[Title 43 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2004 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
43
Parts 1 to 999
Revised as of October 1, 2004
Public Lands: Interior
________________________
Containing a codification of documents of general
applicability and future effect
As of October 1, 2004
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2004
For sale by the Superintendent of Documents, U.S. Government Printing
Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area
(202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 43:
Subtitle A--Office of the Secretary of the Interior 3
Subtitle B--Regulations Relating to Public Lands
Chapter I--Bureau of Reclamation, Department of the
Interior 575
Finding Aids:
Material Approved for Incorporation by Reference........ 677
Table of CFR Titles and Chapters........................ 679
Alphabetical List of Agencies Appearing in the CFR...... 697
List of CFR Sections Affected........................... 707
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 43 CFR 1.1 refers to
title 43, part 1, section
1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 2004), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408 or e-mail
[email protected].
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ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers, Weekly Compilation of Presidential
Documents and the Privacy Act Compilation are available in electronic
format at www.access.gpo.gov/nara (``GPO Access''). For more
information, contact Electronic Information Dissemination Services, U.S.
Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-
free). E-mail, [email protected].
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) World Wide Web
site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.archives.gov/federal--
register. The NARA site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2004.
[[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, 2004.
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, Carol A. Conroy 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........ 56
4 Department hearings and appeals procedures.. 58
5 Making pictures, television productions or
sound tracks on certain areas under the
jurisdiction of the Department of the
Interior................................ 185
6 Patent regulations.......................... 186
7 Protection of archaeological resources...... 195
8 Joint policies of the Departments of the
Interior and of the Army relative to
reservoir project lands................. 211
9 Intergovernmental review of Department of
the Interior programs and activities.... 212
10 Native American graves protection and
repatriation regulations................ 215
11 Natural resource damage assessments......... 241
12 Administrative and audit requirements and
cost principles for assistance programs. 301
13 Vending facilities operated by blind persons 363
14 Petitions for rulemaking.................... 365
15 Key Largo Coral Reef Preserve............... 366
16 Conservation of helium...................... 367
17 Nondiscrimination in federally assisted
programs of the Department of the
Interior................................ 368
18 New restrictions on lobbying................ 407
19 Wilderness preservation..................... 418
20 Employee responsibilities and conduct....... 421
21 Occupancy of cabin sites on public
conservation and recreation areas....... 432
[[Page 4]]
22 Administrative claims under the Federal Tort
Claims Act and indemnification of
Department of the Interior employees.... 436
23 Surface exploration, mining and reclamation
of lands................................ 438
24 Department of the Interior fish and wildlife
policy: State-Federal relationships..... 446
26 Grants to States for establishing Youth
Conservation Corps programs............. 451
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........... 456
28 Fire protection emergency assistance........ 468
29 Trans-Alaska Pipeline Liability Fund........ 468
32 Grants to States for establishing Young
Adult Conservation Corps (YACC) program. 475
33 Allocation of duty-free watches from the
Virgin Islands, Guam, and American Samoa
[Note].................................. 485
34 Requirements for equal opportunity during
construction and operation of the Alaska
Natural Gas Transportation System....... 485
35 Administrative remedies for fraudulent
claims and statements................... 496
36 Transportation and utility systems in and
across, and access into, conservation
system units in Alaska.................. 511
37 Cave management............................. 521
38 Pay of U.S. Park Police--interim geographic
adjustments............................. 524
41 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 525
42 Government-wide debarment and suspension
(Nonprocurement)........................ 542
43 Governmentwide requirements for drug-free
workplace (Financial assistance)........ 565
[[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_General Information
Sec.
2.1 What do the regulations cover?
2.2 What is DOI's policy regarding release of records under the FOIA?
2.3 What terms do I need to know?
Subpart B_Information Routinely Available to the Public Without Filing a
FOIA Request
2.4 How do I obtain information routinely available to the public?
2.5 Does DOI maintain an index of its reading room materials?
[[Page 7]]
2.6 Will the Department accept written requests, including fax, e-mail,
or telephone requests, for routinely available information?
Subpart C_Requests for Records Under the FOIA
2.7 What do I need to know before filing a FOIA request?
2.8 What information do I include in my request?
2.9 May I specify the form or format of disclosure?
2.10 Where do I send my request?
2.11 Why is it important to send my request to the right office?
2.12 When can I expect the response?
2.13 When may the bureau take a time extension to respond to my request?
2.14 When can I get expedited processing?
2.15 Will I be charged fees?
2.16 How are fees determined?
2.17 How will my requester category affect the fees that I am charged?
2.18 How are fees assessed and collected?
2.19 When will bureaus waive fees?
2.20 When will bureaus grant discretionary fee waivers?
2.21 How will the bureau respond to my request?
2.22 What happens if a bureau receives a request for records it does not
have or did not create?
2.23 How will a bureau handle a request for commercial or financial
information that it has obtained from a person or entity
outside the Federal Government?
2.24 Is a submitter required to designate information that is
commercially or financially sensitive?
2.25 How will a bureau handle a request for Federally-funded research
data in the possession of a private entity?
2.26 Does the bureau provide multitrack processing of FOIA requests?
2.27 How will a bureau handle a request for information that is
contained in a Privacy Act system of records? (See DOI's
Privacy Act regulations (Subpart G of this part) for
additional information)
Subpart D_FOIA Appeals
2.28 When may I file an appeal?
2.29 How long do I have to file an appeal?
2.30 How do I file an appeal?
2.31 How will DOI respond to my appeal?
2.32 How long does DOI have to respond to my appeal?
2.33 How will the Department notify you and the submitter of commercial
or financial information when it makes an appeal decision
concerning such information?
Subpart E_FOIA Annual Report
2.34 Where can I get a copy of DOI's FOIA annual report?
Subpart F_Declassification of Classified Documents
2.41 Declassification of classified documents.
Subpart G_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 H_Legal Process: Testimony by Employees and Production of
Records
General Information
2.80 What does this subpart cover?
2.81 What is the Department's policy on granting requests for employee
testimony or Department records?
[[Page 8]]
Responsibilities of Requesters
2.82 How can I obtain employee testimony or Department records?
2.83 If I serve a subpoena duces tecum, must I also submit a Touhy
Request?
2.84 What information must I put in my Touhy Request?
2.85 How much will I be charged?
2.86 Can I get an authenticated copy of a Department record?
Responsibilities of the Department
2.87 How will the Department process my Touhy Request?
2.88 What criteria will the Department consider in responding to my
Touhy Request?
Responsibilities of Employees
2.89 What must I, as an employee, do upon receiving a request?
2.90 Must I get approval before testifying as an expert witness on a
subject outside the scope of my official duties?
Appendix A to Part 2--Department of the Interior FOIA/Public Affairs
Contacts and Reading Rooms
Appendix B to Part 2--Internet Addresses
Appendix C to Part 2--Fee Schedule
Appendix D to Part 2--Fee Waiver Criteria
Appendix E to Part 2--FOIA Exemptions
Appendix F to Part 2--Mineral Leasing Act and Mineral Leasing Act for
Acquired Lands--Special Rules
Authority: 5 U.S.C. 301, 552 and 552a; 31 U.S.C. 9701 and 43 U.S.C.
1460-1461. Appendix F to Part 2 also is issued under 30 U.S.C. 201-209;
30 U.S.C. 351-360.
Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.
Subpart A_General Information
Source: 67 FR 64530, Oct. 21, 2002, unless otherwise noted.
Sec. 2.1 What do the regulations cover?
(a) The regulations implement the Freedom of Information Act (FOIA),
5 U.S.C. 552, and contain the procedures by which the public may inspect
and obtain copies of Department of the Interior (DOI or Department)
records through the FOIA or by other means.
(b) They apply to all agency records as defined in Sec. 2.3(c).
(c) The policy and procedures set forth in these regulations apply
to all bureaus and offices of the Department.
(d) Nothing in the regulations will entitle you to any service or
any record that is not required to be provided under the FOIA.
(e) These regulations do not apply to records that fall under the
law enforcement exclusions contained in 5 U.S.C. 552(c).
Sec. 2.2 What is DOI's policy regarding release of records under the FOIA?
It is our policy to make records of the Department available to the
public consistent with the spirit of the FOIA and the Privacy Act.
Sec. 2.3 What terms do I need to know?
For the purposes of this part, the following definitions apply:
(a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552,
as amended.
(b) Agency means any executive department, military department,
Government corporation, Government-controlled corporation, or other
establishment in the executive branch of the Federal Government, or any
independent regulatory agency.
(c) Agency record means any documentary material which is either
created or obtained by an agency in the transaction of agency business
and under agency control. See Sec. Sec. 2.21 and 2.25.
(1) Agency records include:
(i) Books, papers, maps, charts, plats, plans, architectural
drawings, photographs, and microfilm;
(ii) Machine-readable materials such as magnetic tape and disks;
(iii) Electronic records (including e-mail messages);
(iv) Audiovisual material such as still pictures, sound and video
recordings; and
(v) All other documentary materials, regardless of physical form,
format or characteristics.
(2) This definition generally does not cover records of an
individual which are:
(i) Created and maintained primarily for an individual's
convenience;
(ii) Not subject to agency creation or retention requirements; and
(iii) Not distributed to other agency employees for their official
use.
(d) Bureau means any major component of the Department administering
its own FOIA program. A list of these
[[Page 9]]
components is contained in Appendix A to this part.
(e) Commercial-use request means a request from or on behalf of a
person who seeks information for a use or purpose that furthers the
commercial, trade or profit interests of the requester or the person on
whose behalf the request is made. In determining whether a requester
falls into this category, the bureau will consider the identity of the
requester and intended use of the records in addition to any other
available information about the requester.
(f) Direct costs means those expenses that a bureau actually incurs
in searching for and duplicating (and in the case of commercial-use
requests, reviewing) records to respond to a FOIA request. Direct costs
include, for example, the salary and benefits of the employee performing
the work and the cost of operating duplicating equipment. Not included
in direct costs are overhead expenses such as the costs of space and
heating or lighting of the facility in which the records are kept.
(g) Duplication means making a copy of a record, or the information
contained in it, to respond to a FOIA request. Copies can take the form
of paper, microform, photographs, audiovisual materials, or electronic
records (for example, magnetic tape or disk), among others.
(h) Educational institution means a preschool, a public or private
elementary or secondary school, or an institution of undergraduate
higher education, an institution of graduate higher education, an
institution of professional education, or an institution of vocational
education, which operates a program of scholarly research. To be in this
category, a requester must show that the request is authorized by and is
made under the auspices of a qualifying institution and that the records
are not sought for a commercial use but are sought to further scholarly
research.
(i) Expedited processing means giving a FOIA request priority, and
processing it ahead of other requests pending in the bureau because a
requester has shown an exceptional need or urgency for the records (see
Sec. 2.14).
(j) FOIA request means a written request (this includes facsimile
(fax) and electronic mail (e-mail)) made by any member of the public for
Federal agency records.
(k) Free-lance journalist means a representative of the news media
who is able to 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.
(l) Frequently requested documents means documents that have been
requested at least three times under the FOIA. It also includes
documents the agency anticipates would likely be the subject of three or
more requests.
(m) Multitrack processing means placing simple requests, requiring
relatively minimal review, in one processing track and more voluminous
and complex requests in one or more other tracks. Requests in each track
are processed on a first-in/first-out basis.
(n) Noncommercial scientific institution means an institution that
is not operated for commerce, trade or profit, and that is operated
solely for the purpose of conducting scientific research the results of
which are not intended to promote any particular product or industry. To
be in this category, a requester must show that the request is
authorized by and is made under the auspices of a qualifying institution
and that the records are not sought for a commercial use but are sought
to further scientific research.
(o) Privacy Act request means a written request (paper copy with an
original signature) made by an individual for information about himself
or herself that is contained in a Privacy Act system of records. The
Privacy Act applies only to U.S. citizens and aliens lawfully admitted
for permanent residence. Therefore, only those individuals may make
Privacy Act requests.
(p) Published research findings means research findings that are
either:
(1) Published in a peer-reviewed scientific or technical journal; or
(2) Publicly and officially cited by a Federal agency in support of
an agency action that has the force and effect of law.
[[Page 10]]
(q) Reading room materials means records (paper or electronic) that
are required to be made available to the public under 5 U.S.C.
552(a)(2), as well as other records that a bureau, at its discretion,
makes available to the public for inspection and copying without
requiring the filing of a FOIA request.
(r) Representative of the news media means 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, newspapers, 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. To be in this category, a requester must not be seeking the
requested records for a commercial use. Further, a bureau normally will
not consider requests for records involving news dissemination to be
commercial-use requests.
(s) Research data means the recorded factual material commonly
accepted in the scientific community as necessary to validate research
findings, but not such things as trade secrets, commercial information,
personnel and medical information and any similar information which is
protected under law.
(t) Review means the examination of a record located in response to
a request in order to determine whether any portion of it is exempt from
disclosure. It also includes the deletion of exempt material or other
processing necessary to prepare the record(s) for disclosure, including
routine consultation among bureau staff and attorneys regarding the
applicability of exemptions; and time spent considering any formal
objection to disclosure made by a submitter under Sec. 2.23(f).
(u) Search means the process of looking for and retrieving agency
records and information responsive to a request (manually or by
automated means).
(v) Submitter means any person or entity outside the Federal
Government from whom the Department directly or indirectly obtains
commercial or financial information. The term includes, but is not
limited to individuals, corporations, and state, local, tribal, and
foreign governments.
(w) Workday means a regular Federal workday. It does not include
Saturdays, Sundays, or Federal legal public holidays.
Subpart B_Information Routinely Available to the Public without Filing a
FOIA Request
Source: 67 FR 64530, Oct. 21, 2002, unless otherwise noted.
Sec. 2.4 How do I obtain information routinely available to the public?
A great deal of information is available to the public without
filing a FOIA request. Examples are Departmental policies, procedures,
and organizational descriptions. The following guidance will help you
obtain this information. [Note: For copies of records that are not
routinely available, you must submit a FOIA request to the DOI office
where the records are located. Procedures for requesting records under
the FOIA are provided in Subpart C of this part.]
(a) General. (1) General information about DOI or one of its bureaus
may be obtained by visiting DOI's home page (see Appendix B to this part
for a list of Internet addresses) or by contacting the Office of Public
Affairs/Communications for the appropriate bureau (see Appendix A to
this part for a list of DOI contacts). Many documents are made available
to the public through DOI's reading rooms. Some documents also may be
available in DOI's electronic reading rooms on the Internet.
(2) Information on DOI's FOIA Program and a Reference Guide to
assist you in obtaining various types of information are available in
DOI's reading rooms, through the FOIA home page, or by contacting the
Departmental FOIA Officer.
(3) To obtain information about specific records in DOI, you also
may refer to:
(i) The index of documents frequently requested under the FOIA,
which is available in DOI's reading rooms,
[[Page 11]]
through the FOIA home page, or by contacting one of the bureau FOIA
Officers; and
(ii) The index and description of DOI's major information and record
locator systems, which are available in DOI's reading rooms, through the
FOIA home page, or by contacting one of the bureau FOIA Officers.
(4) Another source of information is DOI's Library, which contains
over one million holdings dealing with a broad range of matters
pertaining to the Department's mission. You may wish to visit the
Library, which is located at the C Street entrance of the Main Interior
Building, 1849 C Street, NW., Washington, DC 20240 (see Appendix A to
this part). The Library is open to the public for on-site reference use
from 7:45 a.m.-5:00 p.m., Monday-Friday (excluding Federal legal public
holidays). Additional information regarding the Library's holdings and
services may be obtained by visiting its home page (see Appendix B to
this part).
(b) Published information and rules. Under 5 U.S.C. 552(a)(1),
bureaus are required to publish certain information in the Federal
Register for the guidance of the public, such as descriptions of their
central and field organizations, functions, procedures, substantive
rules, and statements of general policy.
(c) Reading room materials. (1) Under 5 U.S.C. 552(a)(2), each
bureau is responsible for making the information listed in paragraphs
(c)(1)(i) through (v) of this section available for public inspection
and copying unless the materials are promptly published and copies
offered for sale. Bureaus must make any such records created on or after
November 1, 1996, available by the Internet or by other computer
telecommunication methods or electronic means as quickly as practicable.
(i) Final opinions rendered in the adjudication of cases.
(ii) Policy statements and interpretations which have been adopted
by DOI and are not published in the Federal Register.
(iii) Administrative staff manuals and instructions affecting the
public.
(iv) Copies of records that have been or are likely to become the
subject of frequent FOIA requests and an index of those documents.
(v) A subject-matter index of its reading room records (see Sec.
2.5).
(2) Bureaus may, at their discretion, make other records available
for inspection and copying in reading rooms or via their home pages.
(d) Inspection and copying of reading room materials. (1) Reading
room materials are available for inspection and copying at the locations
listed in Appendix A to this part and, in some cases, through the
Internet; however, not all records may be available in all locations.
(i) If you need assistance in determining the location and
availability of the records you are seeking, contact the appropriate
reading room or FOIA Contact listed in Appendix A to this part.
(ii) If you file a FOIA request for reading room materials and the
information you request is available on the Internet, the FOIA Contact
should refer you to the appropriate Web site. If the reading room
materials are not available electronically, the FOIA Contact may either
send you the materials, or forward your request to the appropriate
reading room and provide the name and telephone number of a staff member
you may contact. You may, nevertheless, ask the bureau to process your
request as any other FOIA request.
(2) A bureau may delete exempt information from some records before
making them available for inspection and copying in a reading room. (See
Sec. 2.21(c)). You may not appeal a bureau's decision to delete exempt
information from a document it places in a public reading room. If you
would like access to the entire record, you must submit a FOIA request
under the procedures in Subpart C of this part. However, this does not
guarantee that the entire record will be released. If you submit such a
FOIA request and are not satisfied with the response, you may file an
appeal as described in Sec. 2.28.
(3) There is no charge to inspect reading room materials. Copying
services will be provided at the fees specified in Appendix C to this
part. However, other fees may apply where a bureau has a statute that
specifically requires the bureau to set fees for particular types of
records.
[[Page 12]]
(4) If you submit a fee waiver request for information in a reading
room, it will be processed under the procedures in Sec. 2.19.
Sec. 2.5 Does DOI maintain an index of its reading room materials?
Each bureau will maintain and make available for public inspection
and copying a current subject-matter index of its reading room materials
(5 U.S.C. 552(a)(2)). The index will be available in the bureau's
reading room(s) and in their electronic reading rooms on the Internet.
Each index will be updated regularly.
Sec. 2.6 Will the Department accept written requests, including fax,
e-mail, or telephone requests, for routinely available information?
Yes. Although a request for this type of information is not a FOIA
request, the bureau will send you the requested information and charge
you for the copies, according to the fee schedule in Appendix C to this
part. While the bureau will attempt to respond to oral requests (those
made by telephone or otherwise) for routinely available information, you
should submit complex requests in writing to avoid any risk of
misunderstanding.
Subpart C_Requests for Records under the FOIA
Source: 67 FR 64530, Oct. 21, 2002, unless otherwise noted.
Sec. 2.7 What do I need to know before filing a FOIA request?
(a) If the records you are seeking are not routinely available as
described in Subpart B of this part, you must submit a FOIA request to
the FOIA Contact at the bureau office where you believe the records are
maintained (see Appendix A to this part). FOIA requests must be
submitted in writing (this includes fax and e-mail)--DOI does not accept
oral FOIA requests. Before submitting a request, you may find it useful
to contact the appropriate bureau FOIA Contact or the Departmental FOIA
Officer for additional information concerning DOI's FOIA Program. You
may find the Department's Reference Guide, which is available
electronically through the FOIA home page and in paper form as well,
helpful in making your request.
(b) The FOIA requires that we release records unless they are
protected by one of nine exemptions (see Appendix E to this part).
(c) The Act does not require a bureau to answer questions that may
be asked in a FOIA request.
(d)(1) In order for a record to be considered subject to your FOIA
request, it must be in the bureau's possession and control at the time
the bureau begins its search for responsive records. There is no
obligation for the bureau to create or compile a record to satisfy a
FOIA request (for example, by combining or compiling selected items from
manual files, preparing a new computer program, calculating proportions,
percentages, frequency distributions, trends and comparisons, or
creating maps). Normally if a bureau is extracting information from an
existing computer database, this would not constitute the creation of a
new record. However, a bureau has the option of creating a new record
if--
(i) Doing so will provide a more useful response to the requester,
(ii) It is less burdensome than providing the existing records, and
(iii) The newly created record is fully responsive to the request.
(2) The fee in this case will not be more than the fee for the
individual records. Fees will be charged consistent with the schedule in
Appendix C to this part.
Sec. 2.8 What information do I include in my request?
(a) Description of records.
(1) You must describe the requested records in enough detail to
enable an employee familiar with the subject area of the request to
locate the record(s) with a reasonable amount of effort. Be as specific
as possible in describing the records you are seeking. For example,
whenever possible:
(i) Identify the date, title or name, author, recipient, and the
subject of the record; the office that created it, the present custodian
of the record and the geographical location (e.g., headquarters or a
regional/field office); the timeframe for which you are seeking
[[Page 13]]
records; and any other information that will assist the bureau in
locating the material.
(ii) If the request involves a matter in litigation, state the case
name and docket number as well as the court in which the case was filed.
(2) The bureau will not begin processing your request until any
issues regarding the scope or nature of your request are resolved. When
a request is overly broad, unclear, involves an extremely voluminous
amount of records, or a burdensome search, the bureau will contact you
to identify and clarify the records you are seeking. It will work with
you to define the subject matter, clarify terms that are used, or narrow
the scope of your request.
(3) The time limit for responding to your request will not start
until the bureau receives a request reasonably describing the records or
clarifying the initial request. If the bureau asks you for additional
clarification and does not hear from you within 20 workdays, it will
assume that you are no longer interested in pursuing your request and
will close the file on your request.
(b) Fee information.
(1) Unless you request a fee waiver (see paragraph (b)(2) of this
section), you should state that you are willing to pay all fees
associated with processing your request or that you are willing to pay
up to a specified amount. The bureau will not begin processing your
request until this written assurance has been received. If the bureau
anticipates that the fees for processing your request exceed the amount
you have indicated you are willing to pay, the bureau will notify you
that it needs your assurance of payment of fees as high as are
anticipated, or an advance payment (see Sec. 2.18(b) and (c)). If the
bureau does not hear from you within 20 workdays, it will assume that
you are no longer interested in this matter and will close the file on
your request.
(2) You may request a fee waiver. If you are seeking a fee waiver,
you must provide sufficient justification to support your fee waiver
request (see the criteria in Sec. 2.19 and in Appendix D to this part).
Failure to provide adequate justification will result in a denial of
your fee waiver request. Remember that if you are requesting a fee
waiver, the burden is on you to demonstrate in your request that you are
entitled to it. The bureau will not begin processing your request until
the fee issues are resolved. As an option, at the same time you request
a fee waiver you may state your willingness to pay regardless of whether
a fee waiver is granted. This will permit the bureau to process your
request for records at the same time it is considering the fee waiver
request. If you are required to pay a fee, and it is later determined on
appeal that you are entitled to a full or partial fee waiver, an
appropriate refund will be made.
(3) You should indicate what fee category you are in, i.e., if you
are a commercial-use requester, news media, educational institution/
noncommercial scientific institution, or other requester (see Sec. Sec.
2.3 and 2.17(a)). If you submit a FOIA request on behalf of another
person or organization (for example, if you are an attorney submitting a
request on behalf of a client), it is the underlying requester's
identity and intended use that determines the fee category. If your fee
category is unclear to the bureau, the 20-workday statutory time limit
for processing your request will not begin to run (see Sec. 2.12(b))
until this matter has been resolved. If the bureau requests additional
clarification and does not hear from you within 20 workdays, it will
assume that you are no longer interested in this matter and will close
the file on your request.
(c) Mailing address information: Your postal address is required for
the bureau to mail any responsive documents to you.
