegedly violated;

(3) A request for specific relief;

(4) A statement whether the person requests or waives the opportunity for an evidentiary hearing; and

(5) Any other relevant information.

(b) All interested parties shall file an answer or motion in response to a request for review, or a statement that no answer or motion will be filed, within 15 days of receipt of the request specifically admitting or denying facts or alleged errors stated in the request and setting forth any other matters to be considered on review.

(c) A request for review may be amended once as a matter of right prior to filing of an answer or motion or statement filed in accordance with paragraph (b) of this section. Thereafter, a motion for leave to amend the request shall be filed with the Administrative Law Judge. An Administrative Law Judge may not grant a motion for leave to amend unless all parties agree to an extension of the date of commencement of the hearing under § 4.1364. A request for review may not be amended after a hearing commences.

(d) An interested party shall have 10 days from filing of a request for review that is amended as a matter of right or the time remaining for response to the original request, whichever is longer, to file an answer, motion, or statement in accordance with paragraph (b) of this section. If the Administrative Law Judge grants a motion to amend a request for review, the time for an interested party to file an answer, motion, or statement shall be set forth in the order granting it.

(e) Failure of any party to comply with the requirements of paragraph (a) or (b) of this section may be regarded by an Administrative Law Judge as a waiver by that party of the right to commencement of a hearing within 30 days of the filing of a request for review if the Administrative Law Judge concludes that the failure was substantial and that another party was prejudiced as a result.

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

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

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

§ 4.1365 Status of decision pending administrative review.

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

§ 4.1366 Burdens of proof.

(a) In a proceeding to review a decision on an application for a new permit—

(1) If the permit applicant is seeking review, OSMRE shall have the burden of going forward to establish a prima facie case as to failure to comply with the applicable requirements of the Act or the regulations or as to the appropriateness of the permit terms and conditions, and the permit applicant shall have the ultimate burden of persuasion as to entitlement to the permit or as to the inappropriateness of the permit terms and conditions.

(2) If any other person is seeking review, that person shall have the burden of going forward to establish a prima facie case and the ultimate burden of persuasion that the permit application fails in some manner to comply with the applicable requirements of the Act or the regulations, or that OSMRE should have imposed certain terms and conditions that were not imposed.

(b) In a proceeding to review a permit revision ordered by OSMRE, OSMRE shall have the burden of going forward to establish a prima facie case that the permit should be revised and the permittee shall have the ultimate burden of persuasion.

(c) In a proceeding to review the approval or disapproval of an application for a permit renewal, those parties opposing renewal shall have the burden of going forward to establish a prima facie case and the ultimate burden of persuasion that the renewal application should be disapproved.

(d) In a proceeding to review the approval or disapproval of an application for a permit revision or an application for the transfer, assignment, or sale of rights granted under a permit—

(1) If the applicant is seeking review, OSMRE shall have the burden of going forward to establish a prima facie case as to failure to comply with applicable requirements of the Act or the regulations, and the applicant requesting review shall have the ultimate burden of persuasion as to entitlement to approval of the application; and

(2) If any other person is seeking review, that person shall have the burden of going forward to establish a prima facie case and the ultimate burden of persuasion that the application fails in some manner to comply with the applicable requirements of the Act and the regulations.

(e) In a proceeding to review a decision on an application for a coal exploration permit—

(1) If the coal exploration permit applicant is seeking review, OSMRE shall have the burden of going forward to establish a prima facie case as to failure to comply with the applicable requirements of the Act or the regulations, and the permit applicant shall have the ultimate burden of persuasion as to entitlement to the approval.

(2) If any other person is seeking review, that person shall have the burden of going forward to establish a prima facie case and the ultimate burden of persuasion that the application fails in some manner to comply with the applicable requirements of the Act or the regulations.

§ 4.1367 Request for temporary relief.

(a) Where review is requested pursuant to § 4.1362, any party may file a request for temporary relief at any time prior to a decision by an Administrative Law Judge, so long as the relief sought is not the issuance of a permit where a permit application has been disapproved in whole or in part.

(b) The request shall be filed with the Administrative Law Judge to whom the case has been assigned. If no assignment has been made, the application shall be filed in DCHD.

(c) The application shall include—

(1) A detailed written statement setting forth the reasons why relief should be granted;

(2) A statement of the specific relief requested;

(3) A showing that there is a substantial likelihood that the person seeking relief will prevail on the merits of the final determination of the proceeding; and

(4) A showing that the relief sought will not adversely affect the public health or safety or cause significant, imminent environmental harm to land, air, or water resources.

(d) The Administrative Law Judge may hold a hearing on any issue raised by the application.

(e) The Administrative Law Judge shall issue expeditiously an order or decision granting or denying such temporary relief. Temporary relief may be granted only if—

(1) All parties to the proceeding have been notified and given an opportunity to be heard on a request for temporary relief;

(2) The person requesting such relief shows a substantial likelihood of prevailing on the merits of the final determination of the proceeding; and

(3) Such relief will not adversely affect the public health or safety or cause significant, imminent environmental harm to land, air, or water resources.

(f) Appeals of temporary relief decisions.

(1) Any party desiring to appeal the decision of the Administrative Law Judge granting or denying temporary relief may appeal to the Board, or, in the alternative, may seek judicial review pursuant to section 526(a), 30 U.S.C. 1276(a), of the Act.

(2) The Board shall issue an expedited briefing schedule and shall issue a decision on the appeal expeditiously.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 88 FR 5796, Jan. 30, 2023]

§ 4.1368 Determination by the Administrative Law Judge.

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

§ 4.1369 Petition for discretionary review; judicial review.

(a) Any party aggrieved by a decision of an Administrative Law Judge may file a petition for discretionary review with the Board within 30 days of receipt of the decision or, in the alternative, may seek judicial review in accordance with 30 U.S.C. 1276(a)(2) (1982). A copy of the petition shall be served simultaneously on the Administrative Law Judge who issued the decision, who shall forthwith forward the record to the Board, and on all other parties to the proceeding.

(b) The petition shall set forth specifically the alleged errors in the decision, with supporting argument, and shall attach a copy of the decision.

(c) Any party may file a response to a petition for discretionary review within 20 days of receipt of the petition.

(d) The Board shall issue a decision denying the petition or granting the petition and deciding the merits within 60 days of the deadline for filing responses.

§ 4.1370 Scope.

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

[67 FR 61511, Oct. 1, 2002]

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

(a) A permittee that is served with a notice of proposed suspension or rescission under 30 CFR 773.22 or a notice of suspension or rescission under 30 CFR 773.23 may file a request for review with DCHD within 30 days of service of the notice.

(b) Failure to file a request for review within 30 days of service of the notice shall constitute a waiver of review of the notice. An untimely request for review shall be dismissed.

(c) Where appropriate under the Administrative Dispute Resolution Act, 5 U.S.C. §§ 571-583, DCHD may use a dispute resolution proceeding, if the parties agree to such proceeding, before the procedures set forth in §§ 4.1373 through 4.1377.

[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 67 FR 61511, Oct. 1, 2002; 88 FR 5796, Jan. 30, 2023]

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

(a) The request for review shall include:

(1) A copy of the notice of proposed suspension or rescission or the notice of suspension or rescission;

(2) Documentary proof, or, where appropriate, offers of proof, concerning the matters in 30 CFR 773.21(a) and (b) or 30 CFR 773.14(c) for a notice of proposed suspension or rescission, or 30 CFR 773.23(a)(1) through (a)(6) for a notice of suspension or rescission, showing that the person requesting review is entitled to administrative relief;

(3) A statement whether the person requesting review wishes an evidentiary hearing or waives the opportunity for such a hearing;

(4) A request for specific relief; and

(5) Any other relevant information.

(b) Within 20 days of service of the request for review by the permittee in accordance with 43 CFR 4.1109, OSM and all interested parties shall file an answer to the request for review or a motion in response to the request or a statement that no answer or motion will be filed. OSM or any interested party may request an evidentiary hearing even if the person requesting review has waived the opportunity for such a hearing.

(c) The permittee may amend the request for review once as a matter of right before a response in accordance with paragraph (b) of this section is required to be filed. After the period for filing such a response, the permittee may file a motion for leave to amend the request for review with the administrative law judge. If the administrative law judge grants a motion for leave to amend, he shall provide OSM and any other party that filed a response in accordance with paragraph (b) not less than 10 days to file an amended response.

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

§ 4.1373 Hearing.

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

(b) The administrative law judge shall give notice of the hearing at least 10 days in advance of the date of the hearing.

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

§ 4.1374 Burdens of proof.

(a) OSM shall have the burden of going forward to present a prima facie case of the validity of the notice of proposed suspension or rescission or the notice of suspension or rescission.

(b) The permittee shall have the ultimate burden of persuasion by a preponderance of the evidence that the notice is invalid.

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

§ 4.1375 Time for initial decision.

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

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

(a) Any party may file a petition for temporary relief from the notice of proposed suspension or rescission or the notice of suspension or rescission in conjunction with the filing of the request for review or at any time before an initial decision is issued by the administrative law judge.

(b) The petition for temporary relief shall be filed with the administrative law judge to whom the request for review has been assigned. If none has been assigned, the petition shall be filed with DCHD.

(c) The petition for temporary relief shall include:

(1) A statement of the specific relief requested;

(2) A detailed statement of why temporary relief should be granted, including—

(i) A showing that there is a substantial likelihood that petitioner will prevail on the merits, and

(ii) A showing that the relief sought will not adversely affect the public health or safety or cause significant, imminent environmental harm to land, air or water resources;

(3) A statement whether the petitioner requests an evidentiary hearing.

(d) Any party may file a response to the petition no later than 5 days after it was served and may request a hearing even if the petitioner has not done so.

(e) The administrative law judge may hold a hearing on any issue raised by the petition within 10 days of the filing of responses to the petition, and shall do so if a hearing is requested by any party.

(f) The administrative law judge shall issue an order or decision granting or denying the petition for temporary relief within 5 days of the date of a hearing on the petition or, if no hearing is held, of service of the responses to the petition on all parties.

(g) The administrative law judge may only grant temporary relief if:

(1) All parties to the proceeding have been notified of the petition and have had an opportunity to respond and a hearing has been held if requested;

(2) The petitioner has demonstrated a substantial likelihood of prevailing on the merits; and

(3) Temporary relief will not adversely affect public health or safety or cause significant, imminent harm to land, air or water resources.

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

[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 67 FR 61512, Oct. 1, 2002; 88 FR 5796, Jan. 30, 2023]

§ 4.1377 Petition for discretionary review of initial decision.

(a) Any party may file a petition for discretionary review of an initial decision of an administrative law judge issued under § 4.1375 with the Board within 30 days of receipt of the decision. An untimely petition shall be dismissed.

(b) The petition for discretionary review shall set forth specifically the alleged errors in the initial decision, with supporting argument, and shall attach a copy of the decision.

(c) Any party may file a response to the petition for discretionary review within 30 days of its service.

(d) The Board shall issue a decision denying the petition or granting the petition and deciding the merits within 60 days of the deadline for filing responses.

§ 4.1380 Scope.

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

[67 FR 61512, Oct. 1, 2002]

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

(a) Any person who receives a written decision issued by OSM under 30 CFR 773.28 on a challenge to an ownership or control listing or finding may file a request for review with DCHD within 30 days of service of the decision.

(b) Failure to file a request for review within 30 days of service of the decision constitutes a waiver of review of the decision. An untimely request for review shall be dismissed.

(c) Where appropriate under the Administrative Dispute Resolution Act, 5 U.S.C. §§ 571-583, DCHD may use a dispute resolution proceeding, if the parties agree to such proceeding, before the procedures set forth in §§ 4.1383 through 4.1387.

[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 88 FR 5796, Jan. 30, 2023]

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

(a) The request for review shall include:

(1) A copy of the decision of OSM;

(2) A statement of the alleged errors in the decision and the facts that entitle the person requesting review to administrative relief;

(3) A statement whether the person requesting review wishes an evidentiary hearing or waives the opportunity for such a hearing;

(4) A request for specific relief; and

(5) Any other relevant information.

(b) Within 20 days of service of the request for review in accordance with 43 CFR 4.1109, OSM and all interested parties shall file an answer to the request for review or a motion in response to the request or a statement that no answer or motion will be filed. OSM or any interested party may request an evidentiary hearing even if the person requesting review has waived the opportunity for a hearing.

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

§ 4.1383 Hearing.

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

(b) The administrative law judge shall give notice of the hearing at least 10 days in advance of the date of the hearing.

§ 4.1384 Burdens of proof.

(a) OSM shall have the burden of going forward to present a prima facie case of the validity of the decision.

(b) The person filing the request for review shall have the ultimate burden of persuasion by a preponderance of the evidence that the decision is in error.

§ 4.1385 Time for initial decision.

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

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

(a) Any party may file a petition for temporary relief from the decision of OSM in conjunction with the filing of the request for review or at any time before an initial decision is issued by the administrative law judge.

(b) The petition for temporary relief shall be filed with the administrative law judge to whom the request for review has been assigned. If none has been assigned, the petition shall be filed with DCHD.

(c) The petition for temporary relief shall include:

(1) A statement of the specific relief requested:

(2) A detailed statement of why temporary relief should be granted, including:

(i) A showing that there is a substantial likelihood that petitioner will prevail on the merits, and

(ii) A showing that granting the relief requested will not adversely affect the public health or safety or cause significant, imminent environmental harm to land, air or water resources;

(3) A statement whether the petitioner requests an evidentiary hearing.

(d) Any party may file a response to the petition no later than 5 days after it was served and may request a hearing even if the petitioner has not done so.

(e) The administrative law judge may hold a hearing on any issue raised by the petition within 10 days of the filing of responses to the petition, and shall do so if a hearing is requested by any party.

(f) The administrative law judge shall issue an order or decision granting or denying the petition for temporary relief within 5 days of the date of a hearing on the petition or, if no hearing is held, of service of the responses to the petition on all parties.

(g) The administrative law judge may only grant temporary relief if:

(1) All parties to the proceeding have been notified of the petition and have had an opportunity to respond and a hearing has been held if requested;

(2) The petitioner has demonstrated a substantial likelihood of prevailing on the merits; and

(3) Temporary relief will not adversely affect public health or safety or cause significant, imminent environmental harm to land, air or water resources.

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

[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 88 FR 5796, Jan. 30, 2023]

§ 4.1387 Petition for discretionary review of initial decisions.

(a) Any party may file a petition for discretionary review of an initial decision of an administrative law judge issued under § 4.1385 with the Board within 30 days of receipt of the decision. An untimely petition shall be dismissed.

(b) The petition for discretionary review shall set forth specifically the alleged errors in the initial decision, with supporting argument, and shall attach a copy of the decision.

(c) Any party may file a response to the petition for discretionary review within 30 days of its service.

(d) The Board shall issue a decision denying the petition or granting the petition and deciding the merits within 60 days of the deadline for filing responses.

§ 4.1390 Scope.

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

[67 FR 61512, Oct. 1, 2002]

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

(a) The person who requested a determination under 30 CFR 761.16 or any person with an interest that is or may be adversely affected by a determination that a person does or does not have valid existing rights may file a request for review of the determination with the office of the OSM official whose determination is being reviewed and at the same time shall send a copy of the request to the Interior Board of Land Appeals, U.S. Department of the Interior. OSM shall file the complete administrative record of the determination under review with the Board as soon as practicable.

(b) OSM must provide notice of the valid existing rights determination to the person who requested that determination by certified mail, or by overnight delivery service if the person has agreed to bear the expense of this service.

(1) When the determination is made independently of a decision on an application for a permit or for a permit boundary revision, a request for review shall be filed within 30 days of receipt of the determination by a person who has received a copy of it by certified mail or overnight delivery service. The request for review shall be filed within 30 days of the date of publication of the determination in a newspaper of general circulation or in the Federal Register, whichever is later, by any person who has not received a copy of it by certified mail or overnight delivery service.

(2) When the determination is made in conjunction with a decision on an application for a permit or for a permit boundary revision, the request for review must be filed in accordance with § 4.1362.

(c) Failure to file a request for review within the time specified in paragraph (b) of this section shall constitute a waiver of the right to review and the request shall be dismissed.

[56 FR 2145, Jan. 22, 1991, as amended at 67 FR 4368, Jan. 30, 2002; 67 FR 61512, Oct. 1, 2002; 88 FR 5796, Jan. 30, 2023]

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

(a) The request for review:

(1) Must include:

(i) A clear statement of the reasons for appeal;

(ii) A request for specific relief;

(iii) A copy of the decision appealed from; and

(iv) Any other relevant information; and

(2) May not exceed 30 pages, excluding exhibits, declarations, and other attachments, unless the Board orders otherwise upon motion for good cause shown.

(b) All interested parties shall file an answer or motion in response to a request for review or a statement that no answer or motion will be filed within 15 days of receipt specifically admitting or denying facts or alleged errors stated in the request and setting forth any other matters to be considered on review.

(c) A request for review may be amended once as a matter of right prior to receipt of an answer or motion or statement filed in accordance with paragraph (b) of this section. Thereafter, a motion for leave to amend the request shall be filed with the Board.

(d) An interested party may file an answer, motion, or statement as described in paragraph (b) of this section in response to an amended request for review as follows:

(1) If the request for review is amended as a matter of right, the answer, motion, or statement must be filed within the longer of the following periods:

(i) The time remaining for response to the original request for review; or

(ii) Ten days after receipt of the amended request for review; and

(2) If the Board grants a motion to amend a request for review, the answer, motion, or statement must be filed within the time set by the Board in its order granting the motion.

(e) The filing of a reply is discouraged. However, a person who filed a request for review may file a reply that:

(1) Is limited to the issues raised in an answer or motion;

(2) Does not exceed 20 pages, excluding exhibits, declarations, and other attachments, unless the Board orders otherwise upon motion for good cause shown; and

(3) Is filed within:

(i) Fifteen days after service of the answer or motion under paragraph (b) or (d)(1) of this section; or

(ii) The time set by the Board in its order under paragraph (d)(2) of this section.

[52 FR 39530, Oct. 22, 1987, as amended at 75 FR 64670, Oct. 20, 2010]

§ 4.1393 Status of decision pending administrative review.

Determinations of the Office of Surface Mining under 30 U.S.C. 1272(e) will not be effective during the time in which a person or entity adversely affected may file a notice of appeal. When the public interest requires or to protect trust resources, however, the Board may provide that a decision, or any part of a decision, will be effective immediately.

[90 FR 2431, Jan. 10, 2025]

§ 4.1394 Burden of proof.

(a) If the person who requested the determination is seeking review, OSM shall have the burden of going forward to establish a prima facie case and the person who requested the determination shall have the ultimate burden of persuasion.

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

[67 FR 61512, Oct. 1, 2002]

§ 4.1600 Purpose and nature of the appeal process.

(a) This appeals procedure embodies an informal administrative review of agency decisions made under OMB Circular A-76, and is intended to assure that such decisions are fair, equitable, and in compliance with the provisions of the Circular. This procedure provides affected parties an opportunity to request that such decisions be objectively reviewed by a party independent of the A-76 decision process.

(b) This appeals procedure is administrative rather than judicial in nature, and does not provide for a judicial review or for further levels of appeal. The decisions of the appeals official are final.

(c) This procedure is intended to protect the rights of all affected parties and, therefore, neither the procedure nor agency determinations may be subject to negotiation, arbitration, or agreements with any one of the parties.

§ 4.1601 Basis for appeal.

(a) An appeal may be based only on a specific alleged material deviation (or deviations) by the agency from the provisions of OMB Circular A-76 or Supplement No. 1 thereto, the “Cost Comparison Handbook.” Appeals may not be based on other factors, such as the economic impact of the agency's decision on a community, or other socioeconomic issues.

(b) This appeals procedure shall be used only to resolve questions of the determination between contract and in-house performance of a commercial or industrial type requirement, and shall not apply to questions concerning award to one contractor in preference to another.

§ 4.1602 Who may appeal under this procedure.

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

§ 4.1603 Appeal period.

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

§ 4.1604 Method of filing an appeal.

An appeal must be in writing, and must be submitted to: Director, Office of Hearings and Appeals, U.S. Department of the Interior.

[45 FR 75213, Nov. 14, 1980. Redesignated at 52 FR 39525, Oct. 22, 1987 as amended at 67 FR 4368, Jan. 30, 2002; 88 FR 5796, Jan. 30, 2023]

§ 4.1605 Action by the Office of Hearings and Appeals.

(a) Upon receipt of an appeal, the Director, Office of Hearings and Appeals shall designate an appeals official, who shall process the appeal.

(b) The appeals official shall promptly docket the appeal and send copies of the docketing notice to the appellant, the director or other appropriate official of the bureau or office involved, and the Solicitor of the Department.

§ 4.1606 Department representation.

(a) Upon receipt of the docketing notice, the Solicitor shall appoint counsel to represent the Department in the appeal action, and so notify the appellant and the appeals official.

(b) Within seven calendar days of his designation the Department Counsel shall assemble and transmit to the appeals official a file containing the appealed agency decision and all documents relevant thereto, including the detailed analysis upon which the agency decision was based. At the same time, the Department Counsel shall send to the appellant a copy of the transmittal document, containing a table of contents of the file.

§ 4.1607 Processing the appeal.

(a) The appeals official shall arrange such conferences with the concerned parties as are necessary, including (if requested by the appellant) an oral presentation.

(b) The appeals official may require either party to submit any additional documents, oral or written testimony, or other items of evidence which he considers necessary for a complete review of the agency decision.

(c) All documentary evidence submitted by one party to the appeal action shall be made available to the other party (or parties), except that availability of proprietary information may be restricted by the party holding the proprietary interest in such information.

§ 4.1608 Oral presentations.

(a) Upon request of the appellant, an opportunity for an oral presentation to the appeals official shall be granted. The purpose of an oral presentation shall be to permit the appellant to discuss or explain factual evidence supporting his allegations, and/or to obtain oral explanations of pertinent evidence. The time and place of each oral presentation shall be determined by the appeals official, after consultation with the appropriate parties.

(b) The appellant may, but is not required to, be represented by legal counsel at an oral presentation.

(c) The Department Counsel and the bureau/office involved shall be invited to attend any oral presentation. The appeals official may require the attendance and participation of an official or employee of the Department, whether or not requested by the appellant, if, in the appeals official's judgment, such official or employee may possess knowledge or information pertinent to the agency decision being appealed, and if this knowledge or information is unobtainable elsewhere.

(d) An oral presentation shall not constitute a judicial proceeding, and no such judicial proceeding or hearing shall be provided for in this appeals process. There shall be no requirement for legal briefs, sworn statements, interrogation under oath, official transcripts of testimony, etc., unless the appeals official determines such are necessary for effective disposition of the appeal.

§ 4.1609 Multiple appeals.

If two or more appellants submit appeals of the same agency decision, which are based on the same or similar allegations, the appeals official may, at his discretion, consider all such appeals concurrently and issue a single written decision resolving all of the several appeals.

§ 4.1610 Decision of the appeals official.

(a) Within 30 calendar days after receipt of an appeal by the Office of Hearings and Appeals, the appeals official shall issue a written decision, either affirming or denying the appeal. This decision shall be final, with no judicial review or further avenue of appeal.

(b) If the appeals official affirms the appeal, his decision regarding further action by the agency shall be binding upon the agency.

(c) If it proves impracticable to issue a decision within the prescribed 30 calendar days, the appeals official may extend this period, notifying all concerned parties of the anticipated decision date.

§ 5.1 What does this subpart cover?

This subpart covers commercial filming and still photography activities on lands and waters administered by the National Park Service, the Bureau of Land Management, and the U.S. Fish and Wildlife Service.

§ 5.2 When do I need a permit for commercial filming or still photography?

(a) All commercial filming requires a permit.

(b) Still photography does not require a permit unless:

(1) It uses a model, set, or prop as defined in § 5.12; or

(2) The agency determines a permit is necessary because:

(i) It takes place at a location where or when members of the public are not allowed; or

(ii) The agency would incur costs for providing on-site management and oversight to protect agency resources or minimize visitor use conflicts.

(c) Visitors do not require a permit for filming or still photography activities unless the filming is commercial filming as defined in § 5.12 or the still photography activity involves one of the criteria listed in § 5.2 (b).

§ 5.3 How do I apply for a permit?

For information on application procedures and to obtain a permit application, contact the site manager at the location at which you seek to conduct commercial filming or still photography activities.

§ 5.4 When is a permit required for news-gathering activities?

(a) Permit requirements. News-gathering activities involving filming, videography, or still photography do not require a permit unless:

(1) We determine a permit is necessary to protect natural and cultural resources, to avoid visitor use conflicts, to ensure public safety or authorize entrance into a closed area; and

(2) Obtaining a permit will not interfere with the ability to gather the news.

(b) Terms and conditions. All permits issued under this section will include only terms and conditions necessary to maintain order, ensure the safety of the public and the media, and protect natural and cultural resources.

(c) Exemptions. A permit issued for news-gathering activities is not subject to location fees or cost recovery charges.

§ 5.5 When will an agency deny a permit for commercial filming or still photography?

We will deny a permit authorizing commercial filming or still photography if we determine that it is likely that the activity would:

(a) Cause resource damage;

(b) Unreasonably disrupt or conflict with the public's use and enjoyment of the site;

(c) Pose health or safety risks to the public;

(d) Result in unacceptable impacts or impairment to National Park Service resources or values;

(e) Be inappropriate or incompatible with the purpose of the Fish and Wildlife Service refuge;

(f) Cause unnecessary or undue degradation of Bureau of Land Management lands; or

(g) Violate the Wilderness Act (16 U.S.C. 1131-1136) or any other applicable Federal, State, or local law or regulation.

§ 5.6 What type of permit conditions may the agency impose?

(a) We may impose permit conditions including, but not limited to, conditions intended to:

(1) Protect the site's values, purposes, and resources, and public health and safety; and

(2) Prevent unreasonable disruption of the public's use and enjoyment.

(b) We may revoke your permit if you violate a permit condition.

§ 5.7 What are my liability and bonding requirements as a permit holder?

(a) Liability. In accepting a permit, you agree to be fully liable for any damage or injury incurred in connection with the permitted activity, and to indemnify and hold harmless the United States of America as a result of your actions. We may require you to obtain property damage, personal injury, commercial liability or public liability insurance in an amount sufficient to protect the United States from liability or other claims arising from activities under the permit. The insurance policy must name the United States of America as an additional insured.

(b) Bond. You are responsible for all response, repair and restoration if your activity causes damage to an area. We may also require you to provide a bond or other security sufficient to secure any obligations you may have under the permit and applicable laws and regulations, including the cost of repair, reclamation, or restoration of the area. The amount of the bond or security must be in an amount sufficient to provide full payment for the costs of response and restoration, reclamation, or rehabilitation of the lands in the event that you fail to adequately repair, reclaim, or restore the area as directed by the agency. If the amount of the bond or other security is inadequate to cover cost of the repair, reclamation, or restoration of the damaged lands or resources you will also be responsible for the additional amount.

§ 5.8 What expenses will I incur?

You must pay us a location fee and reimburse us for expenses that we incur, as required in this section.

(a) Location fee. (1) For commercial filming and still photography permits, we will require a reasonable location fee that provides a fair return to the United States.

(2) The location fee charged is in lieu of any entrance or other special use fees. However, the location fee is in addition to any cost recovery amount assessed in paragraph (b) of this section and represents a fee for the use of Federal lands and facilities and does not include any cost recovery.

(3) We will assess location fees in accordance with a fee schedule, which we will publish in the Federal Register and also make available on the internet and at agency field offices. The location fee does not include any cost recovery.

(b) Cost recovery. You must reimburse us for actual costs incurred in processing your request and administering your permit. We will base cost recovery charges upon our direct and indirect expenses including, but not limited to, administrative costs for application processing, preproduction meetings and other activities, on-site monitoring of permitted activities, and any site restoration.

§ 5.9 How long will it take to process my request?

We will process applications for commercial filming and still photography permits in a timely manner. Processing times will vary depending on the complexity of the proposed activity. A pre-application meeting with agency personnel is encouraged and may assist us in processing your request for a permit more quickly. For information on application procedures contact the appropriate agency field office.

§ 5.10 Can I appeal a decision not to issue a permit?

Yes. If your request for a permit is denied, the site manager issuing the denial will inform you of how and where to appeal.

§ 5.11 Information collection.

The information collection requirements contained in this subpart have been approved by the Office of Management and Budget (OMB) under 44 U.S.C. 3501 et seq., and assigned the following OMB clearance numbers: 1024-0026 for the National Park Service, 1004-0009 for the Bureau of Land Management and 1018-0102 for the Fish and Wildlife Service. This information is being collected to provide land managers data necessary to issue permits for commercial filming or still photography permits on Federal lands. This information will be used to grant administrative benefits. The obligation to respond is required in order to obtain a benefit. You may send comments on this information collection requirement to the Departmental Information Collection Clearance Officer, U.S. Department of the Interior, 1849 C Street NW., MS3530, Washington, DC 20240.

§ 5.12 How are terms defined in this subpart?

The following definitions apply to this subpart:

Agency, we, our, or us means the National Park Service, the Bureau of Land Management, and the U.S. Fish and Wildlife Service, as appropriate.

Commercial filming means the film, electronic, magnetic, digital, or other recording of a moving image by a person, business, or other entity for a market audience with the intent of generating income. Examples include, but are not limited to, feature film, videography, television broadcast, or documentary, or other similar projects. Commercial filming activities may include the advertisement of a product or service, or the use of actors, models, sets, or props.

Cost recovery means the money that an agency collects as reimbursement for actual costs it incurred to permit a particular activity, including but not limited to, accepting and processing a permit application and monitoring the permitted commercial filming or still photography activity.

Location fee means a land or facility use fee similar to rent that provides a fair return to the United States for the use of Federal lands or facilities when used for:

(1) Commercial filming activities or similar projects; and

(2) Still photography activities where a permit is required.

Model means a person or object that serves as the subject for commercial filming or still photography for the purpose of promoting the sale or use of a product or service. Models include, but are not limited to, individuals, animals, or inanimate objects, such as vehicles, boats, articles of clothing, and food and beverage products, placed on agency lands so that they may be filmed or photographed to promote the sale or use of a product or service. For the purposes of this part, portrait subjects such as wedding parties and high school graduates are not considered models, if the image will not be used to promote or sell a product or service.

News means information that is about current events or that would be of current interest to the public, gathered by news-media entities for dissemination to the public. Examples of news-media entities include, but are not limited to, television or radio stations broadcasting to the general public and publishers of periodicals (but only if such entities qualify as disseminators of “news”) who make their products available for purchase by or subscription by or free distribution to the general public.

(1) As methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), these alternative media will be considered to be news-media entities.

(2) A freelance journalist is regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, even if the journalist is not actually employed by the entity. A contract would present a solid basis for such an expectation; we may also consider the past publication record of the requester in making such a determination.

News-gathering activities means filming, videography, and still photography activities carried out by a representative of the news media.

Permit means a written authorization to engage in uses or activities that are otherwise prohibited or restricted.

Representative of the news media means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.

Resource damage means harm to the land or its natural or cultural resources that cannot reasonably be mitigated or reclaimed.

Sets and props means items constructed or placed on agency lands to facilitate commercial filming or still photography including, but not limited to, backdrops, generators, microphones, stages, lighting banks, camera tracks, vehicles specifically designed to accommodate camera or recording equipment, rope and pulley systems, and rigging for climbers and structures. Sets and props also include trained animals and inanimate objects, such as camping equipment, campfires, wagons, and so forth, when used to stage a specific scene. The use of a camera on a tripod, without the use of any other equipment, is not considered a prop.

Still photography means the capturing of a still image on film or in a digital format.

Videography means the process of capturing moving images on electronic media, e.g., video tape, hard disk or solid state storage.

§ 5.15 When must I ask permission from individual Indians to conduct filming and photography?

Anyone who desires to go on to the land of an Indian to make pictures, television productions, or soundtracks is expected to observe the ordinary courtesy of first obtaining permission from the Indian and of observing any conditions attached to this permission.

§ 5.16 When must I ask permission from Indian groups and communities?

Anyone who desires to take pictures, including motion pictures, or to make a television production or a soundtrack of Indian communities, churches, kivas, plazas, or ceremonies performed in these places, must:

(a) Obtain prior permission from the proper officials of the place or community; and

(b) Scrupulously observe any limitations imposed by the officials who grant the permission.

§ 5.17 When must I get a lease or permit?

If filming pictures or making a television production or a soundtrack requires the actual use of Indian lands, you must obtain a lease or permit under 25 CFR part 162.

§ 5.18 What wages must I pay to Indian employees?

Any motion picture or television producer who obtains a lease or permit for the use of Indian land under 25 CFR part 162 must pay a fair and reasonable wage to any Indian employed in connection with the production.

§ 6.1 Definitions.

As used in this subpart:

(a) The term Department means the Department of the Interior.

(b) The term Secretary means the Secretary of the Interior.

(c) The term Solicitor means the Solicitor of the Department of the Interior, or anyone authorized to act for him.

(d) The term Commissioner means the Commissioner of Patents, or any Assistant Commissioner who may act for the Commissioner of Patents.

(e) The term invention means any new and useful art, process, method, machine, manufacture, or composition of matter, or any new and useful improvement thereof, or any new variety of plant, or any new, original and ornamental design for an article of manufacture, which is or may be patentable under the laws of the United States.

(f) The term employee as used in this part includes a part time consultant, a part time employee or a special employee (as defined in 18 U.S.C. 202) of the Department insofar as inventions made during periods of official duty are concerned, except when special circumstances in a specific case require an exemption in order to meet the needs of the Department, each such exemption to be subject to the approval of the Commissioner.

(g) The term governmental purpose means the right of the Government of the United States (including any agency thereof, state, or domestic municipal government) to practice and have practiced (made or have made, used or have used, sold or have sold) throughout the world by or on behalf of the Government of the United States.

(h) The making of the invention means the conception or first actual reduction to practice of such invention.

§ 6.2 Report of invention.

(a) Every invention made by an employee of the Department shall be reported by such employee through his supervisor and the head of the bureau or office to the Solicitor, unless the invention obviously is unpatentable. If the invention is the result of group work, the report shall be made by the supervisor and shall be signed by all employees participating in the making of the invention. The original and two copies of the invention report shall be furnished to the Solicitor. The Solicitor may prescribe the form of the report.

(b) The report shall be made as promptly as possible, taking into consideration such factors as possible publication or public use, reduction to practice, and the necessity for protecting any rights of the Government in the invention. Although it is not necessary to withhold the report until the process or device is completely reduced to practice, reduction to practice assists in the preparation of a patent application and, if diligently pursued, protects the interests of the Government and of the inventor. If an invention is reduced to practice after the invention report is filed, the Solicitor must be notified forthwith.

(c) For the protection of the rights of the Government and of the inventor, invention reports and memoranda or correspondence concerning them are to be considered as confidential documents.

(d) An invention report shall include the following:

(1) A brief but pertinently descriptive title of the invention;

(2) The full name, residence, office address, bureau or office and division, position or title, and official working place of the inventor or inventors;

(3) A statement of the evidence that is available as to the making of the invention, including information relative to conception, disclosures to others, and reduction to practice. Examples of such information are references to signed, witnessed and dated laboratory notebooks, or other authenticated records pertaining to the conception of the invention, operational data sheets, analysis and operation evaluation reports pertaining to a reduction to practice, and visitor log books, letters and other documents pertaining to disclosures to others. These need not be submitted with the report, only the identifying data is required, e.g., volume and page number in a laboratory notebook;

(4) Information concerning any past or prospective publication, oral presentation or public use of the invention;

(5) The problem which led to the making of the invention;

(6) The objects, advantages, and uses of the invention;

(7) A detailed description of the invention;

(8) Experimental data;

(9) The prior art known to the inventor(s) and the manner in which the invention distinguishes thereover;

(10) A statement that the employee:

(i) Is willing to and does hereby assign to the Government:

(a) The entire rights (foreign and domestic) in the invention;

(b) The domestic rights only, but grants to the Government an option to file for patent protection in any foreign country, said option to expire as to any country when it is decided not to file thereon in the United States, or within six months after such filing;

(ii) Requests, pursuant to § 6.2(e), a determination of the respective rights of the Government and of the inventor.

(e) If the inventor believes that he is not required by the regulations in this subpart to assign to the Government the entire domestic right, title, and interest in and to the invention, and if he is unwilling to make such an assignment to the Government, he shall, in his invention report, request that the Solicitor determine the respective rights of the Government and of the inventor in the invention, and he shall include in his invention report information on the following points, in addition to the data called for in paragraph (d) of this section:

(1) The circumstances under which the invention was made (conceived, actually reduced to practice or constructed and tested);

(2) The employee's official duties, as given on his job sheet or otherwise assigned, at the time of the making of the invention;

(3) The extent to which the invention was made during the inventor's official working hours, the extent use was made of government facilities, equipment, funds, material or information, and the time or services of other government employees on official duty;

(4) Whether the employee wishes a patent application to be prosecuted under the Act of March 3, 1883, as amended (35 U.S.C. 266), if it should be determined that he is not required to assign all domestic rights to the invention to the Government; and

(5) Whether the employee would be willing, upon request, to voluntarily assign foreign rights in the invention to the Government if it should be determined that an assignment of the domestic rights to the Government is not required.

§ 6.3 Action by supervisory officials.

(a) The preparation of an invention report and other official correspondence on patent matters is one of the regular duties of an employee who has made an invention and the supervisor of such employee shall see that he is allowed sufficient time from his other duties to prepare such documents. The supervisor shall ascertain that the invention report and other papers are prepared in conformity with the regulations of this part; and, before transmitting the invention report to the head of the bureau or office, shall check its accuracy and completeness, especially with respect to the circumstances in which the invention was developed, and shall add whatever comments he may deem to be necessary or desirable. The supervisor shall add to the file whatever information he may have concerning the governmental and commercial value of the invention.

(b) The head of the bureau or office shall make certain that the invention report is as complete as circumstances permit. He shall report whatever information may be available in his agency concerning the governmental and commercial value of the invention, and the foreign countries in which it is likely that the invention would be most useful and would have the greatest commercial value.

(c) If the employee inventor requests that the Solicitor determine his rights in the invention, the head of the bureau or office shall state his conclusions with respect to such rights.

(d) The head of the bureau or office shall indicate whether, in his judgment, the invention is liable to be used in the public interest, and he shall set out the facts supporting his conclusion whenever the employee's invention report does not contain sufficient information on this point.

§ 6.4 Action by Solicitor.

(a) If an employee inventor requests pursuant to § 6.2(e), that such determination be made, the Solicitor shall determine the respective rights of the employee and of the Government in and to the invention. His determination shall be subject to review by the Commissioner in proper cases under Executive Orders 10096 and 10930 and the rules and regulations issued by the Commissioner with the approval of the President.

(b) If the Government is entitled to obtain the entire domestic right, title and interest in and to an invention made by an employee of the Department, the Solicitor, subject to review by the Commissioner in proper cases, may take such action respecting the invention as he deems necessary or advisable to protect the interests of the United States.

§ 6.5 Rights in inventions.

(a) The rules prescribed in this section shall be applied in determining the respective rights of the Government and of an employee of the Department in and to any invention made by the employee.

(b)(1) Except as indicated in the succeeding paragraphs, (b) (1) through (4), of this section, the Government shall obtain the entire domestic right, title, and interest in and to any invention made by an employee of the Department

(i) During working hours, or

(ii) With a contribution by the Government of facilities, equipment, materials, funds, or information, or of time or services of other government employees on official duty, or

(iii) Which bears a direct relation to or is made in consequence of the official duties of the inventor.

(2) In any case where the contribution of the Government, as measured by any one or more of the criteria set forth in paragraph (b)(1) of this section, to the invention is insufficient equitably to justify a requirement of assignment to the Government of the entire domestic right, title, and interest in and to such invention, or in any case where the Government has insufficient interest in an invention to obtain the entire domestic right, title, and interest therein (although the Government could obtain same under paragraph (b)(1) of this section), the Solicitor, subject to the approval of the Commissioner, shall leave title to such invention in the employee, subject, however, to the reservation to the Government of a nonexclusive, irrevocable, royalty-free license in the invention with power to grant sublicenses for all governmental purposes, such reservation, in the terms thereof, to appear, where practicable, in any patent, domestic or foreign, which may issue on such invention.

(3) In applying the provisions of paragraphs (b) (1) and (2) of this section to the facts and circumstances relating to the making of any particular invention, it shall be presumed that any invention made by an employee who is employed or assigned (i) to invent or improve or perfect any art, machine, manufacture, or composition of matter, or (ii) to conduct or perform research, development work, or both, or (iii) to supervise, direct, coordinate, or review Government financed or conducted research, development work, or both, or (iv) to act in a liaison capacity among governmental or nongovernmental agencies or individuals engaged in such work, falls within the provisions of paragraph (b)(1) of this section, and it shall be presumed that any invention made by any other employee falls within the provisions of paragraph (b)(2) of this section. Either presumption may be rebutted by a showing of the facts and circumstances in the case and shall not preclude a determination that these facts and circumstances justify leaving the entire right, title and interest in and to the invention in the government employee, subject to law.

(4) In any case wherein the Government neither (i) obtains the entire domestic right, title, and interest in and to an invention pursuant to the provisions of paragraph (b)(1) of this section, nor (ii) reserves a nonexclusive, irrevocable, royalty-free license in the invention, with power to grant sublicenses for all governmental purposes, pursuant to the provisions of paragraph (b)(2) of this section, the Solicitor, subject to the approval of the Commissioner, shall leave the entire right, title, and interest in and to the invention in the employee, subject to law.

