[Title 43 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 1999 Edition]
[From the U.S. Government Printing Office]
43
Public Lands: Interior
[[Page i]]
PARTS 1 TO 999
Revised as of October 1, 1999
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF OCTOBER 1, 1999
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1999
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. 0
Title 43:
Subtitle A--Office of the Secretary of the Interior. 3
Subtitle B--Regulations Relating to Public Lands:
Chapter I--Bureau of Reclamation, Department of
the Interior........................................ 523
Finding Aids:
Material Approved for Incorporation by Reference........ 611
Table of CFR Titles and Chapters........................ 613
Alphabetical List of Agencies Appearing in the CFR...... 631
Redesignation Table..................................... 641
List of CFR Sections Affected........................... 643
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 43 CFR 1.1 refers
to title 43, part 1,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 1999), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules. A list of CFR titles, chapters, and parts
and an alphabetical list of agencies publishing in the CFR are also
included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-523-5227
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408.
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site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 1999.
[[Page ix]]
THIS TITLE
Title 43--Public Lands: Interior is composed of two volumes. Volume
one (parts 1-999) contains all current regulations issued under subtitle
A--Office of the Secretary of the Interior and chapter I--Bureau of
Reclamation, Department of the Interior. Volume two (part 1000 to End)
includes all regulations issued under chapter II--Bureau of Land
Management, Department of the Interior, and Chapter III--Utah
Reclamation Mitigation and Conservation Commission. The contents of
these volumes represent all current regulations codified under this
title of the CFR as of October 1, 1999.
The first volume contains a redesignation table. In the second
volume, containing chapter II--Bureau of Land Management, Department of
the Interior, the OMB control numbers appear in a ``Note'' immediately
below the ``Group'' headings throughout the chapter, if applicable.
For this volume, Shelley C. Featherson was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 43--PUBLIC LANDS: INTERIOR
(This book contains parts 1 to 999)
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Part
SUBTITLE A--Office of the Secretary of the Interior........... 1
SUBTITLE B--Regulations Relating to Public Lands:
Chapter I--Bureau of Reclamation, Department of the Interior.. 402
[[Page 3]]
Subtitle A--Office of the Secretary of the Interior
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Part Page
1 Practices before the Department of the
Interior................................ 5
2 Records and testimony; Freedom of
Information Act......................... 6
3 Preservation of American antiquities........ 36
4 Department hearings and appeals procedures.. 38
5 Making pictures, television productions or
sound tracks on certain areas under the
jurisdiction of the Department of the
Interior................................ 163
6 Patent regulations.......................... 164
7 Protection of archaeological resources...... 173
8 Joint policies of the Departments of the
Interior and of the Army relative to
reservoir project lands................. 189
9 Intergovernmental review of Department of
the Interior programs and activities.... 190
10 Native American graves protection and
repatriation regulations................ 194
11 Natural resource damage assessments......... 217
12 Administrative and audit requirements and
cost principles for assistance programs. 278
13 Vending facilities operated by blind persons 358
14 Petitions for rulemaking.................... 361
15 Key Largo Coral Reef Preserve............... 361
16 Conservation of helium...................... 363
17 Nondiscrimination in federally assisted
programs of the Department of the
Interior................................ 364
18 New restrictions on lobbying................ 401
19 Wilderness preservation..................... 413
20 Employee responsibilities and conduct....... 416
21 Occupancy of cabin sites on public
conservation and recreation areas....... 427
[[Page 4]]
22 Administrative claims under the Federal Tort
Claims Act and indemnification of
Department of the Interior employees.... 431
23 Surface exploration, mining and reclamation
of lands................................ 433
24 Department of the Interior fish and wildlife
policy: State-Federal relationships..... 441
26 Grants to States for establishing Youth
Conservation Corps programs............. 446
27 Nondiscrimination in activities conducted
under permits, rights-of-way, public
land orders, and other Federal
authorizations granted or issued under
Title II of Public Law 93-153........... 451
28 Fire protection emergency assistance........ 463
29 Trans-Alaska Pipeline Liability Fund........ 463
32 Grants to States for establishing Young
Adult Conservation Corps (YACC) program. 470
33 Allocation of duty-free watches from the
Virgin Islands, Guam, and American Samoa
[Note].................................. 480
34 Requirements for equal opportunity during
construction and operation of the Alaska
Natural Gas Transportation System....... 480
35 Administrative remedies for fraudulent
claims and statements................... 491
36 Transportation and utility systems in and
across, and access into, conservation
system units in Alaska.................. 506
37 Cave management............................. 516
38 Pay of U.S. Park Police--interim geographic
adjustments............................. 519
[[Page 5]]
PART 1--PRACTICES BEFORE THE DEPARTMENT OF THE INTERIOR--Table of Contents
Sec.
1.1 Purpose.
1.2 Definitions.
1.3 Who may practice.
1.4 Disqualifications.
1.5 Signature to constitute certificate.
1.6 Disciplinary proceedings.
Authority: Sec. 5, 23 Stat. 101; 43 U.S.C. 1464.
Source: 29 FR 143, Jan. 7, 1964, unless otherwise noted.
Sec. 1.1 Purpose.
This part governs the participation of individuals in proceedings,
both formal and informal, in which rights are asserted before, or
privileges sought from, the Department of the Interior.
Sec. 1.2 Definitions.
As used in this part the term:
(a) Department includes any bureau, office, or other unit of the
Department of the Interior, whether in Washington, DC, or in the field,
and any officer or employee thereof;
(b) Solicitor means the Solicitor of the Department of the Interior
or his authorized representative;
(c) Practice includes any action taken to support or oppose the
assertion of a right before the Department or to support or oppose a
request that the Department grant a privilege; and the term ``practice''
includes any such action whether it relates to the substance of, or to
the procedural aspects of handling, a particular matter. The term
``practice'' does not include the preparation or filing of an
application, the filing without comment of documents prepared by one
other than the individual making the filing, obtaining from the
Department information that is available to the public generally, or the
making of inquiries respecting the status of a matter pending before the
Department. Also, the term ``practice'' does not include the
representation of an employee who is the subject of disciplinary,
loyalty, or other personnel administrative proceedings.
Sec. 1.3 Who may practice.
(a) Only those individuals who are eligible under the provisions of
this section may practice before the Department, but this provision
shall not be deemed to restrict the dealings of Indian tribes or members
of Indian tribes with the Department.
(b) Unless disqualified under the provisions of Sec. 1.4 or by
disciplinary action taken pursuant to Sec. 1.6:
(1) Any individual who has been formally admitted to practice before
the Department under any prior regulations and who is in good standing
on December 31, 1963, shall be permitted to practice before the
Department.
(2) Attorneys at law who are admitted to practice before the courts
of any State, the District of Columbia, the Commonwealth of Puerto Rico,
American Samoa, the Trust Territory of the Pacific Islands, or the
District Court of the Virgin Islands will be permitted to practice
without filing an application for such privilege.
(3) An individual who is not otherwise entitled to practice before
the Department may practice in connection with a particular matter on
his own behalf or on behalf of
(i) A member of his family;
(ii) A partnership of which he is a member;
(iii) A corporation, business trust, or an association, if such
individual is an officer or full-time employee;
(iv) A receivership, decedent's estate, or a trust or estate of
which he is the receiver, administrator, or other similar fiduciary;
(v) The lessee of a mineral lease that is subject to an operating
agreement or sublease which has been approved by the Department and
which grants to such individual a power of attorney;
(vi) A Federal, State, county, district, territorial, or local
government or agency thereof, or a government corporation, or a district
or advisory board established pursuant to statute; or
(vii) An association or class of individuals who have no specific
interest that will be directly affected by the disposition of the
particular matter.
Sec. 1.4 Disqualifications.
No individual may practice before the Department if such practice
would violate the provisions of 18 U.S.C. 203, 205, or 207.
[[Page 6]]
Sec. 1.5 Signature to constitute certificate.
When an individual who appears in a representative capacity signs a
paper in practice before the Department, his signature shall constitute
his certificate:
(a) That under the provisions of this part and the law, he is
authorized and qualified to represent the particular party in the
matter;
(b) That, if he is the partner of a present or former officer or
employee, including a special Government employee, the matter in respect
of which he intends to practice is not a matter in which such officer or
employee of the Government or special Government employee participates
or has participated personally and substantially as a Government
employee through decision, approval, disapproval, recommendation, the
rendering of advice, investigation or otherwise and that the matter is
not the subject of such partner's official Government responsibility;
(c) That, if he is a former officer or employee, including a special
Government employee, the matter in respect of which he intends to
practice is not a matter in which he participated personally and
substantially as a Government employee through decision, approval,
disapproval, recommendation, the rendering of advice, investigation, or
otherwise, while so employed and, if a period of one year has not passed
since the termination of his employment with the Government, that the
matter was not under his official responsibility as an officer or
employee of the Government; and
(d) That he has read the paper; that to the best of his knowledge,
information, and belief there is good ground to support its contents;
that it contains no scandalous or indecent matter; and that it is not
interposed for delay.
Sec. 1.6 Disciplinary proceedings.
(a) Disciplinary proceedings may be instituted against anyone who is
practicing or has practiced before the Department on grounds that he is
incompetent, unethical, or unprofessional, or that he is practicing
without authority under the provisions of this part, or that he has
violated any provisions of the laws and regulations governing practice
before the Department, or that he has been disbarred or suspended by any
court or administrative agency. Individuals practicing before the
Department should observe the Canons of Professional Ethics of the
American Bar Association and those of the Federal Bar Association, by
which the Department will be guided in disciplinary matters.
(b) Whenever in the discretion of the Solicitor the circumstances
warrant consideration of the question whether disciplinary action should
be taken against an individual who is practicing or has practiced before
the Department, the Solicitor shall appoint a hearing officer to
consider and dispose of the case. The hearing officer shall give the
individual adequate notice of, and an opportunity for a hearing on, the
specific charges against him. The hearing shall afford the individual an
opportunity to present evidence and cross-examine witnesses. The hearing
officer shall render a decision either (1) dismissing the charges, or
(2) reprimanding the individual or suspending or excluding him from
practice before the Department.
(c) Within 30 days after receipt of the decision of the hearing
officer reprimanding, suspending, or excluding an individual from
practice before the Department, an appeal may be filed with the
Solicitor, whose decision shall be final.
PART 2--RECORDS AND TESTIMONY; FREEDOM OF INFORMATION ACT--Table of Contents
Subpart A--Opinions in Adjudication of Cases, Administrative Manuals
Sec.
2.1 Purpose and scope.
2.2 Opinions in adjudication of cases.
2.3 Administrative manuals.
Subpart B--Requests for Records
2.11 Purpose and scope.
2.12 Definitions.
2.13 Records available.
2.14 Requests for records.
2.15 Preliminary processing of requests.
2.16 Action on initial requests.
2.17 Time limits for processing initial requests.
[[Page 7]]
2.18 Appeals.
2.19 Action on appeals.
2.20 Fees.
2.21 Waiver of fees.
2.22 Special rules governing certain information concerning coal
obtained under the Mineral Leasing Act.
Subpart C--Declassification of Classified Documents
2.41 Declassification of classified documents.
Subpart D--Privacy Act
2.45 Purpose and scope.
2.46 Definitions.
2.47 Records subject to Privacy Act.
2.48 Standards for maintenance of records subject to the Act.
2.49 [Reserved]
2.50 Federal Register notices describing systems of records.
2.51 Assuring integrity of records.
2.52 Conduct of employees.
2.53 Government contracts.
2.54-2.55 [Reserved]
2.56 Disclosure of records.
2.57 Accounting for disclosures.
2.58-2.59 [Reserved]
2.60 Request for notification of existence of records: Submission.
2.61 Requests for notification of existence of records: Action on.
2.62 Requests for access to records.
2.63 Requests for access to records: Submission.
2.64 Requests for access to records: Initial decision.
2.65 Requests for notification of existence of records and for access
to records: Appeals.
2.66 Requests for access to records: Special situations.
2.67--2.69 [Reserved]
2.70 Amendment of records.
2.71 Petitions for amendment: Submission and form.
2.72 Petitions for amendment: Processing and initial decision.
2.73 Petitions for amendments: Time limits for processing.
2.74 Petitions for amendment: Appeals.
2.75 Petitions for amendment: Action on appeals.
2.76 [Reserved]
2.77 Statements of disagreement.
2.78 [Reserved]
2.79 Exemptions.
Subpart E--Compulsory Process and Testimony of Employees
2.80 Compulsory process.
2.82 Testimony of employees.
Appendix A to Part 2--Fees
Appendix B to Part 2--Bureaus and Offices of the Department of the
Interior
Authority: 5 U.S.C. 301, 552 and 552a; 31 U.S.C. 9701; and 43 U.S.C.
1460.
Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.
Subpart A--Opinions in Adjudication of Cases, Administrative Manuals
Sec. 2.1 Purpose and scope.
This subpart contains the regulations of the Department of the
Interior concerning the availability to the public of opinions issued in
the adjudication of cases and of administrative manuals. Persons
interested in obtaining access to other records are directed to the
procedures for submission of Freedom of Information requests set out in
subpart B of this part.
Sec. 2.2 Opinions in adjudication of cases.
(a)(1) Copies of final decisions and orders issued on and after July
1, 1970, in the following categories of cases are available for
inspection and copying in the Office of Hearings and Appeals, Ballston
Building No. 3, 4015 Wilson Boulevard, Arlington, Va. 22203:
(i) Contract appeals;
(ii) Appeals from decisions rendered by departmental officials
relating to the use and disposition of public lands and their resources
and the use and disposition of mineral resources in certain acquired
lands of the United States and in the submerged lands of the Outer
Continental Shelf;
(iii) Appeals from orders and decisions issued by departmental
officials and administrative law judges in proceedings relating to mine
health and safety; and
(iv) Appeals from orders and decisions of administrative law judges
in Indian probate matters other than those involving estates of Indians
of the Five Civilized Tribes and Osage Indians.
(2) Copies of final opinions and orders issued in the following
categories of cases are available for inspection and copying in the
Docket and Records Section, Office of the Solicitor, Interior Building,
Washington, DC 20240:
[[Page 8]]
(i) Tort claims decided in the headquarters office of the Office of
the Solicitor, and appeals from decisions of Regional Solicitors or
Field Solicitors on tort claims;
(ii) Irrigation claims under Public Works Appropriation Acts (e.g.,
79 Stat., 1103) or 25 U.S.C. 388 decided in the headquarters office of
the Office of the Solicitor, and appeals from decisions of Regional
Solicitors on irrigation claims;
(iii) Appeals under Sec. 2.18 respecting availability of records;
(iv) Appeals from decisions of officials of the Bureau of Indian
Affairs, and Indian enrollment appeals; and
(v) Appeals from decisions of officers of the Bureau of Land
Management and of the Geological Survey in proceedings relating to lands
or interests in land, contract appeals, and appeals in Indian probate
proceedings, issued prior to July 1, 1970.
(3) An Index-Digest is issued by the Department. All decisions,
opinions and orders issued in the categories of cases described in
paragraphs (a)(1), (i), (ii), and (iii) of this section (that is,
contract appeals, land appeals, and mine health and safety appeals), are
covered in the Index-Digest; in addition, the Index-Digest covers the
more important decisions, opinions and orders in the remaining
categories of cases described in paragraphs (a)(1)(iv) and (a)(2) (i)
through (iv) of this section, and the more important opinions of law
issued by the Office of the Solicitor. The Index-Digest is available for
use by the public in the Office of Hearings and Appeals, Ballston
Building No. 3, 4015 Wilson Boulevard, Arlington, Va. 22203, in the
Docket and Records Section, Office of the Solicitor, Interior Building,
Washington, DC 20240, and in the offices of the Regional Solicitors and
Field Solicitors. Selected decisions, opinions, and orders are published
in a series entitled ``Decisions of the United States Department of the
Interior'' (cited as I.D.), and copies may be obtained by subscription
from the Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402.
(4) Copies of final opinions and orders issued by Regional
Solicitors on tort claims and irrigation claims, and copies of final
opinions and orders on appeals in Indian probate proceedings issued by
Regional Solicitors prior to July 1, 1970, are available for inspection
and copying in their respective offices. Copies of final opinions and
orders issued by Field Solicitors on tort claims are available for
inspection and copying in their respective offices.
(b)(1) Copies of final decisions and orders issued prior to July 1,
1970, on appeals to the Director, Bureau of Land Management, and by
hearing examiners of the Bureau of Land Management, in proceedings
relating to lands and interests in land are available for inspection and
copying in the Office of Hearings and Appeals, Ballston Building No. 3,
4015 Wilson Boulevard, Arlington, Va. 22203, and in the offices of the
Departmental administrative law judges.
(2) Copies of final decisions, opinions and orders issued on and
after July 1, 1970, by departmental administrative law judges in all
proceedings before them are available for inspection and copying in
their respective offices and in the Office of Hearings and Appeals,
Ballston Building No. 3, 4015 Wilson Boulevard, Arlington, VA 22203.
(3) Copies of final decisions, opinions and orders issued by
administrative law judges in Indian probate proceedings are available
for inspection and copying in their respective offices.
Sec. 2.3 Administrative manuals.
The Departmental Manual is available for inspection in the
Departmental Library, Interior Building, Washington, DC, and at each of
the regional offices of bureaus of the Department. The administrative
manuals of those bureaus which have issued such documents are available
for inspection at the headquarters officers and at the regional offices
of the bureaus.
Subpart B--Requests for Records
Source: 52 FR 45586, Nov. 30, 1987, unless otherwise noted.
[[Page 9]]
Sec. 2.11 Purpose and scope.
(a) This subpart contains the procedures for submission to and
consideration by the Department of the Interior of requests for records
under the Freedom of Information Act.
(b) Before invoking the formal procedures set out below, persons
seeking records from the Department may find it useful to consult with
the appropriate bureau FOIA officer. Bureau offices are listed in
Appendix B to this part.
(c) The procedures in this subpart do not apply to:
(1) Records published in the Federal Register, opinions in the
adjudication of cases, statements of policy and interpretations, and
administrative staff manuals that have been published or made available
under subpart A of this part.
(2) Records or information compiled for law enforcement purposes and
covered by the disclosure exemption described in Sec. 2.13(c)(7) if--
(i) The investigation or proceeding involves a possible violation of
criminal law; and
(ii) There is reason to believe that--
(A) The subject of the investigation or proceeding is not aware of
its pendency, and
(B) Disclosure of the existence of the records could reasonably be
expected to interfere with enforcement proceedings.
(3) Informant records maintained by a criminal law enforcement
component of the Department under an informant's name or personal
identifier, if requested by a third party according to the informant's
name or personal identifier, unless the informant's status as an
informant has been officially confirmed.
Sec. 2.12 Definitions.
(a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552.
(b) Bureau refers to all constituent bureaus of the Department of
the Interior, the Office of the Secretary, and the other Departmental
offices. A list of bureaus is contained in Appendix B to this part.
(c) Working day means a regular Federal workday. It does not include
Saturdays, Sundays or public legal holidays.
Sec. 2.13 Records available.
(a) Department policy. It is the policy of the Department of the
Interior to make the records of the Department available to the public
to the greatest extent possible, in keeping with the spirit of the
Freedom of Information Act.
(b) Statutory disclosure requirement. The Act requires that the
Department, on a request from a member of the public submitted in
accordance with the procedures in this subpart, make requested records
available for inspection and copying.
(c) Statutory exemptions. Exempted from the Act's statutory
disclosure requirement are matters that are:
(1)(i) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy and
(ii) Are in fact properly classified pursuant to such Executive
order;
(2) Related solely to the internal personnel rules and practices of
an agency;
(3) Specifically exempted from disclosure by statute (other than the
Privacy Act), provided that such statute--
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the agency;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information--
[[Page 10]]
(i) Could reasonably be expected to interfere with enforcement
proceedings,
(ii) Would deprive a person of a right to a fair or an impartial
adjudication,
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy,
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigtion, information furnished by a confidential
source,
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law, or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(9) Geological and geophysical information and data, including maps,
concerning wells.
(d) Decisions on requests. It is the policy of the Department to
withhold information falling within an exemption only if--
(1) Disclosure is prohibited by statute or Executive order or
(2) Sound grounds exist for invocation of the exemption.
(e) Disclosure of reasonably segregable nonexempt material. If a
requested record contains material covered by an exemption and material
that is not exempt, and it is determined under the procedures in this
subpart to withhold the exempt material, any reasonably segregable
nonexempt material shall be separated from the exempt material and
released.
Sec. 2.14 Requests for records.
(a) Submission of requests. (1) A request to inspect or copy records
shall be made to the installation where the records are located. If the
records are located at more than one installation or if the specific
location of the records is not known to the requester, he or she may
direct a request to the head of the appropriate bureau or to the
bureau's FOIA officer. Addresses for bureau heads and FOIA officers are
contained in Appendix B to this part.
(2) Exceptions. (i) A request for records located in all components
of the Office of the Secretary (other than the Office of Hearings and
Appeals) shall be submitted to: Director, Office of Administrative
Services, U.S. Department of the Interior, Washington, DC 20240. A
request for records located in the Office of Hearings and Appeals shall
be submitted to: Director, Office of Hearings and Appeals, 4015 Wilson
Boulevard, Arlington, Virginia 22203.
(ii) A request for records of the Office of Inspector General shall
be submitted to: Inspector General, Office of the Inspector General,
U.S. Department of the Interior, Washington, DC 20240.
(iii) A request for records of the Office of the Solicitor shall be
submitted to: Solicitor, Office of the Solicitor, U.S. Department of the
Interior, Washington, DC 20240.
(b) Form of requests. (1) Requests under this subpart shall be in
writing and must specifically invoke the Act.
(2) A request must reasonably describe the records requested. A
request reasonably describes the records requested if it will enable an
employee of the Department familiar with the subject area of the request
to locate the record with a reasonable amount of effort. If such
information is available, the request should identify the subject matter
of the record, the date when it was made, the place where it was made,
the person or office that made it, the present custodian of the record,
and any other information that will assist in locating the requested
record. If the request involves a matter known by the requester to be in
litigation, the request should also state the case name and court
hearing the case.
(3)(i) A request shall--
[[Page 11]]
(A) Specify the fee category (commercial use, news media,
educational institution, noncommercial scientific institution, or other)
in which the requester claims the request to fall and the basis of this
claim (see Sec. 2.20(b) through (e) for definitions) and
(B) State the maximum amount of fees that the requester is willing
to pay or include a request for a fee waiver.
(ii) Requesters are advised that, under Sec. 2.20 (f) and (g), the
time for responding to requests may be delayed--
(A) If a requester has not sufficiently identified the fee category
applicable to the request,
(B) If a requester has not stated a willingness to pay fees as high
as anticipated by the Department or
(C) If a fee waiver request is denied and the requester has not
included an alternative statement of willingness to pay fees as high as
anticipated by the Department.
(4) A request seeking a fee waiver shall, to the extent possible,
address why the requester believes that the criteria for fee waivers set
out in Sec. 2.21 are met.
(5) To ensure expeditious handling, requests should be prominently
marked, both the envelope and on the face of the request, with the
legend ``FREEDOM OF INFORMATION REQUEST.''
(c) Creation of records. A request may seek only records that are in
existence at the time the request is received. A request may not seek
records that come into existence after the date on which it is received
and may not require that new records be created in response to the
request by, for example, combining or compiling selected items from
manual files, preparing a new computer program, or calculating
proportions, percentages, frequency distributions, trends or
comparisons. In those instances where the Department determines that
creating a new record will be less burdensome than disclosing large
volumes of unassembled material, the Department may, in its discretion,
agree to creation of a new record as an alternative to disclosing
existing records.
Sec. 2.15 Preliminary processing of requests.
(a) Scope of requests. (1) Unless a request clearly specifies
otherwise, requests to field installations of a bureau may be presumed
to seek only records at that installation and requests to a bureau head
or bureau FOIA officer may be presumed to seek only records of that
bureau.
(2) If a request to a field installation of a bureau specifies that
it seeks records located at other installations of the same bureau, the
installation shall refer the request to the other installation(s) or the
bureau FOIA officer for appropriate processing. The time limit provided
in Sec. 2.17(a) does not start until the request is received at the
installation having the records or by the bureau FOIA officer.
(3) If a request to a bureau specifies that it seeks records of
another bureau, the bureau may return the request (or the relevant
portion thereof) to the requester with instructions as to how the
request may be resubmitted to the other bureau.
(b) Intradepartmental consultation and referral. (1) If a bureau
(other than the Office of Inspector General) receives a request for
records in its possession that originated with or are of substantial
concern to another bureau, it shall consult with that bureau before
deciding whether to release or withhold the records.
(2) As an alternative to consultation, a bureau may refer the
request (or the relevant protion thereof) to the bureau that originated
or is substantially concerned with the records. Such referrals shall be
made expeditiously and the requester shall be notified in writing that a
referral has been made. A referral under this paragraph does not restart
the time limit provided in Sec. 2.17.
(c) Records of other departments and agencies. (1) If a requested
record in the possession of the Department of the Interior originated
with another Federal department or agency, the request shall be referred
to that agency unless--
(i) The record is of primary interest to the Department,
(ii) The Department is in a better position than the originating
agency to
[[Page 12]]
assess whether the record is exempt from disclosure, or
(iii) The originating agency is not subject to the Act.
The Department has primary interest in a record if it was developed or
prepared pursuant to Department regulations, directives or request.
(2) In accordance with Execuctive Order 12356, a request for
documents that were classified by another agency shall be referred to
that agency.
(d) Consultation with submitters of commercial and financial
information. (1) If a request seeks a record containing trade secrets or
commercial or financial information submitted by a person outside of the
Federal government, the bureau processing the request shall provide the
submitter with notice of the request whenever--
(i) The submitter has made a good faith designation of the
information as commercially or financially sensitive, or
(ii) The bureau has reason to believe that disclosure of the
information may result in commercial or financial injury to the
submitter.
Where notification of a voluminous number of submitters is required,
such notification may be accomplished by posting or publishing the
notice in a place reasonably calculated to accomplish notification.
(2) The notice to the submitter shall afford the submitter a
reasonable period within which to provide a detailed statement of any
objection to disclosure. The submitter's statement shall explain the
basis on which the information is claimed to be exempt under the FOIA,
including a specification of any claim of competitive or other business
harm that would result from disclosure. The statement shall also include
a certification that the information is confidential, has not been
disclosed to the public by the submitter, and is not routinely available
to the public from other sources.
(3) If a submitter's statement cannot be obtained within the time
limit for processing the request under Sec. 2.17, the requester shall be
notified of the delay as provided in Sec. 2.17(f).
(4) Notification to a submitter is not required if:
(i) The bureau determines, prior to giving notice, that the request
for the record should be denied;
(ii) The information has previously been lawfully published or
officially made available to the public;
(iii) Disclosure is required by a statute (other than the FOIA) or
regulation (other than this subpart);
(iv) Disclosure is clearly prohibited by a statute, as described in
Sec. 2.13(c)(3);
(v) The information was not designated by the submitter as
confidential when it was submitted, or a reasonable time thereafter, if
the submitter was specifically afforded an opportunity to make such a
designation; however, a submitter will be notified of a request for
information that was not designated as confidential at the time of
submission, or a reasonable time thereafter, if there is substantial
reason to believe that disclosure of the information would result in
competitive harm.
(vi) The designation of confidentiality made by the submitter is
obviously frivolous; or
(vii) The information was submitted to the Department more than 10
years prior to the date of the request, unless the bureau has reason to
believe that it continues to be confidential.
(5) If a requester brings suit to compel disclosure of information,
the submitter of the information will be promptly notified.
Sec. 2.16 Action on initial requests.
(a) Authority. (1) Requests to field installations shall be decided
by the head of the installation or by such higher authority as the head
of the bureau may designate in writing.
(2) Requests to the headquarters of a bureau shall be decided only
by the head of the bureau or an official whom the head of the bureau has
in writing designated.
(3) Requests to the Office of the Secretary may be decided by the
Director of Administrative Services, an Assistant Secretary or Assistant
Secretary's designee, and any official whom the Secretary has in writing
designated.
(4) A decision to withhold a requested record, to release a record
that is exempt from disclosure, or to deny a fee
[[Page 13]]
waiver shall be made only after consultation with the office of the
appropriate associate, regional, or field solicitor.
(b) Form of grant. (1) When a requested record has been determined
to be available, the official processing the request shall notify the
requester as to when and where the record is available for inspection
or, as the case may be, when and how copies will be provided. If fees
are due, the official shall state the amount of fees due and the
procedures for payment, as described in Sec. 2.20.
(2) If a requested record (or portion thereof) is being made
available over the objections of a submitter made in accordance with
Sec. 2.15(d), both the requester and the submitter shall be notified of
the decision. The notice to the submitter (a copy of which shall be made
available to the requester) shall be forwarded a reasonable number of
days prior to the date on which disclosure is to be made and shall
include:
(i) A statement of the reasons why the submitter's objections were
not sustained;
(ii) A specification of the portions of the record to be disclosed,
if the submitter's objections were sustained in part; and
(iii) A specified disclosure date.
(3) If a claim of confidentiality has been found frivolous in
accordance with Sec. 2.15(d)(4)(vi) and a determination is made to
release the information without consultation with the submitter, the
submitter of the information shall be notified of the decision and the
reasons therefor a reasonable number of days prior to the date on which
disclosure is to be made.
(c) Form of denial. (1) A decision withholding a requested record
shall be in writing and shall include:
(i) A reference to the specific exemption or exemptions authorizing
the withholding;
(ii) If neither a statute or an Executive order requires
withholding, the sound ground for withholding;
(iii) A listing of the names and titles or positions of each person
responsible for the denial; and
(iv) A statement that the denial may be appealed to the Assistant
Secretary--Policy, Budget and Administration and a description of the
procedures in Sec. 2.18 for appeal.
(2) A decision denying a request for failure to reasonably describe
requested records or for other procedural deficiency or because
requested records cannot be located shall be in writing and shall
include:
(i) A description of the basis of the decision;
(ii) A list of the names and titles or positions of each person
responsible; and
(iii) A statement that the matter may be appealed to the Assistant
Secretary--Policy, Budget and Administration and a description of the
procedures in Sec. 2.18 for appeal.
Sec. 2.17 Time limits for processing initial requests.
(a) Basic limit. Requests for records shall be processed promptly. A
determination whether to grant or deny a request shall be made within no
more than 10 working days after receipt of a request. This determination
shall be communicated immediately to the requester.
(b) Running of basic time limit. (1) The 10 working day time limit
begins to run when a request meeting the requirements of Sec. 2.14(b) is
received at a field installation or bureau headquarters designated in
Sec. 2.14(a) to receive the request.
(2) The running of the basic time limit may be delayed or tolled as
explained in Sec. 2.20 (f), (g) and (h) if a requester--
(i) Has not stated a willingnes to pay fees as high as are
anticipated and has not sought and been granted a full fee waiver, or
(ii) Has not made a required advance payment.
(c) Extensions of time. In the following unusual circumstances, the
time limit for acting on an initial request may be extended to the
extent reasonably necessary to the proper processing of the request, but
in no case may the time limit be extended for more than 10 working days:
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
installation processing the request;
[[Page 14]]
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records demanded in a single
request; or
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
Department having substantial subject-matter interest therein.
(d) Notice of extension. A requester shall be notified in writing of
an extension under paragraph (c) of this section. The notice shall state
the reason for the extension and the date on which a determination on
the request is expected to be made.
(e) Treatment of delay as denial. If no determination has been
reached at the end of the 10 working day period for deciding an initial
request, or an extension thereof under paragraph (c) of this section,
the requester may deem the request denied and may exercise a right of
appeal in accordance with Sec. 2.18.
(f) Notice of delay. When a determination cannot be reached within
the time limit, or extension thereof, the requester shall be notified of
the reason for the delay, of the date on which a determination may be
expected, and of the right to treat the delay as a denial for purposes
of appeal to the Assistant Secretary--Policy, Budget and Administration,
including a description of the procedures for filing an appeal in
Sec. 2.18.
Sec. 2.18 Appeals.
(a) Right of appeal. A requester may appeal to the Assistant
Secretary--Policy, Budget and Administration when--
(1) Records have been withheld,
(2) A request has been denied for failure to describe requested
records or for other procedural deficiency or because requested records
cannot be located,
(3) A fee waiver has been denied, or
(4) A request has not been decided within the time limits provided
in Sec. 2.17.
(b) Time for appeal. An appeal must be received no later than 20
working days after the date of the initial denial, in the case of a
denial of an entire request, or 20 working days after records have been
made available, in the case of a partial denial.
(c) Form of appeal. (1) An appeal shall be initiated by filing a
written notice of appeal. The notice shall be accompanied by copies of
the original request and the initial denial and should, in order to
expedite the appellate process and give the requester an opportunity to
present his or her arguments, contain a brief statement of the reasons
why the requester believes the initial denial to have been in error.
(2) The appeal shall be addressed to the Freedom of Information Act
Appeals Officer, Office of the Assistant Secretary--Policy, Budget and
Administration, U.S. Department of the Interior, Washington, DC 20240.
(3) To expedite processing, both the envelope containing a notice of
appeal and the face of the notice should bear the legend ``FREEDOM OF
INFORMATION APPEAL.''
Sec. 2.19 Action on appeals.
(a) Authority. Appeals shall be decided by the Assistant Secretary--
Policy, Budget and Administration, or the Assistant Secretary's
designee, after consultation with the Solicitor, the Director of Public
Affairs and the appropriate program Assistant Secretary.
(b) Time limit. A final determination shall be made within 20
working days after receipt of an appeal meeting the requirements of
Sec. 2.18(c).
(c) Extensions of time. (1) If the time limit for responding to the
initial request for a record was not extended under the provisions of
Sec. 2.17(c) or was extended for fewer than 10 working days, the time
for processing of the appeal may be extended to the extent reasonably
necessary to the proper processing of the appeal, but in no event may
the extension, when taken together with any extension made during
processing of the initial request, result in an aggregate extension with
respect to any one request of more than 10 working days. The time for
processing of an appeal may be extended only if one or more of the
unusual circumstances listed in Sec. 2.17(c) requires an extension.
(2) The appellant shall be advised in writing of the reasons for the
extension
[[Page 15]]
and the date on which a final determination on the appeal is expected to
be dispatched.
(3) If no determination on the appeal has been reached at the end of
the 20 working day period, or the extension thereof, the requester is
deemed to have exhausted his administrative remedies, giving rise to a
right of review in a district court of the United States, as specified
in 5 U.S.C. 552(a)(4). When no determination can be reached within the
applicable time limit, the appeal will nevertheless continue to be
processed. On expiration of the time limit, the requester shall be
informed of the reason for the delay, of the date on which a
determination may be reached to be dispatched and of the right to seek
judicial review.
(d) Form of decision. (1) The final determination on an appeal shall
be in writing and shall state the basis for the determination. If the
determination is to release the requested records or portions thereof,
the Assistant Secretary--Policy, Budget and Administration shall
immediately make the records available or instruct the appropriate
bureau to make them immediately available. If the determination upholds
in whole or part the initial denial of a request for records, the
determination shall advise the requester of the right to obtain judicial
review in the U.S. District Court for the district in which the withheld
records are located, or in which the requester resides or has his or her
principal place of business or in the U.S. District Court for the
District of Columbia, and shall set forth the names and titles or
positions of each person responsible for the denial.
(2) If a requested record (or portion thereof) is being made
available over the objections of a submitter made in accordance with
Sec. 2.15(d), the submitter shall be provided notice as described in
Sec. 2.16(b)(2).
Sec. 2.20 Fees.
(a) Policy. (1) Unless waived pursuant to the provisions of
Sec. 2.21, fees for responding to FOIA requests shall be charged in
accordance with the provisions of this section and the schedule of
charges contained in Appendix A to this part.
(2) Fees shall not be charged if the total amount chargeable does
not exceed $15.00.
(3) Where there is a reasonable basis to conclude that a requester
or group of requesters acting in concert has divided a request into a
series of requests on a single subject or related subjects to avoid
assessment of fees, the requests may be aggregated and fees charged
accordingly.
(b) Commercial use requests. (1) A requester seeking records for
commercial use shall be charged fees for costs incurred in document
search, duplication and review.
(2) A commercial use requester may not be charged fees for time
spent resolving legal and policy issues affecting access to requested
records.
(3) A commercial use request is a request from or on behalf of a
person who seeks information for a use or purpose that further the
commercial, trade or profit interests of the requester or the person on
whose behalf the request is made. The intended use of records may be
determined on the basis of information submitted by a requester and from
reasonable inferences based on the identity of the requester and any
other available information.
(c) Educational and noncommercial scientific institution requests.
(1) A requester seeking records under the auspices of an educational
institution in furtherance of scholarly research or a noncommercial
scientific institution in furtherance of scientific research shall be
charged for document duplication, except that the first 100 pages of
paper copies (or the equivalent cost thereof if the records are in some
other form) shall be provided without charge.
(2) Such requesters may not be charged fees for costs incurred in--
(i) Searching for requested records,
(ii) Examining requested records to determine whether they are
exempt from mandatory disclosure,
(iii) Deleting reasonably segregable exempt matter,
(iv) Monitoring the requesters' inspection of agency records, or
(v) Resolving legal and policy issues affecting access to requested
records.
[[Page 16]]
(3) An ``educational institution'' is a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, or an institution of vocational
education, which operates a program or programs of scholarly research.
(4) A ``noncommercial scientific institution'' is an institution
that is not operated for commerce, trade or profit and that is operated
solely for the purpose of conducting scientific research the results of
which are not intended to promote any particular product or industry.
(d) News media requests. (1) A representative of the new media shall
be charged for document duplication, except that the first 100 pages of
paper copies (or the equivalent cost thereof if the records are in some
other form) shall be provided without charge.