(d) The following information will assist the bureau in processing
your request:
(1) The words ``FOIA REQUEST'' (prominently displayed) on the
request letter and the envelope, or subject line of a request sent via
e-mail or fax, or ``PRIVACY ACT REQUEST'' when requesting records
pertaining to yourself that you believe are covered by the Privacy Act,
as well as citing the appropriate act in your letter;
(2) Your telephone number (where you can be reached during normal
business hours), e-mail address and fax
[[Page 14]]
number, if available, in case the bureau, or the Department needs to
communicate with you about your request. This information is very
important.
(3) A list of all the bureau FOIA Contacts to which you are sending
your request. For the quickest possible handling, you should address a
separate copy of your request to each bureau FOIA Contact where you
believe the records are maintained.
(4) When making a request for personal records about another
individual, a written authorization from that individual and any other
information required by the Privacy Act system of records notice; or
proof that the individual is deceased (for example, a copy of a death
certificate or an obituary) as the Privacy Act does not apply to a
deceased individual. (Note: Information about a deceased individual may
be subject to protection under exemption (6) of the FOIA if the release
of the information could result in an invasion of the privacy of a
living individual.)
Sec. 2.9 May I specify the form or format of disclosure?
Generally, you may choose the form or format of disclosure for
records that you request under the FOIA (5 U.S.C. 552(a)(3)(B)). Bureaus
must provide the record in the requested form/format if the office
responding to the request can readily reproduce the record in that form/
format with reasonable efforts. However, if the process of providing the
information in the requested format would damage or destroy an original
document, it may not be possible to honor your format request. Bureaus
must make reasonable efforts to maintain their records in forms or
formats that are reproducible. You may be charged the direct costs
involved in converting information to the requested format if the bureau
normally does not maintain the information in that format.
Sec. 2.10 Where do I send my request?
(a) DOI does not have a central location where you may submit your
FOIA request nor does it maintain a central index or database of
documents in its possession. DOI's files are decentralized and are
maintained by various bureau offices throughout the country.
(b) Submit your request in writing to the FOIA Contact at the bureau
office where you believe the records are maintained. If it is unclear
where to send your request, seek assistance from the FOIA Contact of the
bureau that manages the programs whose records you are requesting or the
Departmental FOIA Officer. You may have to do a little research to find
the proper office to handle your inquiry, but you will save time in the
long run if you send your request directly to the FOIA Contact at the
appropriate bureau office. The bureau will process your request as
follows:
(1) A request to a bureau headquarters office may be presumed to
seek only records from the headquarters office, unless the request
specifies otherwise.
(2) A request to a regional/field office of a bureau may be presumed
to seek only records at that office, unless the request specifies
otherwise.
(3) If a request to a bureau states that it seeks records located at
another specific office of the same bureau, the appropriate FOIA Contact
will refer the request to the other office. If the request states that
it seeks records from other unspecified offices within the same bureau,
the FOIA Contact will send the request to the Bureau FOIA Officer who
will refer it to those offices that, to the best of his/her knowledge,
have or are likely to have responsive records.
(4) If a request to a bureau states that it seeks records of another
specified bureau, the bureau will refer the request to the appropriate
bureau for response. If the request states that it seeks records from
other unspecified bureaus, the FOIA Contact will send the request to the
Bureau FOIA Officer who will ensure that the request is referred to
those bureaus which, to the best of his/her knowledge, have or are
likely to have responsive records. In either case, the Bureau FOIA
Officer will notify you of the referral in writing and provide the name
of a contact in the other bureau(s) to which the referral was made.
[[Page 15]]
Sec. 2.11 Why is it important to send my request to the right office?
The bureau and office FOIA Contacts listed in Appendix A to this
part have primary responsibility for responding to FOIA requests.
Failure to send your request to the FOIA Contact at the appropriate
bureau office may delay processing, because the time limit for the
bureau to respond will not begin to run until a request complying with
Sec. Sec. 2.8 and 2.10 is received by the bureau office where the
records are maintained. The processing of your request may be delayed if
you send it to the Secretary of the Interior (or other high-level
officials), the Office of Public Affairs/Communications, the DOI FOIA
Officer, or the Department/bureau's webmaster.
Sec. 2.12 When can I expect the response?
(a) Basic time limit. Ordinarily, a bureau has 20 workdays from the
date of receipt to determine whether to grant or deny your FOIA request
(see paragraph (b) of this section). The bureau will notify you
immediately upon reaching its decision. If you have not received a
response within 20 workdays, or 30 workdays if an extension has been
taken (see Sec. 2.13) (be sure to allow for mailing time), you may
contact the bureau to ask about the delay (see Appendix A to this part).
You also have the right to consider any nonresponse within these time
limits as a denial of records and file a formal appeal (see Sec.
2.28(a)(3)) or lawsuit. These time limits do not apply to requests for
expedited processing (see Sec. 2.14).
(b) Running of basic time limit. The 20 workday time limit begins to
run when a request complying with the procedures in Sec. Sec. 2.8 and
2.10 is received by the FOIA contact at the bureau office that has the
records you are seeking. This means that all issues regarding fees and
the scope of your request must be resolved before the bureau will begin
processing your request.
Sec. 2.13 When may the bureau take a time extension to respond to my
request?
(a) The bureau may extend the 20-workday time limit for 10 more
workdays when it needs to:
(1) Search for and collect the requested records from multiple
offices; or
(2) Search for, collect, and examine a voluminous amount of separate
and distinct records sought in a single request; or
(3) Consult with another agency having a substantial interest in the
determination of the request or with one or more bureaus of the
Department having substantial subject-matter interest in the request.
(b) If the bureau intends to take an extension under this
subsection, it will notify you in writing and provide the reason for the
extension and the date it expects to make a determination on your
request.
(c) If an extension is necessary and the bureau is unable to respond
to your request within 30 workdays, it will notify you in writing when
you may expect a final response and advise you of your appeal rights. If
an extension is taken and you have not received a response in 30
workdays, you may consider the request denied and file an appeal under
Sec. 2.28(a)(3) or file a lawsuit.
(d) A bureau may not take an extension of time to decide whether to
grant a request for a fee waiver.
Sec. 2.14 When can I get expedited processing?
(a) When requested, a bureau will provide expedited processing if
you demonstrate to the satisfaction of the bureau that the request
involves:
(1) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(2) An urgency to inform the public about an actual or alleged
Federal Government activity if the request is made by a person primarily
engaged in disseminating information. In most situations, a person
primarily engaged in disseminating information will be a representative
of the news media. The requested information must be the type of
information which has particular value that will be lost if not
disseminated quickly, and ordinarily
[[Page 16]]
refers to a breaking news story of general public interest. However,
information of historical interest only, or information sought for
litigation or commercial activities would not qualify, nor would a news
media deadline unrelated to breaking news; or
(3) The loss of substantial due process rights.
(b) A request for expedited processing should be submitted with your
FOIA request. For a prompt determination, you must submit a request
complying with the requirements of Sec. Sec. 2.8 and 2.10 to the FOIA
Contact at the bureau office that maintains the records you are seeking.
(c) If you are seeking expedited processing, you must submit a
statement explaining in detail the basis for your request. You must
certify in your letter that your need for expedited processing is true
and correct to the best of your knowledge and belief. For example, a
requester within the category of paragraph (a)(2) of this section, if
not a full time member of the news media, must establish that he or she
is a person whose main professional activity or occupation is
information dissemination, though it need not be his/her sole
occupation.
(d) Within 10 calendar days of receipt of your request, the bureau
will notify you whether it will grant expedited processing. If expedited
processing is granted, the bureau will give priority to that FOIA
request and process the request as soon as practicable. If expedited
processing is denied, the bureau will notify you of your right to appeal
the decision on expedited processing. Appeals of denials of requests for
expedited processing will be processed ahead of other appeals (see Sec.
2.32(b)). If the bureau has not responded to your request for expedited
processing within 10 calendar days, you have a right to file an appeal
for nonresponse (see Sec. 2.28(a)(7)).
Sec. 2.15 Will I be charged fees?
Bureaus will charge fees consistent with the provisions in
Sec. Sec. 2.16 and 2.17. The fee schedule in Appendix C to this part
applies to all bureaus of the Department.
Sec. 2.16 How are fees determined?
(a) Authority. Bureaus are authorized to charge fees to recover the
direct costs of searching for, reviewing (commercial-use requesters
only) and duplicating documents to respond to a FOIA request. However,
nothing in this subsection will supersede any statutory authority which
requires the bureau to charge specific fees for certain types of
records.
(b) Policy. (1) Unless waived under the criteria in Sec. Sec. 2.19
or 2.20, bureaus will charge fees for responding to FOIA requests
consistent with the provisions of this section and the fee schedule in
Appendix C.
(2) A bureau normally will not charge a fee where the fee would be
$30 or less. However, if the bureau has a reasonable basis to conclude
that a requester or group of requesters has divided a request into a
series of requests on a single subject or related subjects to avoid
fees, the requests may be aggregated and fees charged accordingly.
Bureaus may presume that multiple requests of this type that are made
within a 30-day period have been made in order to avoid fees. Where
requests are separated by a longer period, bureaus will aggregate them
only where there exists a solid basis for determining that aggregation
is warranted under all the circumstances involved. Multiple requests
involving unrelated matters will not be aggregated.
(3) Where a bureau responds to a request on behalf of more than one
bureau, the fees that would be chargeable by all bureaus involved will
be considered in determining whether the total FOIA processing fee is
$30 or less. If a bureau is responding on behalf of more than one
bureau, and you fall under one of the fee categories in Sec. 2.17(a)(2)
or (a)(3), you will be entitled to receive up to a total of 100 pages of
duplication without charge (there is no charge for searching for
responsive records). If a bureau is responding on behalf of more than
one bureau, and you fall under the fee category in Sec. 2.17(a)(4), you
will be entitled to receive up to a total of 100 pages of duplication
and two hours of search time without charge.
(4) If a bureau obtains research data solely in response to your
FOIA request, it may charge you a reasonable
[[Page 17]]
fee equaling the full cost of obtaining the research data from the
recipient.
(c) Searches. Searches will be conducted in the most efficient and
least expensive manner, so as to minimize costs for both you and the
bureau. Except where provided in Sec. Sec. 2.17(a)(2) and (a)(3),
bureaus will charge for time spent in the following search activities:
(1) Time spent in trying to locate records which come within the
scope of the request, whether or not documents responsive to the request
are located or the records located are exempt from disclosure; and
(2) Direct costs involving the use of computer time to locate
requested records.
(d) Reviews (Commercial-use requests only). (1) Bureaus will charge
commercial-use requesters (see Sec. 2.17(a)(1)) for time spent by
bureau staff and attorneys in reviewing requested records for
releasability. (See Sec. 2.3(e).)
(2) Review costs will be assessed even if a record ultimately is not
disclosed.
(e) Duplication. Bureaus will charge duplication fees according to
the fee schedule in Appendix C to this part.
(f) Categories of requesters. There are four categories of
requesters for the purposes of determining fees--commercial-use,
educational and noncommercial scientific institutions, news media, and
all others. (See Sec. Sec. 2.3 and 2.17.)
Sec. 2.17 How will my requester category affect the fees that I am charged?
(a) When you submit a FOIA request, you must specify your fee
category. Based on the information you provide, the bureau office
processing your request will decide your fee category and charge as
follows:
(1) Commercial-use requesters are charged fees for costs incurred in
document search, review, and duplication.
(2) Educational/noncommercial scientific institutions are 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) will be provided without charge. The bureau will not charge such
requesters for document search and review.
(3) News media requesters are 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) will be provided without
charge. The bureau will not charge such requesters for document search
and review.
(4) Requesters not covered by paragraphs (a)(1) through (a)(3) of
this section--``other requesters'' are charged fees for document search
and duplication, except that they are entitled to the first two hours of
search time and the first 100 pages of paper copies without charge (or
the equivalent cost thereof if the records are in some other form). The
bureau will not charge such requesters for document review.
(b) If you do not submit sufficient information in your FOIA request
for the bureau to determine your fee category (see paragraphs (a)(1)
through (a)(4) of this section), the bureau may ask you to provide
additional clarification. This applies to all requesters. The bureau
will notify you promptly when additional information is needed. In these
circumstances, the 20-workday statutory time limit for responding to
your request will not begin to run until you provide sufficient
information. If the bureau requests additional clarification and does
not hear from you within 20 workdays, it will assume that you are no
longer interested in this matter and will close the file on your
request.
(c) The following table summarizes the chargeable fees for each
category of requester.
----------------------------------------------------------------------------------------------------------------
Category Search fees Review fees Duplication fees
----------------------------------------------------------------------------------------------------------------
Commercial Use.................. Yes..................... Yes..................... Yes.
Educational Institution......... No...................... No...................... Yes (100 pages free).
Non-Commercial Sciencific No...................... No...................... Yes (100 pages free).
Institution.
News Media...................... No...................... No...................... Yes (100 pages free).
All other....................... Yes (2 hours free)...... No...................... Yes (100 pages free).
----------------------------------------------------------------------------------------------------------------
[[Page 18]]
[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58324, Sept. 30, 2004]
Sec. 2.18 How are fees assessed and collected?
(a) Threshold for charging fees. Except in those situations covered
by Sec. 2.16(b)(2), the bureau will not charge you if the fee is $30 or
less.
(b) Notice of anticipated fees. (1) Unless you have been granted a
fee waiver or have previously agreed to pay all the fees associated with
your request, or the anticipated fee is $30 or less, the bureau will:
(i) Promptly notify you of the estimated costs and ask you to
provide written assurance of payment of all fees or fees up to a
designated amount; and
(ii) Give you an opportunity to modify your request at that time to
reduce the fee.
(2) After the bureau begins processing your request, if it finds
that the actual cost will exceed the amount you previously agreed to
pay, the bureau will:
(i) Stop processing your request;
(ii) Promptly notify you of the higher amount and ask you to provide
written assurance of payment; and
(iii) Give you an opportunity to modify your request to reduce the
fee.
(c) Advance payment. (1) The bureau will require advance payment
when the estimated fee is over $250 and--
(i) You have never made a FOIA request to DOI requiring you to pay
fees; or
(ii) You did not pay a previous FOIA fee promptly.
(2) If you have previously failed to pay a fee within 30 calendar
days of the date of billing, the bureau will require you to:
(i) Pay the full amount owed plus any applicable interest penalties
(see paragraph (g) of this section) and to make an advance payment of
the full amount of the estimated fee of the new request; or
(ii) Demonstrate that you have, in fact, paid the prior fee.
(3) At the same time the bureau notifies you that an advance payment
is due, it will give you an opportunity to modify your request to reduce
the fee.
(d) Resolving the fee issue. The bureau will not start processing
your request until the fee issue has been resolved (see Sec. Sec.
2.8(b) and 2.12(b)). If the bureau seeks clarification from you about a
fee issue and does not hear from you within 20 workdays, it will assume
that you are no longer interested in this matter and will close the file
on your request.
(e) Billing procedures. If you are required to pay a fee associated
with your request, the bureau that processes your request will send you
a bill for collection.
(f) Form of payment. You should submit a check or money order made
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. Some bureaus accept
payment by credit card. Contact the bureau to determine what forms of
payment it accepts.
(g) Failure to pay fees. The bill for collection or the response
letter will include a statement that interest will be charged in
accordance with 31 U.S.C. 3717 and implementing regulations, if the fees
are not paid within 30 calendar days of the date of the bill. This
requirement does not apply if the requester is a State, local, or tribal
government. The Debt Collection Improvement Act of 1996 will be used, as
appropriate, to collect the fees (see Public Law 104-134).
[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58324, Sept. 30, 2004]
Sec. 2.19 When will bureaus waive fees?
(a) Fees for processing your request may be waived if you meet the
criteria listed in paragraph (b) of this section and Appendix D to this
part. The burden is on you to justify entitlement to a fee waiver.
Requests for fee waivers are decided on a case-by-case basis. The fact
that you have received a fee waiver in the past does not mean you are
automatically entitled to a fee waiver for every request you may submit,
because the essential element of any fee waiver determination is whether
the release of the particular documents sought in the request will
likely
[[Page 19]]
contribute significantly to public understanding of the operations or
activities of the Government. The bureau will rely on the fee waiver
justification you have submitted in your request letter. If you do not
submit sufficient justification, your fee waiver request will be denied.
The bureau may, at its discretion, communicate with you to request
additional information if necessary. However the bureau must make a
determination on the fee waiver request within the statutory time limit,
even if the agency has not received such additional information. In
certain circumstances, a partial fee waiver may be appropriate, if some,
but not all, of the requested records are likely to contribute
significantly to public understanding of the operations and activities
of the Government.
(b) Bureaus will waive fees (in whole or part) if disclosure of all
or part of the information is in the public interest because its
release--
(1) Is likely to contribute significantly to public understanding of
the operations or activities of the Government; and
(2) Is not primarily in the commercial interest of the requester.
(c) If a bureau denies your request for a fee waiver, it will notify
you, in writing, of the following:
(1) The basis for the denial, including a full explanation of why
your fee waiver request did not meet DOI's fee waiver criteria (see
paragraph (b) of this section and Appendix D to this part);
(2) The name(s) and title(s) or position(s) of each person
responsible for the denial;
(3) The name and title of the Office of the Solicitor attorney
consulted; and
(4) A statement that the denial may be appealed within 30 workdays
after the date of the denial letter to the FOIA Appeals Officer (see
Appendix A to this part) under the procedures in Sec. 2.30.
Sec. 2.20 When will bureaus grant discretionary fee waivers?
(a) A bureau may waive fees at its discretion if a request involves:
(1) Furnishing a copy of a document that the bureau has reproduced
for free 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 nonprofit
organizations having an official, voluntary or cooperative relationship
with the Department to assist the individual or organization in working
with the Department;
(6) Furnishing a reasonable number records to members of the U.S.
Congress, 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 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);
or
(8) Furnishing one copy of a single record in order to assist the
requester in obtaining financial benefits to which he or she may be
entitled (e.g., veterans or their dependents, employees with Government
employee compensation claims).
(b) You cannot appeal the denial of a discretionary fee waiver.
Sec. 2.21 How will the bureau respond to my request?
(a) After all the criteria in Sec. Sec. 2.8 and 2.10 have been met,
the bureau will make a reasonable effort to search for records
responsive to your request. In determining which records are responsive
to your request, the bureau will include any records in its possession
and control as of the date it begins its search. This will include
searching for records in an electronic form/format, except where it
would interfere significantly with the bureau's automated information
systems.
[[Page 20]]
(b) In response to your request, the bureau will do one of two
things:
(1) Include the requested records with the response letter or notify
you of how, when, and where the records will be made available; or
(2) Deny part or all of your request, except that the bureau may,
consistent with Departmental policy, determine that a discretionary
release is appropriate under the particular circumstances. Your request
will be denied or partially denied only if one of the nine statutory
exemptions listed in Appendix E to this part applies to all or part of
the records you have requested.
(c) Where a document contains both exempt and nonexempt material,
the bureau will generally separate and release the nonexempt
information. When disclosing a record in part, the bureau will indicate
on the released portion of the record how much information was deleted,
unless doing so would harm an interest protected by the exemption used
to withhold the information. Further, if technically feasible, the
amount of information deleted and the exemption used to withhold the
information will be indicated where the deletion is made. If the
nonexempt material is so intertwined with the exempt material that
disclosure of it would leave only meaningless words and phrases, the
entire portion may be withheld.
(d) If a bureau denies your request for records in whole or in part,
the bureau's response will include:
(1) A reference to the specific exemption or exemptions authorizing
the withholding;
(2) An explanation of the reason(s) for the denial;
(3) An estimate of the volume of information being withheld. The
bureau will make a reasonable effort to estimate the volume of any
records denied, or portions of records (e.g., 100 pages, 4 Federal
Record Center boxes, 1,000 kilobytes, etc.), unless such an estimate
would harm an interest protected by the exemption used to withhold the
information.
(4) The name(s) and title(s) of the person(s) responsible for the
denial;
(5) The name and title of the Office of the Solicitor attorney
consulted; and
(6) A statement that the denial may be appealed to the FOIA Appeals
Officer (see Appendix A to this part), within 30 workdays of the date of
the denial letter or 30 workdays after the records have been released
under the procedures in Sec. 2.30.
(e) If records do not exist within DOI, cannot be located, are not
reasonably described, or if a procedural issue remains unresolved (e.g.,
a fee issue), the bureau will respond to you in writing, including the
following information, as applicable:
(1) An explanation of the basis of the decision;
(2) The name(s) and title(s) of the person(s) responsible for the
decision; and
(3) A statement that the matter may be appealed within 30 workdays
of the date of the response, to the FOIA Appeals Officer under the
procedures in Sec. 2.30.
(f) The bureau must consult with the Office of the Solicitor if it
is considering withholding a requested record or denying a fee waiver.
(g) If any fees are due, the bureau will notify you in writing of
the amount.
(h) All bureau responses will include the name and telephone number
of a contact person in case you have questions concerning the response.
(i) Requests for information concerning coal under the Mineral
Leasing Act or the Mineral Leasing Act for Acquired Lands are subject to
special rules (see Appendix F to this part).
Sec. 2.22 What happens if a bureau receives a request for records it
does not have or did not create?
(a) Consultations/referrals within DOI. (1) If a bureau receives a
request for records not in its possession, but which it knows another
bureau has or is likely to have, it will refer the request to that
bureau(s) for response. It also will notify you of the referral in
writing and provide the name of a contact in the other bureau(s) to
which the referral was made. The time limit for responding to your
request starts when the request reaches the bureau office that has the
records.
(2) If a bureau (other than the Office of Inspector General)
receives a request
[[Page 21]]
for records in its possession that another bureau created or is
substantially concerned with, it will consult with the other bureau
before deciding whether to release or withhold the records. As an
alternative, the bureau may refer the request along with the records to
that bureau for direct response. It will notify you of the referral in
writing and provide the name of a contact in the other bureau(s) to
which the referral was made. Such a referral does not restart the
statutory time limit for responding to your request.
(b) Consultations/referrals with agencies outside DOI. (1) If a
bureau receives a request for records not in its possession, but which
the bureau believes may be in the possession of another Federal agency,
the bureau will return your request and advise you to submit it directly
to the other agency. If you still believe that the records exist within
DOI, you should notify the bureau FOIA contact of any additional
information which leads you to believe the records exist and where they
might be found. Alternatively, you may treat such a response as a denial
of records and file an appeal.
(2) If, in response to a request, a bureau locates documents that
originated with another Federal agency, it will refer the request, along
with any responsive document(s), to that agency for a release
determination and direct response. If the bureau refers the documents to
another agency, it will notify you of the referral in writing and
provide the name of a contact at the other agency. You may treat such a
response as a denial of records and file an appeal. However, in the
following situations, the bureau will make the release determination,
after consulting with the originating agency.
(i) When the record is of primary interest to DOI (a record is of
primary interest to DOI if it was developed or prepared according to DOI
regulations or directives, or in response to a DOI request);
(ii) If DOI is in a better position than the originating agency to
assess whether the record is exempt from disclosure;
(iii) If the originating agency is not subject to the FOIA; or
(iv) When it is more efficient or practical depending on the
circumstances.
(3) If a bureau receives a request for records which have been
classified by another agency under Executive Order 12958, Classified
National Security Information, or superseding Executive order, it must
refer the request to that agency for response.
[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58324, Sept. 30, 2004]
Sec. 2.23 How will a bureau handle a request for commercial or financial
information that it has obtained from a person or entity outside the
Federal Government?
(a) If a bureau receives a FOIA request for records containing
commercial or financial information submitted by a person or entity
outside the Federal Government, under Executive Order 12600,
Predisclosure Notification Procedures for Confidential Commercial
Information, or superseding Executive order, the bureau must provide the
submitter with prompt written notice of the request, except as provided
in paragraph (h) of this section, whenever:
(1) The submitter has designated the information as confidential
commercial or financial information, or
(2) The bureau has reason to believe that the information may be
protected under exemption (4).
(b) The notice to the submitter will--
(1) Include a copy of the FOIA request.
(2) Describe the information requested or include copies of the
pertinent records.
(3) Advise the submitter of the procedures for objecting to the
release of the requested material and specify the time limit for
responding.