(c) In the event that the Solicitor determines, pursuant to paragraph (b) (2) or (4) of this section, that title to an invention will be left with an employee, the Solicitor shall notify the employee of this determination and promptly prepare, and preserve in appropriate files, accessible to the Commissioner, a written signed, and dated statement concerning the invention including the following:

(1) A description of the invention in sufficient detail to identify the invention and show the relationship to the employee's duties and work assignment;

(2) The name of the employee and his employment status, including a detailed statement of his official duties and responsibilities at the time the invention was made; and

(3) A statement of the Solicitor's determination and reasons therefor. The Solicitor shall, subject to considerations of national security, or public health, safety, or welfare, submit to the Commissioner a copy of this written statement. This submittal in a case falling within the provisions of paragraph (b) (2) of this section shall be made after the expiration of the period prescribed in § 6.6 for the taking of an appeal, or it may be made prior to the expiration of such period if the employees acquiesces in the Solicitor's determination. The Commissioner thereupon shall review the determination of the Solicitor and the Commissioner's decision respecting the matter shall be final, subject to the right of the employee or the Solicitor to submit to the Commissioner within 30 days (or such longer period as the Commissioner may, for good cause, shown in writing, fix in any case) after receiving notice of such decision, a petition for the reconsideration of the decision. A copy of such petition must also be filed by the inventor with the Solicitor within the prescribed period.

§ 6.6 Appeals by employees.

(a) Any employee who is aggrieved by a determination of the Solicitor pursuant to § 6.5(b) (1) or (2) may obtain a review of the determination by filing, within 30 days (or such longer period as the Commissioner may for good cause shown in writing, fix in any case) after receiving notice of such determination, two copies of an appeal with the Commissioner. The Commissioner then shall forward one copy of the appeal to the Solicitor.

(b) On receipt of a copy of an appeal filed pursuant to paragraph (a) of this section, the Solicitor shall, subject to considerations of national security, or public health, safety, or welfare, promptly furnish both the Commissioner and the inventor with a copy of a report containing the following information about the invention involved in the appeal:

(1) A copy of a statement containing the information specified in § 6.5(c), and

(2) A detailed statement of the points of dispute or controversy, together with copies of any statements or written arguments that may have been filed, and of any other relevant evidence that the Solicitor considered in making his determination of Government interest. Within 25 days (or such longer period as the Commissioner may, for good cause shown, fix in any case) after the transmission of a copy of the Solicitor's report to the employee, the employee may file a reply thereto with the Commissioner and file one copy thereof with the Solicitor.

(c) After the time for the employee's reply to the Solicitor's report has expired and if the employee has so requested in his appeal, a date will be set for the hearing of oral arguments by the employee (or by an attorney whom he designates by written power of attorney filed before, or at the hearing) and the Solicitor. Unless it shall be otherwise ordered before the hearing begins, oral arguments will be limited to thirty minutes for each side. The employee need not retain an attorney or request an oral hearing to secure full consideration of the facts and his arguments. He may expedite such consideration by notifying the Commissioner when he does not intend to file a reply to the Solicitor's report.

(d) After a hearing on the appeal, if a hearing was requested, or after expiration of the period for the inventor's reply to the Solicitor's report, if no hearing is set, the Commissioner shall issue a decision on the matter, which decision shall be final after the period for asking reconsideration expires or on the date that a decision on a petition for reconsideration is finally disposed of. Any request for reconsideration or modification of the decision must be filed within 30 days from the date of the original decision (or within such an extension thereof as may be set by the Commissioner before the original period expires). The Com- missioner's decision shall be made after consideration of the statements of fact in the employee's appeal, the Solicitor's report, and the employee's reply, but the Commissioner, at his discretion and with due respect to the rights and convenience of the inventor and the Solicitor, may call for further statements on specific questions of fact or may request additional evidence in the form of affidavits or depositions on specific facts in dispute.

§ 6.7 Domestic patent protection.

(a) The Solicitor, upon determining that an invention coming within the scope of § 6.5(b) (1) or (2) has been made, shall thereupon determine whether patent protection will be sought in the United States by the Department for such invention. A controversy over the respective rights of the Government and of the inventor in any case shall not delay the taking of the actions provided for in this section. In cases coming within the scope of § 6.5(b)(2), action by the Department looking toward such patent protection shall be contingent upon the consent of the inventor.

(b) Where there is a dispute as to whether paragraph (b) (1) or (2) of § 6.5 applies in determining the respective rights of the Government and of an employee in and to any invention, the Solicitor will determine whether patent protection will be sought in the United States pending the Commissioner's decision on the dispute, and, if he determines that an application for patent should be filed, he will take such rights as are specified in § 6.5(b)(2), but this shall be without prejudice to acquiring the rights specified in § 6.5(b)(1) should the Commissioner so decide.

(c) Where the Solicitor has determined to leave title to an invention with an employee under § 6.5(b)(2), the Solicitor will, upon the filing of an application for patent and pending review of the determination by the Commissioner, take the rights specified in that paragraph, without prejudice to the subsequent acquisition by the Government of the rights specified in § 6.5(b)(1) should the Commissioner so decide.

(d) In the event that the Solicitor determines that an application for patent will not be filed on an invention made under the circumstances specified in § 6.5(b)(1) giving the United States the right to title thereto, the Solicitor shall subject to considerations of national security, or public health, safety, or welfare, report to the Commissioner promptly upon making such determination, the following information concerning the invention:

(1) Description of the invention in sufficient detail to permit a satisfactory review;

(2) Name of the inventor and his employment status;

(3) Statement of the Solicitor's determination and reasons therefor.

The Commissioner, may, if he determines that the interest of the Government so requires and subject to considerations of national security, or public health safety, or welfare, bring the invention to the attention of any Government agency to whose activities the invention may be pertinent, or cause the invention to be fully disclosed by publication thereof.

§ 6.8 Foreign filing.

(a) By Government. (1) In every case where the employee has indicated pursuant to § 6.2(d)(10), his willingness to assign the domestic patent rights in the invention to the Government, or where it has been determined pursuant to § 6.5 that the Government shall obtain the entire domestic patent rights, the Government shall reserve an option to acquire assignment of all foreign rights including the rights to file foreign patent applications or otherwise to seek protection abroad on the invention.

(2) The Government's option shall lapse as regards any foreign country:

(i) When the Solicitor determines after consultation with the agency most directly concerned, not to cause an application to be filed in said foreign country or otherwise to seek protection of the invention, as by publication;

(ii) When the Solicitor fails to take action to seek protection of the invention in said foreign country (a) within six months of the filing of an application for a United States patent on the invention, or (b) within six months of declassification of an invention previously under a security classification, whichever is later.

(b) By Employee. (1) No Department employee shall file or cause to be filed an application for patent in any foreign country on any invention in which the Government has acquired the entire (foreign and domestic) patent rights, or holds an unexpired option to acquire the patent rights in said foreign country, or take any steps which would preclude the filing of an application by or on behalf of the Government.

(2) An employee may file in any foreign country where the Government has not exercised its option acquired pursuant to § 6.2(d)(10), to do so, or determines not to do so.

(3) The determination or failure to act as set forth in § 6.8(a)(2) shall constitute a decision by the Government to leave the foreign patent rights to the invention in the employee, subject to a nonexclusive, irrevocable, royalty-free license to the Government in any patent which may issue thereon in any foreign country, including the power to issue sublicenses for governmental purposes or in furtherance of the foreign policies of the Government or both.

§ 6.9 Publication and public use of invention before patent application is filed.

(a) Publication or public use of an invention constitutes a statutory bar to the granting of a patent for the invention unless a patent application is filed within one year of the date of such publication or public use. In order to preserve rights in unpatented inventions, it shall be the duty of the inventor, or of his supervisor if the inventor is not available to make such report, to report forthwith to the Solicitor any publication or use (other than experimental) of an invention, irrespective of whether an invention report has previously been filed. If an invention report has not been filed, such a report, including information concerning the public use or publication, shall be filed at once. If an invention is disclosed to any person who is not employed by the Department or working in cooperation with the Department upon that invention, a record shall be kept of the date and extent of the disclosure, the name and address of the person to whom the disclosure was made, and the purpose of the disclosure.

(b) No description, specification, plan, or drawing of any unpatented invention upon which a patent application is likely to be filed shall be published, nor shall any written description, specification, plan, or drawing of such invention be furnished to anyone other than an employee of the Department or a person working in cooperation with the Department upon that invention, unless the Solicitor is of the opinion that the interests of the Government will not be prejudiced by such action. If any publication disclosing the invention, not previously approved by the Solicitor, comes to the attention of the inventor or his supervisor, it shall be the duty of such person to report such publication to the Solicitor.

§ 6.10 Publicity concerning the invention after patent application is filed.

In order that the public may obtain the greatest possible benefit from inventions in which the Secretary has transferable interests, inventions assigned to the Secretary upon which patent applications have been filed shall be publicized as widely as possible, within limitations of authority, by the Department, by the originating agency, by the division in which the inventor is employed, and by the inventor himself in his contacts with industries in which the invention is or may be useful. Regular organs of publication shall be utilized to the greatest extent possible. In addition, it shall be the duty of the Solicitor, upon being advised of the issuance of any patent assigned to the Secretary, to take steps towards listing the patent as available for licensing, where feasible.

§ 6.11 Condition of employment.

(a) The regulations in this subpart shall be a condition of employment of all employees of the Department and shall be effective as to all their inventions. These regulations shall be effective without regard to any existing or future contracts to the contrary entered into by any employee of the Department with any person other than the Government.

(b) If a patent application is filed upon an invention which has been made by an employee of the Department under circumstances that entitle the Government to the entire domestic right, title and interest in and to the invention, but which has not been reported to the Solicitor pursuant to the regulations in this subpart, title to such invention shall immediately vest in the Government, as represented by the Secretary, and the contract of employment shall be considered an assignment of such rights.

§ 6.51 Purpose.

It is the purpose of the regulations in this subpart to secure for the people of the United States the full benefits of Government research and investigation in the Department of the Interior (a) by providing a simple procedure under which the public may obtain licenses to use patents and inventions in which the Secretary of the Interior has transferable interests and which are available for licensing; and (b) by providing adequate protection for the inventions until such time as they may be made available for licensing without undue risk of losing patent protection to which the public is entitled.

[31 FR 10796, Aug. 13, 1966]

§ 6.52 Patents.

Patents in which the Secretary of the interior has transferable interests, and under which he may issue licenses or sublicenses, are classified as follows:

(a) Class A. Patents, other than those referred to in paragraph (c) of this section, which are owned by the United States, as represented by the Secretary of the Interior, free from restrictions on licensing except such as are inherent in Government ownership;

(b) Class B. Patents in which the interest of the United States, as represented by the Secretary of the Interior, is less than full ownership, or is subject to some express restriction upon licensing or sublicensing (including patents upon which the Secretary of the Interior holds a license, patents assigned to the Secretary of the Interior as trustee for the people of the United States, and patents assigned to the Secretary of the Interior upon such terms as to effect a dedication to the public);

(c) Class C. Patents and patent rights acquired by the Secretary of the Interior pursuant to the Act of April 5, 1944 (58 Stat. 190; 30 U.S.C. 321-325), and any amendments thereof.

[29 FR 260, Jan. 10, 1964, as amended at 31 FR 10796, Aug. 13, 1966]

§ 6.53 Unpatented inventions.

The Secretary of the Interior may also have transferable interests in inventions which are not yet patented. In order to protect the patent rights of the Department, for the eventual benefit of the public, a license may be granted with respect to such an invention only if (a) a patent application has been filed thereon; (b) the invention has been assigned to the United States, as represented by the Secretary of the Interior, and the assignment has been recorded in the Patent Office; and (c) the Solicitor of the Department is of the opinion that the issuance of a license will not prejudice the interests of the Government in the invention. Such licenses shall be upon the same terms as licenses relating to patents of the same class, as described in § 6.52.

§ 6.54 Use or manufacture by or for the Government.

A license is not required with respect to the manufacture or use of any invention assigned or required to be assigned without restrictions or qualifications to the United States when such manufacture or use is by or for the Government for governmental purposes. A license or sublicense may be required, however, for such manufacture or use in the case of Class B patents or patent rights when the terms under which the Secretary of the Interior acquires interests therein necessitate the issuance of a license or sublicense in such circumstances.

[31 FR 10796, Aug. 13, 1966]

§ 6.55 Terms of licenses or sublicenses.

(a) No license or sublicense shall be granted under any patent in which the Secretary of the Interior has transferable interests, except as set forth under these regulations, the terms and conditions of which shall be expressly stated in such license and sublicense. The terms of licenses and sublicenses issued under this subpart shall not be unreasonably restrictive.

(b) To the extent that they do not conflict with any restrictions to which the licensing or sublicensing of Class B patents and unpatented inventions may be subject, all licenses and sublicenses relating to Class A and Class B patents and unpatented inventions shall be subject to the following terms and provisions, and to such other terms and conditions as the Solicitor may prescribe:

(1) The acceptance of a license or sublicense shall not be construed as a waiver of the right to contest the validity of the patent. A license or sublicense shall be revocable only upon a finding by the Solicitor of the Department that the terms of the license or sublicense have been violated and that the revocation of the license or sublicense is in the public interest. Such finding shall be made only after reasonable notice and an opportunity to be heard.

(2) Licenses and sublicenses shall be nontransferable. Upon a satisfactory showing that the Government or public will be benefited thereby, they may be granted to properly qualified applicants royalty-free. If no such showing is made, they shall be granted only upon a reasonable royalty or other consideration, the amount or character of which is to be determined by the Solicitor. A cross-licensing agreement may be considered adequate consideration.

(3) Licensees and sublicensees may be required to submit annual or more frequent technical or statistical reports concerning practical experience acquired through the exercise of the license or sublicense, the extent of the production under the license or sublicense, and other related subjects.

(4) A licensee or sublicensee manufacturing a patented article pursuant to a license or sublicense shall give notice to the public that the article is patented by affixing thereon the word “patent”, together with the number of the patent, or when, from the character of the article, this cannot be done, by fixing to it, or to the package in which it is enclosed, a label containing such notice.

(c) Licenses and sublicenses relating to Class C patents and patent rights shall be granted upon such terms and conditions as may be prescribed pursuant to sections 3 and 5 of the Act of April 5 1944, and any amendments thereof.

[29 FR 260, Jan. 10, 1964, as amended at 31 FR 10796, Aug. 13, 1966]

§ 6.56 Issuance of licenses.

(a) Any person desiring a license relating to an invention upon which the Secretary of the Interior holds a patent or patent rights may file with the Solicitor of the Department of the Interior an application for a license, stating:

(1) The name, address, and citizenship of the applicant;

(2) The nature of his business;

(3) The patent or invention upon which he desires a license;

(4) The purpose for which he desires a license;

(5) His experience in the field of the desired license;

(6) Any patents, licenses, or other patent rights which he may have in the field of the desired license; and

(7) The benefits, if any, which the applicant expects the public to derive from his proposed use of the invention

(b) It shall be the duty of the Solicitor, after consultation with the bureau most directly interested in the patent or invention involved in an application for a license, and with the Evaluation Committee if royalties are to be charged, to determine whether the license shall be granted. If he determines that a license is to be granted, he shall execute on behalf of the Secretary, an appropriate license.

§ 6.57 Evaluation Committee.

At the request of the Solicitor, an Evaluation Committee will be appointed by the Secretary to recommend royalty rates with respect to any patents or inventions for which royalties may be charged.

§ 7.1 Purpose.

(a) The regulations in this part implement provisions of the Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 470aa-mm) by establishing the uniform definitions, standards, and procedures to be followed by all Federal land managers in providing protection for archaeological resources, located on public lands and Indian lands of the United States. These regulations enable Federal land managers to protect archaeological resources, taking into consideration provisions of the American Indian Religious Freedom Act (92 Stat. 469; 42 U.S.C. 1996), through permits authorizing excavation and/or removal of archaeological resources, through civil penalties for unauthorized excavation and/or removal, through provisions for the preservation of archaeological resource collections and data, and through provisions for ensuring confidentiality of information about archaeological resources when disclosure would threaten the archaeological resources.

(b) The regulations in this part do not impose any new restrictions on activities permitted under other laws, authorities, and regulations relating to mining, mineral leasing, reclamation, and other multiple uses of the public lands.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]

§ 7.2 Authority.

(a) The regulations in this part are promulgated pursuant to section 10(a) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470ii), which requires that the Secretaries of the Interior, Agriculture and Defense and the Chairman of the Board of the Tennessee Valley Authority jointly develop uniform rules and regulations for carrying out the purposes of the Act.

(b) In addition to the regulations in this part, section 10(b) of the Act (16 U.S.C. 470ii) provides that each Federal land manager shall promulgate such rules and regulations, consistent with the uniform rules and regulations in this part, as may be necessary for carrying out the purposes of the Act.

§ 7.3 Definitions.

As used for purposes of this part:

(a) Archaeological resource means any material remains of human life or activities which are at least 100 years of age, and which are of archaeological interest.

(1) Of archaeological interest means capable of providing scientific or humanistic understandings of past human behavior, cultural adaptation, and related topics through the application of scientific or scholarly techniques such as controlled observation, contextual measurement, controlled collection, analysis, interpretation and explanation.

(2) Material remains means physical evidence of human habitation, occupation, use, or activity, including the site, location, or context in which such evidence is situated.

(3) The following classes of material remains (and illustrative examples), if they are at least 100 years of age, are of archaeological interest and shall be considered archaeological resources unless determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this section:

(i) Surface or subsurface structures, shelters, facilities, or features (including, but not limited to, domestic structures, storage structures, cooking structures, ceremonial structures, artificial mounds, earthworks, fortifications, canals, reservoirs, horticultural/agricultural gardens or fields, bedrock mortars or grinding surfaces, rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits, burial pits or graves, hearths, kilns, post molds, wall trenches, middens);

(ii) Surface or subsurface artifact concentrations or scatters;

(iii) Whole or fragmentary tools, implements, containers, weapons and weapon projectiles, clothing, and ornaments (including, but not limited to, pottery and other ceramics, cordage, basketry and other weaving, bottles and other glassware, bone, ivory, shell, metal, wood, hide, feathers, pigments, and flaked, ground, or pecked stone);

(iv) By-products, waste products, or debris resulting from manufacture or use of human-made or natural materials;

(v) Organic waste (including, but not limited to, vegetal and animal remains, coprolites);

(vi) Human remains (including, but not limited to, bone, teeth, mummified flesh, burials, cremations);

(vii) Rock carvings, rock paintings, intaglios and other works of artistic or symbolic representation;

(viii) Rockshelters and caves or portions thereof containing any of the above material remains;

(ix) All portions of shipwrecks (including, but not limited to, armaments, apparel, tackle, cargo);

(x) Any portion or piece of any of the foregoing.

(4) The following material remains shall not be considered of archaeological interest, and shall not be considered to be archaeological resources for purposes of the Act and this part, unless found in a direct physical relationship with archaeological resources as defined in this section:

(i) Paleontological remains;

(ii) Coins, bullets, and unworked minerals and rocks.

(5) The Federal land manager may determine that certain material remains, in specified areas under the Federal land manager's jurisdiction, and under specified circumstances, are not or are no longer of archaeological interest and are not to be considered archaeological resources under this part. Any determination made pursuant to this subparagraph shall be documented. Such determination shall in no way affect the Federal land manager's obligations under other applicable laws or regulations.

(6) For the disposition following lawful removal or excavations of Native American human remains and “cultural items”, as defined by the Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L. 101-601; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is referred to NAGPRA and its implementing regulations.

(b) Arrowhead means any projectile point which appears to have been designed for use with an arrow.

(c) Federal land manager means:

(1) With respect to any public lands, the secretary of the department, or the head of any other agency or instrumentality of the United States, having primary management authority over such lands, including persons to whom such management authority has been officially delegated;

(2) In the case of Indian lands, or any public lands with respect to which no department, agency or instrumentality has primary management authority, such term means the Secretary of the Interior;

(3) The Secretary of the Interior, when the head of any other agency or instrumentality has, pursuant to section 3(2) of the Act and with the consent of the Secretary of the Interior, delegated to the Secretary of the Interior the responsibilities (in whole or in part) in this part.

(d) Public lands means:

(1) Lands which are owned and administered by the United States as part of the national park system, the national wildlife refuge system, or the national forest system; and

(2) All other lands the fee title to which is held by the United States, except lands on the Outer Continental Shelf, lands under the jurisdiction of the Smithsonian Institution, and Indian lands.

(e) Indian lands means lands of Indian tribes, or Indian individuals, which are either held in trust by the United States or subject to a restriction against alienation imposed by the United States, except for subsurface interests not owned or controlled by an Indian tribe or Indian individual.

(f) Indian tribe as defined in the Act means any Indian tribe, band, nation, or other organized group or community, including any Alaska village or regional or village corporation as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688). In order to clarify this statutory definition for purposes of this part, “Indian tribe” means:

(1) Any tribal entity which is included in the annual list of recognized tribes published in the Federal Register by the Secretary of the Interior pursuant to 25 CFR part 54;

(2) Any other tribal entity acknowledged by the Secretary of the Interior pursuant to 25 CFR part 54 since the most recent publication of the annual list; and

(3) Any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), and any Alaska Native village or tribe which is recognized by the Secretary of the Interior as eligible for services provided by the Bureau of Indian Affairs.

(g) Person means an individual, corporation, partnership, trust, institution, association, or any other private entity, or any officer, employee, agent, department, or instrumentality of the United States, or of any Indian tribe, or of any State or political subdivision thereof.

(h) State means any of the fifty states, the District of Columbia, Puerto Rico, Guam, and the Virgin Islands.

(i) Act means the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa-mm).

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984, as amended at 60 FR 5260, Jan. 26, 1995]

§ 7.4 Prohibited acts and criminal penalties.

(a) Under section 6(a) of the Act, no person may excavate, remove, damage, or otherwise alter or deface, or attempt to excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit issued under § 7.8 or exempted by § 7.5(b) of this part.

(b) No person may sell, purchase, exchange, transport, or receive any archaeological resource, if such resource was excavated or removed in violation of:

(1) The prohibitions contained in paragraph (a) of this section; or

(2) Any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.

(c) Under section (d) of the Act, any person who knowingly violates or counsels, procures, solicits, or employs any other person to violate any prohibition contained in section 6 (a), (b), or (c) of the Act will, upon conviction, be fined not more than $10,000.00 or imprisoned not more than one year, or both: provided, however, that if the commercial or archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources exceeds the sum of $500.00, such person will be fined not more than $20,000.00 or imprisoned not more than two years, or both. In the case of a second or subsequent such violation upon conviction such person will be fined not more than $100,000.00, or imprisoned not more than five years, or both.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]

§ 7.5 Permit requirements and exceptions.

(a) Any person proposing to excavate and/or remove archaeological resources from public lands or Indian lands, and to carry out activities associated with such excavation and/or removal, shall apply to the Federal land manager for a permit for the proposed work, and shall not begin the proposed work until a permit has been issued. The Federal land manager may issue a permit to any qualified person, subject to appropriate terms and conditions, provided that the person applying for a permit meets conditions in § 7.8(a) of this part.

(b) Exceptions:

(1) No permit shall be required under this part for any person conducting activities on the public lands under other permits, leases, licenses, or entitlements for use, when those activities are exclusively for purposes other than the excavation and/or removal of archaeological resources, even though those activities might incidentally result in the disturbance of archaeological resources. General earth-moving excavation conducted under a permit or other authorization shall not be construed to mean excavation and/or removal as used in this part. This exception does not, however, affect the Federal land manager's responsibility to comply with other authorities which protect archaeological resources prior to approving permits, leases, licenses, or entitlements for use; any excavation and/or removal of archaeological resources required for compliance with those authorities shall be conducted in accordance with the permit requirements of this part.

(2) No permit shall be required under this part for any person collecting for private purposes any rock, coin, bullet, or mineral which is not an archaeological resource as defined in this part, provided that such collecting does not result in disturbance of any archaelogical resource.

(3) No permit shall be required under this part or under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or removal by any Indian tribe or member thereof of any archaeological resource located on Indian lands of such Indian tribe, except that in the absence of tribal law regulating the excavation or removal or archaeological resources on Indian lands, an individual tribal member shall be required to obtain a permit under this part;

(4) No permit shall be required under this part for any person to carry out any archaeological activity authorized by a permit issued under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the enactment of the Archaeological Resources Protection Act of 1979. Such permit shall remain in effect according to its terms and conditions until expiration.

(5) No permit shall be required under section 3 of the Act of June 8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit is issued under this part.

(c) Persons carrying out official agency duties under the Federal land manager's direction, associated with the management of archaeological resources, need not follow the permit application procedures of § 7.6. However, the Federal land manager shall insure that provisions of §§ 7.8 and 7.9 have been met by other documented means, and that any official duties which might result in harm to or destruction of any Indian tribal religious or cultural site, as determined by the Federal land manager, have been the subject of consideration under § 7.7.

(d) Upon the written request of the Governor of any State, on behalf of the State or its educational institutions, the Federal land manager shall issue a permit, subject to the provisions of §§ 7.5(b)(5), 7.7, 7.8(a) (3), (4), (5), (6), and (7), 7.9, 7.10, 7.12, and 7.13(a) to such Governor or to such designee as the Governor deems qualified to carry out the intent of the Act, for purposes of conducting archaeological research, excavating and/or removing archaeological resources, and safeguarding and preserving any materials and data collected in a university, museum, or other scientific or educational institution approved by the Federal land manager.

(e) Under other statutory, regulatory, or administrative authorities governing the use of public lands and Indian lands, authorizations may be required for activities which do not require a permit under this part. Any person wishing to conduct on public lands or Indian lands any activities related to but believed to fall outside the scope of this part should consult with the Federal land manager, for the purpose of determining whether any authorization is required, prior to beginning such activities.

§ 7.6 Application for permits and information collection.

(a) Any person may apply to the appropriate Federal land manager for a permit to excavate and/or remove archaeological resources from public lands or Indian lands and to carry out activities associated with such excavation and/or removal.

(b) Each application for a permit shall include:

(1) The nature and extent of the work proposed, including how and why it is proposed to be conducted, proposed time of performance, locational maps, and proposed outlet for public written dissemination of the results.

(2) The name and address of the individual(s) proposed to be responsible for conducting the work, institutional affiliation, if any, and evidence of education, training, and experience in accord with the minimal qualifications listed in § 7.8(a).

(3) The name and address of the individual(s), if different from the individual(s) named in paragraph (b)(2) of this section, proposed to be responsible for carrying out the terms and conditions of the permit.

(4) Evidence of the applicant's ability to initiate, conduct, and complete the proposed work, including evidence of logistical support and laboratory facilities.

(5) Where the application is for the excavation and/or removal of archaeological resources on public lands, the names of the university, museum, or other scientific or educational institution in which the applicant proposes to store all collections, and copies of records, data, photographs, and other documents derived from the proposed work. Applicants shall submit written certification, signed by an authorized official of the institution, of willingness to assume curatorial responsibility for the collections, records, data, photographs and other documents and to safeguard and preserve these materials as property of the United States.

(6) Where the application is for the excavation and/or removal of archaeological resources on Indian lands, the name of the university, museum, or other scientific or educational institution in which the applicant proposes to store copies of records, data, photographs, and other documents derived from the proposed work, and all collections in the event the Indian owners do not wish to take custody or otherwise dispose of the archaeological resources. Applicants shall submit written certification, signed by an authorized official of the institution, or willingness to assume curatorial responsibility for the collections, if applicable, and/or the records, data, photographs, and other documents derived from the proposed work.

(c) The Federal land manager may require additional information, pertinent to land management responsibilities, to be included in the application for permit and shall so inform the applicant.

(d) Paperwork Reduction Act. The information collection requirement contained in § 7.6 of these regulations has been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1024-0037. The purpose of the information collection is to meet statutory and administrative requirements in the public interest. The information will be used to assist Federal land managers in determining that applicants for permits are qualified, that the work proposed would further archaeological knowledge, that archaeological resources and associated records and data will be properly preserved, and that the permitted activity would not conflict with the management of the public lands involved. Response to the information requirement is necessary in order for an applicant to obtain a benefit.

§ 7.7 Notification to Indian tribes of possible harm to, or destruction of, sites on public lands having religious or cultural importance.

(a) If the issuance of a permit under this part may result in harm to, or destruction of, any Indian tribal religious or cultural site on public lands, as determined by the Federal land manager, at least 30 days before issuing such a permit the Federal land manager shall notify any Indian tribe which may consider the site as having religious or cultural importance. Such notice shall not be deemed a disclosure to the public for purposes of section 9 of the Act.

(1) Notice by the Federal land manager to any Indian tribe shall be sent to the chief executive officer or other designated official of the tribe. Indian tribes are encouraged to designate a tribal official to be the focal point for any notification and discussion between the tribe and the Federal land manager.

(2) The Federal land manager may provide notice to any other Native American group that is known by the Federal land manager to consider sites potentially affected as being of religious or cultural importance.

(3) Upon request during the 30-day period, the Federal land manager may meet with official representatives of any Indian tribe or group to discuss their interests, including ways to avoid or mitigate potential harm or destruction such as excluding sites from the permit area. Any mitigation measures which are adopted shall be incorporated into the terms and conditions of the permit under § 7.9.

(4) When the Federal land manager determines that a permit applied for under this part must be issued immediately because of an imminent threat of loss or destruction of an archaeological resource, the Federal land manager shall so notify the appropriate tribe.

(b)(1) In order to identify sites of religious or cultural importance, the Federal land manager shall seek to identify all Indian tribes having aboriginal or historic ties to the lands under the Federal land manager's jurisdiction and seek to determine, from the chief executive officer or other designated official of any such tribe, the location and nature of specific sites of religious or cultural importance so that such information may be on file for land management purposes. Information on sites eligible for or included in the National Register of Historic Places may be withheld from public disclosure pursuant to section 304 of the Act of October 15, 1966, as amended (16 U.S.C. 470w-3).

(2) If the Federal land manager becomes aware of a Native American group that is not an Indian tribe as defined in this part but has aboriginal or historic ties to public lands under the Federal land manager's jurisdiction, the Federal land manager may seek to communicate with official representatives of that group to obtain information on sites they may consider to be of religious or cultural importance.

(3) The Federal land manager may enter into agreement with any Indian tribe or other Native American group for determining locations for which such tribe or group wishes to receive notice under this section.

(4) The Federal land manager should also seek to determine, in consultation with official representatives of Indian tribes or other Native American groups, what circumstances should be the subject of special notification to the tribe or group after a permit has been issued. Circumstances calling for notification might include the discovery of human remains. When circumstances for special notification have been determined by the Federal land manager, the Federal land manager will include a requirement in the terms and conditions of permits, under § 7.9(c), for permittees to notify the Federal land manger immediately upon the occurrence of such circumstances. Following the permittee's notification, the Federal land manager will notify and consult with the tribe or group as appropriate. In cases involving Native American human remains and other “cultural items”, as defined by NAGPRA, the Federal land manager is referred to NAGPRA and its implementing regulations.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 1995]

§ 7.8 Issuance of permits.

(a) The Federal land manager may issue a permit, for a specified period of time appropriate to the work to be conducted, upon determining that:

(1) The applicant is appropriately qualified, as evidenced by training, education, and/or experience, and possesses demonstrable competence in archaeological theory and methods, and in collecting, handling, analyzing, evaluating, and reporting archaeological data, relative to the type and scope of the work proposed, and also meets the following minimum qualifications:

(i) A graduate degree in anthropology or archaeology, or equivalent training and experience;

(ii) The demonstrated ability to plan, equip, staff, organize, and supervise activity of the type and scope proposed;

(iii) The demonstrated ability to carry research to completion, as evidenced by timely completion of theses, research reports, or similar documents;

(iv) Completion of at least 16 months of professional experience and/or specialized training in archaeological field, laboratory, or library research, administration, or management, including at least 4 months experience and/or specialized training in the kind of activity the individual proposes to conduct under authority of a permit; and

(v) Applicants proposing to engage in historical archaeology should have had at least one year of experience in research concerning archaeological resources of the historic period. Applicants proposing to engage in prehistoric archaeology should have had at least one year of experience in research concerning archaeological resources of the prehistoric period.

(2) The proposed work is to be undertaken for the purpose of furthering archaeological knowledge in the public interest, which may include but need not be limited to, scientific or scholarly research, and preservation of archaeological data;

(3) The proposed work, including time, scope, location, and purpose, is not inconsistent with any management plan or established policy, objectives, or requirements applicable to the management of the public lands concerned;

(4) Where the proposed work consists of archaeological survey and/or data recovery undertaken in accordance with other approved uses of the public lands or Indian lands, and the proposed work has been agreed to in writing by the Federal land manager pursuant to section 106 of the National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a)(2) and (a)(3) shall be deemed satisfied by the prior approval.

(5) Written consent has been obtained, for work proposed on Indian lands, from the Indian landowner and the Indian tribe having jurisdiction over such lands;

(6) Evidence is submitted to the Federal land manager that any university, museum, or other scientific or educational institution proposed in the application as the repository possesses adequate curatorial capability for safeguarding and preserving the archaeological resources and all associated records; and

(7) The applicant has certified that, not later than 90 days after the date the final report is submitted to the Federal land manager, the following will be delivered to the appropriate official of the approved university, museum, or other scientific or educational institution, which shall be named in the permit:

(i) All artifacts, samples, collections, and copies of records, data, photographs, and other documents resulting from work conducted under the requested permit where the permit is for the excavation and/or removal of archaeological resources from public lands.

(ii) All artifacts, samples and collections resulting from work under the requested permit for which the custody or disposition is not undertaken by the Indian owners, and copies of records, data, photographs, and other documents resulting from work conducted under the requested permit, where the permit is for the excavation and/or removal of archaeological resources from Indian lands.

(b) When the area of the proposed work would cross jurisdictional boundaries, so that permit applications must be submitted to more than one Federal land manager, the Federal land managers shall coordinate the review and evaluation of applications and the issuance of permits.

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]

§ 7.9 Terms and conditions of permits.

(a) In all permits issued, the Federal land manager shall specify:

(1) The nature and extent of work allowed and required under the permit, including the time, duration, scope, location, and purpose of the work;

(2) The name of the individual(s) responsible for conducting the work and, if different, the name of the individual(s) responsible for carrying out the terms and conditions of the permit;

(3) The name of any university, museum, or other scientific or educational institutions in which any collected materials and data shall be deposited; and

(4) Reporting requirements.

(b) The Federal land manager may specify such terms and conditions as deemed necessary, consistent with this part, to protect public safety and other values and/or resources, to secure work areas, to safeguard other legitimate land uses, and to limit activities incidental to work authorized under a permit.

(c) The Federal land manager shall include in permits issued for archaeological work on Indian lands such terms and conditions as may be requested by the Indian landowner and the Indian tribe having jurisdiction over the lands, and for archaeological work on public lands shall include such terms and conditions as may have been developed pursuant to § 7.7.

(d) Initiation of work or other activities under the authority of a permit signifies the permittee's acceptance of the terms and conditions of the permit.

(e) The permittee shall not be released from requirements of a permit until all outstanding obligations have been satisfied, whether or not the term of the permit has expired.

(f) The permittee may request that the Federal land manager extend or modify a permit.

(g) The permittee's performance under any permit issued for a period greater than 1 year shall be subject to review by the Federal land manager, at least annually.

§ 7.10 Suspension and revocation of permits.

(a) Suspension or revocation for cause. (1) The Federal land manager may suspend a permit issued pursuant to this part upon determining that the permittee has failed to meet any of the terms and conditions of the permit or has violated any prohibition of the Act or § 7.4. The Federal land manager shall provide written notice to the permittee of the suspension, the cause thereof, and the requirements which must be met before the suspension will be removed.

(2) The Federal land manager may revoke a permit upon assessment of a civil penalty under § 7.15 upon the permittee's conviction under section 6 of the Act, or upon determining that the permittee has failed after notice under this section to correct the situation which led to suspension of the permit.

(b) Suspension or revocation for management purposes. The Federal land manager may suspend or revoke a permit, without liability to the United States, its agents, or employees, when continuation of work under the permit would be in conflict with management requirements not in effect when the permit was issued. The Federal land manager shall provide written notice to the permittee stating the nature of and basis for the suspension or revocation.

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]

§ 7.11 Appeals relating to permits.

Any affected person may appeal permit issuance, denial of permit issuance, suspension, revocation, and terms and conditions of a permit through existing administrative appeal procedures, or through procedures which may be established by the Federal land manager pursuant to section 10(b) of the Act and this part.

§ 7.12 Relationship to section 106 of the National Historic Preservation Act.

Issuance of a permit in accordance with the Act and this part does not constitute an undertaking requiring compliance with section 106 of the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere issuance of such a permit does not excuse the Federal land manager from compliance with section 106 where otherwise required.

§ 7.13 Custody of archaeological resources.

(a) Archaeological resources excavated or removed from the public lands remain the property of the United States.

(b) Archaeological resources excavated or removed from Indian lands remain the property of the Indian or Indian tribe having rights of ownership over such resources.

(c) The Secretary of the Interior may promulgate regulations providing for the exchange of archaeological resources among suitable universities, museums, or other scientific or educational institutions, for the ultimate disposition of archaeological resources, and for standards by which archaeological resources shall be preserved and maintained, when such resources have been excavated or removed from public lands and Indian lands.

(d) In the absence of regulations referenced in paragraph (c) of this section, the Federal land manager may provide for the exchange of archaeological resources among suitable universities, museums, or other scientific or educational institutions, when such resources have been excavated or removed from public lands under the authority of a permit issued by the Federal land manager.

(e) Notwithstanding the provisions of paragraphs (a) through (d) of this section, the Federal land manager will follow the procedures required by NAGPRA and its implementing regulations for determining the disposition of Native American human remains and other “cultural items”, as defined by NAGPRA, that have been excavated, removed, or discovered on public lands.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 1995]

§ 7.14 Determination of archaeological or commercial value and cost of restoration and repair.

(a) Archaeological value. For purposes of this part, the archaeological value of any archaeological resource involved in a violation of the prohibitions in § 7.4 of this part or conditions of a permit issued pursuant to this part shall be the value of the information associated with the archaeological resource. This value shall be appraised in terms of the costs of the retrieval of the scientific information which would have been obtainable prior to the violation. These costs may include, but need not be limited to, the cost of preparing a research design, conducting field work, carrying out laboratory analysis, and preparing reports as would be necessary to realize the information potential.

(b) Commercial value. For purposes of this part, the commercial value of any archaeological resource involved in a violation of the prohibitions in § 7.4 of this part or conditions of a permit issued pursuant to this part shall be its fair market value. Where the violation has resulted in damage to the archaeological resource, the fair market value should be determined using the condition of the archaeological resource prior to the violation, to the extent that its prior condition can be ascertained.

(c) Cost of restoration and repair. For purposes of this part, the cost of restoration and repair of archaeological resources damaged as a result of a violation of prohibitions or conditions pursuant to this part, shall be the sum of the costs already incurred for emergency restoration or repair work, plus those costs projected to be necessary to complete restoration and repair, which may include, but need not be limited to, the costs of the following:

(1) Reconstruction of the archaeological resource;

(2) Stabilization of the archaeological resource;

(3) Ground contour reconstruction and surface stabilization;

(4) Research necessary to carry out reconstruction or stabilization;

(5) Physical barriers or other protective devices, necessitated by the disturbance of the archaeological resource, to protect it from further disturbance;

(6) Examination and analysis of the archaeological resource including recording remaining archaeological information, where necessitated by disturbance, in order to salvage remaining values which cannot be otherwise conserved;

(7) Reinterment of human remains in accordance with religious custom and State, local, or tribal law, where appropriate, as determined by the Federal land manager.

(8) Preparation of reports relating to any of the above activities.

§ 7.15 Assessment of civil penalties.

(a) The Federal land manager may assess a civil penalty against any person who has violated any prohibition contained in § 7.4 or who has violated any term or condition included in a permit issued in accordance with the Act and this part.

(b) Notice of violation. The Federal land manager shall serve a notice of violation upon any person believed to be subject to a civil penalty, either in person or by registered or certified mail (return receipt requested). The Federal land manager shall include in the notice:

(1) A concise statement of the facts believed to show a violation;

(2) A specific reference to the provision(s) of this part or to a permit issued pursuant to this part allegedly violated;

(3) The amount of penalty proposed to be assessed, including any initial proposal to mitigate or remit where appropriate, or a statement that notice of a proposed penalty amount will be served after the damages associated with the alleged violation have been ascertained;

(4) Notification of the right to file a petition for relief pursuant to paragraph (d) of this section, or to await the Federal land manager's notice of assessment, and to request a hearing in accordance with paragraph (g) of this section. The notice shall also inform the person of the right to seek judicial review of any final administrative decision assessing a civil penalty.

(c) The person served with a notice of violation shall have 45 calendar days from the date of its service (or the date of service of a proposed penalty amount, if later) in which to respond. During this time the person may:

(1) Seek informal discussions with the Federal land manager;

(2) File a petition for relief in accordance with paragraph (d) of this section;

(3) Take no action and await the Federal land manager's notice of assessment;

(4) Accept in writing or by payment the proposed penalty, or any mitigation or remission offered in the notice. Acceptance of the proposed penalty or mitigation or remission shall be deemed a waiver of the notice of assessment and of the right to request a hearing under paragraph (g) of this section.

(d) Petition for relief. The person served with a notice of violation may request that no penalty be assessed or that the amount be reduced, by filing a petition for relief with the Federal land manager within 45 calendar days of the date of service of the notice of violation (or of a proposed penalty amount, if later). The petition shall be in writing and signed by the person served with the notice of violation. If the person is a corporation, the petition must be signed by an officer authorized to sign such documents. The petition shall set forth in full the legal or factual basis for the requested relief.

(e) Assessment of penalty. (1) The Federal land manager shall assess a civil penalty upon expiration of the period for filing a petition for relief, upon completion of review of any petition filed, or upon completion of informal discussions, whichever is later.