(2) Representatives of the news media may not be charged fees for
costs incurred in--
(i) Searching for requested records,
(ii) Examining requested records to determine whether they are
exempt from mandatory disclosure,
(iii) Deleting reasonably segregable exempt matter,
(iv) Monitoring the requester's inspection of agency records, or
(v) Resolving legal and policy issues affecting access to requested
records.
(3)(i) A ``representative of the news media'' is any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that is (or would be) of current
interest to the public. Examples of news media entities include, but are
not limited to, television or radio stations broadcasting to the public
at large, and publishers of periodicals (but only in those instances
when they can qualify as disseminators of ``news'') who make their
products available for purchase or subscription by the general public.
As traditional methods of news delivery evolve (e.g., electronic
dissemination of newspapers through telecommunications services), such
alternative media would be included in this category.
(ii) Free-lance journalists may be considered ``representatives of
the news media'' if they demonstrate a solid basis for expecting
publication through a news organization, even though not actually
employed by it. A publication contract or past record of publication, or
evidence of a specific free-lance assignment from a news organization
may indicate a solid basis for expecting publication.
(e) Other requests. (1) A requester not covered by paragraphs (b),
(c) or (d) of this section shall be charged fees for document search and
duplication, except that the first two hours of search time and the
first 100 pages of paper copies (or the equivalent cost thereof if the
records are in some other form) shall be provided without charge.
(2) Such requesters may not be charged for costs incurred in--
(i) Examining requested records to determine whether they are exempt
from disclosure,
(ii) Deleting reasonably segregable exempt matter,
(iii) Monitoring the requester's inspection of agency records, or
(iv) Resolving legal and policy issues affecting access to requested
records.
(f) Requests for clarification. Where a request does not provide
sufficient information to determine whether it is covered by paragraph
(b), (c), (d) or (e) of this section, the requester should be asked to
provide additional clarification. If it is necessary to seek such
clarification, the request may be deemed to have not been received for
purposes of the time limits established in Sec. 2.17 until the
clarification is received. Requests to requesters for clarification
shall be made promptly.
(g) Notice of anticipated fees. Where a request does not state a
willingness to pay fees as high as anticipated by the Department, and
the requester has not sought and been granted a full waiver of fees
under Sec. 2.21, the request may be deemed to have not been received for
purposes of the time limits established in Sec. 2.17 until the requester
has been notified of and agrees to pay the anticipated fee. Advice to
requesters with respect to anticipated fees shall be provided promptly.
[[Page 17]]
(h) Advance payment. (1) Where it is anticipated that allowable fees
are likely to exceed $250.00 and the requester does not have a history
of prompt payment of FOIA fees, the requester may be required to make an
advance payment of the entire fee before processing of his or her
request.
(2) Where a requester has previously failed to pay a fee within 30
calendar days of the date of billing, processing of any new request from
that requester shall ordinarily be suspended until the requester pays
any amount still owed, including applicable interest, and makes advance
payment of allowable fees anticipated in connection with the new
request.
(3) Advance payment of fees may not be required except as described
in paragraphs (h) (1) and (2) of this section.
(4) Issuance of a notice requiring payment of overdue fees or
advance payment shall toll the time limit in Sec. 2.17 until receipt of
payment.
(i) Form of payment. Payment of fees should be made by check or
money order payable to the Department of the Interior or the bureau
furnishing the information. The term United States or the initials
``U.S.'' should not be included on the check or money order. Where
appropriate, the official responsible for handling a request may require
that payment by check be made in the form of a certified check.
(j) Billing procedures. A bill for collection, Form DI-1040, shall
be prepared for each request that requires collection of fees. The
requester shall be provided the first sheet of the DI-1040. This
Accounting Copy of the Form shall be transmitted to the agency's finance
office for entry into accounts receivable records. Upon receipt of
payment from the requester, the recipient shall forward the payment
along with a copy of the DI-1040 to the finance office.
(k) Collection of fees. The bill for collection or an accompanying
letter to the requester shall include a statement that interest will be
charged in accordance with the Debt Collection Act of 1982, 31 U.S.C.
3717, and implementing regulations, 4 CFR 102.13, if the fees are not
paid within 30 calendar days of the date of the bill for collection is
mailed or hand-delivered to the requester. This requirement does not
apply if the requester is a unit of state or local government. Other
authorities of the Debt Collection Act of 1982 shall be used, as
appropriate, to collect the fees (see 4 CFR parts 101-105).
Sec. 2.21 Waiver of fees.
(a) Statutory fee waiver. (1) Documents shall be furnished without
charge or at a charge reduced below the fees chargeable under Sec. 2.20
and appendix A to this part if disclosure of the information is in the
public interest because it--
(i) Is likely to contribute significantly to public understanding of
the operations or activities of the government and
(ii) Is not primarily in the commercial interest of the requester.
(2) Factors to be considered in determining whether disclosure of
information ``is likely to contribute significantly to public
understanding of the operations or activities of the government'' are
the following:
(i) Does the record concern the operations or activities of the
government? Records concern the operations or activities of the
government if they relate to or will illuminate the manner in which the
Department or a bureau is carrying out identifiable operations or
activities or the manner in which an operation or activity affects the
public. The connection between the records and the operations and
activities to which they are said to relate should be clear and direct,
not remote and attenuated. Records developed outside of the government
and submitted to or obtained by the Department may relate to the
operations and activities of the government if they are informative on
how an agency is carrying out its regulatory, enforcement, procurement
or other activities that involve private entities.
(ii) If a record concerns the operations or activities of the
government, is its disclosure likely to contribute to public
understanding of these operations and activities? The likelihood of a
contribution to public understanding will depend on consideration of the
content
[[Page 18]]
of the record, the identity of the requester, and the interrelationship
between the two. Is there a logical connection between the content of
the requested record and the operations or activities in which the
requester is interested? Are the disclosable contents of the record
meaningfully informative on the operations or activities? Is the focus
of the requester on contribution to public understanding, rather than on
the individual understanding of the requester or a narrow segment of
interested persons? Does the requester have expertise in the subject
area and the ability and intention to disseminate the information to the
general public or otherwise use the information in a manner that will
contribute to public understanding of government operations or
activities? Is the requested information sought by the requester because
it may be informative on government operations or activities or because
of the intrinsic value of the information independent of the light that
it may shed on government operations or activities?
(iii) If there is likely to be a contribution to public
understanding, will that contribution be significant? A contribution to
public understanding will be significant if the information disclosed is
new, clearly supports public oversight of Department operations,
including the quality of Department activities and the effect of policy
and regulations on public health and safety, or otherwise confirms or
clarifies data on past or present operations of the Department. A
contribution will not be significant if disclosure will not have a
positive impact on the level of public understanding of the operations
or activities involved that existed prior to the disclosure. In
particular, a significant contribution is not likely to arise from
disclosure of information already in the public domain because it has,
for example, previously been published or is routinely available to the
general public in a public reading room.
(3) Factors to be considered in determining whether disclosure ``is
primarily in the commercial interest of the requester'' are the
following:
(i) Does the requester have a commercial interest that would be
furthered by the requested disclosure? A commercial interest is a
commercial, trade or profit interest as these terms are commonly
understood. An entity's status is not determinative. Not only profit-
making corporations, but also individuals or other organizations, may
have a commercial interest to be served by disclosure, depending on the
circumstances involved.
(ii) If the requester has a commercial interest, will disclosure be
primarily in that interest? The requester's commercial interest is the
primary interest if the magnitude of that interest is greater than the
public interest to be served by disclosure. Where a requester is a
representative of a news media organization seeking information as part
of the news gathering process, it may be presumed that the public
interest outweighs the organization's commercial interest.
(4) Notice of denial. If a requested statutory fee waiver or
reduction is denied, the requester shall be notified in writing. The
notice shall include:
(i) A statement of the basis on which the waiver or reduction has
been denied.
(ii) A listing of the names and titles or positions of each person
responsible for the denial.
(iii) A statement that the denial may be appealed to the Assistant
Secretary--Policy, Budget and Administration and a description of the
procedures in Sec. 2.18 for appeal.
(b) Discretionary waivers. Fees otherwise chargeable may be waived
at the discretion of a bureau if a request involves:
(1) Furnishing unauthenticated copies of documents reproduced for
gratuitous distribution;
(2) Furnishing one copy of a personal document (e.g., a birth
certificate) to a person who has been required to furnish it for
retention by the Department;
(3) Furnishing one copy of the transcript of a hearing before a
hearing officer in a grievance or similar proceeding to the employee for
whom the hearing was held.
(4) Furnishing records to donors with respect to their gifts;
(5) Furnishing records to individuals or private non-profit
organizations
[[Page 19]]
having an official voluntary or cooperative relationship with the
Department to assist the individual or organization in its work with the
Department;
(6) Furnishing records to state, local and foreign governments,
public international organizations, and Indian tribes, when to do so
without charge is an appropriate courtesy, or when the recipient is
carrying on a function related to that of the Department and to do so
will help to accomplish the work of the Department;
(7) Furnishing a record when to do so saves costs and yields income
equal to the direct cost of providing the records (e.g., where the
Department's fee for the service would be included in a billing against
the Department);
(8) Furnishing records when to do so is in conformance with
generally established business custom (e.g., furnishing personal
reference data to prospective employers of former Department employees);
(9) Furnishing one copy of a record in order to assist the requester
to obtain financial benefits to which he or she is entitled (e.g.,
veterans or their dependents, employees with Government employee
compensation claims or persons insured by the Government).
Sec. 2.22 Special rules governing certain information concerning coal obtained under the Mineral Leasing Act.
(a) Definitions. As used in the section:
(1) Act means the Mineral Leasing Act of February 25, 1920, as
amended by the Act of August 4, 1976, Pub. L. 94-377, 90 Stat. 1083 (30
U.S.C. 181 et seq.), and the Mineral Leasing Act for Acquired Lands, as
amended (30 U.S.C. 351 et seq.)
(2) Exploration license means a license issued by the Secretary of
the Interior to conduct coal exploration operations on land subject to
the Act pursuant to the authority in section 2(b) of the Act, as amended
(30 U.S.C. 201(b)).
(3) Fair-market value of coal to be leased means the minimum amount
of a bid the Secretary has determined he is willing to accept in leasing
coal within leasing tracts offered in general lease sales or reserved
and offered for lease to public bodies, including Federal agencies,
rural electric cooperatives, or non-profit corporations, controlled by
any of such entities pursuant to section 2(a) of the Act (30 U.S.C.
201(a)(1)).
(4) Information means data, statistics, samples and other facts,
whether analyzed or processed or not, pertaining to Federal coal
resources, which fit within an exemption to the Freedom of Information
Act, 5 U.S.C. 552(b).
(b) Applicability. This section applies to the following categories
of information:
(1) Category A. Information provided to or obtained by a bureau
under section 2(b)(3) of the Act from the holder of an exploration
license;
(2) Category B. Information acquired from commercial or other
sources under service contract with Geological Survey pursuant to
section 8A(b) of the Act, and information developed by the Geological
Survey under an exploratory program authorized by section 8A of the Act;
(3) Category C. Information obtained from commercial sources which
the commercial source acquired while not under contract with the United
States Government;
(4) Category D. Information provided to the Secretary by a federal
department or agency pursuant to section 8A(e) of the Act; and
(5) Category E. The fair-market value of coal to be leased and
comments received by the Secretary with respect to such value.
(c) Availability of information. Information obtained by the
Department from various sources will be made available to the public as
follows:
(1) Category A--Information. Category A information shall not be
disclosed to the public until after the areas to which the information
pertains have been leased by the Department, or until the Secretary
determines that release of the information to the public would not
damage the competitive position of the holder of the exploration
license, whichever comes first.
(2) Category B--Information. Category B information shall not be
withheld from the public; it will be made available by means of and at
the time of open filing or publication by Geological Survey.
[[Page 20]]
(3) Category C--Information. Category C information shall not be
made available to the public until after the areas to which the
information pertains have been leased by the Department.
(4) Category D--Information. Category D information shall be made
available to the public under the terms and conditions to which, at the
time he or she acquired it, the head of the department or agency from
whom the Secretary later obtained the information agreed.
(5) Category E--Information. Category E information shall not be
made public until the lands to which the information pertains have been
leased, or until the Secretary has determined that its release prior to
the issuance of a lease is in the public interest.
Subpart C--Declassification of Classified Documents
Sec. 2.41 Declassification of classified documents.
(a) Request for classification review. (1) Requests for a
classification review of a document of the Department of the Interior
pursuant to section 5(c) of Executive Order 11652 (37 FR 5209, March 10,
1972) and section III B of the National Security Council Directive
Governing Classification, Downgrading, Declassification and Safeguarding
of National Security Information (37 FR 10053, May 1972) shall be made
in accordance with the procedures established by this section.
(2) Any person desiring a classification review of a document of the
Department of the Interior containing information classified as National
Security Information by reason of the provisions of Executive Order
12065 (or any predecessor executive order) and which is more than 10
years old, should address such request to the Chief, Division of
Enforcement and Security Management, Office of Administrative Services,
U.S. Department of the Interior, Washington, DC 20240.
(3) Requests need not be made on any special form, but shall, as
specified in the executive order, describe the document with sufficient
particularity to enable identification of the document requested with
expenditure of no more than a reasonable amount of effort.
(4) Charges for locating and reproducing copies of records will be
made when deemed applicable in accordance with appendix A to this part
and the requester will be notified.
(b) Action on requests for classification review. (1) The Chief,
Division of Enforcement and Security Management, shall, unless the
request is for a document over 30 years old, assign the request to the
bureau having custody of the requested records for action. In the case
of requests for declassification of records in the custody of the Office
of the Secretary and less than 30 years old, the request shall be
processed by the Chief, Division of Enforcement and Security Management.
Requests for declassification of documents over 30 years shall be
referred directly to the Archivist of the United States. The bureau
which has been assigned the request, or the Chief, Division of
Enforcement and Security Management, in the case of requests assigned to
him, shall immediately acknowledge the request in writing. Every effort
will be made to complete action on each request within thirty (30) days
of its receipt. If action cannot be completed within thirty (30) days,
the requester shall be so advised.
(2) If the requester does not receive a decision on his request
within sixty (60) days from the date of receipt of his request, or from
the date of his most recent response to a request for more 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
[[Page 21]]
the determination to the Chairman, Department of the Interior Oversight
Committee for Security, U.S. Department of the Interior, Washington, DC
20240. An appeal shall include a brief statement as to why the requester
disagrees with the decision which he is appealing. The Department
Oversight Committee for Security shall render its decision within thirty
(30) days of receipt of an appeal. The Departmental Committee shall be
authorized to over-rule previous determinations in whole or in part
when, in its judgement, continued protection is no longer required.
(d) Appeal to Interagency Classification Review Committee. Whenever
the Department of the Interior Oversight Committee for Security confirms
a determination for continued classification, it shall so notify the
requester and advise him that he is entitled to appeal the decision to
the Interagency Classification Review Committee established under
section 8(A) of the Executive Order 11652. Such appeals shall be
addressed to the Interagency Classification Review Committee, the
Executive Office Building, Washington, DC 20500.
(e) Suggestions and complaints. Any person may also direct
suggestions or complaints with respect to the administration of the
other provisions of Executive Order 11652 and the NSC Directive by the
Department of the Interior to the Department of the Interior Oversight
Committee for Security, U.S. Department of the Interior, Washington, DC
20240.
[40 FR 7305, Feb. 19, 1975, as amended at 47 FR 38327, Aug. 31, 1982]
Subpart D--Privacy Act
Source: 40 FR 44505, Sept. 26, 1975, unless otherwise noted.
Sec. 2.45 Purpose and scope.
This subpart contains the regulations of the Department of the
Interior implementing section 3 of the Privacy Act. Sections 2.47
through 2.57 describe the procedures and policies of the Department
concerning maintenance of records which are subject to the Act. Sections
2.60 through 2.66 describe the procedure under which individuals may
determine whether systems of records subject to the Act contain records
relating to them and the procedure under which they may seek access to
existing records. Sections 2.70 through 2.77 describe the procedure
under which individuals may petition for amendment of records subject to
the Act relating to them. Section 2.79 lists records systems that have
been exempted from certain requirements of the Act.
[48 FR 56583, Dec. 22, 1983]
Sec. 2.46 Definitions.
(a) Act. As used in this subpart, ``Act'' means section 3 of the
Privacy Act, 5 U.S.C. 552a.
(b) Bureau. For purposes of this subpart, a ``bureau'' is any
constituent bureau or office of the Department, including the Office of
the Secretary and any other Departmental office.
(c) Individual. As used in this subpart, ``individual'' means a
citizen of the United States or an alien lawfully admitted for permanent
residence.
(d) Maintain. As used in this subpart, the term ``maintain''
includes maintain, collect, use or disseminate.
(e) Record. As used in this subpart, ``record'' means any item,
collection, or grouping of information about an individual that is
maintained by the Department or a bureau thereof, including, but not
limited to, education, financial transactions, medical history, 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.
[[Page 22]]
(h) Office of Personnel Management personnel records. As used in the
subpart, ``Office of Personnel Management personnel records'' means
records maintained for the Office of Personnel Management by the
Department and used for personnel management programs or processes such
as staffing, employee development, retirement, and grievances and
appeals.
(i) Statistical records. As used in this subpart, ``statistical
records'' means records in a system of records maintained for
statistical research or reporting purposes only and not used in whole or
in part in making any determination about an identifiable individual.
(j) Routine use. As used in this subpart, ``routine use'' means a
use of a record for a purpose which is compatible with the purpose for
which it was collected.
(k) System notice. As used in this subpart, ``system notice'' means
the notice describing a system of records required by 5 U.S.C.
552a(e)(4) to be published in the Federal Register upon establishment or
revision of the system of records.
(l) System manager. As used in this subpart, ``system manager''
means the official designated in a system notice as having
administrative responsibility for a system of records.
(m) Departmental Privacy Act Officer. As used in this subpart,
``Departmental Privacy Act Officer'' means the official in the Office of
the Assistant Secretary--Policy, Budget and Administration charged with
responsibility for assisting the Assistant Secretary--Policy, Budget and
Administration in carrying out the functions assigned in this subpart
and for coordinating the activities of the bureaus of the Department in
carrying out the functions which they are assigned in this subpart.
(n) Bureau Privacy Act Officer. As used in this subpart, ``Bureau
Privacy Act Officer'' means the official within each bureau assigned
responsibility for bureau implementation of the Act and the regulations
of this subpart.
(o) Working day. As used in this subpart, ``working day'' means a
regular Federal work day. It does not include Saturdays, Sundays or
public legal holidays.
[40 FR 44505, Sept. 26, 1975, as amended at 47 FR 38327, Aug. 31, 1982;
48 FR 56583, Dec. 22, 1983; 53 FR 3749, Feb. 9, 1988]
Sec. 2.47 Records subject to Privacy Act.
The Privacy Act applies to all ``records,'' as that term is defined
in Sec. 2.46(e), which the Department maintains in a ``system of
records,'' as that term is defined in Sec. 2.46(f).
Sec. 2.48 Standards for maintenance of records subject to the Act.
(a) Content of records. Records subject to the Act shall contain
only such information about an individual as is relevant and necessary
to accomplish a purpose of the agency required to be accomplished by
statute or Executive Order of the President.
(b) Standards of accuracy. Records subject to the Act which are used
in making any determination about any individual shall be maintained
with such accuracy, relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to the individual in making the
determination.
(c) Collection of information. (1) Information which may be used in
making determinations about an individual's rights, benefits, and
privileges under Federal programs shall, to the greatest extent
practicable, be collected directly from that individual.
(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
[[Page 23]]
information collected from third parties.
(d) Advice to individuals concerning uses of information. (1) Each
individual who is asked to supply information about him or herself which
will be added to a system of records shall be informed of the basis for
requesting the information, how it may be used, and what the
consequences, if any, are of not supplying the information.
(2) At a minimum, the notice to the individual must state:
(i) The authority (whether granted by statute or Executive Order of
the President) which authorizes the solicitation of the information and
whether disclosure of such information is mandatory or voluntary;
(ii) The principal purpose or purposes for which the information is
intended to be used;
(iii) The routine uses which may be made of the information; and
(iv) The effects on the individual, if any, of not providing all or
any part of the requested information.
(3)(i) When information is collected on a standard form, the notice
to the individual shall be provided on the form, on a tear-off sheet
attached to the form, or on a separate sheet, whichever is most
practical.
(ii) When information is collected by an interviewer, the
interviewer shall privide the individual with a written notice which the
individual may retain. If the interview is conducted by telephone,
however, the interviewer may summarize the notice for the individual and
need not provide a copy to the individual unless the individual requests
a copy.
(iii) An individual may be asked to acknowledge, in writing, that
the notice required by this section has been provided.
(e) Records concerning activity protected by the First Amendment. No
record may be maintained describing how any individual exercises rights
guaranteed by the First Amendment to the Constitution unless the
maintenance of the record is (1) expressly authorized by statute or by
the individual about whom the record is maintained or (2) pertinent to
and within the scope of an authorized law enforcement activity.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56583, Dec. 22, 1983]
Sec. 2.49 [Reserved]
Sec. 2.50 Federal Register notices describing systems of records.
(a) The Privacy Act requires publication of a notice in the Federal
Register describing each system of records subject to the Act. Such
notice will be published prior to the establishment or a revision of the
system of records. 5 U.S.C. 552a(e)(4).
(b) Each bureau shall notify the Departmental Privacy Act Officer
promptly of any modifications or amendments which are required in the
then-current notice describing a system of records for which it is
responsible.
(c) A bureau desiring to establish a new system of records or a new
use for an existing system of records shall notify the Departmental
Privacy Act Officer, no fewer than ninety (90) calendar days in advance.
[48 FR 56583, Dec. 22, 1983]
Sec. 2.51 Assuring integrity of records.
(a) Statutory requirement. The Privacy Act requires that records
subject to the Act be maintained with appropriate administrative,
technical and physical safeguards to insure the security and
confidentiality of records and to protect against any anticipated
threats or hazards to their security or integrity which could result in
substantial harm, embarassment, inconvenience, or unfairness to any
individual on whom information is maintained, 5 U.S.C. 552a(e)(10).
(b) Records maintained in manual form. When maintained in manual
form, records subject to the Privacy Act shall be maintained in a manner
commensurate with the sensitivity of the information contained in the
system of records. The following minimum safeguards, or safeguards
affording comparable protection, are applicable to Privacy Act systems
of records containing sensitive information:
(1) Areas in which the records are maintained or regularly used
shall be posted with an appropriate warning
[[Page 24]]
stating that access to the records is limited to authorized persons. The
warning also shall summarize the requirements of Sec. 2.52 and state
that the Privacy Act contains a criminal penalty for the unauthorized
disclosure of records to which it applies.
(2) During working hours, (i) the area in which the records are
maintained or regularly used shall be occupied by authorized personnel
or (ii) access to the records shall be restricted by their storage in
locked metal file cabinets or a locked room.
(3) During non-working hours, access to the records shall be
restricted by their storage in locked metal file cabinets or a locked
room.
(4) Where a locked room is the method of security provided for a
system, the bureau responsible for the system shall supplement that
security by (i) providing lockable file cabinets or containers for the
records or (ii) changing the lock or locks for the room so that they may
not be opened with a master key. For the purposes of this paragraph, a
master key is a key which may be used to open rooms other than the room
containing records subject to the Privacy Act, unless those rooms are
utilized by officials or employees authorized to have access to the
records subject to the Privacy Act.
(c) Records maintained in computerized form. When maintained in
computerized form, records subject to the Privacy Act shall be
maintained, at a minimum, subject to safeguards based on those
recommended in the National Bureau of Standard's booklet ``Computer
Security Guidelines for Implementing the Privacy Act of 1974'' (May 30,
1975), and any supplements thereto, which are adequate and appropriate
to assuring the integrity of records in the system.
(d) Office of Personnel Management personnel records. A system of
records made up of Office of Personnel Management personnel records
shall be maintained under the security requirements set out in 5 CFR
293.106 and 293.107.
(e) Bureau responsibility. (1) The bureau responsible for a system
of records shall be responsible for assuring that specific procedures
are developed to assure that the records in the system are maintained
with security meeting the requirements of the Act and this section.
(2) These procedures shall be in writing and shall be posted or
otherwise periodically brought to the attention of employees working
with the records contained in the system.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56583, Dec. 22, 1983]
Sec. 2.52 Conduct of employees.
(a) Handling of records subject to the Act. Employees whose duties
require handling of records subject to the Privacy Act shall, at all
times, take care to protect the integrity, security and confidentiality
of these records.
(b) Disclosure of records. No employee of the Department may
disclose records subject to the Privacy Act unless disclosure is
permitted under Sec. 2.56 or is to the individual to whom the record
pertains.
(c) Alteration of records. No employee of the Department may alter
or destroy a record subject to the Privacy Act unless (1) such
alteration or destruction is properly undertaken in the course of the
employee's regular duties or (2) such alteration or destruction is
required by a decision under Secs. 2.70 through 2.75 or the decision of
a court of competent jurisdiction.
(d) Bureau responsibility. The bureau responsible for a system of
records shall be responsible for assuring that employees with access to
the system are made aware of the requirements of this section and of 5
U.S.C. 552a(i)(1), which imposes criminal penalties for knowingly and
willfully disclosing a record about an individual without the written
request or consent of that individual unless disclosure is permitted
under one of the exceptions listed in Sec. 2.56 (b) and (c).
Sec. 2.53 Government contracts.
(a) Required contract provisions. When a contract provides for the
operation by or on behalf of the Department of a system of records to
accomplish a Department function, the contract shall, consistent with
the Department's authority, cause the requirements of 5 U.S.C. 552a and
the regulations contained in this subpart to be applied to such system.
[[Page 25]]
(b) System manager. The head of the bureau responsible for the
contract shall designate a regular employee of the bureau to be the
manager for a system of records operated by a contractor.
Secs. 2.54-2.55 [Reserved]
Sec. 2.56 Disclosure of records.
(a) Prohibition of disclosure. No record contained in a system of
records may be disclosed by any means of communication to any person, or
to another agency, except pursuant to a written request by, or with the
prior written consent of, the individual to whom the record pertains.
(b) General exceptions. The prohibition contained in paragraph (a)
does not apply where disclosure of the record would be:
(1) To those officers or employees of the Department who have a need
for the record in the performance of their duties; or
(2) Required by the Freedom of Information Act, 5 U.S.C. 552.
(c) Specific exceptions. The prohibition contained in paragraph (a)
of this section does not apply where disclosure of the record would be:
(1) For a routine use as defined in Sec. 2.46(j) which has been
described in a system notice published in the Federal Register;
(2) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to the provisions of
Title 13, U.S. Code.
(3) To a recipient who has provided the system manager responsible
for the system in which the record is maintained with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(4) To the National Archives and Records Administration as a record
which has sufficient historical or other value to warrant its continued
preservation by the U.S. Government, or for evaluation by the Archivist
of the United States or the designee of the Archivist to determine
whether the record has such value;
(5) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the Department specifying the particular portion
desired and the law enforcement activity for which the record is sought;
(6) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(7) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(8) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office;
(9) Pursuant to the order of a court of competent jurisdiction; or
(10) To a consumer reporting agency in accordance with section 3(d)
of the Federal Claims Collection Act of 1966, as amended (31 U.S.C.
3711(f)).
(d) Reviewing records prior to disclosure. (1) Prior to any
disclosure of a record about an individual, unless disclosure is
required by the Freedom of Information Act, reasonable efforts shall be
made to assure that the records are accurate, complete, timely and
relevant for agency purposes.
(2) When a record is disclosed in connection with a Freedom of
Information request made under subpart B of this part and it is
appropriate and administratively feasible to do so, the requester shall
be informed of any information known to the Department indicating that
the record may not be fully accurate, complete, or timely.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983;
50 FR 45114, Oct. 30, 1985]
Sec. 2.57 Accounting for disclosures.
(a) Maintenance of an accounting. (1) Where a record is disclosed to
any person, or to another agency, under any of
[[Page 26]]
the specific exceptions provided by Sec. 2.56 (c), an accounting shall
be made.
(2) The accounting shall record (i) the date, nature, and purpose of
each disclosure of a record to any person or to another agency and (ii)
the name and address of the person or agency to whom the disclosure was
made.
(3) Accountings prepared under this section shall be maintained for
at least five years or the life of the record, whichever is longer,
after the disclosure for which the accounting is made.
(b) Access to accountings. (1) Except for accountings of disclosures
made under Sec. 2.56(c)(5), accountings of all disclosures of a record
shall be made available to the individual to whom the record relates at
the individual's request.
(2) An individual desiring access to an accounting of disclosures of
a record pertaining to the individual shall submit a request by
following the procedures of Sec. 2.63.
(c) Notification of disclosure. When a record is disclosed pursuant
to Sec. 2.56(c)(9) as the result of the order of a court of competent
jurisdiction, reasonable efforts shall be made to notify the individual
to whom the record pertains as soon as the order becomes a matter of
public record.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983]
Secs. 2.58-2.59 [Reserved]
Sec. 2.60 Request for notification of existence of records: Submission.
(a) Submission of requests. (1)(i) Individuals desiring to determine
under the Privacy Act whether a system of records contains records
pertaining to them shall address inquiries to the system manager having
responsibility for the system unless the system notice describing the
system prescribes or permits submission to some other official or
officials.
(ii) If a system notice describing a system requires individuals to
contact more than two officials concerning the existence of records in
the system, individuals desiring to determine whether the system
contains records pertaining to them may contact the system manager for
assistance in determining which official is most likely to be in
possession of records pertaining to those individuals.
(2) Individuals desiring to determine whether records pertaining to
them are maintained in two or more systems shall make a separate inquiry
concerning each system.
(b) Form of request. (1) An inquiry to determine whether a system of
records contains records pertaining to an individual shall be in
writing.
(2) To insure expeditious handling, the request shall be prominently
marked, both on the envelope and on the face of the request, with the
legend ``PRIVACY ACT INQUIRY.''
(3) The request shall state that the individual is seeking
information concerning records pertaining to him or herself and shall
supply such additional identifying information, if any, as is called for
in the system notice describing the system.
(4) Individuals who have reason to believe that information
pertaining to them may be filed under a name other than the name they
are currently using (e.g., maiden name), shall include such information
in the request.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983]
Sec. 2.61 Requests for notification of existence of records: Action on.
(a) Decisions on request. (1) Individuals inquiring to determine
whether a system of records contains records pertaining to them shall be
promptly advised whether the system contains records pertaining to them
unless (i) the records were compiled in reasonable anticipation of a
civil action or proceeding or (ii) the system of records is one which
has been excepted from the notification provisions of the Privacy Act by
rulemaking (Sec. 2.79).
(2) If the records were compiled in reasonable anticipation of a
civil action or proceeding or the system of records is one which has
been excepted from the notification provisions of the Privacy Act by
rulemaking, the individuals will be promptly notified that they are not
entitled to notification of whether the system contains records
pertaining to them.
(b) Authority to deny requests. A decision to deny a request for
notification of the existence of records shall be
[[Page 27]]
made by the system manager responsible for the system of records
concerning which inquiry has been made and shall be concurred in by the
bureau Privacy Act officer for the bureau which maintains the system,
provided, however that the head of a bureau may, in writing, require (1)
that the decision be made by the bureau Privacy Act officer and/or (2)
that the bureau head's own concurrence in the decision be obtained.
(c) Form of decision. (1) No particular form is required for a
decision informing individuals whether a system of records contains
records pertaining to them.
(2) A decision declining to inform an individual whether or not a
system of records contains records pertaining to him or her shall be in
writing and shall:
(i) State the basis for denial of the request.
(ii) Advise the individual that an appeal of the declination may be
made to the Assistant Secretary--Policy, Budget and Administration
pursuant to Sec. 2.65 by writing to the Privacy Act Officer, Office of
the Assistant Secretary--Policy, Budget and Administration, U.S.
Department of the Interior, Washington, DC 20240.
(iii) State that the appeal must be received by the foregoing
official within twenty (20) working days of the date of the decision.
(3) If the decision declining a request for notification of the
existence of records involves Department employee records which fall
under the jurisdiction of the Office of Personnel Management, the
individual shall be informed in a written response which shall:
(i) State the reasons for the denial.
(ii) Include the name, position title, and address of the official
responsible for the denial.
(iii) Advise the individual that an appeal of the declination may be
made only to the Assistant Director for Workforce Information, Personnel
Systems Oversight Group, Office of Personnel Management, 1900 E Street
NW., Washington, DC 20415.
(4) Copies of decisions declining a request for notification of the
existence of records made pursuant to paragraphs (c)(2) and (c)(3) of
this section shall be provided to the Departmental and Bureau Privacy
Act Officers.
[48 FR 56584, Dec. 22, 1983, as amended at 53 FR 3749, Feb. 9, 1988]
Sec. 2.62 Requests for access to records.
The Privacy Act permits individuals, upon request, to gain access to
their records or to any information pertaining to them which is
contained in a system and to review the records and have a copy made of
all or any portion thereof in a form comprehensive to them. 5 U.S.C.
552a(d)(1). A request for access shall be submitted in accordance with
the procedures in this subpart.
[48 FR 56584, Dec. 22, 1983]
Sec. 2.63 Requests for access to records: Submission.
(a) Submission of requests. (1)(i) Requests for access to records
shall be submitted to the system manager having responsibility for the
system in which the records are maintained unless the system notice
describing the system prescribes or permits submission to some other
official or officials.
(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
[[Page 28]]
the individual are sought, the request shall reasonably describe the
specific record or records sought.
(4) If the requester seeks to have copies of the requested records
made, the request shall state the maximum amount of copying fees which
the requester is willing to pay. A request which does not state the
amount of fees the requester is willing to pay will be treated as a
request to inspect the requested records. Requesters are further
notified that under Sec. 2.64(d) the failure to state willingness to pay
fees as high as are anticipated by the Department will delay processing
of a request.
(5) The request shall supply such identifying information, if any,
as is called for in the system notice describing the system.
(6) Requests failing to meet the requirements of this paragraph
shall be returned to the requester with a written notice advising the
requester of the deficiency in the request.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983]
Sec. 2.64 Requests for access to records: Initial decision.
(a) Decisions on requests. A request made under this subpart for
access to a record shall be granted promptly unless (1) the record was
compiled in reasonable anticipation of a civil action or proceeding or
(2) the record is contained in a system of records which has been
excepted from the access provisions of the Privacy Act by rulemaking
(Sec. 2.79).
(b) Authority to deny requests. A decision to deny a request for
access under this subpart shall be made by the system manager
responsible for the system of records in which the requested record is
located and shall be concurred in by the bureau Privacy Act officer for
the bureau which maintains the system, provided, however, that the head
of a bureau may, in writing, require (1) that the decision be made by
the bureau Privacy Act officer and/or (2) that the bureau head's own
concurrence in the decision be obtained.
(c) Form of decision. (1) No particular form is required for a
decision granting access to a record. The decision shall, however,
advise the individual requesting the record as to where and when the
record is available for inspection or, as the case may be, where and
when copies will be available. If fees are due under Sec. 2.64(d), the
individual requesting the record shall also be notified of the amount of
fees due or, if the exact amount has not been determined, the
approximate amount of fees due.
(2) A decision denying a request for access, in whole or part, shall
be in writing and shall:
(i) State the basis for denial of the request.
(ii) Contain a statement that the denial may be appealed to the
Assistant Secretary--Policy, Budget and Administration pursuant to
Sec. 2.65 by writing to the Privacy Act Officer, Office of the Assistant
Secretary--Policy, Budget and Administration, U.S. Department of the
Interior, Washington, DC 20240.
(iii) State that the appeal must be received by the foregoing
official within twenty (20) working days of the date of the decision.
(3) If the decision denying a request for access involves Department
employee records which fall under the jurisdiction of the Office of
Personnel Management, the individual shall be informed in a written
response which shall:
(i) State the reasons for the denial.
(ii) Include the name, position title, and address of the official
responsible for the denial.
(iii) Advise the individual that an appeal of the denial may be made
only to the Assistant Director for Workforce Information, Personnel
Systems and Oversight Group, Office of Personnel Management, 1900 E
Street NW., Washington, DC 20415.
(4) Copies of decisions denying requests for access made pursuant to
paragraphs (c)(2) and (c)(3) of this section will be provided to the
Departmental and Bureau Privacy Act Officers.
(d) Fees. (1) No fees may be charged for the cost of searching for
or reviewing a record in response to a request made under Sec. 2.63.
(2) Fees for copying a record in response to a request made under
Sec. 2.63 shall be charged in accordance with the
[[Page 29]]
schedule of charges contained in Appendix A to this part, unless the
official responsible for processing the request determines that
reduction or waiver of fees is appropriate.
(3) Where it is anticipated that fees chargeable in connection with
a request will exceed the amount the person submitting the request has
indicated a willingness to pay, the official processing the request
shall notify the requester and shall not complete processing of the
request until the requester has agreed, in writing, to pay fees as high
as are anticipated.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983;
53 FR 3749, Feb. 9, 1988]
Sec. 2.65 Requests for notification of existence of records and for access to records: Appeals.
(a) Right of appeal. Except for appeals pertaining to Office of
Personnel Management records, individuals who have been notified that
they are not entitled to notification of whether a system of records
contains records pertaining to them or have been denied access, in whole
or part, to a requested record may appeal to the Assistant Secretary--
Policy, Budget and Administration.
(b) Time for appeal. (1) An appeal must be received by the Privacy
Act Officer no later than twenty (20) working days after the date of the
initial decision on a request.
(2) The Assistant Secretary--Policy, Budget and Administration may,
for good cause shown, extend the time for submission of an appeal if a
written request for additional time is received within twenty (20)
working days of the date of the initial decision on the request.
(c) Form of appeal. (1) An appeal shall be in writing and shall
attach copies of the initial request and the decision on the request.