(4) Give the submitter no less than 10 workdays, from receipt (or
publication as set forth in paragraph (c) of this section) of the
bureau's notice, to object to the release and to explain the basis for
the objection, if any.
(5) Advise the submitter that:
(i) Information contained in his/her objections may be subject to
disclosure under the FOIA if the bureau receives a FOIA request for it;
and
[[Page 22]]
(ii) If the submitter's objections contain commercial or financial
information and a requester asks for the objections under the FOIA, the
notification procedures of this subsection will apply.
(6) Advise the submitter that it is the bureau, rather than the
submitter, that is responsible for deciding whether the information will
be released or withheld.
(7) If the submitter designated the material as confidential
commercial or financial information 10 or more years before the request,
request the submitter's views on whether he/she still considers the
information to be confidential.
(c) Where a large number of submitters is involved, the bureau may,
rather than providing written notice to each submitter, publish a notice
in a manner reasonably calculated to reach the attention of the
submitters (e.g., in newspapers/newsletters, the bureau's Web site, or
the Federal Register).
(d) Whenever a bureau notifies a submitter that it may be required
to disclose information in response to a FOIA request, the bureau also
will notify you that it is giving the submitter an opportunity to review
and comment on the material.
(e) If the submitter has any objection to disclosure he/she must
submit a detailed written statement including the following:
(1) The justification for withholding any portion of the information
under any exemption of the FOIA. In the case of exemption (4), there
must be a specific and detailed discussion of:
(i) Whether the Government required the information in question to
be submitted, and if so, how substantial competitive or other business
harm would likely result from release; or
(ii) Whether the submitter provided the information voluntarily and,
if so, how the information in question fits into a category of
information that the submitter customarily does not release to the
public.
(2) A certification that the information is confidential, has not
been disclosed to the public by the submitter, and is essentially non-
public because it is not routinely available to the public from other
sources.
(3) If not already provided, a telephone number (where the submitter
can be reached during normal business hours), an e-mail address, and a
fax number (if available) is important information that will help the
bureau or Department communicate with the submitter.
(f) The bureau will review and consider all objections to release
that are received within the time specified in the notice to the
submitter. However, it is the bureau, rather than the submitter, that is
responsible for deciding whether the information should be released or
withheld. If a submitter fails to respond to the bureau within the time
limits specified in the notice, the bureau will presume that the
submitter has no objection to disclosure of the information.
(g) If the bureau decides to release records over the submitter's
objections, it will inform the submitter and you in writing. The notice
to the submitter will be sent by certified mail, return receipt
requested, to the submitter's last known address and will include copies
of the records the bureau intends to release and the bureau's reasons
for deciding to release them. The notice also will inform the submitter
that it intends to release the records 10 workdays after receipt of the
notice by the submitter.
(h) The bureau will not consult with the submitter if:
(1) The bureau responsible for the decision determines that the
information is exempt from disclosure;
(2) The information has been lawfully published or otherwise made
available to the public, such as in response to an earlier FOIA request
or if the submitter has made the information public;
(3) Disclosure of the information is required by statute (other than
the FOIA) or regulation (other than this subpart);
(4) Disclosure of the information is prohibited by statute; or
(5) The designation of confidentiality made by the submitter appears
obviously frivolous. However, the bureau will notify the submitter of
any final decision to disclose the information 15 workdays prior to
releasing it.
[[Page 23]]
(i) The bureau will inform the submitter within 10 workdays of the
Department's receipt of a court complaint if you file a lawsuit for
access to any of the withheld records. Similarly, the bureau will notify
you within 10 workdays of the Department's receipt of a court complaint
if the submitter files a lawsuit to prohibit the bureau from disclosing
the records.
(j) If the bureau determines that the requested information is
protected from release by exemption (4) of the FOIA, the bureau has no
discretion to release the information as doing so would violate the
Trade Secrets Act, a criminal provision found at 18 U.S.C. 1905.
[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58325, Sept. 30, 2004]
Sec. 2.24 Is a submitter required to designate information that is
commercially or financially sensitive?
No. If in the course of responding to a FOIA request, a bureau
cannot readily determine whether the information obtained from a person
is commercially or financially sensitive information, the bureau will
obtain and consider the views of the submitter of the information and
provide the submitter an opportunity to object to any decision to
disclose the information.
Sec. 2.25 How will a bureau handle a request for Federally-funded research
data in the possession of a private entity?
In accordance with OMB Circular A-110, when published research
findings are produced under a grant or other Federal assistance awarded
to institutions of higher education, public and private hospitals, and
other quasi-public and private nonprofit organizations, and the findings
are used by a bureau in developing an agency action, e.g., a policy or
regulation, research data related to such findings are considered agency
records. This applies even if the bureau's data are in the possession of
the recipient of the Federal financial assistance (recipient).
(a) If you submit a FOIA request for such research data, the bureau
will require the recipient to provide the information to it within a
reasonable amount of time, so the bureau can consider the data for
release to the public under the FOIA.
(b) The bureau will notify you that it may charge you for any
additional fees incurred as a result of obtaining the research data from
the recipient. This fee is in addition to any fees the bureau may charge
to process your request under the FOIA.
(c) The bureau will forward a copy of the request to the recipient,
who is responsible for searching for and reviewing the requested
information in accordance with DOI's FOIA regulations (43 CFR part 2).
The recipient will forward a copy of any responsive records that are
located, along with his/her recommendations concerning the releasability
of the data, and the total cost incurred in searching for, reviewing,
and providing the data to the appropriate bureau FOIA contact.
(d) The bureau will review and consider the recommendations of the
recipient regarding the releasability of the requested data. However, it
is the bureau, rather than the recipient, that is responsible for
deciding whether the information will be released or withheld.
[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58325, Sept. 30, 2004]
Sec. 2.26 Does the bureau provide multitrack processing of FOIA requests?
(a) A bureau may use two or more processing tracks to distinguish
between simple and complex requests based on the amount of work and/or
time needed to process the request, including the number of pages
involved.
(b) If a bureau uses multitrack processing, it will advise
requesters in its slower track(s) of the criteria of its faster
track(s). For example, a bureau using multitrack processing may provide
requesters in its slower track(s) with an opportunity to limit the scope
of their requests in order to qualify for faster processing within the
specified limits of the bureau's faster track(s). A bureau doing so will
contact the requester by telephone or in writing, whichever is more
efficient in each case.
[[Page 24]]
Sec. 2.27 How will a bureau handle a request for information that is
contained in a Privacy Act system of records? (See DOI's Privacy Act
regulations (Subpart G of this part) for additional information.)
(a) When you request information pertaining to yourself that is
contained in a Privacy Act system of records applicable to you (i.e.,
the information contained in the system of records is retrieved by the
bureau using your name or other personal identifier), the request will
be processed under both the FOIA and the Privacy Act. If you request
information about yourself, you must submit certain identifying
information, usually an original signature (see the appropriate Privacy
Act system notice and, Subpart G of this part) before the bureau will
process your request. (Note: If you request information about yourself
that is not covered by the Privacy Act, e.g., the information may be
filed under another subject, such as an organization, activity, event,
or an investigation not retrievable by a name or personal identifier,
the request will be treated only as a FOIA request.)
(b) The Privacy Act never prohibits disclosure of material that the
FOIA requires to be released. Both a Privacy Act and a FOIA exemption
must apply to withhold information from you if the information you seek
is contained in a Privacy Act system of records applicable to you.
(c) Sometimes a request for Privacy Act information is submitted by
a ``third party'' (an individual other than the person who is the
subject of the Privacy Act record). If you request Privacy Act
information about another individual, the material will not be disclosed
without prior written approval by that individual unless--
(1) The release is provided for under one of the Privacy Act
conditions of disclosure (5 U.S.C. 552a(b)), one of which is that
Privacy Act information is releasable if it is required to be released
under the FOIA, or
(2) In most circumstances, if the individual is deceased. See Sec.
2.8(d)(4).
(d) In handling a request covered by paragraph (a) of this section,
the fee provisions and time limits under the FOIA will apply, except
that with regard to information that is subject to the Privacy Act, the
bureau will charge only for duplication and not for search and review
time (see Appendix C to this part). There will be no charge if the fee
for processing the request is $30 or less.
Subpart D_FOIA Appeals
Source: 67 FR 64530, Oct. 21, 2002, unless otherwise noted.
Sec. 2.28 When may I file an appeal?
(a) You may file an appeal when:
(1) Records or parts of records have been withheld;
(2) The bureau informs you that you have not adequately described
the records you are seeking, or that it does not possess responsive
records and you have reason to believe it does or you question the
adequacy of the bureau's search for responsive records;
(3) A decision has not been made on your request within the time
limits provided in Sec. 2.12;
(4) The bureau did not address all aspects of your request for
records;
(5) You believe there is a procedural deficiency (e.g., fees are
improperly calculated);
(6) A fee waiver has been denied; or
(7) A request for expedited processing has been denied or not
responded to on time. (Special procedures apply to this type of appeal
(see Sec. Sec. 2.14, 2.29(c), and 2.32(b)). An appeal of this type
relates only to the request for expedited processing and does not
constitute an appeal of your underlying request for records.
(b) Before filing an appeal, you may wish to communicate with the
contact person listed in the FOIA response or the bureau's FOIA Officer
to see if the issue can be resolved informally. Informal resolution of
your concerns may be appropriate where the bureau has not responded to
your request or where you believe the search conducted was not adequate.
In this latter instance, you may be able to provide additional
information that may assist the bureau in locating records. However, if
you wish to file an appeal, it must be received by the FOIA Appeals
Officer within the time limits in Sec. 2.29.
[[Page 25]]
Sec. 2.29 How long do I have to file an appeal?
(a) Appeals covered by Sec. Sec. 2.28(a)(1), (2), and (4) thru (6).
Your appeal must be received by the FOIA Appeals Officer no later than
30 workdays after the date of the final response or 30 workdays after
receipt of any records that are provided to you.
(b) Appeals covered by Sec. 2.28(a)(3). You may file an appeal any
time after the time limit for responding to your request has passed.
(c) Appeals covered by Sec. 2.28(a)(7). You should file an appeal
as soon as possible.
Sec. 2.30 How do I file an appeal?
(a) You must submit your appeal in writing, i.e., by mail, fax or e-
mail, to the FOIA Appeals Officer, U.S. Department of the Interior (see
Appendix A for the address). Your appeal must include the information
specified in paragraph (b) of this section. Failure to send your appeal
directly to the FOIA Appeals Officer may result in a delay in
processing.
(b) Your appeal must contain copies of all correspondence between
you and the bureau, including your request and the bureau's response (if
there is one). DOI will not begin processing your appeal and the time
limits for responding to your appeal will not begin to run until these
documents are received.
(c) You also should include in as much detail as possible any
reason(s) why you believe the bureau's response was in error.
(d) Include your name and daytime telephone number (or the name and
telephone number of an appropriate contact), e-mail address and fax
number (if available), in case DOI needs additional information or
clarification of your appeal.
(e) If you file an appeal concerning a fee waiver denial or a denial
of expedited processing, you should, in addition to complying with
paragraph (b) of this section, demonstrate fully how the criteria in
Sec. 2.19(b) (see Appendix D) or Sec. 2.14(a) are met. You also should
state in as much detail as possible why you believe the initial decision
was incorrect.
(f) All communications concerning your appeal should be clearly
marked with the words: ``FREEDOM OF INFORMATION APPEAL.''
Sec. 2.31 How will DOI respond to my appeal?
(a) Appeals will be decided by the FOIA Appeals Officer. When
necessary, the FOIA Appeals Officer will consult other appropriate
offices, including the Office of the Solicitor (in the case of all
denials of information and fee waivers, and other technical issues as
necessary).
(b) The final decision on an appeal will be in writing and will
state the basis for DOI's decision as follows:
(1) Decision to release or withhold records. (i) If the FOIA Appeals
Officer decides to release the withheld records or portions thereof, he/
she will make the records available or instruct the appropriate bureau
to make them available as soon as possible.
(ii) If the FOIA Appeals Officer decides to uphold in whole or part
the denial of a request for records, he/she will advise you of your
right to obtain judicial review.
(2) Non-possession of records. If the FOIA Appeals Officer decides
that the requested records exist, the bureau that has the records will
issue a response to you promptly and the FOIA Appeals Officer will close
the file on your appeal. If the FOIA Appeals Officer decides that the
requested records cannot be located or do not exist, he/she will advise
you of your right to treat the decision as a denial and seek judicial
review.
(3) Non-response to a FOIA request. If a bureau has not issued an
appropriate response to your FOIA request within the 20-workday
statutory time limit, the FOIA Appeals Officer will direct the bureau to
issue a response directly to you as soon as possible. If the bureau
responds to your request within 20-workdays after receipt of the appeal,
the FOIA Appeals Officer will close the file on your appeal. Otherwise,
the FOIA Appeals Officer will advise you that you may treat the lack of
a response by the bureau as a denial of your appeal and seek judicial
review.
(4) Incomplete response to a FOIA request. If a bureau has not
issued a complete response to your FOIA request, the FOIA Appeals
Officer will direct
[[Page 26]]
the bureau to issue a complete response directly to you as soon as
possible, and provide you with the name and telephone number of a
contact person. The FOIA Appeals Officer will close your FOIA appeal and
advise you that you may treat the incomplete response by the bureau as a
denial of your appeal and seek judicial review.
(5) Procedural deficiencies. If the FOIA Appeals Officer decides
that the bureau was in error, he/she will instruct the bureau to correct
the error and advise you accordingly. If the FOIA Appeals Officer
decides that the bureau acted properly, he/she will deny your appeal and
advise you of your right to seek judicial review.
(6) Fee waiver denials. If the decision is to grant your request for
a fee waiver, the FOIA Appeals Officer will advise the appropriate
bureau of the Department's decision and instruct the bureau to proceed
with processing the request or to refund any monies you have paid. If
the decision is to deny the fee waiver request, the Department will
advise you of your right to seek judicial review. You also should
contact the bureau office to make further arrangements to process your
request if you still wish to obtain the records.
(7) Denial of expedited processing. If the FOIA Appeals Officer
decides to grant expedited processing, he/she will direct the bureau to
process your request as soon as practicable. If your request for
expedited processing is denied on appeal, the FOIA Appeals Officer will
advise you of your right to seek judicial review of the denial of
expedited processing.
Sec. 2.32 How long does DOI have to respond to my appeal?
(a) The statutory time limit for responding to an appeal is 20
workdays after receipt of an appeal meeting the requirements of Sec.
2.30.
(b) If you request expedited processing of your appeal, you must
demonstrate to the Department's satisfaction that the appeal meets one
of the criteria under Sec. 2.14(a). The FOIA Appeals Officer will
advise you whether the Department will grant expedited processing within
10 calendar days of its receipt of your appeal. If the FOIA Appeals
Officer decides to grant expedited processing, he/she will give your
appeal priority and process it ahead of other pending appeals.
(c) If you have not received a decision on your appeal within 20
workdays, you have the right to seek review in a District Court of the
United States (see 5 U.S.C. 552(a)(4) and (6)). In the event that the
Department is unable to reach a decision within the given time limits,
the FOIA Appeals Officer will notify you of the reason for the delay and
the right to seek judicial review.
Sec. 2.33 How will the Department notify you and the submitter of
commercial or financial information when it makes an appeal decision
concerning such information?
(a) Notice of appeal decision. If the Department decides on appeal
to release records over the objections of a submitter who has advised
DOI that the information is protected from release by exemption (4), the
Department will advise you and the submitter that it intends to release
the records 10 workdays after the notice to the submitter regarding the
appeal decision.
(b) Notice of litigation.
(1) The Department will notify the submitter within 10 workdays of
receipt of the court complaint if you file a lawsuit seeking access to
any records found on appeal to be protected from release by exemption
(4).
(2) The Department will notify you within 10 workdays of receipt of
the court complaint if the submitter files a lawsuit requesting the
court to prohibit the Department from releasing information it alleges
qualifies for protection under exemption (4).
Subpart E_FOIA Annual Report
Source: 67 FR 64530, Oct. 21, 2002, unless otherwise noted.
Sec. 2.34 Where can I get a copy of DOI's FOIA annual report?
Under 5 U.S.C. 552(e), DOI is required to prepare an annual report
regarding its FOIA activities. The report includes information about
FOIA requests, appeals, and litigation against the Department. Copies of
DOI's annual FOIA
[[Page 27]]
report may be obtained from the Departmental FOIA Officer or by
contacting DOI's Library which is located at the C Street entrance of
the Main Interior Building (MIB), 1849 C Street, NW., Washington, DC
20240 (see Appendix A to this part). You may access the annual reports
electronically by visiting DOI's FOIA home page (see Appendix B to this
part for the Internet address).
Subpart F_Declassification of Classified Documents
Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.
Redesignated at 67 FR 64530, Oct. 21, 2002.
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 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
[[Page 28]]
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 G_Privacy Act
Source: 40 FR 44505, Sept. 26, 1975, unless otherwise noted.
Redesignated at 67 FR 64530, Oct. 21, 2002.
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.
(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
[[Page 29]]
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 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
[[Page 30]]
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 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
[[Page 31]]
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 Sec. Sec. 2.70 through 2.75 or the
decision of a court of competent jurisdiction.
(d) Bureau responsibility. The bureau responsible for a system of
records shall be responsible for assuring that employees with access to
the system are made aware of the requirements of this section and of 5
U.S.C. 552a(i)(1), which imposes criminal penalties for knowingly and
willfully disclosing a record about an individual without the written
request or consent of that individual unless disclosure is permitted
under one of the exceptions listed in Sec. 2.56 (b) and (c).
Sec. 2.53 Government contracts.
(a) Required contract provisions. When a contract provides for the
operation by or on behalf of the Department of a system of records to
accomplish a Department function, the contract shall, consistent with
the Department's authority, cause the requirements of 5 U.S.C. 552a and
the regulations contained in this subpart to be applied to such system.
(b) System manager. The head of the bureau responsible for the
contract shall designate a regular employee of
[[Page 32]]
the bureau to be the manager for a system of records operated by a
contractor.
Sec. Sec. 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 the specific exceptions
provided by Sec. 2.56 (c), an accounting shall be made.
[[Page 33]]
(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]
Sec. Sec. 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 34]]
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 35]]
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 36]]
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 Sec. Sec. 2.61 and 2.63 shall be decided for
the Department by the Assistant Secretary--Policy, Budget and
Administration or an official designated by the Assistant Secretary
after consultation with the Solicitor.
(2) The decision on an appeal shall be in writing and shall state
the basis for the decision.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983;
53 FR 3749, Feb. 9, 1988]
Sec. 2.66 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]
Sec. Sec. 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 37]]
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 38]]
(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 39]]
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 40]]
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 H_Legal Process: Testimony by Employees and Production of
Records
Source: 65 FR 46369, July 28, 2000, unless otherwise noted.
Redesignated at 67 FR 64530, Oct. 21, 2002.
General Information
Sec. 2.80 What does this subpart cover?
(a) This subpart describes how the Department of the Interior
(including all its bureaus and offices) responds to requests or
subpoenas for:
(1) Testimony by employees in State, territorial or Tribal judicial,
legislative or administrative proceedings concerning information
acquired while performing official duties or because of an employee's
official status;
(2) Testimony by employees in Federal court civil proceedings in
which the United States is not a party concerning information acquired
while performing official duties or because of an employee's official
status;
[[Page 41]]
(3) Testimony by employees in any judicial or administrative
proceeding in which the United States, while not a party, has a direct
and substantial interest;
(4) Official records or certification of such records for use in
Federal, State, territorial or Tribal judicial, legislative or
administrative proceedings.
(b) In this subpart, ``employee'' means a current or former
Department employee, including a contract or special government
employee.
(c) This subpart does not apply to:
(1) Congressional requests or subpoenas for testimony or records;
(2) Federal court civil proceedings in which the United States is a
party;
(3) Federal administrative proceedings;
(4) Federal, State and Tribal criminal court proceedings;
(5) Employees who voluntarily testify, while on their own time or in
approved leave status, as private citizens as to facts or events that
are not related to the official business of the Department. The employee
must state for the record that the testimony represents the employee's
own views and is not necessarily the official position of the
Department. See 5 CFR Sec. Sec. 2635.702(b), 2635.807 (b).
(6) Testimony by employees as expert witnesses on subjects outside
their official duties, except that they must obtain prior approval if
required by Sec. 2.90.
(d) This subpart does not affect the rights of any individual or the
procedures for obtaining records under the Freedom of Information Act
(FOIA), Privacy Act, or statutes governing the certification of official
records. The Department FOIA and Privacy Act regulations are found at 43
CFR Part 2, subparts B and D.
(e) Nothing in this subpart is intended to impede the appropriate
disclosure under applicable laws of Department information to Federal,
State, territorial, Tribal, or foreign law enforcement, prosecutorial,
or regulatory agencies.
(f) This subpart only provides guidance for the internal operations
of the Department, and neither creates nor is intended to create any
enforceable right or benefit against the United States.
Sec. 2.81 What is the Department's policy on granting requests for
employee testimony or Department records?
(a) Except for proceedings covered by Sec. 2.80(c) and (d), it is
the Department's general policy not to allow its employees to testify or
to produce Department records either upon request or by subpoena.
However, if you request in writing, the Department will consider whether
to allow testimony or production of records under this subpart. The
Department's policy ensures the orderly execution of its mission and
programs while not impeding any proceeding inappropriately.
(b) No Department employee may testify or produce records in any
proceeding to which this subpart applies unless authorized by the
Department under Sec. Sec. 2.80 through 2.90 United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951).
Responsibilities of Requesters
Sec. 2.82 How can I obtain employee testimony or Department records?
(a) To obtain employee testimony, you must submit:
(1) A written request (hereafter a ``Touhy Request;'' see Sec. 2.84
and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)); and
(2) A statement that you will submit a check for costs to the
Department of the Interior, in accordance with Sec. 2.85, if your Touhy
Request is granted.
(b) To obtain official Department records, you must submit:
(1) A Touhy Request; and
(2) A Statement that you agree to pay the costs of duplication in
accordance with 43 CFR Part 2, appendix A, if your Touhy Request is
granted.
(c) You must send your Touhy Request to:
(1) The employee's office address;
(2) The official in charge of the employee's bureau, division,
office or agency; and
(3) The appropriate unit of the Solicitor's Office.
(d) To obtain employee testimony or records of the Office of
Inspector General, you must send your Touhy Request to the General
Counsel for the Office of Inspector General.
[[Page 42]]
(e) 43 CFR Part 2, Appendix B contains a list of the addresses of
the Department's bureaus and offices and the units of the Solicitor's
Office. The General Counsel for the Inspector General is located at the
address for the Office of the Inspector General. If you do not know the
employee's address, you may obtain it from the employee's bureau or
office.
Sec. 2.83 If I serve a subpoena duces tecum, must I also submit a Touhy
request?
Yes. If you serve a subpoena for employee testimony, you also must
submit a request under United States ex rel. Touhy v. Regan, 340 U.S.
462 (1951)? If you serve a subpoena duces tecum for records in the
possession of the Department, you also must submit a Touhy Request.
Sec. 2.84 What information must I put in my Touhy Request?
Your Touhy Request must:
(a) Identify the employee or record;
(b) Describe the relevance of the desired testimony or records to
your proceeding and provide a copy of the pleadings underlying your
request;
(c) Identify the parties to your proceeding and any known
relationships they have to the Department's mission or programs;
(d) Show that the desired testimony or records are not reasonably
available from any other source;
(e) Show that no record could be provided and used in lieu of
employee testimony;
(f) Provide the substance of the testimony expected of the employee;
and
(g) Explain why you believe your Touhy Request complies with Sec.
2.88.
Sec. 2.85 How much will I be charged?
We will charge you the costs, including travel expenses, for
employees to testify under the relevant substantive and procedural laws
and regulations. You must pay costs for record production under 43 CFR
Part 2, Appendix A. Costs must be paid by check or money order payable
to the Department of the Interior.
Sec. 2.86 Can I get an authenticated copy of a Department record?