(2) The Federal land manager shall take into consideration all available information, including information provided pursuant to paragraphs (c) and (d) of this section or furnished upon further request by the Federal land manager.

(3) If the facts warrant a conclusion that no violation has occurred, the Federal land manager shall so notify the person served with a notice of violation, and no penalty shall be assessed.

(4) Where the facts warrant a conclusion that a violation has occurred, the Federal land manager shall determine a penalty amount in accordance with § 7.16.

(f) Notice of assessment. The Federal land manager shall notify the person served with a notice of violation of the penalty amount assessed by serving a written notice of assessment, either in person or by registered or certified mail (return receipt requested). The Federal land manager shall include in the notice of assessment:

(1) The facts and conclusions from which it was determined that a violation did occur;

(2) The basis in § 7.16 for determining the penalty amount assessed and/or any offer to mitigate or remit the penalty; and

(3) Notification of the right to request a hearing, including the procedures to be followed, and to seek judicial review of any final administrative decision assessing a civil penalty.

(g) Hearings. (1) Except where the right to request a hearing is deemed to have been waived as provided in paragraph (c)(4) of this section, the person served with a notice of assessment may file a written request for a hearing with the adjudicatory body specified in the notice. The person shall enclose with the request for hearing a copy of the notice of assessment, and shall deliver the request as specified in the notice of assessment, personally or by registered or certified mail (return receipt requested).

(2) Failure to deliver a written request for a hearing within 45 days of the date of service of the notice of assessment shall be deemed a waiver of the right to a hearing.

(3) Any hearing conducted pursuant to this section shall be held in accordance with 5 U.S.C. 554. In any such hearing, the amount of civil penalty assessed shall be determined in accordance with this part, and shall not be limited by the amount assessed by the Federal land manager under paragraph (f) of this section or any offer of mitigation or remission made by the Federal land manager.

(h) Final administrative decision. (1) Where the person served with a notice of violation has accepted the penalty pursuant to paragraph (c)(4) of this section, the notice of violation shall constitute the final administrative decision;

(2) Where the person served with a notice of assessment has not filed a timely request for a hearing pursuant to paragraph (g)(1) of this section, the notice of assessment shall constitute the final administrative decision;

(3) Where the person served with a notice of assessment has filed a timely request for a hearing pursuant to paragraph (g)(1) of this section, the decision resulting from the hearing or any applicable administrative appeal therefrom shall constitute the final administrative decision.

(i) Payment of penalty. (1) The person assessed a civil penalty shall have 45 calendar days from the date of issuance of the final administrative decision in which to make full payment of the penalty assessed, unless a timely request for appeal has been filed with a U.S. District Court as provided in section 7(b)(1) of the Act.

(2) Upon failure to pay the penalty, the Federal land manager may request the Attorney General to institute a civil action to collect the penalty in a U.S. District Court for any district in which the person assessed a civil penalty is found, resides, or transacts business. Where the Federal land manager is not represented by the Attorney General, a civil action may be initiated directly by the Federal land manager.

(j) Other remedies not waived. Assessment of a penalty under this section shall not be deemed a waiver of the right to pursue other available legal or administrative remedies.

§ 7.16 Civil penalty amounts.

(a) Maximum amount of penalty. (1) Where the person being assessed a civil penalty has not committed any previous violation of any prohibition in § 7.4 or of any term or condition included in a permit issued pursuant to this part, the maximum amount of the penalty shall be the full cost of restoration and repair of archaeological resources damaged plus the archaeological or commercial value of archaeological resources destroyed or not recovered.

(2) Where the person being assessed a civil penalty has committed any previous violation of any prohibition in § 7.4 or of any term or condition included in a permit issued pursuant to this part, the maximum amount of the penalty shall be double the cost of restoration and repair plus double the archaeological or commercial value of archaeological resources destroyed or not recovered.

(3) Violations limited to the removal of arrowheads located on the surface of the ground shall not be subject to the penalties prescribed in this section.

(b) Determination of penalty amount, mitigation, and remission. The Federal land manager may assess a penalty amount less than the maximum amount of penalty and may offer to mitigate or remit the penalty.

(1) Determination of the penalty amount and/or a proposal to mitigate or remit the penalty may be based upon any of the following factors:

(i) Agreement by the person being assessed a civil penalty to return to the Federal land manager archaeological resources removed from public lands or Indian lands;

(ii) Agreement by the person being assessed a civil penalty to assist the Federal land manager in activity to preserve, restore, or otherwise contribute to the protection and study of archaeological resources on public lands or Indian lands;

(iii) Agreement by the person being assessed a civil penalty to provide information which will assist in the detection, prevention, or prosecution of violations of the Act or this part;

(iv) Demonstration of hardship or inability to pay, provided that this factor shall only be considered when the person being assessed a civil penalty has not been found to have previously violated the regulations in this part;

(v) Determination that the person being assessed a civil penalty did not willfully commit the violation;

(vi) Determination that the proposed penalty would constitute excessive punishment under the circumstances;

(vii) Determination of other mitigating circumstances appropriate to consideration in reaching a fair and expeditious assessment.

(2) When the penalty is for a violation on Indian lands, the Federal land manager shall consult with and consider the interests of the Indian landowner and the Indian tribe having jurisdiction over the Indian lands prior to proposing to mitigate or remit the penalty.

(3) When the penalty is for a violation which may have had an effect on a known Indian tribal religious or cultural site on public lands, the Federal land manager should consult with and consider the interests of the affected tribe(s) prior to proposing to mitigate or remit the penalty.

[49 FR 1027, Jan. 6, 1984, as amended at 52 FR 47721, Dec. 16, 1987]

§ 7.17 Other penalties and rewards.

(a) Section 6 of the Act contains criminal prohibitions and provisions for criminal penalties. Section 8(b) of the Act provides that archaeological resources, vehicles, or equipment involved in a violation may be subject to forfeiture.

(b) Section 8(a) of the Act provides for rewards to be made to persons who furnish information which leads to conviction for a criminal violation or to assessment of a civil penalty. The Federal land manager may certify to the Secretary of the Treasury that a person is eligible to receive payment. Officers and employees of Federal, State, or local government who furnish information or render service in the performance of their official duties, and persons who have provided information under § 7.16(b)(1)(iii) shall not be certified eligible to receive payment of rewards.

(c) In cases involving Indian lands, all civil penalty monies and any item forfeited under the provisions of this section shall be transferred to the appropriate Indian or Indian tribe.

§ 7.18 Confidentiality of archaeological resource information.

(a) The Federal land manager shall not make available to the public, under subchapter II of chapter 5 of title 5 of the United States Code or any other provision of law, information concerning the nature and location of any archaeological resource, with the following exceptions:

(1) The Federal land manager may make information available, provided that the disclosure will further the purposes of the Act and this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469 through 469c), without risking harm to the archaeological resource or to the site in which it is located.

(2) The Federal land manager shall make information available, when the Governor of any State has submitted to the Federal land manager a written request for information, concerning the archaeological resources within the requesting Governor's State, provided that the request includes:

(i) The specific archaeological resource or area about which information is sought;

(ii) The purpose for which the information is sought; and

(iii) The Governor's written commitment to adequately protect the confidentiality of the information.

(b) [Reserved]

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]

§ 7.19 Report.

(a) Each Federal land manager, when requested by the Secretary of the Interior, will submit such information as is necessary to enable the Secretary to comply with section 13 of the Act and comprehensively report on activities carried out under provisions of the Act.

(b) The Secretary of the Interior will include in the annual comprehensive report, submitted to the Committee on Interior and Insular Affairs of the United States House of Representatives and to the Committee on Energy and Natural Resources of the United States Senate under section 13 of the Act, information on public awareness programs submitted by each Federal land manager under § 7.20(b). Such submittal will fulfill the Federal land manager's responsibility under section 10(c) of the Act to report on public awareness programs.

(c) The comprehensive report by the Secretary of the Interior also will include information on the activities carried out under section 14 of the Act. Each Federal land manager, when requested by the Secretary, will submit any available information on surveys and schedules and suspected violations in order to enable the Secretary to summarize in the comprehensive report actions taken pursuant to section 14 of the Act.

[60 FR 5260, 5261, Jan. 26, 1995]

§ 7.20 Public awareness programs.

(a) Each Federal land manager will establish a program to increase public awareness of the need to protect important archaeological resources located on public and Indian lands. Educational activities required by section 10(c) of the Act should be incorporated into other current agency public education and interpretation programs where appropriate.

(b) Each Federal land manager annually will submit to the Secretary of the Interior the relevant information on public awareness activities required by section 10(c) of the Act for inclusion in the comprehensive report on activities required by section 13 of the Act.

[60 FR 5260, 5261, Jan. 26, 1995]

§ 7.21 Surveys and schedules.

(a) The Secretaries of the Interior, Agriculture, and Defense and the Chairman of the Board of the Tennessee Valley Authority will develop plans for surveying lands under each agency's control to determine the nature and extent of archaeological resources pursuant to section 14(a) of the Act. Such activities should be consistent with Federal agency planning policies and other historic preservation program responsibilities required by 16 U.S.C. 470 et seq. Survey plans prepared under this section will be designed to comply with the purpose of the Act regarding the protection of archaeological resources.

(b) The Secretaries of the Interior, Agriculture, and Defense and the Chairman of the Tennessee Valley Authority will prepare schedules for surveying lands under each agency's control that are likely to contain the most scientifically valuable archaeological resources pursuant to section 14(b) of the Act. Such schedules will be developed based on objectives and information identified in survey plans described in paragraph (a) of this section and implemented systematically to cover areas where the most scientifically valuable archaeological resources are likely to exist.

(c) Guidance for the activities undertaken as part of paragraphs (a) through (b) of this section is provided by the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation.

(d) Other Federal land managing agencies are encouraged to develop plans for surveying lands under their jurisdictions and prepare schedules for surveying to improve protection and management of archaeological resources.

(e) The Secretaries of the Interior, Agriculture, and Defense and the Chairman of the Tennessee Valley Authority will develop a system for documenting and reporting suspected violations of the various provisions of the Act. This system will reference a set of procedures for use by officers, employees, or agents of Federal agencies to assist them in recognizing violations, documenting relevant evidence, and reporting assembled information to the appropriate authorities. Methods employed to document and report such violations should be compatible with existing agency reporting systems for documenting violations of other appropriate Federal statutes and regulations. Summary information to be included in the Secretary's comprehensive report will be based upon the system developed by each Federal land manager for documenting suspected violations.

[60 FR 5260, 5261, Jan. 26, 1995]

§ 7.31 Scope and authority.

The regulations in this subpart are promulgated pursuant to section 10(b) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470ii), which requires agencies to develop rules and regulations for carrying out the purposes of the Act, consistent with the uniform regulations issued pursuant to section 10(a) of the Act (subpart A of this part).

§ 7.32 Supplemental definitions.

For purposes of this subpart, the following definitions will be used:

(a) Site of religious or cultural importance means, for purposes of § 7.7 of this part, a location which has traditionally been considered important by an Indian tribe because of a religious event which happened there; because it contains specific natural products which are of religious or cultural importance; because it is believed to the be dwelling place of, the embodiment of, or a place conducive to communication with spiritual beings; because it contains elements of life-cycle rituals, such as burials and associated materials; or because it has other specific and continuing significance in Indian religion or culture.

(b) Allotted lands means lands granted to Indian individuals by the United States and held in trust for those individuals by the United States.

§ 7.33 Determination of loss or absence of archaeological interest.

(a) Under certain circumstances, a Federal land manager may determine, pursuant to § 7.3(a)(5) of this part, that certain material remains are not or are no longer of archaeological interest, and therefore are not to be considered archaeological resources under this part.

(b) The Federal land manager may make such a determination if he/she finds that the material remains are not capable of providing scientific or humanistic understandings of past human behavior, cultural adaptation, and related topics.

(c) Prior to making a determination that material remains are not or are no longer archaeological resources, the Federal land manager shall ensure that the following procedures are completed:

(1) A professional archaeological evaluation of material remains and similar materials within the area under consideration shall be completed, consistent with the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (48 FR 44716, Sept. 29, 1983) and with 36 CFR parts 60, 63, and 65.

(2) The principal bureau archaeologist or, in the absence of a principal bureau archaeologist, the Department Consulting Archeologist, shall establish whether the material remains under consideration contribute to scientific or humanistic understandings of past human behavior, cultural adaptation and related topics. The principal bureau archaeologist or the Department Consulting Archeologist, as appropriate, shall make a recommendation to the Federal land manager concerning these material remains.

(d) The Federal land manager shall make the determination based upon the facts established by and the recommendation of the principal bureau archaeologist or the Departmental Consulting Archeologist, as appropriate, and shall fully document the basis therefor, including consultation with Indian tribes for determinations regarding sites of religious or cultural importance.

(e) The Federal land manager shall make public notice of the determination and its limitations, including any permitting requirements for activities associated with the materials determined not to be archaeological resources for purposes of this part.

(f) Any interested individual may request in writing that the Departmental Consulting Archeologist review any final determination by the Federal land manager that certain remains, are not, or are no longer, archaeological resources. Two (2) copies of the request should be sent to the Departmental Consulting Archeologist, National Park Service, P.O. Box 37127, Washington, DC 20013-7127, and should document why the requestor disagrees with the determination of the Federal land manager. The Departmental Consulting Archeologist shall review the request, and, if appropriate, shall review the Federal land manager's determination and its supporting documentation. Based on this review, the Departmental Consulting Archeologist shall prepare a final professional recommendation, and shall transmit the recommendation and the basis therefor to the head of the bureau for further consideration within 60 days of the receipt of the request.

(g) Any determination made pursuant to this section shall in no way affect the Federal land manager's obligations under other applicable laws or regulations.

§ 7.34 Procedural information for securing permits.

Information about procedures to secure a permit to excavate or remove archaeological resources from public lands or Indian lands can be obtained from the appropriate Indian tribal authorities, the Federal land manager of the bureau that administers the specific area of the public lands or Indian lands for which a permit is desired, or from the state, regional, or national office of that bureau.

§ 7.35 Permitting procedures for Indian lands.

(a) If the lands involved in a permit application are Indian lands, the consent of the appropriate Indian tribal authority or individual Indian landowner is required by the Act and these regulations.

(b) When Indian tribal lands are involved in an application for a permit or a request for extension or modification of a permit, the consent of the Indian tribal government must be obtained. For Indian allotted lands outside reservation boundaries, consent from only the individual landowner is needed. When multiple-owner allotted lands are involved, consent by more than 50 percent of the ownership interest is sufficient. For Indian allotted lands within reservation boundaries, consent must be obtained from the Indian tribal government and the individual landowner(s).

(c) The applicant should consult with the Bureau of Indian Affairs concerning procedures for obtaining consent from the appropriate Indian tribal authorities and submit the permit application to the area office of the Bureau of Indian Affairs that is responsible for the administration of the lands in question. The Bureau of Indian Affairs shall insure that consultation with the appropriate Indian tribal authority or individual Indian landowner regarding terms and conditions of the permit occurs prior to detailed evaluation of the application. Permits shall include terms and conditions requested by the Indian tribe or Indian landowner pursuant to § 7.9 of this part.

(d) The issuance of a permit under this part does not remove the requirement for any other permit required by Indian tribal law.

§ 7.36 Permit reviews and disputes.

(a) Any affected person disputing the decision of a Federal land manager with respect to the issuance or denial of a permit, the inclusion of specific terms and conditions in a permit, or the modification, suspension, or revocation of a permit may request the Federal land manager to review the disputed decision and may request a conference to discuss the decision and its basis.

(b) The disputant, if unsatisfied with the outcome of the review or conference, may request that the decision be reviewed by the head of the bureau involved.

(c) Any disputant unsatisfied with the higher level review, and desiring to appeal the decision, pursuant to § 7.11 of this part, should consult with the appropriate Federal land manager regarding the existence of published bureau appeal procedures. In the absence of published bureau appeal procedures, the review by the head of the bureau involved will constitute the final decision.

(d) Any affected person may request a review by the Departmental Consulting Archeologist of any professional issues involved in a bureau permitting decision, such as professional qualifications, research design, or other professional archaeological matters. The Departmental Consulting Archeologist shall make a final professional recommendation to the head of the bureau involved. The head of the bureau involved will consider the recommendation, but may reject it, in whole or in part, for good cause. This request should be in writing, and should state the reasons for the request. See § 7.33(f) for the address of the Departmental Consulting Archeologist.

§ 7.37 Civil penalty hearings procedures.

(a) Requests for hearings. Any person wishing to request a hearing on a notice of assessment of civil penalty, pursuant to § 7.15(g) of this part, may file a written, dated request for a hearing with the Hearing Division, Office of Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy Street, Arlington, Virginia 22203-1923. The respondent shall enclose a copy of the notice of violation and the notice of assessment. The request shall state the relief sought, the basis for challenging the facts used as the basis for charging the violation and fixing the assessment, and respondent's preference as to the place and date for a hearing. A copy of the request shall be served upon the Solicitor of the Department of the Interior personally or by registered or certified mail (return receipt requested), at the address specified in the notice of assessment. Hearings shall be conducted in accordance with 43 CFR part 4, subparts A and B.

(b) Waiver of right to a hearing. Failure to file a written request for a hearing within 45 days of the date of service of a notice of assessment shall be deemed a waiver of the right to a hearing.

(c) Commencement of hearing procedures. Upon receipt of a request for a hearing, the Hearing Division shall assign an administrative law judge to the case. Notice of assignment shall be given promptly to the parties, and thereafter, all pleadings, papers, and other documents in the proceeding shall be filed directly with the administrative law judge, with copies served on the opposing party.

(d) Appearance and practice. (1) Subject to the provisions of 43 CFR 1.3, the respondent may appear in person, by representative, or by counsel, and may participate fully in those proceedings. If respondent fails to appear and the administrative law judge determines such failure is without good cause, the administrative law judge may, in his/her discretion, determine that such failure shall constitute a waiver of the right to a hearing and consent to the making of a decision on the record made at the hearing.

(2) Departmental counsel, designated by the Solicitor of the Department, shall represent the Federal land manager in the proceedings. Upon notice to the Federal land manager of the assignment of an administrative law judge to the case, said counsel shall enter his/her appearance on behalf of the Federal land manager and shall file all petitions and correspondence exchanges by the Federal land manager and the respondent pursuant to § 7.15 of this part which shall become part of the hearing record. Thereafter, service upon the Federal land manager shall be made to his/her counsel.

(e) Hearing administration. (1) The administrative law judge shall have all powers accorded by law and necessary to preside over the parties and the proceedings and to make decisions in accordance with 5 U.S.C. 554-557.

(2) The transcript of testimony, the exhibits, and all papers, documents and requests filed in the proceedings, shall constitute the record for decision. The administrative law judge shall render a written decision upon the record, which shall set forth his/her findings of fact and conclusions of law, and the reasons and basis therefor, and an assessment of a penalty, if any.

(3) Unless a notice of appeal is filed in accordance with paragraph (f) of this section, the administrative law judge's decision shall constitute the final administrative determination of the Secretary in the matter and shall become effective 30 calendar days from the date of this decision.

(4) In any such hearing, the amount of civil penalty assessed shall be determined in accordance with this part, and shall not be limited by the amount assessed by the Federal land manager under § 7.15 of this part or any offer of mitigation or remission made by the Federal land manager.

(f) Appeal. (1) Either the respondent or the Federal land manager may appeal the decision of an administrative law judge by the filing of a “Notice of Appeal” with the Director, Office of Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy Street, Arlington, Virginia 22203-1923, within 30 calendar days of the date of the administrative law judge's decision. Such notice shall be accompanied by proof of service on the administrative law judge and the opposing party.

(2) Upon receipt of such a notice, the Director, Office of Hearings and Appeals, shall appoint an ad hoc appeals board to hear and decide an appeal. To the extent they are not inconsistent herewith, the provision of the Department of Hearings and Appeals Procedures in 43 CFR part 4, subparts A, B, and G shall apply to appeal proceedings under this subpart. The decision of the board on the appeal shall be in writing and shall become effective as the final administrative determination of the Secretary in the proceeding on the date it is rendered, unless otherwise specified therein.

(g) Report service. Copies of decisions in civil penalty proceedings instituted under the Act may be obtained by letter of request addressed to the Director, Office of Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy Street, Arlington, Virginia 22203-1923. Fees for this service shall be as established by the Director of that Office.

[52 FR 9168, Mar. 23, 1987, as amended at 67 FR 4368, Jan. 30, 2002]

§ 8.0 Acquisition of lands for reservoir projects.

In so far as permitted by law, it is the policy of the Departments of the Interior and of the Army to acquire, as a part of reservoir project construction, adequate interest in lands necessary for the realization of optimum values for all purposes including additional land areas to assure full realization of optimum present and future outdoor recreational and fish and wildlife potentials of each reservoir.

§ 8.1 Lands for reservoir construction and operation.

The fee title will be acquired to the following:

(a) Lands necessary for permanent structures.

(b) Lands below the maximum flowage line of the reservoir including lands below a selected freeboard where necessary to safeguard against the effects of saturation, wave action, and bank erosion and the permit induced surcharge operation.

(c) Lands needed to provide for public access to the maximum flowage line as described in paragraph (b) of this section, or for operation and maintenance of the project.

§ 8.2 Additional lands for correlative purposes.

The fee title will be acquired for the following:

(a) Such lands as are needed to meet present and future requirements for fish and wildlife as determined pursuant to the Fish and Wildlife Coordination Act.

(b) Such lands as are needed to meet present and future public requirements for outdoor recreation, as may be authorized by Congress.

§ 8.3 Easements.

Easements in lieu of fee title may be taken only for lands that meet all of the following conditions:

(a) Lands lying above the storage pool.

(b) Lands in remote portions of the project area.

(c) Lands determined to be of no substantial value for protection or enhancement of fish and wildlife resources, or for public outdoor recreation.

(d) It is to the financial advantage of the Government to take easements in lieu of fee title.

§ 8.4 Blocking out.

Blocking out will be accomplished in accordance with sound real estate practices, for example, on minor sectional subdivision lines; and normally land will not be acquired to avoid severance damage if the owner will waive such damage.

§ 8.5 Mineral rights.

Mineral, oil and gas rights will not be acquired except where the development thereof would interfere with project purposes, but mineral rights not acquired will be subordinated to the Government's right to regulate their development in a manner that will not interfere with the primary purposes of the project, including public access.

§ 8.6 Buildings.

Buildings for human occupancy as well as other structures which would interfere with the operation of the project for any project purpose will be prohibited on reservoir project lands.

§ 8.7 Interior deviations.

On Department of the Interior projects, a bureau director or secretarial officer may authorize acquisition of easements in lieu of fee title to property to allow reservoir inundation of lands if the acquisition meets a combined total of at least five conditions listed in § 8.3 and in this section:

(a) The reservoir was originally constructed before February 21, 1962.

(b) The current reservoir has utilized more than de minimis acquisition of easements for inundation.

(c) The acquisition of less than fee title is in the best interests of the United States.

[90 FR 4671, Jan. 16, 2025]

§ 9.1 What is the purpose of these regulations?

(a) The regulations in this part implement Executive Order 12372, “Intergovernmental Review of Federal Programs,” issued July 14, 1982 and amended on April 8, 1983. These regulations also implement applicable provisions of section 401 of the Intergovernmental Cooperation Act of 1968.

(b) These regulations are intended to foster an intergovernmental partnership and a strengthened Federalism by relying on state processes and on state, areawide, regional and local coordination for review of proposed federal financial assistance and direct federal development.

(c) These regulations are intended to aid the internal management of the Department, and are not intended to create any right or benefit enforceable at law by a party against the Department or its officers.

§ 9.2 What definitions apply to these regulations?

Department means the U.S. Department of the Interior.

Order means Executive Order 12372, issued July 14, 1982, and amended April 8, 1983 and titled “Intergovernmental Review of Federal Programs.”

Secretary means the Secretary of the U.S. Department of the Interior or an official or employee of the Department acting for the Secretary under a delegation of authority.

State means any of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust Territory of the Pacific Islands.

§ 9.3 What programs and activities of the Department are subject to these regulations?

(a) The Secretary publishes in the Federal Register a list of the Department's programs and activities that are subject to these regulations and a list of programs and activities that have existing consultation processes.

(b) With respect to programs and activities that a state chooses to cover, and that have existing consultation processes, the state must agree to adopt those existing processes.

§ 9.4 [Reserved]

§ 9.5 What is the Secretary's obligation with respect to Federal interagency coordination?

The Secretary, to the extent practicable, consults with and seeks advice from all other substantially affected federal departments and agencies in an effort to assure full coordination between such agencies and the Department regarding programs and activities covered under these regulations.

§ 9.6 What procedures apply to the selection of programs and activities under these regulations?

(a) A state may select any program or activity published in the Federal Register in accordance with § 9.3 of this part for intergovernmental review under these regulations. Each state, before selecting programs and activities, shall consult with local elected officials.

(b) Each state that adopts a process shall notify the Secretary of the Department's programs and activities selected for that process.

(c) A state may notify the Secretary of changes in its selections at any time. For each change, the state shall submit to the Secretary an assurance that the state has consulted with local elected officials regarding the change. The Department may establish deadlines by which states are required to inform the Secretary of changes in their program selections.

(d) The Secretary uses a state's process as soon as feasible, depending on individual programs and activities, after the Secretary is notified of its selections.

§ 9.7 How does the Secretary communicate with state and local officials concerning the Department's programs and activities?

(a) For those programs and activities covered by a state process under § 9.6, the Secretary, to the extent permitted by law:

(1) Uses the state process to determine views of state and local elected officials; and,

(2) Communicates with state and local elected officials, through the state process, as early in a program planning cycle as in reasonably feasible to explain specific plans and actions.

(b) The Secretary provides notice to directly affected state, areawide, regional, and local entities in a state of proposed federal financial assistance or direct federal development if:

(1) The state has not adopted a process under the Order; or

(2) The assistance or development involves a program or activity not selected for the state process.

This notice may be made by publication in the Federal Register or other appropriate means, which the Department in its discretion deems appropriate.

§ 9.8 How does the Secretary provide states an opportunity to comment on proposed federal financial assistance and direct federal development?

(a) Except in unusual circumstances, the Secretary gives state processes or directly affected state, areawide, regional and local officials and entities:

(1) At least 30 days from the date established by the Secretary to comment on proposed federal financial assistance in the form of noncompeting continuation awards; and

(2) At least 60 days from the date established by the Secretary to comment on proposed direct federal development or federal financial assistance other than noncompeting continuation awards.

(b) This section also applies to comments in cases in which the review, coordination, and communication with the Department have been delegated.

§ 9.9 How does the Secretary receive and respond to comments?

(a) The Secretary follows the procedures in § 9.10 if:

(1) A state office or official is designated to act as a single point of contact between a state process and all federal agencies, and

(2) That office or official transmits a state process recommendation for a program selected under § 9.6.

(b)(1) The single point of contact is not obligated to transmit comments from state, areawide, regional or local officials and entities where there is no state process recommendation.

(2) If a state process recommendation is transmitted by a single point of contact, all comments from state, areawide, regional, and local officials and entities that differ from it must also be transmitted.

(c) If a state has not established a process, or is unable to submit a state process recommendation, state, areawide, regional and local officials and entities may submit comments either to the applicant or to the Department.

(d) If a program or activity is not selected for a state process, state, areawide, regional and local officials and entities may submit comments either to the applicant or to the Department. In addition, if a state process recommendation for a nonselected program or activity is transmitted to the Department by a single point of contact, the Secretary follows the procedures of § 9.10 of this part.

(e) The Secretary considers comments which do not constitute a state process recommendation submitted under these regulations and for which the Secretary is not required to apply the procedures of § 9.10 of this part, when such comments are provided by a single point of contact, by the applicant, or directly to the Department by a commenting party.

§ 9.10 How does the Secretary make efforts to accommodate intergovernmental concerns?

(a) If a state process provides a state process recommendation to the Department through its single point of contact, the Secretary either:

(1) Accepts the recommendation;

(2) Reaches a mutually agreeable solution with the state process; or

(3) Provides the single point of contact with such written explanation of the decision, as the Secretary in his or her discretion deems appropriate. The Secretary may also supplement the written explanation by providing the explanation to the single point of contact by telephone, other telecommunication, or other means.

(b) In any explanation under paragraph (a)(3) of the section, the Secretary informs the single point of contact that:

(1) The Department will not implement its decision for at least ten days after the single point of contact receives the explanation; or

(2) The Secretary has reviewed the decision and determined that, because of unusual circumstances, the waiting period of at least ten days is not feasible.

(c) For purposes of computing the waiting period under paragraph (b)(1) of this section, a single point of contact is presumed to have received written notification 5 days after the date of mailing of such notification.

§ 9.11 What are the Secretary's obligations in interstate situations?

(a) The Secretary is responsible for:

(1) Identifying proposed federal financial assistance and direct Federal development that have an impact on interstate areas;

(2) Notifying appropriate officials and entities in states which have adopted a process and which select the Department's program or activity;

(3) Making efforts to identify and notify the affected state, areawide, regional, and local officials and entities in those states that have not adopted a process under the Order or do not select the Department's program or activity;

(4) Responding pursuant to § 9.10 of this part if the Secretary receives a recommendation from a designated areawide agency transmitted by a single point of contact, in cases in which the review, coordination, and communication with the Department have been delegated.

(b) The Secretary uses the procedures in § 9.10 if a state process provides a state process recommendation to the Department through a single point of contact.

§ 9.12 How may a state simplify, consolidate, or substitute federally required state plans?

(a) As used in this section:

(1) Simplify means that a state may develop its own format, choose its own submission date, and select the planning period for a state plan.

(2) Consolidate means that a state may meet statutory and regulatory requirements by combining two or more plans into one document and that the state can select the format, submission date, and planning period for the consolidated plan.

(3) Substitute means that a state may use a plan or other document that it has developed for its own purposes to meet Federal requirements.

(b) If not inconsistent with law, a state may decide to try to simplify, consolidate, or substitute Federally required state plans without prior approval by the Secretary.

(c) The Secretary reviews each state plan that a state has simplified, consolidated, or substituted and accepts the plan only if its contents meet Federal requirements.

§ 9.13 May the Secretary waive any provision of these regulations?

In an emergency, the Secretary may waive any provision of these regulations.

§ 10.1 Introduction.

(a) Purpose. The Native American Graves Protection and Repatriation Act (Act) of November 16, 1990, recognizes the rights of lineal descendants, Indian Tribes, and Native Hawaiian organizations in Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony.

(1) The Act and these regulations provide systematic processes to:

(i) Protect Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony; and

(ii) Restore Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony to lineal descendants, Indian Tribes, and Native Hawaiian organizations.

(2) The Act and these regulations require consultation with lineal descendants, Indian Tribes, and Native Hawaiian organizations.

(3) Consistent with the Act, these regulations require deference to the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations.

(b) Applicability. These regulations pertain to Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony.

(1) These regulations require certain actions by:

(i) Any institution or State or local government agency (including any institution of higher learning) within the United States that receives Federal funds and has possession or control of a holding or collection;

(ii) Any Federal agency that has possession or control of a holding or collection or that has responsibilities on Federal or Tribal lands;

(iii) Indian Tribes on Tribal lands in Alaska and the continental United States; and

(iv) The State of Hawai`i Department of Hawaiian Home Lands (DHHL) on Tribal lands in Hawai`i.

(2) Lineal descendants, Indian Tribes, and Native Hawaiian organization may, but are not required to, consult, submit claims for disposition, or submit requests for repatriation.

(c) Accountability. These regulations are applicable to and binding on all museums, Federal agencies, and DHHL for implementing the systematic processes for disposition and repatriation of human remains or cultural items under this part.

(d) Duty of care. These regulations require a museum, Federal agency, or DHHL to care for, safeguard, and preserve any human remains or cultural items in its custody or in its possession or control. A museum, Federal agency, or DHHL must:

(1) Consult with lineal descendants, Indian Tribes, or Native Hawaiian organizations on the appropriate storage, treatment, or handling of human remains or cultural items;

(2) Make a reasonable and good-faith effort to incorporate and accommodate the Native American traditional knowledge of lineal descendants, Indian Tribes, or Native Hawaiian organizations in the storage, treatment, or handling of human remains or cultural items; and

(3) Obtain free, prior, and informed consent from lineal descendants, Indian Tribes, or Native Hawaiian organizations prior to allowing any exhibition of, access to, or research on human remains or cultural items. Research includes, but is not limited to, any study, analysis, examination, or other means of acquiring or preserving information about human remains or cultural items. Research of any kind on human remains or cultural items is not required by the Act or these regulations.

(e) Delivery of written documents. These regulations require written documents to be sent, such as requests for repatriation, claims for disposition, invitations to consult, or notices for publication.

(1) Written documents must be sent by one of the following:

(i) Email, with proof of receipt,

(ii) Personal delivery with proof of delivery date,

(iii) Private delivery service with proof of date sent, or

(iv) Certified mail.

(2) Communication to the Manager, National NAGPRA Program, must be sent electronically to nagpra_info@nps.gov. If electronic submission is not possible, physical delivery may be sent to 1849 C Street NW, Mail Stop 2343, Washington, DC 20240. If either of these addresses change, a notice with the new address must be published in the Federal Register no later than 7 days after the change.

(f) Deadlines. These regulations require certain actions be taken by a specific date. Unless stated otherwise in these regulations:

(1) Days mean calendar days. If a deadline falls on a Saturday, Sunday, or Federal holiday, the action is deemed timely if taken no later than the next calendar day that is not a Saturday, Sunday, or Federal holiday. For purposes of this part, Federal holidays include any days during which the Federal government is closed because of a Federal holiday, lapse in appropriations, or other reasons.

(2) Written documents are deemed timely based on the date sent, not the date received.

(3) Parties sending or receiving written documents under these regulations must document the date sent or date received, as appropriate, when these regulations require those parties to act based on the date sent or date received.

(g) Failure to make a claim or a request. Failure to make a claim for disposition or a request for repatriation before disposition, repatriation, transfer, or reinterment of human remains or cultural items under this part is deemed an irrevocable waiver of any right to make a claim or a request for the human remains or cultural items once disposition, repatriation, transfer, or reinterment of the human remains or cultural items has occurred.

(h) Judicial jurisdiction. The United States district courts have jurisdiction over any action by any person alleging a violation of the Act or this part.

(i) Final agency action. For purposes of the Administrative Procedure Act (5 U.S.C. 704), any of the following actions by a Federal agency constitutes a final agency action under this part:

(1) A final determination making the Act or this part inapplicable;

(2) A final denial of a claim for disposition or a request for repatriation; and

(3) A final disposition or repatriation determination.

(j) Information collection. The information collection requirements contained in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned control number 1024-0144. A Federal agency may not conduct or sponsor, and you are not required to respond to, the collection of information under this part unless the Federal agency provides a currently valid OMB control number.

(k) Severability. If a court holds any provisions of the regulations in this part or their applicability to any person or circumstances invalid, the remainder of the regulations and their applicability to other people or circumstances are intended to continue to operate to the fullest possible extent.

[88 FR 86518, Dec. 13, 2023, as amended at 90 FR 4673, Jan. 16, 2025]

§ 10.2 Definitions for this part.

Act means the Native American Graves Protection and Repatriation Act.

Ahupua'a (singular and plural) means a traditional land division in Hawai'i usually extending from the uplands to the sea.

Appropriate official means any representative authorized by a delegation of authority within an Indian Tribe, Native Hawaiian organization, Federal agency, or Department of Hawaiian Home Lands (DHHL) that has responsibility for human remains or cultural items on Federal or Tribal lands.

ARPA means the Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 470aa-mm) and the relevant Federal agency regulations implementing that statute.

ARPA Indian lands means lands of Indian Tribes, or individual Indians, which are either held in trust by the United States Government or subject to a restriction against alienation imposed by the United States Government, except for any subsurface interests in lands not owned or controlled by an Indian Tribe or an individual Indian.

ARPA Public lands means lands owned and administered by the United States Government as part of:

(1) The national park system;

(2) The national wildlife refuge system;

(3) The national forest system; and

(4) All other lands the fee title to which is held by the United States Government, other than lands on the Outer Continental Shelf and lands which are under the jurisdiction of the Smithsonian Institution.

Assistant Secretary means the official of the Department of the Interior designated by the Secretary of the Interior as responsible for exercising the Secretary of the Interior's authority under the Act.

Consultation or consult means the exchange of information, open discussion, and joint deliberations made between all parties in good-faith and in order to:

(1) Seek, discuss, and consider the views of all parties;

(2) Strive for consensus, agreement, or mutually acceptable alternatives; and

(3) Enable meaningful consideration of the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations.

Cultural affiliation means there is a reasonable connection between human remains or cultural items and an Indian Tribe or Native Hawaiian organization based on a relationship of shared group identity. Cultural affiliation may be identified clearly by the information available or reasonably by the geographical location or acquisition history of the human remains or cultural items.

Cultural items means a funerary object, sacred object, or object of cultural patrimony according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization.

Custody means having an obligation to care for the object or item but not a sufficient interest in the object or item to constitute possession or control. In general, custody through a loan, lease, license, bailment, or other similar arrangement is not a sufficient interest to constitute possession or control, which resides with the loaning, leasing, licensing, bailing, or otherwise transferring museum or Federal agency.

Discovery means exposing, finding, or removing human remains or cultural items whether intentionally or inadvertently on Federal or Tribal lands without a written authorization for an excavation under § 10.6 of this part.

Disposition means an appropriate official recognizes a lineal descendant, Indian Tribe, or Native Hawaiian organization has ownership or control of human remains or cultural items removed from Federal or Tribal lands.

Excavation means intentionally exposing, finding, or removing human remains or cultural items on Federal or Tribal lands with a written authorization under § 10.6 of this part.

Federal agency means any department, agency, or instrumentality of the United States Government. This term does not include the Smithsonian Institution.

Federal lands means any lands other than Tribal lands that are controlled or owned by the United States Government. For purposes of this definition, control refers to lands not owned by the United States Government, but in which the United States Government has a sufficient legal interest to permit it to apply these regulations without abrogating a person's existing legal rights. Whether the United States Government has a sufficient legal interest to control lands it does not own is a legal determination that a Federal agency must make on a case-by-case basis. Federal lands include:

(1) Any lands selected by, but not yet conveyed to, an Alaska Native Corporation organized under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.);

(2) Any lands other than Tribal lands that are held by the United States Government in trust for an individual Indian or lands owned by an individual Indian and subject to a restriction on alienation by the United States Government; and

(3) Any lands subject to a statutory restriction, lease, easement, agreement, or similar arrangement containing terms that grant to the United States Government indicia of control over those lands.

Funerary object means any object reasonably believed to have been placed intentionally with or near human remains. A funerary object is any object connected, either at the time of death or later, to a death rite or ceremony of a Native American culture according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization. This term does not include any object returned or distributed to living persons according to traditional custom after a death rite or ceremony. Funerary objects are either associated funerary objects or unassociated funerary objects.

(1) Associated funerary object means any funerary object related to human remains that were removed and the location of the human remains is known. Any object made exclusively for burial purposes or to contain human remains is always an associated funerary object regardless of the physical location or existence of any related human remains.

(2) Unassociated funerary object means any funerary object that is not an associated funerary object and is identified by a preponderance of the evidence as one or more of the following:

(i) Related to human remains but the human remains were not removed, or the location of the human remains is unknown,

(ii) Related to specific individuals or families,

(iii) Removed from a specific burial site of an individual or individuals with cultural affiliation to an Indian Tribe or Native Hawaiian organization, or

(iv) Removed from a specific area where a burial site of an individual or individuals with cultural affiliation to an Indian Tribe or Native Hawaiian organization is known to have existed, but the burial site is no longer extant.

Holding or collection means an accumulation of one or more objects, items, or human remains for any temporary or permanent purpose, including:

(1) Academic interest;

(2) Accession;

(3) Catalog;

(4) Comparison;

(5) Conservation;

(6) Education;

(7) Examination;

(8) Exhibition;

(9) Forensic purposes;

(10) Interpretation;

(11) Preservation;

(12) Public benefit;

(13) Research;

(14) Scientific interest; or

(15) Study.

Human remains means any physical part of the body of a Native American individual. This term does not include human remains to which a museum or Federal agency can prove it has a right of possession.

(1) Human remains reasonably believed to be comingled with other materials (such as soil or faunal remains) may be treated as human remains.

(2) Human remains incorporated into a funerary object, sacred object, or object of cultural patrimony are considered part of the cultural items rather than human remains.

(3) Human remains incorporated into an object or item that is not a funerary object, sacred object, or object of cultural patrimony are considered human remains.

Indian Tribe means any Tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)), recognized as eligible for the special programs and services provided by the United States Government to Indians because of their status as Indians by its inclusion on the list of recognized Indian Tribes published by the Secretary of the Interior under the Act of November 2, 1994 (25 U.S.C. 5131).

Inventory means a simple itemized list of any human remains and associated funerary objects in a holding or collection that incorporates the results of consultation and makes determinations about cultural affiliation.

Lineal descendant means:

(1) A living person tracing ancestry, either by means of traditional Native American kinship systems, or by the common-law system of descent, to a known individual whose human remains, funerary objects, or sacred objects are subject to this part; or

(2) A living person tracing ancestry, either by means of traditional Native American kinship systems, or by the common-law system of descent, to all the known individuals represented by comingled human remains (example: the human remains of two individuals have been comingled, and a living person can trace ancestry directly to both of the deceased individuals).

Manager, National NAGPRA Program, means the official of the Department of the Interior designated by the Secretary of the Interior as responsible for administration of the Act and this part.

Museum means any institution or State or local government agency (including any institution of higher learning) that has possession or control of human remains or cultural items and receives Federal funds. The term does not include the Smithsonian Institution.