(2) The appeal shall contain a brief statement of the reasons why
the appellant believes the decision on the initial request to have been
in error.
(3) The appeal shall be addressed to Privacy Act Officer, Office of
the Assistant Secretary--Policy, Budget and Administration, U.S.
Department of the Interior, Washington, DC 20240.
(d) Action on appeals. (1) Appeals from decisions on initial
requests made pursuant to Secs. 2.61 and 2.63 shall be decided for the
Department by the Assistant Secretary--Policy, Budget and Administration
or an official designated by the Assistant Secretary after consultation
with the Solicitor.
(2) The decision on an appeal shall be in writing and shall state
the basis for the decision.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983;
53 FR 3749, Feb. 9, 1988]
Sec. 2.66 Requests for access to records: Special situations.
(a) Medical records. (1) Medical records shall be disclosed to the
individual to whom they pertain unless it is determined, in consultation
with a medical doctor, that disclosure should be made to a medical
doctor of the individual's choosing.
(2) If it is determined that disclosure of medical records directly
to the individual to whom they pertain could have an adverse effect on
that individual, the individual may designate a medical doctor to
receive the records and the records will be disclosed to that doctor.
(b) Inspection in presence of third party. (1) Individuals wishing
to inspect records pertaining to them which have been opened for their
inspection may, during the inspection, be accompanied by a person of
their own choosing.
(2) When such a procedure is deemed appropriate, individuals to whom
the records pertain may be required to furnish a written statement
authorizing discussion of their records in the accompanying person's
presence.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983]
Secs. 2.67-2.69 [Reserved]
Sec. 2.70 Amendment of records.
The Privacy Act permits individuals to request amendment of records
pertaining to them if they believe the records are not accurate,
relevant, timely or complete. 5 U.S.C. 552a(d)(2). A request for
amendment of a record
[[Page 30]]
shall be submitted in accordance with the procedures in this subpart.
[48 FR 56585, Dec. 22, 1983]
Sec. 2.71 Petitions for amendment: Submission and form.
(a) Submission of petitions for amendment. (1) A request for
amendment of a record shall be submitted to the system manager for the
system of records containing the record unless the system notice
describing the system prescribes or permits submission to a different
official or officials. If an individual wishes to request amendment of
records located in more than one system, a separate petition must be
submitted to each system manager.
(2) A petition for amendment of a record may be submitted only if
the individual submitting the petition has previously requested and been
granted access to the record and has inspected or been given a copy of
the record.
(b) Form of petition. (1) A petition for amendment shall be in
writing and shall specifically identify the record for which amendment
is sought.
(2) The petition shall state, in detail, the reasons why the
petitioner believes the record, or the objectionable portion thereof, is
not accurate, relevant, timely or complete. Copies of documents or
evidence relied upon in support of these reasons shall be submitted with
the petition.
(3) The petition shall state, specifically and in detail, the
changes sought in the record. If the changes involve rewriting the
record or portions thereof or involve adding new language to the record,
the petition shall propose specific language to implement the changes.
[48 FR 56585, Dec. 22, 1983]
Sec. 2.72 Petitions for amendment: Processing and initial decision.
(a) Decisions on petitions. In reviewing a record in response to a
petition for amendment, the accuracy, relevance, timeliness and
completeness of the record shall be assessed against the criteria set
out in Sec. 2.48. In addition, personnel records shall be assessed
against the criteria for determining record quality published in the
Federal Personnel Manual and the Departmental Manual addition thereto.
(b) Authority to decide. An initial decision on a petition for
amendment may be made only by the system manager responsible for the
system of records containing the challenged record. If the system
manager declines to amend the record as requested, the bureau Privacy
Act officer for the bureau which maintains the system must concur in the
decision, provided, however, that the head of a bureau may, in writing,
require (1) that the decision be made by the bureau Privacy Act officer
and/or (2) that the bureau head's own concurrence in the decision be
obtained.
(c) Acknowledgement of receipt. Unless processing of a petition is
completed within ten (10) working days, the receipt of the petition for
amendment shall be acknowledged in writing by the system manager to whom
it is directed.
(d) Inadequate petitions. (1) If a petition does not meet the
requirements of Sec. 2.71, the petitioner shall be so advised and shall
be told what additional information must be submitted to meet the
requirements of Sec. 2.71.
(2) If the petitioner fails to submit the additional information
within a 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.
[[Page 31]]
(3) If the petition for amendment involves Department employee
records which fall under the jurisdiction of the Office of Personnel
Management and is rejected, in whole or part, the petitioner shall be
informed in a written response which shall:
(i) State concisely the basis for the decision.
(ii) Advise the petitioner that an appeal of the rejection may be
made pursuant to 5 CFR 297.306 only to the Assistant Director for
Workforce Information, Personnel Systems and Oversight Group, Office of
Personnel Management, 1900 E Street NW., Washington, DC 20415.
(4) Copies of rejections of petitions for amendment made pursuant to
paragraphs (e)(2) and (e)(3) of this section will be provided to the
Departmental and Bureau Privacy Act Officers.
(f) Implementation of initial decision. If a petition for amendment
is accepted, in whole or part, the bureau maintaining the record shall:
(1) Correct the record accordingly and,
(2) Where an accounting of disclosures has been made pursuant to
Sec. 2.57, advise all previous recipients of the record that the
correction was made and the substance of the correction.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983;
53 FR 3750, Feb. 9, 1988]]
Sec. 2.73 Petitions for amendments: Time limits for processing.
(a) Acknowledgement of receipt. The acknowledgement of receipt of a
petition required by Sec. 2.72(c) shall be dispatched not later than ten
(10) working days after receipt of the petition by the system manager
responsible for the system containing the challenged record, unless a
decision on the petition has been previously dispatched.
(b) Decision on petition. A petition for amendment shall be
processed promptly. A determination whether to accept or reject the
petition for amendment shall be made within thirty (30) working days
after receipt of the petition by the system manager responsible for the
system containing the challenged record.
(c) Suspension of time limit. The thirty (30) day time limit for a
decision on a petition shall be suspended if it is necessary to notify
the petitioner, pursuant to Sec. 2.72(d), that additional information in
support of the petition is required. Running of the thirty (30) day time
limit shall resume on receipt of the additional information by the
system manager responsible for the system containing the challenged
record.
(d) Extensions of time. (1) The thirty (30) day time limit for a
decision on a petition may be extended if the official responsible for
making a decision on the petition determines that an extension is
necessary for one of the following reasons:
(i) A decision on the petition requires analysis of voluminous
record or records;
(ii) Some or all of the challenged records must be collected from
facilities other than the facility at which the official responsible for
making the decision is located.
(iii) Some or all of the challenged records are of concern to
another bureau of the Department or another agency of the Federal
Government whose assistance and views are being sought in processing the
request.
(2) If the official responsible for making a decision on the
petition determines that an extension is necessary, the official shall
promptly inform the petitioner of the extension and the date on which a
decision is expected to be dispatched.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56586, Dec. 22, 1983;
53 FR 3750, Feb. 9, 1988]
Sec. 2.74 Petitions for amendment: Appeals.
(a) Right of appeal. Except for appeals pertaining to Office of
Personnel Management records, where a petition for amendment has been
rejected in whole or in part, the individual submitting the petition may
appeal the denial to the Assistant Secretary--Policy, Budget and
Administration.
(b) Time for appeal. (1) An appeal must be received no later than
twenty (20) working days after the date of the decision on a petition.
(2) The Assistant Secretary--Policy, Budget and Administration may,
for good cause shown, extend the time for
[[Page 32]]
submission of an appeal if a written request for additional time is
received within twenty (20) working days of the date of the decision on
a petition.
(c) Form of appeal. (1) An appeal shall be in writing and shall
attach copies of the initial petition and the decision on that petition.
(2) The appeal shall contain a brief statement of the reasons why
the appellant believes the decision on the petition to have been in
error.
(3) The appeal shall be addressed to Privacy Act Officer, Office of
the Assistant Secretary--Policy, Budget and Administration, U.S.
Department of the Interior, Washington, DC 20240.
[40 FR 44505, Sept. 26, 1975, as amended at 47 FR 38328, Aug. 31, 1982;
53 FR 3750, Feb. 9, 1988]
Sec. 2.75 Petitions for amendment: Action on appeals.
(a) Authority. Appeals from decisions on initial petitions for
amendment shall be decided for the Department by the Assistant
Secretary--Policy, Budget and Administration or an official designated
by the Assistant Secretary, after consultation with the Solicitor.
(b) Time limit. (1) A final determination on any appeal shall be
made within thirty (30) working days after receipt of the appeal.
(2) The thirty (30) day period for decision on an appeal may be
extended, for good cause shown, by the Secretary of the Interior. If the
thirty (30) day period is extended, the individual submitting the appeal
shall be notified of the extension and of the date on which a
determination on the appeal is expected to be dispatched.
(c) Form of decision. (1) The final determination on an appeal shall
be in writing and shall state the basis for the determination.
(2) If the determination upholds, in whole or part, the initial
decision rejecting the petition for amendment, the determination shall
also advise the individual submitting the appeal:
(i) Of his or her right to file a concise statement of the reasons
for disagreeing with the decision of the agency;
(ii) Of the procedure established by Sec. 2.77 for the filing of the
statement of disagreement;
(iii) That the statement which is filed will be made available to
anyone to whom the record is subsequently disclosed together with, at
the discretion of the Department, a brief statement by the Department
summarizing its reasons for refusing to amend the record;
(iv) That prior recipients of the challenged record will be provided
a copy of any statement of dispute to the extent that an accounting of
disclosure was maintained; and
(v) Of his or her right to seek judicial review of the Department's
refusal to amend the record.
(3) If the determination reverses, in whole or in part, the initial
decision rejecting the petition for amendment, the system manager
responsible for the system containing the challenged record shall be
directed to:
(i) Amend the challenged record accordingly; and
(ii) If an accounting of disclosures has been made, advise all
previous recipients of the record of the amendment and its substance.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56586, Dec. 22, 1983;
53 FR 3750, Feb. 9, 1988]
Sec. 2.76 [Reserved]
Sec. 2.77 Statements of disagreement.
(a) Filing of statement. If the determination of the Assistant
Secretary--Policy, Budget and Administration under Sec. 2.75 rejects in
whole or part, a petition for amendment, the individual submitting the
petition may file with the system manager for the system containing the
challenged record a concise written statement setting forth the reasons
for disagreement with the determination of the Department.
(b) Disclosure of statements. In any disclosure of a record
containing information about which an individual has filed a statement
of disagreement under this section which occurs after the filing of the
statement, the disputed portion of the record will be clearly noted and
the recipient shall be provided copies of the statement of disagreement.
If appropriate, a concise statement of the reasons of the Department for
not making the requested
[[Page 33]]
amendments may also be provided to the recipient.
(c) Maintenance of statements. System managers shall develop
procedures to assure that statements of disagreement filed with them
shall be maintained in such a way as to assure dissemination of the
statements to recipients of the records to which the statements pertain.
[48 FR 56586, Dec. 22, 1983]
Sec. 2.78 [Reserved]
Sec. 2.79 Exemptions.
(a) Criminal law enforcement records exempt under 5 U.S.C.
552a(j)(2). Pursuant to 5 U.S.C 552a(j)(2) the following systems of
records have been exempted from all of the provisions of 5 U.S.C. 552a
and the regulations in the subpart except paragraphs (b), (c) (1) and
(2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and (11), and (i)
of 5 U.S.C. 552a and the portions of the regulations in this subpart
implementing these paragraphs:
(1) Investigative Case File System, Interior/FWS-20.
(2) Law Enforcement Services System, Interior/BIA-18.
(3) Law Enforcement Statistical Reporting System, Interior/NPS-19.
(4) Investigative Records, Interior/Office of Inspector General--2.
(b) Law enforcement records exempt under 5 U.S.C. 552a(k)(2).
Pursuant to 5 U.S.C. 552a(k)(2), the following systems of records have
been exempted from paragraphs (c)(3), (d), (e)(1), (e)(4) (G), (H), and
(I), and (f) of 5 U.S.C. 552a and the provisions of the regulations in
this subpart implementing these paragraphs:
(1) Investigative Records, Interior/Office of Inspector General--2.
(2) Permits System, Interior/FWS-21.
(3) Criminal Case Investigation System, Interior/BLM-18.
(4) Civil Trespass Case Investigations, Interior/BLM-19.
(5) Employee Conduct Investigations, Interior/BLM-20.
(6)-(7) [Reserved]
(8) Employee Financial Irregularities, Interior/NPS-17.
(9) Trespass Cases, Interior/Reclamation-37.
(10) Litigation, Appeal and Case Files System, Interior/Office of
the Solicitor-1 to the extent that it consists of investigatory material
compiled for law enforcement purposes.
(11) Endangered Species Licenses System, Interior/FWS-19.
(12) Investigative Case File, Interior/ FWS-20.
(13) Timber Cutting and Trespass Claims Files, Interior/BIA-24.
(c) Investigatory records exempt under 5 U.S.C. 552a(k)(5), the
following systems of records have been exempted from subsections (c)(3),
(d), (e)(1), (e)(4) (G), (H), and (I) and (f) of 5 U.S.C. 552a and the
provisions of the regulations in this subpart implementing these
subsections:
(1) [Reserved]
(2) National Research Council Grants Program, Interior/GS-9
(3) Committee Management Files, Interior/Office of the Secretary--
68.
(5 U.S.C. 301, 552a and 5 U.S.C. app. sections 9(a)(1)(D) and 9(b); 5
U.S.C. 301, 552, and 552a; 31 U.S.C. 483a; and 43 U.S.C. 1460)
[40 FR 44505, Sept. 26, 1975, as amended at 40 FR 54790, Nov. 26, 1975;
47 FR 38328, Aug. 31, 1982; 48 FR 37412, Aug. 18, 1983; 48 FR 56586,
Dec. 22, 1983; 49 FR 6907, Feb. 24, 1984]
Subpart E--Compulsory Process and Testimony of Employees
Sec. 2.80 Compulsory process.
(a) If the production of any record of the Department is sought by
compulsory process and if it is determined in accordance with the
provisions of Sec. 2.13 that the record should not be disclosed, the
person making such determination shall immediately report the matter to
the Solicitor. The person to whom the compulsory process is directed
shall appear in answer to the process and respectfully decline to
produce the record on the ground that the disclosure, pending the
receipt of instructions from the Secretary of the Interior, is
prohibited by the regulations in this subpart.
(b) The solicitor of the Department of the Interior is authorized to
exercise all of the authority of the Secretary of the Interior under
this section.
[[Page 34]]
Sec. 2.82 Testimony of employees.
(a) An officer or employee of the Department shall not testify in
any judicial or administrative proceeding concerning matters related to
the business of the Government without the permission of the head of the
bureau, or his designee, or of the Secretary of the Interior, or his
designee. If the head of a bureau or his designee, concludes that
permission should be withheld, he shall report the matter immediately to
the Solicitor for a determination, and the officer or employee shall
appear in answer to process and respectfully decline to testify, pending
the receipt of instructions from the Secretary, on the ground that
testimony is prohibited by the regulations in this part. Pending
instructions from the Secretary or his designee, an officer or employee
in the Office of the Secretary shall follow the same procedure.
(b) Any person (including a public agency) wishing an officer or
employee of the Department to testify in a judicial or administrative
proceeding concerning a matter related to the business of the Government
may be required to submit a statement setting forth the interest of the
litigant and the information with respect to which the testimony of the
officer or employee of the Department is desired, before permission to
testify will be granted under this section.
(c) The Solicitor of the Department of the Interior is authorized to
exercise all of the authority of the Secretary of the Interior under
this section.
Appendix A to Part 2--Fees
The following uniform fee schedule is applicable to all constituent
units of the Department. It states the fees to be charged to members of
the public for services performed in searching for, reviewing and
duplicating requested records in connection with FOIA requests made
under subpart B of this part and to services performed in making
documents available for inspection and copying under subpart A of this
part. The duplicating fees stated in the schedule are also applicable to
duplicating of records in response to requests made under the Privacy
Act. The schedule also states the fee to be charged for certification of
documents.
(1) Copies, basic fee. For copies of documents reproduced on a
standard office copying machine in sizes to 8\1/2\'' x 14'', the charge
will be $0.13 per page.
Examples: For one copy of a three-page document, the fee would be
$0.39. For two copies of a three-page document, the fee would be $0.78.
For one copy of a 60-page document, the fee would be $7.80.
(2) Copies, documents requiring special handling. For copies of
documents which require special handling because of their age, size,
etc., cost will be based on direct costs of reproducing the materials.
(3)-(4) [Reserved]
(5) Searches. For each quarter hour, or portion thereof, spent by
clerical personnel in manual searches to locate requested records:
$2.30. For each quarter hour, or portion thereof, spent by professional
or managerial personnel in manual searches to locate requested records
because the search cannot be performed by clerical personnel: $4.65.
Search time for which fees may be charged includes all time spent
looking for material that is responsive to a request, including line-by-
line or page-by-page search to determine whether a record is responsive,
even if the search fails to locate records or the records located are
determined to be exempt from disclosure. Searches will be conducted in
the most efficient and least expensive manner, so as to minimize costs
for both the agency and the requester. Line-by-line or page-by-page
identification should not be necessary if it is clear on the face of a
document that it is covered by a request.
(6) Review of records. For each quarter hour, or portion thereof,
spent by clerical personnel in reviewing records: $2.30. For each
quarter hour, or portion thereof, spent by professional or managerial
personnel in reviewing records: $4.65.
Review is the examination of documents located in response to a
commercial use request to determine whether any portion of any document
located is permitted to be withheld and the subsequent processing of
documents for disclosure by excising exempt material or otherwise
preparing them for release. Review does not include time spent in
resolving general legal or policy issues regarding the application of
exemptions.
(7) [Reserved]
(8) Certification. For each certificate of verification attached to
authenticated copies of records furnished to the public the charge will
be $0.25.
(9) [Reserved]
(10) Computerized records. Charges for services in processing
requests for records maintained in computerized form will be calculated
in accordance with the following criteria:
(a) Costs for processing a data request will be calculated using the
same standard direct costs charged to other users of the facility, and/
or as specified in the user's manual or
[[Page 35]]
handbook published by the computer center in which the work will be
performed.
(b) An itemized listing of operations required to process the job
will be prepared (i.e., time for central processing unit, input/output,
remote terminal, storage, plotters, printing, tape/disc mounting, etc.)
with related associated costs applicable to each operation.
(c) Material costs (i.e., paper, disks, tape, etc.) will be
calculated using the latest acquisition price paid by the facility.
(d) ADP facility managers must assure that all cost estimates are
accurate, and if challenged, be prepared to substantiate that the rates
are not higher than those charged to other users of the facility for
similar work. Upon request, itemized listings of operations and
associated costs for processing the job may be furnished to members of
the public.
(e) Requesters entitled to two hours of free search time under 43
CFR 2.20(e) shall not be charged for that portion of a computer search
that equals two hours of the salary of the operator performing the
search.
(11) Postage/mailing costs. Mailing charges may be added for
services (such as express mail) that exceed the cost of first class
postage.
(12)-(13) [Reserved]
(14) Other services. When a response to a request requires services
or materials other than those described in this schedule, the direct
cost of such services or materials to the Government may be charged, but
only if the requester has been notified of such cost before it is
incurred.
(15) Effective date. This schedule applies to all requestes made
under the Freedom of Information Act and Privacy Act after December 30,
1987.
[52 FR 45592, Nov. 30, 1987]
Appendix B to Part 2--Bureaus and Offices of the Department of the
Interior
1. Bureaus and Offices of the Department of the Interior. (The
address for all bureaus and offices, unless otherwise indicated, is U.S.
Department of the Interior, Washington, DC 20240.)
Secretary of the Interior, Office of the Secretary
Office of Administrtative Services (for Office of the Secretary
components)
Assistant Secretary, Territorial and International Affairs
Commissioner, Bureau of Indian Affairs
Director, U.S. Fish and Wildlife Service
Director, National Park Service, P.O. Box 37127, Washington, DC, 20013-
7127
Commissioner, Bureau of Reclamation
Director, Bureau of Land Management
Director, Minerals Management Service
Director, Bureau of Mines, Columbia Plaza, 2401 E Street NW.,
Washington, DC 20241
Director, Geological Survey, The National Center, Reston, VA 22092
Director, Office of Surface Mining Reclamation and Enforcement
Director, Office of Hearings and Appeals, 4015 Wilson Blvd., Arlington,
VA 22203
Inspector General, Office of Inspector General
Solicitor, Office of the Solicitor
2. Freedom of Information Officers of the Department of the
Interior. (The address for all Freedom of Information Officers, unless
otherwise indicated, is U.S. Department of the Interior, Washington, DC
20240.)
Director, Office of Administrative Services (for Office of the Secretary
components), U.S. Department of the Interior
Director, Office of Administration, Bureau of Indian Affairs
Freedom of Information Act Officer, Bureau of Land Management
Assistant Director, Finance and Management, Bureau of Mines, Columbia
Plaza, 2401 E Street NW., Washington, DC 20241
Freedom of Information Act Officer, Bureau of Reclamation
Chief, Division of Media Information, National Park Service
Chief, Regulatory Development and Issues Management, Office of Surface
Mining Reclamation and Enforcement
Chief, Directives Management Branch, Policy and Directives Management,
U.S. Fish and Wildlife Service,
Chief, Paperwork Management Unit, U.S. Geological Survey, The National
Center, Reston, VA 22092
Freedom of Information Act Officer, Minerals Management Service, 12203
Sunrise Valley Drive, Reston, VA 22091
Information Officer, Office of Inspector General
3. Office of Hearings and Appeals--Field Offices:
Administrative Law Judge, 710 Locust St., Federal Building, Suite 116,
Knoxville, TN 37902
Administrative Law Judges, 6432 Federal Bldg., Salt Lake City, UT 84138
Administrative Law Judge, 2901 N. Central Ave., Suite 955, Phoenix, AZ
85012-2739
Administrative Law Judge, 2020 Hurley Way, Suite 150, Sacramento, CA
95825
Administrative Law Judges, Bishop Henry Whipple Federal Building, 1
Federal Drive, rooms 674 and 688, Fort Snelling, MN 55111
Administrative Law Judge, 1700 Louisiana N.E., Suite 220, Albuquerque,
NM 87110
Administrative Law Judge, 215 Dean A. McGee Ave., room 507, Oklahoma
City, OK 73102
[[Page 36]]
Administrative Law Judge (Indian Probate), Federal Bldg. & Courthouse,
515 9th St., Suite 201, Rapid City, SD 57701
Administrative Law Judge (Indian Probate), Federal Bldg. & Courthouse,
Rm. 3329, 316 N. 26th St., Billings, MT 59101
4. Office of the Solicitor-- Field Offices.
Regional Solicitors
Regional Solicitor, U.S. Department of the Interior, 701 C Street,
Anchorage, AK 99513
Regional Solicitor, U.S. Department of the Interior, Room E-2753, 2800
Cottage Way, Sacramento, CA 95825
Regional Solicitor, U.S. Department of the Interior, P.O. Box 25007,
Denver Federal Center, Denver, CO 80225
Regional Solicitor, U.S. Department of the Interior, Richard B. Russell
Federal Building, 75 Spring Street, SW., Suite 1328, Atlanta, GA 30303
Regional Solicitor, U.S. Department of the Interior, Suite 612, One
Gateway Center, Newton Corner, MA 02158
Regional Solicitor, U.S. Department of the Interior, Room 3068, Page
Belcher Federal Building, 333 West 4th Street, Tulsa, OK 74103
Regional Solicitor, U.S. Department of the Interior, Lloyd 500 Building,
Suite 607, 500 N.E. Multnomah, Portland, OR 97232
Regional Solicitor, U.S. Department of the Interior, Suite 6201, Federal
Building, 125 South State Street, Salt Lake City, UT 84138
Field Solicitors
Field Solicitor, U.S. Department of the Interior, Suite 150, 505 North
Second St., Phoenix, AZ 85004
Field Solicitor, U.S. Department of the Interior, P.O. Box M, Window
Rock, AZ 86515
Field Solicitor, U.S. Department of the Interior, Box 36064, 450 Golden
Gate Avenue, Room 14126, San Francisco, CA 94102
Field Solicitor, U.S. Department of the Interior, Box 020, Federal
Building, U.S. Courthouse, 550 West Fort Street, Boise, ID 83724
Field Solicitor, U.S. Department of the Interior, 686 Federal Building,
Twin Cities, MN 55111
Field Solicitor, U.S. Department of the Interior, Room 5431, Federal
Building, 316 N. 26th Street, Billings, MT 59101
Field Solicitor, U.S. Department of the Interior, P.O. Box 1042, Santa
Fe, NM 87504
Field Solicitor, U.S. Department of the Interior, Osage Agency,
Grandview Avenue, Pawhuska, OK 74056
Field Solicitor, U.S. Department of the Interior, Suite 502J, U.S. Post
Office and Courthouse, Pittsburgh, PA 15219
Field Solicitor, U.S. Department of the Interior, P.O. Box 15006,
Knoxville, TN 37901
Field Solicitor, U.S. Department of the Interior, 1100 South Fillmore,
Amarillo, TX 79101
Field Solicitor, U.S. Department of the Interior, 603 Morris Street, 2nd
Floor, Charleston, WV 25301.
[52 FR 45593, Nov. 30, 1987, as amended at 53 FR 16128, May 5, 1988; 58
FR 48973, Sept. 21, 1993]
PART 3--PRESERVATION OF AMERICAN ANTIQUITIES--Table of Contents
Sec.
3.1 Jurisdiction.
3.2 Limitation on permits granted.
3.3 Permits; to whom granted.
3.4 No exclusive permits granted.
3.5 Application.
3.6 Time limit of permits granted.
3.7 Permit to become void.
3.8 Applications referred for recommendation.
3.9 Form and reference of permit.
3.10 Reports.
3.11 Restoration of lands.
3.12 Termination.
3.13 Report of field officer.
3.14 Examinations by field officer.
3.15 Persons who may apprehend or cause to be arrested.
3.16 Seizure.
3.17 Preservation of collection.
Authority: Secs. 3, 4, 34 Stat. 225, as amended; 16 U.S.C. 432.
Source: 19 FR 8838, Dec. 23, 1954, unless otherwise noted.
Sec. 3.1 Jurisdiction.
Jurisdiction over ruins, archeological sites, historic and
prehistoric monuments and structures, objects of antiquity, historic
landmarks, and other objects of historic and scientific interest, shall
be exercised under the act by the respective Departments as follows:
(a) By the Secretary of Agriculture over lands within the exterior
limits of forest reserves;
(b) By the Secretary of the Army over lands within the exterior
limits of military reservations;
(c) By the Secretary of the Interior over all other lands owned or
controlled by the Government of the United States, Provided, The
Secretaries of the Army and Agriculture may by agreement cooperate with
the Secretary of the Interior in the supervision of such monuments and
objects covered by the Act of June 8, 1906 (34
[[Page 37]]
Stat. 225; 16 U.S.C. 431--433), as may be located on lands near or
adjacent to forest reserves and military reservations, respectively.
Sec. 3.2 Limitation on permits granted.
No permit for the removal of any ancient monument or structure which
can be permanently preserved under the control of the United States in
situ, and remain an object of interest, shall be granted.
Sec. 3.3 Permits; to whom granted.
Permits for the examination of ruins, the excavation of
archeological sites, and the gathering of objects of antiquity will be
granted, by the respective Secretaries having jurisdiction, to reputable
museums, universities, colleges, or other recognized scientific or
educational institutions, or to their duly authorized agents.
Sec. 3.4 No exclusive permits granted.
No exclusive permits shall be granted for a larger area than the
applicant can reasonably be expected to explore fully and systematically
within the time limit named in the permit.
Sec. 3.5 Application.
Each application for a permit should be filed with the Secretary
having jurisdiction, and must be accompanied by a definite outline of
the proposed work, indicating the name of the institution making the
request, the date proposed for beginning the field work, the length of
time proposed to be devoted to it, and the person who will have
immediate charge of the work. The application must also contain an exact
statement of the character of the work, whether examination, excavation,
or gathering, and the public museum in which the collections made under
the permit are to be permanently preserved. The application must be
accompanied by a sketch plan or description of the particular site or
area to be examined, excavated, or searched, so definite that it can be
located on the map with reasonable accuracy.
Sec. 3.6 Time limit of permits granted.
No permit will be granted for a period of more than 3 years, but if
the work has been diligently prosecuted under the permit, the time may
be extended for proper cause upon application.
Sec. 3.7 Permit to become void.
Failure to begin work under a permit within 6 months after it is
granted, or failure to diligently prosecute such work after it has been
begun, shall make the permit void without any order or proceeding by the
Secretary having jurisdiction.
Sec. 3.8 Applications referred for recommendation.
Applications for permits shall be referred to the Smithsonian
Institution for recommendation.
Sec. 3.9 Form and reference of permit.
Every permit shall be in writing and copies shall be transmitted to
the Smithsonian Institution and the field officer in charge of the land
involved. The permittee will be furnished with a copy of the regulations
in this part.
Sec. 3.10 Reports.
At the close of each season's field work the permittee shall report
in duplicate to the Smithsonian Institution, in such form as its
secretary may prescribe, and shall prepare in duplicate a catalogue of
the collections and of the photographs made during the season,
indicating therein such material, if any, as may be available for
exchange.
Sec. 3.11 Restoration of lands.
Institutions and persons receiving permits for excavation shall,
after the completion of the work, restore the lands upon which they have
worked to their customary condition, to the satisfaction of the field
officer in charge.
Sec. 3.12 Termination.
All permits shall be terminable at the discretion of the Secretary
having jurisdiction.
Sec. 3.13 Report of field officer.
The field officer in charge of land owned or controlled by the
Government of the United States shall, from time to time, inquire and
report as to the existence, on or near such lands, of ruins and
archaeological sites, historic
[[Page 38]]
or prehistoric ruins or monuments, objects of antiquity, historic
landmarks, historic and prehistoric structures, and other objects of
historic or scientific interest.
Sec. 3.14 Examinations by field officer.
The field officer in charge may at all times examine the permit of
any person or institution claiming privileges granted in accordance with
the act and this part, and may fully examine all work done under such
permit.
Sec. 3.15 Persons who may apprehend or cause to be arrested.
All persons duly authorized by the Secretaries of Agriculture, Army
and Interior may apprehend or cause to be arrested, as provided in the
Act of February 6, 1905 (33 Stat. 700) any person or persons who
appropriate, excavate, injure, or destroy any historic or prehistoric
ruin or monument, or any object of antiquity on lands under the
supervision of the Secretaries of Agriculture, Army, and Interior,
respectively.
Sec. 3.16 Seizure.
Any object of antiquity taken, or collection made, on lands owned or
controlled by the United States, without a permit, as prescribed by the
act and this part, or there taken or made, contrary to the terms of the
permit, or contrary to the act and this part, may be seized wherever
found and at any time, by the proper field officer or by any person duly
authorized by the Secretary having jurisdiction, and disposed of as the
Secretary shall determine, by deposit in the proper national depository
or otherwise.
Sec. 3.17 Preservation of collection.
Every collection made under the authority of the act and of this
part shall be preserved in the public museum designated in the permit
and shall be accessible to the public. No such collection shall be
removed from such public museum without the written authority of the
Secretary of the Smithsonian Institution, and then only to another
public museum, where it shall be accessible to the public; and when any
public museum, which is a depository of any collection made under the
provisions of the act and this part, shall cease to exist, every such
collection in such public museum shall thereupon revert to the national
collections and be placed in the proper national depository.
PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES--Table of Contents
Subpart A--General; Office of Hearings and Appeals
Sec.
4.1 Scope of authority; applicable regulations.
4.2 Membership of appeals boards; decisions, functions of Chief Judges.
4.3 Representation before appeals boards.
4.4 Public records; locations of field offices.
4.5 Power of the Secretary and Director.
Subpart B--General Rules Relating to Procedures and Practice
4.20 Purpose.
4.21 General provisions.
4.22 Documents.
4.23 Transcript of hearings.
4.24 Basis of decision.
4.25 Oral argument.
4.26 Subpoena power and witness provisions generally.
4.27 Standards of conduct.
4.28 Interlocutory appeals.
4.29 Remands from courts.
4.30 Information required by forms.
4.31 Request for limiting disclosure of confidential information.
Subpart C--Special Rules of Practice Before the Interior Board of
Contract Appeals
4.100 General rules and guidelines.
Prehearing Procedure Rules
4.101 Who may appeal.
4.102 Appeals--how taken.
4.103 Forwarding and docketing of appeals.
4.104 Preparation, organization, transmittal, and status of appeal
file.
4.105 Dismissal for lack of jurisdiction.
4.106 Representation and appearances.
4.107 Pleadings.
4.108 Amendments of pleadings or record.
4.109 Hearing--election.
4.110 Prehearing briefs.
4.111 Prehearing or presubmission conference.
4.112 Submission without a hearing.
4.113 Optional small claims (expedited) and accelerated procedures.
(See Sec. 4.100(a)(2).)
4.114 Settling of the record.
4.115 Discovery--depositions.
[[Page 39]]
4.116 Interrogatories to parties; inspection of documents; admission of
facts.
4.117 Service of papers.
Hearing Procedure Rules
4.118 Hearings--where and when held.
4.119 Notice of hearings.
4.120 Subpoenas. (See Sec. 4.100(a)(2).)
4.121 Unexcused absence of a party.
4.122 Nature of hearings.
4.123 Examination of witnesses.
4.124 Submission of briefs.
Posthearing Procedure Rules
4.125 Decisions.
4.126 Motions for reconsideration.
4.127 Dismissals.
4.128 Remands from courts.
Appendix I to Subpart C of Part 4--Suggested Form of Notice of Appeal
Subpart D--Rules Applicable in Indian Affairs Hearings and Appeals
Determinations of Heirs and Approval of Wills, Except as to Members of
the Five Civilized Tribes and Osage Indians; Tribal Purchases of
Interests Under Special Statutes
scope of regulations; definitions; general authority of administrative
law judges
4.200 Scope of regulations.
4.201 Definitions.
4.202 General authority of administrative law judges.
Determination of Heirs; Approval of Wills; Settlement of Indian Trust
Estates
4.203 Determination as to nonexistent persons and other irregularities
of allotments.
4.204 Presumption of death.
4.205 Escheat.
4.206 Determinations of nationality or citizenship and status affecting
character of land titles.
4.207 Compromise settlement.
4.208 Renunciation of interest.
commencement of probate proceedings
4.210 Commencement of probate.
4.211 Notice.
4.212 Contents of notice.
depositions, discovery, and prehearing conference
4.220 Production of documents for inspection and copying.
4.221 Depositions.
4.222 Written interrogatories; admission of facts and documents.
4.223 Objections to and limitations on production of documents,
depositions, and interrogatories.
4.224 Failure to comply with orders.
4.225 Prehearing conference.
hearings
4.230 Administrative law judge; authority and duties.
4.231 Hearings.
4.232 Evidence; form and admissibility.
4.233 Proof of wills, codicils, and revocations.
4.234 Witnesses, interpreters, and fees.
4.235 Supplemental hearings.
4.236 Record.
decisions
4.240 Decision of administrative law judge and notice thereof.
4.241 Rehearing.
4.242 Reopening.
claims
4.250 Filing and proof of creditor claims; limitations.
4.251 Priority of claims.
4.252 Property subject to claims.
wills
4.260 Making; review as to form; revocation.
4.261 Anti-lapse provisions.
4.262 Felonious taking of testator's life.
custody and distribution of estates
4.270 Custody and control of trust estates.
4.271 Summary distribution.
4.272 Omitted property.
4.273 Improperly included property.
4.274 Distribution of estates.
miscellaneous
4.281 Claims for attorney fees.
4.282 Guardians for incompetents.
Tribal Purchase of Interests Under Special Statutes
4.300 Authority and scope.
4.301 Appraisal report.
4.302 Conclusion of probate and tribal exercise of statutory option.
4.303 Notice by surviving spouse to reserve a life estate.
4.304 Rehearing.
4.305 Hearing.
4.306 Time for payment.
4.307 Title.
4.308 Disposition of income.
General Rules Applicable to Proceedings on Appeal Before the Interior
Board of Indian Appeals
4.310 Documents.
4.311 Briefs on appeal.
4.312 Decisions.
[[Page 40]]
4.313 Amicus Curiae; intervention; joinder motions.
4.314 Exhaustion of administrative remedies.
4.315 Reconsideration.
4.316 Remands from courts.
4.317 Standards of conduct.
4.318 Scope of review.
Appeals to the Board of Indian Appeals in Probate Matters
4.320 Who may appeal.
4.321 Notice of transmittal of record on appeal.
4.322 Docketing.
4.323 Disposition of the record.
Appeals to the Board of Indian Appeals From Administrative Actions of
Officials of the Bureau of Indian Affairs: Administrative Review in
Other Indian Matters Not Relating to Probate Proceedings
4.330 Scope.
4.331 Who may appeal.
4.332 Appeal to the Board; how taken; mandatory time for filing;
preparation assistance; requirement for bond.
4.333 Service of notice of appeal.
4.334 Extensions of time.
4.335 Preparation and transmittal of record by official of the Bureau
of Indian Affairs.
4.336 Docketing.
4.337 Action by the Board.
4.338 Submission by administrative law judge of proposed findings,
conclusions and recommended decision.
4.339 Exceptions or comments regarding recommended decision by
administrative law judge.