Yes. We may provide an authenticated copy of a Department record,
for purposes of admissibility under Federal, State or Tribal law. We
will do this only if the record has been officially released or would
otherwise be released under Sec. 2.13 or this Subpart.
Responsibility of the Department
Sec. 2.87 How will the Department process my Touhy Request?
(a) The appropriate Department official will decide whether to grant
or deny your Touhy Request. Our Solicitor's Office or, in the case of
the Office of Inspector General, its General Counsel, may negotiate with
you or your attorney to refine or limit both the timing and content of
your Touhy Request. When necessary, the Solicitor's Office or, in the
case of the Office of Inspector General, its General Counsel, also will
coordinate with the Department of Justice to file appropriate motions,
including motions to remove the matter to Federal court, to quash, or to
obtain a protective order.
(b) We will limit our decision to allow employee testimony to the
scope of your Touhy Request.
(c) If you fail to follow the requirements of this Subpart, we will
not allow the testimony or produce the records.
(d) If your Touhy Request is complete, we will consider the request
under Sec. 2.88.
Sec. 2.88 What criteria will the Department consider in responding to
my Touhy Request?
In deciding whether to grant your Touhy Request, the appropriate
Department official will consider:
(a) Your ability to obtain the testimony or records from another
source;
(b) The appropriateness of the employee testimony and record
production under the relevant regulations of procedure and substantive
law, including the FOIA or the Privacy Act; and
(c) Our ability to:
(1) Conduct our official business unimpeded;
(2) Maintain impartiality in conducting our business;
[[Page 43]]
(3) Minimize the possibility that we will become involved in issues
that are not related to our mission or programs;
(4) Avoid spending public employee's time for private purposes;
(5) Avoid the negative cumulative effect of granting similar
requests;
(6) Ensure that privileged or protected matters remain confidential;
and
(7) Avoid undue burden on us.
Responsibilities of Employees
Sec. 2.89 What must I, as an employee, do upon receiving a request?
(a) If you receive a request or subpoena that does not include a
Touhy Request, you must immediately notify your supervisor and the
Solicitor's Office, or the General Counsel of the Office of the
Inspector General, as applicable, for assistance in issuing the proper
response.
(b) If you receive a Touhy Request, you must promptly notify your
supervisor and forward the request to the head of your bureau, division
or office. After consulting with the Solicitor's Office or, in the case
of the Office of Inspector General, its General Counsel, the official in
charge will decide whether to grant the Touhy Request under Sec. 2.88.
(c) All decisions granting or denying a Touhy Request must be in
writing. The official in charge must ask the applicable unit of the
Solicitor's Office or, in the case of the Office of Inspector General,
its General Counsel, for advice when preparing the decision.
(d) Under 28 U.S.C. 1733, Federal Rule of Civil Procedure 44(a)(1),
or comparable State or Tribal law, a request for an authenticated copy
of a Department record may be granted by the person having the legal
custody of the record. If you believe that you have custody of a record:
(1) Consult your delegated authority to determine if you can grant a
request for authentication of records; and
(2) Consult the Solicitor's Office or, in the case of the Office of
Inspector General, its General Counsel, concerning the proper form of
the authentication (as authentication requirements may vary by
jurisdiction).
Sec. 2.90 Must I get approval before testifying as an expert witness on
a subject outside the scope of my official duties?
(a) You must comply with 5 CFR 2635.805(c), which details the
authorization procedure for an employee to testify as an expert witness,
not on behalf of the United States, in any judicial or administrative
proceeding in which the United States is a party or has a direct and
substantial interest. This procedure means:
(1) You must obtain the written approval of your Deputy Ethics
Official;
(2) You must be in an approved leave status if you testify during
duty hours; and
(3) You must state for the record that you are appearing as a
private individual and that your testimony does not represent the
official views of the Department.
(b) If you testify as an expert witness on a matter outside the
scope of your official duties, and which is not covered by paragraph (a)
of this section, you must comply with 5 CFR 2635.802 and 5 CFR 3501.105.
[[Page 44]]
Appendix A to Part 2--Department of the Interior FOIA/Public Affairs
Contacts and Reading Rooms
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Note: For more information on FOIA, including the most current
listing of FOIA Contacts, visit DOI's FOIA home page at http://
www.doi.gov/foia/.
69 FR 58325, Sept. 30, 2004]
Appendix B to Part 2--Internet Addresses
1. Department of the Interior (DOI) Home Page: http://www.doi.gov
2. DOI FOIA Home Page: http://www.doi.gov/foia/
3. DOI Reference Guide for Obtaining Information: http://
www.doi.gov/foia/foitabl.htm
4. List of DOI Public Affairs Offices: http://www.doi.gov/foia/
list.html
5. DOI FOIA Contacts: http://www.doi.gov/foia/contacts.html
6. DOI FOIA Regulations (43 CFR, Part 2, Subparts A and B): http://
www.doi.gov/foia/foiaregs.html
7. DOI FOIA Policy and Guidance: http://www.doi.gov/foia/policy.html
8. Electronic Reading Room: http://www.doi.gov/foia/readroom.html
9. Index of Frequently Requested Documents: http://www.doi.gov/foia/
freq.html
10. DOI's Frequently Requested Documents: http://www.doi.gov/foia/
frrindex.html
11. FOIA Annual Reports to Congress: http://www.doi.gov/foia/
report.html
12. DOI's Library: http://library.doi.gov
13. General Records Schedule 14, Information Services Records:
http://ardor.nara.gov/grs/grs14.html
14. DOI Records Management Program: http://www.doi.gov/ocio/records/
15. DOI Privacy Act Program: http://www.doi.gov/ocio/privacy/
16. DOI Privacy Act Officers: http://www.doi.gov/ocio/privacy/doi--
privacy--act--officers.htm
17. DOI Privacy Act Regulations: http://www.doi.gov/foia/
43cfrsub.html
18. DOI Privacy Act Systems of Records Notices: http://
www.access.gpo.gov/su--docs/aces/1999--pa.html
19. FirstGov Portal: http://www.firstgov.gov
Note: See DOI's FOIA home page at http://www.doi.gov/foia/ for the
most current listing of FOIA-related website addresses.
[67 FR 64541, Oct. 21, 2002]
Appendix C to Part 2--Fee Schedule
If you submit a FOIA request, the bureau will charge you to search
for, review, and duplicate the requested records according to your fee
category (see Sec. Sec. 2.16 and 2.17) and the following fee schedule.
In addition, the bureau will charge you for any special handling or
services performed in connection with processing your request and/or
appeal under Subparts C and D of this part. The following fees will be
used by all bureaus of the Department; these fees apply to services
performed in making documents available for public inspection and
copying under Subpart B of this part as well. The duplicating fees also
are applicable to records provided in response to requests made under
the Privacy Act. Fees will not be charged under either the FOIA or the
Privacy Act where the total amount of fees for processing the request is
$30 or less (see Sec. 2.16(b)(2)), where the requester has met the
requirements for a statutory fee waiver, or where the bureau has granted
a discretionary fee waiver (see Sec. Sec. 2.19 and 2.20).
(1) Search and review (review applies to commercial-use requesters
only). Fees are based on: the average hourly salary (base salary plus DC
locality payment), plus 16 percent for benefits, of employees in the
following three categories. The average grade was established by
surveying the bureaus to obtain the average grade of employees
conducting FOIA searches and reviews. Fees will be increased annually
consistent with Congressionally approved pay increases. Fees are charged
in quarter hour increments.
(a) Clerical--Based on GS-6, Step 5, pay (all employees at GS-7 and
below)
(b) Professional--Based on GS-11, Step 7, pay (all employees at GS-8
through GS-12)
(c) Managerial--Based on GS-14, Step 2, pay (all employees at GS-13
and above)
Note: Fees for the current fiscal year are posted on DOI's FOIA home
page (see Appendix B). If you do not have access to the Internet, please
call the Departmental FOIA Officer (see Appendix A) for a copy of the
fee schedule.
------------------------------------------------------------------------
Fee
------------------------------------------------------------------------
(2) Duplication:
Pages no larger than 8.5 x 14 inches, when $.13 per page ($.26 for
reproduced by standard office copying double-sided copying)
machines.
Color copies of pages no larger than 8.5 x $.90 per page
11 inches.
Pages larger than 8.5 x 14 inches......... Direct cost to DOI
Color copies of pages no larger than 11 x $1.50 per page
17 inches.
Photographs and records requiring special Direct cost to DOI
handling (e.g., because of age, size, or
format).
(3) Electronic records:
[[Page 54]]
Charges for services related to processing Direct cost to DOI
requests for electronic records.
(4) Certification......................... Fee
Each certificate of verification attached $.25
to authenticate copies of records.
(5) Postage/Mailing:
Charges that exceed the cost of first Postage or Delivery charge
class postage. Examples of such charges
are express mail or overnight delivery.
(6) Other Services:
Cost of special services or materials, Direct cost to DOI
other than those provided for by this fee
schedule, when requester is notified of
such costs in advance and agrees to pay
them.
------------------------------------------------------------------------
[67 FR 64541, Oct. 21, 2002]
Appendix D to Part 2--Fee Waiver Criteria
If you are seeking a fee waiver, it is your responsibility to
provide detailed information to support your request. You must submit
this information with your FOIA request. You should explain the
significance of the release of the information to the public's
understanding of the Government's operations and activities based on
your understanding of the type of information that you are requesting.
Each fee waiver request is judged on its own merit--we do not grant
``blanket'' fee waivers, i.e., obtaining a fee waiver once does not mean
you will obtain a subsequent fee waiver. Please note that inability to
pay is not sufficient to justify a fee waiver.
(a) The statutory requirement for granting a fee waiver is that
release of the information must be in the public interest because it--
(1) Is likely to contribute significantly to public understanding of
the operations and activities of the Government; and
(2) Is not primarily in your commercial interest.
(b) In deciding whether you are entitled to a fee waiver, the bureau
will consider the criteria in paragraphs (1) through (4), below. Your
request for a fee waiver must address each of these criteria.
(1) How do the records concern the operations or activities of the
Government?
(2) If the records concern the operations or activities of the
Government, how will disclosure likely contribute to public
understanding of these operations and activities?
(i) How are the contents of the records you are seeking meaningfully
informative on the Department's or a bureau's operations and activities?
Is there a logical connection between the content of the records and the
operations or activities you are interested in?
(ii) Other than enhancing your knowledge, how will disclosure of the
requested records contribute to the understanding of the public at large
or a reasonably broad audience of persons interested in the subject?
(iii) Your identity, vocation, qualifications, and expertise
regarding the requested information (whether you are affiliated with a
newspaper, college or university, have previously published articles,
books, etc.) may be relevant factors. However, merely stating that you
are going to write a book, research a particular subject, or perform
doctoral dissertation work, is insufficient, without demonstrating how
you plan to disclose the information in a manner which will be
informative to a reasonably broad audience of persons interested in the
subject.
(iv) Do you have the ability and intention to disseminate the
information to the general public or a reasonably broad audience of
persons interested in the subject?
(A) How and to whom do you intend to disseminate the information?
(B) How do you plan to use the information to contribute to public
understanding of the Government's operations or activities?
(3) If there is likely to be a contribution to public understanding,
will release of the requested records contribute significantly to public
understanding?
(i) Is the information being disclosed new?
(ii) Does the information being disclosed confirm or clarify data
which has been released previously?
(iii) How will disclosure increase the level of public understanding
of the operations or activities of the Department or a bureau that
existed prior to disclosure?
(iv) Is the information already publicly available? If the
Government previously has published the information you are seeking or
it is routinely available to the public in a library, reading room,
through the Internet, or as part of the administrative record for a
particular issue (e.g., the listing of the spotted owl as an endangered
species), it is less likely that there will be a significant
contribution from release.
(4) Would disclosure be primarily in your commercial interest?
(i) Do you have a commercial interest that would be furthered by
disclosure? A commercial interest is a commercial, trade, or profit
[[Page 55]]
interest as these terms are commonly understood. Your status as
``profitmaking'' or ``non-profitmaking'' is not the deciding factor. Not
only profitmaking entities, but other organizations or individuals may
have a commercial interest to be served by disclosure, depending on the
circumstances involved.
(ii) If you do have a commercial interest that would be furthered by
disclosure, would disclosure be primarily in that interest? Would the
public interest in disclosure be greater than any commercial interest
you or your organization may have in the documents? If so, how would it
be greater?
(iii) Your identity, vocation, and the circumstances surrounding
your request are all factors to be considered in determining whether
disclosure would be primarily in your commercial interest. For example:
(A) If you are a representative of a news media organization seeking
information as part of the news gathering process, we will presume that
the public interest outweighs your commercial interest.
(B) If you represent a business/corporation/association or you are
an attorney representing such an organization, we will presume that your
commercial interest outweighs the public interest unless you demonstrate
otherwise.
(c) If the bureau cannot make a determination based on the
information you have provided, it may ask you for additional
justification regarding your request.
[67 FR 64541, Oct. 21, 2002]
Appendix E to Part 2--FOIA Exemptions
Under the FOIA (5 U.S.C. 552(b)), there are nine exemptions which
may be used to protect information from disclosure. The Department has
paraphrased the exemptions, below, for your information. The paraphrases
are not intended to be interpretations of the exemptions.
(1) National security information concerning national defense or
foreign policy, provided that such information has been properly
classified, in accordance with an Executive Order;
(2) Information related solely to the internal personnel rules and
practices of an agency;
(3) Information specifically exempted from disclosure by statute
(other than the Privacy Act or the Trade Secrets Act), provided that
such statute:
(A) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(B) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information which is
obtained from a person and is 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,
the release of which:
(A) Could reasonably be expected to interfere with enforcement
proceedings;
(B) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(C) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(D) Could reasonably be expected to disclose the identity of a
confidential source;
(E) Would disclose techniques, procedures, or guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(F) Could reasonably be expected to endanger the life or physical
safety of any individual.
(8) Information contained in or related to examination, operating,
or condition reports, prepared by, or on behalf of, or for the use of an
agency responsible for regulating or supervising financial institutions;
and
(9) Geological and geophysical information and data, including maps,
concerning wells.
[67 FR 64541, Oct. 21, 2002]
Appendix F to Part 2--Mineral Leasing Act and Mineral Leasing Act for
Acquired Lands--Special Rules
(a) Definitions. As used in the section:
(1) Exploration license means a license issued by the Secretary of
the Interior to conduct coal exploration operations on land subject to
the Mineral Leasing Act, under 30 U.S.C. 201(b), or subject to the
Mineral Leasing Act for Acquired Lands, under 30 U.S.C. 351-360.
(2) Fair-market value of coal to be leased means the minimum amount
of a bid the Secretary is willing to accept in leasing coal within
leasing tracts offered in general lease sales or reserved and offered
for lease to public bodies, including Federal agencies, rural electric
cooperatives, or non-profit corporations controlled by any of such
entities, under 30 U.S.C. 201(a)(1) or 30 U.S.C. 351-360.
(3) Information means data, statistics, samples and other facts,
whether analyzed or processed or not, pertaining to Federal coal
resources.
[[Page 56]]
(b) Applicability. This Appendix applies to the following categories
of information:
(1) Category A. Information provided to or obtained by a bureau
under 30 U.S.C. 201(b)(3) (and corresponding information under 30 U.S.C.
351-360) from the holder of an exploration license;
(2) Category B. Information acquired from commercial or other
sources under service contract with United States Geological Survey
(USGS) under 30 U.S.C. 208-1(b) (and corresponding information under 30
U.S.C. 351-360), and information developed by USGS under an exploratory
program authorized by 30 U.S.C. 208-1 (and corresponding information
under 30 U.S.C. 351-360);
(3) Category C. Information obtained from commercial sources which
the commercial source acquired while not under contract with the United
States Government;
(4) Category D. Information provided to the Secretary by a Federal
department or agency under 30 U.S.C. 208-1(e) (and corresponding
information under 30 U.S.C. 351-360); and
(5) Category E. The fair-market value of coal to be leased and
comments received by the Secretary with respect to such value.
(c) Availability of information. Information obtained by the
Department from various sources will be made available to the public as
follows:
(1) Category A--Information. Category A information must not be
disclosed to the public until after the areas to which the information
pertains have been leased by the Department, or until the Secretary
determines that release of the information to the public would not
damage the competitive position of the holder of the exploration
license, whichever comes first.
(2) Category B--Information. Category B information must not be
withheld from the public; it will be made available by means of and at
the time of open filing or publication by USGS.
(3) Category C--Information. To the extent Category C information is
proprietary, such information must not be made available to the public
until after the areas to which the information pertains have been leased
by the Department.
(4) Category D--Information. To the extent Category D information is
proprietary, the Department will withhold the information from the
public for the length of time the department or agency providing the
information agreed to when it obtained the information.
(5) Category E--Information. Category E information must not be made
public until the lands to which the information pertains have been
leased, or until the Secretary has determined that its release prior to
the issuance of a lease is in the public interest.
[67 FR 64541, Oct. 21, 2002]
PART 3_PRESERVATION OF AMERICAN ANTIQUITIES--Table of Contents
Sec.
3.1 Jurisdiction.
3.2 Limitation on permits granted.
3.3 Permits; to whom granted.
3.4 No exclusive permits granted.
3.5 Application.
3.6 Time limit of permits granted.
3.7 Permit to become void.
3.8 Applications referred for recommendation.
3.9 Form and reference of permit.
3.10 Reports.
3.11 Restoration of lands.
3.12 Termination.
3.13 Report of field officer.
3.14 Examinations by field officer.
3.15 Persons who may apprehend or cause to be arrested.
3.16 Seizure.
3.17 Preservation of collection.
Authority: Secs. 3, 4, 34 Stat. 225, as amended; 16 U.S.C. 432.
Source: 19 FR 8838, Dec. 23, 1954, unless otherwise noted.
Sec. 3.1 Jurisdiction.
Jurisdiction over ruins, archeological sites, historic and
prehistoric monuments and structures, objects of antiquity, historic
landmarks, and other objects of historic and scientific interest, shall
be exercised under the act by the respective Departments as follows:
(a) By the Secretary of Agriculture over lands within the exterior
limits of forest reserves;
(b) By the Secretary of the Army over lands within the exterior
limits of military reservations;
(c) By the Secretary of the Interior over all other lands owned or
controlled by the Government of the United States, Provided, The
Secretaries of the Army and Agriculture may by agreement cooperate with
the Secretary of the Interior in the supervision of such monuments and
objects covered by the Act of June 8, 1906 (34 Stat. 225; 16 U.S.C.
431--433), as may be located on lands near or adjacent to forest
reserves and military reservations, respectively.
Sec. 3.2 Limitation on permits granted.
No permit for the removal of any ancient monument or structure which
can be permanently preserved under the control of the United States in
[[Page 57]]
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 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
[[Page 58]]
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.
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).)
[[Page 59]]
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--Suggested Form of Notice of Appeal
Subpart D_Rules Applicable in Indian Affairs Hearings and Appeals
Determinations of Heirs and Approval of Wills, Except as to Members of
the Five Civilized Tribes and Osage Indians; Tribal Purchases of
Interests Under Special Statutes
Scope of Regulations; Definitions; General Authority of OHA Deciding
Officials
4.200 Scope of regulations.
4.201 Definitions.
4.202 General authority of OHA deciding officials.
Determination of Heirs; Approval of Wills; Settlement of Indian Trust
Estates
4.203 Determination as to nonexistent persons and other irregularities
of allotments.
4.204 Presumption of death.
4.205 Escheat.
4.206 Determinations of nationality or citizenship and status affecting
character of land titles.
4.207 Compromise settlement.
4.208 Renunciation of interest.
Commencement of Probate Proceedings
4.210 Commencement of probate.
4.211 Notice.
4.212 Contents of notice.
Depositions, Discovery, and Prehearing Conference
4.220 Production of documents for inspection and copying.
4.221 Depositions.
4.222 Written interrogatories; admission of facts and documents.
4.223 Objections to and limitations on production of documents,
depositions, and interrogatories.
4.224 Failure to comply with orders.
4.225 Prehearing conference.
Hearings
4.230 Authority and duties of the OHA deciding official.
4.231 Hearings.
4.232 Evidence; form and admissibility.
4.233 Proof of wills, codicils, and revocations.
4.234 Witnesses, interpreters, and fees.
4.235 Supplemental hearings.
4.236 Record.
Decisions
4.240 Decision of administrative law judge and notice thereof.
4.241 Rehearing.
4.242 Reopening.
4.243 Appeals from BIA.
Claims
4.250 Filing and proof of creditor claims; limitations.
4.251 Priority of claims.
4.252 Property subject to claims.
Wills
4.260 Making; review as to form; revocation.
4.261 Anti-lapse provisions.
4.262 Felonious taking of testator's life.
Custody and Distribution of Estates
4.270 Custody and control of trust estates.
4.271 Omitted property.
4.272 Improperly included property.
4.273 Distribution of estates.
Miscellaneous
4.281 Claims for attorney fees.
4.282 Guardians for incompetents.
Tribal Purchase of Interests Under Special Statutes
4.300 Authority and scope.
4.301 Valuation report.
4.302 Conclusion of probate and tribal exercise of statutory option.
4.303 Notice by surviving spouse to reserve a life estate.
4.304 Rehearing.
4.305 Hearing.
4.306 Time for payment.
4.307 Title.
4.308 Disposition of income.
General Rules Applicable to Proceedings on Appeal Before the Interior
Board of Indian Appeals
4.310 Documents.
4.311 Briefs on appeal.
4.312 Decisions.
4.313 Amicus Curiae; intervention; joinder motions.
4.314 Exhaustion of administrative remedies.
4.315 Reconsideration.
4.316 Remands from courts.
4.317 Standards of conduct.
4.318 Scope of review.
[[Page 60]]
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.
4.416 Appeals of wildfire management decisions.
Hearings Procedures
Hearings Procedures; General
4.420 Applicability of general rules.
4.421 Definitions.
4.422 Documents.
4.423 Subpoena power and witness provisions.
Hearings on Appeals Involving Questions of Fact
4.430 Prehearing conferences.
4.431 Fixing of place and date for hearing; notice.
4.432 Postponements.
4.433 Authority of the administrative law judge.
4.434 Conduct of hearing.
4.435 Evidence.
4.436 Reporter's fees.
4.437 Copies of transcript.
4.438 Summary of evidence.
4.439 Action by administrative law judge.
Contest and Protest Proceedings
4.450 Private contests and protests.
4.450-1 By whom private contest may be initiated.
4.450-2 Protests.
4.450-3 Initiation of contest.
4.450-4 Complaints.
4.450-5 Service.
4.450-6 Answer to complaint.
4.450-7 Action by manager.
4.450-8 Amendment of answer.
4.451 Government contests.
4.451-1 How initiated.
4.451-2 Proceedings in Government contests.
4.452 Proceedings before the administrative law judge.
4.452-1 Prehearing conferences.
4.452-2 Notice of hearing.
4.452-3 Postponements.
4.452-4 Authority of administrative law judge.
4.452-5 Conduct of hearing.
4.452-6 Evidence.
4.452-7 Reporter's fees.
4.452-8 Findings and conclusions; decision by administrative law judge;
submission to Board for decision.
4.452-9 Appeal to Board.
[[Page 61]]
Grazing Proceedures (Inside and Outside Grazing Districts)
4.470 How to appeal a final BLM grazing decision to an administrative
law judge.
4.471 How to petition for a stay of a final BLM grazing decision.
4.472 Action on an appeal and petition for a stay.
4.473 Time and place of hearing; notice; intervenors.
4.474 Authority of administrative law judge.
4.475 Service.
4.476 Conduct of hearing; reporter's fees; transcript.
4.477 Findings of fact and decision by administrative law judge: Notice;
submission to Board of Land Appeals for decision.
4.478 Appeals to the Board of Land Appeals; judicial review.
4.479 Effectiveness of decision during appeal.
4.480 Conditions of decision action.
Subpart F_Implementation of the Equal Access to Justice Act in Agency
Proceedings
General Provisions
4.601 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.
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.
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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.
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.