Native American means of, or relating to, a Tribe, people, or culture that is indigenous to the United States. To be considered Native American under this part, human remains or cultural items must bear some relationship to a Tribe, people, or culture indigenous to the United States.

(1) A Tribe is an Indian Tribe.

(2) A people comprise the entire body of persons who constitute a community, Tribe, nation, or other group by virtue of a common culture, history, religion, language, race, ethnicity, or similar feature. The Native Hawaiian Community is a “people.”

(3) A culture comprises the characteristic features of everyday existence shared by people in a place or time.

Native American traditional knowledge means knowledge, philosophies, beliefs, traditions, skills, and practices that are developed, embedded, and often safeguarded by or confidential to individual Native Americans, Indian Tribes, or the Native Hawaiian Community. Native American traditional knowledge contextualizes relationships between and among people, the places they inhabit, and the broader world around them, covering a wide variety of information, including, but not limited to, cultural, ecological, linguistic, religious, scientific, societal, spiritual, and technical knowledge. Native American traditional knowledge may be, but is not required to be, developed, sustained, and passed through time, often forming part of a cultural or spiritual identity. Native American traditional knowledge is expert opinion.

Native Hawaiian organization means any organization that:

(1) Serves and represents the interests of Native Hawaiians, who are descendants of the indigenous people who, before 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawai`i;

(2) Has as a primary and stated purpose the provision of services to Native Hawaiians; and

(3) Has expertise in Native Hawaiian affairs, and includes but is not limited to:

(i) The Office of Hawaiian Affairs established by the constitution of the State of Hawai`I;

(ii) Native Hawaiian organizations (including `ohana) who are registered with the Secretary of the Interior's Office of Native Hawaiian Relations; and

(iii) Hawaiian Homes Commission Act (HHCA) Beneficiary Associations and Homestead Associations as defined under 43 CFR 47.10.

Object of cultural patrimony means an object that has ongoing historical, traditional, or cultural importance central to a Native American group, including any constituent sub-group (such as a band, clan, lineage, ceremonial society, or other subdivision), according to the Native American traditional knowledge of an Indian Tribe or Native Hawaiian organization. An object of cultural patrimony may have been entrusted to a caretaker, along with the authority to confer that responsibility to another caretaker. The object must be reasonably identified as being of such importance central to the group that it:

(1) Cannot or could not be alienated, appropriated, or conveyed by any person, including its caretaker, regardless of whether the person is a member of the group, and

(2) Must have been considered inalienable by the group at the time the object was separated from the group.

'Ohana (singular and plural) means a group of people who are not asserting that they are lineal descendants but comprise a Native Hawaiian organization whose members have a familial or kinship relationship with each other.

Person means:

(1) An individual, partnership, corporation, trust, institution, association, or any other private entity; or

(2) Any representative, official, employee, agent, department, or instrumentality of the United States Government or of any Indian Tribe or Native Hawaiian organization, or of any State or subdivision of a State.

Possession or control means having a sufficient interest in an object or item to independently direct, manage, oversee, or restrict the use of the object or item. A museum or Federal agency may have possession or control regardless of the physical location of the object or item. In general, custody through a loan, lease, license, bailment, or other similar arrangement is not a sufficient interest to constitute possession or control, which resides with the loaning, leasing, licensing, bailing, or otherwise transferring museum or Federal agency.

Receives Federal funds means an institution or State or local government agency (including an institution of higher learning) directly or indirectly receives Federal financial assistance after November 16, 1990, including any grant; cooperative agreement; loan; contract; use of Federal facilities, property, or services; or other arrangement involving the transfer of anything of value for a public purpose authorized by a law of the United States Government. This term includes Federal financial assistance provided for any purpose that is received by a larger entity of which the institution or agency is a part. For example, if an institution or agency is a part of a State or local government or a private university, and the State or local government or private university receives Federal financial assistance for any purpose, then the institution or agency receives Federal funds for the purpose of these regulations. This term does not include procurement of property or services by and for the direct benefit or use of the United States Government or Federal payments that are compensatory.

Repatriation means a museum or Federal agency relinquishes possession or control of human remains or cultural items in a holding or collection to a lineal descendant, Indian Tribe, or Native Hawaiian organization.

Review Committee means the advisory committee established under the Act.

Right of possession means possession or control obtained with the voluntary consent of a person or group that had authority of alienation. Right of possession is given through the original acquisition of:

(1) An unassociated funerary object, a sacred object, or an object of cultural patrimony from an Indian Tribe or Native Hawaiian organization with the voluntary consent of a person or group with authority to alienate the object; or

(2) Human remains or associated funerary objects which were exhumed, removed, or otherwise obtained with full knowledge and consent of the next of kin or, when no next of kin is ascertainable, the official governing body of the appropriate Indian Tribe or Native Hawaiian organization.

Sacred object means a specific ceremonial object needed by a traditional religious leader for present-day adherents to practice traditional Native American religion, according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization. While many items might be imbued with sacredness in a culture, this term is specifically limited to an object needed for the observance or renewal of a Native American religious ceremony.

Summary means a written description of a holding or collection that may contain an unassociated funerary object, sacred object, or object of cultural patrimony.

Traditional religious leader means a person needed to practice traditional Native American religion, according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization.

Tribal lands means:

(1) All lands that are within the exterior boundaries of any Indian reservation;

(2) All lands that are dependent Indian communities; and

(3) All lands administered by the Department of Hawaiian Home Lands (DHHL) under the Hawaiian Homes Commission Act of 1920 (HHCA, 42 Stat. 108) and Section 4 of the Act to Provide for the Admission of the State of Hawai'i into the Union (73 Stat. 4), including “available lands” and “Hawaiian home lands.”

Tribal lands of an NHO means Tribal lands in Hawai'i that are under the stewardship of a Native Hawaiian organization through a lease or license issued under HHCA section 204(a)(2), second paragraph, second proviso, or section 207(c)(1)(B).

Unclaimed human remains or cultural items means human remains or cultural items removed from Federal or Tribal lands whose disposition has not occurred under this part.

United States means the 50 States and the District of Columbia.

§ 10.3 Determining cultural affiliation.

Throughout this part, cultural affiliation ensures that disposition or repatriation of human remains or cultural items is based on a reasonable connection with an Indian Tribe or Native Hawaiian organization. Cultural affiliation must be determined by the information available, including information provided by an Indian Tribe or Native Hawaiian organization. Cultural affiliation does not require exhaustive studies, additional research, or continuity through time. Cultural affiliation is not precluded solely because of reasonable gaps in the information available.

(a) Step 1: Collect information available. A museum, Federal agency, or DHHL must collect information it holds about human remains or cultural items, including, but not limited to, records, catalogues, relevant studies, and other pertinent data. Additional information may be provided by an Indian Tribe or Native Hawaiian organization.

(1) One or more of the following equally relevant types of information about human remains or cultural items may be available:

(i) Anthropological;

(ii) Archaeological;

(iii) Biological;

(iv) Folkloric;

(v) Geographical;

(vi) Historical;

(vii) Kinship;

(viii) Linguistic;

(ix) Oral Traditional; or

(x) Other relevant information or expert opinion, including Native American traditional knowledge.

(2) A lack of any type of information does not preclude a determination of cultural affiliation. One type of information may be used to determine cultural affiliation when no other relevant information is available.

(b) Step 2: Identify the required criteria. Using the information available, including information provided by an Indian Tribe or Native Hawaiian organization, a museum, Federal agency, or DHHL must identify the three criteria for cultural affiliation.

(1) Each of the following criteria must be identified in the information available:

(i) One or more earlier groups connected to the human remains or cultural items;

(ii) One or more Indian Tribes or Native Hawaiian organizations; and

(iii) A relationship of shared group identity between the earlier group and the Indian Tribe or Native Hawaiian organization that can be reasonably traced through time.

(2) One type of information may be sufficient to reasonably identify the required criteria when no other relevant information is available. For example, geographical information about human remains or cultural items may identify:

(i) The earlier groups of people connected to a geographical location;

(ii) The Indian Tribe or Native Hawaiian organization connected to a geographical location; and

(iii) A relationship of shared group identity between the two traced through time.

(c) Step 3: Make a determination of cultural affiliation. A museum, Federal agency, or DHHL must make a written record of its determination of cultural affiliation that briefly describes the information available under paragraph (a) of this section and the criteria identified under paragraph (b) of this section.

(1) The determination must be one of the following:

(i) Cultural affiliation is identified clearly by the information available,

(ii) Cultural affiliation is identified reasonably by the geographical location or acquisition history, or

(iii) Cultural affiliation cannot be clearly or reasonably identified.

(2) Cultural affiliation of human remains or cultural items may be with more than one Indian Tribe or Native Hawaiian organization. For example, an identifiable earlier group may have a relationship to more than one Indian Tribe or Native Hawaiian organization, or two or more earlier groups may be connected to human remains or cultural items and a relationship may be reasonably traced to two or more Indian Tribes or Native Hawaiian organizations that do not themselves have a shared group identity. In Hawai`i, two or more Native Hawaiian organizations may be part of the same Native Hawaiian Community, but may have distinct beliefs, protocols, and other cultural practices passed down through different familial, cultural, and geographical lineages.

(d) Joint disposition or repatriation. When a museum, Federal agency, or DHHL determines cultural affiliation of human remains or cultural items with two or more Indian Tribes or Native Hawaiian organizations, any Indian Tribe or Native Hawaiian organization with cultural affiliation may submit a claim for disposition or a request for repatriation. Any Indian Tribe or Native Hawaiian organization with cultural affiliation may agree to joint disposition or joint repatriation of the human remains or cultural items. Claims or requests for joint disposition or joint repatriation of human remains or cultural items are considered a single claim or request and not competing claims or requests. A single claim or request may be on behalf of multiple Indian Tribes or Native Hawaiian organizations. Disposition or repatriation statements required under this part must identify all joint claimants or requestors.

(e) Competing claims or requests. When there are competing claims for disposition or competing requests for repatriation of human remains or cultural items, a museum, Federal agency, or DHHL must determine the Indian Tribe or Native Hawaiian organization with the closest cultural affiliation. In support of a competing claim or request, each claimant or requestor may provide information to show by a preponderance of the evidence that it has a stronger relationship of shared group identity to the human remains or cultural items.

(1) The Indian Tribe with the closest cultural affiliation, in the following order, is:

(i) The Indian Tribe whose cultural affiliation is clearly identified by the information available.

(ii) The Indian Tribe whose cultural affiliation is reasonably identified by the geographical location and acquisition history of the human remains or cultural items.

(iii) The Indian Tribe whose cultural affiliation is reasonably identified by only the geographical location of the human remains or cultural items.

(iv) The Indian Tribe whose cultural affiliation is reasonably identified by only the acquisition history of the human remains or cultural items.

(2) The Native Hawaiian organization with the closest cultural affiliation, in the following order, is:

(i) The 'ohana that can trace an unbroken connection of named individuals to one or more of the human remains or cultural items, but not necessarily to all the human remains or cultural items from a specific site.

(ii) The 'ohana that can trace a relationship to the ahupua`a where the human remains or cultural items were removed and a direct kinship to one or more of the human remains or cultural items, but not necessarily an unbroken connection of named individuals.

(iii) The Native Hawaiian organization with cultural affiliation only to the earlier occupants of the ahupua`a where the human remains or cultural items were removed, and not to the earlier occupants of any other ahupua`a.

(iv) The Native Hawaiian organization with cultural affiliation to either:

(A) The earlier occupants of the ahupua`a where the human remains or cultural items were removed, as well as to the earlier occupants of other ahupua`a on the same island, but not to the earlier occupants of all ahupua`a on that island, or to the earlier occupants of any other island of the Hawaiian archipelago; or

(B) The earlier occupants of another island who accessed the ahupua`a where the human remains or cultural items were removed for traditional or customary practices and were buried there.

(v) The Native Hawaiian organization with cultural affiliation to the earlier occupants of all ahupua`a on the island where the human remains or cultural items were removed, but not to the earlier occupants of any other island of the Hawaiian archipelago.

(vi) The Native Hawaiian organization with cultural affiliation to the earlier occupants of more than one island in the Hawaiian archipelago that has been in continuous existence from a date prior to 1893.

(vii) Any other Native Hawaiian organization with cultural affiliation.

§ 10.4 General.

Each Indian Tribe, Native Hawaiian organization, Federal agency, and the State of Hawai`i Department of Hawaiian Home Lands (DHHL) that has responsibility for Federal or Tribal lands must comply with the requirements of this subpart. Any permit, license, lease, right-of-way, or other authorization issued for an activity on Federal or Tribal lands must include a requirement to report any discovery of human remains or cultural items under § 10.5 of this part. Prior to any excavation of human remains or cultural items on Federal or Tribal lands, a written authorization is required under § 10.6 of this part. When human remains or cultural items are removed from Federal or Tribal lands, a disposition statement is required under § 10.7 of this part.

(a) Appropriate official. To ensure compliance with the Act, the Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL that has responsibility for Federal or Tribal lands must designate one or more appropriate officials to carry out the requirements of this subpart, as shown in table 1 of this paragraph (a).

Table 1 to § 10.4(a)—Appropriate Official

For human remains or cultural items on . . . | the appropriate official is a representative for the . . .

Federal lands in the United States | Federal agency with primary management authority.

Tribal lands in Alaska and the continental United States | Indian Tribe.

Tribal lands in Hawai'i | DHHL.

Tribal lands of an NHO | DHHL or a Native Hawaiian organization that has agreed in writing to be responsible for its Tribal lands.

(b) Plan of action. When a Federal agency or DHHL has responsibility for a discovery or excavation on Federal or Tribal lands, a plan of action is required. A plan of action is not required when an Indian Tribe or Native Hawaiian organization has responsibility for a discovery or excavation on Tribal lands. The Federal agency or DHHL must prepare a plan of action before any planned activity that is likely to result in a discovery or excavation of human remains or cultural items. The likelihood of a discovery or excavation must be based on previous studies, discoveries, or excavations in the general proximity of the planned activity and in consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization. If not part of a planned activity, a plan of action is required after a discovery of human remains or cultural items. After consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization, the Federal agency or DHHL must approve and sign a plan of action.

(1) Step 1—Initiate consultation. Before a planned activity or after a discovery, the Federal agency or DHHL must identify consulting parties and invite the parties to consult.

(i) Consulting parties are any lineal descendant and any Indian Tribe or Native Hawaiian organization with potential cultural affiliation.

(ii) An invitation to consult must be in writing and must include:

(A) A description of the planned activity or discovery and its geographical location by county and State;

(B) The names of all consulting parties; and

(C) A proposed timeline and method for consultation.

(2) Step 2—Consult on the plan of action. The Federal agency or DHHL must respond to any consulting party, regardless of whether the party has received an invitation to consult. Consultation on the plan of action may continue until the Federal agency or DHHL sends a disposition statement to a claimant under § 10.7(c)(5) of this subpart.

(i) In response to a consulting party, the Federal agency or DHHL must ask for the following information, if not already provided:

(A) Preferences on the proposed timeline and method for consultation; and

(B) The name, phone number, email address, or mailing address for any authorized representative, traditional religious leader, and known lineal descendant who may participate in consultation.

(ii) Consultation must address the content of the plan of action under paragraph (b)(3) of this section.

(iii) The Federal agency or DHHL must prepare a record of consultation that describes the concurrence, disagreement, or nonresponse of the consulting parties to the content of the plan of action.

(3) Step 3—Approve and sign the plan of action. Before a planned activity or after a discovery, the Federal agency or DHHL must approve and sign a plan of action and must provide a copy to all consulting parties. At a minimum, the written plan of action must include:

(i) A description of the planned activity or discovery and its geographical location by county and State;

(ii) A list of all consulting parties under paragraph (b)(1) of this section;

(iii) A record of consultation under paragraph (b)(2) of this section;

(iv) The preference of consulting parties for:

(A) Stabilizing, securing, and covering human remains or cultural items in situ, or

(B) Protecting, securing, and relocating human remains or cultural items, if removed;

(v) The duty of care under § 10.1(d) for any human remains or cultural items; and

(vi) The timeline and method for:

(A) Informing all consulting parties of a discovery;

(B) Evaluating the potential need for an excavation; and

(C) Completing disposition, to include publication of a notice of intended disposition, under § 10.7 of this part.

(c) Comprehensive agreement. A Federal agency or DHHL may develop a written comprehensive agreement for all land managing activities on Federal or Tribal lands, or portions thereof, under its responsibility. The written comprehensive agreement must:

(1) Be developed in consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization identified under paragraph (b)(1) of this section;

(2) Include, at minimum, a plan of action under paragraph (b)(3) of this section;

(3) Be consented to by a majority of consulting parties under paragraph (b)(2) of this section. Evidence of consent means the authorized representative's signature on the agreement or by official correspondence to the Federal agency or DHHL; and

(4) Be signed by the Federal agency or DHHL.

(d) Federal agency coordination with other laws. To manage compliance with the Act, a Federal agency may coordinate its responsibility under this subpart with its responsibilities under other relevant Federal laws. Compliance with this subpart does not relieve a Federal agency of the responsibility for compliance with the National Historic Preservation Act (54 U.S.C. 306108, commonly known as Section 106) or the Archeological and Historic Preservation Act (54 U.S.C. 312501-312508).

§ 10.5 Discovery.

When a discovery of human remains or cultural items on Federal or Tribal lands occurs, any person who knows or has reason to know of the discovery must inform the appropriate official for the Indian Tribe, Native Hawaiian organization, Federal agency, or DHHL and the additional point of contact. The appropriate official must respond to a discovery and, if applicable, certify when an activity may resume.

(a) Report any discovery. Any person who knows or has reason to know of a discovery of human remains or cultural items on Federal or Tribal lands must:

(1) Immediately report the discovery in person or by telephone to the appropriate official and any additional point of contact shown in table 1 of this paragraph (a).

Table 1 to § 10.5(a)(1)—Report a Discovery on Federal or Tribal Lands

Where the discovery is on . . . | the appropriate official is the representative for the . . . | and the additional point of contact is the . . .

Federal lands in the United States * | Federal agency with primary management authority | Any Indian Tribe or Native Hawaiian organization with potential cultural affiliation, if known.

Tribal lands in Alaska and the continental United States | Indian Tribe | Bureau of Indian Affairs or the Federal agency with primary management authority, if any.

Tribal lands in Hawai'i | DHHL | Any Native Hawaiian organization with potential cultural affiliation, if known.

* Federal lands in Alaska selected but not yet conveyed under the Alaska Native Claims Settlement Act (ANCSA, 43 U.S.C. 1601) | Bureau of Land Management or Federal agency with primary management authority | Alaska Native Corporation organized under ANCSA.

(2) Make a reasonable effort to secure and protect the human remains or cultural items, including, as appropriate, stabilizing or covering the human remains or cultural items; and

(3) No later than 24 hours after the discovery, send written documentation of the discovery to the appropriate official and the additional point of contact shown in Table 1 to paragraph (a)(1) of this section stating:

(i) The geographical location by county and State;

(ii) The contents of the discovery; and

(iii) The steps taken to secure and protect the human remains or cultural items.

(b) Cease any nearby activity. If a discovery is related to an activity (including but not limited to construction, mining, logging, or agriculture), the person responsible for the activity must:

(1) Immediately stop any activity that could threaten the discovery;

(2) Report the discovery according to paragraph (a) of this section; and

(3) In the written documentation of the discovery required under paragraph (a)(3) of this section include:

(i) The related activity and any potential threats to the discovery; and

(ii) Confirmation that all activity around the discovery has stopped and must not resume until the date in a written certification issued under paragraph (e) of this section.

(c) Respond to a discovery. No later than three days after receiving written documentation of a discovery, the appropriate official must respond to a discovery. The appropriate official must comply with the requirements of this section immediately upon learning of the discovery even if the discovery has not been properly reported.

(1) The appropriate official must make a reasonable effort to:

(i) Secure and protect the human remains or cultural items;

(ii) Verify that any activity around the discovery has stopped; and

(iii) Notify the additional point of contact shown in table 1 to paragraph (a)(1) of this section.

(2) On Tribal lands in Alaska and the continental United States, the Indian Tribe may delegate its responsibility for the discovery to the Bureau of Indian Affairs or the Federal agency with primary management authority. If both the Federal agency and the Indian Tribe consent in writing, the Bureau of Indian Affairs or the Federal agency with primary management authority is responsible for completing the requirements in paragraphs (d) and (e) of this section.

(3) On Tribal lands of an NHO, the Native Hawaiian organization may agree in writing to be responsible for discoveries on its Tribal lands and then must respond to any discovery under this paragraph. If the Native Hawaiian organization has not agreed in writing to be responsible for discoveries, DHHL is responsible for completing the requirements in paragraph (d) and (e) of this section for any discoveries on those Tribal lands of an NHO.

(d) Approve and sign a plan of action. When a Federal agency or DHHL has responsibility for a discovery on Federal or Tribal lands, a plan of action is required. A plan of action is not required when an Indian Tribe or Native Hawaiian organization has responsibility for a discovery on Tribal lands. The Federal agency or DHHL must carry out the plan of action for any human remains or cultural items that are removed.

(1) No later than 30 days after receiving written documentation of a discovery, the Federal agency or DHHL, in consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization, must approve and sign a plan of action under § 10.4(b).

(2) This requirement does not apply if, before receiving written documentation of the discovery, the Federal agency or DHHL signed:

(i) A plan of action under § 10.4(b); or

(ii) A comprehensive agreement under § 10.4(c).

(e) Certify when an activity may resume. No later than 30 days after receiving written documentation of a discovery, the appropriate official must send a written certification if the discovery is related to an activity (including but not limited to construction, mining, logging, or agriculture). Written certification must be sent to the person responsible for the activity and the additional point of contact shown in table 1 to paragraph (a)(1) of this section. The written certification must provide:

(1) A copy of the signed plan of action or comprehensive agreement with redaction of any confidential or sensitive information;

(2) Instructions for protecting, securing, stabilizing, or covering the human remains or cultural items, if appropriate; and

(3) The date (no later than 30 days after the date of the written certification) on which lawful activity may resume around the discovery.

§ 10.6 Excavation.

When an excavation of human remains or cultural items on Federal or Tribal lands is needed, the appropriate official must comply with this section when authorizing the excavation. A permit under Section 4 of ARPA (16 U.S.C. 470cc) is required when the excavation is on Federal or Tribal lands that are also ARPA Indian lands or ARPA Public lands, and there is no applicable permit exception or exemption under the ARPA uniform regulations at 18 CFR part 1312, 32 CFR part 229, 36 CFR part 296, or 43 CFR part 7. When the excavation is on Federal or Tribal lands that are not ARPA Indian lands or ARPA Public lands, an equivalent permit from the relevant jurisdiction is required, if applicable.

(a) On Tribal lands. Before an excavation of human remains or cultural items may occur, the Indian Tribe or Native Hawaiian organization must consent in writing by providing a written authorization for the excavation.

(1) At minimum, the written authorization must document:

(i) The reasonable steps taken to evaluate the potential need for an excavation of human remains or cultural items; and

(ii) Any permit that the Indian Tribe or Native Hawaiian organization legally requires.

(2) On Tribal lands in Alaska and the continental United States, the Indian Tribe may delegate its responsibility for authorizing the excavation to the Bureau of Indian Affairs or the Federal agency with primary management authority. If both the Federal agency and the Indian Tribe consent in writing, the Bureau of Indian Affairs or the Federal agency with primary management authority is responsible for completing the requirements in paragraph (b) of this section.

(3) On Tribal lands of an NHO, the Native Hawaiian organization may agree in writing to be responsible for excavations on its Tribal lands and then must provide written authorizations under this paragraph. If the Native Hawaiian organization has not agreed in writing to be responsible for excavations, DHHL is responsible for completing the requirements in paragraph (b) of this section for any excavations on those Tribal lands of an NHO.

(b) On Federal or Tribal lands. When a Federal agency or DHHL has responsibility for an excavation on Federal or Tribal lands, a plan of action and a written authorization are required. When an Indian Tribe or Native Hawaiian organization has responsibility for an excavation on Tribal lands, no plan of action is required and the Indian Tribe or Native Hawaiian organization must comply with paragraph (a) of this section.

(1) Approve and sign a plan of action. Prior to authorizing an excavation, the Federal agency or DHHL, in consultation with the lineal descendant, Indian Tribe, or Native Hawaiian organization, must approve and sign a plan of action under § 10.4(b). The Federal agency or DHHL must carry out the plan of action for any human remains or cultural items that are excavated and removed.

(i) This requirement does not apply if, prior to authorizing the excavation, the Federal agency or DHHL signed:

(A) A plan of action under § 10.4(b); or

(B) A comprehensive agreement under § 10.4(c).

(ii) For an excavation on Tribal lands, the plan of action must include written consent to the excavation by the appropriate Indian Tribe or Native Hawaiian organization.

(2) Authorize an excavation. At minimum, the written authorization must include:

(i) A copy of the signed plan of action or comprehensive agreement with redaction of any confidential or sensitive information,

(ii) The reasonable steps taken to evaluate the potential need for an excavation of human remains or cultural items, and

(iii) Any permit that the Federal agency or DHHL legally requires.

§ 10.7 Disposition.

When human remains or cultural items are removed from Federal or Tribal lands, as soon as possible (but no later than one year) after the discovery or excavation of the human remains or cultural items, the appropriate official must identify the lineal descendant, Indian Tribe, or Native Hawaiian organization that has priority for disposition of human remains or cultural items using this section.

(a) Priority for disposition. The disposition of human remains or cultural items removed from Federal or Tribal lands must be in the following priority order:

(1) The known lineal descendant, if any, for human remains or associated funerary objects;

(2) The Indian Tribe or Native Hawaiian organization from whose Tribal lands the human remains or cultural items were removed;

(3) The Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(e) of this part;

(4) On Federal land that is recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of some Indian Tribe, the Indian Tribe with the strongest relationship to the human remains or cultural items, which is:

(i) The Indian Tribe recognized as aboriginally occupying the geographical location where the human remains or cultural items were removed; or

(ii) A different Indian Tribe who shows by a preponderance of the evidence a stronger relationship to the human remains or cultural items; or

(5) Any Indian Tribe or Native Hawaiian organization that requests transfer of the human remains or cultural items as unclaimed under paragraph (d) of this section.

(b) On Tribal lands. The Indian Tribe or Native Hawaiian organization from whose Tribal lands the human remains or cultural items were removed must identify the lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section.

(1) The Indian Tribe or Native Hawaiian organization must complete and retain a written disposition statement to recognize:

(i) A lineal descendant (whose name may be withheld) has ownership or control of the human remains or associated funerary objects removed from Tribal lands; or

(ii) A lineal descendant could not be ascertained, and the Indian Tribe or Native Hawaiian organization has ownership or control of the human remains or cultural items removed from Tribal lands.

(2) On Tribal lands in Alaska and the continental United States, the Indian Tribe may delegate its responsibility for disposition of human remains or cultural items to the Bureau of Indian Affairs or the Federal agency with primary management authority. If both the Federal agency and the Indian Tribe consent in writing, the Bureau of Indian Affairs or the Federal agency with primary management authority is responsible for completing the requirements in paragraph (c) of this section.

(3) On Tribal lands of an NHO, the Native Hawaiian organization may agree in writing to be responsible for disposition of human remains or cultural items from its Tribal lands and then must provide written disposition statements under this paragraph. If the Native Hawaiian organization has not agreed in writing to be responsible for dispositions, DHHL is responsible for completing the requirements in paragraph (c) of this section for any dispositions from those Tribal lands of an NHO.

(4) After completing a disposition statement, nothing in the Act or this part:

(i) Limits the authority of an Indian Tribe or Native Hawaiian organization to enter into any agreement with the lineal descendant or another Indian Tribe or Native Hawaiian organization concerning the human remains or cultural items;

(ii) Limits any procedural or substantive right which may otherwise be secured to the lineal descendant, Indian Tribe, or Native Hawaiian organization; or

(iii) Prevents the governing body of an Indian Tribe or Native Hawaiian organization from expressly relinquishing its ownership or control of human remains, funerary objects, or sacred objects.

(c) On Federal or Tribal lands. When a Federal agency or DHHL has responsibility for disposition of human remains or cultural items from Federal or Tribal lands, the Federal agency or DHHL must inform and notify the lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section.

(1) Step 1—Inform consulting parties. As soon as possible but no later than six months after removal of human remains or cultural items from Federal or Tribal lands, the Federal agency or DHHL must send a written document informing all consulting parties listed in the plan of action under § 10.4(b)(3) of this part. Consultation on disposition of human remains or cultural items may continue until the Federal agency or DHHL sends a disposition statement to a claimant under paragraph (c)(5) of this section.

(i) The written document must include:

(A) A description of the human remains or cultural items, including the date and geographical location by county and State of removal; and

(B) The lineal descendant (whose name may be withheld), Indian Tribe, or Native Hawaiian organization identified as having priority for disposition of the human remains or cultural items.

(ii) For human remains or cultural items removed from Federal or Tribal lands whose disposition is not complete prior to January 12, 2024, the Federal agency or DHHL must:

(A) Identify the lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section; and

(B) No later than July 12, 2024, send a written document under paragraph (c)(1)(i) of this section.

(iii) If the Federal agency or DHHL cannot identify any lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition of human remains or cultural items, the Federal agency or DHHL must report the human remains or cultural items as unclaimed under paragraph (d) of this section.

(2) Step 2—Submit a notice of intended disposition. No earlier than 30 days and no later than six months after informing consulting parties, the Federal agency or DHHL must submit a notice of intended disposition. If the human remains or cultural items are evidence in an ongoing civil or criminal action under ARPA or a criminal action under NAGPRA, the deadline for the notice is extended until the conclusion of the ARPA or NAGPRA case.

(i) A notice of intended disposition must be sent to any consulting parties and to the Manager, National NAGPRA Program, for publication in the Federal Register.

(ii) A notice of intended disposition must conform to the mandatory format of the Federal Register and include:

(A) An abstract of the information in the written document under paragraph (c)(1)(i) of this section;

(B) The name, phone number, email address, and mailing address of the appropriate official for the Federal agency or DHHL who is responsible for receiving claims for disposition;

(C) The date (to be calculated by the Federal Register 30 days from the date of publication) after which the Federal agency or DHHL may send a disposition statement to a claimant; and

(D) The date (to be calculated by the Federal Register one year from the date of publication) on which the human remains or cultural items become unclaimed human remains or cultural items if no claim for disposition is received from a lineal descendant, Indian Tribe, or Native Hawaiian organization.

(iii) No later than 21 days after receiving a notice of intended disposition, the Manager, National NAGPRA Program, must:

(A) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (c)(2)(ii) of this section; or

(B) Return to the Federal agency or DHHL any submission that does not conform to the requirements under paragraph (c)(2)(ii) of this section. No later than 14 days after the submission is returned, the Federal agency or DHHL must resubmit the notice of intended disposition.

(3) Step 3—Receive and consider a claim for disposition. After publication of a notice of intended disposition in the Federal Register, any lineal descendant, Indian Tribe, or Native Hawaiian organization may submit to the appropriate official for the Federal agency or DHHL a written claim for disposition of human remains or cultural items.

(i) A claim for disposition of human remains or cultural items must be received by the Federal agency or DHHL before a disposition statement for the human remains or cultural items is sent to a claimant under paragraph (c)(5) of this section or the transfer or reinterment of the human remains or cultural items under paragraph (d)(4) of this section. A claim for disposition received by the Federal agency or DHHL before the publication of the notice of intended disposition is dated the same date the notice was published.

(ii) Claims from two or more lineal descendants, Indian Tribes, or Native Hawaiian organizations who agree to joint disposition of the human remains or cultural items are considered a single claim and not competing claims.

(iii) A claim for disposition must satisfy one of the following criteria:

(A) The claimant is identified in the notice of intended disposition with priority for disposition; or

(B) The claimant is not identified in the notice of intended disposition, but the claim for disposition shows that the claimant is a lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section.

(iv) One year after publishing a notice of intended disposition under paragraph (c)(2) of this section, if no lineal descendant, Indian Tribe, or Native Hawaiian organization has submitted a claim for disposition, the Federal agency or DHHL must report the human remains or cultural items as unclaimed under paragraph (d) of this section.

(4) Step 4—Respond to a claim for disposition. No earlier than 30 days after publication of a notice of intended disposition but no later than 90 days after receiving a claim for disposition, the Federal agency or DHHL must send a written response to the claimant with a copy to any other party identified in the notice of intended disposition with priority for disposition.

(i) In the written response, the Federal agency or DHHL must state one of the following:

(A) The claim meets the criteria under paragraph (c)(3) of this section. The Federal agency or DHHL must send a disposition statement to the claimant under paragraph (c)(5) of this section, unless the Federal agency or DHHL receives additional, competing claims for disposition of human remains or cultural items.

(B) The claim does not meet the criteria under paragraph (c)(3) of this section. The Federal agency or DHHL must provide a detailed explanation why the claim does not meet the criteria and an opportunity for the claimant to provide additional information to meet the criteria.

(C) The Federal agency or DHHL has received competing claims for disposition of the human remains or cultural items that meet the criteria and must determine the most appropriate claimant using the procedures and deadlines under paragraph (c)(4)(ii) of this section.

(ii) At any time before sending a disposition statement for human remains or cultural items under paragraph (c)(5) of this section, the Federal agency or DHHL may receive additional, competing claims for disposition of the human remains or cultural items that meet the criteria under paragraph (c)(3) of this section. The Federal agency or DHHL must determine the most appropriate claimant using the priority for disposition under paragraph (a) of this section and the following procedures and deadlines:

(A) No later than 14 days after receiving a competing claim, the Federal agency or DHHL must send a written letter to each claimant identifying all claimants and the date each claim was received. In response, the claimants may provide additional information to show by a preponderance of the evidence that the claimant has a stronger relationship to the human remains or cultural items.

(B) No later than 180 days after informing the claimants of competing claims, the Federal agency or DHHL must send a written determination to each claimant identifying the most appropriate claimant(s).

(C) No earlier than 30 days but no later than 90 days after sending a determination of the most appropriate claimant(s), the Federal agency or DHHL must send a disposition statement to the most appropriate claimant(s) under paragraph (c)(5) of this section.

(5) Step 5—Disposition of the human remains or cultural items. No later than 90 days after responding to a claim for disposition that meets the criteria, the Federal agency or DHHL must send a written disposition statement to the claimant(s) and a copy to the Manager, National NAGPRA Program. A disposition statement must recognize the claimant(s) has ownership or control of the human remains or cultural items. In the case of joint claims for disposition, a disposition statement must identify and be sent to all claimants.

(i) After sending a disposition statement, the Federal agency or DHHL must:

(A) Consult with the claimant(s) on custody and physical transfer;

(B) Document any physical transfer; and

(C) Protect sensitive information, as identified by the claimant(s), from disclosure to the general public to the extent consistent with applicable law.

(ii) After a disposition statement is sent, nothing in the Act or this part:

(A) Limits the authority of the Federal agency or DHHL to enter into any agreement with the lineal descendant, Indian Tribe, or Native Hawaiian organization concerning the human remains or cultural items;

(B) Limits any procedural or substantive right which may otherwise be secured to the lineal descendant, Indian Tribe, or Native Hawaiian organization; or

(C) Prevents the governing body of an Indian Tribe or Native Hawaiian organization from expressly relinquishing its ownership or control of human remains, funerary objects, or sacred objects.

(d) Unclaimed human remains or cultural items removed from Federal or Tribal lands. When a Federal agency or DHHL has custody of unclaimed human remains or cultural items, the Federal agency or DHHL must report the human remains or cultural items.

(1) Step 1—Submit a list of unclaimed human remains or cultural items. No later than January 13, 2025, the Federal agency or DHHL must submit to the Manager, National NAGPRA Program, a list of any unclaimed human remains or cultural items in its custody. The Federal agency or DHHL must submit updates to its list of unclaimed human remains or cultural items by December 31 each year.

(i) Human remains or cultural items are unclaimed when:

(A) One year after publishing a notice of intended disposition under paragraph (c)(2) of this section, no lineal descendant, Indian Tribe, or Native Hawaiian organization submits a written claim for disposition; or

(B) One year after discovery or excavation of the human remains or cultural items, the Federal agency or DHHL did not identify any lineal descendant, Indian Tribe, or Native Hawaiian organization with priority for disposition under paragraph (a) of this section.

(ii) A list of unclaimed human remains or cultural items must include:

(A) A description of the human remains or cultural items, including the date and geographical location by county and State of removal;

(B) The names of all consulting parties;

(C) If unclaimed under paragraph (d)(1)(i)(A) of this section, the name of each Indian Tribe or Native Hawaiian organization with priority for disposition under paragraph (a) of this section; and

(D) If unclaimed under paragraph (d)(1)(i)(B) of this section, the information considered under § 10.3(a) of this part and the criteria identified under § 10.3(b) of this part to explain why no Indian Tribe or Native Hawaiian organization with cultural affiliation could be identified.

(2) Step 2—Agree to transfer or decide to reinter human remains or cultural items. At the discretion of the Federal agency or DHHL, a Federal agency or DHHL may:

(i) Agree in writing to transfer unclaimed human remains or cultural items to an Indian Tribe or Native Hawaiian organization;

(ii) Decide in writing to reinter unclaimed human remains or cultural items according to applicable laws and policies; or

(iii) At any time before transferring or reinterring human remains or cultural items under paragraph (d)(4) of this section, the Federal agency or DHHL may receive a claim for disposition of the human remains or cultural items and must evaluate whether the claim meets the criteria under paragraph (c)(3) of this section. Any agreement to transfer or decision to reinter the human remains or cultural items under this paragraph is stayed until the claim for disposition is resolved under paragraph (c) of this section.

(A) If the claim meets the criteria under paragraph (c)(3) of this section and a notice of intended disposition was published under paragraph (c)(2) of this section, the Federal agency or DHHL must respond in writing under paragraph (c)(4) and proceed with disposition under (c)(5) of this section.

(B) If the claim meets the criteria under paragraph (c)(3) of this section but no notice of intended disposition was published, the Federal agency or DHHL must submit a notice of intended disposition under paragraph (c)(2), respond in writing under paragraph (c)(4), and proceed with disposition under (c)(5) of this section.

(C) If the claim does not meet the criteria under paragraph (c)(3) of this section, the Federal agency or DHHL must respond in writing under paragraph (c)(4) and may proceed with transfer or reinterment under paragraph (d)(3) of this section.

(3) Step 3—Submit a notice of proposed transfer or reinterment. No later than 30 days after agreeing to transfer or deciding to reinter the human remains or cultural items, the Federal agency or DHHL must submit a notice of proposed transfer or reinterment.

(i) A notice of proposed transfer or reinterment must be sent to any consulting parties and to the Manager, National NAGPRA Program, for publication in the Federal Register.

(ii) A notice of proposed transfer or reinterment must conform to the mandatory format of the Federal Register and include:

(A) An abstract of the information in the list of unclaimed human remains or cultural items under paragraph (d)(1)(ii) of this section;

(B) The Indian Tribe or Native Hawaiian organization requesting transfer of the human remains or cultural items or a statement that the Federal agency or DHHL agrees to reinter the human remains or cultural items;

(C) The name, phone number, email address, and mailing address of the appropriate official for the Federal agency or DHHL who is responsible for receiving claims for disposition; and

(D) The date (to be calculated by the Federal Register 30 days from the date of publication) after which the Federal agency or DHHL may proceed with the transfer or reinterment of the human remains or cultural items.

(iii) No later than 21 days after receiving a notice of proposed transfer or reinterment, the Manager, National NAGPRA Program, must:

(A) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (d)(3)(ii) of this section; or

(B) Return to the Federal agency or DHHL any submission that does not conform to the requirements under paragraph (d)(3)(ii) of this section. No later than 14 days after the submission is returned, the Federal agency or DHHL must resubmit the notice of proposed transfer or reinterment.

(4) Step 4—Transfer or reinter the human remains or cultural items. No earlier than 30 days and no later than 90 days after publication of a notice of proposed transfer or reinterment, the Federal agency or DHHL must transfer or reinter the human remains or cultural items and send a written statement to the Manager, National NAGPRA Program, that the transfer or reinterment is complete.

(i) After transferring or reinterring, the Federal agency or DHHL must:

(A) Document the transfer or reinterment of the human remains or cultural items, and

(B) Protect sensitive information about the human remains or cultural items from disclosure to the general public to the extent consistent with applicable law.

(ii) After transfer or reinterment occurs, nothing in the Act or this part:

(A) Limits the authority of the Federal agency or DHHL to enter into any agreement with the requestor concerning the human remains or cultural items;

(B) Limits any procedural or substantive right which may otherwise be secured to the lineal descendant, Indian Tribe, or Native Hawaiian organization; or

(C) Prevents the governing body of an Indian Tribe or Native Hawaiian organization from expressly relinquishing its ownership or control of human remains, funerary objects, or sacred objects.

§ 10.8 General.

Each museum and Federal agency that has possession or control of a holding or collection that may contain human remains, funerary objects, sacred objects, or objects of cultural patrimony must comply with the requirements of this subpart, regardless of the physical location of the holding or collection. Each museum and Federal agency must identify one or more authorized representatives who are responsible for carrying out the requirements of this subpart.

(a) Museum holding or collection. A museum must comply with this subpart for any holding or collection under its possession or control that may contain human remains or cultural items, including a new holding or collection or a previously lost or previously unknown holding or collection.

(1) A museum must determine whether it has sufficient interest in a holding or collection to constitute possession or control on a case-by-case basis given the relevant information about the holding or collection.

(i) A museum may have custody of a holding or collection but not possession or control. In general, custody of a holding or collection through a loan, lease, license, bailment, or other similar arrangement is not sufficient interest to constitute possession or control, which resides with the loaning, leasing, licensing, bailing, or otherwise transferring museum or Federal agency.