4.340 Disposition of the record.
White Earth Reservation Land Settlement Act of 1985; Authority of
Administrative Judges; Determinations of the Heirs of Persons Who Died
Entitled to Compensation
4.350 Authority and scope.
4.351 Commencement of the determination process.
4.352 Determination of administrative judge and notice thereof.
4.353 Record.
4.354 Reconsideration or rehearing.
4.355 Omitted compensation.
4.356 Appeals.
4.357 Guardians for minors and incompetents.
Subpart E--Special Rules Applicable to Public Land Hearings and Appeals
Appeals Procedures
appeals procedures; general
4.400 Definitions.
4.401 Documents.
4.402 Summary dismissal.
4.403 Finality of decision; reconsideration.
appeals to the board of land appeals
4.410 Who may appeal.
4.411 Appeal; how taken, mandatory time limit.
4.412 Statement of reasons, statement of standing, written arguments,
briefs.
4.413 Service of notice of appeal and of other documents.
4.414 Answers.
actions by board of land appeals
4.415 Request for hearings on appeals involving questions of fact.
Hearings Procedures
hearings procedures; general
4.420 Applicability of general rules.
4.421 Definitions.
4.422 Documents.
4.423 Subpoena power and witness provisions.
hearings on appeals involving questions of fact
4.430 Prehearing conferences.
4.431 Fixing of place and date for hearing; notice.
4.432 Postponements.
4.433 Authority of the administrative law judge.
4.434 Conduct of hearing.
4.435 Evidence.
4.436 Reporter's fees.
4.437 Copies of transcript.
4.438 Summary of evidence.
4.439 Action by administrative law judge.
contest and protest proceedings
4.450 Private contests and protests.
4.450-1 By whom private contest may be initiated.
4.450-2 Protests.
4.450-3 Initiation of contest.
4.450-4 Complaints.
4.450-5 Service.
4.450-6 Answer to complaint.
4.450-7 Action by manager.
4.450-8 Amendment of answer.
4.451 Government contests.
4.451-1 How initiated.
4.451-2 Proceedings in Government contests.
[[Page 41]]
4.452 Proceedings before the administrative law judge.
4.452-1 Prehearing conferences.
4.452-2 Notice of hearing.
4.452-3 Postponements.
4.452-4 Authority of administrative law judge.
4.452-5 Conduct of hearing.
4.452-6 Evidence.
4.452-7 Reporter's fees.
4.452-8 Findings and conclusions; decision by administrative law judge;
submission to Board for decision.
4.452-9 Appeal to Board.
Grazing Proceedures (Inside and Outside Grazing Districts)
4.470 Appeal to administrative law judge; motion to dismiss.
4.471 Time and place of hearing; notice; intervenors.
4.472 Authority of administrative law judge.
4.473 Service.
4.474 Conduct of hearing; reporter's fees; transcript.
4.475 Findings of fact and decision by administrative law judge:
Notice; submission to Board of Land Appeals for decision.
4.476 Appeals to the Board of Land Appeals.
4.477 Effect of decision suspended during appeal.
4.478 Conditions of decision action.
Subpart F--Implementation of the Equal Access to Justice Act in Agency
Proceedings
General Provisions
4.601 Purpose of these rules.
4.602 Definitions.
4.603 Proceedings covered.
4.604 Applicability to Department of the Interior proceedings.
4.605 Eligibility of applicants.
4.606 Standards for awards.
4.607 Allowable fees and expenses.
Information Required From Applicants
4.608 Contents of application.
4.609 Net worth exhibit.
4.610 Documentation of fees and expenses.
4.611 Time for submission of application.
Procedures for Considering Applications
4.612 Filing and service of documents.
4.613 Answer to application.
4.614 Settlement.
4.615 Extensions of time and further proceedings.
4.616 Decision on application.
4.617 Appeals Board review.
4.618 Judicial review.
4.619 Payment of award.
Subpart G--Special Rules Applicable to Other Appeals and Hearings
4.700 Who may appeal.
4.701 Notice of appeal.
4.702 Transmittal of appeal file.
4.703 Pleadings.
4.704 Decisions on appeals.
Subpart H [Reserved]
Subpart I--Special Procedural Rules Applicable to Practice and Procedure
for Hearings, Decisions, and Administrative Review Under Part 17 of This
Title--Nondiscrimination in Federally Assisted Programs of the
Department of the Interior--Effectuation of Title VI of the Civil Rights
Act of 1964
General
4.800 Scope and construction of rules.
4.801 Suspension of rules.
4.802 Definitions.
4.803 Computation of time.
4.804 Extensions of time.
4.805 Reduction of time to file documents.
Designation and Responsibilities of Administrative Law Judge
4.806 Designation.
4.807 Authority and responsibilities.
Appearance and Practice
4.808 Participation by a party.
4.809 Determination of parties.
4.810 Complainants not parties.
4.811 Determination and participation of amici.
Form and Filing of Documents
4.812 Form.
4.813 Filing and service.
4.814 Certificate of service.
Procedures
4.815 How proceedings are commenced.
4.816 Notice of hearing and response thereto.
4.817 Notice of opportunity to request a hearing and response thereto.
4.818 Answer.
4.819 Amendment of notice or answer.
4.820 Consolidated or joint hearings.
4.821 Motions.
4.822 Disposition of motions.
4.823 Interlocutory appeals.
4.824 Exhibits.
4.825 Admissions as to facts and documents.
4.826 Discovery.
4.827 Depositions.
4.828 Use of depositions at hearing.
4.829 Interrogatories to parties.
[[Page 42]]
4.830 Production of documents and things and entry upon land for
inspection and other purposes.
4.831 Sanctions.
4.832 Consultation and advice.
Prehearing
4.833 Prehearing conferences.
Hearing
4.834 Purpose.
4.835 Evidence.
4.836 Official notice.
4.837 Testimony.
4.838 Objections.
4.839 Exceptions.
4.840 Offer of proof.
4.841 Official transcript.
Posthearing Procedures
4.842 Proposed findings of fact and conclusions of law.
4.843 Record for decision.
4.844 Notification of right to file exceptions.
4.845 Final review by Secretary.
Subpart J--Special Rules Applicable to Appeals Concerning Federal Oil
and Gas Royalties and Related Matters
4.901 What is the purpose of this subpart?
4.902 What appeals are subject to this subpart?
4.903 What definitions apply to this subpart?
4.904 When does my appeal commence and end?
4.905 What if a due date falls on a day the Department or relevant
office is not open for business?
4.906 What if the Department does not issue a decision by the date my
appeal ends?
4.907 What if an IBLA decision requires MMS or a delegated State to
recalculate royalties or other payments?
4.908 What is the administrative record for my appeal if it is deemed
decided?
4.909 How do I request an extension of time?
Subpart K [Reserved]
Subpart L--Special Rules Applicable to Surface Coal Mining Hearings and
Appeals
General Provisions
4.1100 Definitions.
4.1101 Jurisdiction of the Board.
4.1102 Construction.
4.1103 Eligibility to practice.
4.1104 General rules relating to procedure and practice.
4.1105 Parties.
4.1106 Hearing sites.
4.1107 Filing of documents.
4.1108 Form of documents.
4.1109 Service.
4.1110 Intervention.
4.1111 Voluntary dismissal.
4.1112 Motions.
4.1113 Consolidation of proceedings.
4.1114 Advancement of proceedings.
4.1115 Waiver of right to hearing.
4.1116 Status of notices of violation and orders of cessation pending
review by the Office of Hearings and Appeals.
Evidentiary Hearings
4.1120 Presiding officers.
4.1121 Powers of administrative law judges.
4.1122 Conduct of administrative law judges.
4.1123 Notice of hearing.
4.1124 Certification of interlocutory ruling.
4.1125 Summary decision.
4.1126 Proposed findings of fact and conclusions of law.
4.1127 Initial orders and decisions.
4.1128 Effect of initial order or decision.
4.1129 Certification of record.
Discovery
4.1130 Discovery methods.
4.1131 Time for discovery.
4.1132 Scope of discovery.
4.1133 Sequence and timing of discovery.
4.1134 Supplementation of responses.
4.1135 Motion to compel discovery.
4.1136 Failure to comply with orders compelling discovery.
4.1137 Depositions upon oral examination or upon written questions.
4.1138 Use of depositions.
4.1139 Written interrogatories to parties.
4.1140 Production of documents and things and entry upon land for
inspection and other purposes.
4.1141 Admissions.
Petitions for Review of Proposed Assessments of Civil Penalties
4.1150 Who may file.
4.1151 Time for filing.
4.1152 Contents of petition; payment required.
4.1153 Answer.
4.1154 Review of waiver determination.
4.1155 Burdens of proof in civil penalty proceedings.
4.1156 Summary disposition.
4.1157 Determination by administrative law judge.
4.1158 Appeals.
Review of Section 521 Notices of Violation and Orders of Cessation
4.1160 Scope.
4.1161 Who may file.
4.1162 Time for filing.
4.1163 Effect of failure to file.
4.1164 Contents of application.
4.1165 Answer.
4.1166 Contents of answer.
[[Page 43]]
4.1167 Notice of hearing.
4.1168 Amendments to pleadings.
4.1169 Failure to state a claim.
4.1170 Related notices or orders.
4.1171 Burden of proof in review of section 521 notices or orders.
Expedited Review of Section 521(a)(2) or 521(a)(3) Orders of Cessation
4.1180 Purpose.
4.1181 Who may file.
4.1182 Where to file.
4.1183 Time for filing.
4.1184 Contents of application.
4.1185 Computation of time for decision.
4.1186 Waiver of the 30-day decision requirement.
4.1187 Procedure if 30-day decision requirement is not waived.
Proceedings for Suspension or Revocation of Permits Under Section
521(a)(4) of the Act
4.1190 Initiation of proceedings.
4.1191 Answer.
4.1192 Contents of answer.
4.1193 Burden of proof in suspension or revocation proceedings.
4.1194 Determination by the administrative law judge.
4.1195 Summary disposition.
4.1196 Appeals.
Applications for Review of Alleged Discriminatory Acts Under Section 703
of the Act
4.1200 Filing of the application for review with the Office of Hearings
and Appeals.
4.1201 Request for scheduling of a hearing.
4.1202 Response to request for the scheduling of a hearing.
4.1203 Application for temporary relief from alleged discriminatory
acts.
4.1204 Determination by administrative law judge.
4.1205 Appeals.
Applications for Temporary Relief
4.1260 Scope.
4.1261 When to file.
4.1262 Where to file.
4.1263 Contents of application.
4.1264 Response to application.
4.1265 Determination on application concerning a notice of violation
issued pursuant to section 521(a)(3) of the Act.
4.1266 Determination on application concerning an order of cessation
issued pursuant to section 521(a)(2) or section 521(a)(3) of
the act.
4.1267 Appeals.
Appeals to the Board From Decisions or Orders of Administrative Law
Judges
4.1270 Petition for discretionary review of a proposed civil penalty.
4.1271 Notice of appeal.
4.1272 Interlocutory appeals.
4.1273 Briefs.
4.1274 Remand.
4.1275 Final decisions.
4.1276 Reconsideration.
Appeals to the Board From Decisions of the Office of Surface Mining
4.1280 Scope.
4.1281 Who may appeal.
4.1282 Appeals; how taken.
4.1283 Service.
4.1284 Answer.
4.1285 Summary dismissal.
4.1286 Request for hearings.
Petitions for Award of Costs and Expenses Under Section 525(e) of the
Act
4.1290 Who may file.
4.1291 Where to file; time for filing.
4.1292 Contents of petition.
4.1293 Answer.
4.1294 Who may receive an award.
4.1295 Awards.
4.1296 Appeals.
Petitions for Review of Proposed Individual Civil Penalty Assessments
Under Section 518(f) of the Act
4.1300 Scope.
4.1301 Who may file.
4.1302 Time for filing.
4.1303 Contents and service of petition.
4.1304 Answer, motion, or statement of OSM.
4.1305 Amendment of petition.
4.1306 Notice of hearing.
4.1307 Elements; burdens of proof.
4.1308 Decision by administrative law judge.
4.1309 Petition for discretionary review.
Request for Hearing on a Preliminary Finding Concerning a Demonstrated
Pattern of Willful Violations Under Section 510(c) of the Act, 30 U.S.C.
1260(c) (Federal Program; Federal Lands Program; Federal Program for
Indian Lands)
4.1350 Scope.
4.1351 Preliminary finding by OSMRE.
4.1352 Who may file; where to file; when to file.
4.1353 Contents of request.
4.1354 Determination by the administrative law judge.
4.1355 Burden of proof.
4.1356 Appeals.
[[Page 44]]
Request for Review of Approval or Disapproval of Applications for New
Permits, Permit Revisions, Permit Renewals, the Transfer, Assignment or
Sale of Rights Granted Under Permit (Federal Program; Federal Lands
Program; Federal Program for Indian Lands) and for Coal Exploration
Permits (Federal Program)
4.1360 Scope.
4.1361 Who may file.
4.1362 Where to file; when to file.
4.1363 Contents of request; amendment of request; responses.
4.1364 Time for hearing; notice of hearing; extension of time for
hearing.
4.1365 Status of decision pending administrative review.
4.1366 Burdens of proof.
4.1367 Request for temporary relief.
4.1368 Determination by the Administrative Law Judge.
4.1369 Petition for discretionary review; judicial review.
Review of Decisions of the Office of Surface Mining Suspending or
Rescinding Improvidently Issued Permits
4.1370 Scope.
4.1371 Who may file, where to file, when to file.
4.1372 Contents of request for review, response to request, amendment
of request.
4.1373 Hearing.
4.1374 Burdens of proof.
4.1375 Time for initial decision.
4.1376 Petition for temporary relief from notice of suspension or
notice of proposed suspension and rescission; appeals from
decisions granting or denying temporary relief.
4.1377 Petition for discretionary review of initial decision.
Review of Office of Surface Mining Written Decisions Concerning
Ownership and Control
4.1380 Scope.
4.1381 Who may file; when to file; where to file.
4.1382 Contents of request for review; response to request; amendment
of request.
4.1383 Hearing.
4.1384 Burdens of proof.
4.1385 Time for initial decision.
4.1386 Petition for temporary relief from decision; appeals from
decisions granting or denying temporary relief.
4.1387 Petition for discretionary review of initial decisions.
Request for Review of OSM Determinations of Issues Under 30 CFR Part 761
(Federal Program; Federal Lands Program; Federal Program for Indian
Lands)
4.1390 Scope.
4.1391 Who may file; where to file; when to file; filing of
administrative record.
4.1392 Contents of request; amendment of request; responses.
4.1393 Status of decision pending administrative review.
4.1394 Burden of proof.
Subpart M--Special Procedural Rules Applicable to Appeals of Decisions
Made Under OMB Circular A-76
4.1600 Purpose and nature of the appeal process.
4.1601 Basis for appeal.
4.1602 Who may appeal under this procedure.
4.1603 Appeal period.
4.1604 Method of filing an appeal.
4.1605 Action by the Office of Hearings and Appeals.
4.1606 Department representation.
4.1607 Processing the appeal.
4.1608 Oral presentations.
4.1609 Multiple appeals.
4.1610 Decision of the appeals official.
Authority: R.S. 2478, as amended, 43 U.S.C. sec. 1201, unless
otherwise noted.
Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.
Subpart A--General; Office of Hearings and Appeals
Sec. 4.1 Scope of authority; applicable regulations.
The Office of Hearings and Appeals, headed by a Director, is an
authorized representative of the Secretary for the purpose of hearing,
considering and determining, as fully and finally as might the
Secretary, matters within the jurisdiction of the Department involving
hearings, and appeals and other review functions of the Secretary.
Principal components of the Office include:
(a) A Hearings Division comprised of administrative law judges who
are authorized to conduct hearings in cases required by law to be
conducted pursuant to 5 U.S.C. 554, and hearings in other cases arising
under statutes and regulations of the Department, including rule making
hearings, and
(b) Appeals Boards, shown below, with administrative jurisdiction
and
[[Page 45]]
special procedural rules as indicated. General rules applicable to all
types of proceedings are set forth in subpart B of this part. Therefore,
for information as to applicable rules, reference should be made to the
special rules in the subpart relating to the particular type of
proceeding, as indicated, and to the general rules in subpart B of this
part. Wherever there is any conflict between one of the general rules in
subpart B of this part and a special rule in another subpart applicable
to a particular type of proceeding, the special rule will govern.
Reference should be made also to the governing laws, substantive
regulations and policies of the Department relating to the proceeding.
In addition, reference should be made to part 1 of this subtitle which
regulates practice before the Department of the Interior.
(1) Board of Contract Appeals. The Board considers and decides
finally for the Department appeals to the head of the Department from
findings of fact or decisions by contracting officers of any bureau or
office of the Department, wherever situated, or any field installation
thereof, and orders and conducts hearings as necessary. Special
regulations applicable to proceedings before the Board are contained in
subpart C of this part.
(2) Board of Indian Appeals. The Board decides finally for the
Department appeals to the head of the Department pertaining to:
(i) Administrative actions of officials of the Bureau of Indian
Affairs, issued under 25 CFR chapter I, except as limited in 25 CFR
chapter I or Sec. 4.330 of this part, and
(ii) Orders and decisions of Administrative Law Judges in Indian
probate matters other than those involving estates of the Five Civilized
Tribes of Indians. The Board also decides such other matters pertaining
to Indians as are referred to it by the Secretary, the Director of the
Office of Hearings and Appeals, or the Assistant Secretary-Indian
Affairs for exercise of review authority of the Secretary. Special
regulations applicable to proceedings before the Board are contained in
subpart D of this part.
(3) Board of Land Appeals. The Board decides finally for the
Department appeals to the head of the Department from decisions rendered
by Departmental officials relating to: (i) The use and disposition of
public lands and their resources, including land selections arising
under the Alaska Native Claims Settlement Act, as amended; (ii) the use
and disposition of mineral resources in certain acquired lands of the
United States and in the submerged lands of the Outer Continental Shelf;
and (iii) the conduct of surface coal mining under the Surface Mining
Control and Reclamation Act of 1977. Special procedures for hearings,
appeals and contests in public land cases are contained in subpart E of
this part; special procedures for hearings and appeals under the Surface
Mining Control and Reclamation Act of 1977 are contained in subpart L of
this part.
(4) Ad Hoc Board of Appeals. Appeals to the head of the Department
which do not lie within the appellate review jursidiction of an
established Appeals Board and which are not specifically excepted in the
general delegation of authority to the Director may be considered and
ruled upon by the Director or by Ad Hoc Boards of Appeals appointed by
the Director to consider the particular appeals and to issue decisions
thereon, deciding finally for the Department all questions of fact and
law necessary for the complete adjudication of the issues. Jurisdiction
of the Boards would include, but not be limited to, the appellate and
review authority of the Secretary referred to in parts 13, 21, and 230
of this title, and in 36 CFR parts 8 and 20. Special regulations
applicable to proceedings in such cases are contained in subpart G of
this part.
(Sec. 525, Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.
1275, and sec. 301, Administrative Procedure Act, 5 U.S.C. 301)
[36 FR 7186, Apr. 15, 1971, as amended at 40 FR 33172, Aug. 6, 1975; 47
FR 26392, June 18, 1982; 49 FR 7565, Mar. 1, 1984; 54 FR 6485, Feb. 10,
1989; 61 FR 47434, Sept. 9, 1996; 61 FR 49976, Sept. 24, 1996]
Sec. 4.2 Membership of appeals boards; decisions, functions of Chief Judges.
(a) The Appeals Boards consist of regular members, who are hereby
designated Administrative Judges, one of
[[Page 46]]
whom is designated as Chief Administrative Judge, the Director as an ex
officio member, and alternate members who may serve, when necessary, in
place of or in addition to regular members. The Chief Administrative
Judge of an Appeals Board may direct that an appeal may be decided by a
panel of any two Administrative Judges of the Board, but if they are
unable to agree upon a decision, the Chief Administrative Judge may
assign one or more additional Administrative Judges of the Board to
consider the appeal. The concurrence of a majority of the Board
Administrative Judges who consider an appeal shall be sufficient for a
decision.
(b) Decisions of the Board must be in writing and signed by not less
than a majority of the Administrative Judges who considered the appeal.
The Director, being an ex officio member, may participate in the
consideration of any appeal and sign the resulting decision.
(c) The Chief Administrative Judge of an Appeals Board shall be
responsible for the internal management and administration of the Board,
and the Chief Administrative Judge is authorized to act on behalf of the
Board in conducting correspondence and in carrying out such other duties
as may be necessary in the conduct of routine business of the Board.
[39 FR 7931, Mar. 1, 1974]
Sec. 4.3 Representation before appeals boards.
(a) Appearances generally. Representation of parties in proceedings
before Appeals Boards of the Office of Hearings and Appeals is governed
by Part 1 of this subtitle, which regulates practice before the
Department of the Interior.
(b) Representation of the Government. Department counsel designated
by the Solicitor of the Department to represent agencies, bureaus, and
offices of the Department of the Interior in proceedings before the
Office of Hearings and Appeals, and Government counsel for other
agencies, bureaus or offices of the Federal Government involved in any
proceeding before the Office of Hearings and Appeals, shall represent
the Government agency in the same manner as a private advocate
represents a client.
(c) Appearances as amicus curiae. Any person desiring to appear as
amicus curiae in any proceeding shall make timely request stating the
grounds for such request. Permission to appear, if granted, will be for
such purposes as established by the Director or the Appeals Board in the
proceeding.
Sec. 4.4 Public records; locations of field offices.
Part 2 of this subtitle prescribes the rules governing availability
of the public records of the Office of Hearings and Appeals. It includes
a list of the field offices of the Office of Hearings and Appeals and
their locations.
Sec. 4.5 Power of the Secretary and Director.
(a) Secretary. Nothing in this part shall be construed to deprive
the Secretary of any power conferred upon him by law. The authority
reserved to the Secretary includes, but is not limited to:
(1) The authority to take jurisdiction at any stage of any case
before any employee or employees of the Department, including any
administrative law judge or board of the Office, except a case before
the Board of Contract Appeals which is subject to the Contract Disputes
Act of 1978, and render the final decision in the matter after holding
such hearing as may be required by law; and
(2) The authority to review any decision of any employee or
employees of the Department, including any administrative law judge or
board of the Office, or to direct any such employee or employees to
reconsider a decision, except a decision by the Board of Contract
Appeals which is subject to the Contract Disputes Act of 1978.
(b) The Director. Except for cases or decisions subject to the
Contract Disputes Act of 1978, the Director, pursuant to his delegated
authority from the Secretary, may assume jurisdiction of any case before
any board of the Office or review any decision of any board of the
Office or direct reconsideration of any decision by any board of the
Office.
(c) Exercise of reserved power. If the Secretary or Director assumes
jurisdiction of a case or reviews a decision, the
[[Page 47]]
parties and the appropriate Departmental personnel will be advised in
writing of such action, the administrative record will be requested,
and, after the review process is completed, a written decision will be
issued.
[50 FR 43705, Oct. 29, 1985, as amended at 52 FR 46355, Dec. 7, 1987; 52
FR 47097, Dec. 11, 1987]
Subpart B--General Rules Relating to Procedures and Practice
Sec. 4.20 Purpose.
In the interest of establishing and maintaining uniformity to the
extent feasible, this subpart sets forth general rules applicable to all
types of proceedings before the Hearings Division and the several
Appeals Boards of the Office of Hearings and Appeals.
Sec. 4.21 General provisions.
(a) Effect of decision pending appeal. Except as otherwise provided
by law or other pertinent regulation:
(1) A decision will not be effective during the time in which a
person adversely affected may file a notice of appeal; when the public
interest requires, however, the Director or an Appeals Board may provide
that a decision, or any part of a decision, shall be in full force and
effective immediately;
(2) A decision will become effective on the day after the expiration
of the time during which a person adversely affected may file a notice
of appeal unless a petition for a stay pending appeal is filed together
with a timely notice of appeal; a petition for a stay may be filed only
by a party who may properly maintain an appeal;
(3) A decision, or that portion of a decision, for which a stay is
not granted will become effective immediately after the Director or an
Appeals Board denies or partially denies the petition for a stay, or
fails to act on the petition within the time specified in paragraph
(b)(4) of this section.
(b) Standards and procedures for obtaining a stay. Except as
otherwise provided by law or other pertinent regulation:
(1) A petition for a stay of a decision pending appeal shall show
sufficient justification based on the following standards:
(i) The relative harm to the parties if the stay is granted or
denied,
(ii) The likelihood of the appellant's success on the merits,
(iii) The likelihood of immediate and irreparable harm if the stay
is not granted, and
(iv) Whether the public interest favors granting the stay;
(2) The appellant requesting the stay bears the burden of proof to
demonstrate that a stay should be granted;
(3) The appellant shall serve a copy of its notice of appeal and
petition for a stay on each party named in the decision from which the
appeal is taken, and on the Director or the Appeals Board to which the
appeal is taken, at the same time such documents are served on the
appropriate officer of the Department; any party, including the officer
who made the decision being appealed, may file a response to the stay
petition within 10 days after service; failure to file a response shall
not result in a default on the question of whether a stay should be
granted; service shall be made by delivering copies personally or by
sending them by registered or certified mail, return receipt requested;
(4) The Director or an Appeals Board shall grant or deny a petition
for a stay pending appeal, either in whole or in part, on the basis of
the factors listed in paragraph (b)(1) of this section, within 45
calendar days of the expiration of the time for filing a notice of
appeal;
(c) Exhaustion of administrative remedies. No decision which at the
time of its rendition is subject to appeal to the Director or an Appeals
Board shall be considered final so as to be agency action subject to
judicial review under 5 U.S.C. 704, unless a petition for a stay of
decision has been timely filed and the decision being appealed has been
made effective in the manner provided in paragraphs (a)(3) or (b)(4) of
this section or a decision has been made effective pending appeal
pursuant to paragraph (a)(1) of this section or pursuant to other
pertinent regulation.
(d) Finality of decision. No further appeal will lie in the
Department from a decision of the Director or an Appeals
[[Page 48]]
Board of the Office of Hearings and Appeals. Unless otherwise provided
by regulation, reconsideration of a decision may be granted only in
extraordinary circumstances where, in the judgment of the Director or an
Appeals Board, sufficient reason appears therefor. Requests for
reconsideration must be filed promptly, or within the time required by
the regulations relating to the particular type of proceeding concerned,
and must state with particularity the error claimed. The filing and
pendency of a request for reconsideration shall not operate to stay the
effectiveness of the decision involved unless so ordered by the Director
or an Appeals Board. A request for reconsideration need not be filed to
exhaust administrative remedies.
[36 FR 7186, Apr. 15, 1971, as amended at 58 FR 4942, Jan. 19, 1993]
Sec. 4.22 Documents.
(a) Filing of documents. A document is filed in the Office where the
filing is required only when the document is received in that office
during the office hours when filing is permitted and the document is
received by a person authorized to receive it.
(b) Service generally. A copy of each document filed in a proceeding
before the Office of Hearings and Appeals must be served by the filing
party on the other party or parties in the case, except as otherwise
provided by Sec. 4.31. In all cases where a party is represented by an
attorney, such attorney will be recognized as fully controlling the case
on behalf of his/her client, and service of any document relating to the
proceeding shall be made upon such attorney in addition to any other
service specifically required by law or by order of a presiding official
or an appeals board. Where a party is represented by more than one
attorney, service upon one of the attorneys shall be sufficient.
(c) Retention of documents. All documents, books, records, papers,
etc., received in evidence in a hearing or submitted for the record in
any proceeding before the Office of Hearings and Appeals will be
retained with the official record of the proceedings. However, the
withdrawal of original documents may be permitted while the case is
pending upon the submission of true copies in lieu thereof. When a
decision has become final, an appeals board in its discretion may, upon
request and after notice to the other party or parties, permit the
withdrawal of original exhibits or any part thereof by the party
entitled thereto. The substitution of true copies of exhibits or any
part thereof may be required by the Board in its discretion as a
condition of granting permission for such withdrawal. Transcripts of
testimony and/or documents received or reviewed pursuant to Sec. 4.31 of
these rules shall be sealed against disclosure to unauthorized persons
and retained with the official record, subject to the withdrawal and
substitution provisions hereof.
(d) Record address. Every person who files a document for the record
in connection with any proceeding before the Office of Hearings and
Appeals shall at the time of his initial filing in the matter state his
address. Thereafter he must promptly inform the office in which the
matter is pending of any change in address, giving the docket or other
appropriate numbers of all matters in which he has made such a filing.
The successors of such person shall likewise promptly inform such office
of their interest in the matters and state their addresses. If a person
fails to furnish a record address as required herein, he will not be
entitled to notice in connection with the proceedings.
(e) Computation of time for filing and service. Except as otherwise
provided by law, in computing any period of time prescribed for filing
and serving a document, the day upon which the decision or document to
be appealed from or answered was served or the day of any other event
after which the designated period of time begins to run is not to be
included. The last day of the period so computed is to be included,
unless it is a Saturday, Sunday, Federal legal holiday, or other
nonbusiness day, in which event the period runs until the end of the
next day which is not a Saturday, Sunday, Federal legal holiday, or
other nonbusiness day. When the time prescribed or allowed is 7 days or
less, intermediate Saturdays, Sundays, Federal legal holidays and other
nonbusiness days shall be excluded in the computation.
[[Page 49]]
(f) Extensions of time. (1) The time for filing or serving any
document may be extended by the Appeals Board or other officer before
whom the proceeding is pending, except for the time for filing a notice
of appeal and except where such extension is contrary to law or
regulation.
(2) A request for an extension of time must be filed within the time
allowed for the filing or serving of the document and must be filed in
the same office in which the document in connection with which the
extension is requested must be filed.
[36 FR 7186, Apr. 15, 1971, as amended at 53 FR 49660, Dec. 9, 1988]
Sec. 4.23 Transcript of hearings.
Hearings will be recorded verbatim and transcripts thereof shall be
made when requested by interested parties, costs of transcripts to be
borne by the requesting parties. Fees for transcripts prepared from
recordings by Office of Hearings and Appeals employees will be at rates
which cover the cost of manpower, machine use and materials, plus 25
percent, adjusted to the nearest 5 cents. If the reporting is done
pursuant to a contract between the reporter and the Department of the
Interior Agency or office which is involved in the proceeding, or the
Office of Hearings and Appeals, fees for transcripts will be at rates
established by the contract.
Sec. 4.24 Basis of decision.
(a) Record. (1) The record of a hearing shall consist of the
transcript of testimony or summary of testimony and exhibits together
with all papers and requests filed in the hearing.
(2) If a hearing has been held on an appeal pursuant to instructions
of an Appeals Board, this record shall be the sole basis for decision
insofar as the referred issues of fact are involved except to the extent
that official notice may be taken of a fact as provided in paragraph (b)
of this section.
(3) Where a hearing has been held in other proceedings, the record
made shall be the sole basis for decision except to the extent that
official notice may be taken of a fact as provided in paragraph (b) of
this section.
(4) In any case, no decision after a hearing or on appeal shall be
based upon any record, statement, file, or similar document which is not
open to inspection by the parties to the hearing or appeal, except for
documents or other evidence received or reviewed pursuant to
Sec. 4.31(d).
(b) Official notice. Official notice may be taken of the public
records of the Department of the Interior and of any matter of which the
courts may take judicial notice.
[36 FR 7186, Apr. 15, 1971, as amended at 53 FR 49660, Dec. 9, 1988]
Sec. 4.25 Oral argument.
The Director or an Appeals Board may, in their discretion, grant an
opportunity for oral argument.
Sec. 4.26 Subpoena power and witness provisions generally.
(a) Compulsory attendance of witnesses. The administrative law
judge, on his own motion, or on written application of a party, is
authorized to issue subpoenas requiring the attendance of witnesses at
hearings to be held before him or at the taking of depositions to be
held before himself or other officers. Subpoenas will be issued on a
form approved by the Director. A subpoena may be served by any person
who is not a party and is not less than 18 years of age, and the
original subpoena bearing a certificate of service shall be filed with
the administrative law judge. A witness may be required to attend a
deposition or hearing at a place not more than 100 miles from the place
of service.
(b) Application for subpoena. Where the file has not yet been
transmitted to the administrative law judge, the application for a
subpoena may be filed in the office of the officer who made the decision
appealed from, or in the office of the Bureau of Land Management in
which the complaint was filed, in which cases such offices will forward
the application to the examiner.
(c) Fees payable to witnesses. (1) Witnesses subpoenaed by any party
shall be paid the same fees and mileage as are paid for like service in
the District Courts of the United States. The witness fees and mileage
shall be paid by
[[Page 50]]
the party at whose instance the witness appears.
(2) Any witness who attends any hearing or the taking of any
deposition at the request of any party to the controversy without having
been subpoenaed to do so shall be entitled to the same mileage and
attendance fees, to be paid by such party, to which he would have been
entitled if he had been first duly subpoenaed as a witness on behalf of
such party. This paragraph does not apply to Government employees who
are called as witnesses by the Government.
Sec. 4.27 Standards of conduct.
(a) Inquiries. All inquiries with respect to any matter pending
before the Office of Hearings and Appeals shall be directed to the
Director, the Chief Administrative Law Judge, or the Chairman of the
appropriate Board.
(b) Ex parte communication--(1) Prohibition. Except to the extent
required for the disposition of ex parte matters as authorized by law,
there shall be no communication concerning the merits of a proceeding
between any party to the proceeding or any person interested in the
proceeding or any representative of a party or interested person and any
Office personnel involved or who may reasonably be expected to become
involved in the decisionmaking process on that proceeding, unless the
communication, if oral, is made in the presence of all other parties or
their representatives, or, if written, is furnished to all other
parties. Proceedings include cases pending before the Office,
rulemakings amending this Part 4 that might affect a pending case,
requests for reconsideration or review by the Director, and any other
related action pending before the Office. The terms ``interested
person'' and ``person interested in the proceeding'' include any
individual or other person with an interest in the agency proceeding
that is greater than the interest that the public as a whole may have.
This regulation does not prohibit communications concerning case status
or advice concerning compliance with procedural requirements unless the
area of inquiry is in fact an area of controversy in the proceeding. Any
oral communication made in violation of this regulation shall be reduced
to writing in a memorandum to the file by the person receiving the
communication and shall be included in the record. Any written
communication made in violation of this regulation shall be included in
the record. In proceedings other than informal rulemakings copies of the
memorandum or communication shall be provided to all parties, who shall
be given an opportunity to respond in writing.
(2) Sanctions. The administrative law judge, board, or Director who
has responsibility for the matter with respect to which a prohibited
communication has been knowingly made may impose appropriate sanctions
on the offending person or persons, which may include requiring an
offending party to show cause why its claim, motion, or interest should
not be dismissed, denied, or otherwise adversely affected; disciplining
offending Office personnel pursuant to the Department's standards of
conduct (43 CFR part 20); and invoking such sanctions against other
offending persons as may be appropriate under the circumstances.
(c) Disqualification. An administrative law judge or Board member
shall withdraw from a case if he deems himself disqualified under the
recognized canons of judicial ethics. If, prior to a decision of an
administrative law judge or an Appeals Board, there is filed in good
faith by a party an affidavit of personal bias or disqualification with
substantiating facts, and the administrative law judge or Board member
concerned does not withdraw, the Board or the Director, as appropriate,
shall determine the matter of disqualification.
[36 FR 7186, Apr. 15, 1971, as amended at 50 FR 43705, Oct. 29, 1985; 53
FR 49660, Dec. 9, 1988]
Sec. 4.28 Interlocutory appeals.
There shall be no interlocutory appeal from a ruling of an
administrative law judge unless permission is first obtained from an
Appeals Board and an administrative law judge has certified the
interlocutory ruling or abused his discretion in refusing a request to
so certify. Permission will not be granted except upon a showing that
the ruling complained of involves a controlling question of law and that
an immediate
[[Page 51]]
appeal therefrom may materially advance the final decision. An
interlocutory appeal shall not operate to suspend the hearing unless
otherwise ordered by the Board.
Sec. 4.29 Remands from courts.
Whenever any matter is remanded from any court for further
proceedings, and to the extent the court's directive and time
limitations will permit, the parties shall be allowed an opportunity to
submit to the appropriate Appeals Board, a report recommending
procedures to be followed in order to comply with the court's order. The
Board will review the reports and enter special orders governing the
handling of matters remanded to it for further proceedings by any court.
Sec. 4.30 Information required by forms.
Whenever a regulation of the Office of Hearing and Appeals requires
a form approved or prescribed by the Director, the Director may in that
form require the submission of any information which he considers to be
necessary for the effective administration of that regulation.
Sec. 4.31 Request for limiting disclosure of confidential information.
(a) If any person submitting a document in a proceeding under this
part claims that some or all of the information contained in that
document is exempt from the mandatory public disclosure requirements of
the Freedom of Information Act (5 U.S.C. 552), is information referred
to in section 1905 of title 18 of the United States Code (disclosure of
confidential information), or is otherwise exempt by law from public
disclosure, the person:
(1) Must indicate in the document that it is exempt, or contains
information which is exempt, from disclosure;
(2) Must request the presiding officer or appeals board not to
disclose such information except to the parties to the proceeding under
the conditions provided in paragraphs (b) and (c) of this section, and
must serve the request upon the parties to the proceeding. The request
shall include the following items:
(i) A copy of the document from which has been deleted the
information for which the person requests nondisclosure; if it is not
practicable to submit such copy of the document because deletion of the
information would render the document unintelligible, a description of
the document may be substituted;
(ii) A statement specifying why the information is confidential, if
the information for which nondisclosure is requested is claimed to come
within the exception in 5 U.S.C. 552(b)(4) for trade secrets and
commercial or financial information:
(iii) A statement specifying the justification for nondisclosure, if
the information for which nondisclosure is requested is not within the
exception in 5 U.S.C. 552(b)(4).
(b) If information is submitted in accordance with paragraph (a) of
this section, the information will not be disclosed except as provided
in the Freedom of Information Act, in accordance with part 2 of this
title, or upon request from a party to the proceeding under the
restrictions stated in paragraph (c) of this section.