[[Page 63]]
Expedited Review of Section 521(a)(2) or 521(a)(3) Orders of Cessation
4.1180 Purpose.
4.1181 Who may file.
4.1182 Where to file.
4.1183 Time for filing.
4.1184 Contents of application.
4.1185 Computation of time for decision.
4.1186 Waiver of the 30-day decision requirement.
4.1187 Procedure if 30-day decision requirement is not waived.
Proceedings for Suspension or Revocation of Permits Under Section
521(a)(4) of the Act
4.1190 Initiation of proceedings.
4.1191 Answer.
4.1192 Contents of answer.
4.1193 Notice of hearing.
4.1194 Burden of proof in suspension or revocation proceedings.
4.1195 Determination by the administrative law judge.
4.1196 Summary disposition.
4.1197 Appeals.
Applications for Review of Alleged Discriminatory Acts Under Section 703
of the Act
4.1200 Filing of the application for review with the Office of Hearings
and Appeals.
4.1201 Request for scheduling of a hearing.
4.1202 Response to request for the scheduling of a hearing.
4.1203 Application for temporary relief from alleged discriminatory
acts.
4.1204 Determination by administrative law judge.
4.1205 Appeals.
Applications for Temporary Relief
4.1260 Scope.
4.1261 When to file.
4.1262 Where to file.
4.1263 Contents of application.
4.1264 Response to application.
4.1265 Determination on application concerning a notice of violation
issued pursuant to section 521(a)(3) of the Act.
4.1266 Determination on application concerning an order of cessation.
4.1267 Appeals.
Appeals to the Board From Decisions or Orders of Administrative Law
Judges
4.1270 Petition for discretionary review of a proposed civil penalty.
4.1271 Notice of appeal.
4.1272 Interlocutory appeals.
4.1273 Briefs.
4.1274 Remand.
4.1275 Final decisions.
4.1276 Reconsideration.
Appeals to the Board From Decisions of the Office of Surface Mining
4.1280 Scope.
4.1281 Who may appeal.
4.1282 Appeals; how taken.
4.1283 Service.
4.1284 Answer.
4.1285 Summary dismissal.
4.1286 Request for hearings.
Petitions for Award of Costs and Expenses Under Section 525(e) of the
Act
4.1290 Who may file.
4.1291 Where to file; time for filing.
4.1292 Contents of petition.
4.1293 Answer.
4.1294 Who may receive an award.
4.1295 Awards.
4.1296 Appeals.
Petitions for Review of Proposed Individual Civil Penalty Assessments
Under Section 518(f) of the Act
4.1300 Scope.
4.1301 Who may file.
4.1302 Time for filing.
4.1303 Contents and service of petition.
4.1304 Answer, motion, or statement of OSM.
4.1305 Amendment of petition.
4.1306 Notice of hearing.
4.1307 Elements; burdens of proof.
4.1308 Decision by administrative law judge.
4.1309 Petition for discretionary review.
Request for Hearing on a Preliminary Finding Concerning a Demonstrated
Pattern of Willful Violations Under Section 510(c) of the Act, 30 U.S.C.
1260(c) (Federal Program; Federal Lands Program; Federal Program for
Indian Lands)
4.1350 Scope.
4.1351 Preliminary finding by OSM.
4.1352 Who may file; where to file; when to file.
4.1353 Contents of request.
4.1354 Determination by the administrative law judge.
4.1355 Burden of proof.
4.1356 Appeals.
Request for Review of Approval or Disapproval of Applications for New
Permits, Permit Revisions, Permit Renewals, the Transfer, Assignment or
Sale of Rights Granted Under Permit (Federal Program; Federal Lands
Program; Federal Program for Indian Lands) and for Coal Exploration
Permits (Federal Program)
4.1360 Scope.
4.1361 Who may file.
4.1362 Where to file; when to file.
4.1363 Contents of request; amendment of request; responses.
[[Page 64]]
4.1364 Time for hearing; notice of hearing; extension of time for
hearing.
4.1365 Status of decision pending administrative review.
4.1366 Burdens of proof.
4.1367 Request for temporary relief.
4.1368 Determination by the Administrative Law Judge.
4.1369 Petition for discretionary review; judicial review.
Review of OSM Decisions Proposing To Suspend or Rescind or Suspending or
Rescinding Improvidently Issued Permits
4.1370 Scope.
4.1371 Who may file, where to file, when to file.
4.1372 Contents of request for review, response to request, amendment of
request.
4.1373 Hearing.
4.1374 Burdens of proof.
4.1375 Time for initial decision.
4.1376 Petition for temporary relief from notice of proposed suspension
or rescission or notice of suspension or rescission; appeals
from decisions granting or denying temporary relief.
4.1377 Petition for discretionary review of initial decision.
Review of Office of Surface Mining Written Decisions Concerning
Ownership or Control Challenges
4.1380 Scope.
4.1381 Who may file; when to file; where to file.
4.1382 Contents of request for review; response to request; amendment of
request.
4.1383 Hearing.
4.1384 Burdens of proof.
4.1385 Time for initial decision.
4.1386 Petition for temporary relief from decision; appeals from
decisions granting or denying temporary relief.
4.1387 Petition for discretionary review of initial decisions.
Request for Review of OSM Determinations of Issues Under 30 CFR Part 761
(Federal Program; Federal Lands Program; Federal Program for Indian
Lands)
4.1390 Scope.
4.1391 Who may file; where to file; when to file; filing of
administrative record.
4.1392 Contents of request; amendment of request; responses.
4.1393 Status of decision pending administrative review.
4.1394 Burden of proof.
Subpart M_Special Procedural Rules Applicable to Appeals of Decisions
Made Under OMB Circular A-76
4.1600 Purpose and nature of the appeal process.
4.1601 Basis for appeal.
4.1602 Who may appeal under this procedure.
4.1603 Appeal period.
4.1604 Method of filing an appeal.
4.1605 Action by the Office of Hearings and Appeals.
4.1606 Department representation.
4.1607 Processing the appeal.
4.1608 Oral presentations.
4.1609 Multiple appeals.
4.1610 Decision of the appeals official.
Authority: R.S. 2478, as amended, 43 U.S.C. sec. 1201, unless
otherwise noted.
Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.
Subpart A_General; Office of Hearings and Appeals
Sec. 4.1 Scope of authority; applicable regulations.
The Office of Hearings and Appeals, headed by a Director, is an
authorized representative of the Secretary for the purpose of hearing,
considering and determining, as fully and finally as might the
Secretary, matters within the jurisdiction of the Department involving
hearings, and appeals and other review functions of the Secretary.
Principal components of the Office include:
(a) A Hearings Division comprised of administrative law judges who
are authorized to conduct hearings in cases required by law to be
conducted pursuant to 5 U.S.C. 554, and hearings in other cases arising
under statutes and regulations of the Department, including rule making
hearings, and
(b) Appeals Boards, shown below, with administrative jurisdiction
and special procedural rules as indicated. General rules applicable to
all types of proceedings are set forth in subpart B of this part.
Therefore, for information as to applicable rules, reference should be
made to the special rules in the subpart relating to the particular type
of proceeding, as indicated, and to the general rules in subpart B of
this part. Wherever there is any conflict between one of the general
rules in subpart B of
[[Page 65]]
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 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
[[Page 66]]
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 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]
[[Page 67]]
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 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
[[Page 68]]
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.
(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
[[Page 69]]
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 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
[[Page 70]]
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 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
[[Page 71]]
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;
(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
[[Page 72]]
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 Sec. Sec. 4.102
(c), (d), and (e), 4.113, and 4.120 shall apply exclusively to appeals
which are subject to the Contract Disputes Act of 1978.
(3) When an appeal is subject to the Contract Disputes Act of 1978.
An appeal shall be subject to the Contract Disputes Act of 1978 if it
involves a contract entered into on or after March 1, 1979; or, at the
election of the appellant, if the appeal involves a contract entered
into before March 1, 1979, and the contracting officer's decision from
which the appeal is taken is dated March 1, 1979, or thereafter.
(b) Jurisdiction for considering appeals. The Interior Board of
Contract Appeals (referred to herein as the ``Board'') shall consider
and determine appeals from decisions of contracting officers relating to
contracts made by (i) the Department of the Interior or (ii) any other
executive agency when such agency or the Administrator of the Office of
Federal Procurement Policy has duly designated the Board to decide the
appeal.
(c) Location and organization of the Board. (1) The Board's address
is 801 North Quincy Street, Arlington, Virginia 22203. Its telephone
number is (703) 235-3813.
(2) The Board consists of a Chairman, Vice Chairman, and other
members all of whom are attorneys at law duly licensed by a State,
Commonwealth, Territory, or the District of Columbia. In general, the
appeals are assigned to a panel of at least two members who decide the
cases. However, in cases of disagreement, or unusual circumstances, a
panel of three members will be assigned to decide by a majority vote.
Board members are designated Administrative Judges.
(d) Time extensions and computations. (1) Where possible, procedural
actions should be taken in less time than the maximum time allowed.
Where appropriate and justified, however, extensions of time will be
granted. All requests for extensions of time shall be in writing.
[[Page 73]]
(2) In computing any period of time, the day of the event from which
the designated period of time begins to run shall not be included, but
the last day of the period shall be included unless it is a Saturday,
Sunday, or a legal holiday, in which event the period shall run to the
end of the next business day.
(e) General guidelines--(1) Place of filings. Unless the Board
otherwise directs, all notices of appeal, pleadings, and other
communications shall be filed with the Board at the address indicated
herein. Communications to the Board shall be addressed to Interior Board
of Contract Appeals, 801 North Quincy Street, Arlington, Virginia 22203.
(2) Representation of parties. Whenever in these rules reference is
made to contractor, appellant, contracting officer, respondent, or
parties, this shall include respective counsel for the parties, as soon
as appropriate notices of appearances have been filed with the Board. In
those cases where an executive agency, other than the Department of the
Interior, has designated the Board to adjudicate its contract appeals,
the term, ``Department Counsel,'' shall mean Government Counsel assigned
to represent such agency.
(3) Interpretation of these rules. These rules will be interpreted
so as to secure a just and inexpensive determination of appeals without
unnecessary delay.
(4) Decisions on questions of law. When an appeal is taken pursuant
to a disputes clause in a contract which limits appeals to disputes
concerning questions of fact, the Board will, nevertheless, consider and
decide all questions of law necessary for the complete adjudication of
the issues.
(f) Ex parte communications. No member of the Board or of the
Board's staff shall entertain, nor shall any person directly or
indirectly involved in an appeal submit to the Board or the Board's
staff, off the record, any evidence, explanation, analysis, or advice,
whether written or oral, without the knowledge and consent of the
adverse party, regarding any matter at issue in that appeal. This
provision does not apply to consultation among Board members or to ex
parte communications concerning the Board's administrative functions or
procedures.
(g) Sanctions. If any party fails or refuses to obey an order issued
by the Board, the Board may make such order in regard to the failure as
it considers necessary to the just and expeditious conduct of the
appeal.
[46 FR 57499, Nov. 24, 1981, as amended at 50 FR 8325, Mar. 1, 1985; 67
FR 4368, Jan. 30, 2002]
Prehearing Procedure Rules
Sec. 4.101 Who may appeal.
Any contractor may appeal to the Board from decisions of contracting
officers of any bureau or office of the Department of the Interior, or
of any other agency with respect to which the Board exercises contract
appeals jurisdiction, on disputed questions under contract provisions
requiring the determination of such appeals by the head of the agency or
his duly authorized representative or Board.
Sec. 4.102 Appeals--how taken.
(a) Notice of appeal. Notice of an appeal must be in writing (a
suggested form of notice appears as appendix I to subpart C herein
following Sec. 4.128). The original, together with two copies, may be
filed with the Board or the contracting officer from whose decision the
appeal is taken. The notice of appeal must be mailed or otherwise filed
within 90 days from the date of receipt of the contracting officer's
decision, if the appeal is subject to the Contract Disputes Act of 1978;
otherwise, within the time specified therefor in the contract.
(b) Contents of notice of appeal. A notice of appeal should indicate
that an appeal is thereby intended, and should identify the contract (by
number), the Department's bureau or office involved in the dispute, and
the decision from which the appeal is taken. The notice of appeal should
be signed personally by the appellant (the contractor making the
appeal), or by an authorized officer of the appellant corporation or
member of the appellant firm, or by the contractor's duly authorized
representative or attorney. The complaint referred to in Sec. 4.107 may
be filed with the notice of appeal, or the contractor may designate the
notice of appeal as a complaint, if it otherwise fulfills the
requirements of a complaint.
[[Page 74]]
(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 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
[[Page 75]]
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 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.
[[Page 76]]
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 Sec. Sec. 4.118 through 4.123, the Board may upon its own
initiative or upon the application of either party, call upon the
parties to appear before a member or hearing officer of the Board for a
conference to consider:
(a) The simplification or clarification of the issues;
(b) The possibility of obtaining stipulations, admissions,
agreements on documents, understandings on matters already of record, or
similar agreements which will avoid unnecessary proof;
(c) The limitation of the number of expert witnesses, or avoidance
of similar cumulative evidence, if the case is to be heard;
(d) The possibility of agreement disposing of all or any of the
issues in dispute; and
(e) Such other matters as may aid in the disposition of the appeal.
Any conference results that are not reflected in a transcript shall be
reduced to writing by the Board member or the hearing officer. This
writing shall thereafter constitute part of the record.
Sec. 4.112 Submission without a hearing.
Either party may elect to waive a hearing and to submit his case
upon the Board record, as settled pursuant to Sec. 4.114. Such waiver
shall not affect the other party's rights under Sec. 4.109. In
[[Page 77]]
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-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.
[[Page 78]]
(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 necessary to enable the
Board to decide the appeal within 180 days after the Board has received
the appellant's notice of election of the ACCELERATED procedure, and may
reserve 30 days for the preparation of the decision.
(3) Written decisions by the Board in cases processed under the
ACCELERATED procedure will normally be short and contain only summary
findings of fact and conclusions. Decisions will be rendered for the
Board by a single Administrative Judge with the concurrence of the
Chairman or Vice Chairman or other designated Administrative Judge, or
by a majority among these two and an additional designated member in
case of disagreement. Alternatively, in cases where the amount in
dispute is $10,000 or less as to which the ACCELERATED procedure has
been elected and in which there has been a hearing, the single
Administrative Judge presiding at the hearing may, with the concurrence
of both parties, at the conclusion of the hearing and after entertaining
such oral agruments as he deems appropriate, render on the record oral
summary findings of fact, conclusions, and a decision of the appeal.
Whenever such an oral decision is rendered, the Board will subsequently
furnish the parties a typed copy of such oral decision for record and
payment purposes and to establish the date of commencement of the period
for filing a motion for reconsideration under Sec. 4.126.
(e) Motions for reconsideration in cases arising under Sec. 4.113.
Motions for reconsideration of cases decided aunder either the SMALL
CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure need not be
decided within the time period prescribed by this Sec. 4.113 for the
initial decision of the appeal, but all such motions shall be processed
and decided rapidly so as to fulfill the intent of this rule.
Sec. 4.114 Settling of the record.
(a) A case submitted on the record pursuant to Sec. 4.112 shall be
ready for decision when the parties are so notified by the Board. A case
which is heard shall be ready for decision upon receipt of transcript,
or upon receipt of briefs when briefs are to be submitted. At any time
prior to the date that a case is ready for decision, either party, upon
notice to the other, may supplement the record with documents and
exhibits deemed relevant and material by the Board. The Board upon its
own initiative may call upon either party, with appropriate notice to
the other, for evidence deemed by it to be relevant and material. The
weight to be attached to any evidence of record will rest within the
sound discretion of the Board. Either party at any stage of the
proceeding, on notice to the other party, may object to the relevancy or
materiality of documents in the record or offered into the record.
[[Page 79]]
(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 deposition is discovery or for use as evidence.
(c) Orders on depositions. The time, place, and manner of taking
depositions shall be, as mutually agreed by the parties, or, failing
such agreement, governed by order of the Board.
(d) Use as evidence. No testimony taken by depositions shall be
considered as part of the evidence in the hearing of an appeal unless
and until such testimony is offered and received in evidence at such
hearing. It will not ordinarily be received in evidence if the deponent
is present and can testify personally at the hearing. In such instances,
however, the depositions may be used to contradict or impeach the
testimony of the witness given at the hearing. In cases submitted on the
record, the Board may in its discretion receive depositions as evidence
in supplementation of that record.
(e) Expenses. Each party shall bear its own expenses associated with
the taking of any deposition.
Sec. 4.116 Interrogatories to parties; inspection of documents; admission
of facts.
Under appropriate circumstances, but not as a matter of course, the
Board will entertain applications for permission to serve written
interrogatories upon the opposing party, applications for an order to
produce and permit the inspection of designated documents, and
applications for permission to serve upon the opposing party a request
for the admission of specified facts. Such applications shall be
reviewed and approved only to the extent and upon such terms as the
Board in its discretion considers to be consistent with the objective of
securing just and inexpensive determination of appeals without
unnecessary delay, and essential to the proper pursuit of that objective
in the particular case.
Sec. 4.117 Service of papers.
A copy of all pleadings, briefs, motions, letters, or other papers
filed with the Board, shall be served upon the other party at the time
of filing. Service of papers may be made personally or by mailing in a
sealed envelope addressed to the other party. Any paper filed with the
Board shall show on its face, or in the letter transmitting the same,
that a copy thereof has been served upon the other party. When the other
party is represented by counsel, such service shall be made upon him,
and service upon counsel shall be
[[Page 80]]
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.
Hearings 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 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
[[Page 81]]
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.
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
[[Page 82]]
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, 801 North Quincy Street, Arlington,
VA 22203
(Date)__________________________________________________________________
(Name of Contractor)____________________________________________________
(Address)_______________________________________________________________
Contract No.____________________________________________________________
(Invitation No.)________________________________________________________
Specifications No.______________________________________________________
(Name and Location of Project)__________________________________________
(Name of Bureau or Office)______________________________________________
The undersigned contractor appeals to the Board of Contract Appeals
from decision or findings of fact dated --------, by:
(Name of Contracting Officer)___________________________________________
The decision or findings of fact is erroneous because: (State
specific facts and circumstances and the contractual provisions
involved.)
(Signature)_____________________________________________________________
(Title)_________________________________________________________________
[46 FR 57499, Nov. 24, 1981, as amended at 67 FR 4368, Jan. 30, 2002]
Subpart D_Rules Applicable in Indian Affairs Hearings and Appeals
Authority: Secs. 1, 2, 36 Stat. 855, as amended, 856, as amended,
sec. 1, 38 Stat. 586, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat.
1021, 1022; R.S. 463, 465; 5 U.S.C. 301; 25 U.S.C. secs. 2, 9, 372, 373,
374, 373a, 373b, 410, 100 Stat, 61, as amended by 101 Stat. 886 and 101
Stat. 1433, 25 U.S.C. 331 note.
Cross Reference: See 25 CFR part 15 for rules setting forth the
responsibilities and practices of the Bureau of Indian Affairs in the
probate of Indian estates. See subpart A of this part for the authority,
jurisdiction, and membership of the Board of Indian Appeals within the
Office of Hearings and Appeals. For general rules applicable to
proceeding before the Hearings Division, Board of Indian Appeals, and
other Appeals Boards of the Office of Hearings and Appeals, see subpart
B of this part.
[[Page 83]]
Determinations of Heirs and Approval of Wills, Except as to Members of
the Five Civilized Tribes and Osage Indians; Tribal Purchases of
Interests Under Special Statutes
Scope of Regulations; Definitions; General Authority of OHA Deciding
Officials
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.200 Scope of regulations.
Included in Sec. Sec. 4.200 through 4.202 are general rules
applicable to all proceedings in subpart D of this part. Included in
Sec. Sec. 4.203 through 4.282 and Sec. Sec. 4.310 through 4.323 are
procedural rules applicable to the settlement of trust estates of
deceased Indians who die possessed of trust property; however, these
rules do not apply to the restricted property of deceased Indians of the
Five Civilized Tribes, deceased Osage Indians, and members of any tribe
organized under 25 U.S.C. 476, to the extent that the constitution, by-
laws or charter of each tribe may be inconsistent with this subpart.
Included within Sec. Sec. 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 Sec. Sec. 4.330 through 4.340 are
procedural rules applicable to appeals to the Board of Indian Appeals
from administrative actions or decisions issued by the Bureau of Indian
Affairs as set forth in Sec. 4.330. Except as limited by the provisions
herein, the rules in subparts A and B of this part apply to these
proceedings.
Sec. 4.201 Definitions.
As used in this subpart:
Agency means the agency office or any other designated office in BIA
having jurisdiction over trust or restricted property and money. This
term also means any office of a tribe which has contracted or compacted
the BIA probate function under 25 U.S.C. 450f or 458cc.
Attorney decision maker means an attorney with BIA who reviews a
probate package, determines heirs, approves wills and beneficiaries of
the will, determines creditors' claims, and issues a written decision to
the extent authorized by 25 CFR part 15.
Beneficiary means any individual who receives trust or restricted
property or money in a decedent's will.
BIA means the Bureau of Indian Affairs within the Department of the
Interior.
BIA deciding official means the official with the delegated
authority to make a decision on a probate matter pursuant to 25 CFR part
15, and may include a BIA regional director, agency superintendent,
field representative, or attorney decision maker.
Board means the Board of Indian Appeals in the Office of Hearings
and Appeals, Office of the Secretary, authorized by the Secretary to
hear, consider, and determine finally for the Department appeals taken
by aggrieved parties from actions by OHA deciding officials on petitions
for rehearing or reopening, and allowance of attorney fees, and from
actions of BIA officials as provided in Sec. 4.1(b)(2).
Child or children includes an adopted child or children.
Commissioner includes the Deputy Commissioner of Indian Affairs and
his or her authorized representatives.
Day means a calendar day, unless otherwise stated.
Decedent means a person who is deceased.
Department means the Department of the Interior.
Estate means the trust cash assets and restricted or trust property
owned by the decedent at the time of his or her death.
Heir means any individual who receives trust or restricted property
or money from a decedent in an intestate proceeding.
IIM account means funds held in an individual Indian monies account
by OTFM or a tribe performing this function under a contract or compact.
Intestate means the decedent died without a will.
Minor means an individual who has not reached the age of majority as
defined by the applicable tribal or state law.
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OHA deciding official means an employee of the Office of Hearings
and Appeals with the authority to make a decision on a probate matter
pursuant to this subpart. The OHA deciding official may be either an
administrative law judge appointed pursuant to the Administrative
Procedure Act, 5 U.S.C. 3105, or an Indian probate judge.
OTFM means the Office of Trust Funds Management within the Office of
the Special Trustee for American Indians, Department of the Interior, or
its authorized representative.
Party in interest means any presumptive or actual heir, any
beneficiary under a will, any party asserting a claim against a deceased
Indian's estate, and any Tribe having a statutory option to purchase
interests of a decedent.
Probate means the legal process by which applicable tribal law,
state law, or federal law that affects the distribution of the
decedent's estate is applied to:
(1) Determine the heirs,
(2) Approve wills and determine beneficiaries, and
(3) Transfer any funds or property held in trust by the Secretary
for a decedent, or any restricted property of the decedent, to the
heirs, beneficiaries, or other persons or entities.
Probate specialist means a BIA or tribal employee who is trained in
Indian probate matters.
Restricted property means real or personal property held by an
Indian which he or she cannot alienate or encumber without the consent
of the Secretary or his or her authorized representative. In this
subpart, restricted property is treated as if it were trust property.
Except with respect to Sec. 4.200, the term ``restricted property'' as
used in this subpart does not include the restricted lands of the Five
Civilized Tribes or Osage Tribe of Indians.
Secretary means the Secretary of the Interior or his or her
authorized representative.
Solicitor means the Solicitor of the Department of the Interior or
his or her authorized representative.
Superintendent means the BIA Superintendent or other BIA officer
having jurisdiction over an estate, including area field representatives
or one holding equivalent authority.
Testate means the decedent executed a will before his or her death.
Trust property means real or personal property, or an interest
therein, which the United States holds in trust for the benefit of an
individual Indian.
Will or last will and testament means a written testamentary
document, including any properly executed written changes, called
codicils, which was signed by the decedent and was attested by two
disinterested adult witnesses, that states who will receive the
decedent's trust or restricted property.
Sec. 4.202 General authority of OHA deciding officials.
An OHA deciding official will, except as otherwise provided in Sec.
4.205(b) and 25 CFR 15.203 and 15.206, determine the heirs of any Indian
who dies intestate possessed of trust property; approve or disapprove
the will of a deceased Indian disposing of trust property; accept or
reject any full or partial renunciation of interest in both testate and
intestate proceedings; allow or disallow creditors' claims against the
estate of a deceased Indian; and decree the distribution of trust
property to heirs and devisees, including the partial distribution to
known heirs or devisees where one or more potential heirs or devisees
are missing but not presumed dead, after attributing to and setting
aside for such missing person or persons the share or shares such person
or persons would be entitled to if living. An OHA deciding official will
determine the right of a tribe to take any inherited interest and the
fair market value of the interest taken in appropriate cases as provided
by statute. He or she will review each case de novo, hold hearings as
necessary or appropriate, and issue decisions in matters appealed from
decisions of BIA deciding officials. Administrative law judges will also
hold hearings and issue recommended decisions in matters referred to
them by the Board in the Board's consideration of appeals from
administrative actions of BIA officials.
[[Page 85]]
Determination of Heirs; Approval of Wills; Settlement of Indian Trust
Estates
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.203 Determination as to nonexistent persons and other
irregularities of allotments.
(a) An OHA deciding official will hear and determine whether trust
patents covering allotments of land were issued to nonexistent persons,
and whether more than one trust patent covering allotments of land had
been issued to the same person under different names and numbers or
through other errors in identification.
(b) If an OHA deciding official determines under paragraph (a) of
this section that a trust patent issued to an existing person and/or
that separate persons received the allotments under consideration and
any one of them is deceased, without having had his or her estate
probated, the OHA deciding official must proceed as provided in Sec.
4.202.
(c) If an OHA deciding official determines under paragraph (a) of
this section that a person did not exist or that more than one allotment
was issued to the same person, the OHA deciding official must issue a
decision to that effect, giving notice thereof to parties in interest as
provided in Sec. 4.240(b).
Sec. 4.204 Presumption of death.
(a) An OHA deciding official will receive evidence on and determine
the issue of whether any person, by reason of unexplained absence, is to
be presumed dead.
(b) If an OHA deciding official determines that an Indian person
possessed of trust property is to be presumed dead, the OHA deciding
official must proceed as provided in Sec. 4.202.
Sec. 4.205 Escheat.
An OHA deciding official will determine whether any Indian holder of
trust property died intestate without heirs and--
(a) With respect to trust property other than on the public domain,
order the escheat of such property in accordance with 25 U.S.C. 373a.
(b) With respect to trust property on the public domain, submit to
the Board of Indian Appeals the records thereon, together with
recommendations as to the disposition of said property under 25 U.S.C.
373b.
Sec. 4.206 Determinations of nationality or citizenship and status
affecting character of land titles.
In cases where the right and duty of the Government to hold property
in trust depends thereon, an OHA deciding official will determine the
nationality or citizenship, or the Indian or non-Indian status, of heirs
or devisees, or whether Indian heirs or devisees of U.S. citizenship are
of a class as to whose property the Government's supervision and
trusteeship have been terminated in current probate proceedings or in
completed estates after reopening such estates under, but without regard
to the 3-year limit set forth in Sec. 4.242.
Sec. 4.207 Compromise settlement.
(a) If during the course of the probate of an estate it develops
that an issue between contending parties is of such nature as to be
substantial, and it further appears that such issue may be settled by
agreement preferably in writing by the parties in interest to their
advantage and to the advantage of the United States, such an agreement
may be approved by the OHA deciding official upon findings that:
(1) All parties to the compromise are fully advised as to all
material facts;
(2) All parties to the compromise are fully cognizant of the effect
of the compromise upon their rights; and
(3) It is in the best interest of the parties to settle rather than
to continue litigation.
(b) In considering the proposed settlement, the OHA deciding
official may take and receive evidence as to the respective values of
specific items of property. Superintendents and irrigation project
engineers must supply all necessary information concerning any liability
or lien for payment of irrigation construction and of irrigation
operation and maintenance charges.
(c) Upon an affirmative determination as to all three points
specified, the OHA deciding official will issue such
[[Page 86]]
final order of distribution in the settlement of the estate as is
necessary to approve the same and to accomplish the purpose and spirit
of the settlement. Such order will be construed as any other order of
distribution establishing title in heirs and devisees and will not be
construed as a partition or sale transaction within the provisions of 25
CFR part 152. If land titles are to be transferred, the necessary deeds
must be prepared and executed at the earliest possible date. Upon
failure or refusal of any party in interest to execute and deliver any
deed necessary to accomplish the settlement, the OHA deciding official
will settle the issues and enter an order as if no agreement had been
attempted.
(d) OHA deciding officials are authorized to approve all deeds or
conveyances necessary to accomplish a settlement under this section.
Sec. 4.208 Renunciation of interest.
Any person 21 years or older, whether of Indian descent or not, may
renounce intestate succession or devise of trust or restricted property,
wholly or partially (including the retention of a life estate), by
filing a signed and acknowledged declaration of such renunciation with
the OHA deciding official prior to entry of the final order by the OHA
deciding official. No interest in the property so renounced is
considered to have vested in the heir or devisee and the renunciation is
not considered a transfer by gift of the property renounced, but the
property so renounced passes as if the person renouncing the interest
has predeceased the decedent. A renunciation filed in accordance
herewith will be considered accepted when implemented in an order by an
OHA deciding official and will be irrevocable thereafter. All
disclaimers or renunciations heretofore filed with and implemented in an
order by an OHA deciding official are hereby ratified as valid and
effective.
Commencement of Probate Proceedings
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.210 Commencement of probate.
The probate of a trust estate before an OHA deciding official will
commence when the probate specialist or BIA deciding official files with
the OHA deciding official all information shown in the records relative
to the family of the deceased and his or her property. The information
must include the complete probate package described in 25 CFR 15.104 and
15.202 and any other relevant information. The agency or BIA deciding
official must promptly transmit to the OHA deciding official any
creditor's or other claims that are received after the case is
transmitted to the OHA deciding official, for a determination of their
timeliness, validity, priority, and allowance under Sec. Sec. 4.250 and
4.251.
Sec. 4.211 Notice.
(a) An OHA deciding official may receive and hear evidence at a
hearing to determine the heirs of a deceased Indian or probate his or
her will only after the OHA deciding official has caused notice of the
time and place of the hearing to be posted at least 20 days prior to the
hearing date in five or more conspicuous places in the vicinity of the
designated place of hearing, and the OHA deciding official may cause
postings in such other places and reservations as he or she deems
appropriate. A certificate showing the date and place of posting must be
signed by the person or official who performs the act.
(b) The OHA deciding official must serve or cause to be served a
copy of the notice on each party in interest known to the OHA deciding
official and on each attesting witness if a will is offered:
(1) By personal service in sufficient time in advance of the date of
the hearing to enable the person served to attend the hearing; or
(2) By mail, addressed to the person at his or her last known
address, in sufficient time in advance of the date of the hearing to
enable the addressee served to attend the hearing. The OHA deciding
official must cause a certificate, as to the date and manner of such
mailing, to be made on the record copy of the notice.
[[Page 87]]
(c) All parties in interest, known and unknown, including creditors,
will be bound by the decision based on such hearing if they lived within
the vicinity of any place of posting during the posting period, whether
they had actual notice of the hearing or not. As to those not within the
vicinity of the place of posting, a rebuttable presumption of actual
notice will arise upon the mailing of such notice at a reasonable time
prior to the hearing, unless the said notice is returned by the postal
service to the office of the OHA deciding official unclaimed by the
addressee.
(d) Tribes to be charged with notice of death and probate. When a
record reveals that a Tribe has a statutory option to purchase interests
of a decedent, such Tribe must be notified of the pendency of a
proceeding by the the OHA deciding official having probate jurisdiction
in such proceeding, and the certificate of mailing of notice of probate
hearing or of a final decision in probate to the Tribe at its record
address will be conclusive evidence for all purposes that the Tribe had
notice of decedent's death and notice of the pendency of the probate
proceedings.
Sec. 4.212 Contents of notice.
(a) In the notice of hearing, the OHA deciding official must specify
that at the stated time and place the OHA deciding official will take
testimony to determine the heirs of the deceased person (naming him or
her) and, if a will is offered for probate, testimony as to the validity
of the will describing it by date. The notice must name all known
presumptive heirs of the decedent, and, if a will is offered for
probate, the beneficiaries under such will and the attesting witnesses
to the will. The notice must cite this subpart as the authority and
jurisdiction for holding the hearing, and must inform all persons having
an interest in the estate of the decedent, including persons having
claims or accounts against the estate, to be present at the hearing or
their rights may be lost by default.
(b) The notice must state further that the hearing may be continued
to another time and place. A continuance may be announced either at the
original hearing by the OHA deciding official or by an appropriate
notice posted at the announced place of hearing on or prior to the
announced hearing date and hour.
Depositions, Discovery, and Prehearing Conference
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.220 Production of documents for inspection and copying.
(a) At any stage of the proceeding prior to the conclusion of the
hearing, a party in interest may make a written demand, a copy to be
filed with the OHA deciding official, upon any other party to the
proceeding or upon a custodian of records on Indians or their trust
property, to produce for inspection and copying or photographing, any
documents, papers, records, letters, photographs, or other tangible
things not privileged, relevant to the issues which are in the other
party's or custodian's possession, custody, or control. Upon failure of
prompt compliance, the OHA deciding official may issue an appropriate
order upon a petition filed by the requesting party. At any time prior
to closing the record, the OHA deciding official upon his or her own
motion, after notice to all parties, may issue an order to any party in
interest or custodian of records for the production of material or
information not privileged, and relevant to the issues.
(b) Custodians of official records will furnish and reproduce
documents, or permit their reproduction, in accordance with the rules
governing the custody and control thereof.
Sec. 4.221 Depositions.
(a) Stipulation. Depositions may be taken upon stipulation of the
parties. Failing an agreement therefor, depositions may be ordered under
paragraphs (b) and (c) of this section.
(b) Application for taking deposition. When a party in interest
files a written application, the OHA deciding official may at any time
thereafter order the taking of the sworn testimony of any person by
deposition upon oral examination for the purpose of discovery or for use
as evidence at a hearing. The
[[Page 88]]
application must be in writing and must set forth:
(1) The name and address of the proposed deponent;
(2) The name and address of that person, qualified under paragraph
(d) of this section to take depositions, before whom the proposed
examination is to be made;
(3) The proposed time and place of the examination, which must be at
least 20 days after the date of the filing of the application; and
(4) The reasons why such deposition should be taken.
(c) Order for taking deposition. If after examination of the
application the OHA deciding official determines that the deposition
should be taken, he or she will order its taking. The order must be
served upon all parties in interest and must state:
(1) The name of the deponent;
(2) The time and place of the examination which must not be less
than 15 days after the date of the order except as stipulated otherwise;
and
(3) The name and address of the officer before whom the examination
is to be made. The officer and the time and place need not be the same
as those requested in the application.
(d) Qualifications of officer. The deponent must appear before the
OHA deciding official or before an officer authorized to administer
oaths by the law of the United States or by the law of the place of the
examination.
(e) Procedure on examination. The deponent must be examined under
oath or affirmation and must be subject to cross-examination. The
testimony of the deponent must be recorded by the officer or someone in
the officer's presence. An applicant who requests the taking of a
person's deposition must make his or her own arrangements for payment of
any costs incurred.
(f) Submission to witness; changes; signing. When the testimony is
fully transcribed, the deposition must be submitted to the deponent for
examination and must be read to or by him or her, unless such
examination and reading are waived by the deponent or by all other
parties in interest. Any changes in form or substance which the deponent
desires to make must be entered upon the deposition by the officer with
a statement of the reasons given by the deponent for making them. The
deposition must then be signed by the deponent, unless the parties in
interest by stipulation waive the signing, or the witness is ill or
cannot be found or refuses to sign. If the deposition is not signed by
the deponent, the officer must sign it and state on the record the fact
of the waiver, or of the illness or absence of the deponent or the fact
of the refusal to sign together with the reason, if any, given therefor;
the deposition may then be used as fully as though signed, unless the
OHA deciding official holds that the reason given for refusal to sign
requires rejection of the deposition in whole or in part.
(g) Certificates by officer. The officer must certify on the
deposition that the deponent was duly sworn by the officer and that the
deposition is a true record of the deponent's testimony. The officer
must then securely seal the deposition, together with two copies
thereof, in an envelope and must personally deliver or mail the same by
certified or registered mail to the OHA deciding official.
(h) Use of depositions. A deposition ordered and taken in accord
with the provisions of this section may be used in a hearing if the OHA
deciding official finds that the witness is absent and that his or her
presence cannot be readily obtained, that the evidence is otherwise
admissible, and that circumstances exist that make it desirable in the
interest of fairness to allow the deposition to be used. If a deposition
has been taken, and the party in interest on whose application it was
taken refuses to offer the deposition, or any part thereof, in evidence,
any other party in interest or the OHA deciding official may introduce
the deposition or any portion thereof on which he or she wishes to rely.
Sec. 4.222 Written interrogatories; admission of facts and documents.
At any time prior to a hearing and in sufficient time to permit
answers to be filed before the hearing, a party in interest may serve
upon any other party in interest written interrogatories and requests
for admission of facts and documents. A copy of such interrogatories and
requests must be filed with the
[[Page 89]]
OHA deciding official. Such interrogatories and requests for admission
must be drawn with the purpose of defining the issues in dispute between
the parties and facilitating the presentation of evidence at the
hearing. Answers must be served upon the party propounding the written
interrogatories or requesting the admission of facts and documents
within 30 days from the date of service of such interrogatories or
requests, or within such other period of time as may be agreed upon by
the parties or prescribed by the OHA deciding official. A copy of the
answer must be filed with the OHA deciding official. Within 10 days
after written interrogatories are served upon a party, that party may
serve cross-interrogatories for answer by the witness to be
interrogated.
Sec. 4.223 Objections to and limitations on production of documents,
depositions, and interrogatories.
The OHA deciding official, upon motion timely made by any party in
interest, proper notice, and good cause shown, may direct that
proceedings under Sec. Sec. 4.220, 4.221, and 4.222 may be conducted
only under, and in accordance with, such limitation as he or she deems
necessary and appropriate as to documents, time, place, and scope. The
OHA deciding official may act on his or her own motion only if undue
delay, dilatory tactics, and unreasonable demands are made so as to
delay the orderly progress of the proceeding or cause unacceptable
hardship upon a party or witness.
Sec. 4.224 Failure to comply with orders.
In the event of the failure of a party to comply with a request for
the production of a document under Sec. 4.220; or on the failure of a
party to appear for examination under Sec. 4.221 or on the failure of a
party to respond to interrogatories or requests for admissions under
Sec. 4.222; or on the failure of a party to comply with an order of the
OHA deciding official issued under Sec. 4.223 without, in any of such
events, showing an excuse or explanation satisfactory to the OHA
deciding official for such failure, the OHA deciding official may:
(a) Decide the fact or issue relating to the material requested to
be produced, or the subject matter of the probable testimony, in
accordance with the claims of the other party in interest or in
accordance with other evidence available to the OHA deciding official;
or
(b) Make such other ruling as the OHA deciding official determines
just and proper.
Sec. 4.225 Prehearing conference.
The OHA deciding official may, upon his or her own motion or upon
the request of any party in interest, call upon the parties to appear
for a conference to:
(a) Simplify or clarify the issues;
(b) Obtain stipulations, admissions, agreements on documents,
understandings on matters already of record, or similar agreements which
will avoid unnecessary proof;
(c) Limit the number of expert or other witnesses in avoidance of
excessively cumulative evidence;
(d) Effect possible agreement disposing of all or any of the issues
in dispute; and
(e) Resolve such other matters as may simplify and shorten the
hearing.
Hearings
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.230 Authority and duties of the OHA deciding official.
The authority of the OHA deciding official in all hearings in estate
proceedings includes, but is not limited to authority:
(a) To administer oaths and affirmations;
(b) To issue subpoenas under the provisions of 25 U.S.C. 374 upon
his or her own initiative or within his or her discretion upon the
request of any party in interest, to any person whose testimony he or
she believes to be material to a hearing. Upon the failure or refusal of
any person upon whom a subpoena has been served to appear at a hearing
or to testify, the OHA deciding official may file a petition in the
appropriate U.S. District Court for the
[[Page 90]]
issuance of an order requiring the appearance and testimony of the
witness:
(c) To permit any party in interest to cross-examine any witness;
(d) To appoint a guardian ad litem to represent any minor or
incompetent party in interest at hearings;
(e) To rule upon offers of proof and receive evidence;
(f) To take and cause depositions to be taken and to determine their
scope; and
(g) To otherwise regulate the course of the hearing and the conduct
of witnesses, parties in interest, and attorneys at law appearing
therein.
Sec. 4.231 Hearings.
(a) All testimony in Indian probate hearings must be under oath and
must be taken in public except in those circumstances which in the
opinion of the OHA deciding official justify all but parties in interest
to be excluded from the hearing.
(b) The proceedings of hearings must be recorded verbatim.
(c) The record must include a showing of the names of all parties in
interest and of attorneys who attended such hearing.
Sec. 4.232 Evidence; form and admissibility.
(a) Parties in interest may offer at a hearing such relevant
evidence as they deem appropriate under the generally accepted rules of
evidence of the State in which the evidence is taken, subject to the OHA
deciding official's supervision as to the extent and manner of
presentation of such evidence.
(b) The OHA deciding official may admit letters or copies thereof,
affidavits, or other evidence not ordinarily admissible under the
generally accepted rules of evidence, the weight to be attached to
evidence presented in any particular form being within the discretion of
the OHA deciding official, taking into consideration all the
circumstances of the particular case.
(c) Stipulations of fact and stipulations of testimony that would be
given by witnesses were such witnesses present, agreed upon by the
parties in interest, may be used as evidence at the hearing.
(d) The OHA deciding official may in any case require evidence in
addition to that offered by the parties in interest.
Sec. 4.233 Proof of wills, codicils, and revocations.
(a) Self-proved wills. A will executed as provided in Sec. 4.260
may, at the time of its execution, be made self-proved, and testimony of
the witnesses in the probate thereof may be made unnecessary by the
affidavits of the testator and attesting witnesses, made before an
officer authorized to administer oaths, such affidavits to be attached
to such will and to be in form and contents substantially as follows:
State of ------------ County of -------- ss. I, --------, being first
duly sworn, on oath, depose and say: That I am an ---- (enrolled or
unenrolled) member of the ------------ Tribe of Indians in the State of
------------; that on the ---- day of ------, 19----, I requested ------
------ to prepare a will for me; that the attached will was prepared and
I requested ------------ and ------------ to act as witnesses thereto;
that I declared to said witnesses that said instrument was my last will
and testament; that I signed said will in the presence of both witnesses
and they signed the same as witnesses in my presence and in the presence
of each other; that said will was read and explained to me (or read by
me), after being prepared and before I signed it and it clearly and
accurately expresses my wishes; and that I willingly made and executed
said will as my free and voluntary act and deed for the purposes therein
expressed.
Testator/Testatrix
We, -------------- and--------------, each being first duly sworn, on
oath, depose and state: That on the ----day of ------, 19----, --------
a member of the -------- Tribe of Indians of the State of --------,
published and declared the attached instrument to be his/her last will
and testament, signed the same in the presence of both of us and
requested both of us to sign the same as witnesses; that we, in
compliance with his/her request, signed the same as witnesses in his/her
presence and in the presence of each other; that said testator/testatrix
was not acting under duress, menace, fraud, or undue influence of any
person, so far as we could ascertain, and in our opinion was mentally
capable of disposing of all his/her estate by will.
________________________________________________________________________
Witness
________________________________________________________________________
Witness
[[Page 91]]
Subscribed and sworn to before me this------ day of------, 19----, by --
--------testator/testatrix, and by ----------and ----------; attesting
witnesses.
________________________________________________________________________
________________________________________________________________________
(Title)
If uncontested, a self-proved will may be approved and distribution
ordered thereunder with or without the testimony of any attesting
witness.
(b) Self-proved codicils and revocations. A codicil to, or a
revocation of, a will may be made self-proved in the same manner as
provided in paragraph (a) of this section with respect to a will.
(c) Will contest. If the approval of a will, codicil thereto, or
revocation thereof is contested, the attesting witnesses who are in the
reasonable vicinity of the place of hearing and who are of sound mind
must be produced and examined. If none of the attesting witnesses
resides in the reasonable vicinity of the place of hearing at the time
appointed for proving the will, the OHA deciding official may admit the
testimony of other witnesses to prove the testamentary capacity of the
testator and the execution of the will and, as evidence of the
execution, the OHA deciding official may admit proof of the handwriting
of the testator and of the attesting witnesses, or of any of them. The
provisions of Sec. 4.232 are applicable with respect to remaining
issues.
Sec. 4.234 Witnesses, interpreters, and fees.
Parties in interest who desire a witness to testify or an
interpreter to serve at a hearing must make their own financial and
other arrangements therefor, and subpoenas will be issued where
necessary and proper. The OHA deciding official may call witness and
interpreters and order payment out of the estate assets of per diem,
mileage, and subsistence at a rate not to exceed that allowed to
witnesses called in the U.S. District Courts. In hardship situations,
the OHA deciding official may order payment of per diem and mileage for
indispensable witnesses and interpreters called for the parties. In the
order for payment he or she must specify whether such costs are to be
allocated and charged against the interest of the party calling the
witness or against the estate generally. Costs of administration so
allowed will have a priority for payment greater than that for any
creditor claims allowed. Upon receipt of such order, the Superintendent
must immediately initiate payment of such sums from the estate account,
or if such funds are insufficient, then out of funds as they are
received in such account prior to closure of the estate, with the
proviso that such costs must be paid in full with a later allocation
against the interest of a party, if the OHA deciding official has so
ordered.
Sec. 4.235 Supplemental hearings.
After the matter has been submitted but prior to the time the OHA
deciding official has rendered his or her decision, the OHA deciding
official may upon his or her own motion or upon motion of any party in
interest schedule a supplemental hearing if he or she deems it
necessary. The notice must set forth the purpose of the supplemental
hearing and must be served upon all parties in interest in the manner
provided in Sec. 4.211. Where the need for such supplemental hearing
becomes apparent during any hearing, the OHA deciding official may
announce the time and place for such supplemental hearing to all those
present and no further notice need be given. In that event the records
must clearly show who was present at the time of the announcement.
Sec. 4.236 Record.
(a) After the completion of the hearing, the OHA deciding official
will make up the official record containing:
(1) A copy of the posted public notice of hearing showing the
posting certifications;
(2) A copy of each notice served on interested parties with proof of
mailing;
(3) The record of the evidence received at the hearing, including
any transcript made of the testimony;
(4) Claims filed against the estate;
(5) Will and codicils, if any;
(6) Inventories and valuations of the estate;
(7) Pleadings and briefs filed;
(8) Special or interim orders;
(9) Data for heirship finding and family history;
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(10) The decision and the notices thereof; and
(11) Any other material or documents deemed material by the OHA
deciding official.
(b) The OHA deciding official must lodge the original record with
the designated Land Titles and Records Office in accordance with 25 CFR
part 150. A duplicate copy must be lodged with the Superintendent
originating the probate. A partial record may also be furnished to the
Superintendents of other affected agencies. In those cases in which a
hearing transcript has not been prepared, the verbatim recording of the
hearing must be retained in the office of the OHA deciding official
issuing the decision until the time allowed for rehearing or appeal has
expired. In cases in which a transcript is not prepared, the original
record returned to the Land Titles and Records Office must contain a
statement indicating no transcript was prepared.
Decisions
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.240 Decision of the OHA deciding official and notice thereof.
(a) The OHA deciding official must decide the issues of fact and law
involved in the proceedings and must incorporate the following in his or
her decision:
(1) In all cases, the names, birth dates, relationships to the
decedent, and shares of heirs with citations to the law of descent and
distribution in accordance with which the decision is made; or the fact
that the decedent died leaving no legal heirs.
(2) In testate cases, (i) approval or disapproval of the will with
construction of its provisions, (ii) the names and relationship to the
testator of all beneficiaries and a description of the property which
each is to receive;
(3) Allowance or disallowance of claims against the estate;
(4) Whether heirs or devisees are non-Indian, exclusively alien
Indians, or Indians whose property is not subject to Federal
supervision.
(5) A determination of any rights of dower, curtesy or homestead
which may constitute a burden upon the interest of the heirs.
(b) When the OHA deciding official issues a decision, he or she must
issue a notice thereof to all parties who have or claim any interest in
the estate and must mail a copy of said notice, together with a copy of
the decision to the Superintendent and to each party in interest
simultaneously. The decision will not become final and no distribution
may be made thereunder until the expiration of the 60 days allowed for
the filing of a petition for rehearing by aggrieved parties as provided
in Sec. 4.241.
Sec. 4.241 Rehearing.
(a) Any person aggrieved by the decision of the OHA deciding
official may, within 60 days after the date on which notice of the
decision is mailed to the interested parties, file with the OHA deciding
official a written petition for rehearing. Such petition must be under
oath and must state specifically and concisely the grounds upon which it
is based. If the petition is based on newly-discovered evidence, it must
be accompanied by affidavits or declarations of witnesses stating fully
what the new testimony is to be. It must also state justifiable reasons
for the failure to discover and present that evidence, tendered as new,
at the hearings held prior to the issuance of the decision. The OHA
deciding official, upon receiving a petition for rehearing, must
promptly forward a copy to the Superintendent. The Superintendent must
not initiate payment of claims or distribute the estate while such
petition is pending, unless otherwise directed by the OHA deciding
official.
(b) If proper grounds are not shown, or if the petition is not filed
within the time prescribed in paragraph (a) of this section, the OHA
deciding official will issue an order denying the petition and must set
forth therein his or her reasons therefor. The OHA deciding official
must furnish copies of such order to the petitioner, the Superintendent,
and the parties in interest.
(c) If the petition appears to show merit, the OHA deciding official
must cause copies of the petition and supporting papers to be served on
those persons whose interest in the estate
[[Page 93]]
might be adversely affected by the granting of the petition. The OHA
deciding official must allow all persons served a reasonable, specified
time in which to submit answers or legal briefs in opposition to the
petition. The OHA deciding official will then reconsider, with or
without hearing as he or she may determine, the issues raised in the
petition; he or she may adhere to the former decision, modify or vacate
it, or make such further order as is warranted.
(d) Upon entry of a final order the OHA deciding official must lodge
the complete record relating to the petition with the title plant
designated under Sec. 4.236(b), and furnish a duplicate record thereof
to the Superintendent.
(e) Successive petitions for rehearing are not permitted, and except
for the issuance of necessary orders nunc pro tunc to correct clerical
errors in the decision, the jurisdiction of the OHA deciding official
terminates upon the issuance of a decision finally disposing of a
petition for rehearing. Nothing herein will be construed as a bar to the
remand of a case by the Board for further hearing or rehearing after
appeal.
(f) At the time the final decision is entered following the filing
of a petition for rehearing, the OHA deciding official must direct a
notice of such action with a copy of the decision to the Superintendent
and to the parties in interest and must mail the same by regular mail to
the said parties at their addresses of record.
(g) No distribution may be made under such order for a period of 60
days following the mailing of a notice of decision pending the filing of
a notice of appeal by an aggrieved party as herein provided.
Sec. 4.242 Reopening.
(a) Within a period of 3 years from the date of a final decision
issued by an OHA deciding official or by the Board but not thereafter
except as provided in Sec. Sec. 4.203 and 4.206, any person claiming an
interest in the estate who had no actual notice of the original
proceedings and who was not on the reservation or otherwise in the
vicinity at any time while the public notices of the hearing were posted
may file a petition in writing for reopening of the case. Any such
petition must be addressed to the OHA deciding official and filed at his
or her office. A copy of such petition must be furnished also by the
petitioner to the Superintendent. All grounds for the reopening must be
set forth fully. If based on alleged errors of fact, all such
allegations must be under oath and supported by affidavits.
(b) If the OHA deciding official finds that proper grounds are not
shown, he or she will issue an order denying the petition and setting
forth the reasons for such denial. Copies of the OHA deciding official's
decision must be mailed to the petitioner, the Superintendent, and to
those persons who share in the estate.
(c) If the petition appears to show merit, the OHA deciding official
must cause copies of the petition and all papers filed by the petitioner
to be served on those persons whose interest in the estate might be
adversely affected by the granting of the petition. Such persons may
resist such petition by filing answers, cross-petitions, or briefs. Such
filings must be made within such reasonable time periods as the OHA
deciding official specifies. The OHA deciding official will then
reconsider, with or without hearing as he or she may determine, prior
actions taken in the case and may either adhere to, modify, or vacate
the original decision. Copies of the OHA deciding official's decision
must be mailed to the petitioner, to all persons who received copies of
the petition, and to the Superintendent.
(d) To prevent manifest error an OHA deciding official may reopen a
case within a period of 3 years from the date of the final decision,
after due notice on his or her own motion, or on petition of a BIA
officer. Copies of the OHA deciding official's decision must be mailed
to all parties in interest and to the Superintendent.
(e) The OHA deciding official may suspend distribution of the estate
or the income therefrom during the pendency of reopening proceedings by
order directed to the Superintendent.
(f) The OHA deciding official must lodge the record made in
disposing of a reopening petition with the title plant designated under
Sec. 4.236(b) and must
[[Page 94]]
furnish a duplicate record thereof to the Superintendent.
(g) No distribution may be made under a decision issued pursuant to
paragraph (b), (c), or (d) of this section for a period of 60 days
following the mailing of the copy of the decision as therein provided,
pending the filing of a notice of appeal by an aggrieved party.
(h) If a petition for reopening is filed more than 3 years after the
entry of a final decision in a probate, it will be allowed only upon a
showing that a manifest injustice will occur; that a reasonable
possibility exists for correction of the error; that the petitioner had
no actual notice of the original proceedings; and that petitioner was
not on the reservation or otherwise in the vicinity at any time while
the public notices were posted. A denial of such petition may be made by
the OHA deciding official on the basis of the petition and available BIA
records. No such petition will be granted, however, unless the OHA
deciding official has caused copies of the petition and all other papers
filed by the petitioner to be served on those persons whose interest in
the estate might be adversely affected by the granting of the petition,
and after allowing such persons an opportunity to resist such petition
by filing answers, cross petitions or briefs as provided in paragraph
(c) of this section.
Appeals From Decisions of BIA Deciding Officials
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.243 Appeals from BIA.
Any appeal filed pursuant to 25 CFR part 15, subpart E, will be
referred to an OHA deciding official pursuant to Sec. 4.210. The OHA
deciding official will review the merits of the case de novo and conduct
a hearing as necessary or appropriate pursuant to the regulations in
this subpart. The BIA deciding official must forward to the OHA deciding
official all documents and other evidence upon which the BIA deciding
official's decision was based.
Claims
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.250 Filing and proof of creditor claims; limitations.
(a) All claims against the estate of a deceased Indian must be filed
with the agency
(i) Within 60 days from the date BIA receives a certified copy of
the death certificate or other verification of the decedent's death
under 25 CFR 15.101 or
(ii) Within 20 days from the date the creditor is chargeable with
notice of the decedent's death, whichever of these dates is later.
(b) No claim will be paid from trust or restricted assets when the
OHA deciding official is aware that the decedent's non-trust estate may
be available to pay the claim.
(c) All claims must be filed in triplicate, itemized in detail as to
dates and amounts of charges for purchases or services and dates and
amounts of payments on account. Such claims must show the names and
addresses of all parties in addition to the decedent from whom payment
might be sought. Each claim must be supplemented by an affidavit, in
triplicate, of the claimant or someone in his or her behalf that the
amount claimed is justly due from the decedent, that no payments have
been made on the account which are not credited thereon as shown by the
itemized statement, and that there are no offsets to the knowledge of
the claimant.
(d) Claims for care may not be allowed except upon clear and
convincing evidence that the care was given on a promise of compensation
and that compensation was expected.
(e) A claim based on a written or oral contract, express or implied,
where the claim for relief has existed for such a period as to be barred
by the State laws at date of decedent's death, cannot be allowed.
(f) Claims sounding in tort not reduced to judgment in a court of
competent jurisdiction, and other unliquidated claims not properly
within the jurisdiction of a probate forum, may be
[[Page 95]]
barred from consideration by an interim order from the OHA deciding
official.
(g) Claims of a State or any of its political subdivisions on
account of social security or old-age assistance payments will not be
allowed.
Sec. 4.251 Priority of claims.
(a) Upon motion of the Superintendent or a party in interest, the
OHA deciding official may authorize payment of the costs of
administering the estate as they arise and prior to the allowance of any
claims against the estate.
(b) After the costs of administration, the OHA deciding official may
authorize payment of priority claims as follows:
(1) Claims for funeral expenses (including the cemetery marker);
(2) Claims for medical expenses for the last illness;
(3) Claims for nursing home or other care facility expenses;
(4) Claims of an Indian tribe; and
(5) Claims reduced to judgment by a court of competent jurisdiction.
(c) After the priority claims, the OHA deciding official may
authorize payment of all remaining claims, referred to as general
claims.
(d) The OHA deciding official has the discretion to decide that part
or all of an otherwise valid claim is unreasonable, reduce the claim to
a reasonable amount, or disallow the claim in its entirety.
(1) If a claim is reduced, the OHA deciding official will order
payment only of the reduced amount.
(2) An OHA deciding official may reduce or disallow both priority
claims and general claims.
(e) If, as of the date of the hearing, there is not enough money in
the IIM account to pay all claims, the OHA deciding official will order
payment of allowed priority claims first, either in the order identified
in paragraph (b) of this section or on a pro rata (reduced) basis.
(f) If, as of the date of the hearing, less than $1,000 remains in
the IIM account after payment of priority claims is ordered, the general
claims may be ordered paid on a pro rata basis or disallowed in their
entirety.
(g) The unpaid balance of any claims will not be enforceable against
the estate after the estate is closed.
(h) Interest or penalties charged against either priority or general
claims after the date of death will not be paid.
Sec. 4.252 Property subject to claims.
Claims are payable from income from the lands remaining in trust.
Further, except as prohibited by law, all trust moneys of the deceased
on hand or accrued at time of death, including bonds, unpaid judgments,
and accounts receivable, may be used for the payment of claims, whether
the right, title, or interest that is taken by an heir, devisee, or
legatee remains in or passes out of trust.
Wills
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.260 Making of a will; review as to form; revocation.
(a) An Indian 18 years of age or over and of testamentary capacity,
who has any right, title, or interest in trust property, may dispose of
such property by a will executed in writing and attested by two
disinterested adult witnesses.
(b) When an Indian executes a will and submits the same to the
Superintendent, the Superintendent must forward it to the Office of the
Solicitor for examination as to adequacy of form, and for submission by
the Office of the Solicitor to the Superintendent of any appropriate
comments. The will, codicil, or any replacement or copy thereof, may be
retained by the Superintendent at the request of the testator or
testatrix for safekeeping. A will must be held in absolute confidence,
and no person other than the testator may admit its existence or divulge
its contents prior to the death of the testator.
(c) The testator may, at any time during his or her lifetime, revoke
his or her will by a subsequent will or other writing executed with the
same formalities as are required in the case of
[[Page 96]]
the execution of a will, or by physically destroying the will with the
intention of revoking it. No will that is subject to the regulations of
this subpart will be deemed to be revoked by operation of the law of any
State.
Sec. 4.261 Anti-lapse provisions.
When an Indian testator devises or bequeaths trust property to any
of his or her grandparents or to the lineal descendant of a grandparent,
and the devisee or legatee dies before the testator leaving lineal
descendants, such descendants will take the right, title, or interest so
given by the will per stirpes. Relationship by adoption is equivalent to
relationship by blood.
Sec. 4.262 Felonious taking of testator's life.
No person who has been finally convicted of feloniously causing the
death or taking the life of, or procuring another person to take the
life of, the testator, may take directly or indirectly any devise or
legacy under deceased's will. All right, title, and interest existing in
such a situation will vest and be determined as if the person convicted
never existed, notwithstanding Sec. 4.261.
Custody and Distribution of Estates
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.270 Custody and control of trust estates.
The Superintendent may assume custody or control of all tangible
trust personal property of a deceased Indian, and the Superintendent may
take such action, including sale thereof, as in his or her judgment is
necessary for the benefit of the estate, the heirs, legatees, and
devisees, pending entry of the decision provided for in 25 CFR 15.311 or
in Sec. Sec. 4.240, 4.241, or 4.312. All expenses, including expenses
of roundup, branding, care, and feeding of livestock, are chargeable
against the estate and may be paid from those funds of the deceased that
are under the Department's control, or from the proceeds of a sale of
the property or a part thereof. If an OHA deciding official or BIA
deciding official has been assigned to adjudicate the estate, his or her
approval is required prior to such payment.
Sec. 4.271 Omitted property.
(a) When, subsequent to the issuance of a decision under Sec. 4.240
or Sec. 4.312, it is found that trust property or interest therein
belonging to a decedent has not been included in the inventory, the
inventory can be modified to include such omitted property for
distribution pursuant to the original decision. Such modification may be
made either administratively by the Commissioner or by a modification
order prepared by him or her for the approval and signature of the OHA
deciding official. Copies of such modifications must be furnished to the
Superintendent and to all those persons who share in the estate.
(b) When the property to be included takes a different line of
descent from that shown in the original decision, the Commissioner must
notify the OHA deciding official who will proceed to hold a hearing if
necessary and will issue a decision under Sec. 4.240. The record of any
such proceeding must be lodged with the title plant designated under
Sec. 4.236(b).
Sec. 4.272 Improperly included property.
(a) When, subsequent to a decision under Sec. 4.240 or Sec. 4.312,
it is found that property has been improperly included in the inventory
of an estate, the inventory must be modified to eliminate such property.
A petition for modification may be filed by the Superintendent of the
Agency where the property is located, or by any party in interest.
(b) The OHA deciding official will review the record of the title
upon which the modification is to be based, and enter an appropriate
decision. If the decision is entered without a hearing, the OHA deciding
official must give notice of his or her action to all parties whose
rights are adversely affected allowing them 60 days in which to show
cause why the decision should not then become final.
(c) Where appropriate the OHA deciding official may conduct a
hearing at any stage of the modification proceeding. Any such hearing
must be scheduled and conducted in accordance with the rules of this
subpart. The OHA
[[Page 97]]
deciding official will enter a final decision based on his or her
findings, modifying or refusing to modify the property inventory, and
his or her decision will become final at the end of 60 days from the
date it is mailed unless a notice of appeal is filed by an aggrieved
party within such period. Notice of entry of the decision must be given
in accordance with Sec. 4.240(b).
(d) A party aggrieved by the OHA deciding official's decision may
appeal to the Board pursuant to the procedures in Sec. Sec. 4.310
through 4.323.
(e) The record of all proceedings must be lodged with the title
plant designated under Sec. 4.236(b).
Sec. 4.273 Distribution of estates.
(a) Seventy-five days after a final order has been issued, unless
the Superintendent has received a copy of a petition for rehearing filed
pursuant to the requirements of Sec. 4.241(a) or a copy of a notice of
appeal filed pursuant to the requirements of Sec. 4.320(b), he or she
must initiate payment of allowed claims, distribution of the estate, and
all other actions required by the OHA deciding official's final order.
(b) The Superintendent must not initiate the payment of claims or
distribution of the estate during the pendency of proceedings under
Sec. 4.241 or Sec. 4.242, unless the OHA deciding official orders
otherwise in writing. The Board may, at any time, authorize the OHA
deciding official to issue interim orders for payment of claims or for
partial distribution during the pendency of proceedings on appeal.
Miscellaneous
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.281 Claims for attorney fees.
(a) Attorneys representing Indians in proceedings under these
regulations may be allowed fees therefor by the OHA deciding official.
At the discretion of the OHA deciding official, such fees may be
chargeable against the interests of the party thus represented, or where
appropriate, they may be taxed as a cost of administration. Petitions
for allowance of fees must be filed prior to the close of the last
hearing and must be supported by such proof as is required by the OHA
deciding official. In determining attorney fees, consideration must be
given to the fact that the property of the decedent is restricted or
held in trust and that it is the duty of the Department to protect the
rights of all parties in interest.
(b) Nothing herein prevents an attorney from petitioning for
additional fees to be considered at the disposition of a petition for
rehearing and again after an appeal on the merits. An order allowing an
attorney's fees is subject to a petition for rehearing and to an appeal.
Sec. 4.282 Guardians for incompetents.
Minors and other legal incompetents who are parties in interest must
be represented at all hearings by legally appointed guardians, or by
guardians ad litem appointed by the OHA deciding official.
Tribal Purchase of Interests Under Special Statutes
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.300 Authority and scope.
(a) The rules and procedures set forth in Sec. Sec. 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).
[[Page 98]]
(b)(1) In the exercise of probate authority, an OHA deciding
official will determine:
(i) The entitlement of a tribe to purchase a decedent's interests in
trust or restricted land under the statutes;
(ii) The entitlement of a surviving spouse to reserve a life estate
in one-half of the surviving spouse's interests which have been
purchased by a tribe; and
(iii) The fair market value of such interests, including the value
of any life estate reserved by a surviving spouse.
(2) In the determination under paragraph (b)(1) of this section of
the entitlement of a tribe to purchase the interests of an heir or
devisee, the issues of
(i) Enrollment or refusal of the tribe to enroll a specific
individual and
(ii) Specification of blood quantum, where pertinent, will be
determined by the official tribal roll which is binding upon the OHA
deciding official. For good cause shown, the OHA deciding official may
stay the probate proceeding to permit an aggrieved party to pursue an
enrollment application, grievance, or appeal through the established
procedures applicable to the tribe.
Sec. 4.301 Valuation report.
(a) In all probates, at the earliest possible stage of the
proceeding before issuance of a probate decision, the BIA must furnish a
valuation of the decedent's interests when the record reveals to the
Superintendent:
(1) That the decedent owned interests in land located on one or more
of those reservations designated in Sec. 4.300 and
(2) That any one or more of the probable heirs or devisees, who may
become a distributee of such interests upon completion of the probate
proceeding, is not enrolled in or does not have the required blood
quantum in the tribe of the reservation where the land is located to
hold such interests against a claim thereto made by the tribe. If there
is a surviving spouse whose interests may be subject to the tribal
option, the valuation must include the value of a life estate based on
the life of the surviving spouse in one half of such interests. The
valuation must be made on the basis of the fair market value of the
property, including fixed improvements, as of the date of decedent's
death.
(b) BIA must submit the valuation report in the probate package
submitted to the OHA deciding official. Interested parties may examine
and copy, at their expense, the valuation report at the office of the
Superintendent or the OHA deciding official.
Sec. 4.302 Conclusion of probate and tribal exercise of statutory option.
(a) Conclusion of probate; findings in the probate decision. When a
decedent is shown to have owned land interests in any one or more of the
reservations mentioned in the statutes enumerated in Sec. 4.300, the
probate proceeding relative to the determination of heirs, approval or
disapproval of a will, and the claims of creditors will first be
concluded as final for the Department in accordance with Sec. Sec.
4.200 through 4.282 and Sec. Sec. 4.310 through 4.323. This decision
will be referred to herein as the ``probate decision.'' At the probate
hearing a finding must be made on the record showing those interests in
land, if any, which are subject to the tribal option. The finding must
be reduced to writing in the probate decision setting forth the apparent
rights of the tribe as against affected heirs or devisees and the right
of a surviving spouse whose interests are subject to the tribal option
to reserve a life estate in one-half of such interests. If the finding
is that there are no interests subject to the tribal option, the
decision must so state. A copy of the probate decision, to which must be
attached a copy of the valuation report, must be distributed to all
parties in interest in accordance with Sec. Sec. 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
[[Page 99]]
not, however, claim an interest less than the decedent's total interest
in any one individual tract. The tribe must file a written notice of
purchase with the Superintendent, together with the tribe's
certification that copies thereof have been mailed on the same date to
the OHA deciding official and to the affected heirs or devisees. Upon
failure to timely file a notice of purchase, the right to distribution
of all unclaimed interests will accrue to the heirs or devisees.
Sec. 4.303 Notice by surviving spouse to reserve a life estate.
When the heir or devisee whose interests are subject to the tribal
option is a surviving spouse, the spouse may reserve a life estate in
one-half of such interests. The spouse must file a written notice to
reserve with the Superintendent within 30 days after the tribe has
exercised its option to purchase the interest in question, together with
a certification that copies thereof have been mailed on the same date to
the OHA deciding official and the tribe. Failure to timely file a notice
to reserve a life estate will constitute a waiver thereof.
Sec. 4.304 Rehearing.
Any party in interest aggrieved by the probate decision may, within
60 days from the date of the probate decision, file with the OHA
deciding official a written petition for rehearing in accordance with
Sec. 4.241.
Sec. 4.305 Hearing.
(a) Demand for hearing. Any party in interest aggrieved by the
exercise of the tribal option to purchase the interests in question or
the valuation of the interests as set forth in the valuation report may,
within 60 days from the date of the probate decision or 60 days from the
date of the decision on rehearing, whichever is applicable, file with
the OHA deciding official a written demand for hearing, together with a
certification that copies thereof have been mailed on the same date to
the Superintendent and to each party in interest; provided, however,
that an aggrieved party will have at least 20 days from the date the
tribe exercises its option to purchase available interests to file such
a demand. The demand must state specifically and concisely the grounds
upon which it is based.
(b) Notice; burden of proof. The OHA deciding official will, upon
receipt of a demand for hearing, set a time and place therefor and must
mail notice thereof to all parties in interest not less than 30 days in
advance; provided, however, that such date must be set after the
expiration of the 60-day period fixed for the filing of the demand for
hearing as provided in Sec. 4.305(a). At the hearing, each party
challenging the tribe's claim to purchase the interests in question or
the valuation of the interests as set forth in the valuation report will
have the burden of proving his or her position.
(c) Decision after hearing; appeal. Upon conclusion of the hearing,
the OHA deciding official will issue a decision which determines all of
the issues including, but not limited to, a judgment establishing the
fair market value of the interests purchased by the tribe, including any
adjustment thereof made necessary by the surviving spouse's decision to
reserve a life estate in one-half of the interests. The decision must
specify the right of appeal to the Board of Indian Appeals within 60
days from the date of the decision in accordance with Sec. Sec. 4.310
through 4.323. The OHA deciding official must lodge the complete record
relating to the demand for hearing with the title plant as provided in
Sec. 4.236(b), furnish a duplicate record thereof to the
Superintendent, and mail a notice of such action together with a copy of
the decision to each party in interest.
Sec. 4.306 Time for payment.
A tribe must pay the full fair market value of the interests
purchased, as set forth in the valuation report or as determined after
hearing in accordance with Sec. 4.305, whichever is applicable, within
2 years from the date of decedent's death or within 1 year from the date
of notice of purchase, whichever comes later.
Sec. 4.307 Title.
Upon payment by the tribe of the interests purchased, the
Superintendent must issue a certificate to the OHA deciding official
that this has been done
[[Page 100]]
and file therewith such documents in support thereof as the OHA deciding
official may require. The OHA deciding official will then issue an order
that the United States holds title to such interests in trust for the
tribe, lodge the complete record, including the decision, with the title
plant as provided in Sec. 4.236(b), furnish a duplicate record thereof
to the Superintendent, and mail a notice of such action together with a
copy of the decision to each party in interest.
Sec. 4.308 Disposition of income.
During the pendency of the probate and up to the date of transfer of
title to the United States in trust for the tribe in accordance with
Sec. 4.307, all income received or accrued from the land interests
purchased by the tribe will be credited to the estate.
Cross Reference: See 25 CFR part 2 for procedures for appeals to
Area Directors and to the Commissioner of the Bureau of Indian Affairs.
General Rules Applicable to Proceedings on Appeal Before the Interior
Board of Indian Appeals
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.310 Documents.
(a) Filing. The effective date for filing a notice of appeal or
other document with the Board during the course of an appeal is the date
of mailing or the date of personal delivery, except that a motion for
the Board to assume jurisdiction over an appeal under 25 CFR 2.20(e)
will be effective the date it is received by the Board.
(b) Service. Notices of appeal and pleadings must be served on all
parties in interest in any proceeding before the Interior Board of
Indian Appeals by the party filing the notice or pleading with the
Board. Service must be accomplished upon personal delivery or mailing.
Where a party is represented in an appeal by an attorney or other
representative authorized under 43 CFR 1.3, service of any document on
the attorney or representative is service on the party. Where a party is
represented by more than one attorney, service on any one attorney is
sufficient. The certificate of service on an attorney or representative
must include the name of the party whom the attorney or representative
represents and indicate that service was made on the attorney or
representative.
(c) Computation of time for filing and service. Except as otherwise
provided by law, in computing any period of time prescribed for filing
and serving a document, the day upon which the decision or document to
be appealed or answered was served or the day of any other event after
which a designated period of time begins to run is not to be included.
The last day of the period so computed is to be included, unless it is a
Saturday, Sunday, Federal legal holiday, or other nonbusiness day, in
which event the period runs until the end of the next day which is not a
Saturday, Sunday, Federal legal holiday, or other nonbusiness day. When
the time prescribed or allowed is 7 days or less, intermediate
Saturdays, Sundays, Federal legal holidays, and other nonbusiness days
are excluded in the computation.
(d) Extensions of time. (1) The time for filing or serving any
document except a notice of appeal may be extended by the Board.
(2) A request to the Board for an extension of time must be filed
within the time originally allowed for filing.
(3) For good cause the Board may grant an extension of time on its
own initiative.
(e) Retention of documents. All documents received in evidence at a
hearing or submitted for the record in any proceeding before the Board
will be retained with the official record of the proceeding. The Board,
in its discretion, may permit the withdrawal of original documents while
a case is pending or after a decision becomes final upon conditions as
required by the Board.
Sec. 4.311 Briefs on appeal.
(a) The appellant may file an opening brief within 30 days after
receipt of the notice of docketing. Appellant must serve copies of the
opening brief upon all interested parties or counsel and file a
certificate with the Board showing service upon the named parties.
Opposing parties or counsel will have 30
[[Page 101]]
days from receipt of appellant's brief to file answer briefs, copies of
which must be served upon the appellant or counsel and all other parties
in interest. A certificate showing service of the answer brief upon all
parties or counsel must be attached to the answer filed with the Board.
(b) Appellant may reply to an answering brief within 15 days from
its receipt. A certificate showing service of the reply brief upon all
parties or counsel must be attached to the reply filed with the Board.
Except by special permission of the Board, no other briefs will be
allowed on appeal.
(c) The BIA is considered an interested party in any proceeding
before the Board. The Board may request that the BIA submit a brief in
any case before the Board.
(d) An original only of each document should be filed with the
Board. Documents should not be bound along the side.
(e) The Board may also specify a date on or before which a brief is
due. Unless expedited briefing has been granted, such date may not be
less than the appropriate period of time established in this section.
Sec. 4.312 Decisions.
Decisions of the Board will be made in writing and will set forth
findings of fact and conclusions of law. The decision may adopt, modify,
reverse or set aside any proposed finding, conclusion, or order of a BIA
official or an OHA deciding official. Distribution of decisions must be
made by the Board to all parties concerned. Unless otherwise stated in
the decision, rulings by the Board are final for the Department and must
be given immediate effect.
Sec. 4.313 Amicus Curiae; intervention; joinder motions.
(a) Any interested person or Indian tribe desiring to intervene or
to join other parties or to appear as amicus curiae or to obtain an
order in an appeal before the Board must apply in writing to the Board
stating the grounds for the action sought. Permission to intervene, to
join parties, to appear, or for other relief, may be granted for
purposes and subject to limitations established by the Board. This
section will be liberally construed.
(b) Motions to intervene, to appear as amicus curiae, to join
additional parties, or to obtain an order in an appeal pending before
the Board must be served in the same manner as appeal briefs.
Sec. 4.314 Exhaustion of administrative remedies.
(a) No decision of an OHA deciding official or a BIA official, which
at the time of its rendition is subject to appeal to the Board, will be
considered final so as to constitute agency action subject to judicial
review under 5 U.S.C. 704, unless made effective pending decision on
appeal by order of the Board.
(b) No further appeal will lie within the Department from a decision
of the Board.
(c) The filing of a petition for reconsideration is not required to
exhaust administrative remedies.
Sec. 4.315 Reconsideration.
(a) Reconsideration of a decision of the Board will be granted only
in extraordinary circumstances. Any party to the decision may petition
for reconsideration. The petition must be filed with the Board within 30
days from the date of the decision and must contain a detailed statement
of the reasons why reconsideration should be granted.
(b) A party may file only one petition for reconsideration.
(c) The filing of a petition will not stay the effect of any
decision or order and will not affect the finality of any decision or
order for purposes of judicial review, unless so ordered by the Board.
Sec. 4.316 Remands from courts.
Whenever any matter is remanded from any federal court to the Board
for further proceedings, the Board will either remand the matter to an
OHA deciding official or to the BIA, or to the extent the court's
directive and time limitations will permit, the parties will be allowed
an opportunity to submit to the Board a report recommending procedures
for it to follow to comply with the court's order. The
[[Page 102]]
Board will enter special orders governing matters on remand.
Sec. 4.317 Standards of conduct.
(a) Inquiries about cases. All inquiries with respect to any matter
pending before the Board must be made to the Chief Administrative Judge
of the Board or the administrative judge assigned the matter.
(b) Disqualification. An administrative judge may withdraw from a
case in accordance with standards found in the recognized canons of
judicial ethics if the judge deems such action appropriate. If, prior to
a decision of the Board, a party files an affidavit of personal bias or
disqualification with substantiating facts, and the administrative judge
concerned does not withdraw, the Director of the Office of Hearings and
Appeals will determine the matter of disqualification.
Sec. 4.318 Scope of review.
An appeal will be limited to those issues which were before the OHA
deciding official upon the petition for rehearing, reopening, or
regarding tribal purchase of interests, or before the BIA official on
review. However, except as specifically limited in this part or in title
25 of the Code of Federal Regulations, the Board will not be limited in
its scope of review and may exercise the inherent authority of the
Secretary to correct a manifest injustice or error where appropriate.
Appeals to the Board of Indian Appeals in Probate Matters
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec. 4.320 Who may appeal.
(a) A party in interest has a right to appeal to the Board from an
order of an OHA deciding official on a petition for rehearing, a
petition for reopening, or regarding tribal purchase of interests in a
deceased Indian's trust estate.
(b) Notice of appeal. Within 60 days from the date of the decision,
an appellant must file a written notice of appeal signed by appellant,
appellant's attorney, or other qualified representative as provided in
43 CFR 1.3, with the Board of Indian Appeals, Office of Hearings and
Appeals, U.S. Department of the Interior, 801 North Quincy Street,
Arlington, Virginia 22203. A statement of the errors of fact and law
upon which the appeal is based must be included in either the notice of
appeal or in any brief filed. The notice of appeal must include the
names and addresses of parties served. A notice of appeal not timely
filed will be dismissed for lack of jurisdiction.
(c) Service of copies of notice of appeal. The appellant must
personally deliver or mail the original notice of appeal to the Board of
Indian Appeals. A copy must be served upon the OHA deciding official
whose decision is appealed as well as all interested parties. The notice
of appeal filed with the Board must include a certification that service
was made as required by this section.
(d) Action by the OHA deciding official; record inspection. The OHA
deciding official, upon receiving a copy of the notice of appeal, must
notify the Superintendent concerned to return the duplicate record filed
under Sec. Sec. 4.236(b) and 4.241(d), or under Sec. 4.242(f) of this
part, to the Land Titles and Records Office designated under Sec.
4.236(b) of this part. The duplicate record must be conformed to the
original by the Land Titles and Records Office and will thereafter be
available for inspection either at the Land Titles and Records Office or
at the office of the Superintendent. In those cases in which a
transcript of the hearing was not prepared, the OHA deciding official
will have a transcript prepared which must be forwarded to the Board
within 30 days from receipt of a copy of the notice of appeal.
[66 FR 67656, Dec. 31, 2001, as amended at 67 FR 4368, Jan. 30, 2002]
Sec. 4.321 Notice of transmittal of record on appeal.
The original record on appeal must be forwarded by the Land Titles
and Records Office to the Board by certified mail. Any objection to the
record as constituted must be filed with the Board within 15 days of
receipt of the notice of docketing issued under Sec. 4.332 of this
part.
[[Page 103]]
Sec. 4.322 Docketing.
The appeal will be docketed by the Board upon receipt of the
administrative record from the Land Titles and Records Office. All
interested parties as shown by the record on appeal must be notified of
the docketing. The docketing notice must specify the time within which
briefs may be filed and must cite the procedural regulations governing
the appeal.
Sec. 4.323 Disposition of the record.
Subsequent to a decision of the Board, other than remands, the
record filed with the Board and all documents added during the appeal
proceedings, including any transcripts prepared because of the appeal
and the Board's decision, must be forwarded by the Board to the Land
Titles and Records Office designated under Sec. 4.236(b) of this part.
Upon receipt of the record by the Land Titles and Records Office, the
duplicate record required by Sec. 4.320(c) of this part must be
conformed to the original and forwarded to the Superintendent concerned.
Appeals to the Board of Indian Appeals from Administrative Actions of
Officials of the Bureau of Indian Affairs: Administrative Review in
Other Indian Matters Not Relating to Probate Proceedings
Source: 54 FR 6487, Feb. 10, 1989, unless otherwise noted.
Sec. 4.330 Scope.
(a) The definitions set forth in 25 CFR 2.2 apply also to these
special rules. These regulations apply to the practice and procedure
for: (1) Appeals to the Board of Indian Appeals from administrative
actions or decisions of officials of the Bureau of Indian Affairs issued
under regulations in 25 CFR chapter 1, and (2) administrative review by
the Board of Indian Appeals of other matters pertaining to Indians which
are referred to it for exercise of review authority of the Secretary or
the Assistant Secretary--Indian Affairs.
(b) Except as otherwise permitted by the Secretary or the Assistant
Secretary--Indian Affairs by special delegation or request, the Board
shall not adjudicate:
(1) Tribal enrollment disputes;
(2) Matters decided by the Bureau of Indian Affairs through exercise
of its discretionary authority; or
(3) Appeals from decisions pertaining to final recommendations or
actions by officials of the Minerals Management Service, unless the
decision is based on an interpretation of Federal Indian law (decisions
not so based which arise from determinations of the Minerals Management
Service, are appealable to the Interior Board of Land Appeals in
accordance with 43 CFR 4.410).
Sec. 4.331 Who may appeal.
Any interested party affected by a final administrative action or
decision of an official of the Bureau of Indian Affairs issued under
regulations in title 25 of the Code of Federal Regulations may appeal to
the Board of Indian Appeals, except--
(a) To the extent that decisions which are subject to appeal to a
higher official within the Bureau of Indian Affairs must first be
appealed to that official;
(b) Where the decision has been approved in writing by the Secretary
or Assistant Secretary--Indian Affairs prior to promulgation; or
(c) Where otherwise provided by law or regulation.
Sec. 4.332 Appeal to the Board; how taken; mandatory time for filing;
preparation assistance; requirement for bond.
(a) A notice of appeal shall be in writing, signed by the appellant
or by his attorney of record or other qualified representative as
provided by 43 CFR 1.3, and filed with the Board of Indian Appeals,
Office of Hearings and Appeals, U.S. Department of the Interior, 801
North Quincy Street, Arlington, Virginia 22203, within 30 days after
receipt by the appellant of the decision from which the appeal is taken.
A copy of the notice of appeal shall simultaneously be filed with the
Assistant Secretary--Indian Affairs. As required by Sec. 4.333 of this
part, the notice of appeal sent to the Board shall certify that a copy
has been sent to the Assistant Secretary--Indian Affairs. A notice of
[[Page 104]]
appeal not timely filed shall be dismissed for lack of jurisdiction. A
notice of appeal shall include:
(1) A full identification of the case;
(2) A statement of the reasons for the appeal and of the relief
sought; and
(3) The names and addresses of all additional interested parties,
Indian tribes, tribal corporations, or groups having rights or
privileges which may be affected by a change in the decision, whether or
not they participated as interested parties in the earlier proceedings.
(b) In accordance with 25 CFR 2.20(c) a notice of appeal shall not
be effective for 20 days from receipt by the Board, during which time
the Assistant Secretary--Indian Affairs may decide to review the appeal.
If the Assistant Secretary--Indian Affairs properly notifies the Board
that he has decided to review the appeal, any documents concerning the
case filed with the Board shall be transmitted to the Assistant
Secretary--Indian Affairs.
(c) When the appellant is an Indian or Indian tribe not represented
by counsel, the official who issued the decision appealed shall, upon
request of the appellant, render such assistance as is appropriate in
the preparation of the appeal.
(d) At any time during the pendency of an appeal, an appropriate
bond may be required to protect the interest of any Indian, Indian
tribe, or other parties involved.
[54 FR 6487, Feb. 10, 1989, as amended at 67 FR 4368, Jan. 30, 2002]
Sec. 4.333 Service of notice of appeal.
(a) On or before the date of filing of the notice of appeal the
appellant shall serve a copy of the notice upon each known interested
party, upon the official of the Bureau of Indian Affairs from whose
decision the appeal is taken, and upon the Assistant Secretary--Indian
Affairs. The notice of appeal filed with the Board shall certify that
service was made as required by this section and shall show the names
and addresses of all parties served. If the appellant is an Indian or an
Indian tribe not represented by counsel, the appellant may request the
official of the Bureau whose decision is appealed to assist in service
of copies of the notice of appeal and any supporting documents.
(b) The notice of appeal will be considered to have been served upon
the date of personal service or mailing.
Sec. 4.334 Extensions of time.
Requests for extensions of time to file documents may be granted
upon a showing of good cause, except for the time fixed for filing a
notice of appeal which, as specified 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
[[Page 105]]
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 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 Sec. Sec. 4.350 through
4.357 apply only to the determination through intestate succession of
the heirs of persons who died entitled to receive compensation under the
White Earth Reservation Land Settlement Act of 1985, Public Law 99-264
(100 Stat. 61), amended by Public Law 100-153 (101 Stat. 886) and Public
Law 100-212 (101 Stat. 1433).
(b) Whenever requested to do so by the Project Director, an
administrative judge shall determine such heirs by applying inheritance
laws in accordance with the White Earth Reservation Settlement Act of
1985 as amended, notwithstanding the decedent may have died testate.
[[Page 106]]
(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 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]
[[Page 107]]
Sec. 4.352 Determination of administrative judge and notice thereof.
(a) Upon review of all data submitted by the Project Director, the
administrative judge will determine whether or not there are any
apparent issues of fact that need to be resolved.
(b) If there are no issues of fact requiring determination, the
administrative judge will enter a preliminary determination of heirs
based upon inheritance laws in accordance with the Act. Such preliminary
determination will be entered without a hearing, and, when possible and
based upon the data furnished and/or information supplementary thereto,
shall include the names, birth dates, relationships to the decedent, and
shares of the heirs, or the fact that the decedent died without heirs.
(1) Upon issuing a preliminary determination, the administrative
judge shall issue a notice of such action and shall mail a copy of said
notice, together with a copy of the preliminary determination, to each
party in interest allowing forty (40) days in which to show cause in
writing why the determination should not become final. The
administrative judge shall cause a certificate to be made as to the date
and manner of such mailing.
(2) The Project Director shall also cause, within seven (7) days of
receipt of such notice, the notice of the preliminary determination to
be posted in the following sites:
The White Earth Band, Box 418, White Earth, Minnesota 56591
The Minnesota Chippewa Tribe, Box 217, Cass Lake, Minnesota 56633
Minnesota Agency, Bureau of Indian Affairs, Room 418, Federal Building,
522 Minnesota Avenue, NW, Bemidji, Minnesota 56601-3062
and in such other sites as may be deemed appropriate by the Project
Director. Such other sites may include, but not be limited to:
Elbow Lake Community Center, R.R. 2, Waubun, Minnesota 56589
Postmaster, Callaway, Minnesota 56521
Community Center, Route 2, Bagley, Minnesota 56621
Community Center, Star Route, Mahnomen, Minnesota 56557
Postmaster, Mahnomen, Minnesota 56557
Rice Lake Community Center, Route 2, Bagley, Minnesota 56621
Postmaster, Ogema, Minnesota 56569
Pine Point Community Center, Ponsford, Minnesota 56575
Postmaster, White Earth, Minnesota 56591
White Earth IHS, White Earth, Minnesota 56591
Postmaster, Ponsford, Minnesota 56575
American Indian Center, 1113 West Broadway, Minneapolis, Minnesota 55411
American Indian Center, 1530 East Franklin Avenue, Minneapolis,
Minnesota 55404
American Indian Center, 341 University Avenue, St. Paul, Minnesota 55103
Little Earth of United Tribes Community Services, 2501 Cedar Avenue
South, Minneapolis, Minnesota 55404
Naytahwaush Community Center, Naytahwaush, Minnesota 56566
The Project Director shall provide a certificate showing when the
notice of the preliminary determination was forwarded for posting, and
to which locations. A posting certificate showing the date and place of
posting shall be signed by the person or official who performs the act
and returned to the Project Director. The Project Director shall file
with the administrative judge the original posting certificates and the
Project Director's certificate of mailing showing the posting locations
and when the notice of the preliminary determination was forwarded for
posting.
(3) If no written request for hearing or written objection is
received in the office of the administrative judge within the forty (40)
days of issuance of the notice, the administrative judge shall issue a
final order declaring the preliminary determination to be final thirty
(30) days from the date on which the final order is mailed to each party
in interest.
(c) When the administrative judge determines either before or after
issuance of a preliminary determination that there are issues which
require resolution, or when a party objects to the preliminary
determination and/or requests a hearing, the administrative judge may
either resolve the issues informally or schedule and conduct a
prehearing conference and/or a hearing. Any prehearing conference,
hearing, or 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
[[Page 108]]
this part. After receipt of the testimony and/or evidence, if any, the
administrative judge shall enter a final order determining the heirs of
the decedent, which shall become final thirty (30) days from the date on
which the final order is mailed to each party in interest.
(d) The final order determining the heirs of the decedent shall
contain, where applicable, the names, birth dates, relationships to the
decedent, and shares of heirs, or the fact that the decedent died
without heirs.
[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991; 57 FR 2319, Jan.
21, 1992, as amended at 64 FR 13363, Mar. 18, 1999]
Sec. 4.353 Record.
(a) The administrative judge shall lodge the original record with
the Project Director.
(b) The record shall contain, where applicable, the following
materials:
(1) A copy of the posted public notice of preliminary determination
and/or hearing showing the posting certifications, the administrative
judge's certificate of mailing, the posting certificates, and the
Project Director's certificate of mailing.
(2) A copy of each notice served on parties in interest, with proof
of mailing;
(3) The record of evidence received, including any transcript made
of testimony;
(4) Data for heirship finding and family history, and data
supplementary thereto;
(5) The final order determining the heirs of the decedent and the
administrative judge's notices thereof; and
(6) Any other material or documents deemed relevant by the
administrative judge.
Sec. 4.354 Reconsideration or rehearing.
(a) Any party aggrieved by the final order of the administrative
judge may, within thirty (30) days after the date of mailing such
decision, file with the administrative judge a written petition for
reconsideration and/or rehearing. Such petition must be under oath and
must state specifically and concisely the grounds upon which it is
based. If it is based upon newly discovered evidence, it shall be
accompanied by affidavits of witnesses stating fully what the new
evidence or testimony is to be. It shall also state justifiable reasons
for the prior failure to discover and present the evidence.
(b) If proper grounds are not shown, or if the petition is not filed
within the time prescribed in paragraph (a) of this section, the
administrative judge shall issue an order denying the petition and shall
set forth therein the reasons therefor. The administrative judge shall
serve copies of such order on all parties in interest.
(c) If the petition appears to show merit, or if the administrative
judge becomes aware of sufficient additional evidence to justify
correction of error even without the filing of a petition, or upon
remand from the Board following an appeal resulting in vacating the
final order, the administrative judge shall cause copies of the
petition, supporting papers, and other data, or in the event of no
petition an order to show cause or decision of the Board vacating the
final order in appropriate cases, to be served on all parties in
interest. The parties in interest will be allowed a reasonable,
specified time within which to submit answers or legal briefs in
opposition to the petition or order to show cause or Board decision. The
administrative judge shall then reconsider, with or without hearing, the
issues of fact and shall issue a final order upon reconsideration,
affirming, modifying, or vacating the original final order and making
such further orders as are deemed warranted. The final order upon
reconsideration shall be served on all parties in interest and shall
become final thirty (30) days from the date on which it is mailed.
(d) Successive petitions for reconsideration and/or rehearing shall
not be permitted. Nothing herein shall be considered as a bar to the
remand of a case by the Board for further reconsideration, hearing, or
rehearing after appeal.
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
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the report of compensation, the report shall be modified
administratively by the Project Director. Copies of such modification
shall be furnished to all heirs as previously determined and to the
appropriate administrative judge.
Sec. 4.356 Appeals.
(a) A party aggrieved by a final order of an administrative judge
under Sec. 4.352, or by a final order upon reconsideration of an
administrative judge under Sec. 4.354, may appeal to the Board
(address: Board of Indian Appeals, Office of Hearings and Appeals, 801
North Quincy Street, Arlington, Virginia 22203). A copy of the notice of
appeal must also be sent to the Project Director and to the
administrative judge whose decision is being appealed.
(b) The notice of appeal must be filed with the Board no later than
thirty (30) days from the date on which the final order of the
administrative judge was mailed, or, if there has been a petition for
reconsideration or rehearing filed, no later than thirty (30) days from
the date on which the final order upon reconsideration of the
administrative judge was mailed. A notice of appeal that is not timely
filed will be dismissed.
(c) The Project Director shall ensure that the record is
expeditiously forwarded to the Board.
(d) Within thirty (30) days after the notice of appeal is filed, the
appellant shall file a statement of the reasons why the final order or
final order upon reconsideration is in error. If the Board finds that
the appellant has set forth sufficient reasons for questioning the final
order or final order upon reconsideration, the Board will issue an order
giving all parties in interest an opportunity to respond, following
which a decision shall be issued. If the Board finds that the appellant
has not set forth sufficient reasons for questioning the final order,
the Board may issue a decision on the appeal without further briefing.
(e) The Board may issue a decision affirming, modifying, or vacating
the final order or final order upon reconsideration. A decision on
appeal by the Board either affirming or modifying the final order or
final order upon reconsideration shall be final for the Department of
the Interior. In the event the final order or final order upon
reconsideration is vacated, the proceeding shall be remanded to the
appropriate administrative judge for reconsideration and/or rehearing.
[56 FR 61383, Dec. 3, 1991, as amended at 67 FR 4368, Jan. 30, 2002]
Sec. 4.357 Guardians for minors and incompetents.
Persons less than 18 years of age and other legal incompetents who
are parties in interest may be represented at all hearings by legally
appointed guardians or by guardians ad litem appointed by the
administrative judge.
Subpart E_Special Rules Applicable to Public Land Hearings and Appeals
Authority: Sections 4.470 to 4.480 also issued under the authority
of 43 U.S.C. 315a.
Cross Reference: See subpart A for the authority, jurisdiction and
membership of the Board of Land Appeals within the Office of Hearings
and Appeals. For general rules applicable to proceedings before the
Board of Land Appeals as well as the other Appeals Boards of the Office
of Hearings and Appeals, see subpart B.
Appeals Procedures
Appeals Procedures; General
Sec. 4.400 Definitions.
As used in this subpart:
(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.
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