(ii) If a museum has custody of a holding or collection, the museum may be required to report the holding or collection under paragraphs (c) or (d) of this section.

(2) Any museum that sends a repatriation statement for human remains or cultural items or that transfers or reinters human remains or associated funerary objects in good faith under this subpart shall not be liable for claims by an aggrieved party or for claims of breach of fiduciary duty, public trust, or violations of State law that are inconsistent with the provisions of the Act or this part.

(b) Federal agency holding or collection. A Federal agency must comply with this subpart for any holding or collection in its possession or control that may contain human remains or cultural items, including a previously lost or previously unknown holding or collection.

(1) A Federal agency must determine, given the relevant information, if a holding or collection:

(i) Was in its possession or control on or before November 16, 1990; or

(ii) Came into its possession or control after November 16, 1990, and was removed from:

(A) An unknown location; or

(B) Lands that are neither Federal nor Tribal lands as defined in this part.

(2) A Federal agency may have custody of a holding or collection that was removed from Federal or Tribal lands after November 16, 1990, and must comply with § 10.7(c) of this part.

(c) Museums with custody of a Federal agency holding or collection. No later than January 13, 2025, each museum that has custody of a Federal agency holding or collection that may contain Native American human remains or cultural items must submit a statement describing that holding or collection to the authorized representatives of the Federal agency most likely to have possession or control and to the Manager, National NAGPRA Program.

(1) No later than 180 days following receipt of a museum's statement, the Federal agency must respond to the museum and the Manager, National NAGPRA Program, with a written acknowledgement of one of the following:

(i) The Federal agency has possession or control of the holding or collection;

(ii) The Federal agency does not have possession or control of the holding or collection; or

(iii) The Federal agency and the museum agree that they have joint possession or control of the holding or collection.

(2) Failure to issue such a determination by the deadline constitutes acknowledgement that the Federal agency has possession or control. The Federal agency is responsible for the requirements of this subpart for any holdings or collections under its possession or control, regardless of the physical location of the holdings or collection.

(d) Museums with custody of other holdings or collections. No later than January 13, 2025, each museum that has custody of a holding or collection that may contain Native American human remains or cultural items and for which it cannot identify any person, institution, State or local government agency, or Federal agency with possession or control of the holding or collection, must submit a statement describing that holding or collection to the Manager, National NAGPRA Program.

(e) Contesting actions on repatriation. An affected party under § 10.12(c)(1)(ii) who wishes to contest actions made by museums or Federal agencies under this subpart is encouraged to do so through informal negotiations to achieve a fair resolution of the matter. Informal negotiations may include requesting the assistance of the Manager, National NAGPRA Program, or the Review Committee under § 10.12.

§ 10.9 Repatriation of unassociated funerary objects, sacred objects, or objects of cultural patrimony.

Each museum and Federal agency that has possession or control of a holding or collection that may contain an unassociated funerary object, sacred object, or object of cultural patrimony must follow the steps in this section. The purpose of this section is to provide general information about a holding or collection to lineal descendants, Indian Tribes, and Native Hawaiian organizations to facilitate repatriation.

(a) Step 1—Compile a summary of a holding or collection. Based on the information available, a museum or Federal agency must compile a summary describing any holding or collection that may contain unassociated funerary objects, sacred objects, or objects of cultural patrimony. Depending on the scope of the holding or collection, a museum or Federal agency may organize its summary into sections based on geographical area, accession or catalog name or number, or other defining attributes. A museum or Federal agency must ensure the summary is comprehensive and covers any holding or collection relevant to this section.

(1) A summary must include:

(i) The estimated number and a general description of the holding or collection, including any potential cultural items;

(ii) The geographical location (provenience) by county or State where the potential cultural items;

(iii) The acquisition history (provenance) of the potential cultural items;

(iv) Other information relevant for identifying:

(A) A lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation, and

(B) Any object as an unassociated funerary object, sacred object, or object of cultural patrimony; and

(v) The presence of any potentially hazardous substances used to treat any of the unassociated funerary objects, sacred objects, or objects of cultural patrimony, if known.

(2) After January 12, 2024, a museum or Federal agency must submit a summary to the Manager, National NAGPRA Program, by the deadline in Table 1 of this paragraph (a)(2).

Table 1 to § 10.9(a)(2)—Deadlines for Compiling a Summary

If a museum or Federal agency . . . | . . . a summary must be submitted . . .

acquires possession or control of unassociated funerary objects, sacred objects, or objects of cultural patrimony | 6 months after acquiring possession or control of the unassociated funerary objects, sacred objects, or objects of cultural patrimony.

locates previously lost or unknown unassociated funerary objects, sacred objects, or objects of cultural patrimony | 6 months after locating the unassociated funerary objects, sacred objects, or objects of cultural patrimony.

receives Federal funds for the first time after January 12, 2024, and has possession or control of unassociated funerary objects, sacred objects, or objects of cultural patrimony | 3 years after receiving Federal funds for the first time after January 12, 2024.

(3) After January 12, 2024, when a holding or collection previously included in a summary is transferred to a museum or Federal agency, the museum or Federal agency acquiring possession or control of the holding or collection may rely on the previously compiled summary.

(i) No later than 30 days after acquiring the holding or collection, the museum or Federal agency must send the previously compiled summary to the Manager, National NAGPRA Program.

(ii) No later than the deadline in Table 1 to paragraph (a)(2) of this section, the museum or Federal agency must compile a summary under paragraph (a)(1) of this section based on the previously compiled summary and additional information available. The museum or Federal agency must submit the summary to the Manager, National NAGPRA Program, and must initiate consultation under paragraph (b) of this section.

(4) Prior to January 12, 2024, a museum or Federal agency must have submitted a summary to the Manager, National NAGPRA Program:

(i) By November 16, 1993, for unassociated funerary objects, sacred objects, or objects of cultural patrimony subject to the Act;

(ii) By October 20, 2007, for unassociated funerary objects, sacred objects, or objects of cultural patrimony acquired or located after November 16, 1993;

(iii) By April 20, 2010, for unassociated funerary objects, sacred objects, or objects of cultural patrimony in the possession or control of a museum that received Federal funds for the first time after November 16, 1993;

(iv) After October 20, 2007, six months after acquiring or locating unassociated funerary objects, sacred objects, or objects of cultural patrimony; or

(v) After April 20, 2010, three years after receiving Federal funds for the first time.

(b) Step 2—Initiate consultation. No later than 30 days after compiling a summary, a museum or Federal agency must identify consulting parties based on information available and invite the parties to consult.

(1) Consulting parties are any lineal descendant and any Indian Tribe or Native Hawaiian organization with potential cultural affiliation.

(2) An invitation to consult must be in writing and must include:

(i) The summary described in paragraph (a)(1) of this section;

(ii) The names of all consulting parties; and

(iii) A proposed method for consultation.

(3) When a museum or Federal agency identifies a new consulting party under paragraph (b)(1) of this section, the museum or Federal agency must invite the party to consult. An invitation to consult under paragraph (b)(2) of this section must be sent:

(i) No later than 30 days after identifying a new consulting party based on new information; or

(ii) No later than six months after the addition of a Tribal entity to the list of federally recognized Indian Tribes published in the Federal Register pursuant to the Act of November 2, 1994 (25 U.S.C. 5131).

(c) Step 3—Consult on cultural items. A museum or Federal agency must respond to any consulting party, regardless of whether the party has received an invitation to consult. Consultation on an unassociated funerary object, sacred object, or object of cultural patrimony may continue until the museum or Federal agency sends a repatriation statement for that object to a requestor under paragraph (g) of this section.

(1) In response to a consulting party, a museum or Federal agency must ask for the following information, if not already provided:

(i) Preferences on the proposed timeline and method for consultation; and

(ii) The name, phone number, email address, or mailing address for any authorized representative, traditional religious leader, and known lineal descendant who may participate in consultation.

(2) Consultation must address identification of:

(i) Lineal descendants;

(ii) Indian Tribes or Native Hawaiian organizations with cultural affiliation;

(iii) The types of objects that might be unassociated funerary objects, sacred objects, or objects of cultural patrimony; and

(iv) The duty of care under § 10.1(d) for unassociated funerary objects, sacred objects, or objects of cultural patrimony.

(3) The museum or Federal agency must prepare a record of consultation that describes the concurrence, disagreement, or nonresponse of the consulting parties to the identifications in paragraph (c)(2) of this section.

(4) At any time before a museum or Federal agency sends a repatriation statement for an unassociated funerary object, sacred object, or object of cultural patrimony to a requestor under paragraph (g) of this section, the museum or Federal agency may receive a request from a consulting party for access to records, catalogues, relevant studies, or other pertinent data related to the holding or collection. A museum or Federal agency must provide access to the additional information in a reasonable manner and for the limited purpose of determining cultural affiliation, including the geographical location or acquisition history, of the unassociated funerary object, sacred object, or object of cultural patrimony.

(d) Step 4—Receive and consider a request for repatriation. After a summary is compiled, any lineal descendant, Indian Tribe, or Native Hawaiian organization may submit to the museum or Federal agency a written request for repatriation of an unassociated funerary object, sacred object, or object of cultural patrimony.

(1) A request for repatriation of an unassociated funerary object, sacred object, or object of cultural patrimony must be received by the museum or Federal agency before the museum or Federal agency sends a repatriation statement for that unassociated funerary object, sacred object, or object of cultural patrimony to a requestor under paragraph (g) of this section. A request for repatriation received by the museum or Federal agency before the deadline for compiling a summary in table 1 to paragraph (a)(2) of this section is dated the same date as the deadline for compiling the summary.

(2) Requests from two or more lineal descendants, Indian Tribes, or Native Hawaiian organizations who agree to joint repatriation of the unassociated funerary object, sacred object, or object of cultural patrimony are considered a single request and not competing requests.

(3) A request for repatriation must satisfy the following criteria:

(i) Each unassociated funerary object, sacred object, or object of cultural patrimony being requested meets the definition of an unassociated funerary object, a sacred object, or an object of cultural patrimony;

(ii) The request is from a lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation; and

(iii) The request includes information to support a finding that the museum or Federal agency does not have right of possession to the unassociated funerary object, sacred object, or object of cultural patrimony.

(e) Step 5—Respond to a request for repatriation. No later than 90 days after receiving a request for repatriation, a museum or Federal agency must send a written response to the requestor with a copy to any other consulting party. Using the information available, including relevant records, catalogs, existing studies, and the results of consultation, a museum or Federal agency must determine if the request for repatriation satisfies the criteria under paragraph (d) of this section. In the written response, the museum or Federal agency must state one of the following:

(1) The request meets the criteria under paragraph (d) of this section. The museum or Federal agency must submit a notice of intended repatriation under paragraph (f) of this section.

(2) The request does not meet the criteria under paragraph (d) of this section. The museum or Federal agency must provide a detailed explanation why the request does not meet the criteria and an opportunity for the requestor to provide additional information to meet the criteria.

(3) The request meets the criteria under paragraph (d)(3)(i) and (ii) of this section, but the museum or Federal agency asserts a right of possession to the unassociated funerary object, sacred object, or object of cultural patrimony and refuses repatriation of the requested object to the requestor. The museum or Federal agency must provide information to prove that the museum or Federal agency has a right of possession to the unassociated funerary object, sacred object, or object of cultural patrimony.

(4) The museum or Federal agency has received competing requests for repatriation of the unassociated funerary object, sacred object, or object of cultural patrimony that meet the criteria and must determine the most appropriate requestor using the procedures and deadlines under paragraph (h) of this section.

(f) Step 6—Submit a notice of intended repatriation. No later than 30 days after responding to a request for repatriation that meets the criteria, a museum or Federal agency must submit a notice of intended repatriation. The museum or Federal agency may include in a single notice any unassociated funerary objects, sacred objects, or objects of cultural patrimony with the same requestor.

(1) A notice of intended repatriation must be sent to all requestors, any consulting parties, and to the Manager, National NAGPRA Program, for publication in the Federal Register.

(2) A notice of intended repatriation must conform to the mandatory format of the Federal Register and include:

(i) An abstract of the information compiled under paragraph (a) of this section;

(ii) The total number and brief description of the unassociated funerary objects, sacred objects, or objects of cultural patrimony (counted separately or by lot);

(iii) The lineal descendant (whose name may be withheld), Indian Tribe, or Native Hawaiian organization requesting repatriation of the unassociated funerary objects, sacred objects, or objects of cultural patrimony;

(iv) The name, phone number, email address, and mailing address for the authorized representative of the museum or Federal agency who is responsible for receiving requests for repatriation; and

(v) The date (to be calculated by the Federal Register 30 days from the date of publication) after which the museum or Federal agency may send a repatriation statement to the requestor.

(3) No later than 21 days after receiving a notice of intended repatriation, the Manager, National NAGPRA Program, must:

(i) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (f)(2) of this section; or

(ii) Return to the museum or Federal agency any submission that does not conform to the requirements under paragraph (f)(2) of this section. No later than 14 days after the submission is returned, the museum or Federal agency must resubmit the notice of intended repatriation.

(5) At any time before sending a repatriation statement for an unassociated funerary object, sacred object, or object of cultural patrimony under paragraph (g) of this section, the museum or Federal agency may receive additional, competing requests for repatriation of that object that meet the criteria under paragraph (d) of this section. The museum or Federal agency must determine the most appropriate requestor using the procedures and deadlines under paragraph (h) of this section.

(g) Step 7—Repatriation of the unassociated funerary object, sacred object, or object of cultural patrimony. No earlier than 30 days and no later than 90 days after publication of a notice of intended repatriation, a museum or Federal agency must send a written repatriation statement to the requestor and a copy to the Manager, National NAGPRA Program. In a repatriation statement, a museum or Federal agency must relinquish possession or control of the unassociated funerary object, sacred object, or object of cultural patrimony to the lineal descendant, Indian Tribe, or Native Hawaiian organization. In the case of joint requests for repatriation, a repatriation statement must identify and be sent to all requestors.

(1) After sending a repatriation statement, the museum or Federal agency must:

(i) Consult with the requestor on custody and physical transfer;

(ii) Document any physical transfer; and

(iii) Protect sensitive information, as identified by the requestor, from disclosure to the general public to the extent consistent with applicable law.

(2) After a repatriation statement is sent, nothing in the Act or this part limits the authority of the museum or Federal agency to enter into any agreement with the requestor concerning the unassociated funerary object, sacred object, or object of cultural patrimony.

(h) Evaluating competing requests for repatriation. At any time before sending a repatriation statement for an unassociated funerary object, sacred object, or object of cultural patrimony under paragraph (g) of this section, a museum or Federal agency may receive additional, competing requests for repatriation of that object that meet the criteria under paragraph (d) of this section. The museum or Federal agency must determine the most appropriate requestor using this paragraph.

(1) For an unassociated funerary object or sacred object, in the following priority order, the most appropriate requestor is:

(i) The lineal descendant, if any; or

(ii) The Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(e) of this part.

(2) For an object of cultural patrimony, the most appropriate requestor is the Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(e) of this part.

(3) No later than 14 days after receiving a competing request, a museum or Federal agency must send a written letter to each requestor identifying all requestors and the date each request was received. In response, the requestors may provide additional information to show by a preponderance of the evidence that the requestor has a stronger relationship of shared group identity to the cultural items.

(4) No later than 180 days after informing the requestors of competing requests, a museum or Federal agency must send a written determination to each requestor and the Manager, National NAGPRA Program. The determination must be one of the following:

(i) The most appropriate requestor has been determined and the competing requests were received before the publication of a notice of intended repatriation. The museum or Federal agency must:

(A) Identify the most appropriate requestor and explain how the determination was made;

(B) Submit a notice of intended repatriation in accordance with paragraph (f) of this section no later than 30 days after sending the determination; and

(C) No earlier than 30 days and no later than 90 days after publication of the notice of intended repatriation, the museum or Federal agency must send a repatriation statement to the most appropriate requestor under paragraph (g) of this section;

(ii) The most appropriate requestor has been determined and a notice of intended repatriation was previously published. The museum or Federal agency must:

(A) Identify the most appropriate requestor and explain how the determination was made; and

(B) No earlier than 30 days and no later than 90 days after sending a determination of the most appropriate requestor, the museum or Federal agency must send a repatriation statement to the most appropriate requestor under paragraph (g) of this section; or

(iii) The most appropriate requestor cannot be determined, and repatriation is stayed under paragraph (i)(2) of this section. The museum or Federal agency must briefly describe the information considered and explain how the determination was made.

(i) Stay of repatriation. Repatriation under paragraph (g) of this section is stayed if:

(1) A court of competent jurisdiction has enjoined the repatriation. When there is a final resolution of the legal case or controversy in favor of a requestor, the museum or Federal agency must:

(i) No later than 14 days after a resolution, send a written statement of the resolution to each requestor and the Manager, National NAGPRA Program;

(ii) No earlier than 30 days and no later than 90 days after sending the written statement, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (g) of this section, unless a court of competent jurisdiction directs otherwise.

(2) The museum or Federal agency has received competing requests for repatriation and, after complying with paragraph (h) of this section, cannot determine the most appropriate requestor. When a most appropriate requestor is determined by an agreement between the parties, binding arbitration, or means of resolution other than through a court of competent jurisdiction, the museum or Federal agency must:

(i) No later than 14 days after a resolution, send a written determination to each requestor and the Manager, National NAGPRA Program;

(ii) No earlier than 30 days and no later than 90 days after sending the determination, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (g) of this section.

(3) Before the publication of a notice of intended repatriation under paragraph (f) of this section, the museum or Federal agency has both requested and received the Assistant Secretary's written concurrence that the unassociated funerary object, sacred object, or object of cultural patrimony is indispensable for completion of a specific scientific study, the outcome of which is of major benefit to the people of the United States.

(i) To request the Assistant Secretary's concurrence, the museum or Federal agency must send to the Manager, National NAGPRA Program, a written request of no more than 10 double-spaced pages. The written request must:

(A) Be on the letterhead of the requesting museum or Federal agency and be signed by an authorized representative;

(B) Describe the specific scientific study, the date on which the study commenced, and how the study is of major benefit to the people of the United States;

(C) Explain why retention of the unassociated funerary object, sacred object, or object of cultural patrimony is indispensable for completion of the study;

(D) Describe the steps required to complete the study, including any destructive analysis, and provide a completion schedule and completion date;

(E) Provide the position titles of the persons responsible for each step in the schedule;

(F) Affirm that the study has in place the requisite funding; and

(G) Provide written documentation showing free, prior, and informed consent from lineal descendants, Indian Tribes, or Native Hawaiian organizations to the study.

(ii) In response to the request, the Assistant Secretary must:

(A) Consult with lineal descendants, Indian Tribes, or Native Hawaiian organizations that consented to the study;

(B) Send a written determination of concurrence or denial to the museum or Federal agency with a copy to the consulting parties; and

(C) If the Assistant Secretary concurs, specify in the written determination the date by which the scientific study must be completed.

(iii) No later than 30 days after the completion date in the Assistant Secretary's determination, the museum or Federal agency must submit a notice of intended repatriation in accordance with paragraph (f) of this section.

(iv) No earlier than 30 days and no later than 90 days after publication of the notice of intended repatriation, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (g) of this section.

§ 10.10 Repatriation of human remains or associated funerary objects.

Each museum and Federal agency that has possession or control of a holding or collection that may contain human remains or associated funerary objects must follow the steps in this section. The purpose of this section is to provide notice of determinations, following consultation, about human remains or associated funerary objects to lineal descendants, Indian Tribes, and Native Hawaiian organizations to facilitate repatriation.

(a) Step 1—Compile an itemized list of any human remains and associated funerary objects. Based on information available, a museum or Federal agency must compile a simple itemized list of any human remains and associated funerary objects in a holding or collection. Depending on the scope of the holding or collection, a museum or Federal agency may organize its itemized list into sections based on geographical area, accession or catalog name or number, or other defining attributes. A museum or Federal agency must ensure the itemized list is comprehensive and covers all holdings or collections relevant to this section. The simple itemized list must include:

(1) The number of individuals identified in a reasonable manner based on the information available. No additional study or analysis is required to identify the number of individuals. If human remains are in a holding or collection, the number of individuals is at least one;

(2) The number of associated funerary objects and types of objects (counted separately or by lot);

(3) The geographical location (provenience) by county or State where the human remains or associated funerary objects were removed;

(4) The acquisition history (provenance) of the human remains or associated funerary objects;

(5) Other information available for identifying a lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation; and

(6) The presence of any potentially hazardous substances used to treat any of the human remains or associated funerary objects, if known.

(b) Step 2—Initiate consultation. As soon as possible after compiling an itemized list, a museum or Federal agency must identify consulting parties based on information available and invite the parties to consult.

(1) Consulting parties are any lineal descendant and any Indian Tribe or Native Hawaiian organization with potential cultural affiliation.

(2) An invitation to consult must be in writing and must include:

(i) The itemized list described in paragraph (a) of this section;

(ii) The names of all consulting parties; and

(iii) A proposed timeline and method for consultation.

(3) When a museum or Federal agency identifies a new consulting party under paragraph (b)(1) of this section, the museum or Federal agency must invite the party to consult. An invitation to consult under paragraph (b)(2) of this section must be sent:

(i) No later than 30 days after identifying a new consulting party based on new information; or

(ii) No later than two years after the addition of a Tribal entity to the list of federally recognized Indian Tribes published in the Federal Register pursuant to the Act of November 2, 1994 (25 U.S.C. 5131).

(c) Step 3—Consult on human remains or associated funerary objects. A museum or Federal agency must respond to any consulting party, regardless of whether the party has received an invitation to consult. Consultation on human remains or associated funerary objects may continue until the museum or Federal agency sends a repatriation statement for those human remains or associated funerary objects to a requestor under paragraph (h) of this section.

(1) In the response to a consulting party, a museum or Federal agency must ask for the following information, if not already provided:

(i) Preferences on the proposed timeline and method for consultation; and

(ii) The name, phone number, email address, or mailing address for any authorized representative, traditional religious leader, and known lineal descendant who may participate in consultation.

(2) Consultation must address identification of:

(i) Lineal descendants;

(ii) Indian Tribes or Native Hawaiian organizations with cultural affiliation;

(iii) The types of objects that might be associated funerary objects, including any objects that were made exclusively for burial purposes or to contain human remains; and

(iv) The duty of care under § 10.1(d) for human remains or associated funerary objects.

(3) The museum or Federal agency must prepare a record of consultation that describes the concurrence, disagreement, or nonresponse of the consulting parties to the identifications in paragraph (c)(2) of this section.

(4) At any time before the museum or Federal agency sends a repatriation statement for human remains or associated funerary objects to a requestor under paragraph (h) of this section, a museum or Federal agency may receive a request from a consulting party for access to records, catalogues, relevant studies, or other pertinent data related to those human remains or associated funerary objects. A museum or Federal agency must provide access to the additional information in a reasonable manner and for the limited purpose of determining cultural affiliation, including the geographical location or acquisition history, of the human remains or associated funerary objects.

(d) Step 4—Complete an inventory of human remains or associated funerary objects. Based on information available and the results of consultation, a museum or Federal agency must submit to all consulting parties and the Manager, National NAGPRA Program, an inventory of any human remains and associated funerary objects in the holding or collection.

(1) An inventory must include:

(i) The names of all consulting parties and dates of consultation;

(ii) The information, updated as appropriate, from the itemized list compiled under paragraph (a) of this section;

(iii) For each entry in the itemized list, a determination identifying one of the following:

(A) A known lineal descendant (whose name may be withheld);

(B) The Indian Tribe or Native Hawaiian organization with cultural affiliation that is clearly identified by the information available about the human remains or associated funerary objects;

(C) The Indian Tribe or Native Hawaiian organization with cultural affiliation that is reasonably identified by the geographical location or acquisition history of the human remains or associated funerary objects; or

(D) No lineal descendant or any Indian Tribe or Native Hawaiian organization with cultural affiliation can be clearly or reasonably identified. The inventory must briefly describe the information considered under § 10.3(a) of this part and the criteria identified under § 10.3(b) of this part to explain how the determination was made.

(2) After January 12, 2024, a museum or Federal agency must submit an inventory to all consulting parties and the Manager, National NAGPRA Program, by the deadline in table 1 of the paragraph (d)(2).

Table 1 to § 10.10(d)(2)—Deadlines for Completing an Inventory

If a museum or Federal agency . . . | an inventory must be submitted . . .

acquires possession or control of human remains or associated funerary objects | 2 years after acquiring possession or control of human remains or associated funerary objects.

locates previously lost or unknown human remains or associated funerary objects | 2 years after locating the human remains or associated funerary objects.

receives Federal funds for the first time after January 12, 2024, and has possession or control of human remains or associated funerary objects | 5 years after receiving Federal funds for the first time after January 12, 2024.

(3) No later than January 10, 2029, for any human remains or associated funerary objects listed in an inventory but not published in a notice of inventory completion prior to January 12, 2024, a museum or Federal agency must:

(i) Initiate consultation as described under paragraph (b) of this section;

(ii) Consult with consulting parties as described under paragraph (c) of this section;

(iii) Update its inventory under paragraph (d)(1) of this section and ensure the inventory is comprehensive and covers all holdings or collections relevant to this section; and

(iv) Submit an updated inventory to all consulting parties and the Manager, National NAGPRA Program.

(4) After January 12, 2024, when a holding or collection previously included in an inventory is transferred to a museum or Federal Agency, subject to the limitations in 18 U.S.C. 1170(a), the museum or Federal agency acquiring possession or control of the holding or collection may rely on the previously completed or updated inventory.

(i) No later than 30 days after acquiring the holding or collection, the museum or Federal agency must send the previously completed or updated inventory to initiate consultation under paragraph (b) of this section and notify the Manager, National NAGPRA Program.

(ii) No later than the deadline in Table 1 to paragraph (d)(2) of this section, the museum or Federal agency must complete an inventory under paragraphs (d)(1) and (d)(2) of this section based on the previously completed or updated inventory, additional information available, and the results of consultation.

(5) Any museum may request an extension to complete or update its inventory if it has made a good faith effort but is unable to do so by the appropriate deadline. A request for an extension must be submitted to the Manager, National NAGPRA Program, before the appropriate deadline. The Manager, National NAGPRA Program must publish in the Federal Register a list of any museum who request an extension and the Assistant Secretary's determination on the request. A request for an extension must include:

(i) Information showing the initiation of consultation;

(ii) The names of all consulting parties and consent to the extension request from a majority of consulting parties, evidenced by a signed agreement or official correspondence to the museum;

(iii) The estimated number of human remains and associated funerary objects in the holding or collection; and

(iv) A written plan for completing or updating the inventory, which includes, at minimum:

(A) The specific steps required to complete or update the inventory;

(B) A schedule for completing each step and estimated inventory completion or update date;

(C) Position titles of the persons responsible for each step in the schedule; and

(D) A proposal to obtain any requisite funding needed to complete or update the inventory.

(6) Prior to January 12, 2024, a museum or Federal agency must have submitted an inventory to all consulting parties and the Manager, National NAGPRA Program:

(i) By November 16, 1995, for human remains or associated funerary objects subject to the Act;

(ii) By April 20, 2009, for human remains or associated funerary objects acquired or located after November 16, 1995;

(iii) By April 20, 2012, for human remains or associated funerary objects in the possession or control of a museum that received Federal funds for the first time after November 16, 1995;

(iv) After April 20, 2009, two years after acquiring or locating the human remains or associated funerary objects; or

(v) After April 20, 2012, five years after receiving Federal funds for the first time after April 20, 2012.

(e) Step 5—Submit a notice of inventory completion. No later than six months after completing or updating an inventory under paragraph (d) of this section, a museum or Federal agency must submit a notice of inventory completion for all human remains or associated funerary objects in the inventory. The museum or Federal agency may include in a single notice any human remains or associated funerary objects having the same determination under paragraph (d)(1)(iii) of this section.

(1) A notice of inventory completion must be sent to any consulting parties and to the Manager, National NAGPRA Program, for publication in the Federal Register.

(2) A notice of inventory completion must conform to the mandatory format of the Federal Register and include the following for all human remains or associated funerary objects in the notice:

(i) An abstract of the information compiled under paragraph (d)(1)(ii) of this section;

(ii) The determination under paragraph (d)(1)(iii) of this section;

(iii) The total number of individuals and associated funerary objects (counted separately or by lot);

(iv) The name, phone number, email address, and mailing address for the authorized representative of the museum or Federal agency who is responsible for receiving requests for repatriation; and

(v) The date (to be calculated by the Federal Register 30 days from the date of publication) after which the museum or Federal agency may send a repatriation statement to a requestor.

(3) No later than 21 days after receiving a notice of inventory completion, the Manager, National NAGPRA Program, must:

(i) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (e)(2) of this section; or

(ii) Return to the museum or Federal agency any submission that does not conform to the requirements under paragraph (e)(2) of this section. No later than 14 days after the submission is returned, the museum or Federal agency must resubmit the notice of inventory completion.

(f) Step 6—Receive and consider a request for repatriation. After publication of a notice of inventory completion in the Federal Register, any lineal descendant, Indian Tribe, or Native Hawaiian organization may submit to the museum or Federal agency a written request for repatriation of human remains or associated funerary objects.

(1) A request for repatriation of human remains or associated funerary objects must be received by the museum or Federal agency before the museum or Federal agency sends a repatriation statement for those human remains or associated funerary objects under paragraph (h) of this section. A request for repatriation received by the museum or Federal agency before the publication of the notice of inventory completion is dated the same date the notice was published.

(2) Requests from two or more lineal descendants, Indian Tribes, or Native Hawaiian organizations who agree to joint repatriation of the human remains or associated funerary objects are considered a single request and not competing requests.

(3) A request for repatriation must satisfy one of the following criteria:

(i) The requestor is identified in the notice of inventory completion, or

(ii) The requestor is not identified in the notice of inventory completion, and the request shows, by a preponderance of the evidence, that the requestor is a lineal descendant or an Indian Tribe or Native Hawaiian organization with cultural affiliation.

(g) Step 7—Respond to a request for repatriation. No earlier than 30 days after publication of a notice of inventory completion but no later than 90 days after receiving a request for repatriation, a museum or Federal agency must send a written response to the requestor with a copy to any other party identified in the notice of inventory completion. Using the information available, including relevant records, catalogs, existing studies, and the results of consultation, a museum or Federal agency must determine if the request satisfies the criteria under paragraph (f) of this section.

(1) In the written response, the museum or Federal agency must state one of the following:

(i) The request meets the criteria under paragraph (f) of this section. The museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section, unless the museum or Federal agency receives additional, competing requests for repatriation.

(ii) The request does not meet the criteria under paragraph (f) of this section. The museum or Federal agency must provide a detailed explanation why the request does not meet the criteria, and an opportunity for the requestor to provide additional information to meet the criteria.

(iii) The museum or Federal agency has received competing requests for repatriation that meet the criteria and must determine the most appropriate requestor using the procedures and deadlines under paragraph (i) of this section.

(2) At any time before sending a repatriation statement for human remains or associated funerary objects under paragraph (h) of this section, the museum or Federal agency may receive additional, competing requests for repatriation of those human remains or associated funerary objects that meet the criteria under paragraph (f) of this section. The museum or Federal agency must determine the most appropriate requestor using the procedures and deadlines under paragraph (i) of this section.

(h) Step 8—Repatriation of the human remains or associated funerary objects. No later than 90 days after responding to a request for repatriation that meets the criteria, a museum or Federal agency must send a written repatriation statement to the requestor and a copy to the Manager, National NAGPRA Program. In a repatriation statement, a museum or Federal agency must relinquish possession or control of the human remains or associated funerary objects to a lineal descendant, Indian Tribe, or Native Hawaiian organization. In the case of joint requests for repatriation, a repatriation statement must identify and be sent to all requestors.

(1) After sending a repatriation statement, the museum or Federal agency must:

(i) Consult with the requestor on custody and physical transfer,

(ii) Document any physical transfer, and

(iii) Protect sensitive information, as identified by the requestor, from disclosure to the general public to the extent consistent with applicable law.

(2) After a repatriation statement is sent, nothing in the Act or this part limits the authority of the museum or Federal agency to enter into any agreement with the requestor concerning the human remains or associated funerary objects.

(i) Evaluating competing requests for repatriation. At any time before sending a repatriation statement for human remains or associated funerary objects under paragraph (h) of this section, a museum or Federal agency may receive additional, competing requests for repatriation of those human remains or associated funerary objects that meets the criteria under paragraph (f) of this section. The museum or Federal agency must determine the most appropriate requestor using this paragraph.

(1) In the following priority order, the most appropriate requestor is:

(i) The known lineal descendant, if any; or

(ii) The Indian Tribe or Native Hawaiian organization with the closest cultural affiliation according to the priority order at § 10.3(e) of this part.

(2) No later than 14 days after receiving a competing request, a museum or Federal agency must send a written letter to each requestor identifying all requestors and the date each request for repatriation was received. In response, requestors may provide additional information to show by a preponderance of the evidence that the requestor has a stronger relationship of shared group identity to the human remains or associated funerary objects.

(3) No later than 180 days after informing the requestors of competing requests, a museum or Federal agency must send a written determination to each requestor and the Manager, National NAGPRA Program. The determination must be one of the following:

(i) The most appropriate requestor has been determined. The museum or Federal agency must:

(A) Identify the most appropriate requestor and explain how the determination was made;

(B) No earlier than 30 days and no later than 90 days after sending a determination of the most appropriate requestor, the museum or Federal agency must send a repatriation statement to the most appropriate requestor under paragraph (h) of this section.

(ii) The most appropriate requestor cannot be determined, and repatriation is stayed under paragraph (j)(2) of this section. The museum or Federal agency must briefly describe the information considered and explain how the determination was made.

(j) Stay of repatriation. Repatriation under paragraph (h) of this section is stayed if:

(1) A court of competent jurisdiction has enjoined the repatriation. When there is a final resolution of the legal case or controversy in favor of a requestor, the museum or Federal agency must:

(i) No later than 14 days after a resolution, send a written statement of the resolution to each requestor and the Manager, National NAGPRA Program;

(ii) No earlier than 30 days and no later than 90 days after sending the written statement, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section, unless a court of competent jurisdiction directs otherwise.

(2) The museum or Federal agency has received competing requests for repatriation and, after complying with paragraph (i) of this section, cannot determine the most appropriate requestor. When a most appropriate requestor is determined by an agreement between the parties, binding arbitration, or means of resolution other than through a court of competent jurisdiction, the museum or Federal agency must:

(i) No later than 14 days after a resolution, send a written determination to each requestor and the Manager, National NAGPRA Program;

(ii) No earlier than 30 days and no later than 90 days after sending the determination, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section.

(3) Before the publication of a notice of inventory completion under paragraph (e) of this section, the museum or Federal agency has both requested and received the Assistant Secretary's written concurrence that the human remains or associated funerary objects are indispensable for completion of a specific scientific study, the outcome of which is of major benefit to the people of the United States.

(i) To request the Assistant Secretary's concurrence, the museum or Federal agency must send to the Manager, National NAGPRA Program, a written request of no more than 10 double-spaced pages. The written request must:

(A) Be on the letterhead of the requesting museum or Federal agency and be signed by an authorized representative;

(B) Describe the specific scientific study, the date on which the study commenced, and how the study is of major benefit to the people of the United States;

(C) Explain why retention of the human remains or associated funerary objects is indispensable for completion of the study;

(D) Describe the steps required to complete the study, including any destructive analysis, and provide a completion schedule and completion date;

(E) Provide the position titles of the persons responsible for each step in the schedule;

(F) Affirm that the study has in place the requisite funding; and

(G) Provide written documentation showing free, prior, and informed consent from lineal descendants, Indian Tribes, or Native Hawaiian organizations to the study.

(ii) In response to the request, the Assistant Secretary must:

(A) Consult with lineal descendants, Indian Tribes, or Native Hawaiian organizations that consented to the study;

(B) Send a written determination of concurrence or denial to the museum or Federal agency with a copy to the consulting parties; and

(C) If the Assistant Secretary concurs, specify in the written determination the date by which the scientific study must be completed.

(iii) No later than 30 days after the completion date in the Assistant Secretary's concurrence, the museum or Federal agency must submit a notice of inventory completion in accordance with paragraph (e) of this section.

(iv) No earlier than 30 days after publication of the notice of inventory completion and no later than 90 days after responding to a request for repatriation, the museum or Federal agency must send a repatriation statement to the requestor under paragraph (h) of this section.

(k) Transfer or reinter human remains or associated funerary objects. For human remains or associated funerary objects with no lineal descendant or no Indian Tribe or Native Hawaiian organization with cultural affiliation, a museum or Federal agency, at its discretion, may agree to transfer or decide to reinter the human remains or associated funerary objects. The museum or Federal agency must ensure it has initiated consultation under paragraph (b) of this section before taking any of the following steps.

(1) Step 1—Agree to transfer or decide to reinter. A museum or Federal agency may:

(i) Agree in writing to transfer the human remains or associated funerary objects to an Indian Tribe or Native Hawaiian organization;

(ii) Decide in writing to reinter the human remains or associated funerary objects according to applicable laws and policies; or

(iii) Receive a request for repatriation of the human remains or associated funerary objects at any time before transfer or reinterment and must evaluate whether the request meets the criteria under paragraph (f) of this section.

(A) If the request for repatriation meets the criteria under paragraph (f) of this section, the museum or Federal agency must respond in writing under paragraph (g) of this section and proceed with repatriation under paragraph (h) of this section.

(B) If the request does not meet the criteria under paragraph (f) of this section, the museum or Federal agency must respond in writing under paragraph (g) of this section and may proceed with transfer or reinterment after publication of a notice.

(2) Step 2—Submit a notice of proposed transfer or reinterment. No later than 30 days after agreeing to transfer or deciding to reinter the human remains or associated funerary objects, the museum or Federal agency must submit a notice of proposed transfer or reinterment.

(i) A notice of proposed transfer or reinterment must be sent to all consulting parties and to the Manager, National NAGPRA Program, for publication in the Federal Register.

(ii) A notice of proposed transfer or reinterment must conform to the mandatory format of the Federal Register and include:

(A) An abstract of the information compiled under paragraph (d)(1)(ii) of this section;

(B) The total number of individuals and associated funerary objects (counted separately or by lot);

(C) The determination under paragraph (d)(1)(iii)(D) of this section that no lineal descendant or any Indian Tribe or Native Hawaiian organization with cultural affiliation can be clearly or reasonably identified. The notice must briefly describe the information considered and explain how the determination was made.

(D) The names of all consulting parties identified under paragraph (b) of this section;

(E) The Indian Tribe or Native Hawaiian organization requesting the human remains or associated funerary objects or a statement that the museum or Federal agency agrees to reinter the human remains or associated funerary objects;

(F) The name, phone number, email address, and mailing address for the authorized representative of the museum or Federal agency who is responsible for receiving requests for repatriation; and

(G) The date (to be calculated by the Federal Register 30 days from the date of publication) after which the museum or Federal agency may proceed with the transfer or reinterment of the human remains or associated funerary objects.

(iii) No later than 21 days after receiving a notice of proposed transfer or reinterment, the Manager, National NAGPRA Program, must:

(A) Approve for publication in the Federal Register any submission that conforms to the requirements under paragraph (k)(2)(ii) of this section; or

(B) Return to the museum or Federal agency any submission that does not conform to the requirements under paragraph (k)(2)(ii) of this section. No later than 14 days after the submission is returned, the museum or Federal agency must resubmit the notice of proposed transfer or reinterment.

(3) Step 3—Transfer or reinter the human remains or associated funerary objects. No earlier than 30 days and no later than 90 days after publication of a notice of proposed transfer or reinterment, the museum or Federal agency must transfer or reinter the human remains or associated funerary objects and send a written statement to the Manager, National NAGPRA Program, that the transfer or reinterment is complete.

(i) After transferring or reinterring, the museum or Federal agency must:

(A) Document the transfer or reinterment of the human remains or associated funerary objects, and

(B) Protect sensitive information from disclosure to the general public to the extent consistent with applicable law.

(ii) After transfer or reinterment occurs, nothing in the Act or this part limits the authority of the museum or Federal agency to enter into any agreement with the requestor concerning the human remains or associated funerary objects.

§ 10.11 Civil penalties.

Any museum that fails to comply with the requirements of the Act or this subpart may be assessed a civil penalty by the Assistant Secretary. This section does not apply to Federal agencies, but a Federal agency's failure to comply with the requirements of the Act or this part may be subject to other remedies under Federal law. Each instance of failure to comply constitutes a separate violation. The Assistant Secretary must serve the museum with a written notice of failure to comply under paragraph (d) of this section or a notice of assessment under paragraph (g) of this section by personal delivery with proof of delivery date, certified mail with return receipt, or private delivery service with proof of delivery date.

(a) File an allegation. Any person may file an allegation of failure to comply by sending a written allegation to the Manager, National NAGPRA Program. Each allegation:

(1) Must include the name and contact information (either a mailing address, telephone number, or email address) of the person alleging the failure to comply;

(2) Must identify the specific provision or provisions of the Act or this subpart that the museum is alleged to have violated;

(3) May enumerate the separate violations alleged, including facts to support the number of separate violations. The number of separate violations is determined by establishing relevant factors such as:

(i) The number of lineal descendants, Indian Tribes, or Native Hawaiian organizations determined to be aggrieved by the failure to comply; or

(ii) The number of individuals or the number of funerary objects, sacred objects, or objects of cultural patrimony involved in the failure to comply;

(4) May include information showing that the museum has possession or control of human remains or cultural items involved in the alleged failure to comply; and

(5) May include information showing that the museum receives Federal funds.