(c) At any time, a party may request the presiding officer or
appeals board to direct a person submitting information under paragraph
(a) of this section to provide that information to the party. The
presiding officer or board will so direct, unless paragraph (d) of this
section is applicable, if the party requesting the information agrees
under oath in writing:
(1) Not to use or disclose the information except in the context of
the proceeding conducted pursuant to this part; and
(2) To return all copies of the information at the conclusion of the
proceeding to the person submitting the information under paragraph (a)
of this section.
(d) If any person submitting a document in a proceeding under this
Part other than a hearing conducted pursuant to 5 U.S.C. 554 claims that
a disclosure of information in that document to another party to the
proceeding is prohibited by law, notwithstanding the protection provided
under paragraph (c) of this section, such person:
(1) Must indicate in the original document that it contains
information of which disclosure is prohibited;
[[Page 52]]
(2) Must request that the presiding officer or appeals board review
such evidence as a basis for its decision without disclosing it to the
other party or parties, and serve the request upon the parties to the
proceeding. The request shall include a copy of the document or
description as required by paragraph (a)(2)(i) of this section and state
why disclosure is prohibited, citing pertinent statutory or regulatory
authority. If the prohibition on disclosure is intended to protect the
interest of a person who is not a party to the proceeding, the party
making the request must demonstrate that such person refused to consent
to the disclosure of the evidence to other parties to the proceeding.
(3) If the presiding officer or an appeals board denies the request,
the person who made the request shall be given an opportunity to
withdraw the evidence before it is considered by the presiding official
or board unless a Freedom of Information Act request, administrative
appeal from the denial of a request, or lawsuit seeking release of the
information is pending.
(e) If the person submitting a document does not submit the copy of
the document or description required by paragraph (a)(2)(i) or (d)(2) of
this section, the presiding officer or appeals board may assume that
there is no objection to public disclosure of the document in its
entirety.
(f) Where a decision by a presiding officer or appeals board is
based in whole or in part on evidence not included in the public record
or disclosed to all parties, the decision shall so state, specifying the
nature of the evidence and the provision of law under which disclosure
was denied, and the evidence so considered shall be retained under seal
as part of the official record.
[53 FR 49661, Dec. 9, 1988]
Subpart C--Special Rules of Practice Before the Interior Board of
Contract Appeals
Authority: 5 U.S.C. 301 and the Contract Disputes Act of 1978 (Pub.
L. 95-563, Nov. 1, 1978 (41 U.S.C. 601-613)).
Source: 46 FR 57499, Nov. 24, 1981, unless otherwise noted.
Sec. 4.100 General rules and guidelines.
(a) Effective date and applicability--(1) Effective date and general
applicability. These rules shall be in effect on and after March 1,
1979, and except as qualified by the provisions of paragraphs (a)(2) and
(3) of this section, shall apply to all appeals brought before the
Interior Board of Contract Appeals.
(2) Special applicability. The rule set forth in Sec. 4.102(a)
provides for alternative applicability, depending upon whether the
appeal involved is subject to the Contract Disputes Act of 1978, Public
Law 95-563 (41 U.S.C. 601-613). The rules set forth in Secs. 4.102 (c),
(d), and (e), 4.113, and 4.120 shall apply exclusively to appeals which
are subject to the Contract Disputes Act of 1978.
(3) When an appeal is subject to the Contract Disputes Act of 1978.
An appeal shall be subject to the Contract Disputes Act of 1978 if it
involves a contract entered into on or after March 1, 1979; or, at the
election of the appellant, if the appeal involves a contract entered
into before March 1, 1979, and the contracting officer's decision from
which the appeal is taken is dated March 1, 1979, or thereafter.
(b) Jurisdiction for considering appeals. The Interior Board of
Contract Appeals (referred to herein as the ``Board'') shall consider
and determine appeals from decisions of contracting officers relating to
contracts made by (i) the Department of the Interior or (ii) any other
executive agency when such agency or the Administrator of the Office of
Federal Procurement Policy has duly designated the Board to decide the
appeal.
(c) Location and organization of the Board. (1) The Board's address
is 4015 Wilson Boulevard, Arlington, Virginia 22203. Its telephone
number is (703) 235-3813.
(2) The Board consists of a Chairman, Vice Chairman, and other
members all of whom are attorneys at law duly licensed by a State,
Commonwealth, Territory, or the District of Columbia. In general, the
appeals are assigned to a panel of at least two members who decide the
cases. However, in cases of disagreement, or unusual circumstances, a
panel of three members will be assigned to decide by a majority
[[Page 53]]
vote. Board members are designated Administrative Judges.
(d) Time extensions and computations. (1) Where possible, procedural
actions should be taken in less time than the maximum time allowed.
Where appropriate and justified, however, extensions of time will be
granted. All requests for extensions of time shall be in writing.
(2) In computing any period of time, the day of the event from which
the designated period of time begins to run shall not be included, but
the last day of the period shall be included unless it is a Saturday,
Sunday, or a legal holiday, in which event the period shall run to the
end of the next business day.
(e) General guidelines--(1) Place of filings. Unless the Board
otherwise directs, all notices of appeal, pleadings, and other
communications shall be filed with the Board at the address indicated
herein. Communications to the Board shall be addressed to Interior Board
of Contract Appeals, 4015 Wilson Boulevard, Arlington, Virginia 22203.
(2) Representation of parties. Whenever in these rules reference is
made to contractor, appellant, contracting officer, respondent, or
parties, this shall include respective counsel for the parties, as soon
as appropriate notices of appearances have been filed with the Board. In
those cases where an executive agency, other than the Department of the
Interior, has designated the Board to adjudicate its contract appeals,
the term, ``Department Counsel,'' shall mean Government Counsel assigned
to represent such agency.
(3) Interpretation of these rules. These rules will be interpreted
so as to secure a just and inexpensive determination of appeals without
unnecessary delay.
(4) Decisions on questions of law. When an appeal is taken pursuant
to a disputes clause in a contract which limits appeals to disputes
concerning questions of fact, the Board will, nevertheless, consider and
decide all questions of law necessary for the complete adjudication of
the issues.
(f) Ex parte communications. No member of the Board or of the
Board's staff shall entertain, nor shall any person directly or
indirectly involved in an appeal submit to the Board or the Board's
staff, off the record, any evidence, explanation, analysis, or advice,
whether written or oral, without the knowledge and consent of the
adverse party, regarding any matter at issue in that appeal. This
provision does not apply to consultation among Board members or to ex
parte communications concerning the Board's administrative functions or
procedures.
(g) Sanctions. If any party fails or refuses to obey an order issued
by the Board, the Board may make such order in regard to the failure as
it considers necessary to the just and expeditious conduct of the
appeal.
[46 FR 57499, Nov. 24, 1981, as amended at 50 FR 8325, Mar. 1, 1985]
Prehearing Procedure Rules
Sec. 4.101 Who may appeal.
Any contractor may appeal to the Board from decisions of contracting
officers of any bureau or office of the Department of the Interior, or
of any other agency with respect to which the Board exercises contract
appeals jurisdiction, on disputed questions under contract provisions
requiring the determination of such appeals by the head of the agency or
his duly authorized representative or Board.
Sec. 4.102 Appeals--how taken.
(a) Notice of appeal. Notice of an appeal must be in writing (a
suggested form of notice appears as appendix I to subpart C herein
following Sec. 4.128). The original, together with two copies, may be
filed with the Board or the contracting officer from whose decision the
appeal is taken. The notice of appeal must be mailed or otherwise filed
within 90 days from the date of receipt of the contracting officer's
decision, if the appeal is subject to the Contract Disputes Act of 1978;
otherwise, within the time specified therefor in the contract.
(b) Contents of notice of appeal. A notice of appeal should indicate
that an appeal is thereby intended, and should identify the contract (by
number), the Department's bureau or office involved in the dispute, and
the decision from which the appeal is taken. The notice of appeal should
be signed personally
[[Page 54]]
by the appellant (the contractor making the appeal), or by an authorized
officer of the appellant corporation or member of the appellant firm, or
by the contractor's duly authorized representative or attorney. The
complaint referred to in Sec. 4.107 may be filed with the notice of
appeal, or the contractor may designate the notice of appeal as a
complaint, if it otherwise fulfills the requirements of a complaint.
(c) Failure of CO to issue decision on claims of $50,000 or less.
Where the contractor has submitted a claim of $50,000 or less to the
contracting officer and has requested a written decision within 60 days
from receipt of the request, and the contracting officer has not
complied, the contractor may file a notice of appeal as provided in
paragraph (a) of this section, citing the failure of the contracting
officer to issue a decision. (See Sec. 4.100(a)(2).)
(d) Failure of CO to issue decision on claims in excess of $50,000.
Where the contractor has submitted a claim in excess of $50,000 to the
contracting officer and the contracting officer has failed to issue a
decision within a reasonable time, the contractor may file a notice of
appeal as provided in paragraph (a) of this section, citing the failure
to issue a decision. (See Sec. 4.100(a)(2).)
(e) Optional stay of proceeding. Upon docketing of appeals filed
pursuant to paragraphs (c) or (d) of this section, the Board may at its
option, stay further proceedings pending issuance of a final decision by
the contracting officer within such period of time as is determined by
the Board. (See Sec. 4.100(a)(2).)
Sec. 4.103 Forwarding and docketing of appeals.
(a) Forwarding of appeal. When a notice of appeal in any form has
been received by the contracting officer, he shall endorse thereon the
date of mailing (or the date of receipt, if the notice was otherwise
conveyed) and within 5 days shall forward said notice of appeal to the
Board by certified mail. He shall also promptly notify the Department's
Office of the Solicitor, in accordance with instructions of the
Solicitor, that the appeal has been received in order that a Department
counsel may be appointed.
(b) Docketing of appeals. When a notice of appeal in any form has
been received by the Board, it shall be docketed promptly. Notice in
writing of the fact of docketing, together with a copy of these rules,
shall be mailed promptly by certified mail to the appellant. Also, a
copy of such notice, together with a copy of the notice of appeal if not
originally filed with the contracting officer, shall be mailed promptly
by certified mail to the contacting officer. Such notice shall
acknowledge receipt of the appeal and advise appellant of the appeal
number assigned to the appeal.
Sec. 4.104 Preparation, organization, transmittal, and status of appeal file.
(a) Preparation and transmittal of appeal file. Following receipt of
a notice of appeal, or advice that an appeal has been docketed, the
contracting officer shall promptly, and in any event within 30 days,
compile and transmit to the Board the appeal file which shall consist of
copies of all documents pertinent to the appeal. Within the same time
period the contracting officer shall also prepare and transmit a copy of
the appeal file to the Department counsel and a copy to the appellant or
appellant's counsel. (However, the obligations of this subparagraph are
subject to the provisions of paragraph (e) of this section.)
(b) Composition of appeal file. The appeal file shall include the
following:
(1) The findings of fact and decision from which the appeal is
taken, and the letter or letters or other documents of claim in response
to which the decision was issued;
(2) The contract, and pertinent plans, drawings, specifications,
amendments, and change orders;
(3) All correspondence between the parties pertinent to the appeal;
and
(4) Such additional information as may be considered pertinent and
material.
(c) Organization of appeal file. Documents in the appeal file may be
originals, legible facsimiles, or authenticated copies thereof, and
shall be arranged in chronological order where practicable, numbered
sequentially, tabbed, and indexed to indentify the
[[Page 55]]
contents of the file, and bound. Any single document consisting of three
or more pages shall be numbered sequentially for convenient reference at
the hearing and in the preparation of briefs.
(d) Opportunity for appellant to supplement appeal file. The
appellant shall be afforded the opportunity of supplementing the appeal
file with such documentation as may be deemed pertinent to the appeal.
The appellant shall be obligated, however, to furnish to Department
counsel a copy of any document by which the appeal file is supplemented.
(e) Burdensome documents. The Board may waive the requirement of
furnishing to the other party copies of bulky, lengthy, or out-of-size
documents in the appeal file if a party has shown that doing so would
impose an undue burden. At the time a party files with the Board a
document as to which such a waiver has been granted, he shall notify the
other party that the same or a copy is available for inspection at the
offices of the Board or of the party filing the same.
Sec. 4.105 Dismissal for lack of jurisdiction.
Any motion challenging the jurisdiction of the Board shall be filed
promptly. Hearing on the motion shall be afforded on application of
either party, unless the Board determines that its decision on the
motion will be deferred pending hearing on both the merits and the
motion. The Board has authority to raise at any time and on its own
motion the issue of its jurisdiction to conduct a proceeding and may
afford the parties an opportunity to be heard thereon.
Sec. 4.106 Representation and appearances.
(a) The Appellant. An individual appellant may appear before the
Board in person, a corporation by one if its officers; and a partnership
or joint venture by one of its members; or any of these by an attorney
at law duly licensed in any state, commonwealth, territory, the District
of Columbia, or in a foreign country. An attorney representing an
appellant shall file a written notice of appearance with the Board.
(b) The Government. Department or Government counsel may, in
accordance with their authority, represent the interest of the
Government before the Board. They shall file notices of appearance with
the Board, and notice thereof will be given appellant or appellant's
attorney.
Sec. 4.107 Pleadings.
(a) Complaint. Within 30 days after receipt of notice of docketing
of the appeal, the appellant shall file with the Board an original and
one copy of a complaint setting forth simple, concise, and direct
statements of each claim, alleging the basis with appropriate reference
to contract provisions for each claim, and the dollar amount claimed.
This pleading shall fulfill the generally recognized requirements of a
complaint, although no particular form or formality is required. Letter
size paper should be used for the complaint and for all other papers
filed with the Board. Where the appeal arises out of a contract made
with the Department of the Interior, a copy of the complaint shall be
served by appellant upon the Department counsel if known, otherwise,
upon the Solicitor, U.S. Department of the Interior, C Street, between
18th and 19th Streets, NW., Washington, DC 20240. Where the appeal
arises out of a contract made with an agency other than the Department
of the Interior, a copy of the complaint shall be served by appellant
upon the General Counsel for that agency. All such service shall be made
in accordance with Sec. 4.117. Should the complaint not be received
within 30 days, appellant's claim and appeal documents may, if in the
opinion of the Board the issues before the Board are sufficiently
defined, be deemed to set forth a complaint and the Department counsel
will be so notified.
(b) Answer. Within 30 days from receipt of said complaint, or the
aforesaid notice from the Board, the Department counsel shall prepare
and file with the Board an original and one copy of an answer thereto,
setting forth simple, concise, and direct statements of the Government's
defenses to each claim asserted by appellant. This pleading shall
fulfill the generally recognized requirements of an answer, and
[[Page 56]]
shall set forth any affirmative defenses or counterclaims, as
appropriate. One copy of the answer will be served by the Department
counsel upon the appellant in accordance with Sec. 4.117. Should the
answer not be received within 30 days, the Board, may, in its discretion
enter a general denial on behalf of the Government, and the appellant
shall be so notified.
Sec. 4.108 Amendments of pleadings or record.
(a) The Board may, in its discretion, upon its own initiative or
upon application by a party, order a party to make a more definite
statement of the complaint or answer, or to reply to an answer.
(b) The Board may, in its discretion, and within the proper scope of
the appeal, permit either party to amend his pleading upon conditions
just to both parties. When issues within the proper scope of the appeal,
but not raised by the pleadings or the appeal file, are tried by express
or implied consent of the parties, or by permission of the Board, they
shall be treated in all respects as if they had been raised therein. In
such circumstances motions to amend the pleadings to conform to the
proof may be entered, but are not required. If evidence is objected to
at a hearing on the ground that is is not within the issues raised by
the pleadings or said appeal file (which shall be deemed part of the
pleadings for this purpose), it may be admitted within the proper scope
of the appeal: Provided, however, That the objecting party may be
granted a continuance if necessary to enable him to meet such evidence.
Sec. 4.109 Hearing--election.
Within 15 days after the Government's answer has been served upon
the appellant, or within 20 days of the date upon which the Board enters
a general denial on behalf of the Government, notification as to whether
one or both of the parties desire an oral hearing on the appeal should
be given to the Board. In the event either party requests an oral
hearing, the Board will schedule the same as hereinafter provided. In
the event both parties waive an oral hearing, the Board, unless it
directs an oral hearing, will decide the appeal on the record before it,
supplemented as it may permit or direct. A party failing to elect an
oral hearing within the time limitations specified in this section may
be deemed to have submitted its case on the record.
Sec. 4.110 Prehearing briefs.
Based on an examination of the appeal file, the pleadings, and a
determination of whether the arguments and authorities addressed to the
issues are adequately set forth therein, the Board may, in its
discretion, require the parties to submit prehearing briefs in any case
in which a hearing has been elected pursuant to Sec. 4.109. In the
absence of a Board requirement therefore, either party may, in its
discretion, and upon appropriate and sufficient notice to the other
party, furnish a prehearing brief to the Board. In any case where a
prehearing brief is submitted, it shall be furnished so as to be
received by the Board at least 15 days prior to the date set for
hearing, and a copy shall be furnished simultaneously to the other
party.
Sec. 4.111 Prehearing or presubmission conference.
Whether the case is to be submitted without a hearing, or heard
pursuant to Secs. 4.118 through 4.123, the Board may upon its own
initiative or upon the application of either party, call upon the
parties to appear before a member or hearing officer of the Board for a
conference to consider:
(a) The simplification or clarification of the issues;
(b) The possibility of obtaining stipulations, admissions,
agreements on documents, understandings on matters already of record, or
similar agreements which will avoid unnecessary proof;
(c) The limitation of the number of expert witnesses, or avoidance
of similar cumulative evidence, if the case is to be heard;
(d) The possibility of agreement disposing of all or any of the
issues in dispute; and
(e) Such other matters as may aid in the disposition of the appeal.
Any conference results that are not reflected in a transcript shall be
reduced
[[Page 57]]
to writing by the Board member or the hearing officer. This writing
shall thereafter constitute part of the record.
Sec. 4.112 Submission without a hearing.
Either party may elect to waive a hearing and to submit his case
upon the Board record, as settled pursuant to Sec. 4.114. Such waiver
shall not affect the other party's rights under Sec. 4.109. In the event
of such election (see the time limitations for election in Sec. 4.109),
the submission may be supplemented by oral argument (transcribed if
requested) and by briefs.
Sec. 4.113 Optional small claims (expedited) and accelerated procedures. (See Sec. 4.100(a)(2).)
(a) The procedures set forth in this rule are available solely at
the election of the appellant.
(b) Elections to utilize small claims (expedited) and accelerated
procedure. (1) In appeals where the amount in dispute is $10,000 or
less, the appellant may elect to have the appeal processed under a SMALL
CLAIMS (EXPEDITED) procedure requiring a decision of the appeal,
whenever possible, within 120 days after the Board receives written
notice of the appellant's election to utilize this procedure. The
details of this procedure appear in paragraph (c) of this section. An
appellant may elect the ACCELERATED procedure rather than the SMALL
CLAIMS (EXPEDITED) procedure for any appeal eligible for the SMALL
CLAIMS (EXPEDITED) procedure.
(2) In appeals where the amount in dispute is $50,000 or less, the
appellant may elect to have the appeal processed under an ACCELERATED
procedure requiring decision of the appeal, whenever possible, within
180 days after the Board receives written notice of the appellant's
election to utilize this procedure. The details of this procedure appear
in paragraph (d) of this section.
(3) The appellant's election of either the SMALL CLAIMS (EXPEDITED)
procedure or the ACCELERATED procedure may be made either in the notice
of appeal or by other written notice at any time thereafter.
(4) In deciding whether the SMALL CLAIMS (EXPEDITED) procedure or
the ACCELERATED procedure is applicable to a given appeal the Board
shall determine the amount in dispute by adding the amount claimed by
the appellant against the respondent to the amount claimed by respondent
against the appellant. If either party making a claim against the other
party does not otherwise state in writing the amount of its claim, the
amount claimed by such party shall be the maximum amount which such
party represents in writing to the Board that it can reasonably expect
to recover against the other.
(c) The SMALL CLAIMS (EXPEDITED) procedure. (1) This procedure shall
apply only to appeals where the amount in dispute is $10,000 or less as
to which the appellant has elected the SMALL CLAIMS (EXPEDITED)
procedure.
(2) In cases proceeding under the SMALL CLAIMS (EXPEDITED)
procedure, the following time periods shall apply (i) within 10 days
from the respondent's first receipt from either the appellant or the
Board of a copy of the appellant's notice of election of the SMALL
CLAIMS (EXPEDITED) procedure, the respondent shall send the Board a copy
of the contract, the contracting officer's final decision, and the
appellant's claim letter or letters, if any; (ii) within 15 days after
the Board has acknowledged receipt of the notice of election, either
party desiring an oral hearing shall so inform the Board. If either
party requests an oral hearing, the Board shall promptly schedule such a
hearing for a mutually convenient time consistent with administrative
due process and the 120-day limit for a decision, at a place determined
under Sec. 4.118. If a hearing is not requested by either party within
the time prescribed by this Rule, the appeal shall be deemed to have
been submitted under Sec. 4.112 without a hearing.
(3) In cases proceeding under the SMALL CLAIMS (EXPEDITED)
procedure, pleadings, discovery, and other prehearing activity will be
allowed only as consistent with the requirement to conduct the hearing
on the date scheduled or, if no hearing is scheduled, to close the
record on a date that will allow decision within the 120-
[[Page 58]]
day limit. The Board, in its discretion, may shorten time periods
prescribed elsewhere in these Rules as necessary to enable the Board to
decide the appeal within 120 days after the Board has received the
appellant's notice of elections of the SMALL CLAIMS (EXPEDITED)
procedure. In so doing the Board may reserve whatever time up to 30 days
it considers necessary for preparation of the decision.
(4) Written decision by the Board in cases processed under the SMALL
CLAIMS (EXPEDITED) procedure will be short and contain only summary
findings of fact and conclusions. Decisions will be rendered for the
Board by a single Administrative Judge. If there has been a hearing, the
Administrative Judge presiding at the hearing may, in his discretion, at
the conclusion of the hearing and after entertaining such oral arguments
as he deems appropriate, render on the record oral summary findings of
fact, conclusions, and a decision of the Appeal. Whenever such an oral
decision is rendered, the Board will subsequently furnish the parties a
typed copy of such oral decision for the record and payment purposes and
to establish the date of commencement of the period for filing a motion
for reconsideration under Sec. 4.126.
(5) Decisions of the Board under the SMALL CLAIMS (EXPEDITED)
procedure will not be published, will have no value as precedents, and
in the absence of fraud, cannot be appealed.
(d) The ACCELERATED procedure. (1) This procedure shall apply only
to appeals where the amount in dispute is $50,000 or less as to which
the appellant has made the requisite election.
(2) In cases proceeding under the ACCELERATED procedure, the parties
are encouraged, to the extent possible consistent with adequate
presentation of their factual and legal positions, to waive pleadings,
discovery, and briefs. The Board, in its discretion, may shorten time
periods prescribed elsewhere in these Rules as necessaray to enable the
Board to decide the appeal within 180 days after the Board has received
the appellant's notice of election of the ACCELERATED procedure, and may
reserve 30 days for the preparation of the decision.
(3) Written decisions by the Board in cases processed under the
ACCELERATED procedure will normally be short and contain only summary
findings of fact and conclusions. Decisions will be rendered for the
Board by a single Administrative Judge with the concurrence of the
Chairman or Vice Chairman or other designated Administrative Judge, or
by a majority among these two and an additional designated member in
case of disagreement. Alternatively, in cases where the amount in
dispute is $10,000 or less as to which the ACCELERATED procedure has
been elected and in which there has been a hearing, the single
Administrative Judge presiding at the hearing may, with the concurrence
of both parties, at the conclusion of the hearing and after entertaining
such oral agruments as he deems appropriate, render on the record oral
summary findings of fact, conclusions, and a decision of the appeal.
Whenever such an oral decision is rendered, the Board will subsequently
furnish the parties a typed copy of such oral decision for record and
payment purposes and to establish the date of commencement of the period
for filing a motion for reconsideration under Sec. 4.126.
(e) Motions for reconsideration in cases arising under Sec. 4.113.
Motions for reconsideration of cases decided aunder either the SMALL
CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure need not be
decided within the time period prescribed by this Sec. 4.113 for the
initial decision of the appeal, but all such motions shall be processed
and decided rapidly so as to fulfill the intent of this rule.
Sec. 4.114 Settling of the record.
(a) A case submitted on the record pursuant to Sec. 4.112 shall be
ready for decision when the parties are so notified by the Board. A case
which is heard shall be ready for decision upon receipt of transcript,
or upon receipt of briefs when briefs are to be submitted. At any time
prior to the date that a case is ready for decision, either party, upon
notice to the other, may supplement the record with documents and
exhibits deemed relevant and material by the Board. The Board upon its
own initiative may call upon either party, with
[[Page 59]]
appropriate notice to the other, for evidence deemed by it to be
relevant and material. The weight to be attached to any evidence of
record will rest within the sound discretion of the Board. Either party
at any stage of the proceeding, on notice to the other party, may object
to the relevancy or materiality of documents in the record or offered
into the record.
(b) The Board record shall consist of the appeal file described in
Sec. 4.104(b) and any additional material, pleadings, prehearing briefs,
record of prehearing, or presubmission conferences, depositions,
interrogatories, admissions, transcripts of hearing, hearing exhibits,
and posthearing briefs, as may thereafter be developed pursuant to these
rules. In deciding appeals the Board, in addition to considering the
Board record, may take official notice of facts within general
knowledge.
(c) This record will at all times be available for inspection by the
parties at an appropriate time and place. In the interest of
convenience, prior arrangements for inspection of the file should be
made with the Recorder of the Board. Copies of material in the record
may be furnished to appellant as provided in part 2 of this subtitle.
Sec. 4.115 Discovery--depositions.
(a) General policy and protective orders. The parties are encouraged
to engage in voluntary discovery procedures. In connection with any
deposition or other discovery procedure, the board may make any order
which justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, and those orders
may include limitations on the scope, method, time and place for
discovery, and provisions for protecting the secrecy of confidential
information or documents.
(b) When depositions permitted. After an appeal has been docketed,
the parties may mutually agree to, or the Board may, upon application of
either party and for good cause shown, order the taking of testimony of
any person by deposition upon oral examination or written
interrogatories before any officer authorized to administer oaths at the
place of examination, for use as evidence or for purpose of discovery.
The application for such an order shall specify whether the purpose of
the depositon is discovery or for use as evidence.
(c) Orders on depositions. The time, place, and manner of taking
depositions shall be, as mutually agreed by the parties, or, failing
such agreement, governed by order of the Board.
(d) Use as evidence. No testimony taken by depositions shall be
considered as part of the evidence in the hearing of an appeal unless
and until such testimony is offered and received in evidence at such
hearing. It will not ordinarily be received in evidence if the deponent
is present and can testify personally at the hearing. In such instances,
however, the depositions may be used to contradict or impeach the
testimony of the witness given at the hearing. In cases submitted on the
record, the Board may in its discretion receive depositions as evidence
in supplementation of that record.
(e) Expenses. Each party shall bear its own expenses associated with
the taking of any deposition.
Sec. 4.116 Interrogatories to parties; inspection of documents; admission of facts.
Under appropriate circumstances, but not as a matter of course, the
Board will entertain applications for permission to serve written
interrogatories upon the opposing party, applications for an order to
produce and permit the inspection of designated documents, and
applications for permission to serve upon the opposing party a request
for the admission of specified facts. Such applications shall be
reviewed and approved only to the extent and upon such terms as the
Board in its discretion considers to be consistent with the objective of
securing just and inexpensive determination of appeals without
unnecessary delay, and essential to the proper pursuit of that objective
in the particular case.
Sec. 4.117 Service of papers.
A copy of all pleadings, briefs, motions, letters, or other papers
filed with the Board, shall be served upon the other party at the time
of filing. Service of papers may be made personally
[[Page 60]]
or by mailing in a sealed envelope addressed to the other party. Any
paper filed with the Board shall show on its face, or in the letter
transmitting the same, that a copy thereof has been served upon the
other party. When the other party is represented by counsel, such
service shall be made upon him, and service upon counsel shall be deemed
to be service upon the party he represents.
Hearing Procedure Rules
Sec. 4.118 Hearings--where and when held.
Hearings may be held in Arlington, Virginia, or upon timely request
and for good cause shown, the Board may in its discretion set the
hearing on an appeal at a location other than Arlington, Virginia.
Hearins will be scheduled at the discretion of the Board with due
consideration to the regular order of appeals and other pertinent
factors. However, where it is apparent that no issue of fact is
presented in an appeal proceeding, the Board may deny a request for
hearing. On request or motion by either party and for good cause shown,
the Board may in its discretion adjust the date of a hearing.
Sec. 4.119 Notice of hearings.
The parties shall be given at least 15 days' notice of the time and
place set for hearings. In scheduling hearings, the Board will give due
regard to the desires of the parties, and to the requirement for just
and prompt determination of appeals. Receipt of a notice of hearing
shall be promptly acknowledged by the parties. A party failing to
acknowledge a notice of hearing shall be deemed to have consented to the
indicated time and place of hearing.
Sec. 4.120 Subpoenas. (See Sec. 4.100(a)(2).)
(a) General. Upon written request of either party filed with the
docket clerk or on his own initiative, the Administrative Judge to whom
a case is assigned or who is otherwise designated by the Chairman may
issue a subpoena requiring:
(1) Testimony at a deposition-- the deposing of a witness, in the
city or county where he resides or is employed or transacts his business
in person, or at another location convenient for him that is
specifically determined by the Board;
(2) Testimony at a hearing-- the attendance of a witness for the
purpose of taking testimony at a hearing; and
(3) Production of books and papers-- in addition to paragraphs (a)
(1) and (2) of this section, the production by the witness at the
deposition or hearing of books and papers designated in the subpoena.
(b) Voluntary cooperation. Each party is expected (1) to cooperate
and make available witnesses and evidence under its control as requested
by the other party, without issuance of a subpoena, and (2) to secure
voluntary attendance of desired third-party books, papers, documents, or
tangible things whenever possible.
(c) Requests for subpoenas. (1) A request for a subpoena shall
normally be filed at least:
(i) 15 days before a scheduled deposition where the attendance of a
witness at a deposition is sought;
(ii) 30 days before a scheduled hearing where the attendance of a
witness at a hearing is sought.
In its discretion the Board may honor requests for subpoenas not made
within these time limitations.
(2) A request for a subpoena shall state the reasonable scope and
general relevance to the case of the testimony and of any books and
papers sought.
(d) Request to quash or modify. Upon written request by the person
subpoenaed or by a party, made within 10 days after service but in any
event not later than the time specified in the subpoena for compliance,
the Board may (1) quash or modify the subpoena if it is unreasonable and
oppressive or for other good cause shown, or (2) require the person in
whose behalf the subpoena was issued to advance the reasonable cost of
producing subpoenaed books and papers. Where circumstances require, the
Board may act upon such a request at any time after a copy has been
served upon the opposing party.
(e) Forms--issuance. (1) Every subpoena shall state the name of the
Board and the title of the appeal and shall command each person to whom
it
[[Page 61]]
is directed to attend and give testimony, and if appropriate, to produce
specified books and papers at a time and place therein specified. In
issuing a subpoena to a requesting party, the Administrative Judge shall
sign the subpoena and may in his discretion, enter the name of the
witness and otherwise leave it blank. The party to whom the subpoena is
issued shall complete the subpoena before service.
(2) Where the witness is located in a foreign country, a letter
rogatory or subpoena may be issued and served under the circumstances
and in the manner provided in 28 U.S.C. 1781-1784.
(f) Service. (1) The party requesting issuance of subpoena shall
arrange for service.
(2) A subpoena requiring the attendance of a witness at a deposition
or hearing may be served at any place. A subpoena may be served by a
U.S. marshal or deputy marshal, or by any other person who is not a
party and not less than 18 years of age. Service of a subpoena upon a
person named therein shall be made by personally delivering a copy to
that person and tendering the fees for 1 day's attendance and the
mileage provided by 28 U.S.C. 1821 or other applicable law.
(3) The party at whose instance a subpoena is issued shall be
responsible for the payment of fees and mileage of the witness and of
the officer who serves the subpoena. The failure to make payment of such
charges on demand may be deemed by the Board as a sufficient ground for
striking the testimony of the witness and the evidence the witness has
produced.
(g) Contumacy or refusal to obey a subpoena. In a case of contumacy
or refusal to obey a subpoena by a person who resides, is found, or
transacts business within the jurisdiction of a U.S. District Court, the
Board will apply to the Court through the Attorney General of the United
States for an order requiring the person to appear before the Board or a
member thereof to give testimony or produce evidence or both. Any
failure of any such person to obey the order of the Court may be
punished by the Court as a contempt thereof.
Sec. 4.121 Unexcused absence of a party.
The unexcused absence of a party at the time and place set for
hearing will not be occasion for delay. In the event of such absence,
the hearing will proceed and the case will be regarded as submitted by
the absent party as provided in Sec. 4.112. The Board shall advise the
absent party of the content of the proceedings had and that he has 5
days from the receipt of such notice within which to show cause why the
appeal should not be decided on the record made.
Sec. 4.122 Nature of hearings.
Hearings shall be as informal as may be reasonable and appropriate
in the circumstances. Appellant and respondent may offer at a hearing on
the merits of such relevant evidence as they deem appropriate and as
would be admissible under the generally accepted rules of evidence
applied in the courts of the United States in nonjury trials, subject,
however, to the sound discretion of the presiding member or hearing
officer in supervising the extent and manner of presentation of such
evidence. In general, admissibility will hinge on relevancy and
materiality. Letters or copies thereof, affidavits, or other evidence
not ordinarily admissible under the generally accepted rules of
evidence, may be admitted in the discretion of the presiding member or
hearing officer. The weight to be attached to evidence presented in any
particular form will be within the discretion of the Board, taking into
consideration all the circumstances of the particular case. Stipulations
of fact agreed upon by the parties may be regarded and used as evidence
at the hearing. The parties may stipulate the testimony that would be
given by a witness if the witness were present. The Board may in any
case require evidence in addition to that offered by the parties.
Sec. 4.123 Examination of witnesses.
Witnesses before the Board will be examined orally under oath or
affirmation, unless the facts are stipulated, or the presiding Board
member or hearing officer shall otherwise order.
[[Page 62]]
Sec. 4.124 Submission of briefs.
Posthearing briefs may be submitted upon such terms as may be agreed
upon by the parties and the presiding Board member or hearing officer at
the conclusion of the hearing.
posthearing procedure rules
Sec. 4.125 Decisions.
Decisions of the Board will be made upon the record, as described in
Sec. 4.114(b). Copies thereof will be forwarded simultaneously to both
parties by certified mail.
Sec. 4.126 Motions for reconsideration.
A motion for reconsideration, if filed by either party, shall set
forth specifically the ground or grounds relied upon in support of the
motion, and shall be filed within 30 days from the date of the receipt
of a copy of the Board's decision by the party filing the motion.
Reconsideration of a decision, which may include a hearing or rehearing,
may be granted if, in the judgment of the Board, sufficient reason
therefor appears.
Sec. 4.127 Dismissals.
(a) Dismissal without prejudice. In certain cases, appeals docketed
before the Board are required to be placed in a suspense status and the
Board is unable to proceed with the disposition thereof for reasons not
within the control of the Board. Where the suspension has continued, or
may continue, for an inordinate length of time, the board may, in its
discretion, dismiss such an appeal from the docket without prejudice to
its reinstatement when the cause of suspension has been removed. Unless
either party or the Board acts within 3 years to reinstate any appeal
dismissed without prejudice, the dismissal shall be deemed to have been
made with prejudice.
(b) Dismissal for failure to prosecute or defend. Whenever a record
discloses the failure of either party to file documents required by
these rules, respond to notices or correspondence from the Board, comply
with orders of the Board, or otherwise indicates an intention not to
continue the prosecution or defense of an appeal, the Board may issue an
order requiring the offending party to show cause why the appeal should
not be either dismissed or granted, as appropriate. If no cause is
shown, the Board may take appropriate action.
Sec. 4.128 Remands from courts.
Whenever any matter is remanded to the Board from any court for
further proceedings, each of the parties, shall, within 20 days of such
remand, submit a report to the Board, recommending procedures to be
followed in order to comply with the court's order. The Board will
review the reports and issue the appropriate special orders.
Appendix I to Subpart C of Part 4--Suggested Form of Notice of Appeal
Interior Board of Contract Appeals, 4015 Wilson Boulevard, Arlington, VA
22203
(Date)__________________________________________________________________
(Name of Contractor)____________________________________________________
(Address)_______________________________________________________________
Contract No.____________________________________________________________
(Invitation No.)________________________________________________________
Specifications No.______________________________________________________
(Name and Location of Project)__________________________________________
(Name of Bureau or Office)______________________________________________
The undersigned contractor appeals to the Board of Contract Appeals
from decision or findings of fact dated ________, by:
(Name of Contracting Officer)___________________________________________
The decision or findings of fact is erroneous because: (State
specific facts and circumstances and the contractual provisions
involved.)
(Signature)_____________________________________________________________
(Title)_________________________________________________________________
Subpart D--Rules Applicable in Indian Affairs Hearings and Appeals
Authority: Secs. 1, 2, 36 Stat. 855, as amended, 856, as amended,
sec. 1, 38 Stat. 586, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat.
1021, 1022; R.S. 463, 465; 5 U.S.C. 301; 25 U.S.C. secs. 2, 9, 372, 373,
374, 373a, 373b; 100 Stat. 61, as amended by 101 Stat. 886 and 101 Stat.
1433, 25 U.S.C. 331 note.
Cross Reference: See subpart A for the authority, jurisdiction and
membership of the Board of Indian Appeals within the Office of Hearings
and Appeals. For general rules applicable to proceedings before the
Board of Indian Appeals as well as the other Appeals Boards of the
Office of Hearings and Appeals, see subpart B.
[[Page 63]]
Determinations of Heirs and Approval of Wills, Except as to Members of
the Five Civilized Tribes and Osage Indians; Tribal Purchases of
Interests Under Special Statutes
scope of regulations; definitions; general authority of administrative
law judges
Sec. 4.200 Scope of regulations.
Included in Secs. 4.200 through 4.202 are general rules applicable
to all proceedings in subpart D of this part. Included in Secs. 4.203
through 4.282 and Secs. 4.310 through 4.323 are procedural rules
applicable to the settlement of trust estates of deceased Indians who
die possessed of trust property, except deceased Indians of the Five
Civilized Tribes, deceased Osage Indians, and members of any tribe
organized under 25 U.S.C. 476, to the extent that the constitution, by-
laws or charter of each tribe may be inconsistent with this subpart.
Included within Secs. 4.300 through 4.308 are supplemental procedural
rules applicable to determinations as to tribal purchase of certain
property interests of decedents under special laws applicable to
particular tribes. Included within Secs. 4.330 through 4.340 are
procedural rules applicable to appeals to the Board of Indian Appeals
from administrative actions or decisions issued by the Bureau of Indian
Affairs as set forth in Sec. 4.330. Except as limited by the provisions
herein, the rules in subparts A and B of this part apply to these
proceedings.
[40 FR 20819, May 13, 1975, as amended at 45 FR 50331, July 29, 1980; 54
FR 6485, Feb. 10, 1989; 55 FR 43132, Oct. 26, 1990]
Sec. 4.201 Definitions.
As used in this subpart:
(a) The term Secretary means the Secretary of the Interior or his
authorized representative;
(b) The term Board means the Board of Indian Appeals in the Office
of Hearings and Appeals, Office of the Secretary, authorized by the
Secretary to hear, consider, and determine finally for the Department
appeals taken by aggrieved parties from actions by administrative law
judges on petitions for rehearing or reopening, and allowance of
attorney fees;
(c) The term Commissioner means the Commissioner of Indian Affairs
or his authorized representative;
(d) The term Superintendent means the Superintendent or other
officer having jurisdiction over an estate, including area field
representatives or one holding equivalent authority;
(e) The terms agency and Indian agency mean the Indian agency or any
other designated office in the Bureau of Indian Affairs having
jurisdiction over trust property;
(f) Administrative law judge (hereinafter called administrative law
judge) means any employee of the Office of Hearings and Appeals upon
whom authority has been conferred by the Secretary to conduct hearings
in accordance with the regulations in this subpart;
(g) The term Solicitor means the Solicitor of the Department of the
Interior or his authorized representative;
(h) The term Department means the Department of the Interior;
(i) The term parties in interest means any presumptive or actual
heir, any beneficiary under a will, any party asserting a claim against
a deceased Indian's estate, and any Tribe having a statutory option to
purchase interests of a decedent.
(j) The term minor means an individual who has not reached his
majority as defined by the laws of the State where the deceased's
property is situated;
(k) The words child or children include adopted child or children;
(l) The words will and last will and testament include codicils
thereto;
(m) The term trust property means real or personal property title to
which is in the United States for the benefit of an Indian. In this
subpart ``restricted property'' (real or personal property held by an
Indian which he may not alienate without the consent of the Secretary or
his authorized representative), is treated as if it were trust property,
and conversely trust property is treated as restricted property.
[36 FR 7186, Apr. 15, 1971, as amended at 39 FR 31636, Aug. 30, 1974]
[[Page 64]]
Sec. 4.202 General authority of administrative law judges.
Administrative law judges shall determine the heirs of Indians who
die intestate possessed of trust property, except as otherwise provided
in Secs. 4.205(b) and 4.271; approve or disapprove wills of deceased
Indians disposing of trust property; accept or reject full or partial
renunciations of interest in both testate and intestate proceedings;
allow or disallow creditors' claims against estates of deceased Indians;
and decree the distribution of trust property to heirs and devisees,
including the partial distribution to known heirs or devisees where one
or more potential heirs or devisees are missing but not presumed dead,
after attributing to and setting aside for such missing person or
persons the share or shares such person or persons would be entitled to
if living. They shall determine the right of a tribe to take inherited
interests and the fair market value of the interests taken in
appropriate cases as provided by statute. They shall hold hearings and
issue recommended decisions in matters referred to them by the Board in
the Board's consideration of appeals from administrative actions of
officials of the Bureau of Indian Affairs.
[52 FR 32130, Aug. 26, 1987]
Determination of Heirs; Approval of Wills; Settlement of Indian Trust
Estates
Sec. 4.203 Determination as to nonexistent persons and other irregularities of allotments.
(a) Administrative law judges shall hear and determine whether trust
patents covering allotments of land were issued to nonexistent persons,
and whether more than one trust patent covering allotments of land had
been issued to the same person under different names and numbers or
through other errors in identification.
(b) If an administrative law judge determines under paragraph (a) of
this section that a trust patent did issue to an existing person or that
separate persons did receive the allotments under consideration and any
one of them is deceased, without having had his estate probated, he
shall proceed as provided in Sec. 4.202.
(c) If an administrative law judge determines under paragraph (a) of
this section that a person did not exist or that there were more than
one allotment issued to the same person, he shall issue a decision to
that effect, giving notice thereof to parties in interest as provided in
Sec. 4.240(b).
[36 FR 7186, Apr. 15, 1971; 36 FR 7588, Apr. 22, 1971]
Sec. 4.204 Presumption of death.
(a) Administrative law judges shall receive evidence on and
determine the issue of whether persons, by reason of unexplained
absence, are to be presumed dead.
(b) If an administrative law judge determines that an Indian person
possessed of trust property is to be presumed dead, he shall proceed as
provided in Sec. 4.202.
Sec. 4.205 Escheat.
Administrative law judges shall determine whether Indian holders of
trust property have died intestate without heirs and--
(a) With respect to trust property other than on the public domain,
shall order the escheat of such property in accordance with 25 U.S.C.
373a.
(b) With respect to trust property on the public domain, shall
submit to the Board of Indian Appeals the records thereon, together with
their recommendations as to the disposition of said property under 25
U.S.C. 373b.
[36 FR 7186, Apr. 15, 1971, as amended at 55 FR 43132, Oct. 26, 1990]
Sec. 4.206 Determinations of nationality or citizenship and status affecting character of land titles.
In cases where the right and duty of the Government to hold property
in trust depends thereon, administrative law judges shall determine the
nationality or citizenship, or the Indian or non-Indian status, of heirs
or devisees, or whether Indian heirs or devisees of U.S. citizenship are
of a class as to whose property the Government's supervision and
trusteeship have been terminated (a) in current probate proceedings or
(b) in completed estates
[[Page 65]]
after reopening such estates under, but without regard to the 3-year
limit set forth in Sec. 4.242.
Sec. 4.207 Compromise settlement.
(a) If during the course of the probate of an estate it shall
develop that an issue between contending parties is of such nature as to
be substantial, and it further appears that such issue may be settled by
agreement preferably in writing by the parties in interest to their
advantage and to the advantage of the United States, such an agreement
may be approved by the administrative law judge upon findings that:
(1) All parties to the compromise are fully advised as to all
material facts;
(2) All parties to the compromise are fully cognizant of the effect
of the compromise upon their rights; and
(3) It is in the best interest of the parties to settle rather than
to continue litigation.
(b) In considering the proposed settlement, the administrative law
judge may take and receive evidence as to the respective values of
specific items of property. Superintendents and irrigation project
engineers shall supply all necessary information concerning any
liability or lien for payment of irrigation construction and of
irrigation operation and maintenance charges.
(c) Upon an affirmative determination as to all three points
specified, the administrative law judge shall issue such final order of
distribution in the settlement of the estate as is necessary to approve
the same and to accomplish the purpose and spirit of the settlement.
Such order shall be construed as any other order of distribution
establishing title in heirs and devisees and shall not be construed as a
partition or sale transaction within the provisions of 25 CFR part 152.
If land titles are to be transferred, the necessary deeds shall be
prepared and executed at the earliest possible date. Upon failure or
refusal of any party in interest to execute and deliver any deed
necessary to accomplish the settlement, the administrative law judge
shall settle the issues and enter his order as if no agreement had been
attempted.
(d) Administrative law judges are authorized to approve all deeds or
conveyances necessary to accomplish a settlement under this section.
[36 FR 7186, Apr. 15, 1971, as amended at 55 FR 43132, Oct. 26, 1990]
Sec. 4.208 Renunciation of interest.
Any person 21 years or older, whether of Indian descent or not, may
renounce intestate succession or devise of trust or retsricted property,
wholly or partially (including the retention of a life estate), by
filing a signed and acknowledged declaration of such renunciation with
the administrative law judge prior to entry of the administrative law
judge's final order. No interest in the property so renounced is
considered to have vested in the heir or devisee and the renunciation is
not considered a transfer by gift of the property renounced, but the
property so renounced passes as if the person renouncing the interest
has predeceased the decedent. A renunciation filed in accordance
herewith shall be considered accepted when implemented in an order by an
administrative law judge and shall be irrevocable thereafter. All
disclaimers or renunciations heretofore filed with and implemented in an
order by an administrative law judge are hereby ratified as valid and
effective.
[51 FR 35220, Oct. 2, 1986]
commencement of probate proceedings
Sec. 4.210 Commencement of probate.
(a) Within the first 7 days of each month, each Superintendent shall
prepare and furnish to the appropriate administrative law judge a list
of the names of all Indians who have died and whose names have not been
previously reported.
(b) Within 90 days of receipt of notice of death of an Indian who
died owning trust property, the Superintendent having jurisdiction
thereof shall commence the probate of the trust estate by filing with
the appropriate administrative law judge all data shown in the records
relative to the family of the deceased and his property. The data shall
include but is not limited to:
[[Page 66]]
(1) A copy of the death certificate if one exists; if there is no
death certificate then another form of official written evidence of the
death such as a burial or transportation of remains permit, coroner's
report, or church registration of death. Secondary forms of evidence of
death such as an affidavit from someone with personal knowledge
concerning the fact of death or an obituary or death notice from a
newspaper may be used only in the absence of any official proof or
evidence of death.
(2) Data for heirship findings and family history, certified by the
Superintendent, on a form approved by the Director, Office of Hearings
and Appeals, such data to contain:
(i) The facts and alleged facts of deceased's marriages, separations
and divorces, with copies of necessary supporting documents;
(ii) The names and last known addresses of probable heirs and other
known parties in interest, including known creditors;
(iii) Information on whether the relationship of the probable heirs
to the deceased arose by marriage, blood, or adoption;
(iv) The names, relationships to the deceased, and last known
addresses of beneficiaries and attesting witnesses when a will or
purported will is involved; and
(v) If will beneficiaries are not probable heirs of the deceased,
the names of the tribes in which they are members;
(3) A certified inventory of the trust real and personal property
wherever situated, in which the deceased had any right, title or
interest at the time of his death (including all moneys and credits in a
trust status whether in the form of bonds, undistributed judgment funds,
or any other form and the source of each fund in the account), showing
both the total estimated value of the real property and the estimated
value of the deceased's interest therein, and the amount and names and
addresses of parties having an approved incumbrance against the estate;
(4) The original and copies of all wills in the Superintendent's
custody, if any; the original and copies of codicils to and revocations
of wills, if any; and any paper, instrument, or document that purports
to be a will;
(5) The Superintendent shall transmit to the administrative law
judge all creditors' and other claims which have been filed and,
thereafter, he shall transmit all additional claims immediately upon the
filing thereof.
(c) Where a tribe has the statutory option to purchase interests of
a decedent, the Superintendent shall include in the data specified in
paragraph (b) of this section with respect to each probable heir or
devisee a showing of the enrollment status in all cases and, where
required by statute, the blood quantum in the tribe concerned, and such
information as listed shall constitute prima facie evidence of the facts
there shown. The inventory shall be verified by the title plant
designated under Sec. 4.236(b) that it is complete and accurate.
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 24813, Dec. 23, 1971; 45
FR 50331, July 29, 1980; 54 FR 8329, Feb. 28, 1989; 55 FR 43132, Oct.
26, 1990]
Sec. 4.211 Notice.
(a) An administrative law judge may receive and hear proofs at a
hearing to determine the heirs of a deceased Indian or probate his will
only after he has caused notice of the time and place of the hearing to
be posted at least 20 days in five or more conspicuous places in the
vicinity of the designated place of hearing, and he may cause postings
in such other places and reservations as he deems appropriate. A
certificate showing the date and place of posting shall be signed by the
person or official who performs the act.
(b) The administrative law judge shall serve or cause to be served a
copy of the notice on each party in interest reported to the
administrative law judge and on each attesting witness if a will is
offered:
(1) By personal service in sufficient time in advance of the date of
the hearing to enable the person served to attend the hearing; or
(2) By mail, addressed to the person at his last known address, in
sufficient time in advance of the date of the hearing to enable the
addressee served to attend the hearing. The administrative law judge
shall cause a certificate, as
[[Page 67]]
to the date and manner of such mailing, to be made on the record copy of
the notice.
(c) All parties in interest, known and unknown, including creditors,
shall be bound by the decision based on such hearing if they lived
within the vicinity of any place of posting during the posting period,
whether they had actual notice of the hearing or not. As to those not
within the vicinity of the place of posting, a rebuttable presumption of
actual notice shall arise upon the mailing of such notice at a
reasonable time prior to the hearing, unless the said notice is returned
by the postal service to the administrative law judge's office unclaimed
by the addressee.
(d) Tribes to be charged with notice of death and probate. When a
record reveals that a Tribe has a statutory option to purchase interests
of a decedent, such Tribe shall be notified of the pendency of a
proceeding by the judge having probate jurisdiction in such proceeding,
and the judge's certificate of mailing of notice of probate hearing or
of a final decision in probate to the Tribe at its record address shall
be conclusive evidence for all purposes that the Tribe had notice of
decedent's death and notice of the pendency of the probate proceedings.
[36 FR 7186, Apr. 15, 1971, as amended at 39 FR 31636, Aug. 30, 1974]
Sec. 4.212 Contents of notice.
(a) In the notice of hearing, the administrative law judge shall
specify that at the stated time and place he will take testimony to
determine the heirs of the deceased person (naming him) and, if a will
is offered for probate, testimony as to the validity of the will
describing it by date. The notice shall name all known presumptive heirs
of the decedent, and, if a will is offered for probate, the
beneficiaries under such will and the attesting witnesses to the will.
The notice shall cite this subpart as the authority and jurisdiction for
holding the hearing, and shall inform all persons having an interest in
the estate of the decedent, including persons having claims or accounts
against the estate, to be present at the hearing or their rights may be
lost by default.
(b) The notice shall state further that the hearing may be continued
to another time and place. A continuance may be announced either at the
original hearing by the administrative law judge or by an appropriate
notice posted at the announced place of hearing on or prior to the
announced hearing date and hour.
depositions, discovery, and prehearing conference
Sec. 4.220 Production of documents for inspection and copying.
(a) At any stage of the proceeding prior to the conclusion of the
hearing, a party in interest may make a written demand, a copy to be
filed with the administrative law judge, upon any other party to the
proceeding or upon a custodian of records on Indians or their trust
property, to produce for inspection and copying or photographing, any
documents, papers, records, letters, photographs, or other tangible
things not privileged, relevant to the issues which are in the other
party's or custodian's possession, custody, or control. Upon failure of
prompt compliance the administrative law judge may issue an appropriate
order upon a petition filed by the requesting party. At any time prior
to closing the record, the administrative law judge upon his own motion,
after notice to all parties, may issue an order to any party in interest
or custodian of records for the production of material or information
not privileged, and relevant to the issues.
(b) Custodians of official records shall furnish and reproduce
documents, or permit their reproduction, in accordance with the rules
governing the custody and control thereof.
Sec. 4.221 Depositions.
(a) Stipulation. Depositions may be taken upon stipulation of the
parties. Failing an agreement therefor, depositions may be ordered under
paragraphs (b) and (c) of this section.
(b) Application for taking deposition. When a party in interest
files a written application, the administrative law judge may at any
time thereafter order the taking of the sworn testimony of
[[Page 68]]
any person by deposition upon oral examination for the purpose of
discovery or for use as evidence at a hearing. The application shall be
in writing and shall set forth:
(1) The name and address of the proposed deponent;
(2) The name and address of that person, qualified under paragraph
(d) of this section to take depositions, before whom the proposed
examination is to be made;
(3) The proposed time and place of the examination, which shall be
at least 20 days after the date of the filing of the application; and
(4) The reasons why such deposition should be taken.
(c) Order for taking deposition. If after examination of the
application the administrative law judge determines that the deposition
should be taken, he shall order its taking. The order shall be served
upon all parties in interest and shall state:
(1) The name of the deponent;
(2) The time and place of the examination which shall not be less
than 15 days after the date of the order except as stipulated otherwise;
and
(3) The name and address of the officer before whom the examination
is to be made. The officer and the time and place need not be the same
as those requested in the application.
(d) Qualifications of officer. The deponent shall appear before the
administrative law judge or before an officer authorized to administer
oaths by the law of the United States or by the law of the place of the
examination.
(e) Procedure on examination. The deponent shall be examined under
oath or affirmation and shall be subject to cross-examination. The
testimony of the deponent shall be recorded by the officer or someone in
his presence. An applicant who requests the taking of a person's
deposition shall make his own arrangements for payment of any costs
incurred.
(f) Submission to witness; changes; signing. When the testimony is
fully transcribed, the deposition shall be submitted to the deponent for
examination and shall be read to or by him, unless such examination and
reading are waived by the deponent or by all other parties in interest.
Any changes in form or substance which the deponent desires to make
shall be entered upon the deposition by the officer with a statement of
the reasons given by the deponent for making them. The deposition shall
then be signed by the deponent, unless the parties in interest by
stipulation waive the signing, or the witness is ill or cannot be found
or refuses to sign. If the deposition is not signed by the deponent, the
officer shall sign it and state on the record the fact of the waiver, or
of the illness or absence of the deponent or the fact of the refusal to
sign together with the reason, if any, given therefor; the deposition
may then be used as fully as though signed, unless the administrative
law judge holds that the reason given for refusal to sign requires
rejection of the deposition in whole or in part.
(g) Certificates by officer. The officer shall certify on the
deposition that the deponent was duly sworn by him and that the
deposition is a true record of the deponent's testimony. He shall then
securely seal the deposition, together with two copies thereof, in an
envelope and shall personally deliver or mail the same by certified or
registered mail to the administrative law judge.
(h) Use of depositions. A deposition ordered and taken in accord
with the provisions of this section may be used in a hearing if the
administrative law judge finds that the witness is absent and his
presence cannot be readily obtained, that the evidence is otherwise
admissible, and that circumstances exist that make it desirable in the
interest of fairness to allow the deposition to be used. If a deposition
has been taken, and the party in interest on whose application it was
taken refuses to offer the deposition, or any part thereof, in evidence,
any other party in interest or the administrative law judge may
introduce the deposition or any portion thereof on which he wishes to
rely.
Sec. 4.222 Written interrogatories; admission of facts and documents.
At any time prior to a hearing and in sufficient time to permit
answers to be filed before the hearing, a party in interest may serve
upon any other party in interest written interrogatories and
[[Page 69]]
requests for admission of facts and documents. A copy of such
interrogatories and requests shall be filed with the administrative law
judge. Such interrogatories and requests for admission shall be drawn
with the purpose of defining the issues in dispute between the parties
and facilitating the presentation of evidence at the hearing. Answers
shall be served upon the party propounding the written interrogatories
or requesting the admission of facts and documents within 30 days from
the date of service of such interrogatories or requests, or within such
other period of time as may be agreed upon by the parties or prescribed
by the administrative law judge. A copy of the answer shall be filed
with the administrative law judge. Within 10 days after written
interrogatories are served upon a party, that party may serve cross-
interrogatories for answer by the witness to be interrogated.
[51 FR 18328, May 19, 1986]
Sec. 4.223 Objections to and limitations on production of documents, depositions, and interrogatories.
The administrative law judge, upon motion timely made by any party
in interest, proper notice, and good cause shown, may direct that
proceedings under Secs. 4.220, 4.221, and 4.222 shall be conducted only
under, and in accordance with, such limitation as he deems necessary and
appropriate as to documents, time, place, and scope. The administrative
law judge may act on his own motion only if undue delay, dilatory
tactics, and unreasonable demands are made so as to delay the orderly
progress of the proceeding or cause unacceptable hardship upon a party
or witness.
Sec. 4.224 Failure to comply with orders.
In the event of the failure of a party to comply with a request for
the production of a document under Sec. 4.220; or on the failure of a
party to appear for examination under Sec. 4.221 or on the failure of a
party to respond to interrogatories or requests for admissions under
Sec. 4.222; or on the failure of a party to comply with an order of the
administrative law judge issued under Sec. 4.223 without, in any of such
events, showing an excuse or explanation satisfactory to the
administrative law judge for such failure, the administrative law judge
may:
(a) Decide the fact or issue relating to the material requested to
be produced, or the subject matter of the probable testimony, in
accordance with the claims of the other party in interest or in
accordance with other evidence available to the administrative law
judge; or
(b) Make such other ruling as he determines just and proper.
Sec. 4.225 Prehearing conference.
The administrative law judge may, upon his own motion or upon the
request of any party in interest, call upon the parties to appear for a
conference to:
(a) Simplify or clarify the issues;
(b) Obtain stipulations, admissions, agreements on documents,
understandings on matters already of record, or similar agreements which
will avoid unnecessary proof;
(c) Limit the number of expert or other witnesses in avoidance of
excessively cumulative evidence;
(d) Effect possible agreement disposing of all or any of the issues
in dispute; and
(e) Resolve such other matters as may simplify and shorten the
hearing.
hearings
Sec. 4.230 Administrative law judge; authority and duties.
The authority of the administrative law judge in all hearings in
estate proceedings includes, but is not limited to authority:
(a) To administer oaths and affirmations;
(b) To issue subpoenas under the provisions of 25 U.S.C. 374 upon
his own initiative or within his discretion upon the request of any
party in interest, to any person whose testimony he believes to be
material to a hearing. Upon the failure or refusal of any person upon
whom a subpoena shall have been served to appear at a hearing or to
testify, the administrative law judge may file a petition in the
appropriate U.S. District Court for the issuance of an order requiring
the appearance and testimony of the witness:
[[Page 70]]
(c) To permit any party in interest to cross-examine any witness;
(d) To appoint a guardian ad litem to represent any minor or
incompetent party in interest at hearings;
(e) To rule upon offers of proof and receive evidence;
(f) To take and cause depositions to be taken and to determine their
scope; and
(g) To otherwise regulate the course of the hearing and the conduct
of witnesses, parties in interest, and attorneys at law appearing
therein.
[36 FR 7186, Apr. 15, 1971, as amended at 55 FR 43133, Oct. 26, 1990]
Sec. 4.231 Hearings.
(a) All testimony in Indian probate hearings shall be under oath and
shall be taken in public except in those circumstances which in the
opinion of the administrative law judge justify all but parties in
interest to be excluded from the hearing.
(b) The proceedings of hearings shall be recorded verbatim.
(c) The record shall include a showing of the names of all parties
in interest and of attorneys who attended such hearing.
[36 FR 7186, Apr. 15, 1971, as amended at 52 FR 26345, July 14, 1987]
Sec. 4.232 Evidence; form and admissibility.
(a) Parties in interest may offer at a hearing such relevant
evidence as they deem appropriate under the generally accepted rules of
evidence of the State in which the evidence is taken, subject to the
administrative law judge's supervision as to the extent and manner of
presentation of such evidence.
(b) The administrative law judge may admit letters or copies
thereof, affidavits, or other evidence not ordinarily admissible under
the generally accepted rules of evidence, the weight to be attached to
evidence presented in any particular form being within the discretion of
the administrative law judge, taking into consideration all the
circumstances of the particular case.
(c) Stipulations of fact and stipulations of testimony that would be
given by witnesses were such witnesses present, agreed upon by the
parties in interest, may be used as evidence at the hearing.
(d) The administrative law judge may in any case require evidence in
addition to that offered by the parties in interest.
[36 FR 7186, Apr. 15, 1971; 36 FR 7588, Apr. 22, 1971]
Sec. 4.233 Proof of wills, codicils, and revocations.
(a) Self-proved wills. A will executed as provided in Sec. 4.260
may, at the time of its execution, be made self-proved, and testimony of
the witnesses in the probate thereof may be made unnecessary by the
affidavits of the testator and attesting witnesses, made before an
officer authorized to administer oaths, such affidavits to be attached
to such will and to be in form and contents substantially as follows:
State of...................................
County of.................................. ss.
I, ______________________, being first duly sworn, on oath, depose
and say: That I am an ____ (enrolled or unenrolled) member of the
____________________ Tribe of Indians in the State of
____________________; that on the ______ day of ________, 19____, I
requested ____________________ to prepare a will for me; that the
attached will was prepared and I requested ______________________ and
____________________ to act as witnesses thereto; that I declared to
said witnesses that said instrument was my last will and testament; that
I signed said will in the presence of both witnesses and they signed the
same as witnesses in my presence and in the presence of each other; that
said will was read and explained to me (or read by me), after being
prepared and before I signed it and it clearly and accurately expresses
my wishes; and that I willingly made and executed said will as my free
and voluntary act and deed for the purposes therein expressed.
Testator/Testatrix
We, __________________________ and ______________________, each
being first duly sworn, on oath, depose and state: That on the ____ day
of ____________, 19____, ________________ a member of the ____________
Tribe of Indians of the State of ________________, published and
declared the attached instrument to be his/ her last will and testament,
signed the same in the presence of both of us and requested both of us
to sign the same as witnesses; that we, in compliance with his/her
request, signed the same as witnesses in his/her presence and in the
presence of each other; that said testator/
[[Page 71]]
testatrix was not acting under duress, menace, fraud, or undue influence
of any person, so far as we could ascertain, and in our opinion was
mentally capable of disposing of all his/her estate by will.
______________________________________________________________
Witness
______________________________________________________________
Witness
Subscribed and sworn to before me this ________ day of ________,
19____, by ____________________ testator/testatrix, and by
____________________ and ____________________ attesting witnesses.
________________________________________________________________
______________________________________________________________
(Title)
If uncontested, a self-proved will may be approved and distribution
ordered thereunder with or without the testimony of any attesting
witness.
(b) Self-proved codicils and revocations. A codicil to, or a
revocation of, a will may be made self-proved in the same manner as
provided in paragraph (a) of this section with respect to a will.
(c) Will contest. If the approval of a will, codicil thereto, or
revocation thereof is contested, the attesting witnesses who are in the
reasonable vicinity of the place of hearing and who are of sound mind
must be produced and examined. If none of the attesting witnesses
resides in the reasonable vicinity of the place of hearing at the time
appointed for proving the will, the administrative law judge may admit
the testimony of other witnesses to prove the testamentary capacity of
the testator and the execution of the will and, as evidence of the
execution, the administrative law judge may admit proof of the
handwriting of the testator and of the attesting witnesses, or of any of
them. The provisions of Sec. 4.232 are applicable with respect to
remaining issues.
Sec. 4.234 Witnesses, interpreters, and fees.
Parties in interest who desire a witness to testify or an
interpreter to serve at a hearing shall make their own financial and
other arrangements therefor, and subpoenas will be issued where
necessary and proper. The administrative law judge may call witness and
interpreters and order payment out of the estate assets of per diem,
mileage, and subsistence at a rate not to exceed that allowed to
witnesses called in the U.S. District Courts. In hardship situations,
the administrative law judge may order payment of per diem and mileage
for indispensable witnesses and interpreters called for the parties. In
the order for payment he shall specify whether such costs shall be
allocated and charged against the interest of the party calling the
witness or against the estate generally. Costs of administration so
allowed shall have a priority for payment greater than that for any
creditor claims allowed. Upon receipt of such order, the Superintendent
shall pay said sums immediately from the estate account, if such funds
are insufficient, then out of the funds as they accrue to such account
with the proviso that such cost shall be paid in full with a later
allocation against the interest of a party, if such was ordered.
[36 FR 7186, Apr. 15, 1971, as amended at 53 FR 27686, July 22, 1988]
Sec. 4.235 Supplemental hearings.
After the matter has been submitted but prior to the time the
administrative law judge has rendered his decision, the administrative
law judge may upon his own motion or upon motion of any party in
interest schedule a supplemental hearing if he deems it necessary. The
notice shall set forth the purpose of the supplemental hearing and shall
be served upon all parties in interest in the manner provided in
Sec. 4.211. Where the need for such supplemental hearing becomes
apparent during any hearing, the administrative law judge may announce
the time and place for such supplemental hearing to all those present
and no further notice need be given. In that event the records shall
clearly show who was present at the time of the announcement.
Sec. 4.236 Record.
(a) After the completion of the hearing, the administrative law
judge shall make up the official record containing:
(1) A copy of the posted public notice of hearing showing the
posting certifications;
(2) A copy of each notice served on interested parties with proof of
mailing;
[[Page 72]]
(3) The record of the evidence received at the hearing, including
any transcript made of the testimony;
(4) Claims filed against the estate;
(5) Will and codicils, if any;
(6) Inventories and appraisements of the estate;
(7) Pleadings and briefs filed;
(8) Special or interim orders;
(9) Data for heirship finding and family history;
(10) The decision and the administrative law judge's notices
thereof; and
(11) Any other material or documents deemed material by the
administrative law judge.
(b) The administrative law judge shall lodge the original record
with the designated Land Titles and Records Office in accordance with 25
CFR part 150. A duplicate copy shall be lodged with the Superintendent
originating the probate. A partial record may also be furnished to the
Superintendents of other affected agencies. In those cases in which a
hearing transcript has not been prepared, the verbatim recording of the
hearing shall be retained in the office of the administrative law judge
issuing the decision until the time allowed for rehearing or appeal has
expired. In cases in which a transcript is not prepared, the original
record returned to the Land Titles and Records Office shall contain a
statement indicating no transcript was prepared.
[36 FR 7186, Apr. 15, 1971, as amended at 52 FR 26345, July 14, 1987; 52
FR 35557, Sept. 22 1987]
decisions
Sec. 4.240 Decision of administrative law judge and notice thereof.
(a) The administrative law judge shall decide the issues of fact and
law involved in the proceedings and shall incorporate in his decision:
(1) In all cases, the names, birth dates, relationships to the
decedent, and shares of heirs with citations to the law of descent and
distribution in accordance with which the decision is made; or the fact
that the decedent died leaving no legal heirs.
(2) In testate cases, (i) approval or disapproval of the will with
construction of its provisions, (ii) the names and relationship to the
testator of all beneficiaries and a description of the property which
each is to receive;
(3) Allowance or disallowance of claims against the estate;
(4) Whether heirs or devisees are non-Indian, exclusively alien
Indians, or Indians whose property is not subject to Federal
supervision.
(5) A determination of any rights of dower, curtesy or homestead
which may constitute a burden upon the interest of the heirs.
(b) When the administrative law judge issues a decision, he shall
issue a notice thereof to all parties who have or claim any interest in
the estate and shall mail a copy of said notice, together with a copy of
the decision to the Superintendent and to each party in interest
simultaneously. The decision shall not become final and no distribution
shall be made thereunder until the expiration of the 60 days allowed for
the filing of a petition for rehearing by aggrieved parties as provided
in Sec. 4.241.
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 24813, Dec. 23, 1971]
Sec. 4.241 Rehearing.
(a) Any person aggrieved by the decision of the administrative law
judge may, within 60 days after the date on which notice of the decision
is mailed to the interested parties, file with the Superintendent a
written petition for rehearing. Such a petition must be under oath and
must state specifically and concisely the grounds upon which it is
based. If the petition is based upon newly-discovered evidence, it shall
be accompanied by affidavits of witnesses stating fully what the new
testimony is to be. It shall also state justifiable reasons for the
failure to discover and present that evidence, tendered as new, at the
hearings held prior to the issuance of the decision. The Superintendent,
upon receiving a petition for rehearing, shall promptly forward it to
the administrative law judge. The Superintendent shall not pay claims or
distribute the estate while such petition is pending unless otherwise
directed by the administrative law judge.
(b) If proper grounds are not shown, or if the petition is not filed
within the time prescribed in paragraph (a) of this section, the
administrative law judge
[[Page 73]]
shall issue an order denying the petition and shall set forth therein
his reasons therefor. He shall furnish copies of such order to the
petitioner, the Superintendent, and the parties in interest.
(c) If the petition appears to show merit, the administrative law
judge shall cause copies of the petition and supporting papers to be
served on those persons whose interest in the estate might be adversely
affected by the granting of the petition. The administrative law judge
shall allow all persons served a reasonable, specified time in which to
submit answers or legal briefs in opposition to the petition. The
administrative law judge shall then reconsider, with or without hearing
as he may determine, the issues raised in the petition; he may adhere to
the former decision, modify or vacate it, or make such further order as
is warranted.
(d) Upon entry of a final order the administrative law judge shall
lodge the complete record relating to the petition with the title plant
designated under Sec. 4.236(b), and furnish a duplicate record thereof
to the Superintendent.
(e) Successive petitions for rehearing are not permitted, and,
except for the issuance of necessary orders nunc pro tunc to correct
clerical errors in the decision, the administrative law judge's
jurisdiction shall have terminated upon the issuance of a decision
finally disposing of a petition for rehearing. Nothing herein shall be
construed as a bar to the remand of a case by the Board for further
hearing or rehearing after appeal.
(f) At the time the final decision is entered following the filing
of a petition for rehearing, the administrative law judge shall direct a
notice of such action with a copy of the decision to the Superintendent
and to the parties in interest and shall mail the same by regular mail
to the said parties at their addresses of record.
(g) No distribution shall be made under such order for a period of
60 days following the mailing of a notice of decision pending the filing
of a notice of appeal by an aggrieved party as herein provided.
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 24813, Dec. 23, 1971]
Sec. 4.242 Reopening.
(a) Within a period of 3 years from the date of a final decision
issued by an administrative law judge or by the Board but not thereafter
except as provided in Secs. 4.203 and 4.206, any person claiming an
interest in the estate who had no actual notice of the original
proceedings and who was not on the reservation or otherwise in the
vicinity at any time while the public notices of the hearing were posted
may file a petition in writing for reopening of the case. Any such
petition shall be addressed to the administrative law judge and filed at
his headquarters. A copy of such petition shall be furnished also by the
petitioner to the Superintendent. All grounds for the reopening must be
set forth fully. If based on alleged errors of fact, all such
allegations shall be under oath and supported by affidavits.
(b) If the administrative law judge finds that proper grounds are
not shown, he shall issue an order denying the petition and setting
forth the reasons for such denial. Copies of the administrative law
judge's decision shall be mailed to the petitioner, the Superintendent,
and to those persons who share in the estate.
(c) If the petition appears to show merit, the administrative law
judge shall cause copies of the petition and all papers filed by the
petitioner to be served on those persons whose interest in the estate
might be adversely affected by the granting of the petition. Such
persons may resist such petition by filing answers, cross-petitions, or
briefs. Such filings shall be made within such reasonable time periods
as the administrative law judge specifies. The administrative law judge
shall then reconsider, with or without hearing as he may determine,
prior actions taken in the case and may either adhere to, modify, or
vacate the original decision. Copies of the administrative law judge's
decision shall be mailed to the petitioner, to all persons who received
copies of the petition, and to the Superintendent.
(d) To prevent manifest error an administrative law judge may reopen
a case within a period of 3 years from the date of the final decision,
after due notice on his own motion, or on petition
[[Page 74]]
of an officer of the Bureau of Indian Affairs. Copies of the
administrative law judge's decision shall be mailed to all parties in
interest and to the Superintendent.
(e) The administrative law judge may suspend distribution of the
estate or the income therefrom during the pendency of reopening
proceedings by order directed to the Superintendent.
(f) The administrative law judge shall lodge the record made in
disposing of a reopening petition with the title plant designated under
Sec. 4.236(b) and shall furnish a duplicate record thereof to the
Superintendent.
(g) No distribution shall be made under a decision issued pursuant
to paragraph (b), (c), or (d) of this section for a period of 60 days
following the mailing of the copy of the decision as therein provided,
pending the filing of a notice of appeal by an aggrieved party.
(h) If a petition for reopening is filed more than 3 years after the
entry of a final decision in a probate, it shall be allowed only upon a
showing that a manifest injustice will occur; that a reasonable
possibility exists for correction of the error; that the petitioner had
no actual notice of the original proceedings; and that petitioner was
not on the reservation or otherwise in the vicinity at any time while
the public notices were posted. A denial of such petition may be made by
the administrative law judge on the basis of the petition and available
Bureau records. No such petition shall be granted, however, unless the
administrative law judge has caused copies of the petition and all other
papers filed by the petitioner to be served on those persons whose
interest in the estate might be adversely affected by the granting of
the petition, and after allowing such persons an opportunity to resist
such petition by filing answers, cross petitions or briefs as provided
in (c) of this rule.
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 24813, Dec. 23, 1971; 43
FR 5514, Feb. 9, 1978]
claims
Sec. 4.250 Filing and proof of creditor claims; limitations.
(a) All claims against the estate of a deceased Indian held by
creditors chargeable with notice of the hearing under Sec. 4.211(c)
shall be filed with either the Superintendent or the administrative law
judge prior to the conclusion of the first hearing, and if they are not
so filed, they shall be forever barred.
(b) The claims of non-Indians shall be filed in triplicate, itemized
in detail as to dates and amounts of charges for purchases or services
and dates and amounts of payments on account. Such claims shall show the
names and addresses of all parties in addition to the decedent from whom
payment might be sought. Each claim shall be supplemented by an
affidavit, in triplicate, of the claimant or someone in his behalf that
the amount claimed is justly due from the decedent, that no payments
have been made on the account which are not credited thereon as shown by
the itemized statement, and that there are no offsets to the knowledge
of the claimant.
(c) Claims of individual Indians against the estate of a deceased
Indian may be presented in the manner set forth in paragraph (b) of this
section or by oral evidence at the hearing where the claimant shall be
subject to examination under oath relative thereto.
(d) Claims for care may not be allowed except upon clear and
convincing evidence that the care was given on a promise of compensation
and that compensation was expected.
(e) A claim, whether that of an Indian or non-Indian, based on a
written or oral contract, express or implied, where the claim for relief
has existed for such a period as to be barred by the State laws at date
of decedent's death, cannot be allowed.
(f) Claims sounding in tort not reduced to judgment in a court of
competent jurisdiction, and other unliquidated claims not properly
within the jurisdiction of a probate forum, may be barred from
consideration by an administrative law judge's interim order.
[[Page 75]]
(g) Claims of a State or any of its political subdivisions on
account of social security or old-age assistance payments shall not be
allowed.
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 24813, Dec. 23, 1971]
Sec. 4.251 Priority of claims.
After allowance of the costs of administration, claims shall be
allowed:
(a) Priority in payment shall be allowed in the following order
except as otherwise provided in paragraph (b) of this section:
(1) Claims for expenses for last illness not in excess of $500, and
for funeral expenses not in excess of $500;
(2) Claims of unsecured indebtedness to the United States or any of
its agencies;
(3) Claims of unsecured indebtedness to a Tribe or to any of its
subsidiary organizations;
(4) Claims of general creditors, including that portion of expenses
of last illness not previously authorized in excess of $500 and that
portion of funeral charges not previously authorized in excess of $500.
(b) The preference of claims may be deferred, in the discretion of
the administrative law judge, in making adjustments or compromises
beneficial to the estate.
(c) No claims of general creditors shall be allowed if the value of
the estate is $2,500 or less and the decedent is survived by a spouse or
by one or more minor children. In no event shall claims be allowed in an
aggregate amount which is in excess of the valuation of the estate; the
general creditors' claims may be prorated or disallowed entirely, and
the preferred claims may be prorated subject to the limitations
contained in paragraph (d) of this section.
(d) If the income of the estate is not sufficient to permit the
payment of allowed claims of general creditors within 3 years from the
date of allowance; or to permit payment of the allowed claims of
preferred creditors, except the United States, within 7 years from the
date of allowance, then the unpaid balance of such claims shall not be
enforceable against the estate or any of its assets.
(e) In the event that it is determined that a part or portion of the
estate is to lose its trust character pursuant to findings made under
Sec. 4.206, then the administrative law judge may in his discretion
prorate all claims and reduce the allowance thereof on a ratio
comparable with that existing between the total value of the estate and
the value of that portion which is to lose its trust character.
[36 FR 7186, Apr. 15, 1971, as amended at 51 FR 35219, Oct. 2, 1986]
Sec. 4.252 Property subject to claims.
Claims are payable from income from the lands remaining in trust.
Further, except as prohibited by law, all trust moneys of the deceased
on hand or accrued at time of death, including bonds, unpaid judgments,
and accounts receivable, may be used for the payment of claims, whether
the right, title, or interest that is taken by an heir, devisee, or
legatee remains in or passes out of trust.
wills
Sec. 4.260 Making; review as to form; revocation.
(a) An Indian of the age of 18 years or over and of testamentary
capacity, who has any right, title, or interest in trust property, may
dispose of such property by a will executed in writing and attested by
two disinterested adult witnesses.
(b) When an Indian executes a will and submits the same to the
Superintendent of the Agency, the Superintendent shall forward it to the
Office of the Solicitor for examination as to adequacy of form, and for
submission by the Office of the Solicitor to the Superintendent of any
appropriate comments. The will or codicil or any replacement or copy
thereof may be retained by the Superintendent at the request of the
testator or testatrix for safekeeping. A will shall be held in absolute
confidence, and no person other than the testator shall admit its
existence or divulge its contents prior to the death of the testator.
(c) The testator may, at any time during his lifetime, revoke his
will by a subsequent will or other writing executed with the same
formalities as are
[[Page 76]]
required in the case of the execution of a will, or by physically
destroying the will with the intention of revoking it. No will that is
subject to the regulations of this subpart shall be deemed to be revoked
by operation of the law of any State.
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 21284, Nov. 5, 1971; 36
FR 24813, Dec. 23, 1971; 53 FR 48648, Dec. 2, 1988]
Sec. 4.261 Anti-lapse provisions.
When an Indian testator devises or bequeaths trust property to any
of his grandparents or to the lineal descendant of a grandparent, and
the devisee or legatee dies before the testator leaving lineal
descendants, such descendants shall take the right, title, or interest
so given by the will per stirpes. Relationship by adoption shall be
equivalent to relationship by blood.
[54 FR 8329, Feb. 28, 1989]
Sec. 4.262 Felonious taking of testator's life.
No person who has been finally convicted of feloniously causing the
death or taking the life of, or procuring another person to take the
life of, the testator, shall take directly or indirectly any devise or
legacy under deceased's will. All right, title, and interest existing in
such a situation shall vest and be determined as if the person convicted
never existed, notwithstanding Sec. 4.261.
custody and distribution of estates
Sec. 4.270 Custody and control of trust estates.
The Superintendent may assume custody or control of all trust
personal property of a deceased Indian and he may take such action,
including sale thereof, as in his judgment is necessary for the benefit
of the estate, the heirs, legatees, and devisees, pending entry of the
decision provided for in Sec. 4.240, Sec. 4.241, or Sec. 4.312 or
decisions in the settlement of the estate as provided for in Sec. 4.271.
All expenses, including expenses of roundup, branding, care, and feeding
of livestock, shall be a proper charge against the estate and may be
paid by the Superintendent from those funds of the deceased that are
under his control, or from the proceeds of a sale of the property or a
part thereof.
[36 FR 7186, Apr. 15, 1971, as amended at 55 FR 43133, Oct. 26, 1990]
Sec. 4.271 Summary distribution.
When an Indian dies intestate leaving only trust personal property
or cash of a value of less than $5,000, not including any interest that
may have accrued after the death of the decedent, the Bureau of Indian
Affairs Superintendent will assemble the apparent heirs and hold an
informal hearing to determine the proper distribution of the estate,
unless it appears that the decedent left a last will and testament
intending to devise his estate, and/or the decedent died possessed of an
interest in trust or restricted real property. A memorandum covering the
hearing will be retained in the agency files showing the date of the
decedent's death, the date of the hearing, the persons notified and
attending the hearing, the amount on hand, and its disposition. In the
disposition of such funds, the Superintendent will dispose of creditors'
claims as provided in Sec. 4.250 and Sec. 4.251. The Superintendent will
credit the balance, if any, to the legal heirs. When requested by the
BIA Superintendent, an administrative law judge may assume jurisdiction
to dispose of creditors' claims or to make distribution determinations
if the administrative law judge finds that exceptional circumstances
exist. A party in interest may appeal a distribution determination in
accordance with 43 CFR 4.320.
[64 FR 46152, Aug. 24, 1999]
Sec. 4.272 Omitted property.
(a) When, subsequent to the issuance of a decision under Sec. 4.240
or Sec. 4.312, it is found that trust property or interest therein
belonging to a decedent has not been included in the inventory, the
inventory can be modified either administratively by the Commissioner of
the Bureau of Indian Affairs or by a modification order prepared by him
for the administrative law judge's approval and signature to include
such omitted property for distribution pursuant to the original
decision. Copies of such modifications shall be furnished to the
[[Page 77]]
Superintendent and to all those persons who share in the estate.
(b) When the property to be included takes a different line of
descent from that shown in the original decision, the Commissioner of
the Bureau of Indian Affairs shall notify the administrative law judge
who shall proceed to hold hearings if necessary and shall issue a
decision under Sec. 4.240. The record of any such proceeding shall be
lodged with the title plant designated under Sec. 4.236(b).
[36 FR 7186, Apr. 15, 1971; 36 FR 7588, Apr. 22, 1971, as amended at 55
FR 43133, Oct. 26, 1990]
Sec. 4.273 Improperly included property.
(a) When subsequent to a decision under Sec. 4.240 or Sec. 4.312, it
is found that property has been improperly included in the inventory of
an estate, the inventory shall be modified to eliminate such property. A
petition for modification may be filed by the Superintendent of the
Agency where the property is located, or by any party in interest.
(b) The administrative law judge shall review the record of the
title upon which the modification is to be based, and enter an
appropriate decision. If the decision is entered without a hearing, the
administrative law judge shall give notice of his action to all parties
whose rights are adversely affected allowing them 60 days in which to
show cause why the decision should not then become final.
(c) Where appropriate the administrative law judge may conduct a
hearing at any stage of the modification proceeding. Any such hearing
shall be scheduled and conducted in accordance with the rules of this
subpart. The administrative law judge shall enter a final decision based
on his findings, modifying or refusing to modify the property inventory
and his decision shall become final at the end of 60 days from the date
it is mailed unless a notice of appeal is filed by an aggrieved party
within such period. Notice of entry of the decision shall be given in
accordance with Sec. 4.240(b).
(d) A party aggrieved by the administrative law judge's decision may
appeal to the Board pursuant to the procedures in Secs. 4.310 through
4.323.
(e) The record of all proceedings shall be lodged with the title
plant designated under Sec. 4.236(b).
[36 FR 24814, Dec. 23, 1971, as amended at 55 FR 43133, Oct. 26, 1990]
Sec. 4.274 Distribution of estates.
(a) Unless the Superintendent shall have received a petition for
rehearing filed pursuant to the requirements of Sec. 4.241(a) or a copy
of a notice of appeal filed pursuant to the requirements of
Sec. 4.320(b), he shall pay allowed claims, distribute the estate, and
take all other necessary action directed by the administrative law
judge's final order.
(b) The Superintendent may not pay claims nor make distribution of
an estate during the pendency of proceedings under Sec. 4.241 or
Sec. 4.242 unless the administrative law judge orders otherwise in
writing. The Board may, at any time, authorize the administrative law
judge to issue interim orders for payment of claims or for partial
distribution during the pendency of proceedings on appeal.
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 24814, Dec. 23, 1971; 55
FR 43133, Oct. 26, 1990]
miscellaneous
Sec. 4.281 Claims for attorney fees.
(a) Attorneys representing Indians in proceedings under these
regulations may be allowed fees therefor by the administrative law
judge. At the administrative law judge's discretion such fees may be
chargeable against the interests of the party thus represented, or where
appropriate, they may be taxed as a cost of administration. Petitions
for allowance of fees shall be filed prior to the close of the last
hearing and shall be supported by such proof as is required by the
administrative law judge. In determining attorney fees, consideration
shall be given to the fact that the property of the decedent is
restricted or held in trust and that it is the duty of the Department to
protect the rights of all parties in interest.
(b) Nothing herein shall prevent an attorney from petitioning for
additional fees to be considered at the disposition of a petition for
rehearing and again after an appeal on the merits. An order allowing an
attorney's fees is
[[Page 78]]
subject to a petition for rehearing and to an appeal.
Sec. 4.282 Guardians for incompetents.
Minors and other legal incompetents who are parties in interest
shall be represented at all hearings by legally appointed guardians, or
by guardians ad litem appointed by the administrative law judge.
Tribal Purchase of Interests Under Special Statutes
Source: 45 FR 50331, July 29, 1980, unless otherwise noted.
Sec. 4.300 Authority and scope.
(a) The rules and procedures set forth in Secs. 4.300 through 4.308
apply only to proceedings in Indian probate which relate to the tribal
purchase of a decedent's interests in trust and restricted land as
provided by:
(1) The Act of December 31, 1970 (Pub. L. 91-627; 84 Stat. 1874; 25
U.S.C. 607 (1976)), amending section 7 of the Act of August 9, 1946 (60
Stat. 968), with respect to trust or restricted land within the Yakima
Reservation or within the area ceded by the Treaty of June 9, 1855 (12
Stat. 1951);
(2) The Act of August 10, 1972 (Pub. L. 92-377; 86 Stat. 530), with
respect to trust or restricted land within the Warm Springs Reservation
or within the area ceded by the Treaty of June 25, 1855 (12 Stat. 37);
and
(3) The Act of September 29, 1972 (Pub. L. 92-443; 86 Stat. 744),
with respect to trust or restricted land within the Nez Perce Indian
Reservation or within the area ceded by the Treaty of June 11, 1855 (12
Stat. 957).
(b)(1) In the exercise of probate authority, an administrative law
judge shall determine: (i) The entitlement of a tribe to purchase a
decedent's interests in trust or restricted land under the statutes;
(ii) the entitlement of a surviving spouse to reserve a life estate in
one-half of the surviving spouse's interests which have been purchased
by a tribe; and (iii) the fair market value of such interests, including
the value of any life estate reserved by a surviving spouse.
(2) In the determination under paragraph (b)(1) of this section of
the entitlement of a tribe to purchase the interests of an heir or
devisee, the issues of: (i) Enrollment or refusal of the tribe to enroll
a specific individual and (ii) specification of blood quantum, where
pertinent, shall be determined by the official tribal roll which shall
be binding upon the administrative law judge. For good cause shown, the
administrative law judge may stay the probate proceeding to permit an
aggrieved party to pursue an enrollment application, grievance, or
appeal through the established procedures applicable to the tribe.
Sec. 4.301 Appraisal report.
(a) Order for appraisal; date for determining fair market value. In
all probates, at the earliest possible stage of the proceeding before
issuance of a probate decision, when the record reveals to the
Superintendent: (1) That the decedent owned interests in land located on
one or more of those reservations designated in Sec. 4.300 and (2) that
any one or more of the probable heirs or devisees, who may become a
distributee of such interests upon completion of the probate proceeding,
is not enrolled in or does not have the required blood quantum in the
tribe of the reservation where the land is located to hold such
interests against a claim thereto made by the tribe, the Superintendent
shall order an appraisal of the decedent's interests. If there is a
surviving spouse whose interests may be subject to the tribal option,
the appraisal shall include the value of a life estate based on the life
of the surviving spouse in one half of such interests. The appraisal
shall be made on the basis of the fair market value of the property,
including fixed improvements, as of the date of decedent's death.
(b) Who may conduct the appraisal; submission of the appraisal
report to the administrative law judge. Qualified appraisers shall
appraise the property and submit an appraisal with a summary thereof to
the Superintendent. The Superintendent shall file the appraisal report
with the administrative law judge and retain a copy in the
Superintendent's office. Interested parties may examine and copy, at
their expense, the appraisal report at the office
[[Page 79]]
of the Superintendent or administrative law judge.
Sec. 4.302 Conclusion of probate and tribal exercise of statutory option.
(a) Conclusion of probate; findings in the probate decision. When a
decedent is shown to have owned land interests in any one or more of the
reservations mentioned in the statutes enumerated in Sec. 4.300, the
probate proceeding relative to the determination of heirs, approval or
disapproval of a will, and the claims of creditors shall first be
concluded as final for the Department in accordance with Secs. 4.200
through 4.282 and Secs. 4.310 through 4.323. This decision will be
referred to herein as the ``probate decision.'' At the probate hearing a
finding shall be made on the record showing those interests in land, if
any, which are subject to the tribal option. The finding shall be
reduced to writing in the probate decision setting forth the apparent
rights of the tribe as against affected heirs or devisees and the right
of a surviving spouse whose interests are subject to the tribal option
to reserve a life estate in one-half of such interests. If the finding
is that there are no interests subject to the tribal option, the
decision shall so state. A copy of the probate decision, to which shall
be attached a copy of the appraisal summary, shall be distributed to all
parties in interest in accordance with Secs. 4.201 and 4.240.
(b) Tribal exercise of statutory option. A tribe may purchase all or
a part of the available interests specified in the probate decision
within 60 days from the date of the probate decision unless a petition
for rehearing or a demand for hearing has been filed in accordance with
Sec. 4.304 or 4.305. If a petition for rehearing or a demand for hearing
has been filed, a tribe may purchase all or a part of the available
interests specified in the probate decision within 20 days from the date
of the decision on rehearing or hearing, whichever is applicable. A
tribe may not, however, claim an interest less than the decedent's total
interest in any one individual tract. The tribe shall file a written
notce of purchase with the Superintendent, together with the tribe's
certification that copies thereof have been mailed on the same date to
the administrative law judge and to the affected heirs or devisees.
Upon failure to timely file a notice of purchase, the right to
distribution of all unclaimed interests shall accrue to the heirs or
devisees.
[36 FR 7186, Apr. 15, 1971, as amended at 55 FR 43133, Oct. 26, 1990; 55
FR 46132, Nov. 1, 1990]
Sec. 4.303 Notice by surviving spouse to reserve a life estate.
When the heir or devisee whose interests are subject to the tribal
option is a surviving spouse, the spouse may reserve a life estate in
one-half of such interests. The spouse shall file a written notice to
reserve with the Superintendent within 30 days after the tribe has
exercised its option to purchase the interest in question, together with
a certification that copies thereof have been mailed on the same date to
the administrative law judge and the tribe. Failure to timely file a
notice to reserve a life estate shall constitute a waiver thereof.
Sec. 4.304 Rehearing.
Any party in interest aggrieved by the probate decision may, within
60 days from the date of the probate decision, file with the
administrative law judge a written petition for rehearing in accordance
with Sec. 4.241.
Sec. 4.305 Hearing.
(a) Demand for hearing. Any party in interest aggrieved by the
exercise of the tribal option to purchase the interests in question or
the valuation of the interests as set forth in the appraisal report may,
within 60 days from the date of the probate decision or 60 days from the
date of the decision on rehearing, whichever is applicable, file with
the administrative law judge a written demand for hearing, together with
a certification that copies thereof have been mailed on the same date to
the Superintendent and to each party in interest; provided, however,
that an aggrieved party shall have at least 20 days from the date the
tribe exercises its option to purchase available interests to file such
a demand. The demand must state specifically and concisely the grounds
upon which it is based.
[[Page 80]]
(b) Notice; burden of proof. The administrative law judge shall,
upon receipt of a demand for hearing, set a time and place therefor and
shall mail notice thereof to all parties in interest not less than 30
days in advance; provided, however, that such date shall be set after
the expiration of the 60-day period fixed for the filing of the demand
for hearing as provided in Sec. 4.305(a). At the hearing each party
challenging the tribe's claim to purchase the interests in question or
the valuation of the interests as set forth in the appraisal report
shall have the burden of proving his or her position.
(c) Decision after hearing; appeal. Upon conclusion of the hearing,
the administrative law judge shall issue a decision which shall
determine all of the issues including, but not limited to, a judgment
establishing the fair market value of the interests purchased by the
tribe, including any adjustment thereof made necessary by the surviving
spouse's decision to reserve a life estate in one-half of the interests.
The decision shall specify the right of appeal to the Board of Indian
Appeals within 60 days from the date of the decision in accordance with
Secs. 4.310 through 4.323. The administrative law judge shall lodge the
complete record relating to the demand for hearing with the title plant
as provided in Sec. 4.236(b), furnish a duplicate record thereof to the
Superintendent, and mail a notice of such action together with a copy of
the decision to each party in interest.
[36 FR 7186, Apr. 15, 1971, as amended at 55 FR 43133, Oct. 26, 1990]
Sec. 4.306 Time for payment.
A tribe shall pay the full fair market value of the interests
purchased, as set forth in the appraisal report or as determined after
hearing in accordance with Sec. 4.305, whichever is applicable, within 2
years from the date of decedent's death or within 1 year from the date
of notice of purchase, whichever comes later.
Sec. 4.307 Title.
Upon payment by the tribe of the interests purchased, the
Superintendent shall issue a certificate to the administrative law judge
that this has been done and file therewith such documents in support
thereof as the administrative law judge may require. The administrative
law judge shall then issue an order that the United States holds title
to such interests in trust for the tribe, lodge the complete record,
including the decision, with the title plant as provided in
Sec. 4.236(b), furnish a duplicate record thereof to the Superintendent,
and mail a notice of such action together with a copy of the decision to
each party in interest.
Sec. 4.308 Disposition of income.
During the pendency of the probate and up to the date of transfer of
title to the United States in trust for the tribe in accordance with
Sec. 4.307, all income received or accrued from the land interests
purchased by the tribe shall be credited to the estate.
Cross Reference: See 25 CFR part 2 for procedures for appeals to
Area Directors and to the Commissioner of the Bureau of Indian Affairs.
General Rules Applicable to Proceedings on Appeal Before the Interior
Board of Indian Appeals
Source: 54 FR 6485, Feb. 10, 1989, unless otherwise noted.
Sec. 4.310 Documents.
(a) Filing. The effective date for filing a notice of appeal or
other document with the Board during the course of an appeal is the date
of mailing or the date of personal delivery, except that a motion for
the Board to assume jurisdiction over an appeal under 25 CFR 2.20(e)
shall be effective the date it is received by the Board.
(b) Service. Notices of appeal and pleadings shall be served on all
parties in interest in any proceeding before the Interior Board of
Indian Appeals by the party filing the notice or pleading with the
Board. Service shall be accomplished upon personal delivery or mailing.
Where a party is represented in an appeal by an attorney or other
representative authorized under 43 CFR 1.3, service of any document on
the attorney or representative is service on the party. Where a party is
represented by more than one attorney, service on
[[Page 81]]
any one attorney is sufficient. The certificate of service on an
attorney or representative shall include the name of the party whom the
attorney or representative represents and indicate that service was made
on the attorney or representative.
(c) Computation of time for filing and service. Except as otherwise
provided by law, in computing any period of time prescribed for filing
and serving a document, the day upon which the decision or document to
be appealed or answered was served or the day of any other event after
which a designated period of time begins to run is not to be included.
The last day of the period so computed is to be included, unless it is a
Saturday, Sunday, Federal legal holiday, or other nonbusiness day, in
which event the period runs until the end of the next day which is not a
Saturday, Sunday, Federal legal holiday, or other nonbusiness day. When
the time prescribed or allowed is 7 days or less, intermediate
Saturdays, Sundays, Federal legal holidays, and other nonbusiness days
shall be excluded in the computation.
(d) Extensions of time. (1) The time for filing or serving any
document except a notice of appeal may be extended by the Board.
(2) A request to the Board for an extension of time must be filed
within the time originally allowed for filing.
(3) For good cause the Board may grant an extension of time on its
own initiative.
(e) Retention of documents. All documents received in evidence at a
hearing or submitted for the record in any proceeding before the Board
will be retained with the official record of the proceeding. The Board,
in its discretion, may permit the withdrawal of original documents while
a case is pending or after a decision becomes final upon conditions as
required by the Board.
Sec. 4.311 Briefs on appeal.
(a) The appellant may file an opening brief within 30 days after
receipt of the notice of docketing. Appellant shall 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 shall have 30 days from receipt of
appellant's brief to file answer briefs, copies of which shall be served
upon the appellant or counsel and all other parties in interest. A
certificate showing service of the answer brief upon all parties or
counsel shall be attached to the answer filed with the Board.
(b) Appellant may reply to an answering brief within 15 days from
its receipt. A certificate showing service of the reply brief upon all
parties or counsel shall be attached to the reply filed with the Board.
Except by special permission of the Board, no other briefs will be
allowed on appeal.
(c) The Bureau of Indian Affairs shall be considered an interested
party in any proceeding before the Board. The Board may request that the
Bureau 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 shall not be
less than the appropriate period of time established in this section.
Sec. 4.312 Decisions.
Decisions of the Board will be made in writing and will set forth
findings of fact and conclusions of law. The decision may adopt, modify,
reverse or set aside any proposed finding, conclusion or order of an
official of the Bureau of Indian Affairs or an administrative law judge.
Distribution of decisions shall 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 shall be given immediate effect.
Sec. 4.313 Amicus Curiae; intervention; joinder motions.
(a) Any interested person or Indian tribe desiring to intervene or
to join other parties or to appear as amicus curiae or to obtain an
order in an appeal before the Board shall apply in writing to the Board
stating the
[[Page 82]]
grounds for the action sought. Permission to intervene, to join parties,
to appear, or for other relief, may be granted for purposes and subject
to limitations established by the Board. This section shall 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 shall be served in the same manner as appeal briefs.
Sec. 4.314 Exhaustion of administrative remedies.
(a) No decision of an administrative law judge or an official of the
Bureau of Indian Affairs, which at the time of its rendition is subject
to appeal to the Board, shall be considered final so as to constitute
agency action subject to judicial review under 5 U.S.C. 704, unless made
effective pending decision on appeal by order of the Board.
(b) No further appeal will lie within the Department from a decision
of the Board.
(c) The filing of a petition for reconsideration is not required to
exhaust administrative remedies.
[54 FR 6485, Feb. 10, 1989; 54 FR 7504, Feb. 21, 1989]
Sec. 4.315 Reconsideration.
(a) Reconsideration of a decision of the Board will be granted only
in extraordinary circumstances. Any party to the decision may petition
for reconsideration. The petition must be filed with the Board within 30
days from the date of the decision and shall 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 shall not stay the effect of any
decision or order and shall not affect the finality of any decision or
order for purposes of judicial review, unless so ordered by the Board.
Sec. 4.316 Remands from courts.
Whenever any matter is remanded from any court to the Board for
further proceedings, the Board will either remand the matter to an
administrative law judge or to the Bureau of Indian Affairs, or to the
extent the court's directive and time limitations will permit, the
parties shall be allowed an opportunity to submit to the Board a report
recommending procedures for it to follow to comply with the court's
order. The Board will enter special orders governing matters on remand.
Sec. 4.317 Standards of conduct.
(a) Inquiries about cases. All inquiries with respect to any matter
pending before the Board shall be made to the Chief Administrative Judge
of the Board or the administrative judge assigned the matter.
(b) Disqualification. An administrative judge may withdraw from a
case in accordance with standards found in the recognized canons of
judicial ethics if the judge deems such action appropriate. If, prior to
a decision of the Board, a party files an affidavit of personal bias or
disqualification with substantiating facts, and the administrative judge
concerned does not withdraw, the Director of the Office of Hearings and
Appeals shall determine the matter of disqualification.
Sec. 4.318 Scope of review.
An appeal shall be limited to those issues which were before the
administrative law judge upon the petition for rehearing, reopening, or
regarding tribal purchase of interests, or before the official of the
Bureau of Indian Affairs on review. However, except as specifically
limited in this part or in title 25 of the Code of Federal Regulations,
the Board shall not be limited in its scope of review and may exercise
the inherent authority of the Secretary to correct a manifest injustice
or error where appropriate.
Appeals to the Board of Indian Appeals in Probate Matters
Source: 54 FR 6487, Feb. 10, 1989, unless otherwise noted.
Sec. 4.320 Who may appeal.
A party in interest has a right to appeal to the Board of Indian
Appeals from an order of an administrative law judge on a petition for
rehearing, a petition for reopening, or regarding tribal purchase of
interests in a deceased Indian's trust estate, and also from a
[[Page 83]]
summary distribution order made by a Bureau of Indian Affairs
Superintendent or an administrative law judge pursuant to Sec. 4.271.
(a) Notice of Appeal. Within 60 days from the date of the decision,
an appellant shall file a written notice of appeal signed by appellant,
appellant's attorney, or other qualified representative as provided in
43 CFR 1.3, with the Board of Indian Appeals, Office of Hearings and
Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard,
Arlington, Virginia 22203. A statement of the errors of fact and law
upon which the appeal is based shall be included in either the notice of
appeal or in any brief filed. The notice of appeal shall include the
names and addresses of parties served. A notice of appeal not timely
filed shall be dismissed for lack of jurisdiction.
(b) Service of copies of notice of appeal. The appellant shall
personally deliver or mail the original notice of appeal to the Board of
Indian Appeals. A copy shall be served upon the administrative law judge
whose decision is appealed as well as all interested parties. The notice
of appeal filed with the Board shall include a certification that
service was made as required by this section.
(c) Action by administrative law judge; record inspection. The
administrative law judge, upon receiving a copy of the notice of appeal,
shall notify the Superintendent concerned to return the duplicate record
filed under Secs. 4.236(b) and 4.241(d), or under Sec. 4.242(f) of this
part, to the Land Titles and Records Office designated under
Sec. 4.236(b) of this part. The duplicate record shall be conformed to
the original by the Land Titles and Records Office and shall thereafter
be available for inspection either at the Land Titles and Records Office
or at the office of the Superintendent. In those cases in which a
transcript of the hearing was not prepared, the administrative law judge
shall have a transcript prepared which shall be forwarded to the Board
within 30 days from receipt of a copy of the notice of appeal.
[54 FR 6487, Feb. 10, 1989, as amended at 64 FR 46152, Aug. 24, 1999]
Sec. 4.321 Notice of transmittal of record on appeal.
The original record on appeal shall be forwarded by the Land Titles
and Records Office to the Board by certified mail. Any objection to the
record as constituted shall be filed with the Board within 15 days of
receipt of the notice of docketing issued under Sec. 4.332 of this part.
Sec. 4.322 Docketing.
The appeal shall be docketed by the Board upon receipt of the
administrative record from the Land Titles and Records Office. All
interested parties as shown by the record on appeal shall be notified of
the docketing. The docketing notice shall specify the time within which
briefs may be filed and shall cite the procedural regulations governing
the appeal.
Sec. 4.323 Disposition of the record.
Subsequent to a decision of the Board, other than remands, the
record filed with the Board and all documents added during the appeal
proceedings, including any transcripts prepared because of the appeal
and the Board's decision, shall be forwarded by the Board to the Land
Titles and Records Office designated under Sec. 4.236(b) of this part.
Upon receipt of the record by the Land Titles and Records Office, the
duplicate record required by Sec. 4.320(c) of this part shall be
conformed to the original and forwarded to the Superintendent concerned.
Appeals to the Board of Indian Appeals from Administrative Actions of
Officials of the Bureau of Indian Affairs: Administrative Review in
Other Indian Matters Not Relating to Probate Proceedings
Source: 54 FR 6487, Feb. 10, 1989, unless otherwise noted.
Sec. 4.330 Scope.
(a) The definitions set forth in 25 CFR 2.2 apply also to these
special rules. These regulations apply to the practice and procedure
for: (1) Appeals to the Board of Indian Appeals from administrative
actions or decisions of officials of the Bureau of Indian Affairs issued
under regulations in 25 CFR
[[Page 84]]
chapter 1, and (2) administrative review by the Board of Indian Appeals
of other matters pertaining to Indians which are referred to it for
exercise of review authority of the Secretary or the Assistant
Secretary--Indian Affairs.
(b) Except as otherwise permitted by the Secretary or the Assistant
Secretary--Indian Affairs by special delegation or request, the Board
shall not adjudicate:
(1) Tribal enrollment disputes;
(2) Matters decided by the Bureau of Indian Affairs through exercise
of its discretionary authority; or
(3) Appeals from decisions pertaining to final recommendations or
actions by officials of the Minerals Management Service, unless the
decision is based on an interpretation of Federal Indian law (decisions
not so based which arise from determinations of the Minerals Management
Service, are appealable to the Interior Board of Land Appeals in
accordance with 43 CFR 4.410).
Sec. 4.331 Who may appeal.
Any interested party affected by a final administrative action or
decision of an official of the Bureau of Indian Affairs issued under
regulations in title 25 of the Code of Federal Regulations may appeal to
the Board of Indian Appeals, except--
(a) To the extent that decisions which are subject to appeal to a
higher official within the Bureau of Indian Affairs must first be
appealed to that official;
(b) Where the decision has been approved in writing by the Secretary
or Assistant Secretary--Indian Affairs prior to promulgation; or
(c) Where otherwise provided by law or regulation.
Sec. 4.332 Appeal to the Board; how taken; mandatory time for filing; preparation assistance; requirement for bond.
(a) A notice of appeal shall be in writing, signed by the appellant
or by his attorney of record or other qualified representative as
provided by 43 CFR 1.3, and filed with the Board of Indian Appeals,
Office of Hearings and Appeals, U.S. Department of the Interior, 4015
Wilson Boulevard, Arlington, Virginia 22203, within 30 days after
receipt by the appellant of the decision from which the appeal is taken.
A copy of the notice of appeal shall simultaneously be filed with the
Assistant Secretary--Indian Affairs. As required by Sec. 4.333 of this
part, the notice of appeal sent to the Board shall certify that a copy
has been sent to the Assistant Secretary--Indian Affairs. A notice of
appeal not timely filed shall be dismissed for lack of jurisdiction. A
notice of appeal shall include:
(1) A full identification of the case;
(2) A statement of the reasons for the appeal and of the relief
sought; and
(3) The names and addresses of all additional interested parties,
Indian tribes, tribal corporations, or groups having rights or
privileges which may be affected by a change in the decision, whether or
not they participated as interested parties in the earlier proceedings.
(b) In accordance with 25 CFR 2.20(c) a notice of appeal shall not
be effective for 20 days from receipt by the Board, during which time
the Assistant Secretary--Indian Affairs may decide to review the appeal.
If the Assistant Secretary--Indian Affairs properly notifies the Board
that he has decided to review the appeal, any documents concerning the
case filed with the Board shall be transmitted to the Assistant
Secretary--Indian Affairs.
(c) When the appellant is an Indian or Indian tribe not represented
by counsel, the official who issued the decision 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.
Sec. 4.333 Service of notice of appeal.
(a) On or before the date of filing of the notice of appeal the
appellant shall serve a copy of the notice upon each known interested
party, upon the official of the Bureau of Indian Affairs from whose
decision the appeal is taken, and upon the Assistant Secretary--Indian
Affairs. The notice of
[[Page 85]]
appeal filed with the Board shall certify that service was made as
required by this section and shall show the names and addresses of all
parties served. If the appellant is an Indian or an Indian tribe not
represented by counsel, the appellant may request the official of the
Bureau whose decision is appealed to assist in service of copies of the
notice of appeal and any supporting documents.
(b) The notice of appeal will be considered to have been served upon
the date of personal service or mailing.
Sec. 4.334 Extensions of time.
Requests for extensions of time to file documents may be granted
upon a showing of good cause, except for the time fixed for filing a
notice of appeal which, as specified in Sec. 4.332 of this part, may not
be extended.
Sec. 4.335 Preparation and transmittal of record by official of the Bureau of Indian Affairs.
(a) Within 20 days after receipt of a notice of appeal, or upon
notice from the Board, the official of the Bureau of Indian Affairs
whose decision is appealed shall assemble and transmit the record to the
Board. The record on appeal shall include, without limitation, copies of
transcripts of testimony taken; all original documents, petitions, or
applications by which the proceeding was initiated; all supplemental
documents which set forth claims of interested parties; and all
documents upon which all previous decisions were based.
(b) The administrative record shall include a Table of Contents
noting, at a minimum, inclusion of the following:
(1) The decision appealed from;
(2) The notice of appeal or copy thereof; and
(3) Certification that the record contains all information and
documents utilized by the deciding official in rendering the decision
appealed.
(c) If the deciding official receives notification that the
Assistant Secretary--Indian Affairs has decided to review the appeal
before the administrative record is transmitted to the Board, the
administrative record shall be forwarded to the Assistant Secretary--
Indian Affairs rather than to the Board.
Sec. 4.336 Docketing.
An appeal shall be assigned a docket number by the Board 20 days
after receipt of the notice of appeal unless the Board has been properly
notified that the Assistant Secretary--Indian Affairs has assumed
jurisdiction over the appeal. A notice of docketing shall be sent to all
interested parties as shown by the record on appeal upon receipt of the
administrative record. Any objection to the record as constituted shall
be filed with the Board within 15 days of receipt of the notice of
docketing. The docketing notice shall specify the time within which
briefs shall be filed, cite the procedural regulations governing the
appeal and include a copy of the Table of Contents furnished by the
deciding official.
Sec. 4.337 Action by the Board.
(a) The Board may make a final decision, or where the record
indicates a need for further inquiry to resolve a genuine issue of
material fact, the Board may require a hearing. All hearings shall be
conducted by an administrative law judge of the Office of Hearings and
Appeals. The Board may, in its discretion, grant oral argument before
the Board.
(b) Where the Board finds that one or more issues involved in an
appeal or a matter referred to it were decided by the Bureau of Indian
Affairs based upon the exercise of discretionary authority committed to
the Bureau, and the Board has not otherwise been permitted to adjudicate
the issue(s) pursuant to Sec. 4.330(b) of this part, the Board shall
dismiss the appeal as to the issue(s) or refer the issue(s) to the
Assistant Secretary--Indian Affairs for further consideration.
Sec. 4.338 Submission by administrative law judge of proposed findings, conclusions and recommended decision.
(a) When an evidentiary hearing pursuant to Sec. 4.337(a) of this
part is concluded, the administrative law judge shall recommend findings
of fact and conclusions of law, stating the reasons for such
recommendations. A copy of
[[Page 86]]
the recommended decision shall be sent to each party to the proceeding,
the Bureau official involved, and the Board. Simultaneously, the entire
record of the proceedings, including the transcript of the hearing
before the administrative law judge, shall be forwarded to the Board.
(b) The administrative law judge shall advise the parties at the
conclusion of the recommended decision of their right to file exceptions
or other comments regarding the recommended decision with the Board in
accordance with Sec. 4.339 of this part.
Sec. 4.339 Exceptions or comments regarding recommended decision by administrative law judge.
Within 30 days after receipt of the recommended decision of the
administrative law judge, any party may file exceptions to or other
comments on the decision with the Board.
Sec. 4.340 Disposition of the record.
Subsequent to a decision by the Board, the record filed with the
Board and all documents added during the appeal proceedings, including
the Board's decision, shall be forwarded to the official of the Bureau
of Indian Affairs whose decision was appealed for proper disposition in
accordance with rules and regulations concerning treatment of Federal
records.
White Earth Reservation Land Settlement Act of 1985; Authority of
Administrative Judges; Determinations of the Heirs of Persons Who Died
Entitled to Compensation
Source: 56 FR 61383, Dec. 3, 1991, unless otherwise noted.
Sec. 4.350 Authority and scope.
(a) The rules and procedures set forth in Secs. 4.350 through 4.357
apply only to the determination through intestate succession of the
heirs of persons who died entitled to receive compensation under the
White Earth Reservation Land Settlement Act of 1985, Public Law 99-264
(100 Stat. 61), amended by Public Law 100-153 (101 Stat. 886) and Public
Law 100-212 (101 Stat. 1433).
(b) Whenever requested to do so by the Project Director, an
administrative judge shall determine such heirs by applying inheritance
laws in accordance with the White Earth Reservation Settlement Act of
1985 as amended, notwithstanding the decedent may have died testate.
(c) As used herein, the following terms shall have the following
meanings:
(1) The term Act means the White Earth Reservation Land Settlement
Act of 1985 as amended.
(2) The term Board means the Board of Indian Appeals in the Office
of Hearings and Appeals, Office of the Secretary.
(3) The term Project Director means the Superintendent of the
Minnesota Agency, Bureau of Indian Affairs, or other Bureau of Indian
Affairs official with delegated authority from the Minneapolis Area
Director to serve as the federal officer in charge of the White Earth
Reservation Land Settlement Project.
(4) The term party (parties) in interest means the Project Director
and any presumptive or actual heirs of the decedent, or of any issue of
any subsequently deceased presumptive or actual heir of the decedent.
(5) The term compensation means a monetary sum, as determined by the
Project Director, pursuant to section 8(c) of the Act.
(6) The term adminstrative judge means an administrative judge or an
administrative law judge, attorney-advisor, or other appropriate
official of the Office of Hearings and Appeals to whom the Director of
the Office of Hearings and Appeals has redelegated his authority, as
designee of the Secretary, for making heirship determinations as
provided for in these regulations.
(7) The term appellant means a party aggrieved by a final order or
final order upon reconsideration issued by an administrative judge who
files an appeal with the Board.
[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991, as amended at 64
FR 13363, Mar. 18, 1999]
Sec. 4.351 Commencement of the determination process.
(a) Unless an heirship determination which is recognized by the Act
already
[[Page 87]]
exists, the Project Director shall commence the determination of the
heirs of those persons who died entitled to receive compensation by
filing with the administrative judge all data, identifying the purpose
for which they are being submitted, shown in the records relative to the
family of the decedent.
(b) The data shall include but are not limited to:
(1) A copy of the death certificate if one exists. If there is no
death certificate, then another form of official written evidence of the
death such as a burial or transportation of remains permit, coroner's
report, or church registry of death. Secondary forms of evidence of
death such as an affidavit from someone with personal knowledge
concerning the fact of death or an obituary or death notice from a
newspaper may be used only in the absence of any official proof or
evidence of death.
(2) Data for heirship finding and family history, certified by the
Project Director. Such data shall contain:
(i) The facts and alleged facts of the decedent's marriages,
separations and divorces, with copies of necessary supporting documents;
(ii) The names and last known addresses of probable heirs at law and
other known parties in interest;
(iii) Information on whether the relationships of the probable heirs
at law to the decedent arose by marriage, blood, or adoption.
(3) Known heirship determinations, including those recognized by the
Act determining the heirs of relatives of the decedent, and including
those rendered by courts from Minnesota or other states, by tribal
courts, or by tribunals authorized by the laws of other countries.
(4) A report of the compensation due the decedent, including
interest calculated to the date of death of the decedent, and an outline
of the derivation of such compensation, including its real property
origins and the succession of the compensation to the deceased, citing
all of the intervening heirs at law, their fractional shares, and the
amount of compensation attributed to each of them.
(5) A certification by the Project Director or his designee that the
addresses provided for the parties in interest were furnished after
having made a due and diligent search.
[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991]
Sec. 4.352 Determination of administrative judge and notice thereof.
(a) Upon review of all data submitted by the Project Director, the
administrative judge will determine whether or not there are any
apparent issues of fact that need to be resolved.
(b) If there are no issues of fact requiring determination, the
administrative judge will enter a preliminary determination of heirs
based upon inheritance laws in accordance with the Act. Such preliminary
determination will be entered without a hearing, and, when possible and
based upon the data furnished and/or information supplementary thereto,
shall include the names, birth dates, relationships to the decedent, and
shares of the heirs, or the fact that the decedent died without heirs.
(1) Upon issuing a preliminary determination, the administrative
judge shall issue a notice of such action and shall mail a copy of said
notice, together with a copy of the preliminary determination, to each
party in interest allowing forty (40) days in which to show cause in
writing why the determination should not become final. The
administrative judge shall cause a certificate to be made as to the date
and manner of such mailing.
(2) The Project Director shall also cause, within seven (7) days of
receipt of such notice, the notice of the preliminary determination to
be posted in the following sites:
The White Earth Band, Box 418, White Earth, Minnesota 56591
The Minnesota Chippewa Tribe, Box 217, Cass Lake, Minnesota 56633
Minnesota Agency, Bureau of Indian Affairs, Room 418, Federal Building,
522 Minnesota Avenue, NW, Bemidji, Minnesota 56601-3062
and in such other sites as may be deemed appropriate by the Project
Director. Such other sites may include, but not be limited to:
Elbow Lake Community Center, R.R. 2, Waubun, Minnesota 56589
Postmaster, Callaway, Minnesota 56521
Community Center, Route 2, Bagley, Minnesota 56621
[[Page 88]]
Community Center, Star Route, Mahnomen, Minnesota 56557
Postmaster, Mahnomen, Minnesota 56557
Rice Lake Community Center, Route 2, Bagley, Minnesota 56621
Postmaster, Ogema, Minnesota 56569
Pine Point Community Center, Ponsford, Minnesota 56575
Postmaster, White Earth, Minnesota 56591
White Earth IHS, White Earth, Minnesota 56591
Postmaster, Ponsford, Minnesota 56575
American Indian Center, 1113 West Broadway, Minneapolis, Minnesota 55411
American Indian Center, 1530 East Franklin Avenue, Minneapolis,
Minnesota 55404
American Indian Center, 341 University Avenue, St. Paul, Minnesota 55103
Little Earth of United Tribes Community Services, 2501 Cedar Avenue
South, Minneapolis, Minnesota 55404
Naytahwaush Community Center, Naytahwaush, Minnesota 56566
The Project Director shall provide a certificate showing when the
notice of the preliminary determination was forwarded for posting, and
to which locations. A posting certificate showing the date and place of
posting shall be signed by the person or official who performs the act
and returned to the Project Director. The Project Director shall file
with the administrative judge the original posting certificates and the
Project Director's certificate of mailing showing the posting locations
and when the notice of the preliminary determination was forwarded for
posting.
(3) If no written request for hearing or written objection is
received in the office of the administrative judge within the forty (40)
days of issuance of the notice, the administrative judge shall issue a
final order declaring the preliminary determination to be final thirty
(30) days from the date on which the final order is mailed to each party
in interest.
(c) When the administrative judge determines either before or after
issuance of a preliminary determination that there are issues which
require resolution, or when a party objects to the preliminary
determination and/or requests a hearing, the administrative judge may
either resolve the issues informally or schedule and conduct a
prehearing conference and/or a hearing. Any prehearing conference,
hearing, or rehearing, conducted by the administrative judge shall be
governed insofar as practicable by the regulations applicable to other
hearings under this part and the general rules in subpart B of this
part. After receipt of the testimony and/or evidence, if any, the
administrative judge shall enter a final order determining the heirs of
the decedent, which shall become final thirty (30) days from the date on
which the final order is mailed to each party in interest.
(d) The final order determining the heirs of the decedent shall
contain, where applicable, the names, birth dates, relationships to the
decedent, and shares of heirs, or the fact that the decedent died
without heirs.
[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991; 57 FR 2319, Jan.
21, 1992, as amended at 64 FR 13363, Mar. 18, 1999]
Sec. 4.353 Record.
(a) The administrative judge shall lodge the original record with
the Project Director.
(b) The record shall contain, where applicable, the following
materials:
(1) A copy of the posted public notice of preliminary determination
and/or hearing showing the posting certifications, the administrative
judge's certificate of mailing, the posting certificates, and the
Project Director's certificate of mailing.
(2) A copy of each notice served on parties in interest, with proof
of mailing;
(3) The record of evidence received, including any transcript made
of testimony;
(4) Data for heirship finding and family history, and data
supplementary thereto;
(5) The final order determining the heirs of the decedent and the
administrative judge's notices thereof; and
(6) Any other material or documents deemed relevant by the
administrative judge.
Sec. 4.354 Reconsideration or rehearing.
(a) Any party aggrieved by the final order of the administrative
judge may, within thirty (30) days after the date of mailing such
decision, file with the administrative judge a written petition for
reconsideration and/or rehearing. Such petition must be under oath and
[[Page 89]]
must state specifically and concisely the grounds upon which it is
based. If it is based upon newly discovered evidence, it shall be
accompanied by affidavits of witnesses stating fully what the new
evidence or testimony is to be. It shall also state justifiable reasons
for the prior failure to discover and present the evidence.
(b) If proper grounds are not shown, or if the petition is not filed
within the time prescribed in paragraph (a) of this section, the
administrative judge shall issue an order denying the petition and shall
set forth therein the reasons therefor. The administrative judge shall
serve copies of such order on all parties in interest.
(c) If the petition appears to show merit, or if the administrative
judge becomes aware of sufficient additional evidence to justify
correction of error even without the filing of a petition, or upon
remand from the Board following an appeal resulting in vacating the
final order, the administrative judge shall cause copies of the
petition, supporting papers, and other data, or in the event of no
petition an order to show cause or decision of the Board vacating the
final order in appropriate cases, to be served on all parties in
interest. The parties in interest will be allowed a reasonable,
specified time within which to submit answers or legal briefs in
opposition to the petition or order to show cause or Board decision. The
administrative judge shall then reconsider, with or without hearing, the
issues of fact and shall issue a final order upon reconsideration,
affirming, modifying, or vacating the original final order and making
such further orders as are deemed warranted. The final order upon
reconsideration shall be served on all parties in interest and shall
become final thirty (30) days from the date on which it is mailed.
(d) Successive petitions for reconsideration and/or rehearing shall
not be permitted. Nothing herein shall be considered as a bar to the
remand of a case by the Board for further reconsideration, hearing, or
rehearing after appeal.
Sec. 4.355 Omitted compensation.
When, subsequent to the issuance of a final order determining heirs
under Sec. 4.352, it is found that certain additional compensation had
been due the decedent and had not been included in the report of
compensation, the report shall be modified administratively by the
Project Director. Copies of such modification shall be furnished to all
heirs as previously determined and to the appropriate administrative
judge.
Sec. 4.356 Appeals.
(a) A party aggrieved by a final order of an administrative judge
under Sec. 4.352, or by a final order upon reconsideration of an
administrative judge under Sec. 4.354, may appeal to the Board (address:
Board of Indian Appeals, Office of Hearings and Appeals, 4015 Wilson
Boulevard, Arlington, Virginia 22203). A copy of the notice of appeal
must also be sent to the Project Director and to the administrative
judge whose decision is being appealed.
(b) The notice of appeal must be filed with the Board no later than
thirty (30) days from the date on which the final order of the
administrative judge was mailed, or, if there has been a petition for
reconsideration or rehearing filed, no later than thirty (30) days from
the date on which the final order upon reconsideration of the
administrative judge was mailed. A notice of appeal that is not timely
filed will be dismissed.
(c) The Project Director shall ensure that the record is
expeditiously forwarded to the Board.
(d) Within thirty (30) days after the notice of appeal is filed, the
appellant shall file a statement of the reasons why the final order or
final order upon reconsideration is in error. If the Board finds that
the appellant has set forth sufficient reasons for questioning the final
order or final order upon reconsideration, the Board will issue an order
giving all parties in interest an opportunity to respond, following
which a decision shall be issued. If the Board finds that the appellant
has not set forth sufficient reasons for questioning the final order,
the Board may issue a decision on the appeal without further briefing.
[[Page 90]]
(e) The Board may issue a decision affirming, modifying, or vacating
the final order or final order upon reconsideration. A decision on
appeal by the Board either affirming or modifying the final order or
final order upon reconsideration shall be final for the Department of
the Interior. In the event the final order or final order upon
reconsideration is vacated, the proceeding shall be remanded to the
appropriate administrative judge for reconsideration and/or rehearing.
Sec. 4.357 Guardians for minors and incompetents.
Persons less than 18 years of age and other legal incompetents who
are parties in interest may be represented at all hearings by legally
appointed guardians or by guardians ad litem appointed by the
administrative judge.c
Subpart E--Special Rules Applicable to Public Land Hearings and Appeals
Authority: Sections 4.470 to 4.478 also issued under authority of
sec. 2, 48 Stat. 1270; 43 U.S.C. 315a.
Cross Reference: See subpart A for the authority, jurisdiction and
membership of the Board of Land Appeals within the Office of Hearings
and Appeals. For general rules applicable to proceedings before the
Board of Land Appeals as well as the other Appeals Boards of the Office
of Hearings and Appeals, see subpart B.
Appeals Procedures
appeals procedures; general
Sec. 4.400 Definitions.
As used in this subpart:
(a) Secretary means the Secretary of the Interior or his authorized
representatives.
(b) Bureau means Bureau of Land Management.
(c) Board means the Board of Land Appeals in the Office of Hearings
and Appeals, Office of the Secretary. The terms office or officer as
used in this subpart include Board where the context requires.
(d) Administrative law judge means an administrative law judge in
the Office of Hearings and Appeals, Office of the Secretary, appointed
under section 3105 of title 5 of the United States Code.
Sec. 4.401 Documents.
(a) Grace period for filing. Whenever a document is required under
this subpart to be filed within a certain time and it is not received in
the proper office during that time, the delay in filing will be waived
if the document is filed not later than 10 days after it was required to
be filed and it is determined that the document was transmitted or
probably transmitted to the office in which the filing is required
before the end of the period in which it was required to be filed.
Determinations under this paragraph shall be made by the officer before
whom is pending the appeal in connection with which the document is
required to be filed.
(b) Transferees and encumbrancers. Transferees and encumbrancers of
land the title to which is claimed or is in the process of acquisition
under any public land law shall, upon filing notice of the transfer or
encumbrance in the proper land office, become entitled to receive and be
given the same notice of any appeal, or other proceeding thereafter
initiated affecting such interest which is required to be given to a
party to the proceeding. Every such notice of a transfer or encumbrance
will be noted upon the records of the land office. Thereafter such
transferee or encumbrancer must be made a party to any proceedings
thereafter initiated adverse to the entry.
(c) Service of documents. (1) Wherever the regulations in this
subpart require that a copy of a document be served upon a person,
service may be made by delivering the copy personally to him or by
sending the document by registered or certified mail, return receipt
requested, to his address of record in the Bureau.
(2) In any case service may be proved by an acknowledgment of
service signed by the person to be served. Personal service may be
proved by a written statement of the person who made such service.
Service by registered or certified mail may be proved by a post-office
return receipt showing that the document was delivered at the person's
[[Page 91]]
record address or showing that the document could not be delivered to
such person at his record address because he had moved therefrom without
leaving a forwarding address or because delivery was refused at that
address or because no such address exists. Proof of service of a copy of
a document should be filed in the same office in which the document is
filed except that proof of service of a notice of appeal should be filed
in the office of the officer to whom the appeal is made, if the proof of
service is filed later than the notice of appeal.
(3) A document will be considered to have been served at the time of
personal service, of delivery of a registered or certified letter, or of
the return by post office of an undelivered registered or certified
letter.
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971]
Sec. 4.402 Summary dismissal.
An appeal to the Board will be subject to summary dismissal by the
Board for any of the following causes:
(a) If a statement of the reasons for the appeal is not included in
the notice of appeal and is not filed within the time required;
(b) If the notice of appeal is not served upon adverse parties
within the time required; and
(c) If the statement of reasons, if not contained in the notice of
appeal, is not served upon adverse parties within the time required.
(d) If the statement of standing required by Sec. 4.412(b) is not
filed with the Board or is not served upon adverse parties within the
time required.
[36 FR 7186, Apr. 15, 1971, as amended at 47 FR 26392, June 18, 1982]
Sec. 4.403 Finality of decision; reconsideration.
A decision of the Board shall constitute final agency action and be
effective upon the date of issuance, unless the decision itself provides
othewise. The Board may reconsider a decision in extraordinary
circumstances for sufficient reason. A petition for reconsideration
shall be filed within 60 days after the date of a decision. The petition
shall, at the time of filing, state with particularity the error claimed
and include all arguments and supporting documents. The petition may
include a request that the Board stay the effectiveness of the decision
for which reconsideration is sought. No answer to a petition for
reconsideration is required unless so ordered by the Board. The filing,
pendency, or denial of a petition for reconsideration shall not operate
to stay the effectiveness or affect the finality of the decision
involved unless so ordered by the Board. A petition for reconsideration
need not be filed to exhaust administrative remedies.
[52 FR 21308, June 5, 1987]
appeals to the board of land appeals
Sec. 4.410 Who may appeal.
(a) Any party to a case who is adversely affected by a decision of
an officer of the Bureau of Land Management or of an administrative law
judge shall have a right to appeal to the Board, except--
(1) As otherwise provided in Group 2400 of chapter II of this title,
(2) To the extent that decisions of Bureau of Land Management
officers must first be appealed to an administrative law judge under
Sec. 4.470 and part 4100 of this title,
(3) Where a decision has been approved by the Secretary, and
(4) As provided in paragraph (b) of this section.
(b) For decisions rendered by Departmental officials relating to
land selections under the Alaska Native Claims Settlement Act, as
amended, any party who claims a property interest in land affected by
the decision, an agency of the Federal Government or a regional
corporation shall have a right to appeal to the Board.
[47 FR 26392, June 18, 1982]
Sec. 4.411 Appeal; how taken, mandatory time limit.
(a) A person who wishes to appeal to the Board must file in the
office of the officer who made the decision (not the Board) a notice
that he wishes to appeal. A person served with the decision being
appealed must transmit the notice of appeal in time for it to be filed
[[Page 92]]
in the office where it is required to be filed within 30 days after the
date of service. If a decision is published in the Federal Register, a
person not served with the decision must transmit a notice of appeal in
time for it to be filed within 30 days after the date of publication.
(b) The notice of appeal must give the serial number or other
identification of the case and may include a statement of reasons for
the appeal, a statement of standing if required by Sec. 4.412(b), and
any arguments the appellant wishes to make.
(c) No extension of time will be granted for filing the notice of
appeal. If a notice of appeal is filed after the grace period provided
in Sec. 4.401(a), the notice of appeal will not be considered and the
case will be closed by the officer from whose decision the appeal is
taken. If the notice of appeal is filed during the grace period provided
in Sec. 4.401(a) and the delay in filing is not waived, as provided in
that section, the notice of appeal will not be considered and the appeal
will be dismissed by the Board.
(R.S. 2478, as amended, 43 U.S.C. 1201; sec. 25, Alaska Native Claims
Settlement Act, as amended, 43 U.S.C. 1601-1628; and the Administrative
Procedure Act, 5 U.S.C. 551, et seq.)
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 49
FR 6373, Feb. 21, 1984]
Sec. 4.412 Statement of reasons, statement of standing, written arguments, briefs.
(a) If the notice of appeal did not include a statement of the
reasons for the appeal, the appellant shall file such a statement with
the Board (address: Board of Land Appeals, Office of Hearings and
Appeals, 4015 Wilson Boulevard, Arlington, VA 22203) within 30 days
after the notice of appeal was filed. In any case, the Board will permit
the appellant to file additional statements of reasons and written
arguments or briefs within the 30-day period after the notice of appeal
was filed.
(b) Where the decision being appealed relates to land selections
under the Alaska Native Claims Settlement Act, as amended, the appellant
also shall file with the Board a statement of facts upon which the
appellant relies for standing under Sec. 4.410(b) within 30 days after
filing of the notice of appeal. The statement may be included with the
notice of appeal filed pursuant to Sec. 4.411 or the statement of
reasons filed pursuant to paragraph (a) of this section or may be filed
as a separate document.
(c) Failure to file the statement of reasons and statement of
standing within the time required will subject the appeal to summary
dismissal as provided in Sec. 4.402, unless the delay in filing is
waived as provided in Sec. 4.401(a).
[47 FR 26392, June 18, 1982]
Sec. 4.413 Service of notice of appeal and of other documents.
(a) The appellant shall serve a copy of the notice of appeal and of
any statement of reasons, written arguments, or briefs on each adverse
party named in the decision from which the appeal is taken and on the
Office of the Solicitor as identified in paragraph (c) of this section.
Service must be accomplished in the manner prescribed in Sec. 4.401(c)
of this title not later than 15 days after filing the document.
(b) Failure to serve within the time required will subject the
appeal to summary dismissal as provided in Sec. 4.402 of this title.
(c)(1)(i) If the appeal is taken from a decision of the Director,
Minerals Management Service, the appellant will serve the Associate
Solicitor, Division of Mineral Resources, Office of the Solicitor, U.S.
Department of the Interior, Washington, D.C. 20240.
(ii) If the appeal is taken from a decision of the Director, Bureau
of Land Management, the appellant will serve:
(A) The Associate Solicitor, Division of Land and Water Resources,
Office of the Solicitor, U.S. Department of the Interior, Washington,
D.C. 20240, if the decision concerns the use and disposition of public
lands, including land selections under the Alaska Native Claims
Settlement Act, as amended;
(B) The Associate Solicitor, Division of Mineral Resources, Office
of the Solicitor, U.S. Department of the Interior, Washington, D.C.
20240, if the decision concerns the use and disposition of mineral
resources.
[[Page 93]]
(c)(2) If the appeal is taken from a decision of other Bureau of
Land Management (BLM) offices listed below (see Sec. 1821.2-1(d) of this
title), the appellant shall serve the appropriate official of the Office
of the Solicitor as identified:
(i) BLM Alaska State Office, including all District and Area Offices
within its area of jurisdiction:
Regional Solicitor, Alaska Region, U.S. Department of the Interior, 4230
University Drive, Suite 300, Anchorage, AK 99508-4626;
(ii) BLM Arizona State Office, including all District and Area
Offices within its area of jurisdiction:
Field Solicitor, U.S. Department of the Interior, One Renaissance
Square, Two North Central, Suite 1130, Phoenix, AZ 85004-2383;
(iii) BLM California State Office, including all District and Area
Offices within its area of jurisdiction:
Regional Solicitor, Pacific Southwest Region, U.S. Department of the
Interior, 2800 Cottage Way, Room E-2753, Sacramento, CA 95825-1890;
(iv) BLM Colorado State Office, including all District and Area
Offices within its area of jurisdiction:
Regional Solicitor, Rocky Mountain Region, U.S. Department of the
Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215;
(v) BLM Eastern States Office, including all District and Area
Offices within its area of jurisdiction:
(A) The Associate Solicitor, Division of Land and Water Resources,
Office of the Solicitor, U.S. Department of the Interior, Washington,
D.C. 20240, if the decision concerns the use and disposition of public
lands, including land selections under the Alaska Native Claims
Settlement Act, as amended;
(B) The Associate Solicitor, Division of Mineral Resources, Office
of the Solicitor, U.S. Department of the Interior, Washington, D.C.
20240, if the decision concerns the use and disposition of mineral
resources.
(vi) BLM Idaho State Office, including all District and Area Offices
within its area of jurisdiction:
Field Solicitor, U.S. Department of the Interior, Federal Building &
U.S. Courthouse, 550 West Fort Street, MSC 020, Boise, ID 83724;
(vii) BLM Montana State Office, including all District and Area
Offices within its area of jurisdiction:
Regular U.S. Mail: Field Solicitor, U.S. Department of the Interior,
P.O. Box 31394, Billings, MT 59107-1394;
Other Delivery Services: Field Solicitor, U.S. Department of the
Interior, 316 North 26th Street, Room 3004, Billings, MT 59101;
(viii) BLM Nevada State Office, including all District and Area
Offices within its area of jurisdiction:
Regional Solicitor, Pacific Southwest Region, U.S. Department of the
Interior, 2800 Cottage Way, Room E-2753, Sacramento, CA 95825-1890;
(ix) BLM New Mexico State Office, including all District and Area
Offices within its area of jurisdiction:
Regular U.S. Mail: Field Solicitor, U.S. Department of the Interior,
P.O. Box 1042, Santa Fe, NM 87504-1042;
Other Delivery Services: Field Solicitor, U.S. Department of the
Interior, 150 Washington Avenue #207, Santa Fe, NM 87501;
(x) BLM Oregon State Office, including all District and Area Offices
within its area of jurisdiction:
Regional Solicitor, Pacific Northwest Region, U.S. Department of the
Interior, Lloyd 500 Building, Suite 607, 500 N.E. Multnomah Street,
Portland, OR 97232;
(xi) BLM Utah State Office, including all District and Area Offices
within its area of jurisdiction:
Field Solicitor, U.S. Department of the Interior, 6201 Federal Building,
125 South State Street, Salt Lake City, UT 84138-1180;
(xii) BLM Wyoming State Office, including all District and Area
Offices within its area of jurisdiction:
Regular U.S. Mail: Regional Solicitor, Rocky Mountain Region, U.S.
Department of the Interior, P.O. Box 25007 (D-105), Denver Federal
Center, Denver, CO 80225;
Other Delivery Services: Regional Solicitor, Rocky Mountain Region, U.S.
Department of the Interior, 755 Parfet Street, Suite 151, Lakewood, CO
80215;
(3) If the appeal is taken from the decision of an administrative
law judge, the appellant shall serve the attorney from the Office of the
Solicitor who
[[Page 94]]
represented the Bureau of Land Management or the Minerals Management
Service at the hearing or, in the absence of a hearing, who was served
with a copy of the decision by the administrative law judge. If the
hearing involved a mining claim on national forest land, the appellant
shall serve the attorney from the Office of General Counsel, U.S.
Department of Agriculture, who represented the U.S. Forest Service at
the hearing or, in the absence of a hearing, who was served with a copy
of the decision by the administrative law judge.
(4) Parties shall serve the Office of the Solicitor as identified in
this paragraph until such time that a particular attorney of the Office
of the Solicitor files and serves a Notice of Appearance or Substitution
of Counsel. Thereafter, parties shall serve the Office of the Solicitor
as indicated by the Notice of Appearance or Substitution of Counsel.
(d) Proof of such service as required by Sec. 4.401(c) must be filed
with the Board (address: Board of Land Appeals, Office of Hearings and
Appeals, 4015 Wilson Boulevard, Arlington, VA 22203), within 15 days
after service unless filed with the notice of appeal.
[53 FR 13267, Apr. 22, 1988, as amended at 60 FR 58242, Nov. 27, 1995;
61 FR 40348, Aug. 2, 1996]
Sec. 4.414 Answers.
If any party served with a notice of appeal wishes to participate in
the proceedings on appeal, he must file an answer within 30 days after
service on him of the notice of appeal or statement of reasons where
such statement was not included in the notice of appeal. If additional
reasons, written arguments, or briefs are filed by the appellant, the
adverse party shall have 30 days after service thereof on him within
which to answer them. The answer must state the reasons why the answerer
thinks the appeal should not be sustained. Answers must be filed with
the Board (address: Board of Land Appeals, Office of Hearings and
Appeals, 4015 Wilson Boulevard, Arlington, VA 22203) and must be served
on the appellant, in the manner prescribed in Sec. 4.401(c), not later
than 15 days thereafter. Proof of such service as required by
Sec. 4.401(c), must be filed with the Board (see address above) within
15 days after service. Failure to answer will not result in a default.
If an answer is not filed and served within the time required, it may be
disregarded in deciding the appeal, unless the delay in filing is waived
as provided in Sec. 4.401(a).
actions by board of land appeals
Sec. 4.415 Request for hearings on appeals involving questions of fact.
Either an appellant or an adverse party may, if he desires a hearing
to present evidence on an issue of fact, request that the case be
assigned to an administrative law judge for such a hearing. Such a
request must be made in writing and filed with the Board within 30 days
after answer is due and a copy of the request should be served on the
opposing party in the case. The allowance of a request for hearing is
within the discretion of the Board, and the Board may, on its own
motion, refer any case to an administrative law judge for a hearing on
an issue of fact. If a hearing is ordered, the Board will specify the
issues upon which the hearing is to be held and the hearing will be held
in accordance with Secs. 4.430 to 4.439, and the general rules in
subpart B of this part.
Hearings Procedures
hearings procedures; general
Sec. 4.420 Applicability of general rules.
To the extent they are not inconsistent with these special rules,
the general rules of the Office of Hearings and Appeals in subpart B of
this part are also applicable to hearings, procedures.
Sec. 4.421 Definitions.
As used in this subpart:
(a) Secretary means the Secretary of the Interior or his authorized
representatives.
(b) Director means the Director of the Bureau of Land Management,
the Associate Director or an Assistant Director.
(c) Bureau means Bureau of Land Management.
(d) Board means the Board of Land Appeals in the Office of Hearings
and Appeals, Office of the Secretary. The terms ``office'' or
``officer'' as used in
[[Page 95]]
this subpart include ``Board'' where the context requires.
(e) Administrative law judge means an administrative law judge in
the Office of Hearings and Appeals, Office of the Secretary, appointed
under section 3105 of title 5 of the United States Code.
(f) State Director means the supervising Bureau of Land Management
officer for the State in which the particular range lies, or his
authorized agent.
(g) District manager means the supervising Bureau of Land Management
officer of the grazing district in which the particular range lies, or
his authorized agent.
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971]
Sec. 4.422 Documents.
(a) Grace period for filing. Whenever a document is required under
this subpart to be filed within a certain time and it is not received in
the proper office during that time, the delay in filing will be waived
if the document is filed not later than 10 days after it was required to
be filed and it is determined that the document was transmitted or
probably transmitted to the office in which the filing is required
before the end of the period in which it was required to be filed.
Determinations under this paragraph shall be made by the officer before
whom is pending the appeal or contest in connection with which the
document is required to be filed. This paragraph does not apply to
requests for postponement of hearings under Secs. 4.452-1 and 4.452-2.
(b) Transferees and encumbrancers. Transferees and encumbrancers of
land, the title to which is claimed or is in the process of acquisition
under any public land law shall, upon filing notice of the transfer or
encumbrance in the proper land office, become entitled to receive and be
given the same notice of any contest, appeal, or other proceeding
thereafter initiated affecting such interest which is required to be
given to a party to the proceeding. Every such notice of a transfer or
encumbrance will be noted upon the records of the land office.
Thereafter such transferee or encumbrancer must be made a party to any
proceedings thereafter initiated adverse to the entry.
(c) Service of documents. (1) Wherever the regulations in this
subpart require that a copy of a document be served upon a person,
service may be made by delivering the copy personally to him or by
sending the document by registered or certified mail, return receipt
requested, to his address of record in the Bureau.
(2) In any case service may be proved by an acknowledgement of
service signed by the person to be served. Personal service may be
proved by a written statement of the person who made such service.
Service by registered or certified mail may be proved by a post-office
return receipt showing that the document was delivered at the person's
record address or showing that the document could not be delivered to
such person at his record address because he had moved therefrom without
leaving a forwarding address or because delivery was refused at that
address or because no such address exists. Proof of service of a copy of
a document should be filed in the same office in which the document is
filed.
(3) A document will be considered to have been served at the time of
personal service, of delivery of a registered or certified letter, or of
the return by the post office of an undelivered registered or certified
letter.
(d) Extensions of time. The Manager or the administrative law judge,
as the case may be, may extend the time for filing or serving any
document in a contest.
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971]
Sec. 4.423 Subpoena power and witness provisions.
The administrative law judge is authorized to issue subpoenas
directing the attendance of witnesses at hearings to be held before him
or at the taking of depositions to be held before himself or other
officers, for the purpose of taking testimony but not for discovery. The
issuance of subpoenas, service, attendance fees, and similar matters
shall be governed by the Act of January 31, 1903 (43 U.S.C. 102-106),
and 28 U.S.C. 1821.
[[Page 96]]
hearings on appeals involving questions of fact
Sec. 4.430 Prehearing conferences.
(a) The administrative law judge may, in his discretion, on his own
motion or motion of one of the parties or of the Bureau direct the
parties or their representatives to appear at a specified time and place
for a prehearing conference to consider: (1) The possibility of
obtaining stipulations, admissions of facts and agreements to the
introduction of documents, (2) the limitation of the number of expert
witnesses, and (3) any other matters which may aid in the disposition of
the proceedings.
(b) The administrative law judge shall issue an order which recites
the action taken at the conference and the agreements made as to any of
the matters considered, and which limits the issues for hearing to those
not disposed of by admissions or agreements. Such order shall control
the subsequent course of the proceeding before the administrative law
judge unless modified for good cause, by subsequent order.
Sec. 4.431 Fixing of place and date for hearing; notice.
The administrative law judge shall fix a place and date for the
hearing and notify all parties and the Bureau. All hearings held in
connection with land selection appeals arising under the Alaska Native
Claims Settlement Act, as amended, shall be conducted within the State
of Alaska, unless the parties agree otherwise.
[47 FR 26392, June 18, 1982]
Sec. 4.432 Postponements.
(a) Postponements of hearings will not be allowed upon the request
of any party or the Bureau except upon a showing of good cause and
proper diligence. A request for a postponement must be served upon all
parties to the proceeding and filed in the office of the administrative
law judge at least 10 days prior to the date of the hearing. In no case
will a request for postponement served or filed less than 10 days in
advance of the hearing or made at the hearing be granted unless the
party requesting it demonstrates that an extreme emergency occurred
which could not have been anticipated and which justifies beyond
question the granting of a postponement. In any such emergency, if time
does not permit the filing of such request prior to the hearing, it may
be made orally at the hearing.
(b) The request for a postponement must state in detail the reasons
why a postponement is necessary. If a request is based upon the absence
of witnesses, it must state what the substance of the testimony of the
absent witnesses would be. No postponement will be granted if the
adverse party or parties file with the examiner within 5 days after the
service of the request a statement admitting that the witnesses on
account of whose absence the postponement is desired would, if present,
testify as stated in the request. If time does not permit the filing of
such statement prior to the hearing, it may be made orally at the
hearing.
(c) Only one postponement will be allowed to a party on account of
the absence of witnesses unless the party requesting a further
postponement shall at the time apply for an order to take the testimony
of the alleged absent witness by deposition.
Sec. 4.433 Authority of the administrative law judge.
The administrative law judge is vested with general authority to
conduct the hearing in an orderly and judicial manner, including
authority to subpoena witnesses and to take and cause depositions to be
taken for the purpose of taking testimony but not for discovery in
accordance with the Act of January 31, 1903 (32 Stat. 790; 43 U.S.C. 102
through 106), to administer oaths, to call and question witnesses, to
make proposed findings of fact and to take such other actions in
connection with the hearing as may be prescribed by the Board in
referring the case for hearing. The issuance of subpoenas, the
attendance of witnesses, and the taking of depositions shall be governed
by Secs. 4.423 and 4.26 of the general rules of subpart B of this part.
Sec. 4.434 Conduct of hearing.
So far as not inconsistent with the prehearing order, the examiner
may
[[Page 97]]
seek to obtain stipulations as to material facts. Unless the
administrative law judge directs otherwise, the appellant will present
his evidence on the facts at issue following which the other parties and
the Bureau of Land Management will present their evidence on such
issues.
Sec. 4.435 Evidence.
(a) All oral testimony shall be under oath and witnesses shall be
subject to cross-examination. The administrative law judge may question
any witnesses. Documentary evidence may be received if pertinent to any
issue. The administrative law judge will summarily stop examination and
exclude testimony which is obviously irrelevant and immaterial.
(b) Objections to evidence will be ruled upon by the administrative
law judge. Such rulings will be considered, but need not be separately
ruled upon, by the Board in connection with its decision. Where a ruling
of an administrative law judge sustains an objection to the admission of
evidence, the party affected may insert in the record, as a tender of
proof, a summary written statement of the substance of the excluded
evidence and the objecting party may then make an offer of proof in
rebuttal.
Sec. 4.436 Reporter's fees.
Reporter's fees shall be borne by the Bureau.
Sec. 4.437 Copies of transcript.
Each party shall pay for any copies of the transcript obtained by
him. Unless a summary of the evidence is stipulated to, the Government
will file the original copy of the transcript with the case record.
Sec. 4.438 Summary of evidence.
The parties and the Bureau may, with the consent of the
administrative law judge, agree that a summary of the evidence approved
by the examiner may be filed in the case in lieu of a transcript. In
such case the administrative law judge will prepare the summary or have
it prepared and upon agreement of the parties make it a part of the case
record.
Sec. 4.439 Action by administrative law judge.
Upon completion of the hearing and the incorporation of the summary
or transcript in the record, the administrative law judge will send the
record and proposed findings of fact on the issues presented at the
hearing to the Board. The proposed findings of fact will not be served
upon the parties; however, the parties and the Bureau may, within 15
days after the completion of the transcript or the summary of the
evidence, file with the Board such briefs or statements as they may wish
respecting the facts developed at the hearing.
contest and protest proceedings
Sec. 4.450 Private contests and protests.
Sec. 4.450-1 By whom private contest may be initiated.
Any person who claims title to or an interest in land adverse to any
other person claiming title to or an interest in such land or who seeks
to acquire a preference right pursuant to the Act of May 14, 1880, as
amended (43 U.S.C. 185), or the Act of March 3, 1891 (43 U.S.C. 329),
may initiate proceedings to have the claim of title or interest adverse
to his claim invalidated for any reason not shown by the records of the
Bureau of Land Management. Such a proceeding will constitute a private
contest and will be governed by the regulations herein.