(b) Respond to an allegation. No later than 90 days after receiving an allegation, the Assistant Secretary must determine if the allegation meets the requirements of paragraph (a) of this section and respond to the person alleging the failure to comply.

(1) The Assistant Secretary may request any additional relevant information from the person making the allegation, the museum, or other parties. The Assistant Secretary may conduct any investigation that is necessary to determine whether an alleged failure to comply is substantiated. The Assistant Secretary may also investigate appropriate factors for justifying an increase or reduction to any penalty amount that may be calculated.

(2) If the allegation meets the requirements of paragraph (a) of this section, the Assistant Secretary, after reviewing all relevant information, must determine one of the following for each alleged failure to comply:

(i) The alleged failure to comply is substantiated, the number of separate violations is identified, and a civil penalty is an appropriate remedy. The Assistant Secretary must calculate the proposed penalty amount under paragraph (c) of this section and notify the museum under paragraph (d) of this section;

(ii) The alleged failure to comply is substantiated, the number of separate violations is identified, but a civil penalty is not an appropriate remedy. The Assistant Secretary must notify the museum under paragraph (d) of this section; or

(iii) The alleged failure to comply is unsubstantiated. The Assistant Secretary must send a written determination to the person making the allegation and to the museum.

(c) Calculate the penalty amount. If the Assistant Secretary determines under paragraph (b)(2)(i) of this section that a civil penalty is an appropriate remedy for a substantiated failure to comply, the Assistant Secretary must calculate the amount of the penalty in accordance with this paragraph. The penalty for each separate violation must be calculated as follows:

(1) The base penalty amount is $8,531, subject to annual adjustments based on inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74).

(2) The base penalty amount may be increased after considering:

(i) The ceremonial or cultural value of the human remains or cultural items involved, as identified by any aggrieved lineal descendant, Indian Tribe, or Native Hawaiian organization;

(ii) The archaeological, historical, or commercial value of the human remains or cultural items involved;

(iii) The economic and non-economic damages suffered by any aggrieved lineal descendant, Indian Tribe, or Native Hawaiian organization, including expenditures by the aggrieved party to compel the museum to comply with the Act or this subpart;

(iv) The number of prior violations by the museum that have occurred; or

(v) Any other appropriate factor justifying an increase.

(3) The base penalty amount may be reduced if:

(i) The museum comes into compliance;

(ii) The museum agrees to mitigate the violation in the form of an actual or an in-kind payment to an aggrieved lineal descendant, Indian Tribe, or Native Hawaiian organization;

(iii) The penalty constitutes excessive punishment under the circumstances;

(iv) The museum is unable to pay the full penalty and the museum has not previously been found to have failed to comply with the Act or this subpart. The museum has the burden of proving it is unable to pay by providing verifiable, complete, and accurate financial information to the Assistant Secretary. The Assistant Secretary may request that the museum provide such financial information that is adequate and relevant to evaluate the museum's financial condition, including the value of the museum's cash and liquid assets; ability to borrow; net worth; liabilities; income tax returns; past, present, and future income; prior and anticipated profits; expected cash flow; and the museum's ability to pay in installments over time. If the museum does not submit the requested financial information, the museum is presumed to have the ability to pay the civil penalty; or

(v) Any other appropriate factor justifies a reduction.

(d) Notify a museum of a failure to comply. If the Assistant Secretary determines under paragraph (b)(2)(i) or (b)(2)(ii) of this section that an alleged failure to comply is substantiated, the Assistant Secretary must serve the museum with a written notice of failure to comply and send a copy of the notice to each person alleging the failure to comply and any lineal descendant, Indian Tribe, or Native Hawaiian organization named in the notice of failure to comply. The notice of failure to comply must:

(1) Provide a concise statement of the facts believed to show a failure to comply;

(2) Specifically reference the provisions of the Act and this subpart with which the museum has failed to comply;

(3) Include the proposed penalty amount calculated under paragraph (c) of this section;

(4) Include, where appropriate, any initial proposal to reduce or increase the penalty amount or an explanation of the determination that a penalty is not an appropriate remedy;

(5) Identify the options for responding to the notice of failure to comply under paragraph (e) of this section; and

(6) Inform the museum that the Assistant Secretary may assess a daily penalty amount under paragraph (m)(1) of this section if the failure to comply continues after the date the final administrative decision of the Assistant Secretary takes effect.

(e) Respond to a notice of failure to comply. No later than 45 days after receiving a notice of failure to comply, a museum may file a written response to the notice of failure to comply or take no action and await service of a notice of assessment under paragraph (g) of this section. A response which is not timely filed must not be considered. Any written response must be signed by an authorized representative of the museum and must be sent to the Assistant Secretary. In the written response, a museum may:

(1) Seek an informal discussion of the failure to comply;

(2) Request either or both of the following forms of relief, with a full explanation of the legal or factual basis for the requested relief:

(i) That the Assistant Secretary reconsider the determination of a failure to comply, or

(ii) That the Assistant Secretary reduce the proposed penalty amount; or

(3) Accept the determination of a failure to comply and agree in writing, which constitutes an agreement between the Assistant Secretary and the museum, that the museum must:

(i) Pay the proposed penalty amount, if any;

(ii) Complete the mitigation required to reduce the penalty, if offered in the notice; and

(iii) Waive any right to receive notice of assessment under paragraph (g) of this section and to request a hearing under paragraph (i) of this section.

(f) Assess the civil penalty. After serving a notice of failure to comply, the Assistant Secretary may assess a civil penalty and must consider all available, relevant information related to the failure to comply, including information timely provided by the museum during any informal discussion or request for relief, furnished by another party, or produced upon the Assistant Secretary's request.

(1) The assessment of a civil penalty is made after the latter of:

(i) The 45-day period for a response has expired and the museum has taken no action;

(ii) Conclusion of informal discussion, if any;

(iii) Review and consideration of a petition for relief, if any; or

(iv) Failure to meet the terms of an agreement established under paragraph (e)(3) of this section.

(2) If a petition for relief or informal discussion warrants a conclusion that no failure to comply has occurred, the Assistant Secretary must send written notification to the museum revoking the notice of failure to comply. No penalty is assessed.

(g) Notify the museum of an assessment. If the Assistant Secretary determines to assess a civil penalty, the Assistant Secretary must serve the museum with a notice of assessment. Unless the museum seeks further administrative remedies under this section, the notice of assessment is the final administrative decision of the Assistant Secretary. The notice of assessment must:

(1) Specifically reference the provisions of the Act or this subpart with which the museum has not complied;

(2) Include the final amount of any penalty calculated under paragraph (c) of this section and the basis for determining the penalty amount;

(3) Include, where appropriate, any increase or reduction to the penalty amount or an explanation of the determination that a penalty is not an appropriate remedy;

(4) Include the daily penalty amount that the Assistant Secretary may assess under paragraph (m)(1) of this section if the failure to comply continues after the date the final administrative decision of the Assistant Secretary takes effect. The daily penalty amount for each continuing violation shall not exceed $1,707 per day, subject to annual adjustments based on inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74);

(5) Identify the options for responding to the notice of assessment under paragraph (h) of this section; and

(6) Notify the museum that it has the right to seek judicial review of the final administrative decision of the Assistant Secretary only if it has exhausted all administrative remedies under this section, as set forth in paragraph (l) of this section.

(h) Respond to an assessment. No later than 45 days after receiving a notice of assessment, a museum must do one of the following:

(1) Accept the assessment and pay the penalty amount by means of a certified check made payable to the U.S. Treasurer, Washington, DC, sent to the Assistant Secretary. By paying the penalty amount, the museum waives the right to request a hearing under paragraph (i) of this section.

(2) File a written request for a hearing under paragraph (i) of this section to contest the failure to comply, the penalty assessment, or both. If the museum does not file a written request for a hearing in 45 days, the museum waives the right to request a hearing under paragraph (i) of this section.

(i) Request a hearing. The museum may file a written request for a hearing with the Departmental Cases Hearings Division (DCHD), Office of Hearings and Appeals (OHA), U.S. Department of the Interior, at the mailing address specified in the OHA Standing Orders on Contact Information, or by electronic means under the terms specified in the OHA Standing Orders on Electronic Transmission. A copy of the request must be served on the Solicitor of the Department of the Interior at the address specified in the OHA Standing Orders on Contact Information. The Standing Orders are available on the Department of the Interior OHA's website at https://www.doi.gov/oha. The request for hearing and any document filed thereafter with the DCHD under paragraphs (i) or (j) of this section are subject to the rules that govern the method and effective date of filing and service under the subparts applicable to DCHD in 43 CFR part 4. The request for a hearing must:

(1) Include a copy of the notice of failure to comply and the notice of assessment;

(2) State the relief sought by the museum; and

(3) Include the basis for challenging the facts used to determine the failure to comply or the penalty assessment.

(j) Hearings. Upon receiving a request for a hearing, DCHD must assign an administrative law judge to the case and promptly give notice of the assignment to the parties. Thereafter, each filing must be addressed to the administrative law judge and a copy served on each opposing party or its counsel.

(1) To the extent they are not inconsistent with this section, the rules in the subparts applicable to DCHD in 43 CFR part 4 apply to the hearing process.

(2) Subject to the provisions of 43 CFR 1.3, a museum may appear by authorized representative or by counsel and may participate fully in the proceedings. If the museum does not appear and the administrative law judge determines that this absence is without good cause, the administrative law judge may, at his or her discretion, determine that the museum has waived the right to a hearing and consents to the making of a decision on the record.

(3) The Department of the Interior counsel is designated by the Office of the Solicitor of the Department of the Interior. No later than 20 days after receipt of its copy of the written request for hearing, Departmental counsel must file with the DCHD an entry of appearance on behalf of the Assistant Secretary and the following:

(i) Any written communications between the Assistant Secretary and the museum during any informal discussions under paragraph (e)(1) of this section;

(ii) Any petition for relief submitted under paragraph (e)(2); and

(iii) Any other information considered by the Assistant Secretary in reaching the decision being challenged.

(4) After Departmental counsel files an entry of appearance with DCHD, the museum must serve each document filed with the administrative law judge on Departmental counsel.

(5) In a hearing on the penalty assessment, the amount of the penalty assessment must be determined in accordance with paragraph (c)(2) of this section and may not be limited to the amount originally assessed or by any previous reduction, increase, or offer of mitigation.

(6) The administrative law judge has all powers necessary to conduct a fair, orderly, expeditious, and impartial hearing process, and to render a decision, under 5 U.S.C. 554-557 and 25 U.S.C. 3007.

(7) The administrative law judge must render a written decision. The decision must set forth the findings of fact and conclusions of law, and the reasons and basis for them.

(8) The administrative law judge's decision takes effect as the final administrative decision of the Assistant Secretary 31 days from the date of the decision unless the museum files a notice of appeal as described in paragraph (k) of this section.

(k) Appealing the administrative law judge's decision. Any party who is adversely affected by the decision of the administrative law judge may appeal the decision by filing a written notice of appeal no later than 30 days after the date of the decision. The notice of appeal must be filed with the Interior Board of Indian Appeals (IBIA), Office of Hearings and Appeals (OHA), U.S. Department of the Interior, at the mailing address specified in the OHA Standing Orders on Contact Information, or by electronic means under the terms specified in the OHA Standing Orders on Electronic Transmission. The Standing Orders are available on the Department of the Interior OHA's website at https://www.doi.gov/oha. The notice of appeal must be accompanied by proof of service on the administrative law judge and the opposing party. The notice of appeal and any document filed thereafter with the IBIA are subject to the rules that govern the method and effective date of filing under 43 CFR 4.310.

(1) To the extent they are not inconsistent with this section, the provisions of 43 CFR part 4, subpart D, apply to the appeal process. The appeal board's decision must be in writing and takes effect as the final penalty assessment and the final administrative decision of the Assistant Secretary on the date that the appeal board's decision is rendered, unless otherwise specified in the appeal board's decision.

(2) OHA decisions in proceedings instituted under this section are posted on OHA's website.

(l) Exhaustion of administrative remedies. A museum has the right to seek judicial review, under 5 U.S.C. 704, of the final administrative decision of the Assistant Secretary only if it has exhausted all administrative remedies under this section. No decision, which at the time of its rendition is subject to appeal under this section, shall be considered final so as to constitute agency action subject to judicial review. The decision being appealed shall not be effective during the pendency of the appeal.

(m) Failure to pay penalty or continuing failure to comply. (1) If the failure to comply continues after the date the final administrative decision of the Assistant Secretary takes effect, as described in paragraphs (g), (j)(6), or (k)(1) of this section, or after a date identified in an agreement under paragraph (e)(3) of this section, the Assistant Secretary may assess an additional daily penalty amount for each continuing violation not to exceed $1,707 per day, subject to annual adjustments based on inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74). In determining the daily penalty amount, the Assistant Secretary must consider the factors in paragraph (c)(2) of this section. This penalty starts to accrue on the day after the effective date of the final administrative decision of the Assistant Secretary or on the date identified in an agreement under paragraph (e)(3) of this section.

(2) If the museum fails to pay the penalty, the Attorney General of the United States may institute a civil action to collect the penalty in an appropriate U.S. District Court. In such action, the validity and amount of the penalty are not subject to review by the court.

(n) Additional remedies. The assessment of a penalty under this section is not deemed a waiver by the Department of the Interior of the right to pursue other available legal or administrative remedies.

[88 FR 86518 Dec. 13, 2023, as amended at 89 FR 11742, Feb. 15, 2024; 90 FR 4673, Jan. 16, 2025]

§ 10.12 Review Committee.

The Review Committee advises the Secretary of the Interior and Congress on matters relating to sections 3003, 3004, and 3005 of the Act and other matters as specified in section 3006 of the Act. The Review Committee is subject to the Federal Advisory Committee Act (FACA, 5 U.S.C. App.).

(a) Recommendations. Any recommendation, finding, report, or other action of the Review Committee is advisory only and not binding on any person. Any records and findings made by the Review Committee may be admissible as evidence in actions brought by persons alleging a violation of the Act. Findings and recommendations made by the Review Committee must be published in the Federal Register no later than 90 days after making the finding or recommendation.

(b) Nominations. The Review Committee consists of seven members appointed by the Secretary of the Interior.

(1) Three members are appointed from nominations submitted by Indian Tribes, Native Hawaiian organizations, and traditional religious leaders. At least two of these members must be traditional Indian religious leaders. A traditional Indian religious leader is a person who an Indian Tribe identifies as serving it in the practice of traditional Native American religion.

(2) Three members are appointed from nominations submitted by national museum organizations or national scientific organizations. An organization that is created by, is a part of, and is governed in any way by a parent national museum or scientific organization must submit a nomination through the parent organization. National museum organizations and national scientific organizations are organizations that:

(i) Focus on the interests of museums and science disciplines throughout the United States, as opposed to a lesser geographical scope;

(ii) Offer membership throughout the United States, although such membership need not be exclusive to the United States; and

(iii) Are organized under the laws of the United States Government.

(3) One member is appointed from a list of more than one person developed and consented to by all other appointed members specified in paragraphs (b)(1) and (b)(2) of this section.

(c) Findings of fact or disputes on repatriation. The Review Committee may assist any affected party through consideration of findings of fact or disputes related to the inventory, summary, or repatriation provisions of the Act. One or more of the affected parties may request the assistance of the Review Committee or the Secretary of the Interior may direct the Review Committee to consider a finding of fact or dispute. Requests for assistance must be made before repatriation of the human remains or cultural items has occurred.

(1) An affected party is either a:

(i) Museum or Federal agency that has possession or control of the human remains or cultural items; or

(ii) Lineal descendant, or an Indian Tribe or Native Hawaiian organization with potential cultural affiliation to the human remains or cultural items.

(2) The Review Committee may make an advisory finding of fact on questions related to:

(i) The identity of an object as human remains or cultural items;

(ii) The cultural affiliation of human remains or cultural items; or

(iii) The repatriation of human remains or cultural items.

(3) The Review Committee may make an advisory recommendation on disputes between affected parties. To facilitate the resolution of disputes, the Review Committee may:

(i) Consider disputes between an affected party identified in paragraph (c)(1)(i) of this section and an affected party identified in paragraph (c)(1)(ii) of this section;

(ii) Not consider disputes among lineal descendants, Indian Tribes, and Native Hawaiian organizations;

(iii) Not consider disputes among museums and Federal agencies;

(iv) Request information or presentations from any affected party; and

(v) Make advisory recommendations directly to the affected parties or to the Secretary of the Interior.

§ 11.10 Scope and applicability.

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended, 42 U.S.C. 9601 et seq., and the Clean Water Act (CWA), 33 U.S.C. 1251-1376, provide that natural resource trustees may assess damages to natural resources resulting from a discharge of oil or a release of a hazardous substance covered under CERCLA or the CWA and may seek to recover those damages. This part supplements the procedures established under the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300, for the identification, investigation, study, and response to a discharge of oil or release of a hazardous substance, and it provides a procedure by which a natural resource trustee can determine compensation for injuries to natural resources that have not been nor are expected to be addressed by response actions conducted pursuant to the NCP. The assessment procedures set forth in this part are not mandatory. However, they must be used by Federal or State natural resource trustees in order to obtain the rebuttable presumption contained in section 107(f)(2)(C) of CERCLA. This part applies to assessments initiated after the effective date of this final rule.

[53 FR 5171, Feb. 22, 1988]

§ 11.11 Purpose.

The purpose of this part is to provide standardized and cost-effective procedures for assessing natural resource damages. The results of an assessment performed by a Federal or State natural resource trustee according to these procedures shall be accorded the evidentiary status of a rebuttable presumption as provided in section 107(f)(2)(C) of CERCLA.

[53 FR 5171, Feb. 22, 1988]

§ 11.12 Biennial review of regulations.

The regulations and procedures included within this part shall be reviewed and revised as appropriate 2 years from the effective date of these rules and every second anniversary thereafter.

§ 11.13 Overview.

(a) Purpose. The process established by this part uses a planned and phased approach to the assessment of natural resource damages. This approach is designed to ensure that all procedures used in an assessment, performed pursuant to this part, are appropriate, necessary, and sufficient to assess damages for injuries to natural resources.

(b) Preassessment phase. Subpart B of this part, the preassessment phase, provides for notification, coordination, and emergency activities, if necessary, and includes the preassessment screen. The preassessment screen is meant to be a rapid review of readily available information that allows the authorized official to make an early decision on whether a natural resource damage assessment can and should be performed.

(c) Assessment Plan phase. If the authorized official decides to perform an assessment, an Assessment Plan, as described in subpart C of this part, is prepared. The Assessment Plan ensures that the assessment is performed in a planned and systematic manner and that the methodologies chosen demonstrate reasonable cost.

(d) Type A assessments. The simplified assessments provided for in section 301(c)(2)(A) of CERCLA are performed using the standard procedures specified in subpart D of this part.

(e) Type B assessments. Subpart E of this part covers the assessments provided for in section 301(c)(2)(B) of CERCLA. The process for implementing type B assessments has been divided into the following three phases.

(1) Injury Determination phase. The purpose of this phase is to establish that one or more natural resources have been injured as a result of the discharge of oil or release of a hazardous substance. The sections of subpart E comprising the Injury Determination phase include definitions of injury, guidance on determining pathways, and testing and sampling methods. These methods are to be used to determine both the pathways through which resources have been exposed to oil or a hazardous substance and the nature of the injury.

(2) Quantification phase. The purpose of this phase is to establish the extent of the injury to the resource in terms of the loss of services that the injured resource would have provided had the discharge or release not occurred. The sections of subpart E comprising the Quantification phase include methods for establishing baseline conditions, estimating recovery periods, and measuring the degree of service reduction stemming from an injury to a natural resource.

(3) Damage Determination phase. The purpose of this phase is to establish the appropriate compensation expressed as a dollar amount for the injuries established in the Injury Determination phase and measured in the Quantification phase. The sections of subpart E of this part comprising the Damage Determination phase include guidance on acceptable cost estimating and valuation methodologies for determining compensation based on the costs of restoration, rehabilitation, replacement, and/or acquisition of equivalent resources, plus, at the discretion of the authorized official, compensable value, as defined in § 11.83(c) of this part.

(f) Post-assessment phase. Subpart F of this part includes requirements to be met after the assessment is complete. The Report of Assessment contains the results of the assessment, and documents that the assessment has been carried out according to this rule. Other post-assessment requirements delineate the manner in which the demand for a sum certain shall be presented to a responsible party and the steps to be taken when sums are awarded as damages.

[51 FR 27725, Aug. 1, 1986, as amended at 59 FR 14281, Mar. 25, 1994]

§ 11.14 Definitions.

Terms not defined in this section have the meaning given by CERCLA or the CWA. As used in this part, the phrase:

(a) Acquisition of the equivalent or replacement means the substitution for an injured resource with a resource that provides the same or substantially similar services, when such substitutions are in addition to any substitutions made or anticipated as part of response actions and when such substitutions exceed the level of response actions determined appropriate to the site pursuant to the NCP.

(b) Air or air resources means those naturally occurring constituents of the atmosphere, including those gases essential for human, plant, and animal life.

(c) Assessment area means the area or areas within which natural resources have been affected directly or indirectly by the discharge of oil or release of a hazardous substance and that serves as the geographic basis for the injury assessment.

(d) Authorized official means the Federal or State official to whom is delegated the authority to act on behalf of the Federal or State agency designated as trustee, or an official designated by an Indian tribe, pursuant to section 126(d) of CERCLA, to perform a natural resource damage assessment. As used in this part, authorized official is equivalent to the phrase “authorized official or lead authorized official,” as appropriate.

(e) Baseline means the condition or conditions that would have existed at the assessment area had the discharge of oil or release of the hazardous substance under investigation not occurred.

(f) Biological resources means those natural resources referred to in section 101(16) of CERCLA as fish and wildlife and other biota. Fish and wildlife include marine and freshwater aquatic and terrestrial species; game, nongame, and commercial species; and threatened, endangered, and State sensitive species. Other biota encompass shellfish, terrestrial and aquatic plants, and other living organisms not otherwise listed in this definition.

(g) CERCLA means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601 et seq., as amended.

(h) Committed use means either: a current public use; or a planned public use of a natural resource for which there is a documented legal, administrative, budgetary, or financial commitment established before the discharge of oil or release of a hazardous substance is detected.

(i) Control area or control resource means an area or resource unaffected by the discharge of oil or release of the hazardous substance under investigation. A control area or resource is selected for its comparability to the assessment area or resource and may be used for establishing the baseline condition and for comparison to injured resources.

(j) Cost-effective or cost-effectiveness means that when two or more activities provide the same or a similar level of benefits, the least costly activity providing that level of benefits will be selected.

(k) CWA means the Clean Water Act, as amended, 33 U.S.C. 1251 et seq., also referred to as the Federal Water Pollution Control Act.

(l) Damages means the amount of money sought by the natural resource trustee as compensation for injury, destruction, or loss of natural resources as set forth in section 107(a) or 111(b) of CERCLA.

(m) Destruction means the total and irreversible loss of a natural resource.

(n) Discharge means a discharge of oil as defined in section 311(a)(2) of the CWA, as amended, and includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying, or dumping of oil.

(o) Drinking water supply means any raw or finished water source that is or may be used by a public water system, as defined in the SDWA, or as drinking water by one or more individuals.

(p) EPA means the U.S. Environmental Protection Agency.

(q) Exposed to or exposure of means that all or part of a natural resource is, or has been, in physical contact with oil or a hazardous substance, or with media containing oil or a hazardous substance.

(r) Fund means the Hazardous Substance Superfund established by section 517 of the Superfund Amendments and Reauthorization Act of 1986.

(s) Geologic resources means those elements of the Earth's crust such as soils, sediments, rocks, and minerals, including petroleum and natural gas, that are not included in the definitions of ground and surface water resources.

(t) Ground water resources means water in a saturated zone or stratum beneath the surface of land or water and the rocks or sediments through which ground water moves. It includes ground water resources that meet the definition of drinking water supplies.

(u) Hazardous substance means a hazardous substance as defined in section 101(14) of CERCLA.

(v) Injury means a measurable adverse change, either long- or short-term, in the chemical or physical quality or the viability of a natural resource resulting either directly or indirectly from exposure to a discharge of oil or release of a hazardous substance, or exposure to a product of reactions resulting from the discharge of oil or release of a hazardous substance. As used in this part, injury encompasses the phrases “injury,” “destruction,” and “loss.” Injury definitions applicable to specific resources are provided in § 11.62 of this part.

(w) Lead authorized official means a Federal or State official authorized to act on behalf of all affected Federal or State agencies acting as trustees where there are multiple agencies, or an official designated by multiple tribes where there are multiple tribes, affected because of coexisting or contiguous natural resources or concurrent jurisdiction.

(x) Loss means a measurable adverse reduction of a chemical or physical quality or viability of a natural resource.

(y) Natural Contingency Plan or NCP means the National Oil and Hazardous Substances Contingency Plan and revisions promulgated by EPA, pursuant to section 105 of CERCLA and codified in 40 CFR part 300.

(z) Natural resources or resources means land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States (including the resources of the fishery conservation zone established by the Magnuson Fishery Conservation and Management Act of 1976), any State or local government, any foreign government, any Indian tribe, or, if such resources are subject to a trust restriction on alienation, any member of an Indian tribe. These natural resources have been categorized into the following five groups: Surface water resources, ground water resources, air resources, geologic resources, and biological resources.

(aa) Natural resource damage assessment or assessment means the process of collecting, compiling, and analyzing information, statistics, or data through prescribed methodologies to determine damages for injuries to natural resources as set forth in this part.

(bb) Oil means oil as defined in section 311(a)(1) of the CWA, as amended, of any kind or in any form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other than dredged spoil.

(cc) On-Scene Coordinator or OSC means the On-Scene Coordinator as defined in the NCP.

(dd) Pathway means the route or medium through which oil or a hazardous substance is or was transported from the source of the discharge or release to the injured resource.

(ee) Reasonable cost means the amount that may be recovered for the cost of performing a damage assessment. Costs are reasonable when: the Injury Determination, Quantification, and Damage Determination phases have a well-defined relationship to one another and are coordinated; the anticipated increment of extra benefits in terms of the precision or accuracy of estimates obtained by using a more costly injury, quantification, or damage determination methodology are greater than the anticipated increment of extra costs of that methodology; and the anticipated cost of the assessment is expected to be less than the anticipated damage amount determined in the Injury, Quantification, and Damage Determination phases.

(ff) Rebuttable presumption means the procedural device provided by section 107(f)(2)(C) of CERCLA describing the evidentiary weight that must be given to any determination or assessment of damages in any administrative or judicial proceeding under CERCLA or section 311 of the CWA made by a Federal or State natural resource trustee in accordance with the rule provided in this part.

(gg) Recovery period means either the longest length of time required to return the services of the injured resource to their baseline condition, or a lesser period of time selected by the authorized official and documented in the Assessment Plan.

(hh) Release means a release of a hazardous substance as defined in section 101(22) of CERCLA.

(ii) Replacement or acquisition of the equivalent means the substitution for an injured resource with a resource that provides the same or substantially similar services, when such substitutions are in addition to any substitutions made or anticipated as part of response actions and when such substitutions exceed the level of response actions determined appropriate to the site pursuant to the NCP.

(jj) Response means remove, removal, remedy, or remedial actions as those phrases are defined in sections 101(23) and 101(24) of CERCLA.

(kk) Responsible party or parties and potentially responsible party or parties means a person or persons described in or potentially described in one or more of the categories set forth in section 107(a) of CERCLA.

(ll) Restoration or rehabilitation means actions undertaken to return an injured resource to its baseline condition, as measured in terms of the injured resource's physical, chemical, or biological properties or the services it previously provided, when such actions are in addition to response actions completed or anticipated, and when such actions exceed the level of response actions determined appropriate to the site pursuant to the NCP.

(mm) SDWA means the Safe Drinking Water Act, 42 U.S.C. 300f-300j-10.

(nn) Services means the physical and biological functions performed by the resource including the human uses of those functions. These services are the result of the physical, chemical, or biological quality of the resource.

(oo) Site means an area or location, for purposes of response actions under the NCP, at which oil or hazardous substances have been stored, treated, discharged, released, disposed, placed, or otherwise came to be located.

(pp) Surface water resources means the waters of the United States, including the sediments suspended in water or lying on the bank, bed, or shoreline and sediments in or transported through coastal and marine areas. This term does not include ground water or water or sediments in ponds, lakes, or reservoirs designed for waste treatment under the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6901-6987 or the CWA, and applicable regulations.

(qq) Technical feasibility or technically feasible means that the technology and management skills necessary to implement an Assessment Plan or Restoration and Compensation Determination Plan are well known and that each element of the plan has a reasonable chance of successful completion in an acceptable period of time.

(rr) Trustee or natural resource trustee means any Federal natural resources management agency designated in the NCP and any State agency designated by the Governor of each State, pursuant to section 107(f)(2)(B) of CERCLA, that may prosecute claims for damages under section 107(f) or 111(b) of CERCLA; or an Indian tribe, that may commence an action under section 126(d) of CERCLA.

(ss) Type A assessment means standard procedures for simplified assessments requiring minimal field observation to determine damages as specified in section 301(c)(2)(A) of CERCLA.

(tt) Type B assessment means alternative methodologies for conducting assessments in individual cases to determine the type and extent of short- and long-term injury and damages, as specified in section 301(c)(2)(B) of CERCLA.

(uu) Indian tribe means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village but not including any Alaska Native regional or village corporation, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5171, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994]

§ 11.15 What damages may a trustee recover?

(a) In an action filed pursuant to section 107(f) or 126(d) of CERCLA, or sections 311(f) (4) and (5) of the CWA, a natural resource trustee who has performed an assessment in accordance with this rule may recover:

(1) Damages as determined in accordance with this part and calculated based on injuries occurring from the onset of the release through the recovery period, less any mitigation of those injuries by response actions taken or anticipated, plus any increase in injuries that are reasonably unavoidable as a result of response actions taken or anticipated;

(2) The costs of emergency restoration efforts under § 11.21 of this part;

(3) The reasonable and necessary costs of the assessment, to include:

(i) The cost of performing the preassessment and Assessment Plan phases and the methodologies provided in subpart D or E of this part; and

(ii) Administrative costs and expenses necessary for, and incidental to, the assessment, assessment planning, and restoration, rehabilitation, replacement, and/or acquisition of equivalent resources planning, and any restoration, rehabilitation, replacement, and/or acquisition of equivalent resources undertaken; and

(4) Interest on the amounts recoverable as set forth in section 107(a) of CERCLA. The rate of interest on the outstanding amount of the claim shall be the same rate as is specified for interest on investments of the Hazardous Substance Superfund established under subchapter A of chapter 98 of the Internal Revenue Code of 1954. Such interest shall accrue from the later of: The date payment of a specified amount is demanded in writing, or the date of the expenditure concerned;

(b) The determination of the damage amount shall consider any applicable limitations provided for in section 107(c) of CERCLA.

(c) Where an assessment determines that there is, in fact, no injury, as defined in § 11.62 of this part, the natural resource trustee may not recover assessment costs.

(d) There shall be no double recovery under this rule for damages or for assessment costs, that is, damages or assessment costs may only be recovered once, for the same discharge or release and natural resource, as set forth in section 107(f)(1) of CERCLA.

(e) Actions for damages and assessment costs shall comply with the statute of limitations set forth in section 113(g), or, where applicable, section 126(d) of CERCLA.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 FR 5172, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 1996]

§ 11.16 [Reserved]

§ 11.17 Compliance with applicable laws and standards.

(a) Worker health and safety. All worker health and safety considerations specified in the NCP shall be observed, except that requirements applying to response actions shall be taken to apply to the assessment process.

(b) Resource protection. Before taking any actions under this part, particularly before taking samples or making determinations of restoration or replacement, compliance is required with any applicable statutory consultation or review requirements, such as the Endangered Species Act; the Migratory Bird Treaty Act; the Marine Protection, Research, and Sanctuaries Act; and the Marine Mammal Protection Act, that may govern the taking of samples or in other ways restrict alternative management actions.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5172, Feb. 22, 1988]

§ 11.18 Incorporation by reference.

Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the Department of the Interior (DOI) must publish a document in the Federal Register and the material must be available to the public. This incorporation by reference (IBR) material is available for inspection at DOI and the National Archives and Records Administration (NARA). Contact DOI at: Interior Library, 1849 C Street NW, MS 1151, Washington, DC 20240; (202) 208-5518; www.doi.gov/library. For information on the availability of this material at NARA, visit www.archives.gov/federalregister/cfr/ibr-locations or email fr.inspection@nara.gov. The material may be obtained from the following sources:

(a) American Fisheries Society (AFS), 425 Barlow Place, Bethesda, MD 20814; phone: 301-897-8616, website: fisheries.org/.

(1) Investigation and Monetary Values of Fish and Freshwater Mollusk Kills. Edited by Robert I. Southwick and Andrew J. Loftus. Special Publication 35. Second printing, August 2018. (AFS Special Publication 35). IBR approved for §§ 11.62 and 11.71.

Note 1 to paragraph (a)(1):

AFS Special Publication 35 is available online at: fisheries.org/bookstore/all-titles/special-publications/51035p/.

(2) [Reserved]

(b) The Appraisal Foundation, 1155 15th Street NW, Suite 1111, Washington, DC 20005; phone: 202.347.7722; email: info@appraisalfoundation.org; website: appraisalfoundation.org/imis/.

(1) Interagency Land Acquisition Conference—Uniform Appraisal Standards for Federal Land Acquisitions. 2016. ISBN: 978-0-09892208-8-0. (Uniform Appraisal Standards for Federal Land Acquisitions 2016). IBR approved for § 11.83.

Note 2 to paragraph (b)(1):

Uniform Appraisal Standards for Federal Land Acquisitions 2016 is available online at: www.justice.gov/d9/enrd/legacy/2015/04/13/uniform-appraisal-standards.pdf.

(2) [Reserved]

[91 FR 42878, July 13, 2026]

§ 11.19 [Reserved]

§ 11.20 Notification and detection.

(a) Notification. (1) Section 104(b)(2) of CERCLA requires prompt notification of Federal and State natural resource trustees of potential damages to natural resources under investigation and requires coordination of the assessments, investigations, and planning under section 104 of CERCLA with such trustees.

(2) The NCP provides for the OSC or lead agency to notify the natural resource trustee when natural resources have been or are likely to be injured by a discharge of oil or a release of a hazardous substance being investigated under the NCP.

(3) Natural resource trustees, upon such notification described in paragraphs (a) (1) and (2) of this section, shall take such actions, as may be consistent with the NCP.

(b) Previously unreported discharges or releases. If a natural resource trustee identifies or is informed of apparent injuries to natural resources that appear to be a result of a previously unidentified or unreported discharge of oil or release of a hazardous substance, he should first make reasonable efforts to determine whether a discharge or release has taken place. In the case of a discharge or release not yet reported or being investigated under the NCP, the natural resource trustee shall report that discharge or release to the appropriate authority as designated in the NCP.

(c) Identification of co-trustees. The natural resource trustee should assist the OSC or lead agency, as needed, in identifying other natural resource trustees whose resources may be affected as a result of shared responsibility for the resources and who should be notified.

[53 FR 5172, Feb. 22, 1988]

§ 11.21 Emergency restorations.

(a) Reporting requirements and definition. (1) In the event of a natural resource emergency, the natural resource trustee shall contact the National Response Center (800/424-8802) to report the actual or threatened discharge or release and to request that an immediate response action be taken.

(2) An emergency is any situation related to a discharge or release requiring immediate action to avoid an irreversible loss of natural resources or to prevent or reduce any continuing danger to natural resources, or a situation in which there is a similar need for emergency action.

(b) Emergency actions. If no immediate response actions are taken at the site of the discharge or release by the EPA or the U.S. Coast Guard within the time that the natural resource trustee determines is reasonably necessary, or if such actions are insufficient, the natural resource trustee should exercise any existing authority he may have to take on-site response actions. The natural resource trustee shall determine whether the potentially responsible party, if his identity is known, is taking or will take any response action. If no on-site response actions are taken, the natural resource trustee may undertake limited off-site restoration action consistent with its existing authority to the extent necessary to prevent or reduce the immediate migration of the oil or hazardous substance onto or into the resource for which the Federal or State agency or Indian tribe may assert trusteeship.

(c) Limitations on emergency actions. The natural resource trustee may undertake only those actions necessary to abate the emergency situation, consistent with its existing authority. The normal procedures provided in this part must be followed before any additional restoration actions other than those necessary to abate the emergency situation are undertaken. The burden of proving that emergency restoration was required and that restoration costs were reasonable and necessary based on information available at the time rests with the natural resource trustee.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5173, Feb. 22, 1988]

§ 11.22 Sampling of potentially injured natural resources.

(a) General limitations. Until the authorized official has made the determination required in § 11.23 of this part to proceed with an assessment, field sampling of natural resources should be limited to the conditions identified in this section. All sampling and field work shall be subject to the provisions of § 11.17 of this part concerning safety and applicability of resource protection statutes.

(b) Early sampling and data collection. Field samples may be collected or site visits may be made before completing the preassessment screen to preserve data and materials that are likely to be lost if not collected at that time and that will be necessary to the natural resource damage assessment. Field sampling and data collection at this stage should be coordinated with the lead agency under the NCP to minimize duplication of sampling and data collection efforts. Such field sampling and data collection should be limited to:

(1) Samples necessary to preserve perishable materials considered likely to have been affected by, and contain evidence of, the oil or hazardous substance. These samples generally will be biological materials that are either dead or visibly injured and that evidence suggests have been injured by oil or a hazardous substance;

(2) Samples of other ephemeral conditions or material, such as surface water or soil containing or likely to contain oil or a hazardous substance, where those samples may be necessary for identification and for measurement of concentrations, and where necessary samples may be lost because of factors such as dilution, movement, decomposition, or leaching if not taken immediately; and

(3) Counts of dead or visibly injured organisms, which may not be possible to take if delayed because of factors such as decomposition, scavengers, or water movement. Such counts shall be subject to the provisions of § 11.71(l)(5)(iii) of this part.

§ 11.23 Preassessment screen—general.

(a) Requirement. Before beginning any assessment efforts under this part, except as provided for under the emergency restoration provisions of § 11.21 of this part, the authorized official shall complete a preassessment screen and make a determination as to whether an assessment under this part shall be carried out.

(b) Purpose. The purpose of the preassessment screen is to provide a rapid review of readily available information that focuses on resources for which the Federal or State agency or Indian tribe may assert trusteeship under section 107(f) or section 126(d) of CERCLA. This review should ensure that there is a reasonable probability of making a successful claim before monies and efforts are expended in carrying out an assessment.

(c) Determination. When the authorized official has decided to proceed with an assessment under this part, the authorized official shall document the decision in terms of the criteria provided in paragraph (e) of this section in a Preassessment Screen Determination. This Preassessment Screen Determination shall be included in the Report of Assessment described in § 11.90 of this part.

(d) Content. The preassessment screen shall be conducted in accordance with the guidance provided in this section and in § 11.24—Preassessment screen—information on the site and § 11.25—Preassessment screen—preliminary identification of resources potentially at risk, of this part.

(e) Criteria. Based on information gathered pursuant to the preassessment screen and on information gathered pursuant to the NCP, the authorized official shall make a preliminary determination that all of the following criteria are met before proceeding with an assessment:

(1) A discharge of oil or a release of a hazardous substance has occurred;

(2) Natural resources for which the Federal or State agency or Indian tribe may assert trusteeship under CERCLA have been or are likely to have been adversely affected by the discharge or release;

(3) The quantity and concentration of the discharged oil or released hazardous substance is sufficient to potentially cause injury, as that term is used in this part, to those natural resources;

(4) Data sufficient to pursue an assessment are readily available or likely to be obtained at reasonable cost; and

(5) Response actions, if any, carried out or planned do not or will not sufficiently remedy the injury to natural resources without further action.

(f) Coordination. (1) In a situation where response activity is planned or underway at a particular site, assessment activity shall be coordinated with the lead agency consistent with the NCP.

(2) Whenever, as part of a response action under the NCP, a preliminary assessment or an OSC Report is to be, or has been, prepared for the site, the authorized official should consult with the lead agency under the NCP, as necessary, and to the extent possible use information or materials gathered for the preliminary assessment or OSC Report, unless doing so would unnecessarily delay the preassessment screen.

(3) Where a preliminary assessment or an OSC Report does not exist or does not contain the information described in this section, that additional information may be gathered.

(4) If the natural resource trustee already has a process similar to the preassessment screen, and the requirements of the preassessment screen can be satisfied by that process, the processes may be combined to avoid duplication.

(g) Preassessment phase costs. (1) The following categories of reasonable and necessary costs may be incurred in the preassessment phase of the damage assessment:

(i) Release detection and identification costs;

(ii) Trustee identification and notification costs;

(iii) Potentially injured resource identification costs;

(iv) Initial sampling, data collection, and evaluation costs;

(v) Site characterization and preassessment screen costs; and

(vi) Any other preassessment costs for activities authorized by §§ 11.20 through 11.25 of this part.

(2) The reasonable and necessary costs for these categories shall be limited to those costs incurred by the authorized official for, and specifically allocable to, site-specific efforts taken during the preassessment phase for assessment of damages to natural resources for which the agency or Indian tribe is acting as trustee. Such costs shall be supported by appropriate records and documentation and shall not reflect regular activities performed by the agency or Indian tribe in management of the natural resource. Activities undertaken as part of the preassessment phase shall be taken in a manner that is cost-effective, as that phrase is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5173, Feb. 22, 1988]

§ 11.24 Preassessment screen—information on the site.

(a) Information on the site and on the discharge or release. The authorized official shall obtain and review readily available information concerning:

(1) The time, quantity, duration, and frequency of the discharge or release;

(2) The name of the hazardous substance, as provided for in Table 302.4—List of Hazardous Substances and Reportable Quantities, 40 CFR 302.4;

(3) The history of the current and past use of the site identified as the source of the discharge of oil or release of a hazardous substance;

(4) Relevant operations occurring at or near the site;

(5) Additional oil or hazardous substances potentially discharged or released from the site; and

(6) Potentially responsible parties.

(b) Damages excluded from liability under CERCLA. (1) The authorized official shall determine whether the damages:

(i) Resulting from the discharge or release were specifically identified as an irreversible and irretrievable commitment of natural resources in an environmental impact statement or other comparable environmental analysis, that the decision to grant the permit or license authorizes such commitment of natural resources, and that the facility or project was otherwise operating within the terms of its permit or license, so long as, in the case of damages to an Indian tribe occurring pursuant to a Federal permit or license, the issuance of that permit or license was not inconsistent with the fiduciary duty of the United States with respect to such Indian tribe; or

(ii) And the release of a hazardous substance from which such damages resulted have occurred wholly before enactment of CERCLA; or

(iii) Resulted from the application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 135-135k; or

(iv) Resulted from any other federally permitted release, as defined in section 101(10) of CERCLA; or

(v) Resulting from the release or threatened release of recycled oil from a service station dealer described in section 107(a)(3) or (4) of CERCLA if such recycled oil is not mixed with any other hazardous substance and is stored, treated, transported or otherwise managed in compliance with regulations or standards promulgated pursuant to section 3014 of the Solid Waste Disposal Act and other applicable authorities.

(2) An assessment under this part shall not be continued for potential injuries meeting one or more of the criteria described in paragraph (b)(1) of this section, which are exceptions to liability provided in sections 107(f), (i), and (j) and 114(c) of CERCLA.

(c) Damages excluded from liability under the CWA. (1) The authorized official shall determine whether the discharge meets one or more of the exclusions provided in section 311 (a)(2) or (b)(3) of the CWA.

(2) An assessment under this part shall not be continued for potential injuries from discharges meeting one or more of the CWA exclusions provided for in paragraph (c)(1) of this section.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 FR 5173, Feb. 22, 1988]

§ 11.25 Preassessment screen—preliminary identification of resources potentially at risk.

(a) Preliminary identification of pathways. (1) The authorized official shall make a preliminary identification of potential exposure pathways to facilitate identification of resources at risk.

(2) Factors to be considered in this determination should include, as appropriate, the circumstances of the discharge or release, the characteristics of the terrain or body of water involved, weather conditions, and the known physical, chemical, and toxicological properties of the oil or hazardous substance.

(3) Pathways to be considered shall include, as appropriate, direct contact, surface water, ground water, air, food chains, and particulate movement.

(b) Exposed areas. An estimate of areas where exposure or effects may have occurred or are likely to occur shall be made. This estimate shall identify:

(1) Areas where it has been or can be observed that the oil or hazardous substance has spread;

(2) Areas to which the oil or hazardous substance has likely spread through pathways; and

(3) Areas of indirect effect, where no oil or hazardous substance has spread, but where biological populations may have been affected as a result of animals moving into or through the site.

(c) Exposed water estimates. The area of ground water or surface water that may be or has been exposed may be estimated by using the methods described in appendix I of this part.

(d) Estimates of concentrations. An estimate of the concentrations of oil or a hazardous substance in those areas of potential exposure shall be developed.

(e) Potentially affected resources. (1) Based upon the estimate of the areas of potential exposure, and the estimate of concentrations in those areas, the authorized official shall identify natural resources for which he may assert trusteeship that are potentially affected by the discharge or release. This preliminary identification should be used to direct further investigations, but it is not intended to preclude consideration of other resources later found to be affected.

(2) A preliminary estimate, based on information readily available from resource managers, of the services of the resources identified as potentially affected shall be made. This estimate will be used in determining which resources to consider if further assessment efforts are justified.

§ 11.30 What does the authorized official do if an assessment is warranted?

(a) If the authorized official determines during the Preassessment Phase that an assessment is warranted, the authorized official must develop a plan for the assessment of natural resource damages.

(b) Purpose. The purpose of the Assessment Plan is to ensure that the assessment is performed in a planned and systematic manner and that methodologies selected from subpart D for a type A assessment or from subpart E for a type B assessment, including the Injury Determination, Quantification, and Damage Determination phases, can be conducted at a reasonable cost, as that phrase is used in this part.

(c) Assessment Plan phase costs. (1) The following categories of reasonable and necessary costs may be incurred in the Assessment Plan phase of the damage assessment:

(i) Methodology identification and screening costs;

(ii) Potentially responsible party notification costs;

(iii) Public participation costs;

(iv) Exposure confirmation analysis costs;

(v) Preliminary estimate of damages costs; and

(vi) Any other Assessment Plan costs for activities authorized by §§ 11.30 through 11.38.

(2) The reasonable and necessary costs for these categories shall be limited to those costs incurred or anticipated by the authorized official for, and specifically allocable to, site specific efforts taken in the development of an Assessment Plan for a resource for which the agency or Indian tribe is acting as trustee. Such costs shall be supported by appropriate records and documentation, and shall not reflect regular activities performed by the agency or tribe in management of the natural resource. Activities undertaken as part of the Assessment Plan phase shall be taken in a manner that is cost-effective, as that phrase is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5174, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 1996]

§ 11.31 What does the Assessment Plan include?

(a) General content and level of detail. (1) The Assessment Plan must identify and document the use of all of the type A and/or type B procedures that will be performed.

(2) The Assessment Plan shall be of sufficient detail to serve as a means of evaluating whether the approach used for assessing the damage is likely to be cost-effective and meets the definition of reasonable cost, as those terms are used in this part. The Assessment Plan shall include descriptions of the natural resources and the geographical areas involved. The Assessment Plan shall also include a statement of the authority for asserting trusteeship, or co-trusteeship, for those natural resources considered within the Assessment Plan. The authorized official's statement of the authority for asserting trusteeship shall not have the force and effect of a rebuttable presumption under § 11.91(c) of this part. In addition, for type B assessments, the Assessment Plan shall include the sampling locations within those geographical areas, sample and survey design, numbers and types of samples to be collected, analyses to be performed, preliminary determination of the recovery period, and other such information required to perform the selected methodologies.

(3) The Assessment Plan shall contain information sufficient to demonstrate that the damage assessment has been coordinated to the extent possible with any remedial investigation feasibility study or other investigation performed pursuant to the NCP.

(4) The Assessment Plan shall contain procedures and schedules for sharing data, split samples, and results of analyses, when requested, with any identified potentially responsible parties and other natural resource trustees.

(b) Identification of types of assessment procedures. The Assessment Plan must identify whether the authorized official plans to use a type A procedure, type B procedures, or a combination. Sections 11.34 through 11.36 contain standards for deciding which types of procedures to use. The Assessment Plan must include a detailed discussion of how these standards are met.

(c) Specific requirements for type B procedures. If the authorized official plans to use type B procedures, the Assessment Plan must also include the following:

(1) The results of the confirmation of exposure performed under § 11.37;

(2) A Quality Assurance Plan that satisfies the requirements listed in the NCP and applicable EPA guidance for quality control and quality assurance plans;

(3) The objectives, as required in § 11.64(a)(2) of this part, of any testing and sampling for injury or pathway determination; and

(4) The Restoration and Compensation Determination Plan developed in accordance with the guidance in § 11.81 of this part. If existing data are not sufficient to develop the Restoration and Compensation Determination Plan as part of the Assessment Plan, the Restoration and Compensation Determination Plan may be developed later, after the completion of the Injury Determination or Quantification phases. If the Restoration and Compensation Determination Plan is published separately, the public review and comment will be conducted pursuant to § 11.81(d) of this part.

(d) Specific requirements for type A procedures. If the authorized official plans to use a type A procedure, the Assessment Plan must also contain the information described in subpart D.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 FR 5174, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 1996; 73 FR 57265, Oct. 2, 2008]

§ 11.32 How does the authorized official develop the Assessment Plan?

(a) Pre-development requirements. The authorized official shall fulfill the following requirements before developing an Assessment Plan.

(1) Coordination. (i) If the authorized official's responsibility is shared with other natural resource trustees as a result of coexisting or contiguous natural resources or concurrent jurisdiction, the authorized official shall ensure that all other known affected natural resource trustees are notified that an Assessment Plan is being developed. This notification shall include the results of the Preassessment Screen Determination.

(ii) Authorized officials from different agencies or Indian tribes are encouraged to cooperate and coordinate any assessments that involve coexisting or contiguous natural resources or concurrent jurisdiction. They may arrange to divide responsibility for implementing the assessment in any manner that is agreed to by all of the affected natural resource trustees with the following conditions:

(A) A lead authorized official shall be designated to administer the assessment. The lead authorized official shall act as coordinator and contact regarding all aspects of the assessment and shall act as final arbitrator of disputes if consensus among the authorized officials cannot be reached regarding the development, implementation, or any other aspect of the Assessment Plan. The lead authorized official shall be designated by mutual agreement of all the natural resource trustees. If consensus cannot be reached as to the designation of the lead authorized official, the lead authorized official shall be designated in accordance with paragraphs (a)(1)(ii) (B), (C), or (D) of this section:

(B) When the natural resources being assessed are located on lands or waters subject to the administrative jurisdiction of a Federal agency, a designated official of the Federal agency shall act as the lead authorized official.

(C) When the natural resources being assessed, pursuant to section 126(d) of CERCLA, are located on lands or waters of an Indian tribe, an official designated by the Indian tribe shall act as the lead authorized official.

(D) For all other natural resources for which the State may assert trusteeship, a designated official of the State agency shall act as the lead authorized official.

(iii) If there is a reasonable basis for dividing the assessment, the natural resource trustee may act independently and pursue separate assessments, actions, or claims so long as the claims do not overlap. In these instances, the natural resource trustees shall coordinate their efforts, particularly those concerning the sharing of data and the development of the Assessment Plans.

(2) Identification and involvement of the potentially responsible party. (i) If the lead agency under the NCP for response actions at the site has not identified potentially responsible parties, the authorized official shall make reasonable efforts to identify any potentially responsible parties.

(ii) In the event the number of potentially responsible parties is large or if some of the potentially responsible parties cannot be located, the authorized official may proceed against any one or more of the parties identified. The authorized official should use reasonable efforts to proceed against most known potentially responsible parties or at least against all those potentially responsible parties responsible for significant portions of the potential injury.

(iii)(A) The authorized official shall send a Notice of Intent to Perform an Assessment to all identified potentially responsible parties. The Notice shall invite the participation of the potentially responsible party, or, if several parties are involved and if agreed to by the lead authorized official, a representative or representatives designated by the parties, in the development of the type and scope of the assessment and in the performance of the assessment. The Notice shall briefly describe, to the extent known, the site, vessel, or facility involved, the discharge of oil or release of hazardous substance of concern to the authorized official, and the resources potentially at risk. The Notice shall also contain a statement of authority for asserting trusteeship, or co-trusteeship, over those natural resources identified as potentially at risk.

(B) The authorized official shall allow at least 30 calendar days, with reasonable extensions granted as appropriate, for the potentially responsible party or parties notified to respond to the Notice before proceeding with the development of the Assessment Plan or any other assessment actions.

(b) Plan approval. The authorized official shall have final approval as to the appropriate methodologies to include in the Assessment Plan and any modifications to the Assessment Plan.

(c) Public involvement in the Assessment Plan. (1) The authorized official must make the Assessment Plan available for review by any identified potentially responsible parties, other natural resource trustees, other affected Federal or State agencies or Indian tribes, and any other interested member of the public for a period of at least 30 calendar days, with reasonable extensions granted as appropriate. The authorized official may not perform any type B procedures described in the Assessment Plan until after this review period.

(2) Any comments concerning the Assessment Plan received from identified potentially responsible parties, other natural resource trustees, other affected Federal or State agencies or Indian tribes, and any other interested members of the public, together with responses to those comments, shall be included as part of the Report of Assessment, described in § 11.90 of this part.

(d) Plan implementation. At the option of the authorized official and if agreed to by any potentially responsible party, or parties acting jointly, the potentially responsible party or any other party under the direction, guidance, and monitoring of the authorized official may implement all or any part of the Assessment Plan finally approved by the authorized official. Any decision by the authorized official to allow or not allow implementation by the potentially responsible party shall be documented in the Assessment Plan.

(e) Plan modification. (1) The Assessment Plan may be modified at any stage of the assessment as new information becomes available.

(2)(i) Any modification to the Assessment Plan that in the judgment of the authorized official is significant shall be made available for review by any identified potentially responsible party, any other affected natural resource trustees, other affected Federal or State agencies or Indian tribes, and any other interested members of the public for a period of at least 30 calendar days, with reasonable extensions granted as appropriate, before tasks called for in the modified plan are begun.

(ii) Any modification to the Assessment Plan that in the judgment of the authorized official is not significant shall be made available for review by any identified potentially responsible party, any other affected natural resource trustees, other affected Federal or State agencies or Indian tribes, and any other interested members of the public, but the implementation of such modification need not be delayed as a result of such review.

(f) Plan review. (1) After the Injury Determination phase is completed and before the Quantification phase is begun, the authorized official shall review the decisions incorporated in the Assessment Plan.

(2) The purpose of this review is to ensure that the selection of methodologies for the Quantification and Damage Determination phases is consistent with the results of the Injury Determination phase, and that the use of such methodologies remains consistent with the requirements of reasonable cost, as that term is used in this part.

(3) Paragraphs (f)(1) and (f)(2) of this section do not apply to the use of a type A procedure.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5174, Feb. 22, 1988; 59 FR 14282, Mar. 25, 1994; 61 FR 20609, May 7, 1996]

§ 11.33 What types of assessment procedures are available?

There are two types of assessment procedures:

(a) Type A procedures are simplified procedures that require minimal field observation which can be used for all types of resources defined under this part (hereafter, all environments). Subpart D of this part describes the Type A procedures.

(b) Type B procedures require more extensive field observation than the Type A procedures. Subpart E of this part describes the Type B procedures.

[91 FR 42878, July 13, 2026]

§ 11.34 When may a trustee use a Type A procedure?

A Trustee may use a Type A procedure for all resource types defined under this part if all of the following are satisfied:

(a) The natural resource trustee has decided that methods for replacement of resources or resource services from the list of applicable models or the factors for evaluation of new methodologies in § 11.83 are appropriate for determining damages to fund restoration activities at the site.

(b) All Federal, State, and Tribal trustees with probable jurisdiction over the injured natural resources who have elected to participate in the claim concur in the use of the Type A procedure in the circumstances presented.

(c) The claim that will be resolved using the Type A procedure is expected to be less than $5 million (excluding reasonable assessment costs). This figure will be periodically adjusted for inflation following guidance from the Office of Management and Budget. In claims which are expected to be higher than $5 million, the Type A procedures may still be used if all parties agree.

(d) At least one potentially responsible party has voluntarily agreed to utilize the Type A procedure. If a claim involves multiple potentially responsible parties, the Type A process may not be appropriate unless resolution of the claim involves all significant potentially responsible parties, or the resolution of the claim represents a final settlement of the claim for injury to specific natural resources at the site.

(e) The potentially responsible party agrees to toll the running of the statutory limitations period for filing the claim for at least one year and to reimburse the trustees for reasonable Type A assessment costs until the claim is resolved or the potentially responsible party gives formal notice of withdrawal from voluntary participation in the Type A procedure.

[91 FR 42878, July 13, 2026]

§ 11.35 How does the trustee decide whether to use Type A or Type B procedures?

(a) If the natural resource trustee determines under § 11.34 that a Type A procedure is available, the trustee must then decide whether to use that procedure or use a Type B procedure. The trustee must make this decision by weighing the difficulty of collecting site-specific data against the suitability of the averaged data and simplifying assumptions in the Type A procedure for the release being assessed. The trustee may use a Type B procedure if they can be performed at a reasonable cost and if the increase in accuracy provided by those procedures outweighs the increase in assessment costs.

(b) If there is no appropriate Type A procedure, the trustee must use a Type B procedure to calculate all damages.

[91 FR 42878, July 13, 2026]

§ 11.36 May the trustee use both a Type A and Type B procedure for the same release?

(a) The natural resource trustee may use both a Type A procedure and Type B procedure for the same release if:

(1) The Type B procedure is cost-effective and can be performed at a reasonable cost;

(2) There is no double recovery; and

(3) The Type B procedure is used only to determine damages for injuries or compensable values that are not addressed by the Type A procedure.

(b) The Type A procedure may be used to address any claim brought by a natural resource trustee.

(c) If a trustee elects to use both a Type A procedure and a Type B procedure, the Assessment Plan must explain how the double recovery will be prevented.

(d) When the trustee uses a Type B procedure for injuries not addressed in a Type A procedure, they must follow all of subpart E of this part (which contains standards for determining and quantifying injury as well as determining damages), § 11.31(c) (which addresses content of the Assessment Plan), and § 11.37 (which addresses confirmation of exposure). When the trustee uses a Type B procedure for compensable values that are not included in a Type A procedure but that result from injuries that are addressed in the Type A procedure, they need not follow all of subpart E and §§ 11.31(c) and 11.37. Instead, the trustee may rely on the injury predictions of the Type A procedure and simply use the valuation methodologies authorized by § 11.83(c) to calculate compensable value. When using valuation methodologies, the trustee must comply with § 11.84.

[91 FR 42878, July 13, 2026]

§ 11.37 Must the trustee confirm exposure before implementing the Type B Assessment Plan?

(a) Before including any Type B methodologies in the Assessment Plan, the trustee must confirm that at least one of the natural resources identified as potentially injured in the preassessment screen has in fact been exposed to the released substance.

(b) Whenever possible, exposure shall be confirmed by using existing data, such as those collected for response actions by the On-Scene Coordinator, or other available studies or surveys of the assessment area.

(c) Where sampling has been done before the completion of the preassessment screen, chemical analyses of such samples may be performed to confirm that exposure has occurred.

(d) Where existing data are unavailable or insufficient to confirm exposure, one or more of the analytical methodologies provided in the Injury Determination phase subpart E of this part may be used.

(e) Type B assessment methodologies shall be included in the Assessment Plan only upon meeting the requirements of this section.

[91 FR 42878, July 13, 2026]

§ 11.38 Assessment Plan—preliminary estimate of damages.

(a) Requirement. When performing a type B assessment pursuant to the requirements of subpart E of this part, the authorized official shall develop a preliminary estimate of: the anticipated costs of restoration, rehabilitation, replacement, and/or acquisition of equivalent resources for the injured natural resources; and the compensable value, as defined in § 11.83(c) of this part, of the injured natural resources, if the authorized official intends to include compensable value in the damage claim. This preliminary estimate is referred to as the preliminary estimate of damages. The authorized official shall use the guidance provided in this section, to the extent possible, to develop the preliminary estimate of damages.

(b) Purpose. The purpose of the preliminary estimate of damages is for reference in the scoping of the Assessment Plan to ensure that the choice of the scientific, cost estimating, and valuation methodologies expected to be used in the damage assessment fulfills the requirements of reasonable cost, as that term is used in this part. The authorized official will also use the preliminary estimate of damages in the review of the Assessment Plan, as required in § 11.32(f) of this part, to ensure the requirements of reasonable cost are still met.

(c) Steps. The preliminary estimate of damages should include consideration of the ability of the resources to recover naturally and, if relevant, the compensable value through the recovery period with and without possible alternative actions. The authorized official shall consider the following factors, to the extent possible, in making the preliminary estimate of damages:

(1) The preliminary estimate of costs of restoration, rehabilitation, replacement, and/or acquisition of equivalent resources should include consideration of a range of possible alternative actions that would accomplish the restoration, rehabilitation, replacement, and/or acquisition of the equivalent of the injured natural resources.

(i) The preliminary estimate of costs should take into account the effects, or anticipated effects, of any response actions.

(ii) The preliminary estimate of costs should represent the expected present value of anticipated costs, expressed in constant dollars, and should include direct and indirect costs, and include the timing of those costs. The provisions detailed in §§ 11.80-11.84 of this part are the basis for the development of the estimate.

(iii) The discount rate to be used in developing the preliminary estimate of costs shall be that determined in accordance with the guidance in § 11.84(e) of this part.

(2) The preliminary estimate of compensable value should be consistent with the range of possible alternatives for restoration, rehabilitation, replacement, and/or acquisition of equivalent resources being considered.

(i) The preliminary estimate of compensable value should represent the expected present value of the anticipated compensable value, expressed in constant dollars, accrued through the period for the restoration, rehabilitation, replacement, and/or acquisition of equivalent resources to baseline conditions, i.e., between the occurrence of the discharge or release and the completion of (A) the restoration or rehabilitation of the injured natural resources to a condition where they can provide the level of services available at baseline, or (B) the replacement and/or acquisition of equivalent natural resources capable of providing such services. The estimate should use the same base year as the preliminary estimate of costs of restoration, rehabilitation, replacement, and/or acquisition of equivalent resources. The provisions detailed in §§ 11.80-11.84 of this part are the basis for the development of this estimate.

(ii) The preliminary estimate of compensable value should take into account the effects, or anticipated effects, of any response actions.

(iii) The discount rate to be used in developing the preliminary estimate of compensable value shall be that determined in accordance with the guidance in § 11.84(e) of this part.

(d) Content and timing. (1) In making the preliminary estimate of damages, the authorized official should rely upon existing data and studies. The authorized official should not undertake significant new data collection or perform significant modeling efforts at this stage of the assessment planning phase.

(2) Where possible, the authorized official should make the preliminary estimate of damages before the completion of the Assessment Plan as provided for in § 11.31 of this part. If there is not sufficient existing data to make the preliminary estimate of damages at the same time as the assessment planning phase, this analysis may be completed later, at the end of the Injury Determination phase of the assessment, at the time of the Assessment Plan review.

(3) The authorized official is not required to disclose the preliminary estimate before the conclusion of the assessment. At the conclusion of the assessment, the preliminary estimate of damages, along with its assumptions and methodology, shall be included in the Report of the Assessment as provided for in § 11.91 of this part.

(e) Review. The authorized official shall review, and revise as appropriate, the preliminary estimate of damages at the end of the Injury Determination and Quantification phases. If there is any significant modification of the preliminary estimate of damages, the authorized official shall document it in the Report of the Assessment.

[59 FR 14282, Mar. 25, 1994. Redesignated at 61 FR 20610, May 7, 1996, as amended at 73 FR 57266, Oct. 2, 2008]

§ 11.40 How does a trustee use the Type A procedure?

Once a trustee has decided that the Type A procedure is appropriate to resolve a claim and the potentially responsible party has agreed to utilize the Type A procedure, the trustee should notify and invite other affected co-trustees to participate in the Type A procedure. The Type A procedure must be documented in a Type A Report.

§ 11.41 What information is included in a Type A Report?

(a) The Type A Report is a document to provide the public with notice of, and an opportunity to comment on, the use of the Type A procedure.

(b) The Type A Report must:

(1) State that the trustee is following this part and provide a citation to this part;

(2) Explain the basis for concluding that conditions for pursuing an assessment were met;

(3) Describe any agreements among co-trustees and potentially responsible parties;

(4) Identify ongoing or planned response activities that could affect the natural resources being assessed;

(5) Explain how conditions for using a Type A procedure listed in § 11.34 are met;

(6) Identify and describe the model(s) selected to determine damages to fund restoration activities, including the following;

(i) Data inputs, assumptions, strengths, limitations, and uncertainties;

(ii) Possible existing restoration alternatives that make these model assumptions valid for the purpose of restoration; and

(iii) Results of the modeling exercise;

(7) Note the establishment of an administrative record for the assessment and explain how to gain access to that record;

(8) Explain how to submit comments and state the deadline for comments; and

(9) Identify a contact person.

(c) The Type A Report must be made available to the public and provide for a comment period of at least 30 days.

§ 11.42 What documents must be in the administrative record when the Type A Report is published?

(a) Evidence of efforts to coordinate with response agencies (this need not include any evidence of the substance of discussions, nor documentation of every contact);

(b) Evidence of efforts to consult with other co-trustees (this need not include any evidence of the substance of discussions, nor documentation of every contact) and documentation of any agreements among co-trustees;

(c) The invitation to potentially responsible parties inviting them to participate in the Type A procedure and documentation of any agreements reached with potentially responsible parties;

(d) Information considered when developing data inputs and assumptions for modeling, including any significant uncertainties concerning the assumptions made and complete citations to any literature used;

(e) A printout of the model(s) sufficient for reproducibility (or a copy of the file used to generate the model(s));

(f) Documentation of any assessment costs incurred, if trustees plan to seek reimbursement of such costs; and

(g) Copy of the final Type A Report and each published version of the Type A Report.

§ 11.43 What is the process for Type A Report comments?

(a) Comments received during the comment period must be placed in the administrative record and reviewed by the trustees.

(b) If the trustees decide after their review that no changes to the Type A Report are needed, the trustees must publish a notice that:

(1) States that the Type A Report has been finalized; and

(2) Provides substantive responses to significant comments received during the comment period.

(c) If the trustees decide after their review that it is inappropriate to use the Type A procedure, the trustees may decide to use a Type B procedure for the assessment or stop the assessment.

(d) If the trustees decide after their review to select different model(s), or substantially change the model data inputs or assumptions to conduct the Type A procedure, the trustees must prepare a revised Type A Report that reflects the changes, provides any new information about the modified data inputs and assumptions, and substantively responds to significant comments received during the comment period. Minor changes require a statement of explanation of the changes, explanation of why they are not considered substantial, and discussion of any effects on results to be appended to the original Type A Report.

(e) The trustees must provide an additional comment period of at least 30 days for a revised Type A Report.

§ 11.44 How do the trustees conclude the Type A procedure?

(a) After the Type A Report is finalized, trustees may enter into a settlement agreement with potentially responsible parties.

(b) Damages to fund or undertake restoration activities must be utilized following a publicly reviewed Restoration Plan consistent with subpart F of this part.

(c) The public review and comment period for Administrative Settlement Agreements, Consent Decrees, and Restoration Plans may run concurrently with the comment period for the Type A Report, if appropriate.

§ 11.60 Type B assessments—general.

(a) Purpose. The purpose of the type B assessment is to provide alternative methodologies for conducting natural resource damage assessments in individual cases.

(b) Steps in the type B assessment. The type B assessment consists of three phases: § 11.61—Injury Determination; § 11.70—Quantification; and § 11.80—Damage Determination, of this part.

(c) Completion of type B assessment. After completion of the type B assessment, a Report of Assessment, as described in § 11.90 of this part, shall be prepared. The Report of Assessment shall include the determinations made in each phase.

(d) Type B assessment costs. (1) The following categories of reasonable and necessary costs may be incurred in the assessment phase of the damage assessment:

(i) Sampling, testing, and evaluation costs for injury and pathway determination;

(ii) Quantification costs (including baseline service determination and resource recoverability analysis);

(iii) Restoration and Compensation Determination Plan development costs including:

(A) Development of alternatives;

(B) Evaluation of alternatives;

(C) Potentially responsible party, agency, and public reviews;

(D) Other such costs for activities authorized by § 11.81 of this part;

(iv) Cost estimating and valuation methodology calculation costs; and

(v) Any other assessment costs authorized by §§ 11.60-11.84 of this part.

(2) The reasonable and necessary costs for these categories shall be limited to those costs incurred or anticipated by the authorized official for, and specifically allocable to, site-specific efforts taken in the assessment of damages for a natural resource for which the agency or Indian tribe is acting as trustee. Such costs shall be supported by appropriate records and documentation, and shall not reflect regular activities performed by the agency or the Indian tribe in management of the natural resource. Activities undertaken as part of the damage assessment phase shall be taken in a manner that is cost-effective, as that phrase is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5175, Feb. 22, 1988; 59 FR 14283, Mar. 25, 1994]

§ 11.61 Injury determination phase—general.

(a) Requirement. (1) The authorized official shall, in accordance with the procedures provided in the Injury Determination phase of this part, determine: whether an injury to one or more of the natural resources has occurred; and that the injury resulted from the discharge of oil or release of a hazardous substance based upon the exposure pathway and the nature of the injury.

(2) The Injury Determination phase consists of § 11.61—general; § 11.62—injury definition; § 11.63—pathway determination; and § 11.64—testing and sampling methods, of this part.

(b) Purpose. The purpose of the Injury Determination phase is to ensure that only assessments involving well documented injuries resulting from the discharge of oil or release of a hazardous substance proceed through the type B assessment.

(c) Injury Determination phase steps. (1) The authorized official shall determine whether the potentially injured resource constitutes a surface water, ground water, air, geologic, or biological resource as defined in § 11.14 of this part. The authorized official shall then proceed in accordance with the guidance provided in the injury definition section, § 11.62 of this part, to determine if the resource is injured.

(2) The authorized official shall follow the guidance provided in the testing and sampling methods section, § 11.64 of this part, in selecting the methodology for determining injury. The authorized official shall select from available testing and sampling procedures one or more procedures that meet the requirements of the selected methodologies.

(3) The authorized official shall follow the guidance provided in the pathway section, § 11.63 of this part, to determine the route through which the oil or hazardous substance is or was transported from the source of the discharge or release to the injured resource.

(4) If more than one resource, as defined in § 11.14(z) of this part, has potentially been injured, an injury determination for each resource shall be made in accordance with the guidance provided in each section of the Injury Determination phase.

(d) Selection of methodologies. (1) One of the methodologies provided in § 11.64 of this part for the potentially injured resource, or one that meets the acceptance criteria provided for that resource, shall be used to establish injury.

(2) Selection of the methodologies for the Injury Determination phase shall be based upon cost-effectiveness as that phrase is used in this part.

(e) Completion of Injury Determination phase. (1) Upon completion of the Injury Determination phase, the Assessment Plan shall be reviewed in accordance with the requirements of § 11.32(f) of this part.

(2) When the authorized official has determined that one or more of the natural resources has been injured as a result of the discharge or release, the authorized official may proceed to the Quantification and the Damage Determination phases.

(3) When the authorized official has determined that an injury has not occurred to at least one of the natural resources or that an injury has occurred but that the injury cannot be linked to the discharge or release, the authorized official shall not pursue further assessment under this part.

§ 11.62 Injury determination phase—injury definition.

(a) The authorized official shall determine that an injury has occurred to natural resources based upon the definitions provided in this section for surface water, ground water, air, geologic, and biological resources. The authorized official shall test for injury using the methodologies and guidance provided in § 11.64 of this part. The test results of the methodologies must meet the acceptance criteria provided in this section to make a determination of injury.

(b) Surface water resources. (1) An injury to a surface water resource has resulted from the discharge of oil or release of a hazardous substance if one or more of the following changes in the physical or chemical quality of the resource is measured:

(i) Concentrations and duration of substances in excess of drinking water standards as established by sections 1411-1416 of SDWA, or by other Federal or State laws or regulations that establish such standards for drinking water, in surface water that was potable before the discharge or release;

(ii) Concentrations and duration of substances in excess of water quality criteria established by section 1401(1)(D) of SDWA, or by other Federal or State laws or regulations that establish such criteria for public water supplies, in surface water that before the discharge or release met the criteria and is a committed use, as the phrase is used in this part, as a public water supply;

(iii) Concentrations and duration of substances in excess of applicable water quality criteria established by section 304(a)(1) of the CWA, or by other Federal or State laws or regulations that establish such criteria, in surface water that before the discharge or release met the criteria and is a committed use, as that phrase is used in this part, as a habitat for aquatic life, water supply, or recreation. The most stringent criterion shall apply when surface water is used for more than one of these purposes;

(iv) Concentrations of substances on bed, bank, or shoreline sediments sufficient to cause the sediment to exhibit characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act, 42 U.S.C. 6921; or

(v) Concentrations and duration of substances sufficient to have caused injury as defined in paragraphs (c), (d), (e), or (f) of this section to ground water, air, geologic, or biological resources, when exposed to surface water, suspended sediments, or bed, bank, or shoreline sediments.

(2)(i) The acceptance criterion for injury to the surface water resource is the measurement of concentrations of oil or a hazardous substance in two samples from the resource. The samples must be one of the following types, except as specified in paragraph (b)(3) of this section:

(A) Two water samples from different locations, separated by a straight-line distance of not less than 100 feet; or

(B) Two bed, bank, or shoreline sediment samples from different locations separated by a straight-line distance of not less than 100 feet; or

(C) One water sample and one bed, bank, or shoreline sediment sample; or

(D) Two water samples from the same location collected at different times.

(ii) In those instances when injury is determined and no oil or hazardous substances are detected in samples from the surface water resource, it must be demonstrated that the substance causing injury occurs or has occurred in the surface water resource as a result of physical, chemical, or biological reactions initiated by the discharge of oil or release of a hazardous substance.

(3) If the maximum straight-line distance of the surface water resource is less than 100 feet, then the samples required in paragraph (b)(2)(i) (A) and (B) of this section should be separated by one-half the maximum straight-line distance of the surface water resource.

(c) Ground water resources. (1) An injury to the ground water resource has resulted from the discharge of oil or release of a hazardous substance if one or more of the following changes in the physical or chemical quality of the resource is measured:

(i) Concentrations of substances in excess of drinking water standards, established by sections 1411-1416 of the SDWA, or by other Federal or State laws or regulations that establish such standards for drinking water, in ground water that was potable before the discharge or release;

(ii) Concentrations of substances in excess of water quality criteria, established by section 1401(1)(d) of the SDWA, or by other Federal or State laws or regulations that establish such criteria for public water supplies, in ground water that before the discharge or release met the criteria and is a committed use, as the phrase is used in this part, as a public water supply;

(iii) Concentrations of substances in excess of applicable water quality criteria, established by section 304(a)(1) of the CWA, or by other Federal or State laws or regulations that establish such criteria for domestic water supplies, in ground water that before the discharge or release met the criteria and is a committed use as that phrase is used in this part, as a domestic water supply; or

(iv) Concentrations of substances sufficient to have caused injury as defined in paragraphs (b), (d), (e), or (f) of this section to surface water, air, geologic, or biological resources, when exposed to ground water.

(2) The acceptance criterion for injury to ground water resources is the measurement of concentrations of oil or hazardous substance in two ground water samples. The water samples must be from the same geohydrologic unit and must be obtained from one of the following pairs of sources, except as specified in paragraph (c)(3) of this section:

(i) Two properly constructed wells separated by a straight-line distance of not less than 100 feet; or

(ii) A properly constructed well and a natural spring or seep separated by a straight-line distance of not less than 100 feet; or

(iii) Two natural springs or seeps separated by a straight-line distance of not less than 100 feet.

(3) If the maximum straight-line distance of the ground water resource is less than 100 feet, the samples required in paragraph (c)(2) of this section should be separated by one-half of the maximum straight-line distance of the ground water resource.

(4) In those instances when injury is determined and no oil or hazardous substance is detected in samples from the ground water resource, it must be demonstrated that the substance causing injury occurs or has occurred in the ground water resource as a result of physical, chemical, or biological reactions initiated by the discharge of oil or release of hazardous substances.

(d) Air resources. An injury to the air resource has resulted from the discharge of oil or release of a hazardous substance if one or more of the following changes in the physical or chemical quality of the resource is measured:

(1) Concentrations of emissions in excess of standards for hazardous air pollutants established by section 112 of the Clean Air Act, 42 U.S.C. 7412, or by other Federal or State air standards established for the protection of public welfare or natural resources; or

(2) Concentrations and duration of emissions sufficient to have caused injury as defined in paragraphs (b), (c), (e), or (f) of this section to surface water, ground water, geologic, or biological resources when exposed to the emissions.

(e) Geologic resources. An injury to the geologic resource has resulted from the discharge of oil or release of a hazardous substance if one or more of the following changes in the physical or chemical quality of the resource is measured:

(1) Concentrations of substances sufficient for the materials in the geologic resource to exhibit characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act, 42 U.S.C. 6921;

(2) Concentrations of substances sufficient to raise the negative logarithm of the hydrogen ion concentration of the soil (pH) to above 8.5 (above 7.5 in humid areas) or to reduce it below 4.0;

(3) Concentrations of substances sufficient to yield a salt saturation value greater than 2 millimhos per centimeter in the soil or a sodium adsorption ratio of more than 0.176;

(4) Concentrations of substances sufficient to decrease the water holding capacity such that plant, microbial, or invertebrate populations are affected;

(5) Concentrations of substances sufficient to impede soil microbial respiration to an extent that plant and microbial growth have been inhibited;

(6) Concentrations in the soil of substances sufficient to inhibit carbon mineralization resulting from a reduction in soil microbial populations;

(7) Concentrations of substances sufficient to restrict the ability to access, develop, or use mineral resources within or beneath the geologic resource exposed to the oil or hazardous substance;

(8) Concentrations of substances sufficient to have caused injury to ground water, as defined in paragraph (c) of this section, from physical or chemical changes in gases or water from the unsaturated zone;

(9) Concentrations in the soil of substances sufficient to cause a toxic response to soil invertebrates;

(10) Concentrations in the soil of substances sufficient to cause a phytotoxic response such as retardation of plant growth; or

(11) Concentrations of substances sufficient to have caused injury as defined in paragraphs (b), (c), (d), or (f), of this section to surface water, ground water, air, or biological resources when exposed to the substances.

(f) Biological resources. (1) An injury to a biological resource has resulted from the discharge of oil or release of a hazardous substance if concentration of the substance is sufficient to:

(i) Cause the biological resource or its offspring to have undergone at least one of the following adverse changes in viability: death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunctions in reproduction), or physical deformations; or

(ii) Exceed action or tolerance levels established under section 402 of the Food, Drug and Cosmetic Act, 21 U.S.C. 342, in edible portions of organisms; or

(iii) Exceed levels for which an appropriate State health agency has issued directives to limit or ban consumption of such organism.

(2) The method for determining injury to a biological resource, as defined in paragraph (f)(1)(i) of this section, shall be chosen based upon the capability of the method to demonstrate a measurable biological response. An injury can be demonstrated if the authorized official determines that the biological response under consideration can satisfy all of the following acceptance criteria:

(i) The biological response is often the result of exposure to oil or hazardous substances. This criterion excludes biological responses that are caused predominately by other environmental factors such as disturbance, nutrition, trauma, or weather. The biological response must be a commonly documented response resulting from exposure to oil or hazardous substances.

(ii) Exposure to oil or hazardous substances is known to cause this biological response in free-ranging organisms. This criterion identifies biological responses that have been documented to occur in a natural ecosystem as a result of exposure to oil or hazardous substances. The documentation must include the correlation of the degree of the biological response to the observed exposure concentration of oil or hazardous substances.

(iii) Exposure to oil or hazardous substances is known to cause this biological response in controlled experiments. This criterion provides a quantitative confirmation of a biological response occurring under environmentally realistic exposure levels that may be linked to oil or hazardous substance exposure that has been observed in a natural ecosystem. Biological responses that have been documented only in controlled experimental conditions are insufficient to establish correlation with exposure occurring in a natural ecosystem.

(iv) The biological response measurement is practical to perform and produces scientifically valid results. The biological response measurement must be sufficiently routine such that it is practical to perform the biological response measurement and to obtain scientifically valid results. To meet this criterion, the biological response measurement must be adequately documented in scientific literature, must produce reproducible and verifiable results, and must have well defined and accepted statistical criteria for interpreting as well as rejecting results.

(3) Unless otherwise provided for in this section, the injury determination must be based upon the establishment of a statistically significant difference in the biological response between samples from populations in the assessment area and in the control area. The determination as to what constitutes a statistically significant difference must be consistent with the quality assurance provisions of the Assessment Plan. The selection of the control area shall be consistent with the guidance provided in § 11.72 of this part.

(4) The biological responses listed in this paragraph have been evaluated and found to satisfy the acceptance criteria provided in paragraph (f)(2) of this section. The authorized official may, when appropriate, select from this list to determine injury to fish and wildlife resources or may designate another response as the determiner of injury provided that the designated response can satisfy the acceptance criteria provided in paragraph (f)(2) of this section. The biological responses are listed by the categories of injury for which they may be applied.

(i) Category of injury—death. Five biological responses for determining when death is a result of exposure to the discharge of oil or release of a hazardous substance have met the acceptance criteria.

(A) Brain cholinesterase (ChE) enzyme activity. Injury has occurred when brain ChE activity in a sample from the population has been inhibited by at least 50 percent compared to the mean for normal brain ChE activity of the wildlife species. These enzymes are in the nervous system of vertebrate organisms and the rate of ChE activity is associated with the regulation of nerve impulse transmission. This biological response may be used to confirm injury when anti-ChE substances, such as organophosphorus and carbamate pesticides, are suspected to have resulted in death to bird and mammal species.

(B) Fish kill investigations. Injury has occurred when a significant increase in the frequency or numbers of dead or dying fish can be measured in accordance with the procedures for counting dead or dying fish contained in AFS Special Publication 35 (incorporated by reference, see § 11.18).

(C) Wildlife kill investigations. Injury has occurred when a significant increase in the frequency or number of dead or dying birds or mammal species can be measured in a population sample from the assessment area as compared to a population sample from a control area. Wildlife kill investigations may be used when acute mortality has occurred to multiple wildlife species, or when detectable quantities of oil or hazardous substances have adherred to, bound to, or otherwise covered surface tissue, or had been ingested or inhaled by dead or dying bird or mammal species.

(D) In situ bioassay. Injury has occurred when a statistically significant difference can be measured in the total mortality and/or mortality rates between population samples exposed in situ to a discharge of oil or a release of hazardous substance and those in a control site. In situ caged or confined bioassay may be used to confirm injury when oil or hazardous substances are suspected to have caused death to fish species.

(E) Laboratory toxicity testing. Injury has occurred when a statistically significant difference can be measured in the total mortality and/or mortality rates between population samples of the test organisms placed in exposure chambers containing concentrations of oil or hazardous substances and those in a control chamber. Published standardized laboratory fish toxicity testing methodologies for acute flow-through, acute static, partial-chronic (early life stage), and chronic (life cycle) toxicity tests may be used to confirm injury. The oil or hazardous substance used in the test must be the exact substance or a substance that is reasonably comparable to that suspected to have caused death to the natural population of fish.

(ii) Category of injury—disease. One biological response for determining when disease is a result of exposure to the discharge of oil or release of a hazardous substance has met the acceptance criteria.

(A) Fin erosion. Injury has occurred when a statistically significant difference can be measured in the frequency of occurrence of fin erosion (also referred to as fin rot) in a population sample from the assessment area as compared to a sample from the control area. Fin erosion shall be confirmed by appropriate histological procedures. Fin erosion may be used when oil or hazardous substances are suspected to have caused the disease.

(iii) Category of injury—behavioral abnormalities. Two biological responses for determining when behavioral abnormalities are a result of the exposure to the discharge of oil or release of a hazardous substance have met the acceptance criteria.

(A) Clinical behavioral signs of toxicity. Injury has occurred when a statistically significant difference can be measured in the frequency of occurrence of clinical behavioral signs of toxicity in a population sample from the assessment area as compared to a sample from the control area. Clinical behavioral signs of toxicity are characteristic behavioral symptoms expressed by an organism in response to exposure to an oil or hazardous substance. The clinical behavioral signs of toxicity used shall be those that have been documented in published literature.

(B) Avoidance. Injury has occurred when a statistically significant difference can be measured in the frequency of avoidance behavior in population samples of fish placed in testing chambers with equal access to water containing oil or a hazardous substance and the control water. The oil or hazardous substance used in the test must be the exact substance or a substance that is reasonably comparable to that suspected to have caused avoidance to the natural populations of fish. This biological response may be used to confirm injury when oil or hazardous substances are suspected to have resulted in avoidance behavior in fish species.

(iv) Category of injury—cancer. One biological response for determining when cancer is a result of exposure to the discharge of oil or release of a hazardous substance has met the acceptance criteria.

(A) Fish neoplasm. Injury has occurred when a statistically significant difference can be measured in the frequency of occurrence of the fish neoplasia when comparing population samples from the assessment area and a control area. Neoplasms are characterized by relatively autonomous growth of abnormal cells that by proliferation infiltrate, press upon, or invade healthy tissue thereby causing destruction of cells, interference with physiological functions, or death of the organism. The following type of fish neoplasia may be used to determine injury: liver neoplasia and skin neoplasia. The neoplasms shall be confirmed by histological procedures and such confirmation procedures may also include special staining techniques for specific tissue components, ultra-structural examination using electron microscopy to identify cell origin, and to rule out or confirm viral, protozoan, or other causal agents. Fish neoplasm may be used to determine injury when oil or hazardous substances are suspected to have been the causal agent.

(v) Category of injury—physiological malfunctions. Five biological responses for determining when physiological malfunctions are a result of exposure to the discharge of oil or release of a hazardous substance have met the acceptance criteria.

(A) Eggshell thinning. Injury has occurred when eggshell thicknesses for samples for a population of a given species at the assessment area are thinner than those for samples from a population at a control area, or are at least 15 percent thinner than eggshells collected before 1946 from the same geographic area and stored in a museum. This biological response is a measure of avian eggshell thickness resulting from the adult bird having assimilated the oil or hazardous substance. This biological response may be used when the organochlorine pesticide DDT or its metabolites are suspected to have caused such physiological malfunction injury.

(B) Reduced avian reproduction. Injury has occurred when a statistically significant difference can be measured in the mean number of young fledged per active nest when comparing samples from populations in the assessment area and a control area. The fledging success (the number of healthy young leaving the nest) shall be used as the measurement of injury. Factors that may contribute to this measurement include egg fertility, hatching success, and survival of young. This biological response may be used when oil or hazardous substances are suspected to have reduced the nesting success of avian species.

(C) Cholinesterase (ChE) enzyme inhibition. Injury has occurred when brain ChE activity in a sample from the population at the assessment area shows a statistically significant inhibition when compared to the mean activity level in samples from populations in a control area. These enzymes are in the nervous systems of vertebrate organisms and the rate of ChE activity is associated with the regulation of nerve impulse transmission. This biological response may be used as a demonstration of physiological malfunction injury to birds, mammals, and reptiles when anti-ChE substances, such as organophosphorus and carbamate pesticides, have been discharged or released.

(D) Delta-aminolevulinic acid dehydratase (ALAD) inhibition. Injury has occurred when the activity level of whole blood ALAD in a sample from the population of a given species at an assessment area is significantly less than mean values for a population at a control area, and ALAD depression of at least 50 percent can be measured. The ALAD enzyme is associated with the formation of hemoglobin in blood and in chemical detoxification processes in the liver. This biological response is a measure of the rate of ALAD activity. This biological response may be used to determine injury to bird and mammal species that have been exposed to lead.

(E) Reduced fish reproduction. Injury has occurred when a statistically significant difference in reproduction success between the control organisms and the test organisms can be measured based on the use of published standardized laboratory toxicity testing methodologies. This biological response may be used when the oil or hazardous substance is suspected to have caused a reduction in the reproductive success of fish species. Laboratory partial-chronic and laboratory chronic toxicity tests may be used. The oil or hazardous substance used in the test must be the exact substance or a substance that is reasonably comparable to that suspected to have caused reduced reproductive success in the natural population of fish.

(vi) Category of injury—physical deformation. Four biological responses for determining when physical deformations are a result of exposure to the discharge of oil or release of a hazardous substance have met the injury acceptance criteria.

(A) Overt external malformations. Injury has occurred when a statistically significant difference can be measured in the frequency of overt external malformation, such as small or missing eyes, when comparing samples from populations of wildlife species from the assessment area and a control area. This biological response may be used as a demonstration of injury when such physical deformations are observed in wildlife species exposed to oil or hazardous substances.

(B) Skeletal deformities. Injury has occurred when a statistically significant difference can be measured in the frequency of skeletal deformities, such as defects in growth of bones, when comparing samples from populations of wildlife species from the assessment area and a control area. This biological response may be used as a demonstration of injury when such physical deformations are observed in wildlife species exposed to oil or hazardous substances.

(C) Internal whole organ and soft tissue malformation. Injury has occurred when a statistically significant difference can be measured in the frequency of malformations to brain, heart, liver, kidney, and other organs, as well as soft tissues of the gastrointestinal tract and vascular system, when comparing samples from populations of wildlife species in the assessment area and a control area. This biological response may be used as a demonstration of injury when such physical deformations are observed in wildlife species exposed to oil or hazardous substances.

(D) Histopathological lesions. Injury has occurred when a statistically significant difference can be measured in the frequency of tissue or cellular lesions when comparing samples from populations of wildlife species from the assessment area and a control area. This biological response may be used as a demonstration of injury when such physical deformations are observed in wildlife species exposed to oil or hazardous substances.

[51 FR 27725, Aug. 1, 1986, as amended at 91 FR 42880, July 13, 2026]

§ 11.63 Injury determination phase—pathway determination.

(a) General. (1) To determine the exposure pathways of the oil or hazardous substance, the following shall be considered:

(i) The chemical and physical characteristics of the discharged oil or released hazardous substance when transported by natural processes or while present in natural media;

(ii) The rate or mechanism of transport by natural processes of the discharged oil or released hazardous substance; and

(iii) Combinations of pathways that, when viewed together, may transport the discharged oil or released hazardous substance to the resource.

(2) The pathway may be determined by either demonstrating the presence of the oil or hazardous substance in sufficient concentrations in the pathway resource or by using a model that demonstrates that the conditions existed in the route and in the oil or hazardous substance such that the route served as the pathway.

(3) To the extent that the information needed to make this determination is not available, tests shall be conducted and necessary data shall be collected to meet the requirements of this section. Methods that may be used to conduct these additional tests and collect new information are described in § 11.64 of this part.

(b) Surface water pathway. (1) When the surface water resource is suspected as the pathway or a component of the pathway, the authorized official shall determine, using guidance provided in this paragraph, whether the surface water resource, either solely or in combination with other media, served as the exposure pathway for injury to the resource.

(2)(i) Using available information and such additional tests as necessary, it should be determined whether the surface water resource downstream or downcurrent of the source of discharge or release has been exposed to the oil or hazardous substance.

(ii) When the source of discharge or release is on an open water body, such as a marsh, pond, lake, reservoir, bay, estuary, gulf, or sound, it should be determined, using available information and such additional tests as necessary, whether the surface water resource in the vicinity of the source of discharge or release has been exposed to the oil or hazardous substance.

(3)(i) If a surface water resource is or likely has been exposed, the areal extent of the exposed surface water resource should be estimated, including delineation of:

(A) Channels and reaches:

(B) Seasonal boundaries of open water bodies; and

(C) Depth of exposed bed, bank, or shoreline sediments.

(ii) As appropriate to the exposed resource, the following should be determined:

(A) Hydraulic parameters and streamflow characteristics of channels and reaches;

(B) Bed sediment and suspended sediment characteristics, including grain size, grain mineralogy, and chemistry of grain surfaces;

(C) Volume, inflow-outflow rates, degree of stratification, bathymetry, and bottom sediment characteristics of surface water bodies;

(D) Suspended sediment concentrations and loads and bed forms and loads of streams and tidally affected waters; and

(E) Tidal flux, current direction, and current rate in coastal and marine waters.

(4)(i) Using available information and data from additional tests as necessary, the mobility of the oil or hazardous substance in the exposed surface water resource should be estimated. This estimate should consider such physical and chemical characteristics of the oil or hazardous substance as aqueous solubility, aqueous miscibility, density, volatility, potential for chemical degradation, chemical precipitation, biological degradation, biological uptake, and adsorption.

(ii) Previous studies of the characteristics discussed in paragraph (b)(4)(i) of this section should be relied upon if hydraulic, physical, and chemical conditions in the exposed surface water resource are similar to experimental conditions of the previous studies. In the absence of this information, those field and laboratory studies necessary to estimate the mobility of the oil or hazardous substance in surface water flow may be performed.

(5)(i) The rate of transport of the oil or hazardous substance in surface water should be estimated using available information and with consideration of the hydraulic properties of the exposed resource and the physical and chemical characteristics of the oil or hazardous substance.

(ii) Transport rates may be estimated using:

(A) The results of previous time-of-travel and dispersion studies made in the exposed surface water resource before the discharge or release;

(B) The results of previous studies, conducted with the same or similar chemical substances to those discharged or released under experimental conditions similar to the hydraulic, chemical, and biological conditions in the exposed surface water resource;

(C) The results of field measurements of time-of-travel and dispersion made in the exposed or comparable surface water resource, using natural or artificial substances with transport characteristics that reasonably approximate those of the oil or hazardous substance; and

(D) The results of simulation studies using the results of appropriate time-of-travel and dispersion studies in the exposed or comparable surface water resource.

(c) Ground water pathway. (1) When ground water resources are suspected as the pathway or a component of the pathway, the authorized official shall determine, using guidance provided in this paragraph, whether ground water resources, either solely or in combination with other media, served as the exposure pathway for injury to the resource.

(2) Using available information and such additional tests as necessary, it should be determined whether the unsaturated zone, the ground water, or the geologic materials beneath or downgradient of the source of discharge or release have been exposed to the oil or hazardous substance.

(3) If a ground water resource is or likely has been exposed, available information and such additional tests should be used as necessary to determine the characteristics of the unsaturated zone, as well as any aquifers and confining units containing the exposed ground water, in the vicinity of the source of discharge or release. The characteristics of concern include:

(i) Local geographical extent of aquifers and confining units;

(ii) Seasonal depth to saturated zone beneath the site;

(iii) Direction of ground water flow in aquifers;

(iv) Local variation in direction of ground water flow resulting from seasonal or pumpage effects;

(v) Elevation of top and bottom of aquifer and confining units;

(vi) Lithology, mineralogy, and porosity of rocks or sediments comprising the unsaturated zone, aquifers, and confining units;

(vii) Transmissivity and hydraulic conductivity of aquifers and confining units; and

(viii) Nature and amount of hydraulic connection between ground water and local surface water resources.

(4)(i) Using available information and such additional tests as necessary, the mobility of the oil or hazardous substance within the unsaturated zone and in the exposed ground water resources should be estimated. This estimate should consider local recharge rates and such physical and chemical characteristics of the oil or hazardous substance as aqueous solubility, aqueous miscibility, density, volatility, potential for chemical degradation, chemical precipitation, biological degradation, biological uptake, and adsorption onto solid phases in the unsaturated zone, aquifers, and confining units.

(ii) Previous studies of the characteristics discussed in paragraph (c)(4)(i) of this section should be relied upon if geohydrologic, physical, and chemical conditions in the exposed ground water resource are similar to experimental conditions of the previous studies. In the absence of this information, field and laboratory studies may be performed as necessary to estimate the mobility of the oil or hazardous substance within the unsaturated zone and in ground water flows.

(5)(i) The rate of transport of the oil or hazardous substance in ground water should be estimated using available information and with consideration of the site hydrology, geohydrologic properties of the exposed resource, and the physical and chemical characteristics of the oil or hazardous substance.

(ii) Transport rates may be estimated using:

(A) Results of previous studies conducted with the same or similar chemical substance, under experimental geohydrological, physical, and chemical conditions similar to the ground water resource exposed to the oil or hazardous substance;

(B) Results of field measurements that allow computation of arrival times of the discharged or released substance at downgradient wells, so that an empirical transport rate may be derived; or

(C) Results of simulation studies, including analog or numerical modeling of the ground water system.

(d) Air pathway. (1) When air resources are suspected as the pathway or a component of the pathway, the authorized official shall determine, using guidance provided in this paragraph, whether the air resources either solely or in combination with other media, served as the exposure pathway for injury to the resource.

(2) Using available information, air modeling, and additional field sampling and analysis, it should be determined whether air resources have been exposed to the discharge of oil or release of a hazardous substance.

(3)(i) If an air resource is or has likely been exposed, available information and such additional tests as necessary should be used to estimate the areal extent of exposure and the duration and frequency of exposure of such areas to emissions from the discharge of oil or release of a hazardous substance.

(ii) The areal extent of exposure is defined as the geographical surface area or space where emissions from the source of discharge or release are found or otherwise determined to be present for such duration and frequency as to potentially result in injury to resources present within the area or space.

(4) Previous studies of the characteristics discussed in paragraph (d)(3)(i) of this section should be relied upon if the conditions in the exposed air resource are similar to experimental conditions of the previous studies. In the absence of this information, air sampling and analysis methods identified in § 11.64(d) of this part, air modeling methods, or a combination of these methods may be used in identifying the air exposure pathway and in estimating the areal extent of exposure and duration and frequency of exposure.

(5) For estimating the areal extent, duration, and frequency of exposure from the discharge or release, the following factors shall be considered as may be appropriate for each emissions event:

(i) The manner and nature in which the discharge or release occurs, including the duration of the emissions, amount of the discharge or release, and emergency or other time critical factors;

(ii) The configuration of the emitting source, including sources such as ponds, lagoons, pools, puddles, land and water surface spills, and venting from containers and vessels;

(iii) Physical and chemical properties of substances discharged or released, including volatility, toxicity, solubility, and physical state;

(iv) The deposition from the air and re-emission to the air of gaseous and particulate emissions that provide periodic transport of the emissions; and

(v) Air transport and dispersion factors, including wind speed and direction, and atmospheric stability and temperature.

(e) Geologic pathway. (1) When geologic resources are suspected as the pathway or a component of the pathway, the authorized official shall determine, using guidance provided in this paragraph, whether geologic resources, either solely or in combination with other media, served as the exposure pathway for injury to the resource.

(2)(i) Using available information and the methods listed in § 11.64(e) of this part, it should be determined whether any element of the geologic resource has been exposed to the oil or hazardous substance. If a geologic resource is or has likely been exposed, the areal extent of the exposed geologic resource, including the lateral and vertical extent of the dispersion, should be estimated.

(ii) To determine whether the unsaturated zone served as a pathway, the guidance provided in paragraph (c) of this section should be followed.

(f) Biological pathway. (1) When biological resources are suspected as the pathway or a component of the pathway, the authorized official shall determine, using the guidance provided in this paragraph, whether biological resources, either solely or in combination with other media, served as the exposure pathway for injury to the resource.

(2) Biological pathways that resulted from either direct or indirect exposure to the oil or hazardous substance, or from exposure to products of chemical or biological reactions initiated by the discharge or release shall be identified. Direct exposure can result from direct physical contact with the discharged oil or released hazardous substance. Indirect exposure can result from food chain processes.

(3) If the oil or hazardous substance adhered to, bound to, or otherwise covered surface tissue, or was ingested, or inhaled but not assimilated, the area of dispersion may be determined based upon chemical analysis of the appropriate tissues or organs (such as leaves, lungs, stomach, intestine, or their contents) that were directly exposed to the oil or hazardous substance.

(4) If the oil or hazardous substance was assimilated, the areal dispersion may be determined based upon one or more of the following alternative procedures:

(i) If direct exposure to the biological resource has occurred, chemical analysis of the organisms that have been exposed may be performed.

(ii) If indirect exposure to the biological resource has occurred, either chemical analysis of free-ranging biological resources using one or more indicator species as appropriate, or laboratory analysis of one or more in situ placed indicator species as appropriate may be performed.

(A) Indicator species, as used in this section, means a species of organism selected consistent with the following factors to represent a trophic level of a food chain:

(1) General availability of resident organisms in the assessment area;

(2) Potential for exposure to the oil or hazardous substance through ingestion, assimilation, or inhalation;

(3) Occurrence of the substance in a chemical form that can be assimilated by the organism;

(4) Capacity of the organism to assimilate, bioconcentrate, bioaccumulate, and/or biomagnify the substance;

(5) Capacity of the organism to metabolize the substance to a form that cannot be detected through available chemical analytical procedures; and

(6) Extent to which the organism is representative of the food chain of concern.

(B) Collection of the indicator species should be limited to the number necessary to define the areal dispersion and to provide sufficient sample volume for chemical analysis.

(C) When in situ procedures are used, indicator species that behave comparably to organisms existing under free-ranging conditions shall be collected. The indicator species used in this procedure shall be obtained either from a control area selected consistent with provisions of § 11.72 of this part or obtained from a suitable supply of wild-strain organisms reared in a laboratory setting. Appropriate chemical analysis shall be performed on a representative subsample of the indicator species before in situ placement.

(iii) In situ placement procedures shall be used where the collection of samples would be inconsistent with the provisions of § 11.17(b) of this part.

(5) Sampling sites and the number of replicate samples to be collected at the sampling sites shall be consistent with the quality assurance provisions of the Assessment Plan.

(6) Chemical analysis of biological resource samples collected for the purpose of this section shall be conducted in accordance with the quality assurance provisions of the Assessment Plan.

§ 11.64 Injury determination phase—testing and sampling methods.

(a) General. (1) The guidance provided in this section shall be followed for selecting methodologies for the Injury Determination phase.

(2) Before selecting methodologies, the objectives to be achieved by testing and sampling shall be defined. These objectives shall be listed in the Assessment Plan. In developing these objectives, the availability of information from response actions relating to the discharge or release, the resource exposed, the characteristics of the oil or hazardous substance, potential physical, chemical, or biological reactions initiated by the discharge or release, the potential injury, the pathway of exposure, and the potential for injury resulting from that pathway should be considered.

(3) When selecting testing and sampling methods, only those methodologies shall be selected:

(i) For which performance under conditions similar to those anticipated at the assessment area has been demonstrated;

(ii) That ensure testing and sampling performance will be cost-effective;

(iii) That will produce data that were previously unavailable and that are needed to make the determinations; and

(iv) That will provide data consistent with the data requirements of the Quantification phase.

(4) Specific factors that should be considered when selecting testing and sampling methodologies to meet the requirements in paragraph (a)(3) of this section include:

(i) Physical state of the discharged or released substance;

(ii) The duration, frequency, season, and time of the discharge or release;

(iii) The range of concentrations of chemical compounds to be analyzed in different media;

(iv) Detection limits, accuracy, precision, interferences, and time required to perform alternative methods;

(v) Potential safety hazards to obtain and test samples;

(vi) Costs of alternative methods; and

(vii) Specific guidance provided in paragraphs (b), (c), (d), (e), and (f) of this section.

(b) Surface water resources. (1) Testing and sampling for injury to surface water resources shall be performed using methodologies described in the Assessment Plan.

(2) Chemical analyses performed to meet the requirements of the Injury Determination phase for surface water resources shall be conducted in accordance with methods that are generally accepted or have been scientifically verified and documented.

(3) The term “water sample” shall denote a volume of water collected and preserved to represent the bulk water and any dissolved or suspended materials or microorganisms occurring in the surface water resource.

(4) Sampling of water and sediments from surface water resources shall be conducted according to generally accepted methods.

(5) Measurement of the hydrologic properties of the resource shall be conducted according to generally accepted methods.

(6)(i) Interpretation of surface-water flow or estimation of transport of oil or hazardous substance in surface water through the use of models shall be based on hydrologic literature and current practice.

(ii) The applicability of models used during the assessment should be demonstrated, including citation or description of the following:

(A) Physical, chemical, and biological processes simulated by the model;

(B) Mathematical or statistical methods used in the model; and

(C) Model computer code (if any), test cases proving the code works, and any alteration of previously documented code made to adapt the model to the assessment area.

(iii) The validity of models used during the assessment should be established, including a description of the following:

(A) Hydraulic geometry, physiographic features, and flow characteristics of modeled reaches or areas;

(B) Sources of hydrological, chemical, biological, and meteorological data used in the model;

(C) Lists or maps of data used to describe initial conditions;

(D) Time increments or time periods modeled;

(E) Comparison of predicted fluxes of water and solutes with measured fluxes;

(F) Calibration-verification procedures and results; and

(G) Types and results of sensitivity analyses made.

(c) Ground water resources. (1) Testing and sampling for injury to ground water resources shall be performed using methodologies described in the Assessment Plan.

(2) Chemical analyses performed to meet the requirements of the Injury Determination phase for ground water resources shall be conducted in accordance with methods that are generally accepted or have been scientifically verified and documented.

(3)(i) The term “water sample” shall denote a volume of water collected and preserved to represent the bulk water and any dissolved or suspended materials or microorganisms occurring in the ground water resource.

(ii) The source of ground water samples may be from natural springs, in seeps, or from wells constructed according to generally accepted methods.

(4) Sampling of ground water or of geologic materials through which the ground water migrates shall be conducted according to generally accepted methods.

(5) Measurement of the geohydrologic properties of the resource shall be conducted according to generally accepted practice.

(6) Description of lithologies, minerals, cements, or other sedimentary characteristics of the ground water resource should follow generally accepted methods.

(7) Interpretation of the geohydrological setting, including identifying geologic layers comprising aquifers and any confining units, shall be based on geohydrologic and geologic literature and generally accepted practice.

(8)(i) Interpretation of ground-water flow systems or estimation of transport of oil or hazardous substances in ground water through the use of models shall be based on geohydrologic literature and current practice.

(ii) The applicability of models used during the assessment should be demonstrated, including citation or description of the following.

(A) Physical, chemical, and biological processes simulated by the model;

(B) Mathematical or statistical methods used in the model; and

(C) Model computer code (if any), test cases proving the code works, and any alteration of previously documented code made to adapt the model to the assessment area.

(iii) The validity of models used during the assessment should be established, including a description of the following:

(A) Model boundary conditions and stresses simulated;

(B) How the model approximates the geohydrological framework of the assessment area;

(C) Grid size and geometry;

(D) Sources of geohydrological, chemical, and biological data used in the model;

(E) Lists or maps of data used to describe initial conditions;

(F) Time increments or time periods modeled;

(G) Comparison of predicted fluxes of water and solutes with measured fluxes;

(H) Calibration-verification procedures and results; and

(I) Type and results of sensitivity analyses made.

(d) Air resources. (1) Testing and sampling for injury to air resources shall be performed using methodologies that meet the selection and documentation requirements in this paragraph. Methods identified in this section and methods meeting the selection requirements identified in this section shall be used to detect, identify, and determine the presence and source of emissions of oil or a hazardous substance, and the duration, frequency, period of exposure (day, night, seasonal, etc.), and levels of exposure.

(2) The sampling and analysis methods identified in this paragraph are the primary methods to be used for determining injury to the air resource. Air modeling methods may be used for injury determination only when air sampling and analysis methods are not available or the discharge or release occurred with no opportunity to monitor or sample the emissions.

(3)(i) Methods developed, evaluated, approved, and published by the U.S. Environmental Protection Agency may be used for sampling and analysis to determine injury to the air resource.

(ii) Methods selected for air sampling and analysis may include those methods that have been formally reviewed, evaluated, and published by the following government and professional organizations: the National Institute for Occupational Safety and Health, the American Society for Testing and Materials, and the American Public Health Association.

(iii) Methods selected for air sampling and analysis shall be methods that are documented for each of the following:

(A) The range of field conditions for which the methods are applicable;

(B) Quality assurance and quality control requirements necessary to achieve the data quality the methods are capable of producing;

(C) Operational costs of conducting the methods; and

(D) Time required to conduct the methods.

(iv) The determination of concentrations in excess of emission standards for hazardous air pollutants established under section 112 of the Clean Air Act, 42 U.S.C. 7412, shall be conducted in accordance with the primary methods or alternative methods as required in “National Emission Standards for Hazardous Air Pollutants: Source Test and Analytical Methods,” 40 CFR 61.14, and as may be applicable to the determination of injury to air resources.

(4) In selecting methods for testing and sampling for injury to air resources, the following performance factors of the sampling and analysis methods and the influencing characteristics of the assessment area and the general vicinity shall be considered:

(i) Method detection limits, accuracy, precision, specificity, interferences, and analysis of time and cost;

(ii) Sampling area locations and frequency, duration of sampling, and chemical stability of emissions; and

(iii) Meteorological parameters that influence the transport of emissions and the spatial and temporal variation in concentration.

(e) Geologic resources. (1) Testing and sampling for injury to geologic resources shall be performed using methodologies described in this paragraph.

(2) Testing pH level in soils shall be performed using standard pH measurement techniques, taking into account the nature and type of organic and inorganic constituents that contribute to soil acidity; the soil/solution ratio; salt or electrolytic content; the carbon dioxide content; and errors associated with equipment standardization and liquid junction potentials.

(3) Salinity shall be tested by measuring the electrical conductivity of the saturation extraction of the soil.

(4) Soil microbial respiration shall be tested by measuring uptake of oxygen or release of carbon dioxide by bacterial, fungal, algal, and protozoan cells in the soil. These tests may be made in the laboratory or in situ.

(5) Microbial populations shall be tested using microscopic counting, soil fumigation, glucose response, or adenylate enegry charge.

(6) Phytotoxicity shall be tested by conducting tests of seed germination, seedling growth, root elongation, plant uptake, or soil-core microcosms.

(7) Injury to mineral resources shall be determined by describing restrictions on access, development, or use of the resource as a result of the oil or hazardous substance. Any appropriate health and safety considerations that led to the restrictions should be documented.

(f) Biological resources. (1) Testing and sampling for injury to biological resources shall be performed using methodologies provided for in this paragraph.

(2)(i) Testing may be performed for biological responses that have satisfied the acceptance criteria of § 11.62(f)(2) of this part.

(ii) Testing methodologies that have been documented and are applicable to the biological response being tested may be used.

(3) Injury to biological resources, as such injury is defined in § 11.62(f)(1)(ii) of this part, may be determined by using methods acceptable to or used by the Food and Drug Administration or the appropriate State health agency in determining the levels defined in that paragraph.

§ 11.70 Quantification phase—general.

(a) Requirement. (1) Upon completing the Injury Determination phase, the authorized official shall quantify for each resource determined to be injured and for which damages will be sought, the effect of the discharge or release in terms of the reduction from the baseline condition in the quantity and quality of services, as the phrase is used in this part, provided by the injured resource using the guidance provided in the Quantification phase of this part.

(2) The Quantification phase consists of § 11.70—general; § 11.71—service reduction quantification; § 11.72—baseline services determination; and § 11.73—resource recoverability analysis, of this part.

(b) Purpose. The purpose of the Quantification phase is to quantify the effects of the discharge or release on the injured natural resources for use in determining the appropriate amount of compensation.

(c) Steps in the Quantification phase. In the Quantification phase, the extent of the injury shall be measured, the baseline condition of the injured resource shall be estimated, the baseline services shall be identified, the recoverability of the injured resource shall be determined, and the reduction in services that resulted from the discharge or release shall be estimated.

(d) Completion of Quantification phase. Upon completing the Quantification phase, the authorized official shall make a determination as to the reduction in services that resulted from the discharge or release. This Quantification Determination shall be used in the Damage Determination phase and shall be maintained as part of the Report of Assessment described in § 11.90 of this part.

§ 11.71 Quantification phase—service reduction quantification.

(a) Requirements. (1) The authorized official shall quantify the effects of a discharge of oil or release of a hazardous substance by determining the extent to which natural resource services have been reduced as a result of the injuries determined in the Injury Determination phase of the assessment.

(2) This determination of the reduction in services will be used in the Damage Determination phase of the assessment.

(3) Quantification will be done only for resources for which damages will be sought.

(b) Steps. Except as provided in § 11.71(f) of this part, the following steps are necessary to quantify the effects:

(1) Measure the extent to which the injury demonstrated in the Injury Determination phase has occurred in the assessment area;

(2) Measure the extent to which the injured resource differs from baseline conditions, as described in § 11.72 of this part, to determine the change attributable to the discharge or release;

(3) Determine the services normally produced by the injured resource, which are considered the baseline services or the without-a-discharge-or-release condition as described in § 11.72 of this part;

(4) Identify interdependent services to avoid double counting in the Damage Determination phase and to discover significant secondary services that may have been disrupted by the injury; and

(5) Measure the disruption of services resulting from the discharge or release, which is considered the change in services or the with-a-discharge-or-release condition.

(c) Contents of the quantification. The following factors should be included in the quantification of the effects of the discharge or release on the injured resource:

(1) Total area, volume, or numbers affected of the resource in question;

(2) Degree to which the resource is affected, including consideration of subunits or subareas of the resource, as appropriate;

(3) Ability of the resource to recover, expressed as the time required for restoration of baseline services as described in § 11.73 of this part;

(4) Proportion of the available resource affected in the area;

(5) Services normally provided by the resource that have been reduced as a result of the discharge or release; and

(6) Factors identified in the specific guidance in paragraphs (h), (i), (j), (k), and (l) of this section dealing with the different kinds of natural resources.

(d) Selection of resources, services, and methodologies. Specific resources or services to quantify and the methodology for doing so should be selected based upon the following factors:

(1) Degree to which a particular resource or service is affected by the discharge or release;

(2) Degree to which a given resource or service can be used to represent a broad range of related resources or services;

(3) Consistency of the measurement with the requirements of the economic methodology to be used;

(4) Technical feasibility, as that phrase is used in this part, of quantifying changes in a given resource or service at reasonable cost; and

(5) Preliminary estimates of services at the assessment area and control area based on resource inventory techniques.

(e) Services. In quantifying changes in natural resource services, the functions provided in the cases of both with- and without-a-discharge-or-release shall be compared. For the purposes of this part, services include provision of habitat, food and other needs of biological resources, recreation, other products or services used by humans, flood control, ground water recharge, waste assimilation, and other such functions that may be provided by natural resources.

(f) Direct quantification of services. The effects of a discharge or release on a resource may be quantified by directly measuring changes in services provided by vhe resource, instead of quantifying the changes in the resource itself, when it is determined that all of the following conditions are met:

(1) The change in the services from baseline can be demonstrated to have resulted from the injury to the natural resource;

(2) The extent of change in the services resulting from the injury can be measured without also calculating the extent of change in the resource; and

(3) The services to be measured are anticipated to provide a better indication of damages caused by the injury than would direct quantification of the injury itself.

(g) Statutory exclusions. In quantifying the effects of the injury, the following statutory exclusions shall be considered, as provided in sections 107 (f), (i), and (j) and 114(c) of CERCLA, that exclude compensation for damages to natural resources that were a result of:

(1) An irreversible and irretrievable commitment of natural resources identified in an environmental impact statement or other comparable environmental analysis, and the decision to grant the permit or license authorizes such a commitment, and the facility was otherwise operating within the terms of its permit or license, so long as, in the case of damages to an Indian tribe occurring pursuant to a Federal permit or license, the issuance of that license or permit was not inconsistent with the fiduciary duty of the United States with respect to such Indian tribe; or

(2) The damages and the release of a hazardous substance from which such damages resulted have occurred wholly before the enactment of CERCLA; or

(3) The application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 135-135k; or

(4) Any other federally permitted release, as defined in section 101(10) of CERCLA; or

(5) Resulting from the release or threatened release of recycled oil from a service station dealer as described in section 107(a) (3) or (4) of CERCLA if such recycled oil is not mixed with any other hazardous substance and is stored, treated, transported or otherwise managed in compliance with regulations or standards promulgated pursuant to section 3014 of the Solid Waste Disposal Act and other applicable authorities.

(h) Surface water resources. (1) The area where the injured surface water resource differs from baseline shall be determined by determining the areal extent of oil or hazardous substances in the water or on the sediments.

(2)(i) Areal variation in concentrations of the discharged or released substances dissolved in or floating on water, adhering to suspended sediments, or adhering to bed, bank, or shoreline sediments from exposed areas should be determined in sufficient detail to approximately map the boundary separating areas with concentrations above baseline from areas with concentrations equal to or less than baseline.

(ii) The size, shape, and location of the plume may be estimated using time of travel and dispersion data obtained under § 11.63 of this part, since plumes of dissolved or floating substances may be rapidly transported and dispersed in surface water.

(3) Water and sediment samples may be collected and chemically analyzed and stage, water discharge, or tidal flux measurements made, as appropriate, to collect new data required by this section.

(4)(i) Within the area determined in paragraph (h)(2) of this section to be above baseline, the services provided by the surface water or sediments that are affected should be determined. This determination may include computation of volumes of water or sediments affected, total areas of water or sediment affected, volume of water used from the affected surface water resource, or other appropriate measures.

(ii) The services should be determined with consideration of potential effects on downstream or downcurrent resources during the recovery period, as determined in § 11.73 of this part, resulting from transport of dissolved substances and of substances adhering to sediments.

(i) Ground water resources. (1) The area where the injured ground water resource differs from baseline should be determined by determining the areal extent of oil or hazardous substances in water or geologic materials in the unsaturated zone and identified geohydrological units, which are aquifers or confining layers, within the assessment area.

(2)(i) The lateral and vertical extent of discharged or released substances in the unsaturated zone, if it is known to be exposed, should be determined.

(ii) The lateral and vertical extent of plumes within geohydrologic units known to be exposed should be determined. Concentrations of substances within and adjacent to each plume should be determined in sufficient detail to approximately locate the boundary separating areas with concentrations above baseline from areas with concentrations equal to or less than baseline.

(3) Water or geologic materials may be sampled and chemically analyzed, or surface-geophysical techniques may be used for collecting new data required by this section. General verification of the plume boundaries by chemical analysis of selected water samples should be done if boundary locations are initially determined by surface-geophysical measurements.

(4)(i) Within the area determined in paragraph (i)(2)(ii) of this section to be above baseline, the services provided by the ground water that is affected should be determined. This determination may include computation of the volume of water affected, volume of affected ground water pumped from wells, volume of affected ground water discharged to streams or lakes, or other appropriate measures.

(ii) The services should be determined with consideration of potential enlargement of the plume during the recovery period, as determined in § 11.73 of this part, resulting from ground water transport of the substances.

(iii) The effects on the ground water resource during the recovery period resulting from potential remobilization of discharged or released substances that may be adhering, coating, or otherwise bonding to geologic materials should be considered.

(j) Air resources. The area where the injured air resource differs from baseline should be determined by determining the geographical area affected, the degree of impairment of services, and the period of time impairment occurred.

(k) Geologic resources. The area where the injured geologic resource differs from baseline should be determined by determining:

(1) The surface area of soil with reduced ability to sustain the growth of vegetation from the baseline level;

(2) The surface area or volume of soil with reduced suitability as habitat for biota from the baseline level;

(3) The volume of geologic resources that may act as a source of toxic leachate;

(4) The tonnage of mineral resources whose access, development, or use is restricted as a result of the discharge or release.

(l) Biological resources. (1) The extent to which the injured biological resource differs from baseline should be determined by analysis of the population or the habitat or ecosystem levels. Although it may be necessary to measure populations to determine changes in the habitats or ecosystems, and vice versa, the final result should be expressed as either a population change or a habitat or ecosystem change in order to prevent double counting in the economic analysis. This separation may be ignored only for resources that do not interact significantly and where it can be demonstrated that double counting is being avoided.

(2) Analysis of population changes or habitat or ecosystem changes should be based upon species, habitats, or ecosystems that have been selected from one or more of the following categories:

(i) Species or habitats that can represent broad components of the ecosystem, either as representatives of a particular ecological type, of a particular food chain, or of a particular service;

(ii) Species, habitats, or ecosystems that are especially sensitive to the oil or hazardous substance and the recovery of which will provide a useful indicator of successful restoration; or

(iii) Species, habitats, or ecosystems that provide especially significant services.

(3) Analysis of populations, habitats, or ecosystems shall be limited to those populations, habitats, or ecosystems for which injury has been determined in the Injury Determination phase or those that can be linked directly through services to resources for which injury has been so determined. Documentation of the service link to the injured resource must be provided in the latter case.

(4) Population, habitat, or ecosystem measurement methods that provide data that can be interpreted in terms of services must be selected. To meet this requirement, a method should:

(i) Provide numerical data that will allow comparison between the assessment area data and the control area or baseline data;

(ii) Provide data that will be useful in planning efforts for restoration, rehabilitation, replacement, and/or acquisition of equivalent resources, and in later measuring the success of those efforts, and, where relevant, will allow calculation of compensable value; and

(iii) Allow correction, as applicable, for factors such as dispersal of organisms in or out of the assessment area, differential susceptibility of different age classes of organisms to the analysis methods and other potential systematic biases in the data collection.

(5) When estimating population differences of animals, standard and widely accepted techniques, such as census, mark-recapture, density, and index methods, and other estimation techniques appropriate to the species and habitat shall be used. Frequencies of injury observed in the population shall be measured as applicable.

(i) In general, methods used for estimates of wildlife populations should follow standard and widely accepted techniques such as those recommendations provided in the “Wildlife Management Techniques Manual” (4th edition, Wildlife Society, 1980, available from the Wildlife Society, 5410 Grosvenor Lane, Bethesda, MD 20814), including references cited and recommended in that manual. The specific technique used need not be cited in that manual, but should meet its recommendations for producing reliable estimates or indices.

(ii) Measurement of age structures, life table statistics, or age structure models generally will not provide satisfactory measurement of changes due to a discharge of oil or release of a hazardous substance unless there is clear evidence that the oil or hazardous substance has differentially affected different age classes and there are reliable baseline age structure data available for the population being assessed.

(iii) Mortality from single incidents may be used to estimate changes in populations only when there are available baseline population data for the area, so that the proportion lost can be estimated, and when corrections can be made for potential sampling biases, such as natural mortality and factors influencing distribution of carcasses and ability of investigators to find them. Specific techniques for measuring mortality include the following:

(A) Fish mortality in freshwater areas may be estimated from counts of carcasses, using methods and guidelines for estimating numbers of fish killed contained in AFS Special Publication 35 (incorporated by reference, see § 11.18).

(B) The authorized official may adapt the techniques discussed in paragraph (l) (5) (iii) (A) of this section for counting dead aquatic birds or for counting marine or estuarine fish or birds. Such adaptation will require the documentation of the methods used to avoid sampling biases.

(C) Fish mortality may also be estimated by use of an in situ bioassay technique that is similar to that identified in § 11.62(f)(4)(i)(C) of this part, if the oil or hazardous substance is still present at levels that resulted in injury and if appropriate instream controls can be maintained at control areas.

(6) Plant populations may be measured using standard techniques, such as population density, species composition, diversity, dispersion, and cover,

(7) Forest and range resources may be estimated by standard forestry and range management evaluation techniques.

(8) Habitat quality may be measured using techniques such as the Habitat Evaluation Procedures (HEP) developed and used by the U.S. Fish and Wildlife Service.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5175, Feb. 22, 1988; 59 FR 14283, Mar. 25, 1994; 91 FR 42880, July 13, 2026]

§ 11.72 Quantification phase—baseline services determination.

(a) Requirements. The authorized official shall determine the physical, chemical, and biological baseline conditions and the associated baseline services for injured resources at the assessment area to compare that baseline with conditions found in § 11.71 of this part.

(b) General guidelines. Baseline data shall be selected according to the following general guidelines:

(1) Baseline data should reflect conditions that would have been expected at the assessment area had the discharge of oil or release of hazardous substances not occurred, taking into account both natural processes and those that are the result of human activities.

(2) Baseline data should include the normal range of physical, chemical, or biological conditions for the assessment area or injured resource, as appropriate for use in the analysis in § 11.71 of this part, with statistical descriptions of that variability. Causes of extreme or unusual value in baseline data should be identified and described.

(3) Baseline data should be as accurate, precise, complete, and representative of the resource as the data used or obtained in § 11.71 of this part. Data used for both the baseline and services reduction determinations must be collected by comparable methods. When the same method is not used, comparability of the data collection methods must be demonstrated.

(4) Baseline data collection shall be restricted to those data necessary for conducting the assessment at a reasonable cost. In particular, data collected should focus on parameters that are directly related to the injuries quantified in § 11.71 of this part and to data appropriate and necessary for the Damage Determination phase.

(5) The authorized official may use or authorize for use baseline data that are not expected to represent fully the baseline conditions, subject to the following requirements: