[Title 43 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2020 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 43
Public Lands: Interior
________________________
Parts 1 to 999
Revised as of October 1, 2020
Containing a codification of documents of general
applicability and future effect
As of October 1, 2020
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[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 569
Chapter I--Bureau of Reclamation, Department of the
Interior 571
Finding Aids:
Table of CFR Titles and Chapters........................ 707
Alphabetical List of Agencies Appearing in the CFR...... 727
List of CFR Sections Affected........................... 737
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 43 CFR 1.1 refers to
title 43, part 1, section
1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 2020), 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
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citations for the regulations are referred to by volume number and page
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inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
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the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
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not dropped in error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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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.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
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the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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INQUIRIES
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The e-CFR is a regularly updated, unofficial editorial compilation
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of the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
October 1, 2020
[[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, 2020.
In the second volume, containing chapter II--Bureau of Land
Management, Department of the Interior, the OMB control numbers appear
in a ``Note'' immediately below the ``Group'' headings throughout the
chapter, if applicable. An index to chapter II appears in the Finding
Aids section of the second volume.
For this volume, Robert J. Sheehan, III was Chief Editor. The Code
of Federal Regulations publication program is under the direction of
John Hyrum Martinez, assisted by Stephen J. Frattini.
[[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................................ 7
2 Freedom of Information Act; records and
testimony............................... 8
3 Preservation of American antiquities........ 51
4 Department hearings and appeals procedures.. 53
5 Commercial filming and similar projects and
still photography on certain areas under
department jurisdiction................. 172
6 Patent regulations.......................... 176
7 Protection of archaeological resources...... 185
8 Joint policies of the Departments of the
Interior and of the Army relative to
reservoir project lands................. 202
9 Intergovernmental review of Department of
the Interior programs and activities.... 203
10 Native American graves protection and
repatriation regulations................ 206
11 Natural resource damage assessments......... 235
12 [Reserved]
13 Vending facilities operated by blind persons 296
14 Petitions for rulemaking.................... 298
15 Key Largo Coral Reef Preserve............... 299
16 Conservation of helium...................... 300
17 Nondiscrimination in federally assisted
programs of the Department of the
Interior................................ 301
18 New restrictions on lobbying................ 339
19 Wilderness preservation..................... 351
20 Employee responsibilities and conduct....... 354
21 Occupancy of cabin sites on public
conservation and recreation areas....... 365
22 Administrative claims under the Federal Tort
Claims Act and indemnification of
Department of the Interior employees.... 369
[[Page 4]]
23 Surface exploration, mining and reclamation
of lands................................ 371
24 Department of the Interior fish and wildlife
policy: State-Federal relationships..... 379
26 Grants to States for establishing Youth
Conservation Corps programs............. 384
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........... 389
28 Fire protection emergency assistance........ 401
29 Trans-Alaska Pipeline Liability Fund........ 401
30 Indian probate hearings procedures.......... 408
32 Grants to States for establishing Young
Adult Conservation Corps (YACC) program. 438
33 Allocation of duty-free watches from the
Virgin Islands, Guam, and American Samoa
[Note].................................. 448
34 Requirements for equal opportunity during
construction and operation of the Alaska
Natural Gas Transportation System....... 448
35 Administrative remedies for fraudulent
claims and statements................... 459
36 Transportation and utility systems in and
across, and access into, conservation
system units in Alaska.................. 474
37 Cave management............................. 484
38 Pay of U.S. Park Police--interim geographic
adjustments............................. 487
39 Collection of debts by administrative wage
garnishment............................. 488
41 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 489
44 Financial assistance, local governments..... 505
45 Conditions and prescriptions in FERC
hydropower licenses..................... 511
46 Implementation of the National Environmental
Policy Act of 1969...................... 533
47 Land exchange procedures.................... 548
48 Amendments to the Hawaiian Homes Commission
Act..................................... 554
49 [Reserved]
50 Procedures for reestablishing a formal
government-to-government relationship
with the native Hawaiian community...... 558
51-99 [Reserved]
[[Page 5]]
100 Waiving departmental review of appraisals
and valuations of Indian property....... 565
101-199 [Reserved]
[[Page 7]]
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 8]]
Sec.1.5 Signature to constitute certificate.
When an individual who appears in a representative capacity signs a
paper in practice before the Department, his signature shall constitute
his certificate:
(a) That under the provisions of this part and the law, he is
authorized and qualified to represent the particular party in the
matter;
(b) That, if he is the partner of a present or former officer or
employee, including a special Government employee, the matter in respect
of which he intends to practice is not a matter in which such officer or
employee of the Government or special Government employee participates
or has participated personally and substantially as a Government
employee through decision, approval, disapproval, recommendation, the
rendering of advice, investigation or otherwise and that the matter is
not the subject of such partner's official Government responsibility;
(c) That, if he is a former officer or employee, including a special
Government employee, the matter in respect of which he intends to
practice is not a matter in which he participated personally and
substantially as a Government employee through decision, approval,
disapproval, recommendation, the rendering of advice, investigation, or
otherwise, while so employed and, if a period of one year has not passed
since the termination of his employment with the Government, that the
matter was not under his official responsibility as an officer or
employee of the Government; and
(d) That he has read the paper; that to the best of his knowledge,
information, and belief there is good ground to support its contents;
that it contains no scandalous or indecent matter; and that it is not
interposed for delay.
Sec.1.6 Disciplinary proceedings.
(a) Disciplinary proceedings may be instituted against anyone who is
practicing or has practiced before the Department on grounds that he is
incompetent, unethical, or unprofessional, or that he is practicing
without authority under the provisions of this part, or that he has
violated any provisions of the laws and regulations governing practice
before the Department, or that he has been disbarred or suspended by any
court or administrative agency. Individuals practicing before the
Department should observe the Canons of Professional Ethics of the
American Bar Association and those of the Federal Bar Association, by
which the Department will be guided in disciplinary matters.
(b) Whenever in the discretion of the Solicitor the circumstances
warrant consideration of the question whether disciplinary action should
be taken against an individual who is practicing or has practiced before
the Department, the Solicitor shall appoint a hearing officer to
consider and dispose of the case. The hearing officer shall give the
individual adequate notice of, and an opportunity for a hearing on, the
specific charges against him. The hearing shall afford the individual an
opportunity to present evidence and cross-examine witnesses. The hearing
officer shall render a decision either (1) dismissing the charges, or
(2) reprimanding the individual or suspending or excluding him from
practice before the Department.
(c) Within 30 days after receipt of the decision of the hearing
officer reprimanding, suspending, or excluding an individual from
practice before the Department, an appeal may be filed with the
Solicitor, whose decision shall be final.
PART 2_FREEDOM OF INFORMATION ACT; RECORDS AND TESTIMONY--
Table of Contents
Subpart A_Introduction
Sec.
2.1 What should you know up front?
2.2 What kinds of records are not covered by the regulations in subparts
A through I of this part?
Subpart B_How to Make a Request
2.3 Where should you send a FOIA request?
2.4 Does where you send your request affect its processing?
2.5 How should you describe the records you seek?
2.6 How will fee information affect the processing of your request?
[[Page 9]]
2.7 What information should you include about your fee category?
2.8 Can you ask for records to be disclosed in a particular form or
format?
2.9 What if your request seeks records about another person?
2.10 May you ask for the processing of your request to be expedited?
2.11 What contact information should your request include?
Subpart C_Processing Requests
2.12 What should you know about how bureaus process requests?
2.13 How do consultations and referrals work?
Subpart D_Timing of Responses to Requests
2.14 In what order are responses usually made?
2.15 What is multitrack processing and how does it affect your request?
2.16 What is the basic time limit for responding to a request?
2.17 When does the basic time limit begin for misdirected FOIA requests?
2.18 When can the bureau suspend the basic time limit?
2.19 When may the bureau extend the basic time limit?
2.20 When will expedited processing be provided and how will it affect
your request?
Subpart E_Responses to Requests
2.21 How will the bureau respond to requests?
2.22 How will the bureau grant requests?
2.23 When will the bureau deny a request or procedural benefits?
2.24 How will the bureau deny requests?
2.25 What if the requested records contain both exempt and nonexempt
material?
Subpart F_Handling Confidential Information
2.26 May submitters of possibly confidential information designate
information as confidential when making Departmental
submissions?
2.27 When will the bureau notify a submitter of a request for their
possibly confidential information?
2.28 What information will the bureau include when it notifies a
submitter of a request for their possibly confidential
information?
2.29 When will the bureau not notify a submitter of a request for their
possibly confidential information?
2.30 How and when may a submitter object to disclosure of confidential
information?
2.31 What must a submitter include in a detailed Exemption 4 objection
statement?
2.32 How will the bureau consider the submitter's objections?
2.33 What if the bureau determines it will disclose information over the
submitter's objections?
2.34 Will a submitter be notified of a FOIA lawsuit?
2.35 Will you receive notification of activities involving the
submitter?
2.36 Can a bureau release information protected by Exemption 4?
Subpart G_Fees
2.37 What general principles govern fees?
2.38 What are the requester fee categories?
2.39 How does your requester category affect the fees you are charged?
2.40 How will fee amounts be determined?
2.41 What search fees will you have to pay?
2.42 What duplication fees will you have to pay?
2.43 What review fees will you have to pay?
2.44 What fees for other services will you have to pay?
2.45 When will the bureau waive fees?
2.46 When may you ask the bureau for a fee waiver?
2.47 How will the bureau notify you if it denies your fee waiver
request?
2.48 How will the bureau evaluate your fee waiver request?
2.49 When will you be notified of anticipated fees?
2.50 When will the bureau require advance payment?
2.51 What if the bureau needs clarification about fee issues?
2.52 How will you be billed?
2.53 How will the bureau collect fees owed?
2.54 When will the bureau combine or aggregate requests?
2.55 What if other statutes require the bureau to charge fees?
2.56 May the bureau waive or reduce your fees at its discretion?
Subpart H_Administrative Appeals
2.57 When may you file an appeal?
2.58 How long do you have to file an appeal?
2.59 How do you file an appeal?
2.60 Who makes decisions on appeals?
2.61 How are decisions on appeals issued?
2.62 When can you expect a decision on your appeal?
2.63 Can you receive expedited processing of appeals?
2.64 Must you submit an appeal before seeking judicial review?
Subpart I_General Information
2.65 Where are records made available?
2.66 What are FOIA Requester Centers and the FOIA Public Liaison?
[[Page 10]]
2.67 When will the Department make records available without a FOIA
request?
2.68 How will FOIA materials be preserved?
2.69 How will a bureau handle a request for federally-funded research
data?
2.70 What definitions apply to subparts A through I of this part?
Subpart J_Declassification of Classified Documents
2.200 Declassification of classified documents.
Subpart K_Privacy Act
2.220 Purpose and scope.
2.221 Definitions.
2.222 Records subject to Privacy Act.
2.223 Standards for maintenance of records subject to the Act.
2.224 [Reserved]
2.225 Federal Register notices describing systems of records.
2.226 Assuring integrity of records.
2.227 Conduct of employees.
2.228 Government contracts.
2.229-2.230 [Reserved]
2.2316 Disclosure of records.
2.232 Accounting for disclosures.
2.233-2.234 [Reserved]
2.235 Request for notification of existence of records: Submission.
2.236 Requests for notification of existence of records: Action on.
2.237 Requests for access to records.
2.238 Requests for access to records: Submission.
2.239 Requests for access to records: Initial decision.
2.240 Requests for notification of existence of records and for access
to records: Appeals.
2.241 Requests for access to records: Special situations.
2.242-2.244 [Reserved]
2.245 Amendment of records.
2.246 Petitions for amendment: Submission and form.
2.247 Petitions for amendment: Processing and initial decision.
2.248 Petitions for amendments: Time limits for processing.
2.249 Petitions for amendment: Appeals.
2.250 Petitions for amendment: Action on appeals.
2.251 [Reserved]
2.252 Statements of disagreement.
2.253 [Reserved]
2.254 Exemptions.
Subpart L_Legal Process: Testimony by Employees and Production of
Records
General Information
2.280 What does this subpart cover?
2.281 What is the Department's policy on granting requests for employee
testimony or Department records?
Responsibilities of Requesters
2.282 How can I obtain employee testimony or Department records?
2.283 If I serve a subpoena duces tecum, must I also submit a Touhy
Request?
2.284 What information must I put in my Touhy Request?
2.285 How much will I be charged?
2.286 Can I get an authenticated copy of a Department record?
Responsibilities of the Department
2.287 How will the Department process my Touhy Request?
2.288 What criteria will the Department consider in responding to my
Touhy Request?
Responsibilities of Employees
2.289 What must I, as an employee, do upon receiving a request?
2.290 Must I get approval before testifying as an expert witness on a
subject outside the scope of my official duties?
Appendix A to Part 2--Fee Schedule
Appendix B to Part 2--Mineral Leasing Act and Mineral Leasing Act for
Acquired Lands--Special Rules
Authority: 5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 3717; 43 U.S.C.
1460, 1461.
Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.
Subpart A_Introduction
Source: 77 FR 76902, Dec. 31, 2012, unless otherwise noted.
Sec.2.1 What should you know up front?
(a) Subparts A through I of this part contain the rules that the
Department follows in processing records under the Freedom of
Information Act (FOIA), 5 U.S.C. 552.
(b) Definitions of terms used in Subparts A through I of this part
are found at Sec.2.70.
(c) Subparts A through I of this part should be read in conjunction
with the text of the FOIA and the OMB Fee Guidelines.
(d) The Department's FOIA Handbook and its attachments contain
detailed information about Department procedures for making FOIA
requests and descriptions of the types of records maintained by
different Department
[[Page 11]]
bureaus or offices. This resource is available at https://www.doi.gov/
foia/news/guidance.
(e) The Department's regulations for requests made under the Privacy
Act of 1974, 5 U.S.C. 552a, are located at subpart K of this part.
(f) Part 2 does not entitle any person to any service or to the
disclosure of any record that is not required under the FOIA.
(g) Before you file a FOIA request, you are encouraged to review the
Department's electronic FOIA libraries at http://www.doi.gov/foia/
libraries. The material you seek may be immediately available
electronically at no cost.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11127, Mar. 3, 2016]
Sec.2.2 What kinds of records are not covered by the regulations
in subparts A through I of this part?
Subparts A through I of this part do not apply to records that fall
under the law enforcement exclusions in 5 U.S.C. 552(c)(1)-(3). These
exclusions may be used only in the limited circumstances delineated by
the statute and require both prior approval from the Deputy Chief FOIA
Officer and the recording of their use and approval process.
[77 FR 76902, Dec. 31, 2012, as amended at 84 FR 61826, Nov. 14, 2019]
Subpart B_How To Make a Request
Source: 77 FR 76902, Dec. 31, 2012, unless otherwise noted.
Sec.2.3 Where should you send a FOIA request?
(a) The Department does not have a central location for submitting
FOIA requests and it does not maintain a central index or database of
records in its possession. Instead, the Department's records are
decentralized and maintained by various bureaus and offices throughout
the country.
(b) To make a request for Department records, you must write
directly to the bureau that you believe maintains those records by
utilizing the written forms of submission listed on the Department's
FOIA website, https://www.doi.gov/foia, or utilizing physical or
facsimile addresses of an appropriate FOIA contact, located at http://
www.doi.gov/foia/contacts.
(c) Questions about where to send a FOIA request should be directed
to the bureau that manages the underlying program or to the appropriate
FOIA Requester Center, as discussed in Sec.2.66 of this part.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11127, Mar. 3, 2016; 84
FR 61826, Nov. 14, 2019]
Sec.2.4 Does where you send your request affect its processing?
(a) A request to a particular bureau or a bureau component (for
example, a request addressed to a regional or field office) will be
presumed to seek only records from that particular bureau or component.
A request will not be forwarded to another bureau or component unless it
is clear on the face of your request that it was misdirected. For
example, if you address your request to an appropriate FOIA contact in
the National Park Service and ask for records concerning a specific
park, but your request is delivered to the Fish and Wildlife Service,
your request was clearly misdirected. In such a case, a FOIA contact in
the receiving bureau or component will route the request to a FOIA
contact in the proper bureau or component. If you need assistance
determining where to send a request, you may seek assistance from the
bureau's designated FOIA contact or FOIA Requester Center (see Sec.
2.66 of this part).
(b) If you seek records from an entire bureau, submit your request
to the bureau FOIA Officer. The bureau FOIA Officer will forward it to
the bureau component(s) that he or she believes has or are likely to
have responsive records.
(c) If a request to a bureau states that it seeks records located at
another specific component of the same bureau, the appropriate FOIA
contact will forward the request to the other component.
(d) If a request to a bureau states that it seeks records from other
unspecified components within the same bureau, the appropriate FOIA
contact will send the request to the Bureau FOIA Officer. He or she will
forward it to the components that the bureau
[[Page 12]]
FOIA Officer believes have or are likely to have responsive records.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 92694, Dec. 20, 2016;
84 FR 61826, Nov. 14, 2019]
Sec.2.5 How should you describe the records you seek?
(a) You must reasonably describe the records sought. A reasonable
description contains sufficient detail to enable bureau personnel
familiar with the subject matter of the request to locate the records
with a reasonable amount of effort.
(b) You should include as much detail as possible about the specific
records or types of records that you are seeking. This will assist the
bureau in identifying the requested records (for example, time frames
involved or specific personnel who may have the requested records). For
example, whenever possible, identify:
(1) The date, title or name, author, recipient, and subject of any
particular records you seek;
(2) The office that created the records you seek;
(3) The timeframe for which you are seeking records; and
(4) Any other information that will assist the bureau in locating
the records.
(c) The bureau's FOIA Requester Center can assist you in formulating
or reformulating a request in an effort to better identify the records
you seek.
(d) If the bureau determines that your request does not reasonably
describe the records sought, the bureau will inform you what additional
information you need to provide in order to reasonably describe the
records that you seek so the requested records can be located with a
reasonable amount of effort. The bureau will also notify you that it
will not be able to comply with your request unless the additional
information it has requested is received from you in writing within 20
workdays after the bureau has requested it and that you may appeal its
determination. If you receive this type of notification, you may wish to
discuss it with the bureau's designated FOIA contact or its FOIA Public
Liaison (see Sec.2.66 of this part). If the bureau does not receive
your written response containing the additional information within 20
workdays after the bureau has requested it, the bureau will presume that
you are no longer interested in the records and will close the file on
the request.
[77 FR 76902, Dec. 31, 2012; 78 FR 6216, Jan. 30, 2013, as amended at 81
FR 11127, Mar. 3, 2016; 84 FR 61826, Nov. 14, 2019]
Sec.2.6 How will fee information affect the processing of your
request?
(a) Your request must explicitly state that you will pay all fees
associated with processing the request, that you will pay fees up to a
specified amount, and/or that you are seeking a fee waiver.
(b) If, after taking into consideration your fee category
entitlements (see Sec.2.39 of this part), the bureau anticipates
processing costs will exceed $50.00 (see Sec.2.37(g) of this part) and
these processing costs exceed the amount you have agreed to pay or you
did not agree in writing to pay processing fees or request a fee waiver,
the bureau will notify you:
(1) Of the estimated processing fees;
(2) Of its need for either an advance payment (see Sec.2.50 of
this part) or your written assurance that you will pay the anticipated
fees (or fees up to a specified amount); and
(3) That it will not be able to fully comply with your request
unless you provide a fee waiver request and/or the requested written
assurance or advance payment.
(c) If the bureau does not receive a written response from you
within 20 workdays after requesting the information in paragraph (b) of
this section, it will presume that you are no longer interested in the
records and will close the file on the request.
(d) If you are seeking a fee waiver, your request must include a
justification that addresses and meets the criteria in Sec. Sec.2.45
and 2.48 of this part. Failure to provide sufficient justification will
result in a denial of the fee waiver request. If you are seeking a fee
waiver, you may also indicate the amount you are willing to pay if the
fee waiver is denied. This allows the bureau to process the request for
records while it considers your fee waiver request. You may also inform
us of why you believe your request
[[Page 13]]
meets one or more of the criteria for a discretionary fee waiver under
Sec.2.56 of this part.
(e) The bureau will begin processing your request only after all
issues regarding fees are resolved.
(f) If you are required to pay a fee and it is later determined on
appeal that you were entitled to a full or partial fee waiver or
placement in a different fee category, you will receive an appropriate
refund.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11128, Mar. 3, 2016; 84
FR 61826, Nov. 14, 2019]
Sec.2.7 What information should you include about your fee category?
(a) A request should indicate your fee category (that is, whether
you are a commercial-use requester, news media, educational or
noncommercial scientific institution, or other requester as described in
Sec. Sec.2.38 and 2.39 of this part).
(b) If you submit a FOIA request on behalf of another person or
organization (for example, if you are an attorney submitting a request
on behalf of a client), the bureau will determine the fee category by
considering the underlying requester's identity and intended use of the
information.
(c) If your fee category is unclear, the bureau may ask you for
additional information (see Sec.2.51 of this part).
Sec.2.8 Can you ask for records to be disclosed in a particular form
or format?
(a) Generally, you may choose the form or format of disclosure for
records requested. The bureau must provide the records in the requested
form or format if the bureau can readily reproduce the record in that
form or format. If the bureau cannot readily reproduce the record in
that form or format, it must explain why it cannot.
(b) The bureau may charge you the direct costs involved in
converting records to the requested format if the bureau does not
normally maintain the records in that format (see Sec.2.44 of this
part).
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11128, Mar. 3, 2016]
Sec.2.9 What if your request seeks records about another person?
(a) When a request seeks records about another person, you may
receive greater access by submitting proof that the person either:
(1) Consents to the release of the records to you (for example, a
notarized authorization signed by that person); or
(2) Is deceased (for example, a copy of a death certificate or an
obituary).
(b) The bureau can require you to supply additional information if
necessary to verify that a particular person has consented to disclosure
or is deceased.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11128, Mar. 3, 2016]
Sec.2.10 May you ask for the processing of your request to be
expedited?
You may ask for the processing of your request to be expedited. If
you are seeking expedited processing, your request must include a
justification that addresses and meets the criteria in Sec.2.20 of
this part and includes the certification required at Sec.2.20(b)(2) of
this part. Failure to provide sufficient justification or the required
certification will result in a denial of the expedited processing
request.
[81 FR 11128, Mar. 3, 2016]
Sec.2.11 What contact information should your request include?
A request should include your name and a way (such as a mailing or
email address) for the bureau to send responsive records to you and/or
to request additional information or clarification of your request. You
may also wish to include a daytime telephone number (or the name and
telephone number of an appropriate contact).
[81 FR 11128, Mar. 3, 2016]
Subpart C_Processing Requests
Source: 77 FR 76902, Dec. 31, 2012, unless otherwise noted.
Sec.2.12 What should you know about how bureaus process requests?
(a) Except as described in Sec. Sec.2.4 and 2.13 of this part, the
bureau to which
[[Page 14]]
the request is addressed is responsible for responding to the request
and for making a reasonable effort to search for responsive records.
(b) In determining which records are responsive to a request, the
bureau will include only records in its possession and control on the
date that it begins its search.
(c) The bureau will make reasonable efforts to search for the
requested records. As part of its reasonable efforts, the bureau will
search paper and/or electronic records (for example, emails), as
appropriate. The bureau will not search for records in an electronic
form or format if these efforts would significantly interfere with the
operation of the bureau's automated information system.
(d) If a bureau receives a request for records in its possession
that primarily concern another bureau or Federal Government agency that
is subject to FOIA, it may undertake consultations and/or referrals as
described in Sec.2.13.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11128, Mar. 3, 2016; 84
FR 61826, Nov. 14, 2019]
Sec.2.13 How do consultations and referrals work?
(a) When a bureau (other than the Office of Inspector General)
locates responsive records that primarily concern another bureau or
Federal Government agency that is subject to FOIA, the bureau will
determine whether that bureau or agency would be better able to
determine whether the record is exempt from disclosure.
(b) If the bureau processing the request believes that another
bureau or agency would be better able to determine whether the record is
exempt from disclosure, the bureau will contact that bureau or agency to
determine whether it should refer the record to that bureau or agency or
consult with that bureau or agency.
(1) If the bureau processing the request refers a record to another
bureau or agency, that other bureau or agency will respond to you
directly about that record. If the bureau processing the request
consults with another bureau or agency, the bureau processing the
request will respond to you directly.
(2) If the bureau receives a request for records that another agency
has classified under any applicable executive order concerning record
classification, or that the bureau believes may be appropriate for
classification by another agency, it will refer the request for those
records to that agency for response.
(3) Whenever a bureau refers any part of the responsibility for
responding to a request to another bureau or agency, it will:
(i) Document the referral;
(ii) Maintain a copy of the referred record; and
(iii) Notify you in writing of the referral, including whether all
or part of your request has been referred, the name of the bureau or
agency to which the record was referred, and that bureau or agency's
FOIA contact information.
(4) If disclosure of the identity of the agency to which the
referral would be made could harm an interest protected by an applicable
exemption, such as the exemption that protects ongoing law enforcement
investigations, a referral would be inappropriate and the bureau will
coordinate with the agency instead.
(c) When a bureau receives a referral, the bureau will assign the
referral to the appropriate processing track as described in Sec.2.15
of this part and process it according to the date that the consulting or
referring bureau or agency received your request as described in Sec.
2.14 of this part.
(d) Bureaus may establish written agreements with other bureaus or
agencies to eliminate the need for consultations or referrals for
particular types of records.
[84 FR 61826, Nov. 14, 2019]
Subpart D_Timing of Responses to Requests
Source: 77 FR 76902, Dec. 31, 2012, unless otherwise noted.
Sec.2.14 In what order are responses usually made?
The bureau ordinarily will respond to requests according to their
order of receipt within their processing track.
[[Page 15]]
Sec.2.15 What is multitrack processing and how does it affect
your request?
(a) Bureaus use processing tracks to distinguish simple requests
from more complex ones on the basis of the estimated number of workdays
needed to process the request.
(b) In determining the number of workdays needed to process the
request, the bureau considers factors such as the number of pages
involved in processing the request or the need for consultations.
(c) The basic processing tracks are assigned according to the
expected complexity of the collection/review/production process of each
request and designated as follows:
(1) Simple: requests in this track would generally take between one
to five workdays to process;
(2) Normal: requests in this track would generally take between six
to twenty workdays to process;
(3) Complex: requests in this track would generally take between
twenty-one workdays and sixty workdays to process; or
(4) Extraordinary: requests in this track involve very complex
processing challenges, which may include a large number of potentially
responsive records, and would generally take over sixty workdays to
process.
(d) Bureaus also have a specific processing track for requests that
are granted expedited processing under the standards in Sec.2.20 of
this part. These requests will be processed as soon as practicable.
(e) Bureaus must advise you of the track into which your request
falls and, when appropriate, will offer you an opportunity to narrow
your request so that it can be placed in a different processing track.
If you request placement in a particular processing track but the bureau
places you in a different processing track, the bureau will provide you
with an explanation of why you were not placed in the processing track
you requested.
(f) The use of multitrack processing does not alter the statutory
deadline for a bureau to determine whether to comply with your FOIA
request (see Sec.2.16 of this part).
(g) You may track the status of your request, including its
estimated processing completion date, at https://foia.doi.gov/
requeststatus/.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11128, Mar. 3, 2016; 81
FR 92694, Dec. 20, 2016; 84 FR 61827, Nov. 14, 2019]
Sec.2.16 What is the basic time limit for responding to a request?
(a) Ordinarily, the bureau has 20 workdays (including the date of
receipt) to determine whether to comply with a request, but unusual
circumstances may allow the bureau to take longer than 20 workdays (see
Sec.2.19 of this subpart).
(b) A consultation or referral under Sec.2.13 of this part does
not restart the statutory time limit for responding to a request.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11128, Mar. 3, 2016]
Sec.2.17 When does the basic time limit begin for misdirected FOIA
requests?
The basic time limit for a misdirected FOIA request (see Sec.
2.4(a) of this part) begins no later than ten workdays after the request
is first received by any component of the Department that is designated
to receive FOIA requests.
[77 FR 76902, Dec. 31, 2012, as amended at 84 FR 61827, Nov. 14, 2019]
Sec.2.18 When can the bureau suspend the basic time limit?
(a) The basic time limit in Sec.2.16 of this part may be
temporarily suspended for the time it takes you to respond to one
written communication from the bureau reasonably asking for clarifying
information.
(b) The basic time limit in Sec.2.16 may also repeatedly be
temporarily suspended for the time it takes you to respond to written
communications from the bureau that are necessary to clarify issues
regarding fee assessment (see Sec.2.51 of this part).
Sec.2.19 When may the bureau extend the basic time limit?
(a) The bureau may extend the basic time limit, if unusual
circumstances exist, by notifying you in writing of:
[[Page 16]]
(1) The unusual circumstances involved; and
(2) The date by which it expects to complete processing the request.
(b) If the processing time will extend beyond a total of 30
workdays, the bureau will:
(1) Give you an opportunity to limit the scope of the request or
agree to an alternative time period for processing; and
(2) Make available the FOIA Public Liaison (see Sec.2.66 of this
part) to assist in resolving any disputes between you and the bureau,
and notify you of your right to seek dispute resolution from the Office
of Government Information Services (OGIS).
(c) If the bureau extends the time limit under this section and you
do not receive a response in accordance with Sec.2.16(a) in that time
period, you may consider the request denied and file an appeal in
accordance with the procedures in Sec.2.59.
(d) Your refusal to reasonably modify the scope of a request or
arrange an alternative time frame for processing a request after being
given the opportunity to do so may be considered for litigation purposes
as a factor when determining whether exceptional circumstances exist.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11128, Mar. 3, 2016; 81
FR 92694, Dec. 20, 2016; 84 FR 61827, Nov. 14, 2019]
Sec.2.20 When will expedited processing be provided and how will it
affect your request?
(a) The bureau will provide expedited processing upon request if you
demonstrate to the satisfaction of the bureau that there is a compelling
need for the records. The following circumstances demonstrate a
compelling need:
(1) Failure to expedite the request could reasonably be expected to
pose an imminent threat to the life or physical safety of an individual;
or
(2) There is an urgency to inform the public about an actual or
alleged Federal Government activity and the request is made by a person
primarily engaged in disseminating information.
(i) In most situations, a person primarily engaged in disseminating
information will be a representative of the news media.
(ii) If you are not a full time member of the news media, to qualify
for expedited processing here, you must establish that your main
professional activity or occupation is information dissemination,
although it need not be your sole occupation.
(iii) The requested information must be the type of information that
has particular value that will be lost if not disseminated quickly; this
ordinarily refers to a breaking news story that concerns a matter of
public exigency.
(iv) Information of historical interest only or information sought
for litigation or commercial activities would not qualify, nor would a
news media deadline unrelated to breaking news.
(b) If you seek expedited processing, you must submit a statement
that:
(1) Explains in detail how all elements and subcomponents of your
request meets each element of one or both of the criteria in paragraph
(a) of this section; and
(2) Certifies that your explanation is true and correct to the best
of your knowledge and belief.
(c) You may ask for expedited processing of your request by writing
to the appropriate FOIA contact in the bureau that maintains the records
requested any time before the bureau issues its final response to your
request. Bureaus will consult with the Office of the Solicitor before
granting expedited processing requests and responses to you will include
the name and title of the Office of the Solicitor or Office of General
Counsel attorney consulted. If only a portion of your request would
qualify for expedited processing, we will:
(1) Assign the portion of the request that qualifies for expedited
processing a new processing number and place it in the expedited
processing track as described in Sec.2.15;
(2) Place the remainder of the request that does not qualify for
expedited processing into the appropriate processing track as described
in Sec.2.15; and
(3) Inform you of the basis for the partial denial of expedited
processing and your right to file an appeal as set forth in Sec.
2.20(g) of this subpart.
[[Page 17]]
(d) When making a request for expedited processing of an
administrative appeal, submit the request to the appropriate deciding
official for FOIA appeals.
(e) The bureau must notify you of its decision to grant or deny
expedited processing within 10 calendar days of receiving an expedited
processing request.
(f) If expedited processing is granted, the request will be given
priority, placed in the processing track for expedited requests, and be
processed as soon as practicable.
(g) If expedited processing is denied, the bureau will:
(1) Inform you of the basis for the denial, including an explanation
of why the expedited processing request does not meet the Department's
expedited processing criteria under this section; and
(2) Notify you of the right to appeal the decision on expedited
processing in accordance with the procedures in subpart H of this part.
(h) If you appeal the bureau's expedited processing decision, that
portion of your appeal (if it is properly formatted under Sec.2.59)
will be processed before appeals that do not challenge expedited
processing decisions.
(i) If the bureau has not responded to the request for expedited
processing within 10 calendar days, you may file an appeal (for
nonresponse in accordance with Sec.2.57(a)(8)).
[84 FR 61827, Nov. 14, 2019]
Subpart E_Responses to Requests
Source: 77 FR 76902, Dec. 31, 2012, unless otherwise noted.
Sec.2.21 How will the bureau respond to requests?
(a) When the bureau informs you of its decision to comply with a
request by granting, partially granting, or denying the request, it will
do so in writing and in accordance with the deadlines in subpart D of
this part. The bureau's written response will include a statement about
the services offered by the FOIA Public Liaison. The bureau's written
response will also include a statement about the services offered by
OGIS, using standard language that can be found at: https://www.doi.gov/
foia/news/guidance.''
(b) If the bureau determines that your request will take longer than
10 workdays to process, the bureau immediately will send you a written
acknowledgment that includes the request's individualized tracking
number and processing track (see Sec.2.15(e)). The acknowledgement may
also include a brief description of the subject of your request.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016; 81
FR 92694, Dec. 20, 2016; 84 FR 61828, Nov. 14, 2019]
Sec.2.22 How will the bureau grant requests?
(a) Once the bureau makes a determination to grant a request in full
or in part, it must notify you in writing.
(b) The notification will inform you of any fees charged under
subpart G of this part.
(c) The bureau will release records (or portions of records) to you
promptly upon payment of any applicable fees (or before then, at its
discretion).
(d) If the records (or portions of records) are not included with
the bureau's notification, the bureau will advise you how, when, and
where the records will be released or made available.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016]
Sec.2.23 When will the bureau deny a request or procedural benefits?
(a) A bureau denies a request when it makes a decision that:
(1) A requested record is exempt, in full or in part;
(2) The request does not reasonably describe the records sought;
(3) A requested record does not exist, cannot be located, or is not
in the bureau's possession and/or control; or
(4) A requested record is not readily reproducible in the form or
format you seek.
(b) A bureau denies a procedural benefit only, and not access to the
underlying records, when it makes a decision that:
(1) A fee waiver, or another fee-related issue, will not be granted;
or
[[Page 18]]
(2) Expedited processing will not be provided.
(c) The bureau must consult with the Office of the Solicitor before
it denies a fee waiver request or withholds all or part of a requested
record (unless the Office of the Solicitor has expressly preapproved
such a withholding).
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016; 84
FR 61828, Nov. 14, 2019]
Sec.2.24 How will the bureau deny requests?
(a)The bureau must notify you in writing of any denial of your
request.
(b) The denial notification must include:
(1) The name and title or position of the person responsible for the
denial, along with an office phone number or email address;
(2) A statement of the reasons for the denial;
(3) A reference to any FOIA exemption applied by the bureau to
withhold records in full or in part, along with a statement that the
bureau reasonably foresees that disclosure would harm an interest
protected by the applied exemption(s) or disclosure is prohibited by
law;
(4) An estimate of the volume of any records withheld in full or in
part (for example, by providing the number of pages or some other
reasonable form of estimation), unless the bureau notes that it does not
have or could not locate responsive records or that including an
estimate would harm an interest protected by an exemption used to
withhold the records and the bureau explains this harm to you;
(5) The name and title of the Office of the Solicitor or Office of
General Counsel attorney consulted (if the bureau is denying a fee
waiver request or withholding all or part of a requested record); and
(6) A statement that the denial may be appealed under subpart H of
this part and a description of the procedures in subpart H of this part.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016; 81
FR 92694, Dec. 20, 2016; 84 FR 61828, Nov. 14, 2019]
Sec.2.25 What if the requested records contain both exempt and
nonexempt material?
If responsive records contain both exempt and nonexempt material,
the bureau will consult with the Office of the Solicitor, as discussed
in Sec.2.23(c). After consultation, the bureau will partially grant
and partially deny the request by:
(a) Segregating and releasing the nonexempt information, unless the
nonexempt material is so intertwined with the exempt material that
disclosure of it would leave only meaningless words and phrases;
(b) Indicating on the released portion of the record the amount of
information deleted and the FOIA exemption under which the deletion was
made, unless doing so would harm an interest protected by the FOIA
exemption used to withhold the information; and
(c) If technically feasible, indicating the amount of information
deleted and the FOIA exemption under which the deletion was made at the
place in the record where the deletion was made.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016]
Subpart F_Handling Confidential Information
Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.
Sec.2.26 May submitters of possibly confidential information
designate information as confidential when making Departmental
submissions?
(a) The Department encourages, but does not require, submitters to
designate confidential information in good faith (in other words, to
identify specific information as information the submitter considers
protected from disclosure under Exemption 4 of the FOIA, found at 5
U.S.C. 552(b)(4)), at the time of submission or reasonably soon
thereafter.
(b) The designations discussed in paragraph (a) of this section
assist the bureau in identifying what information obtained from the
submitter is possibly
[[Page 19]]
confidential and triggers the requirement for bureau-provided
notifications under Sec.2.27(a)(1) of this subpart.
[81 FR 11129, Mar. 3, 2016]
Sec.2.27 When will the bureau notify a submitter of a request for
their possibly confidential information?
(a) Except as outlined in Sec.2.29 of this subpart, a bureau must
exercise due diligence to promptly notify a submitter in writing when it
receives a FOIA request if:
(1) The requested information has been designated by the submitter
as confidential information under Sec.2.26(a) of this subpart; or
(2) The requested information has not been designated as
confidential information by the submitter under Sec.2.26(a) of this
subpart, but the bureau identifies it as possibly confidential
information.
(b) If a voluminous number of submitters are involved, the bureau
may publish a notice in a manner reasonably calculated to reach the
attention of the submitters (for example, in newspapers or newsletters,
the bureau's Web site, or the Federal Register) instead of providing a
written notice to each submitter.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016; 84
FR 61828, Nov. 14, 2019]
Sec.2.28 What information will the bureau include when it notifies
a submitter of a request for their possibly confidential information?
A notice to a submitter must include:
(a) Either a copy of the request, the exact language of the request,
or (for notices published under Sec.2.27(b) of this subpart) a general
description of the request;
(b) Either a description of the possibly confidential information
located in response to the request or a copy of the responsive records,
or portions of records, containing the information;
(c) A description of the procedures for objecting to the release of
the possibly confidential information under Sec. Sec.2.30 and 2.31 of
this subpart;
(d) A time limit for responding to the bureau--no less than 10
workdays from receipt or publication of the notice (as set forth in
Sec.2.27(b) of this subpart)--to object to the release and to explain
the basis for the objection;
(e) Notice that information contained in the submitter's objections
may itself be subject to disclosure under the FOIA;
(f) Notice that the bureau, not the submitter, is responsible for
deciding whether the information will be released or withheld;
(g) A request for the submitter's views on whether they still
consider the information to be confidential if the submitter designated
the material as confidential commercial or financial information 10 or
more years before the request; and
(h) Notice that failing to respond within the time frame specified
under Sec.2.28(d) of this subpart will create a presumption that the
submitter has no objection to the disclosure of the information in
question.
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016]
Sec.2.29 When will the bureau not notify a submitter of a request
for their possibly confidential information?
The notice requirements of Sec.2.28 of this subpart will not apply
if:
(a) The information has been lawfully published or officially made
available to the public;
(b) Disclosure of the information is required or prohibited by a
statute other than the FOIA or by a regulation (other than this part)
issued in accordance with the requirements of Executive Order 12600; or
(c) The bureau has exercised due diligence to notify the submitter,
but its efforts were unsuccessful.
[77 FR 76906, Dec. 31, 2012, as amended at 84 FR 61828, Nov. 14, 201]
Sec.2.30 How and when may a submitter object to the disclosure
of confidential information?
(a) If a submitter has any objections to the disclosure of
confidential information, the submitter should provide a detailed
written statement to the bureau that specifies all grounds for
withholding the particular information under any FOIA exemption (see
Sec.2.31 of this subpart for further discussion of Exemption 4
objection statements).
[[Page 20]]
(b) A submitter who does not respond within the time period
specified under Sec.2.28(d) of this subpart will be considered to have
no objection to disclosure of the information. Responses received by the
bureau after this time period will not be considered by the bureau
unless the appropriate bureau FOIA contact determines, in his or her
sole discretion, that good cause exists to accept the late response.
Sec.2.31 What must a submitter include in a detailed Exemption
4 objection statement?
(a) To rely on Exemption 4 as a basis for nondisclosure, the
submitter must explain why the information is confidential information.
To do this, the submitter must provide a detailed written statement that
explains why the information is a trade secret or, if the information is
not a trade secret, certification that the information is both
customarily and actually treated as private by the owner of the
information. The statement must also include any available background on
whether the information was provided to the government under an
assurance that the government would keep it private.
(b) If not already provided, the submitter must include a daytime
telephone number, an email and mailing address, and a fax number (if
available).
[77 FR 76902, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016; 84
FR 61828, Nov. 14, 2019]
Sec.2.32 How will the bureau consider the submitter's objections?
(a) The bureau must carefully consider a submitter's objections and
specific grounds for nondisclosure in deciding whether to disclose the
requested information.
(b) The bureau, not the submitter, is responsible for deciding
whether the information will be released or withheld.
Sec.2.33 What if the bureau determines it will disclose information
over the submitter's objections?
If the bureau decides to disclose information over the objection of
a submitter, the bureau must notify the submitter by certified mail or
other traceable mail, return receipt requested. The notification must be
sent to the submitter's last known address and must include:
(a) The specific reasons why the bureau determined that the
submitter's disclosure objections do not support withholding the
information;
(b) Copies of the records or information the bureau intends to
release; and
(c) Notice that the bureau intends to release the records or
information no less than 10 workdays after receipt of the notice by the
submitter.
Sec.2.34 Will a submitter be notified of a FOIA lawsuit?
If you file a lawsuit seeking to compel the disclosure of
confidential information, the bureau must promptly notify the submitter.
Sec.2.35 Will you receive notification of activities involving
the submitter?
If any of the following occur, the bureau will notify you:
(a) The bureau provides the submitter with notice and an opportunity
to object to disclosure;
(b) The bureau notifies the submitter of its intent to disclose the
requested information; or
(c) A submitter files a lawsuit to prevent the disclosure of the
information.
Sec.2.36 Can a bureau release information protected by Exemption 4?
If a bureau determines that the requested information is protected
from release by Exemption 4 of the FOIA, the bureau has no discretion to
release the information. Release of information protected from release
by Exemption 4 is prohibited by the Trade Secrets Act, a criminal
provision found at 18 U.S.C. 1905.
Subpart G_Fees
Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.
Sec.2.37 What general principles govern fees?
(a) The bureau will charge for processing requests under the FOIA in
accordance with this subpart and with the OMB Fee Guidelines.
[[Page 21]]
(b) The bureau may contact you for additional information to resolve
fee issues.
(c) The bureau ordinarily will collect all applicable fees before
sending copies of records to you.
(d) You may usually pay fees by check, certified check, or money
order made payable to the ``Department of the Interior'' or the bureau.
(1) Where appropriate, the bureau may require that your payment be
made in the form of a certified check.
(2) You may also be able to pay your fees by credit card. You may
contact the bureau to determine what forms of payment it accepts.
(e) The bureau should ensure that it conducts searches, review, and
duplication in the most efficient and the least expensive manner so as
to minimize costs for both you and the bureau.
(f) If the bureau does not comply with any time limit in the FOIA:
(1) Except as provided in paragraph (f)(2) of this section, the
bureau cannot assess any search fees (or, if you are in the fee category
of a representative of the news media or an educational and
noncommercial scientific institution, duplication fees).
(2)(i) If the bureau has determined that unusual circumstances apply
(as the term is defined in Sec.2.70) and the bureau provided you a
timely written notice to extend the basic time limit in accordance with
Sec.2.19, the noncompliance is excused for an additional 10 workdays.
(ii) If the bureau has determined that unusual circumstances apply
and more than 5,000 pages are necessary to respond to the request, the
noncompliance is excused if the bureau has provided you a timely written
notice in accordance with Sec.2.19 and has discussed with you via
written mail, email, or telephone (or made not less than 3 good-faith
attempts to do so) how you could effectively limit the scope of the
request.
(iii) If a court has determined that exceptional circumstances exist
(as that term is defined in Sec.2.70), the noncompliance is excused
for the length of time provided by the court order.
(g) If the fee for processing your request is less than $50, you
will not be charged unless multiple requests are aggregated under Sec.
2.54 of this subpart to an amount that is $50 or more.
(h) If you fail to pay any FOIA-related fee within 30 calendar days
of the date of billing, the processing of any new or ongoing requests
and/or appeals from you shall ordinarily be suspended.
(i) If you would like to reformulate your request so it will meet
your needs at a lower cost, you may wish to seek assistance from the
bureau's designated FOIA contact or its FOIA Requester Center(see Sec.
2.66 of this part).
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016; 81
FR 92694, Dec. 20, 2016; 84 FR 61828, Nov. 14, 2019]
Sec.2.38 What are the requester fee categories?
(a) There are four categories of requesters for the purposes of
determining fees--commercial-use, educational and noncommercial
scientific institutions, representatives of news media, and all others.
(b) The bureau's decision to place you in a particular fee category
will be made on a case-by-case basis based on your intended use of the
information and, in most cases, your identity. If you do not submit
sufficient information in your FOIA request for the bureau to determine
your proper fee category, the bureau may ask you to provide additional
information (see Sec.2.51 of this subpart). If you request placement
in a particular fee category but the bureau places you in a different
fee category, the bureau will provide you with an explanation of why you
were not placed in the fee category you requested (for example, if you
were placed in the commercial use requester category rather than the
category you requested, the bureau will describe how the records would
further your commercial, trade, or profit interests).
(c) See Sec.2.70 of this part for the definitions of each of these
fee categories.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11129, Mar. 3, 2016]
Sec.2.39 How does your requester category affect the fees
you are charged?
You will be charged as shown in the following table:
[[Page 22]]
----------------------------------------------------------------------------------------------------------------
Requester Category Search fees Review fees Duplication fees
----------------------------------------------------------------------------------------------------------------
Commercial use requester............. Yes.................... Yes.................... Yes.
Educational and noncommercial No..................... No..................... Yes (first 100 pages,
scientific institutions. or equivalent volume,
free).
Representative of news media No..................... No..................... Yes (first 100 pages,
requester. or equivalent volume,
free).
All other requesters................. Yes (first 2 hours No..................... Yes (first 100 pages,
free). or equivalent volume,
free).
----------------------------------------------------------------------------------------------------------------
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016; 81
FR 92694, Dec. 20, 2016]
Sec.2.40 How will fee amounts be determined?
(a) The bureau will charge the types of fees discussed below unless
a waiver of fees is required under Sec.2.39 of this subpart or has
been granted under Sec.2.45 or Sec.2.56.
(b) Because the types of fees discussed below already account for
the overhead costs associated with a given fee type, the bureau should
not add any additional costs to those charges.
Sec.2.41 What search fees will you have to pay?
(a) The bureau will charge search fees for all requests, subject to
the restrictions of Sec. Sec.2.37(f), 2.39, and 2.40(a) of this
subpart. The bureau may charge you for time spent searching even if it
does not locate any responsive records or if it determines that the
records are entirely exempt from disclosure.
(b) For each quarter hour spent by personnel searching for requested
records, including electronic searches that do not require new
programming, the fees will be the average hourly General Schedule (GS)
base salary, plus the District of Columbia locality payment, plus 16
percent for benefits, of employees in the following three categories, as
applicable:
(1) Clerical--Based on GS-6, Step 5, pay (all employees at GS-7 and
below are classified as clerical for this purpose);
(2) Professional--Based on GS-11, Step 7, pay (all employees at GS-8
through GS-12 are classified as professional for this purpose); and
(3) Managerial--Based on GS-14, Step 2, pay (all employees at GS-13
and above are classified as managerial for this purpose).
(c) You can review the current fee schedule for the categories
discussed above in paragraph (b) of this section at http://www.doi.gov/
foia/fees-waivers.
(d) Some requests may require retrieval of records stored at a
Federal records center operated by the National Archives and Records
Administration. For these requests, bureaus will charge additional costs
in accordance with the Transactional Billing Rate Schedule established
by the National Archives and Records Administration.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]
Sec.2.42 What duplication fees will you have to pay?
(a) The bureau will charge duplication fees, subject to the
restrictions of Sec. Sec.2.37(f), 2.39, and 2.40(a) of this subpart.
(b) If photocopies or scans are supplied, the bureau will provide
one copy per request at the cost determined by the table in appendix A
to this part.
(c) For other forms of duplication, the bureau will charge the
actual costs of producing the copy, including the time spent by
personnel duplicating the requested records. For each quarter hour spent
by personnel duplicating the requested records, the fees will be the
same as those charged for a search under Sec.2.41(b) of this subpart.
(d) If the bureau must scan paper records to accommodate your
preference to receive records in an electronic format or print
electronic records to accommodate your preference to receive records in
a paper format, you will pay both the per page amount noted in Appendix
A to this part and the time spent by personnel scanning or printing the
requested records. For each quarter hour spent by personnel scanning or
printing the requested records, the fees will be the
[[Page 23]]
same as those charged for a search under Sec.2.41(b) of this subpart.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]
Sec.2.43 What review fees will you have to pay?
(a) The bureau will charge review fees if you make a commercial-use
request, subject to the restrictions of Sec. Sec.2.37(f), 2.39, and
2.40(a) of this subpart.
(b) The bureau will assess review fees in connection with the
initial review of the record (the review conducted by the bureau to
determine whether an exemption applies to a particular record or portion
of a record).
(c) The Department will not charge for reviews at the administrative
appeal stage of exemptions applied at the initial review stage. However,
if the appellate authority determines that an exemption no longer
applies, any costs associated with the bureau's re-review of the records
to consider the use of other exemptions may be assessed as review fees.
(d) The bureau will charge review fees at the same rates as those
charged for a search under Sec.2.41(b) of this subpart.
(e) The bureau can charge review fees even if the record(s) reviewed
ultimately is not disclosed.
Sec.2.44 What fees for other services will you have to pay?
(a) Although not required to provide special services, if the bureau
chooses to do so as a matter of administrative discretion, it will
charge you the direct costs of providing the service.
(b) Examples of these services include providing multiple copies of
the same record, converting records that are not already maintained in a
requested format to the requested format, obtaining research data under
Sec.2.69 of this part, sending records by means other than first class
mail, and conducting a search that requires the creation of a new
computer search program to locate the requested records.
(c) The bureau will notify you of these fees before they accrue and
will obtain your written assurance of payment or an advance payment
before proceeding. See Sec. Sec.2.49 and 2.50 of this subpart.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]
Sec.2.45 When will the bureau waive fees?
(a) The bureau will release records responsive to a request without
charge (in other words, it will give you a full fee waiver) or at a
reduced charge (in other words, it will give you a partial fee waiver,
as discussed further in paragraph (b) of this section) if the bureau
determines, considering the information you have provided, that you have
demonstrated (by addressing and meeting each of the criteria listed in
Sec.2.48 of this subpart) that disclosing the information is:
(1) In the public interest because it is likely to contribute
significantly to public understanding of government operations or
activities, and
(2) Not primarily in your commercial interest.
(b) A partial fee waiver may be appropriate if some but not all of
the requested records are likely to contribute significantly to public
understanding of the operations and activities of the government.
(c) When deciding whether to waive or reduce fees, the bureau will
rely on the fee waiver justification submitted in your request letter.
If the letter does not include sufficient justification, the bureau will
deny the fee waiver request. The bureau may, at its discretion, request
additional information from you (see Sec.2.51 of this subpart).
(d) The burden is on you to justify entitlement to a fee waiver.
Requests for fee waivers are decided on a case-by-case basis under the
criteria discussed above in paragraph (a) of this section and Sec.2.48
of this subpart. If you have received a fee waiver in the past, that
does not mean you are automatically entitled to a fee waiver for every
request submitted.
(e) Discretionary fee waivers are addressed in Sec.2.56 of this
subpart.
(f) The bureau must not make value judgments about whether the
information at issue is ``important'' enough to be made public; it is
not the bureau's role to attempt to determine the level
[[Page 24]]
of public interest in requested information.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016; 84
FR 61828, Nov. 14, 2019]
Sec.2.46 When may you ask the bureau for a fee waiver?
(a) You should request a fee waiver when your request is first
submitted to the bureau (see Sec.2.6 of this part).
(b) You may submit a fee waiver request at a later time if the
bureau has not yet completed processing your request.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]
Sec.2.47 How will the bureau notify you if it denies your fee
waiver request?
If the bureau denies your request for a fee waiver, it will notify
you, in writing, of the following:
(a) The basis for the denial, including a full explanation of why
the fee waiver request does not meet the Department's fee waiver
criteria in Sec.2.48 of this subpart;
(b) The name and title or position of each person responsible for
the denial;
(c) The name and title of the Office of the Solicitor attorney
consulted;
(d) Your right to appeal the denial under subpart H of this part and
a description of the requirements set forth therein, within 90 workdays
from the date of the fee waiver denial letter; and
(e) Your anticipated fees, in accordance with Sec.2.49 of this
subpart.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016; 84
FR 61828, Nov. 14, 2019]
Sec.2.48 How will the bureau evaluate your fee waiver request?
(a) In deciding whether your fee waiver request meets the
requirements of Sec.2.45(a)(1) of this subpart, the bureau will
consider the criteria listed in paragraphs (a)(1) through (a)(4) of this
section. You must address and meet each of these criteria in order to
demonstrate that you are entitled to a fee waiver.
(1) How the records concern the operations or activities of the
Federal government. The subject of the request must concern discrete,
identifiable agency activities, operations, or programs with a
connection that is direct and clear, not remote or attenuated.
(2) How disclosure is likely to contribute significantly to public
understanding of those operations or activities, including:
(i) How the contents of the records are meaningfully informative.
The disclosure of information that is already readily available to you
from other sources or easily accessible to the public, in either the
same or a substantially identical form, would not be meaningfully
informative if nothing new would be added to the public's understanding
and the bureau informs you of where the requested information is already
available;
(ii) What the logical connection is between the content of the
records and the operations or activities of the Federal government;
(iii) How disclosure will contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to your individual understanding;
(iv) Your expertise in the subject area as well as your identity,
vocation, qualifications, and your plan to disclose the information in a
manner that will be informative to the understanding of a reasonably
broad audience of persons interested in the subject, as opposed to
furthering your individual understanding;
(v) Your ability and intent to disseminate the information to a
reasonably broad audience of persons interested in the subject (for
example, how and to whom you intend to disseminate the information). If
we have categorized you as a representative of the news media under
Sec.2.38, we will presume you have this ability and intent;
(vi) Whether the records would confirm or clarify data that has been
released previously; and
(vii) How the public's understanding of the subject in question will
be enhanced to a significant extent by the disclosure.
(b) In deciding whether the fee waiver request meets the
requirements in Sec.2.45(a)(2) of this subpart, the bureau will
consider any commercial interest of yours that would be furthered by the
requested disclosure. To determine whether disclosure of the requested
[[Page 25]]
records is primarily in your commercial interest (based on your intended
use of the information), the bureau will consider:
(1) Whether the requested disclosure would further any commercial
interest of yours.
(2) If you have a commercial interest, the bureau must determine
whether that is the primary interest furthered by the request by
balancing the commercial interest against the public interest in
disclosure of the records. When the requirements of paragraph (a) are
satisfied and any commercial interest is not the primary interest
furthered by the request, this balancing test shows a waiver or
reduction of fees is justified. Bureaus ordinarily will presume that,
when a news media requester has satisfied paragraph (a) above, the
request is not primarily in the commercial interest of the requester.
(3) You are encouraged to provide explanatory information regarding
these considerations.
(4) The bureau will not find that disclosing the requested records
will be primarily in your commercial interest where the public interest
is greater than any identified commercial interest in disclosure.
(5) If you have a commercial interest that would be furthered by
disclosure, explain how the public interest in disclosure would be
greater than any commercial interest you may have in the documents.
(i) Your identity, vocation, and intended use of the requested
records are all factors to be considered in determining whether
disclosure would be primarily in your commercial interest.
(ii) If you are a representative of a news media organization
seeking records as part of the news gathering process, we will
ordinarily presume that the public interest outweighs your commercial
interest. Disclosure to data brokers or others who merely compile and
market government information for direct economic return will not be
presumed to primarily serve the public interest.
(iii) If you represent a business/corporation/association or you are
an attorney representing such an organization, we will presume that your
commercial interest outweighs the public interest unless you demonstrate
otherwise.
[84 FR 61828, Nov. 14, 2019]
Sec.2.49 When will you be notified of anticipated fees?
(a) The bureau will notify you under this section unless:
(1) The anticipated fee is less than $50 (see Sec.2.37(g) of this
subpart).
(2) You have been granted a full fee waiver;
(3)Your request does not reasonably describe the records sought and/
or does not explicitly state that you will pay all fees associated with
the processing of the request, that you will pay fees up to a specified
amount, and/or that you are seeking a fee waiver; or
(4) You have already agreed to pay all the fees associated with the
request.
(b) If none of the above exceptions apply, the bureau will:
(1) Promptly notify you of the estimated costs for search, review,
and/or duplication;
(2) Ask you to provide written assurance within 20 workdays that you
will pay all fees or fees up to a designated amount;
(3) Notify you that it will not be able to comply with your FOIA
request unless you provide the written assurance requested; and
(4) Give you an opportunity to reduce the fee by modifying the
request.
(c) If the bureau does not receive your written response containing
the additional information that resolves any fee issues, in accordance
with paragraphs (b)(2) and/or (b)(4) of this section, within 20 workdays
after the bureau has requested it, the bureau will presume that you are
no longer interested in the records and will close the file on the
request.
(d) After the bureau begins processing a request, if it finds that
the actual cost will exceed the amount you previously agreed to pay, the
bureau will:
(1) Stop processing the request;
(2) Promptly notify you of the higher amount and ask you to provide
written assurance of payment; and
[[Page 26]]
(3) Notify you that it will not be able to fully comply with your
FOIA request unless you provide the written assurance requested; and
(4) Give you an opportunity to reduce the fee by modifying the
request.
(e) If you wish to modify your request in an effort to reduce fees,
the bureau's FOIA Requester Center can assist you.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016; 84
FR 61829, Nov. 14, 2019]
Sec.2.50 When will the bureau require advance payment?
(a) The bureau will require advance payment before starting further
work when it finds the estimated fee is over $250 and:
(1) You have never made a FOIA request to the Department requiring
the payment of fees; or
(2) You did not pay a previous FOIA fee within 30 calendar days of
the date of billing.
(b) If the bureau believes that you did not pay a previous FOIA fee
within 30 calendar days of the date of billing, the bureau will require
you to either:
(1) Demonstrate you paid prior fee within 30 calendar days of the
date of billing; or
(2) Pay any unpaid amount of the previous fee, plus any applicable
interest penalties (see Sec.2.53 of this subpart), and pay in advance
the estimated fee for the new request.
(c) When the bureau notifies you that an advance payment is due
under paragraph (a) of this section, it will give you an opportunity to
reduce the fee by modifying the request.
(d) Your payment of the funds you owe the bureau for work it has
already completed before records are sent to you is not an advance
payment under paragraph (a) of this section.
(e) If the bureau requires advance payment, it will start further
work only after receiving the advance payment. It will also notify you
that it will not be able to comply with your FOIA request unless you
provide the advance payment. Unless you pay the advance payment within
20 workdays after the date of the bureau's fee letter, the bureau will
presume that you are no longer interested and will close the file on the
request.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]
Sec.2.51 What if the bureau needs clarification about fee issues?
(a) If your FOIA request does not contain sufficient information for
the bureau to determine your proper fee category or leaves another fee
issue unclear, the bureau may ask you to provide additional
clarification. If it does so, the bureau will notify you that it will
not be able to comply with your FOIA request unless you provide the
clarification requested.
(b) If the bureau asks you to provide clarification, the 20-workday
statutory time limit for the bureau to respond to the request is
temporarily suspended.
(1) If the bureau receives a written response within 20 workdays
after the bureau has requested the additional clarification, the 20-
workday statutory time limit for processing the request will resume (see
Sec.2.16 of this part).
(2) If you still have not provided sufficient information to resolve
the fee issue, the bureau may ask you again to provide additional
clarification and notify you that it will not be able to comply with
your FOIA request unless you provide the additional information
requested within 20 workdays after the bureau has requested the
additional clarification.
(3) If the bureau asks you again for additional clarification, the
statutory time limit for response will be temporarily suspended again
and will resume again if the bureau receives a written response from you
within 20 workdays after the bureau has requested the additional
clarification.
(c) If the bureau asks for clarification about a fee issue and does
not receive a written response from you within 20 workdays after the
bureau has requested the additional clarification, it will presume that
you are no longer interested and will close the file on the request.
[77 FR 76906, Dec. 31, 2012; 78 FR 6216, Jan. 30, 2013; 81 FR 11130,
Mar. 3, 2016]
[[Page 27]]
Sec.2.52 How will you be billed?
If you are required to pay a fee associated with a FOIA request, the
bureau processing the request will send a bill for collection.
Sec.2.53 How will the bureau collect fees owed?
(a) The bureau may charge interest on any unpaid bill starting on
the 31st day following the billing date.
(b) The bureau will assess interest charges at the rate provided in
31 U.S.C. 3717 and implementing regulations and interest will accrue
from the billing date until the bureau receives payment.
(c) The bureau will follow the provisions of the Debt Collection Act
of 1982 (Public Law 97-365, 96 Stat. 1749), as amended, and its
administrative procedures, including the use of consumer reporting
agencies, collection agencies, and offset to collect overdue amounts and
interest.
(d) This section does not apply if you are a state, local, or tribal
government.
Sec.2.54 When will the bureau combine or aggregate requests?
(a) The bureau may aggregate requests and charge accordingly when it
reasonably believes that you, or a group of requesters acting in concert
with you, are attempting to avoid fees by dividing a single request into
a series of requests on a single subject or related subjects.
(1) The bureau may presume that multiple requests of this type made
within a 30-day period have been made to avoid fees.
(2) The bureau may aggregate requests separated by a longer period
only where there is a reasonable basis for determining that aggregation
is warranted in view of all the circumstances involved.
(b) The bureau will not aggregate multiple requests involving
unrelated matters.
(c) The bureau may administratively aggregate requests without
charging fees accordingly when it reasonably believes you, or a group of
requesters acting in concert with you, are dividing a single request
into a series of requests on a single subject or related subjects.
(1) The bureau may presume that multiple requests on a single
subject or related subjects made within a 30-day period are dividing a
single request into a series of requests.
(2) The bureau may administratively aggregate requests separated by
a longer period only where there is a reasonable basis for determining
that aggregation is warranted in view of all the circumstances involved.
[77 FR 76906, Dec. 31, 2019, as amended at 84 FR 61829, Nov. 14, 2019]
Sec.2.55 What if other statutes require the bureau to charge fees?
(a) The fee schedule in appendix A to this part does not apply to
fees charged under any statute that specifically requires the bureau to
set and collect fees for particular types of records.
(b) If records otherwise responsive to a request are subject to a
statutorily-based fee schedule, the bureau will inform you whom to
contact to obtain the records.
Sec.2.56 May the bureau waive or reduce your fees at its discretion?
(a) The bureau may waive or reduce fees at its discretion if a
request involves furnishing:
(1) A copy of a record that the bureau has reproduced for free
distribution;
(2) One copy of a personal document (for example, a birth
certificate) to a person who has been required to furnish it for
retention by the Department;
(3) One copy of the transcript of a hearing before a hearing officer
in a grievance or similar proceeding to the employee for whom the
hearing was held;
(4) Records to donors with respect to their gifts;
(5) Records to individuals or private nonprofit organizations having
an official, voluntary, or cooperative relationship with the Department
if it will assist their work with the Department;
(6) A reasonable number of records to members of the U.S. Congress;
state, local, and foreign governments; public international
organizations; or Indian tribes, when to do so is an appropriate
courtesy, or when the recipient is carrying on a function related to a
Departmental function and the waiver
[[Page 28]]
will help accomplish the Department's work;
(7) Records in conformance with generally established business
custom (for example, furnishing personal reference data to prospective
employers of current or former Department employees); or
(8) One copy of a single record to assist you in obtaining financial
benefits to which you may be entitled (for example, veterans or their
dependents, employees with Government employee compensation claims).
(b) You cannot appeal the denial of a discretionary fee waiver or
reduction.
Subpart H_Administrative Appeals
Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.
Sec.2.57 When may you file an appeal?
(a) You may file an appeal when:
(1) The bureau withholds records, or parts of records;
(2) The bureau informs you that your request has not adequately
described the records sought;
(3) The bureau informs you that it does not possess or cannot locate
responsive records and you have reason to believe this is incorrect or
that the search was inadequate;
(4) The bureau did not address all aspects of the request for
records;
(5) You believe there is a procedural deficiency (for example, fees
are improperly calculated or you have been placed in the wrong fee
category);
(6) The bureau denied your request for a fee waiver;
(7) The bureau did not make a decision within the time limits in
Sec.2.16 or, if applicable, Sec.2.18; or
(8) The bureau denied, or was late in responding to, a request for
expedited processing filed under the procedures in Sec.2.20 of this
part.
(b) An appeal under paragraph (a)(8) of this section relates only to
the request for expedited processing and does not constitute an appeal
of the underlying request for records. Special procedures apply to
requests for expedited processing of an appeal (see Sec.2.63 of this
subpart).
(c) Before filing an appeal, you may wish to communicate with the
contact person listed in the FOIA response, the bureau's FOIA Officer,
and/or the FOIA Public Liaison to see if the issue can be resolved
informally. However, appeals must be received by the FOIA Appeals
Officer within the time limits in Sec.2.58 of this subpart or they
will not be processed.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]
Sec.2.58 How long do you have to file an appeal?
(a) Appeals covered by Sec.2.57(a)(1) through (5) of this subpart
must be received by the FOIA Appeals Officer no later than 90 workdays
from the date of the final response.
(b) Appeals covered by Sec.2.57(a)(6) of this subpart must be
received by the FOIA Appeals Officer no later than 90 workdays from the
date of the letter denying the fee waiver.
(c) Appeals covered by Sec.2.57(a)(7) of this subpart may be filed
any time after the time limit for responding to the request has passed.
(d) Appeals covered by Sec.2.57(a)(8) of this subpart should be
filed as soon as possible.
(e) Appeals arriving or delivered after 5 p.m. Eastern Time, Monday
through Friday, will be deemed received on the next workday.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 92694, Dec. 20, 2016]
Sec.2.59 How do you file an appeal?
(a) You must submit the appeal in writing by mail, fax or email to
the FOIA Appeals Officer (using the address available at http://
www.doi.gov/foia/appeals). Your failure to send an appeal directly to
the FOIA Appeals Officer may delay processing.
(b) The appeal must include:
(1) Copies of all correspondence between you and the bureau
concerning the FOIA request, including the request and the bureau's
response (if there is one); and
(2) An explanation of why you believe the bureau's response was in
error.
[[Page 29]]
(c) The appeal should include your name, mailing address, daytime
telephone number (or the name and telephone number of an appropriate
contact), email address, and fax number (if available) in case the
Department needs additional information or clarification.
(d) An appeal concerning a denial of expedited processing or a fee
waiver denial should also demonstrate fully how the criteria in Sec.
2.20 or Sec. Sec.2.45 and 2.48 of this part are met.
(e) All communications concerning an appeal should be clearly marked
with the words: ``FREEDOM OF INFORMATION APPEAL.''
(f) The Department will reject an appeal that does not attach all
correspondence required by paragraph (b)(1) of this section, unless the
FOIA Appeals Officer determines, in his or her sole discretion, that
good cause exists to accept the defective appeal. The time limits for
responding to an appeal will not begin to run until the correspondence
is received.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11130, Mar. 3, 2016]
Sec.2.60 Who makes decisions on appeals?
(a) The FOIA Appeals Officer is the deciding official for FOIA
appeals that do not appeal a decision of the Office of Inspector
General.
(b) The General Counsel is the deciding official for FOIA appeals
that appeal a decision of the Office of Inspector General.
(c) When necessary, the appropriate deciding official for FOIA
appeals will consult other appropriate offices, including the Office of
the Solicitor or Office of General Counsel for denials of records and
fee waivers.
(d) The deciding official for FOIA appeals normally will not make a
decision on an appeal if the request becomes a matter of FOIA
litigation.
[81 FR 11130, Mar. 3, 2016]
Sec.2.61 How are decisions on appeals issued?
(a) A decision on an appeal must be made in writing.
(b) A decision that upholds the bureau's determination will notify
you of the decision and your statutory right to file a lawsuit.
(c) A decision that overturns, remands, or modifies the bureau's
determination will notify you of the decision. The bureau then must
further process the request in accordance with the appeal determination.
Sec.2.62 When can you expect a decision on your appeal?
(a) The basic time limit for responding to an appeal is 20 workdays
after receipt of an appeal meeting the requirements of Sec.2.59 of
this subpart.
(b) If the Department is unable to reach a decision on your appeal
within the given time limit for response, the appropriate deciding
official for FOIA appeals will notify you of your statutory right to
seek review in a United States District Court.
[81 FR 11131, Mar. 3, 2016]
Sec.2.63 Can you receive expedited processing of appeals?
(a) To receive expedited processing of an appeal, you must
demonstrate to the Department's satisfaction that the appeal meets one
of the criteria under Sec.2.20 of this part and include a statement
that the need for expedited processing is true and correct to the best
of your knowledge and belief.
(b) The appropriate deciding official for FOIA appeals will advise
you whether the Department will grant expedited processing within 10
calendar days of receiving the appeal.
(c) If the appropriate deciding official for FOIA appeals decides to
grant expedited processing, he or she will give the appeal priority over
other pending appeals and process it as soon as practicable.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11131, Mar. 3, 2016]
Sec.2.64 Must you submit an appeal before seeking judicial review?
Before seeking review by a court of the bureau's adverse
determination, you generally must first submit a timely administrative
appeal.
[[Page 30]]
Subpart I_General Information
Source: 77 FR 76906, Dec. 31, 2012, unless otherwise noted.
Sec.2.65 Where are records made available?
Records that are required by the FOIA to be made proactively
available for public inspection and copying are accessible on the
Department's Web site, http://www.doi.gov/foia/libraries. They may also
be available at bureau office locations.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11131, Mar. 3, 2016]
Sec.2.66 What are FOIA Requester Centers and the FOIA Public Liaison?
(a) FOIA Requester Centers typically serve as your first point of
contact for questions about how the FOIA works. Before and after you
make a request, FOIA Requester Centers can assist you by:
(1) Identifying information that is already posted and available;
(2) Informing you about the types of records maintained by the
bureau;
(3) Providing guidance on formulating effective requests;
(4) Describing the Department's various processing tracks and the
average processing times for the various tracks;
(5) Answering questions about expedited processing standards and the
FOIA's fee provisions; and
(6) Answering questions about the status of an existing request.
(b) The FOIA Public Liaison is responsible for:
(1) Assisting in reducing delays;
(2) Increasing transparency and understanding of the status of
requests; and
(3) Assisting in the resolution of disputes between you and the
agency.
(c) If you need further information or assistance after contacting
the applicable FOIA Requester Center and the FOIA Public Liaison, you
may wish to seek dispute resolution services from the Office of
Government Information Services.
(d) Contact information for the FOIA Requester Centers and FOIA
Public Liaison is available at https://www.doi.gov/foia/foiacenters.
[84 FR 61829, Nov. 14, 2019]
Sec.2.67 When will the Department make records available without
a FOIA request?
(a) Each bureau must:
(1) Determine which of its records must be made publicly available
under the FOIA (for example, certain frequently requested records);
(2) Identify additional records of interest to the public that are
appropriate for public disclosure; and
(3) Post those records in FOIA libraries.
(b) Because of these proactive disclosures, you are encouraged to
review the Department's FOIA libraries before filing a FOIA request. The
material you seek may be immediately available electronically at no
cost.
Sec.2.68 How will FOIA materials be preserved?
(a) Each bureau must preserve all correspondence pertaining to the
requests that it receives under subpart B of this part, as well as
copies of all requested records, until disposition or destruction is
authorized by the General Records Schedule 4.2 of the National Archives
and Records Administration (NARA) or another NARA-approved records
schedule, such as DAA-0048-2013-0001.
(b) Materials that are identified as responsive to a FOIA request
will not be disposed of or destroyed while the request or a related
appeal or lawsuit is pending. This is true even if they would otherwise
be authorized for disposition or destruction under the General Records
Schedule 4.2 of NARA or another NARA-approved records schedule, such as
DAA-0048-2013-0001.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11131, Mar. 3, 2016]
Sec.2.69 How will a bureau handle a request for federally-funded
research data?
(a) If you request research data that were used by the Federal
Government in developing certain kinds of agency actions, and the
research data relate to published research findings produced
[[Page 31]]
under an award, in accordance with OMB Circular A-110:
(1) If the bureau was the awarding agency, it will request the
research data from the recipient;
(2) The recipient must provide the research data within a reasonable
time; and
(3) The bureau will review the research data to see if it can be
released under the FOIA.
(b) If the bureau obtains the research data solely in response to
your FOIA request, the bureau may charge you a reasonable fee equaling
the full incremental cost of obtaining the research data.
(1) This fee should reflect costs incurred by the agency, the
recipient, and applicable subrecipients.
(2) This fee is in addition to any fees the agency may assess under
the FOIA.
(c) The bureau will forward a copy of the request to the recipient,
who is responsible for searching for and reviewing the requested
information in accordance with these FOIA regulations. The recipient
will forward a copy of any responsive records that are located, along
with any recommendations concerning the releasability of the data, and
the total cost incurred in searching for, reviewing, and providing the
data.
(d) The bureau will review and consider the recommendations of the
recipient regarding the releasability of the requested research data.
However, the bureau, not the recipient, is responsible for deciding
whether the research data will be released or withheld.
Sec.2.70 What definitions apply to subparts A through I of this part?
For the purposes of subparts A through I of this part, the following
definitions apply:
Bureau means any major component of the Department administering its
own FOIA program. A list of these components is available at: http://
www.doi.gov/foia/contacts.
Commercial interest means a commercial, trade, or profit interest as
these terms are commonly understood. Your status as profitmaking or non-
profitmaking is not the deciding factor in determining whether you have
a commercial interest.
Commercial use means a use that furthers your commercial, trade or
profit interests or that of the person on whose behalf the request is
made.
Confidential information means trade secrets or commercial or
financial information (that is privileged or confidential and obtained
by the Department from a person) that may be protected from disclosure
under Exemption 4 of the FOIA.
Department means the Department of the Interior.
Direct costs means those resources that the bureau expends in
searching for and duplicating (and, in the case of commercial-use
requests, reviewing) records to respond to a FOIA request. For example,
direct costs include the salary of the employee performing the work (the
basic rate of pay for the employee plus 16 percent of that rate to cover
benefits) and the cost of operating duplicating machinery, such as
photocopiers and scanners. Direct costs do not include overhead expenses
such as the costs of space and of heating or lighting a facility.
Duplication means reproducing a copy of a record or of the
information contained in it necessary to respond to a FOIA request.
Copies can take the form of paper, audiovisual materials, or electronic
records, among others.
Educational institution means any school that operates a program of
scholarly research. In order to fall within this category, you must show
that the request is authorized by and made under the auspices of, a
qualifying institution and that the records are not sought for a
commercial use, but rather are sought to further scholarly research.
Teachers (if they demonstrate how the requested records will further
their teaching, scholarly research, or production of scholarly works)
and students (if they demonstrate how the requested records will further
their coursework or other school-sponsored activities) may also qualify
as an educational institution for the purposes of this definition.
Exceptional circumstances means a delay that does not result from a
predictable workload of requests (unless the bureau demonstrates
reasonable
[[Page 32]]
progress in reducing its backlog of pending requests).
Exempt means the record in question, or a portion thereof, is not
subject to disclosure due to one or more of the FOIA's nine statutory
exemptions, found at 5 U.S.C. 552(b)(1)-(9).
Exemption means one or more of the FOIA's nine statutory exemptions,
found at 5 U.S.C. 552(b)(1)-(9).
Expedited processing means giving a FOIA request priority and
processing it ahead of other requests pending in the bureau because you
have shown a compelling need for the records.
Fee category means one of the four categories, discussed in
Sec. Sec.2.38 and 2.39, that agencies place you in for the purpose of
determining whether you will be charged fees for search, review, and
duplication.
FOIA means the Freedom of Information Act, 5 U.S.C. 552, as amended.
FOIA libraries means a physical or electronic compilation of records
required to be made available to the public for inspection and copying
under 5 U.S.C. 552(a)(2). It also includes a physical or electronic
compilation of records that the bureau, at its discretion, makes
available to the public for inspection and copying.
Frequently requested records means records that have been released
to any person in response to a FOIA request and that have been
requested, or that the bureau anticipates will be requested, at least
two more times under the FOIA.
Multitrack processing means placing simple requests, requiring
relatively minimal review, in one processing track and more voluminous
and complex requests in one or more other tracks. Requests in each track
are ordinarily processed on a first-in/first-out basis, but other
factors, such as litigation, may affect the sequence and/or timing of
processing.
Noncommercial scientific institution means an institution that is
not operated for commerce, trade or profit, and that is operated solely
for the purpose of conducting scientific research the results of which
are not intended to promote any particular product or industry. To be in
this category, you must show that the request is authorized by and is
made under the auspices of a qualifying institution and that the records
are not sought for a commercial use but are sought to further scientific
research.
OMB Fee Guidelines means the Uniform Freedom of Information Fee
Schedule and Guidelines published by the Office of Management and Budget
at 52 FR 10012 (Mar. 27, 1987).
Published means, for the purposes of Sec.2.69 of this subpart
only, when:
(1) Research findings are published in a peer-reviewed scientific or
technical journal; or
(2) A Federal agency publicly and officially cites the research
findings in support of an agency action that has the force and effect of
law.
Recipient means, for the purposes of Sec.2.69 of this subpart
only, an organization receiving financial assistance directly from
Federal awarding agencies to carry out a project or program. The term
includes public and private institutions of higher education, public and
private hospitals, and other quasi-public and private non-profit
organizations. The term may include commercial organizations, foreign or
international organizations (such as agencies of the United Nations)
which are recipients, subrecipients, or contractors or subcontractors of
recipients or subrecipients at the discretion of the Federal awarding
agency. The term does not include government-owned contractor-operated
facilities or research centers providing continued support for mission-
oriented, large-scale programs that are government-owned or controlled,
or are designated as federally-funded research and development centers.
Record means an agency record that is either created or obtained by
an agency and is under agency possession and control at the time of the
FOIA request, or is maintained by an entity under Government contract
for the purposes of records management.
Representative of the news media means any person or entity that
gathers information of potential interest to a segment of the public,
uses its editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience. The term news as used in
this definition means information that is about current
[[Page 33]]
events or that would be of current interest to the public. Simply
distributing copies of released records, electronically or otherwise,
does not qualify as using editorial skills to turn the raw materials
into a distinct work. Examples of news media entities are newspapers,
television, Web sites, or radio stations broadcasting to the public at
large, and publishers of periodicals (but only if such entities qualify
as disseminators of news) who make their products available for purchase
by or subscription by or free distribution to the general public. These
examples are not all inclusive. As methods of news delivery evolve,
alternative representatives of news media may come into being. A
freelance journalist will qualify as a news-media entity if he or she
can demonstrate a solid basis for expecting publication through that
entity, whether or not the journalist is actually employed by that
entity (for example, a publication contract would present a solid basis
for such an expectation).
Research data means, for the purposes of Sec.2.69 of this subpart
only, the recorded factual material commonly accepted in the scientific
community as necessary to validate research findings, but not any of the
following: preliminary analyses, drafts of scientific papers, plans for
future research, peer reviews, or communications with colleagues. The
term recorded as used in this definition excludes physical objects
(e.g., laboratory samples). Research data also do not include:
(1) Trade secrets, commercial information, materials necessary to be
held confidential by a researcher until they are published, or similar
information which is protected under law; and
(2) Personnel and medical information and similar information the
disclosure of which would constitute a clearly unwarranted invasion of
personal privacy, such as information that could be used to identify a
particular person in a research study.
Review means the examination of a record located in response to a
request to determine whether any portion of it is exempt from
disclosure. Review time includes processing any record for disclosure,
such as doing all that is necessary to prepare the record for
disclosure, including the process of redacting the record and marking
the appropriate exemptions. Review time also includes time spent both
obtaining and considering any formal objection to disclosure made by a
confidential information submitter under subpart G of this part, but it
excludes time spent resolving general legal or policy issues regarding
the application of FOIA exemptions.
Search means the process of looking for and retrieving records
responsive to a request. Search time includes page-by-page or line-by-
line identification of information within records; and the reasonable
efforts expended to locate and retrieve electronic records.
Submitter means any person or entity outside the Federal Government
from whom the Department obtains confidential information, directly or
indirectly. The term includes, but is not limited to individuals,
corporations, and state, local, tribal, and foreign governments.
Unusual circumstances means the need to search for and collect
requested records from field facilities or other establishments that are
separate from the office processing the request; the need to search for,
collect, and examine a voluminous amount of separate and distinct
records which are demanded in a single request; or the need for
consultation, which shall be conducted with all practicable speed, with
another agency, or among two or more components of the Department,
having a substantial interest in the determination of the request.
Workday means a regular Federal workday. It excludes Saturdays,
Sundays, or Federal legal public holidays. Items arriving or delivered
after 5 p.m. Eastern Time will be deemed received on the next workday.
You means a person requesting records, or filing an appeal, under
the FOIA.
[77 FR 76906, Dec. 31, 2012, as amended at 81 FR 11131, Mar. 3, 2016; 84
FR 61829, Nov. 14, 2019]
Subpart J_Declassification of Classified Documents
Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.
Redesignated at 67 FR 64530,
[[Page 34]]
Oct. 21, 2002. Redesignated at 77 FR 76902, Dec. 31, 2012; 78 FR 6216,
Jan. 30, 2013.
Sec.2.200 Declassification of classified documents.
(a) Request for classification review. (1) Requests for a
classification review of a document of the Department of the Interior
pursuant to section 5(c) of Executive Order 11652 (37 FR 5209, March 10,
1972) and section III B of the National Security Council Directive
Governing Classification, Downgrading, Declassification and Safeguarding
of National Security Information (37 FR 10053, May 1972) shall be made
in accordance with the procedures established by this section.
(2) Any person desiring a classification review of a document of the
Department of the Interior containing information classified as National
Security Information by reason of the provisions of Executive Order
12065 (or any predecessor executive order) and which is more than 10
years old, should address such request to the Chief, Division of
Enforcement and Security Management, Office of Administrative Services,
U.S. Department of the Interior, Washington, DC 20240.
(3) Requests need not be made on any special form, but shall, as
specified in the executive order, describe the document with sufficient
particularity to enable identification of the document requested with
expenditure of no more than a reasonable amount of effort.
(4) Charges for locating and reproducing copies of records will be
made when deemed applicable in accordance with appendix A to this part
and the requester will be notified.
(b) Action on requests for classification review. (1) The Chief,
Division of Enforcement and Security Management, shall, unless the
request is for a document over 30 years old, assign the request to the
bureau having custody of the requested records for action. In the case
of requests for declassification of records in the custody of the Office
of the Secretary and less than 30 years old, the request shall be
processed by the Chief, Division of Enforcement and Security Management.
Requests for declassification of documents over 30 years shall be
referred directly to the Archivist of the United States. The bureau
which has been assigned the request, or the Chief, Division of
Enforcement and Security Management, in the case of requests assigned to
him, shall immediately acknowledge the request in writing. Every effort
will be made to complete action on each request within thirty (30) days
of its receipt. If action cannot be completed within thirty (30) days,
the requester shall be so advised.
(2) If the requester does not receive a decision on his request
within sixty (60) days from the date of receipt of his request, or from
the date of his most recent response to a request for more particulars,
he may apply to the Department of the Interior Oversight Committee for
Security, U.S. Department of the Interior, Washington, DC 20240, for a
decision on his request. The Committee must render a decision within
thirty (30) days.
(c) Form of decision and appeal to Oversight Committee for Security.
In the event that the bureau to which a request is assigned or the
Chief, Division of Enforcement and Security Management, in the case of a
request assigned to him, determines that the requested information must
remain classified by reason of the provisions of Executive Order 11652,
the requester shall be given prompt notification of that decision and,
whenever possible, shall be provided with a brief statement as to why
the information or material cannot be declassified. He shall also be
advised that if he desires he may appeal the determination to the
Chairman, Department of the Interior Oversight Committee for Security,
U.S. Department of the Interior, Washington, DC 20240. An appeal shall
include a brief statement as to why the requester disagrees with the
decision which he is appealing. The Department Oversight Committee for
Security shall render its decision within thirty (30) days of receipt of
an appeal. The Departmental Committee shall be authorized to over-rule
previous determinations in whole or in part when, in its judgement,
continued protection is no longer required.
(d) Appeal to Interagency Classification Review Committee. Whenever
the Department of the Interior Oversight Committee for Security confirms
a determination for continued classification, it shall so notify the
requester
[[Page 35]]
and advise him that he is entitled to appeal the decision to the
Interagency Classification Review Committee established under section
8(A) of the Executive Order 11652. Such appeals shall be addressed to
the Interagency Classification Review Committee, the Executive Office
Building, Washington, DC 20500.
(e) Suggestions and complaints. Any person may also direct
suggestions or complaints with respect to the administration of the
other provisions of Executive Order 11652 and the NSC Directive by the
Department of the Interior to the Department of the Interior Oversight
Committee for Security, U.S. Department of the Interior, Washington, DC
20240.
[40 FR 7305, Feb. 19, 1975, as amended at 47 FR 38327, Aug. 31, 1982]
Subpart K_Privacy Act
Source: 40 FR 44505, Sept. 26, 1975, unless otherwise noted.
Redesignated at 67 FR 64530, Oct. 21, 2002. Redesignated at 77 FR 76902,
Dec. 31, 2012; 78 FR 6216, Jan. 30, 2013.
Sec.2.220 Purpose and scope.
This subpart contains the regulations of the Department of the
Interior implementing section 3 of the Privacy Act. Sections 2.47
through 2.57 describe the procedures and policies of the Department
concerning maintenance of records which are subject to the Act. Sections
2.60 through 2.66 describe the procedure under which individuals may
determine whether systems of records subject to the Act contain records
relating to them and the procedure under which they may seek access to
existing records. Sections 2.70 through 2.77 describe the procedure
under which individuals may petition for amendment of records subject to
the Act relating to them. Section 2.79 lists records systems that have
been exempted from certain requirements of the Act.
[48 FR 56583, Dec. 22, 1983]
Sec.2.221 Definitions.
(a) Act. As used in this subpart, ``Act'' means section 3 of the
Privacy Act, 5 U.S.C. 552a.
(b) Bureau. For purposes of this subpart, a ``bureau'' is any
constituent bureau or office of the Department, including the Office of
the Secretary and any other Departmental office.
(c) Individual. As used in this subpart, ``individual'' means a
citizen of the United States or an alien lawfully admitted for permanent
residence.
(d) Maintain. As used in this subpart, the term ``maintain''
includes maintain, collect, use or disseminate.
(e) Record. As used in this subpart, ``record'' means any item,
collection, or grouping of information about an individual that is
maintained by the Department or a bureau thereof, including, but not
limited to, education, financial transactions, medical history, and
criminal or employment history and that contains the individual's name,
or the identifying number, symbol, or other identifying particular
assigned to the individual, such as a finger or voice print, or a
photograph.
(f) System of records. As used in this subpart, ``System of
records'' means a group of any records under the control of the
Department or a bureau thereof from which information is retrieved by
the name of the individual or by some identifying number, symbol, or
other identifying particular assigned to the individual.
(g) Medical records. As used in this subpart, ``medical records''
means records which relate to the identification, prevention, cure or
alleviation of any disease, illness or injury including psychological
disorders, alcoholism and drug addiction.
(h) Office of Personnel Management personnel records. As used in the
subpart, ``Office of Personnel Management personnel records'' means
records maintained for the Office of Personnel Management by the
Department and used for personnel management programs or processes such
as staffing, employee development, retirement, and grievances and
appeals.
(i) Statistical records. As used in this subpart, ``statistical
records'' means records in a system of records maintained for
statistical research or reporting purposes only and not used in whole or
in part in making any determination about an identifiable individual.
(j) Routine use. As used in this subpart, ``routine use'' means a
use of a
[[Page 36]]
record for a purpose which is compatible with the purpose for which it
was collected.
(k) System notice. As used in this subpart, ``system notice'' means
the notice describing a system of records required by 5 U.S.C.
552a(e)(4) to be published in the Federal Register upon establishment or
revision of the system of records.
(l) System manager. As used in this subpart, ``system manager''
means the official designated in a system notice as having
administrative responsibility for a system of records.
(m) Departmental Privacy Act Officer. As used in this subpart,
``Departmental Privacy Act Officer'' means the official in the Office of
the Assistant Secretary--Policy, Budget and Administration charged with
responsibility for assisting the Assistant Secretary--Policy, Budget and
Administration in carrying out the functions assigned in this subpart
and for coordinating the activities of the bureaus of the Department in
carrying out the functions which they are assigned in this subpart.
(n) Bureau Privacy Act Officer. As used in this subpart, ``Bureau
Privacy Act Officer'' means the official within each bureau assigned
responsibility for bureau implementation of the Act and the regulations
of this subpart.
(o) Working day. As used in this subpart, ``working day'' means a
regular Federal work day. It does not include Saturdays, Sundays or
public legal holidays.
[40 FR 44505, Sept. 26, 1975, as amended at 47 FR 38327, Aug. 31, 1982;
48 FR 56583, Dec. 22, 1983; 53 FR 3749, Feb. 9, 1988]
Sec.2.222 Records subject to Privacy Act.
The Privacy Act applies to all ``records,'' as that term is defined
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.2.223 Standards for maintenance of records subject to the Act.
(a) Content of records. Records subject to the Act shall contain
only such information about an individual as is relevant and necessary
to accomplish a purpose of the agency required to be accomplished by
statute or Executive Order of the President.
(b) Standards of accuracy. Records subject to the Act which are used
in making any determination about any individual shall be maintained
with such accuracy, relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to the individual in making the
determination.
(c) Collection of information. (1) Information which may be used in
making determinations about an individual's rights, benefits, and
privileges under Federal programs shall, to the greatest extent
practicable, be collected directly from that individual.
(2) In deciding whether collection of information from an
individual, as opposed to a third party source, is practicable, the
following factors, among others, may be considered:
(i) Whether the nature of the information sought is such that it can
only be obtained from a third party;
(ii) Whether the cost of collecting the information from the
individual is unreasonable when compared with the cost of collecting it
from a third party;
(iii) Whether there is a risk that information collected from third
parties, if inaccurate, could result in an adverse determination to the
individual concerned;
(iv) Whether the information, if supplied by the individual, would
have to be verified by a third party; or
(v) Whether provisions can be made for verification, by the
individual, of information collected from third parties.
(d) Advice to individuals concerning uses of information. (1) Each
individual who is asked to supply information about him or herself which
will be added to a system of records shall be informed of the basis for
requesting the information, how it may be used, and what the
consequences, if any, are of not supplying the information.
(2) At a minimum, the notice to the individual must state:
(i) The authority (whether granted by statute or Executive Order of
the President) which authorizes the solicitation of the information and
whether disclosure of such information is mandatory or voluntary;
[[Page 37]]
(ii) The principal purpose or purposes for which the information is
intended to be used;
(iii) The routine uses which may be made of the information; and
(iv) The effects on the individual, if any, of not providing all or
any part of the requested information.
(3)(i) When information is collected on a standard form, the notice
to the individual shall be provided on the form, on a tear-off sheet
attached to the form, or on a separate sheet, whichever is most
practical.
(ii) When information is collected by an interviewer, the
interviewer shall provide the individual with a written notice which the
individual may retain. If the interview is conducted by telephone,
however, the interviewer may summarize the notice for the individual and
need not provide a copy to the individual unless the individual requests
a copy.
(iii) An individual may be asked to acknowledge, in writing, that
the notice required by this section has been provided.
(e) Records concerning activity protected by the First Amendment. No
record may be maintained describing how any individual exercises rights
guaranteed by the First Amendment to the Constitution unless the
maintenance of the record is (1) expressly authorized by statute or by
the individual about whom the record is maintained or (2) pertinent to
and within the scope of an authorized law enforcement activity.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56583, Dec. 22, 1983]
Sec.2.224 [Reserved]
Sec.2.225 Federal Register notices describing systems of records.
(a) The Privacy Act requires publication of a notice in the Federal
Register describing each system of records subject to the Act. Such
notice will be published prior to the establishment or a revision of the
system of records. 5 U.S.C. 552a(e)(4).
(b) Each bureau shall notify the Departmental Privacy Act Officer
promptly of any modifications or amendments which are required in the
then-current notice describing a system of records for which it is
responsible.
(c) A bureau desiring to establish a new system of records or a new
use for an existing system of records shall notify the Departmental
Privacy Act Officer, no fewer than ninety (90) calendar days in advance.
[48 FR 56583, Dec. 22, 1983]
Sec.2.226 Assuring integrity of records.
(a) Statutory requirement. The Privacy Act requires that records
subject to the Act be maintained with appropriate administrative,
technical and physical safeguards to insure the security and
confidentiality of records and to protect against any anticipated
threats or hazards to their security or integrity which could result in
substantial harm, embarrassment, inconvenience, or unfairness to any
individual on whom information is maintained, 5 U.S.C. 552a(e)(10).
(b) Records maintained in manual form. When maintained in manual
form, records subject to the Privacy Act shall be maintained in a manner
commensurate with the sensitivity of the information contained in the
system of records. The following minimum safeguards, or safeguards
affording comparable protection, are applicable to Privacy Act systems
of records containing sensitive information:
(1) Areas in which the records are maintained or regularly used
shall be posted with an appropriate warning stating that access to the
records is limited to authorized persons. The warning also shall
summarize the requirements of Sec.2.52 and state that the Privacy Act
contains a criminal penalty for the unauthorized disclosure of records
to which it applies.
(2) During working hours, (i) the area in which the records are
maintained or regularly used shall be occupied by authorized personnel
or (ii) access to the records shall be restricted by their storage in
locked metal file cabinets or a locked room.
(3) During non-working hours, access to the records shall be
restricted by their storage in locked metal file cabinets or a locked
room.
(4) Where a locked room is the method of security provided for a
system, the bureau responsible for the system
[[Page 38]]
shall supplement that security by (i) providing lockable file cabinets
or containers for the records or (ii) changing the lock or locks for the
room so that they may not be opened with a master key. For the purposes
of this paragraph, a master key is a key which may be used to open rooms
other than the room containing records subject to the Privacy Act,
unless those rooms are utilized by officials or employees authorized to
have access to the records subject to the Privacy Act.
(c) Records maintained in computerized form. When maintained in
computerized form, records subject to the Privacy Act shall be
maintained, at a minimum, subject to safeguards based on those
recommended in the National Bureau of Standard's booklet ``Computer
Security Guidelines for Implementing the Privacy Act of 1974'' (May 30,
1975), and any supplements thereto, which are adequate and appropriate
to assuring the integrity of records in the system.
(d) Office of Personnel Management personnel records. A system of
records made up of Office of Personnel Management personnel records
shall be maintained under the security requirements set out in 5 CFR
293.106 and 293.107.
(e) Bureau responsibility. (1) The bureau responsible for a system
of records shall be responsible for assuring that specific procedures
are developed to assure that the records in the system are maintained
with security meeting the requirements of the Act and this section.
(2) These procedures shall be in writing and shall be posted or
otherwise periodically brought to the attention of employees working
with the records contained in the system.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56583, Dec. 22, 1983]
Sec.2.227 Conduct of employees.
(a) Handling of records subject to the Act. Employees whose duties
require handling of records subject to the Privacy Act shall, at all
times, take care to protect the integrity, security and confidentiality
of these records.
(b) Disclosure of records. No employee of the Department may
disclose records subject to the Privacy Act unless disclosure is
permitted 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.2.228 Government contracts.
(a) Required contract provisions. When a contract provides for the
operation by or on behalf of the Department of a system of records to
accomplish a Department function, the contract shall, consistent with
the Department's authority, cause the requirements of 5 U.S.C. 552a and
the regulations contained in this subpart to be applied to such system.
(b) System manager. The head of the bureau responsible for the
contract shall designate a regular employee of the bureau to be the
manager for a system of records operated by a contractor.
Sec. Sec.2.229-2.230 [Reserved]
Sec.2.231 Disclosure of records.
(a) Prohibition of disclosure. No record contained in a system of
records may be disclosed by any means of communication to any person, or
to another agency, except pursuant to a written request by, or with the
prior written consent of, the individual to whom the record pertains.
(b) General exceptions. The prohibition contained in paragraph (a)
does not apply where disclosure of the record would be:
[[Page 39]]
(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.2.232 Accounting for disclosures.
(a) Maintenance of an accounting. (1) Where a record is disclosed to
any person, or to another agency, under any of the specific exceptions
provided by Sec.2.56 (c), an accounting shall be made.
(2) The accounting shall record (i) the date, nature, and purpose of
each disclosure of a record to any person or to another agency and (ii)
the name and address of the person or agency to whom the disclosure was
made.
(3) Accountings prepared under this section shall be maintained for
at least five years or the life of the record, whichever is longer,
after the disclosure for which the accounting is made.
(b) Access to accountings. (1) Except for accountings of disclosures
made under Sec.2.56(c)(5), accountings of all disclosures of a record
shall be made available to the individual to whom the record relates at
the individual's request.
[[Page 40]]
(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.2.233-2.234 [Reserved]
Sec.2.235 Request for notification of existence of records: Submission.
(a) Submission of requests. (1)(i) Individuals desiring to determine
under the Privacy Act whether a system of records contains records
pertaining to them shall address inquiries to the system manager having
responsibility for the system unless the system notice describing the
system prescribes or permits submission to some other official or
officials.
(ii) If a system notice describing a system requires individuals to
contact more than two officials concerning the existence of records in
the system, individuals desiring to determine whether the system
contains records pertaining to them may contact the system manager for
assistance in determining which official is most likely to be in
possession of records pertaining to those individuals.
(2) Individuals desiring to determine whether records pertaining to
them are maintained in two or more systems shall make a separate inquiry
concerning each system.
(b) Form of request. (1) An inquiry to determine whether a system of
records contains records pertaining to an individual shall be in
writing.
(2) To insure expeditious handling, the request shall be prominently
marked, both on the envelope and on the face of the request, with the
legend ``PRIVACY ACT INQUIRY.''
(3) The request shall state that the individual is seeking
information concerning records pertaining to him or herself and shall
supply such additional identifying information, if any, as is called for
in the system notice describing the system.
(4) Individuals who have reason to believe that information
pertaining to them may be filed under a name other than the name they
are currently using (e.g., maiden name), shall include such information
in the request.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983]
Sec.2.236 Requests for notification of existence of records:
Action on.
(a) Decisions on request. (1) Individuals inquiring to determine
whether a system of records contains records pertaining to them shall be
promptly advised whether the system contains records pertaining to them
unless (i) the records were compiled in reasonable anticipation of a
civil action or proceeding or (ii) the system of records is one which
has been excepted from the notification provisions of the Privacy Act by
rulemaking (Sec.2.79).
(2) If the records were compiled in reasonable anticipation of a
civil action or proceeding or the system of records is one which has
been excepted from the notification provisions of the Privacy Act by
rulemaking, the individuals will be promptly notified that they are not
entitled to notification of whether the system contains records
pertaining to them.
(b) Authority to deny requests. A decision to deny a request for
notification of the existence of records shall be made by the system
manager responsible for the system of records concerning which inquiry
has been made and shall be concurred in by the bureau Privacy Act
officer for the bureau which maintains the system, provided, however
that the head of a bureau may, in writing, require (1) that the decision
be made by the bureau Privacy Act officer and/or (2) that the bureau
head's own concurrence in the decision be obtained.
(c) Form of decision. (1) No particular form is required for a
decision informing individuals whether a system of records contains
records pertaining to them.
(2) A decision declining to inform an individual whether or not a
system of records contains records pertaining to
[[Page 41]]
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.2.237 Requests for access to records.
The Privacy Act permits individuals, upon request, to gain access to
their records or to any information pertaining to them which is
contained in a system and to review the records and have a copy made of
all or any portion thereof in a form comprehensive to them. 5 U.S.C.
552a(d)(1). A request for access shall be submitted in accordance with
the procedures in this subpart.
[48 FR 56584, Dec. 22, 1983]
Sec.2.238 Requests for access to records: Submission.
(a) Submission of requests. (1)(i) Requests for access to records
shall be submitted to the system manager having responsibility for the
system in which the records are maintained unless the system notice
describing the system prescribes or permits submission to some other
official or officials.
(ii) If a system notice describing a system requires individuals to
contact more than two officials concerning access to records in the
system, individuals desiring to request access to records pertaining to
them may contact the system manager for assistance in determining which
official is most likely to be in custody of records pertaining to that
individual.
(2) Individuals desiring access to records maintained in two or more
separate systems shall submit a separate request for access to the
records in each system.
(b) Form of request. (1) A request for access to records subject to
the Privacy Act shall be in writing.
(2) To insure expeditious handling, the request shall be prominently
marked, both on the envelope and on the face of the request, with the
legend ``PRIVACY ACT REQUEST FOR ACCESS.''
(3) Requesters shall specify whether they seek all of the records
contained in the system which relate to them or only some portion
thereof. If only a portion of the records which relate to the individual
are sought, the request shall reasonably describe the specific record or
records sought.
(4) If the requester seeks to have copies of the requested records
made, the request shall state the maximum amount of copying fees which
the requester is willing to pay. A request which does not state the
amount of fees the requester is willing to pay will be treated as a
request to inspect the requested records. Requesters are further
notified that under 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
[[Page 42]]
called for in the system notice describing the system.
(6) Requests failing to meet the requirements of this paragraph
shall be returned to the requester with a written notice advising the
requester of the deficiency in the request.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983]
Sec.2.239 Requests for access to records: Initial decision.
(a) Decisions on requests. A request made under this subpart for
access to a record shall be granted promptly unless (1) the record was
compiled in reasonable anticipation of a civil action or proceeding or
(2) the record is contained in a system of records which has been
excepted from the access provisions of the Privacy Act by rulemaking
(Sec.2.79).
(b) Authority to deny requests. A decision to deny a request for
access under this subpart shall be made by the system manager
responsible for the system of records in which the requested record is
located and shall be concurred in by the bureau Privacy Act officer for
the bureau which maintains the system, provided, however, that the head
of a bureau may, in writing, require (1) that the decision be made by
the bureau Privacy Act officer and/or (2) that the bureau head's own
concurrence in the decision be obtained.
(c) Form of decision. (1) No particular form is required for a
decision granting access to a record. The decision shall, however,
advise the individual requesting the record as to where and when the
record is available for inspection or, as the case may be, where and
when copies will be available. If fees are due 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 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]
[[Page 43]]
Sec.2.240 Requests for notification of existence of records and
for access to records: Appeals.
(a) Right of appeal. Except for appeals pertaining to Office of
Personnel Management records, individuals who have been notified that
they are not entitled to notification of whether a system of records
contains records pertaining to them or have been denied access, in whole
or part, to a requested record may appeal to the Assistant Secretary--
Policy, Budget and Administration.
(b) Time for appeal. (1) An appeal must be received by the Privacy
Act Officer no later than twenty (20) working days after the date of the
initial decision on a request.
(2) The Assistant Secretary--Policy, Budget and Administration may,
for good cause shown, extend the time for submission of an appeal if a
written request for additional time is received within twenty (20)
working days of the date of the initial decision on the request.
(c) Form of appeal. (1) An appeal shall be in writing and shall
attach copies of the initial request and the decision on the request.
(2) The appeal shall contain a brief statement of the reasons why
the appellant believes the decision on the initial request to have been
in error.
(3) The appeal shall be addressed to Privacy Act Officer, Office of
the Assistant Secretary--Policy, Budget and Administration, U.S.
Department of the Interior, Washington, DC 20240.
(d) Action on appeals. (1) Appeals from decisions on initial
requests made pursuant to Sec. Sec.2.61 and 2.63 shall be decided for
the Department by the Assistant Secretary--Policy, Budget and
Administration or an official designated by the Assistant Secretary
after consultation with the Solicitor.
(2) The decision on an appeal shall be in writing and shall state
the basis for the decision.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983;
53 FR 3749, Feb. 9, 1988]
Sec.2.241 Requests for access to records: Special situations.
(a) Medical records. (1) Medical records shall be disclosed to the
individual to whom they pertain unless it is determined, in consultation
with a medical doctor, that disclosure should be made to a medical
doctor of the individual's choosing.
(2) If it is determined that disclosure of medical records directly
to the individual to whom they pertain could have an adverse effect on
that individual, the individual may designate a medical doctor to
receive the records and the records will be disclosed to that doctor.
(b) Inspection in presence of third party. (1) Individuals wishing
to inspect records pertaining to them which have been opened for their
inspection may, during the inspection, be accompanied by a person of
their own choosing.
(2) When such a procedure is deemed appropriate, individuals to whom
the records pertain may be required to furnish a written statement
authorizing discussion of their records in the accompanying person's
presence.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983]
Sec. Sec.2.242-2.244 [Reserved]
Sec.2.245 Amendment of records.
The Privacy Act permits individuals to request amendment of records
pertaining to them if they believe the records are not accurate,
relevant, timely or complete. 5 U.S.C. 552a(d)(2). A request for
amendment of a record shall be submitted in accordance with the
procedures in this subpart.
[48 FR 56585, Dec. 22, 1983]
Sec.2.246 Petitions for amendment: Submission and form.
(a) Submission of petitions for amendment. (1) A request for
amendment of a record shall be submitted to the system manager for the
system of records containing the record unless the system notice
describing the system prescribes or permits submission to a different
official or officials. If an individual wishes to request amendment of
records located in more than one system, a separate petition must be
submitted to each system manager.
(2) A petition for amendment of a record may be submitted only if
the individual submitting the petition has previously requested and been
granted
[[Page 44]]
access to the record and has inspected or been given a copy of the
record.
(b) Form of petition. (1) A petition for amendment shall be in
writing and shall specifically identify the record for which amendment
is sought.
(2) The petition shall state, in detail, the reasons why the
petitioner believes the record, or the objectionable portion thereof, is
not accurate, relevant, timely or complete. Copies of documents or
evidence relied upon in support of these reasons shall be submitted with
the petition.
(3) The petition shall state, specifically and in detail, the
changes sought in the record. If the changes involve rewriting the
record or portions thereof or involve adding new language to the record,
the petition shall propose specific language to implement the changes.
[48 FR 56585, Dec. 22, 1983]
Sec.2.247 Petitions for amendment: Processing and initial decision.
(a) Decisions on petitions. In reviewing a record in response to a
petition for amendment, the accuracy, relevance, timeliness and
completeness of the record shall be assessed against the criteria set
out 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.
(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,
[[Page 45]]
in whole or part, the bureau maintaining the record shall:
(1) Correct the record accordingly and,
(2) Where an accounting of disclosures has been made pursuant to
Sec.2.57, advise all previous recipients of the record that the
correction was made and the substance of the correction.
[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983;
53 FR 3750, Feb. 9, 1988]
Sec.2.248 Petitions for amendments: Time limits for processing.
(a) Acknowledgement of receipt. The acknowledgement of receipt of a
petition required 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.2.249 Petitions for amendment: Appeals.
(a) Right of appeal. Except for appeals pertaining to Office of
Personnel Management records, where a petition for amendment has been
rejected in whole or in part, the individual submitting the petition may
appeal the denial to the Assistant Secretary--Policy, Budget and
Administration.
(b) Time for appeal. (1) An appeal must be received no later than
twenty (20) working days after the date of the decision on a petition.
(2) The Assistant Secretary--Policy, Budget and Administration may,
for good cause shown, extend the time for submission of an appeal if a
written request for additional time is received within twenty (20)
working days of the date of the decision on a petition.
(c) Form of appeal. (1) An appeal shall be in writing and shall
attach copies of the initial petition and the decision on that petition.
(2) The appeal shall contain a brief statement of the reasons why
the appellant believes the decision on the petition to have been in
error.
(3) The appeal shall be addressed to Privacy Act Officer, Office of
the Assistant Secretary--Policy, Budget and Administration, U.S.
Department of the Interior, Washington, DC 20240.
[40 FR 44505, Sept. 26, 1975, as amended at 47 FR 38328, Aug. 31, 1982;
53 FR 3750, Feb. 9, 1988]
Sec.2.250 Petitions for amendment: Action on appeals.
(a) Authority. Appeals from decisions on initial petitions for
amendment
[[Page 46]]
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.2.251 [Reserved]
Sec.2.252 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 amendments may also be provided to the
recipient.
(c) Maintenance of statements. System managers shall develop
procedures to assure that statements of disagreement filed with them
shall be maintained in such a way as to assure dissemination of the
statements to recipients of the records to which the statements pertain.
[48 FR 56586, Dec. 22, 1983]
Sec.2.253 [Reserved]
Sec.2.254 Exemptions.
(a) Criminal law enforcement records exempt under 5 U.S.C.
552a(j)(2). Pursuant to 5 U.S.C. 552a(j)(2) the following systems of
records are exempted from all of the provisions of 5 U.S.C. 552a and the
regulations in this subpart except paragraphs (b), (c)(1) and (2),
(e)(4)(A) through (F), (e)(6), (7), (9), (10), (11) and (12), and (i) of
5 U.S.C. 552a and the portions of the regulations in this
[[Page 47]]
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.
(5) Incident Management, Analysis and Reporting System, DOI-10.
(6) Insider Threat Program, DOI-50.
(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 are
exempted from paragraphs (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I),
and (f) of 5 U.S.C. 552a and the provisions of the regulations in this
subpart implementing these paragraphs:
(1) 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.
(14) Debarment and Suspension Program, DOI-11.
(15) Incident Management, Analysis and Reporting System, DOI-10.
(16) Insider Threat Program, DOI-50.
(17) Indian Arts and Crafts Board, DOI-24.
(18) Investigations Case Management System (CMS), BSEE-01.
(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.
(4) Debarment and Suspension Program, DOI-11.
(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; 79 FR 49014, Aug. 19, 2014; 79
FR 51917, Sept. 2, 2014; 79 FR 68800, Nov. 19, 2014; 80 FR 45894, Aug.
3, 2015; 85 FR 1284, Jan. 10, 2020]
Subpart L_Legal Process: Testimony by Employees and Production of
Records
Source: 65 FR 46369, July 28, 2000, unless otherwise noted.
Redesignated at 67 FR 64530, Oct. 21, 2002. Redesignated at 77 FR 76902,
Dec. 31, 2012; 78 FR 6216, Jan. 30, 2013.
General Information
Sec.2.280 What does this subpart cover?
(a) This subpart describes how the Department of the Interior
(including all its bureaus and offices) responds to requests or
subpoenas for:
(1) Testimony by employees in State, territorial or Tribal judicial,
legislative or administrative proceedings concerning information
acquired while performing official duties or because of an employee's
official status;
(2) Testimony by employees in Federal court civil proceedings in
which the United States is not a party concerning information acquired
while performing official duties or because of an employee's official
status;
(3) Testimony by employees in any judicial or administrative
proceeding in which the United States, while not a party, has a direct
and substantial interest;
(4) Official records or certification of such records for use in
Federal, State,
[[Page 48]]
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.2.281 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.2.282 How can I obtain employee testimony or Department records?
(a) To obtain employee testimony, you must submit:
(1) A written request (hereafter a ``Touhy Request;'' see 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.
(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
[[Page 49]]
obtain it from the employee's bureau or office.
Sec.2.283 If I serve a subpoena duces tecum, must I also submit
a Touhy request?
Yes. If you serve a subpoena for employee testimony, you also must
submit a request under United States ex rel. Touhy v. Regan, 340 U.S.
462 (1951)? If you serve a subpoena duces tecum for records in the
possession of the Department, you also must submit a Touhy Request.
Sec.2.284 What information must I put in my Touhy Request?
Your Touhy Request must:
(a) Identify the employee or record;
(b) Describe the relevance of the desired testimony or records to
your proceeding and provide a copy of the pleadings underlying your
request;
(c) Identify the parties to your proceeding and any known
relationships they have to the Department's mission or programs;
(d) Show that the desired testimony or records are not reasonably
available from any other source;
(e) Show that no record could be provided and used in lieu of
employee testimony;
(f) Provide the substance of the testimony expected of the employee;
and
(g) Explain why you believe your Touhy Request complies with Sec.
2.88.
Sec.2.285 How much will I be charged?
We will charge you the costs, including travel expenses, for
employees to testify under the relevant substantive and procedural laws
and regulations. You must pay costs for record production under 43 CFR
part 2, appendix A. Costs must be paid by check or money order payable
to the Department of the Interior.
Sec.2.286 Can I get an authenticated copy of a Department record?
Yes. We may provide an authenticated copy of a Department record,
for purposes of admissibility under Federal, State or Tribal law. We
will do this only if the record has been officially released or would
otherwise be released under Sec.2.13 or this subpart.
Responsibility of the Department
Sec.2.287 How will the Department process my Touhy Request?
(a) The appropriate Department official will decide whether to grant
or deny your Touhy Request. Our Solicitor's Office or, in the case of
the Office of Inspector General, its General Counsel, may negotiate with
you or your attorney to refine or limit both the timing and content of
your Touhy Request. 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.2.288 What criteria will the Department consider in responding
to my Touhy Request?
In deciding whether to grant your Touhy Request, the appropriate
Department official will consider:
(a) Your ability to obtain the testimony or records from another
source;
(b) The appropriateness of the employee testimony and record
production under the relevant regulations of procedure and substantive
law, including the FOIA or the Privacy Act; and
(c) Our ability to:
(1) Conduct our official business unimpeded;
(2) Maintain impartiality in conducting our business;
(3) Minimize the possibility that we will become involved in issues
that are not related to our mission or programs;
(4) Avoid spending public employee's time for private purposes;
(5) Avoid the negative cumulative effect of granting similar
requests;
(6) Ensure that privileged or protected matters remain confidential;
and
[[Page 50]]
(7) Avoid undue burden on us.
Responsibilities of Employees
Sec.2.289 What must I, as an employee, do upon receiving a request?
(a) If you receive a request or subpoena that does not include a
Touhy Request, you must immediately notify your supervisor and the
Solicitor's Office, or the General Counsel of the Office of the
Inspector General, as applicable, for assistance in issuing the proper
response.
(b) If you receive a Touhy Request, you must promptly notify your
supervisor and forward the request to the head of your bureau, division
or office. After consulting with the Solicitor's Office or, in the case
of the Office of Inspector General, its General Counsel, the official in
charge will decide whether to grant the Touhy Request 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.2.290 Must I get approval before testifying as an expert witness
on a subject outside the scope of my official duties?
(a) You must comply with 5 CFR 2635.805(c), which details the
authorization procedure for an employee to testify as an expert witness,
not on behalf of the United States, in any judicial or administrative
proceeding in which the United States is a party or has a direct and
substantial interest. This procedure means:
(1) You must obtain the written approval of your Deputy Ethics
Official;
(2) You must be in an approved leave status if you testify during
duty hours; and
(3) You must state for the record that you are appearing as a
private individual and that your testimony does not represent the
official views of the Department.
(b) If you testify as an expert witness on a matter outside the
scope of your official duties, and which is not covered by paragraph (a)
of this section, you must comply with 5 CFR 2635.802 and 5 CFR 3501.105.
Appendix A to Part 2--Fee Schedule
------------------------------------------------------------------------
Types of Records Fee
------------------------------------------------------------------------
(1) Physical records:
Pages no larger than 8.5 x 14 inches, when $.15 per page ($.30 for
reproduced by standard office copying double-sided copying).
machines or scanned into an electronic
format
Color copies of pages no larger than 8.5 x $.90 per page.
11 inches.
Pages larger than 8.5 x 14 inches.......... Direct cost to DOI.
Color copies of pages no larger than 11 x $1.50 per page.
17 inches.
Photographs and records requiring special Direct cost to DOI.
handling (for example, because of age,
size, or format).
(2) Electronic records:
Charges for services related to processing Direct cost to DOI.
requests for electronic records.
(3) Certification Fee.
Each certificate of verification attached $.25
to authenticate copies of records.
(4) Postage:
Charges that exceed the cost of first class Postage or delivery charge.
postage, such as express mail or overnight
delivery.
(5) Other Services:
[[Page 51]]
Cost of special services or materials, Direct cost to DOI.
other than those provided for by this fee
schedule, when requester is notified of
such costs in advance and agrees to pay
them.
------------------------------------------------------------------------
[77 FR 76914, Dec. 31, 2012]
Sec. Appendix B to Part 2--Mineral Leasing Act and Mineral Leasing Act
for Acquired Lands--Special Rules
(a) Definitions. As used in the section:
(1) Exploration license means a license issued by the Secretary of
the Interior to conduct coal exploration operations on land subject to
the Mineral Leasing Act, under 30 U.S.C. 201(b), or subject to the
Mineral Leasing Act for Acquired Lands, under 30 U.S.C. 351-360.
(2) Fair-market value of coal to be leased means the minimum amount
of a bid the Secretary is willing to accept in leasing coal within
leasing tracts offered in general lease sales or reserved and offered
for lease to public bodies, including Federal agencies, rural electric
cooperatives, or non-profit corporations controlled by any of such
entities, under 30 U.S.C. 201(a)(1) or 30 U.S.C. 351-360.
(3) Information means data, statistics, samples and other facts,
whether analyzed or processed or not, pertaining to Federal coal
resources.
(b) Applicability. This Appendix applies to the following categories
of information:
(1) Category A. Information provided to or obtained by a bureau
under 30 U.S.C. 201(b)(3) (and corresponding information under 30 U.S.C.
351-360) from the holder of an exploration license;
(2) Category B. Information acquired from commercial or other
sources under service contract with United States Geological Survey
(USGS) under 30 U.S.C. 208-1(b) (and corresponding information under 30
U.S.C. 351-360), and information developed by USGS under an exploratory
program authorized by 30 U.S.C. 208-1 (and corresponding information
under 30 U.S.C. 351-360);
(3) Category C. Information obtained from commercial sources which
the commercial source acquired while not under contract with the United
States Government;
(4) Category D. Information provided to the Secretary by a Federal
department or agency under 30 U.S.C. 208-1(e) (and corresponding
information under 30 U.S.C. 351-360); and
(5) Category E. The fair-market value of coal to be leased and
comments received by the Secretary with respect to such value.
(c) Availability of information. Information obtained by the
Department from various sources will be made available to the public as
follows:
(1) Category A--Information. Category A information must not be
disclosed to the public until after the areas to which the information
pertains have been leased by the Department, or until the Secretary
determines that release of the information to the public would not
damage the competitive position of the holder of the exploration
license, whichever comes first.
(2) Category B--Information. Category B information must not be
withheld from the public; it will be made available by means of and at
the time of open filing or publication by USGS.
(3) Category C--Information. To the extent Category C information is
proprietary, such information must not be made available to the public
until after the areas to which the information pertains have been leased
by the Department.
(4) Category D--Information. To the extent Category D information is
proprietary, the Department will withhold the information from the
public for the length of time the department or agency providing the
information agreed to when it obtained the information.
(5) Category E--Information. Category E information must not be made
public until the lands to which the information pertains have been
leased, or until the Secretary has determined that its release prior to
the issuance of a lease is in the public interest.
[67 FR 64541, Oct. 21, 2002. Redesignated at 77 FR 76915, Dec. 31, 2012]
PART 3_PRESERVATION OF AMERICAN ANTIQUITIES--Table of Contents
Sec.
3.1 Jurisdiction.
3.2 Limitation on permits granted.
3.3 Permits; to whom granted.
3.4 No exclusive permits granted.
3.5 Application.
3.6 Time limit of permits granted.
3.7 Permit to become void.
3.8 Applications referred for recommendation.
3.9 Form and reference of permit.
3.10 Reports.
3.11 Restoration of lands.
3.12 Termination.
3.13 Report of field officer.
3.14 Examinations by field officer.
3.15 Persons who may apprehend or cause to be arrested.
[[Page 52]]
3.16 Seizure.
3.17 Preservation of collection.
Authority: Secs. 3, 4, 34 Stat. 225, as amended; 16 U.S.C. 432.
Source: 19 FR 8838, Dec. 23, 1954, unless otherwise noted.
Sec.3.1 Jurisdiction.
Jurisdiction over ruins, archeological sites, historic and
prehistoric monuments and structures, objects of antiquity, historic
landmarks, and other objects of historic and scientific interest, shall
be exercised under the act by the respective Departments as follows:
(a) By the Secretary of Agriculture over lands within the exterior
limits of forest reserves;
(b) By the Secretary of the Army over lands within the exterior
limits of military reservations;
(c) By the Secretary of the Interior over all other lands owned or
controlled by the Government of the United States, Provided, The
Secretaries of the Army and Agriculture may by agreement cooperate with
the Secretary of the Interior in the supervision of such monuments and
objects covered by the Act of June 8, 1906 (34 Stat. 225; 16 U.S.C. 431-
433), as may be located on lands near or adjacent to forest reserves and
military reservations, respectively.
Sec.3.2 Limitation on permits granted.
No permit for the removal of any ancient monument or structure which
can be permanently preserved under the control of the United States in
situ, and remain an object of interest, shall be granted.
Sec.3.3 Permits; to whom granted.
Permits for the examination of ruins, the excavation of
archeological sites, and the gathering of objects of antiquity will be
granted, by the respective Secretaries having jurisdiction, to reputable
museums, universities, colleges, or other recognized scientific or
educational institutions, or to their duly authorized agents.
Sec.3.4 No exclusive permits granted.
No exclusive permits shall be granted for a larger area than the
applicant can reasonably be expected to explore fully and systematically
within the time limit named in the permit.
Sec.3.5 Application.
Each application for a permit should be filed with the Secretary
having jurisdiction, and must be accompanied by a definite outline of
the proposed work, indicating the name of the institution making the
request, the date proposed for beginning the field work, the length of
time proposed to be devoted to it, and the person who will have
immediate charge of the work. The application must also contain an exact
statement of the character of the work, whether examination, excavation,
or gathering, and the public museum in which the collections made under
the permit are to be permanently preserved. The application must be
accompanied by a sketch plan or description of the particular site or
area to be examined, excavated, or searched, so definite that it can be
located on the map with reasonable accuracy.
Sec.3.6 Time limit of permits granted.
No permit will be granted for a period of more than 3 years, but if
the work has been diligently prosecuted under the permit, the time may
be extended for proper cause upon application.
Sec.3.7 Permit to become void.
Failure to begin work under a permit within 6 months after it is
granted, or failure to diligently prosecute such work after it has been
begun, shall make the permit void without any order or proceeding by the
Secretary having jurisdiction.
Sec.3.8 Applications referred for recommendation.
Applications for permits shall be referred to the Smithsonian
Institution for recommendation.
Sec.3.9 Form and reference of permit.
Every permit shall be in writing and copies shall be transmitted to
the Smithsonian Institution and the field officer in charge of the land
involved. The permitee will be furnished with a copy of the regulations
in this part.
[[Page 53]]
Sec.3.10 Reports.
At the close of each season's field work the permitee shall report
in duplicate to the Smithsonian Institution, in such form as its
secretary may prescribe, and shall prepare in duplicate a catalogue of
the collections and of the photographs made during the season,
indicating therein such material, if any, as may be available for
exchange.
Sec.3.11 Restoration of lands.
Institutions and persons receiving permits for excavation shall,
after the completion of the work, restore the lands upon which they have
worked to their customary condition, to the satisfaction of the field
officer in charge.
Sec.3.12 Termination.
All permits shall be terminable at the discretion of the Secretary
having jurisdiction.
Sec.3.13 Report of field officer.
The field officer in charge of land owned or controlled by the
Government of the United States shall, from time to time, inquire and
report as to the existence, on or near such lands, of ruins and
archaeological sites, historic or prehistoric ruins or monuments,
objects of antiquity, historic landmarks, historic and prehistoric
structures, and other objects of historic or scientific interest.
Sec.3.14 Examinations by field officer.
The field officer in charge may at all times examine the permit of
any person or institution claiming privileges granted in accordance with
the act and this part, and may fully examine all work done under such
permit.
Sec.3.15 Persons who may apprehend or cause to be arrested.
All persons duly authorized by the Secretaries of Agriculture, Army
and Interior may apprehend or cause to be arrested, as provided in the
Act of February 6, 1905 (33 Stat. 700) any person or persons who
appropriate, excavate, injure, or destroy any historic or prehistoric
ruin or monument, or any object of antiquity on lands under the
supervision of the Secretaries of Agriculture, Army, and Interior,
respectively.
Sec.3.16 Seizure.
Any object of antiquity taken, or collection made, on lands owned or
controlled by the United States, without a permit, as prescribed by the
act and this part, or there taken or made, contrary to the terms of the
permit, or contrary to the act and this part, may be seized wherever
found and at any time, by the proper field officer or by any person duly
authorized by the Secretary having jurisdiction, and disposed of as the
Secretary shall determine, by deposit in the proper national depository
or otherwise.
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.
[[Page 54]]
4.23 Transcript of hearings.
4.24 Basis of decision.
4.25 Oral argument.
4.26 Subpoena power and witness provisions generally.
4.27 Standards of conduct.
4.28 Interlocutory appeals.
4.29 Remands from courts.
4.30 Information required by forms.
4.31 Request for limiting disclosure of confidential information.
Subpart C [Reserved]
Subpart D_Rules Applicable in Indian Affairs Hearings and Appeals
Scope of Subpart; Definitions
4.200 How to use this subpart.
4.201 Definitions.
4.202-4.308 [Reserved]
General Rules Applicable to Proceedings on Appeal Before the Interior
Board of Indian Appeals
4.310 Documents.
4.311 Briefs on appeal.
4.312 Board decisions.
4.313 Amicus Curiae; intervention; joinder motions.
4.314 Exhaustion of administrative remedies.
4.315 Reconsideration of a Board decision.
4.316 Remands from courts.
4.317 Standards of conduct.
4.318 Scope of review.
Appeals to the Board of Indian Appeals in Probate Matters
4.320 Who may appeal a judge's decision or order?
4.321 How do I appeal a judge's decision or order?
4.322 What must an appeal contain?
4.323 Who receives service of the notice of appeal?
4.324 How is the record on appeal prepared?
4.325 How will the appeal be docketed?
4.326 What happens to the record after disposition?
Appeals to the Board of Indian Appeals From Administrative Actions of
Officials of the Bureau of Indian Affairs: Administrative Review in
Other Indian Matters Not Relating to Probate Proceedings
4.330 Scope.
4.331 Who may appeal.
4.332 Appeal to the Board; how taken; mandatory time for filing;
preparation assistance; requirement for bond.
4.333 Service of notice of appeal.
4.334 Extensions of time.
4.335 Preparation and transmittal of record by official of the Bureau of
Indian Affairs.
4.336 Docketing.
4.337 Action by the Board.
4.338 Submission by administrative law judge of proposed findings,
conclusions and recommended decision.
4.339 Exceptions or comments regarding recommended decision by
administrative law judge.
4.340 Disposition of the record.
White Earth Reservation Land Settlement Act of 1985; Authority of
Administrative Judges; Determinations of the Heirs of Persons Who Died
Entitled to Compensation
4.350 Authority and scope.
4.351 Commencement of the determination process.
4.352 Determination of administrative judge and notice thereof.
4.353 Record.
4.354 Reconsideration or rehearing.
4.355 Omitted compensation.
4.356 Appeals.
4.357 Guardians for minors and incompetents.
Subpart E_Special Rules Applicable to Public Land Hearings and Appeals
Appeals Procedures
Appeals Procedures; General
4.400 Definitions.
4.401 Documents.
4.402 Summary dismissal.
4.403 Finality of decision; reconsideration.
4.404 Consolidation.
4.405 Extensions of time.
4.406 Intervention; amicus curiae.
4.407 Motions.
Appeals to the Board of Land Appeals
4.410 Who may appeal.
4.411 Appeal; how taken, mandatory time limit.
4.412 Statement of reasons; statement of standing; reply briefs.
4.413 Service of notice of appeal.
4.414 Answers.
Actions by Board of Land Appeals
4.415 Motion for a hearing on an appeal involving questions of fact.
4.416 Appeals of wildfire management decisions.
Hearings Procedures
Hearings Procedures; General
4.420 Applicability of general rules.
4.421 Definitions.
4.422 Documents.
[[Page 55]]
4.423 Subpoena power and witness provisions.
Hearings on Appeals Involving Questions of Fact
4.430 Prehearing conferences.
4.431 Fixing of place and date for hearing; notice.
4.432 Postponements.
4.433 Authority of the administrative law judge.
4.434 Conduct of hearing.
4.435 Evidence.
4.436 Reporter's fees.
4.437 Copies of transcript.
4.438 Action by administrative law judge.
Contest and Protest Proceedings
4.450 Private contests and protests.
4.450-1 By whom private contest may be initiated.
4.450-2 Protests.
4.450-3 Initiation of contest.
4.450-4 Complaints.
4.450-5 Service.
4.450-6 Answer to complaint.
4.450-7 Action by manager.
4.450-8 Amendment of answer.
4.451 Government contests.
4.451-1 How initiated.
4.451-2 Proceedings in Government contests.
4.452 Proceedings before the administrative law judge.
4.452-1 Prehearing conferences.
4.452-2 Notice of hearing.
4.452-3 Postponements.
4.452-4 Authority of administrative law judge.
4.452-5 Conduct of hearing.
4.452-6 Evidence.
4.452-7 Reporter's fees.
4.452-8 Findings and conclusions; decision by administrative law judge.
4.452-9 Appeal to Board.
Grazing Procedures (Inside and Outside Grazing Districts)
4.470 How to appeal a final BLM grazing decision to an administrative
law judge.
4.471 How to petition for a stay of a final BLM grazing decision.
4.472 Action on an appeal and petition for a stay.
4.473 Time and place of hearing; notice; intervenors.
4.474 Authority of administrative law judge.
4.475 Service.
4.476 Conduct of hearing; reporter's fees; transcript.
4.477 Findings and conclusions; decision by administrative law judge.
4.478 Appeals to the Board of Land Appeals; judicial review.
4.479 Effectiveness of decision during appeal.
4.480 Conditions of decision action.
Subpart F_Implementation of the Equal Access to Justice Act in Agency
Proceedings
General Provisions
4.601 What is the purpose of this subpart?
4.602 What definitions apply to this subpart?
4.603 What proceedings are covered by this subpart?
4.604 When am I eligible for an award?
4.605 Under what circumstances may I receive an award?
4.606 What fees and expenses may be allowed?
Information Required from Applicants
4.610 What information must my application for an award contain?
4.611 What information must I include in my net worth exhibit?
4.612 What documentation of fees and expenses must I provide?
4.613 When may I file an application for an award?
Procedures for Considering Applications
4.620 How must I file and serve documents?
4.621 When may the Department or other agency file an answer?
4.622 When may I file a reply?
4.623 When may other parties file comments?
4.624 When may further proceedings be held?
4.625 How will my application be decided?
4.626 How will my appeal from a decision be handled?
4.627 May I seek judicial review of a final decision?
4.628 How will I obtain payment of an award?
Subpart G_Special Rules Applicable to Other Appeals and Hearings
4.700 Who may appeal.
4.701 Notice of appeal.
4.702 Transmittal of appeal file.
4.703 Pleadings.
4.704 Decisions on appeals.
[[Page 56]]
Subpart H [Reserved]
Subpart I_Special Procedural Rules Applicable to Practice and Procedure
for Hearings, Decisions, and Administrative Review Under Part 17 of This
Title_Nondiscrimination in Federally Assisted Programs of the Department
of the Interior_Effectuation of Title VI of the Civil Rights Act of 1964
General
4.800 Scope and construction of rules.
4.801 Suspension of rules.
4.802 Definitions.
4.803 Computation of time.
4.804 Extensions of time.
4.805 Reduction of time to file documents.
Designation and Responsibilities of Administrative Law Judge
4.806 Designation.
4.807 Authority and responsibilities.
Appearance and Practice
4.808 Participation by a party.
4.809 Determination of parties.
4.810 Complainants not parties.
4.811 Determination and participation of amici.
Form and Filing of Documents
4.812 Form.
4.813 Filing and service.
4.814 Certificate of service.
Procedures
4.815 How proceedings are commenced.
4.816 Notice of hearing and response thereto.
4.817 Notice of opportunity to request a hearing and response thereto.
4.818 Answer.
4.819 Amendment of notice or answer.
4.820 Consolidated or joint hearings.
4.821 Motions.
4.822 Disposition of motions.
4.823 Interlocutory appeals.
4.824 Exhibits.
4.825 Admissions as to facts and documents.
4.826 Discovery.
4.827 Depositions.
4.828 Use of depositions at hearing.
4.829 Interrogatories to parties.
4.830 Production of documents and things and entry upon land for
inspection and other purposes.
4.831 Sanctions.
4.832 Consultation and advice.
Prehearing
4.833 Prehearing conferences.
Hearing
4.834 Purpose.
4.835 Evidence.
4.836 Official notice.
4.837 Testimony.
4.838 Objections.
4.839 Exceptions.
4.840 Offer of proof.
4.841 Official transcript.
Posthearing Procedures
4.842 Proposed findings of fact and conclusions of law.
4.843 Record for decision.
4.844 Notification of right to file exceptions.
4.845 Final review by Secretary.
Subpart J_Special Rules Applicable to Appeals Concerning Federal Oil and
Gas Royalties and Related Matters
4.901 What is the purpose of this subpart?
4.902 What appeals are subject to this subpart?
4.903 What definitions apply to this subpart?
4.904 When does my appeal commence and end?
4.905 What if a due date falls on a day the Department or relevant
office is not open for business?
4.906 What if the Department does not issue a decision by the date my
appeal ends?
4.907 What if an IBLA decision requires ONRR 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_Hearing Process Concerning Acknowledgment of American Indian
Tribes
General Provisions
4.1001 What terms are used in this subpart?
4.1002 What is the purpose of this subpart?
4.1003 Which general rules of procedure and practice apply?
4.1004 How are time periods computed?
Representatives
4.1010 Who may represent a party, and what requirements apply to a
representative?
Document Filing and Service
4.1011 What are the form and content requirements for documents under
this subpart?
4.1012 Where and how must documents be filed?
4.1013 How must documents be served?
[[Page 57]]
ALJ's Powers, Unavailability, Disqualification, and Communications
4.1014 What are the powers of the ALJ?
4.1015 What happens if the ALJ becomes unavailable?
4.1016 When can an ALJ be disqualified?
4.1017 Are ex parte communications allowed?
Motions
4.1018 What are the requirements for motions?
Prior Decisions
4.1019 How may a party submit prior Departmental final decisions?
Hearing Process
Docketing, Intervention, Prehearing Conferences, and Summary Decision
4.1020 What will DCHD do upon receiving the election of hearing from a
petitioner?
4.1021 What are the requirements for motions for intervention and
responses?
4.1022 How are prehearing conferences conducted?
4.1023 What are the requirements for motions for recommended summary
decision, responses, and issuance of a recommended summary
decision?
Information Disclosure
4.1030 What are the requirements for OFA's witness and exhibit list?
4.1031 Under what circumstances will the ALJ authorize a party to obtain
discovery of information?
4.1032 When must a party supplement or amend information?
4.1033 Under what circumstances will the ALJ authorize a party to depose
a witness to preserve testimony?
4.1034 What are the procedures for limiting disclosure of information
which is confidential or exempt by law from public disclosure?
4.1035 What are the requirements for subpoenas and witness fees?
Hearing, Briefing, and Recommended Decision
4.1040 When and where will the hearing be held?
4.1041 What are the parties' rights during the hearing?
4.1042 Who may testify?
4.1043 What are the methods for testifying?
4.1044 How may a party use a deposition in the hearing?
4.1045 What are the requirements for exhibits, official notice, and
stipulations?
4.1046 What evidence is admissible at the hearing?
4.1047 What are the requirements for transcription of the hearing?
4.1048 What is the standard of proof?
4.1049 When will the hearing record close?
4.1050 What are the requirements for post-hearing briefs?
4.1051 What are the requirements for the ALJ's recommended decision?
Subpart L_Special Rules Applicable to Surface Coal Mining Hearings and
Appeals
General Provisions
4.1100 Definitions.
4.1101 Jurisdiction of the Board.
4.1102 Construction.
4.1103 Eligibility to practice.
4.1104 General rules relating to procedure and practice.
4.1105 Parties.
4.1106 Hearing sites.
4.1107 Filing of documents.
4.1108 Form of documents.
4.1109 Service.
4.1110 Intervention.
4.1111 Voluntary dismissal.
4.1112 Motions.
4.1113 Consolidation of proceedings.
4.1114 Advancement of proceedings.
4.1115 Waiver of right to hearing.
4.1116 Status of notices of violation and orders of cessation pending
review by the Office of Hearings and Appeals.
4.1117 Reconsideration.
Evidentiary Hearings
4.1120 Presiding officers.
4.1121 Powers of administrative law judges.
4.1122 Conduct of administrative law judges.
4.1123 Notice of hearing.
4.1124 Certification of interlocutory ruling.
4.1125 Summary decision.
4.1126 Proposed findings of fact and conclusions of law.
4.1127 Initial orders and decisions.
4.1128 Effect of initial order or decision.
4.1129 Certification of record.
Discovery
4.1130 Discovery methods.
4.1131 Time for discovery.
4.1132 Scope of discovery.
4.1133 Sequence and timing of discovery.
4.1134 Supplementation of responses.
4.1135 Motion to compel discovery.
4.1136 Failure to comply with orders compelling discovery.
4.1137 Depositions upon oral examination or upon written questions.
4.1138 Use of depositions.
4.1139 Written interrogatories to parties.
4.1140 Production of documents and things and entry upon land for
inspection and other purposes.
4.1141 Admissions.
[[Page 58]]
Petitions for Review of Proposed Assessments of Civil Penalties
4.1150 Who may file.
4.1151 Time for filing.
4.1152 Contents of petition; payment required.
4.1153 Answer.
4.1154 Review of waiver determination.
4.1155 Burdens of proof in civil penalty proceedings.
4.1156 Summary disposition.
4.1157 Determination by administrative law judge.
4.1158 Appeals.
Review of Section 521 Notices of Violation and Orders of Cessation
4.1160 Scope.
4.1161 Who may file.
4.1162 Time for filing.
4.1163 Effect of failure to file.
4.1164 Contents of application.
4.1165 Answer.
4.1166 Contents of answer.
4.1167 Notice of hearing.
4.1168 Amendments to pleadings.
4.1169 Failure to state a claim.
4.1170 Related notices or orders.
4.1171 Burden of proof in review of section 521 notices or orders.
Expedited Review of Section 521(a)(2) or 521(a)(3) Orders of Cessation
4.1180 Purpose.
4.1181 Who may file.
4.1182 Where to file.
4.1183 Time for filing.
4.1184 Contents of application.
4.1185 Computation of time for decision.
4.1186 Waiver of the 30-day decision requirement.
4.1187 Procedure if 30-day decision requirement is not waived.
Proceedings for Suspension or Revocation of Permits Under Section
521(a)(4) of the Act
4.1190 Initiation of proceedings.
4.1191 Answer.
4.1192 Contents of answer.
4.1193 Notice of hearing.
4.1194 Burden of proof in suspension or revocation proceedings.
4.1195 Determination by the administrative law judge.
4.1196 Summary disposition.
4.1197 Appeals.
Applications for Review of Alleged Discriminatory Acts Under Section 703
of the Act
4.1200 Filing of the application for review with the Office of Hearings
and Appeals.
4.1201 Request for scheduling of a hearing.
4.1202 Response to request for the scheduling of a hearing.
4.1203 Application for temporary relief from alleged discriminatory
acts.
4.1204 Determination by administrative law judge.
4.1205 Appeals.
Applications for Temporary Relief
4.1260 Scope.
4.1261 When to file.
4.1262 Where to file.
4.1263 Contents of application.
4.1264 Response to application.
4.1265 Determination on application concerning a notice of violation
issued pursuant to section 521(a)(3) of the Act.
4.1266 Determination on application concerning an order of cessation.
4.1267 Appeals.
Appeals to the Board From Decisions or Orders of Administrative Law
Judges
4.1270 Petition for discretionary review of a proposed civil penalty.
4.1271 Notice of appeal.
4.1272 Interlocutory appeals.
4.1273 Briefs.
4.1274 Remand.
4.1275 Final decisions.
Appeals to the Board From Decisions of the Office of Surface Mining
4.1280 Scope.
4.1281 Who may appeal.
4.1282 Appeals; how taken.
4.1283 Service.
4.1284 Answer.
4.1285 Summary dismissal.
4.1286 Motion for a hearing on an appeal involving issues of fact.
Petitions for Award of Costs and Expenses Under Section 525(e) of the
Act
4.1287 Action by administrative law judge.
4.1290 Who may file.
4.1291 Where to file; time for filing.
4.1292 Contents of petition.
4.1293 Answer.
4.1294 Who may receive an award.
4.1295 Awards.
4.1296 Appeals.
Petitions for Review of Proposed Individual Civil Penalty Assessments
Under Section 518(f) of the Act
4.1300 Scope.
4.1301 Who may file.
4.1302 Time for filing.
4.1303 Contents and service of petition.
4.1304 Answer, motion, or statement of OSM.
4.1305 Amendment of petition.
4.1306 Notice of hearing.
4.1307 Elements; burdens of proof.
4.1308 Decision by administrative law judge.
4.1309 Petition for discretionary review.
[[Page 59]]
Request for Hearing on a Preliminary Finding Concerning a Demonstrated
Pattern of Willful Violations Under Section 510(c) of the Act, 30 U.S.C.
1260(c) (Federal Program; Federal Lands Program; Federal Program for
Indian Lands)
4.1350 Scope.
4.1351 Preliminary finding by OSM.
4.1352 Who may file; where to file; when to file.
4.1353 Contents of request.
4.1354 Determination by the administrative law judge.
4.1355 Burden of proof.
4.1356 Appeals.
Request for Review of Approval or Disapproval of Applications for New
Permits, Permit Revisions, Permit Renewals, the Transfer, Assignment or
Sale of Rights Granted Under Permit (Federal Program; Federal Lands
Program; Federal Program for Indian Lands) and for Coal Exploration
Permits (Federal Program)
4.1360 Scope.
4.1361 Who may file.
4.1362 Where to file; when to file.
4.1363 Contents of request; amendment of request; responses.
4.1364 Time for hearing; notice of hearing; extension of time for
hearing.
4.1365 Status of decision pending administrative review.
4.1366 Burdens of proof.
4.1367 Request for temporary relief.
4.1368 Determination by the Administrative Law Judge.
4.1369 Petition for discretionary review; judicial review.
Review of OSM Decisions Proposing To Suspend or Rescind or Suspending or
Rescinding Improvidently Issued Permits
4.1370 Scope.
4.1371 Who may file, where to file, when to file.
4.1372 Contents of request for review, response to request, amendment of
request.
4.1373 Hearing.
4.1374 Burdens of proof.
4.1375 Time for initial decision.
4.1376 Petition for temporary relief from notice of proposed suspension
or rescission or notice of suspension or rescission; appeals
from decisions granting or denying temporary relief.
4.1377 Petition for discretionary review of initial decision.
Review of Office of Surface Mining Written Decisions Concerning
Ownership or Control Challenges
4.1380 Scope.
4.1381 Who may file; when to file; where to file.
4.1382 Contents of request for review; response to request; amendment of
request.
4.1383 Hearing.
4.1384 Burdens of proof.
4.1385 Time for initial decision.
4.1386 Petition for temporary relief from decision; appeals from
decisions granting or denying temporary relief.
4.1387 Petition for discretionary review of initial decisions.
Request for Review of OSM Determinations of Issues Under 30 CFR Part 761
(Federal Program; Federal Lands Program; Federal Program for Indian
Lands)
4.1390 Scope.
4.1391 Who may file; where to file; when to file; filing of
administrative record.
4.1392 Contents of request; amendment of request; responses.
4.1393 Status of decision pending administrative review.
4.1394 Burden of proof.
Subpart M_Special Procedural Rules Applicable to Appeals of Decisions
Made Under OMB Circular A 76
4.1600 Purpose and nature of the appeal process.
4.1601 Basis for appeal.
4.1602 Who may appeal under this procedure.
4.1603 Appeal period.
4.1604 Method of filing an appeal.
4.1605 Action by the Office of Hearings and Appeals.
4.1606 Department representation.
4.1607 Processing the appeal.
4.1608 Oral presentations.
4.1609 Multiple appeals.
4.1610 Decision of the appeals official.
Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et
seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.
Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.
Subpart A_General; Office of Hearings and Appeals
Sec.4.1 Scope of authority; applicable regulations.
The Office of Hearings and Appeals, headed by a Director, is an
authorized representative of the Secretary for the purpose of hearing,
considering, and deciding matters within the jurisdiction of the
Department involving hearings, appeals, and other review functions of
the Secretary. The Office may hear,
[[Page 60]]
consider, and decide those matters as fully and finally as might the
Secretary, subject to any limitations on its authority imposed by the
Secretary. Principal components of the Office include:
(a) One or more Hearings Divisions consisting of administrative law
judges who are authorized to conduct hearings in cases required by law
to be conducted under 5 U.S.C. 554, and other deciding officials who are
authorized to conduct hearings in cases arising under statutes and
regulations of the Department; and
(b) Appeals Boards, shown below, with administrative jurisdiction
and special procedural rules as indicated. General rules applicable to
all types of proceedings are set forth in subpart B of this part.
Therefore, for information as to applicable rules, reference should be
made to the special rules in the subpart relating to the particular type
of proceeding, as indicated, and to the general rules in subpart B of
this part. Wherever there is any conflict between one of the general
rules in subpart B of this part and a special rule in another subpart
applicable to a particular type of proceeding, the special rule will
govern. Reference should be made also to the governing laws, substantive
regulations and policies of the Department relating to the proceeding.
In addition, reference should be made to part 1 of this subtitle which
regulates practice before the Department of the Interior.
(1) Board of Indian Appeals. The Board decides finally for the
Department appeals to the head of the Department pertaining to:
(i) Administrative actions of officials of the Bureau of Indian
Affairs, issued under 25 CFR chapter I, except as limited in 25 CFR
chapter I or Sec.4.330 of this part, and
(ii) Decisions and orders of administrative law judges and Indian
probate judges in Indian probate matters, other than those involving
estates of the Five Civilized Tribes of Indians. The Board also decides
such other matters pertaining to Indians as are referred to it by the
Secretary, the Director of the Office of Hearings and Appeals, or the
Assistant Secretary-Indian Affairs for exercise of review authority of
the Secretary. Special regulations applicable to proceedings before the
Board are contained in subpart D of this part.
(2) Board of Land Appeals. The Board decides finally for the
Department appeals to the head of the Department from decisions rendered
by Departmental officials relating to: (i) The use and disposition of
public lands and their resources, including land selections arising
under the Alaska Native Claims Settlement Act, as amended; (ii) the use
and disposition of mineral resources in certain acquired lands of the
United States and in the submerged lands of the Outer Continental Shelf;
and (iii) the conduct of surface coal mining under the Surface Mining
Control and Reclamation Act of 1977. Special procedures for hearings,
appeals and contests in public land cases are contained in subpart E of
this part; special procedures for hearings and appeals under the Surface
Mining Control and Reclamation Act of 1977 are contained in subpart L of
this part.
(3) Ad Hoc Board of Appeals. Appeals to the head of the Department
which do not lie within the appellate review jurisdiction of an
established Appeals Board and which are not specifically excepted in the
general delegation of authority to the Director may be considered and
ruled upon by the Director or by Ad Hoc Boards of Appeals appointed by
the Director to consider the particular appeals and to issue decisions
thereon, deciding finally for the Department all questions of fact and
law necessary for the complete adjudication of the issues. Jurisdiction
of the Boards would include, but not be limited to, the appellate and
review authority of the Secretary referred to in parts 13, 21, and 230
of this title, and in 36 CFR parts 8 and 20. Special regulations
applicable to proceedings in such cases are contained in subpart G of
this part.
(Sec. 525, Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.
1275, and sec. 301, Administrative Procedure Act, 5 U.S.C. 301)
[36 FR 7186, Apr. 15, 1971, as amended at 40 FR 33172, Aug. 6, 1975; 47
FR 26392, June 18, 1982; 49 FR 7565, Mar. 1, 1984; 54 FR 6485, Feb. 10,
1989; 61 FR 47434, Sept. 9, 1996; 61 FR 49976, Sept. 24, 1996; 75 FR
64663, Oct. 20, 2010]
[[Page 61]]
Sec.4.2 Membership of appeals boards; decisions, functions of
Chief Judges.
(a) The Appeals Boards consist of regular members, who are hereby
designated Administrative Judges, one of whom is designated as Chief
Administrative Judge, the Director as an ex officio member, and
alternate members who may serve, when necessary, in place of or in
addition to regular members. The Chief Administrative Judge of an
Appeals Board may direct that an appeal may be decided by a panel of any
two Administrative Judges of the Board, but if they are unable to agree
upon a decision, the Chief Administrative Judge may assign one or more
additional Administrative Judges of the Board to consider the appeal.
The concurrence of a majority of the Board Administrative Judges who
consider an appeal shall be sufficient for a decision.
(b) Decisions of the Board must be in writing and signed by not less
than a majority of the Administrative Judges who considered the appeal.
The Director, being an ex officio member, may participate in the
consideration of any appeal and sign the resulting decision.
(c) The Chief Administrative Judge of an Appeals Board shall be
responsible for the internal management and administration of the Board,
and the Chief Administrative Judge is authorized to act on behalf of the
Board in conducting correspondence and in carrying out such other duties
as may be necessary in the conduct of routine business of the Board.
[39 FR 7931, Mar. 1, 1974]
Sec.4.3 Representation before appeals boards.
(a) Appearances generally. Representation of parties in proceedings
before Appeals Boards of the Office of Hearings and Appeals is governed
by Part 1 of this subtitle, which regulates practice before the
Department of the Interior.
(b) Representation of the Government. Department counsel designated
by the Solicitor of the Department to represent agencies, bureaus, and
offices of the Department of the Interior in proceedings before the
Office of Hearings and Appeals, and Government counsel for other
agencies, bureaus or offices of 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
[[Page 62]]
the Office or direct reconsideration of any decision by any board of the
Office.
(c) Exercise of reserved power. If the Secretary or Director assumes
jurisdiction of a case or reviews a decision, the parties and the
appropriate Departmental personnel will be advised in writing of such
action, the administrative record will be requested, and, after the
review process is completed, a written decision will be issued.
[50 FR 43705, Oct. 29, 1985, as amended at 52 FR 46355, Dec. 7, 1987; 52
FR 47097, Dec. 11, 1987]
Subpart B_General Rules Relating to Procedures and Practice
Sec.4.20 Purpose.
In the interest of establishing and maintaining uniformity to the
extent feasible, this subpart sets forth general rules applicable to all
types of proceedings before the Hearings Division and the several
Appeals Boards of the Office of Hearings and Appeals.
Sec.4.21 General provisions.
(a) Effect of decision pending appeal. Except as otherwise provided
by law or other pertinent regulation:
(1) A decision will not be effective during the time in which a
person adversely affected may file a notice of appeal; when the public
interest requires, however, the Director or an Appeals Board may provide
that a decision, or any part of a decision, shall be in full force and
effective immediately;
(2) A decision will become effective on the day after the expiration
of the time during which a person adversely affected may file a notice
of appeal unless a petition for a stay pending appeal is filed together
with a timely notice of appeal; a petition for a stay may be filed only
by a party who may properly maintain an appeal;
(3) A decision, or that portion of a decision, for which a stay is
not granted will become effective immediately after the Director or an
Appeals Board denies or partially denies the petition for a stay, or
fails to act on the petition within the time specified in paragraph
(b)(4) of this section.
(b) Standards and procedures for obtaining a stay. Except as
otherwise provided by law or other pertinent regulation:
(1) A petition for a stay of a decision pending appeal shall show
sufficient justification based on the following standards:
(i) The relative harm to the parties if the stay is granted or
denied,
(ii) The likelihood of the appellant's success on the merits,
(iii) The likelihood of immediate and irreparable harm if the stay
is not granted, and
(iv) Whether the public interest favors granting the stay;
(2) The appellant requesting the stay bears the burden of proof to
demonstrate that a stay should be granted;
(3) The appellant shall serve a copy of its notice of appeal and
petition for a stay on each party named in the decision from which the
appeal is taken, and on the Director or the Appeals Board to which the
appeal is taken, at the same time such documents are served on the
appropriate officer of the Department; any party, including the officer
who made the decision being appealed, may file a response to the stay
petition within 10 days after service; failure to file a response shall
not result in a default on the question of whether a stay should be
granted; service shall be made by delivering copies personally or by
sending them by registered or certified mail, return receipt requested;
and
(4) The Director or an Appeals Board shall grant or deny a petition
for a stay pending appeal, either in whole or in part, on the basis of
the factors listed in paragraph (b)(1) of this section, within 45
calendar days of the expiration of the time for filing a notice of
appeal.
(c) Exhaustion of administrative remedies. No decision which at the
time of its rendition is subject to appeal to the Director or an Appeals
Board shall be considered final so as to be agency action subject to
judicial review under 5 U.S.C. 704, unless a petition for a stay of
decision has been timely filed and the decision being appealed has been
made effective in the manner provided
[[Page 63]]
in paragraphs (a)(3) or (b)(4) of this section or a decision has been
made effective pending appeal pursuant to paragraph (a)(1) of this
section or pursuant to other pertinent regulation.
(d) Finality of decision. No further appeal will lie in the
Department from a decision of the Director or an Appeals Board of the
Office of Hearings and Appeals. Unless otherwise provided by regulation,
reconsideration of a decision may be granted only in extraordinary
circumstances where, in the judgment of the Director or an Appeals
Board, sufficient reason appears therefor. Requests for reconsideration
must be filed promptly, or within the time required by the regulations
relating to the particular type of proceeding concerned, and must state
with particularity the error claimed. The filing and pendency of a
request for reconsideration shall not operate to stay the effectiveness
of the decision involved unless so ordered by the Director or an Appeals
Board. A request for reconsideration need not be filed to exhaust
administrative remedies.
[36 FR 7186, Apr. 15, 1971, as amended at 58 FR 4942, Jan. 19, 1993; 75
FR 64663, Oct. 20, 2010]
Sec.4.22 Documents.
(a) Filing of documents. A document is filed in the office where the
filing is required only when the document is received in that office
during its regular business hours and by a person authorized to receive
it. A document received after the office's regular business hours is
considered filed on the next business day.
(b) Service generally. A copy of each document filed in a proceeding
before the Office of Hearings and Appeals must be served by the filing
party on the other party or parties in the case, except as otherwise
provided 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,
[[Page 64]]
unless it is a Saturday, Sunday, Federal legal holiday, or other
nonbusiness day, in which event the period runs until the end of the
next day which is not a Saturday, Sunday, Federal legal holiday, or
other nonbusiness day. When the time prescribed or allowed is 7 days or
less, intermediate Saturdays, Sundays, Federal legal holidays and other
nonbusiness days shall be excluded in the computation.
(f) Extensions of time. (1) The time for filing or serving any
document may be extended by the Appeals Board or other officer before
whom the proceeding is pending, except for the time for filing a notice
of appeal and except where such extension is contrary to law or
regulation.
(2) A request for an extension of time must be filed within the time
allowed for the filing or serving of the document and must be filed in
the same office in which the document in connection with which the
extension is requested must be filed.
[36 FR 7186, Apr. 15, 1971, as amended at 53 FR 49660, Dec. 9, 1988; 75
FR 64663, Oct. 20, 2010]
Sec.4.23 Transcript of hearings.
Hearings will be recorded verbatim and transcripts thereof shall be
made when requested by interested parties, costs of transcripts to be
borne by the requesting parties. Fees for transcripts prepared from
recordings by Office of Hearings and Appeals employees will be at rates
which cover the cost of manpower, machine use and materials, plus 25
percent, adjusted to the nearest 5 cents. If the reporting is done
pursuant to a contract between the reporter and the Department of the
Interior Agency or office which is involved in the proceeding, or the
Office of Hearings and Appeals, fees for transcripts will be at rates
established by the contract.
Sec.4.24 Basis of decision.
(a) Record. (1) The record of a hearing shall consist of the
transcript of testimony or summary of testimony and exhibits together
with all papers and requests filed in the hearing.
(2) If a hearing has been held on an appeal pursuant to instructions
of an Appeals Board, this record shall be the sole basis for decision
insofar as the referred issues of fact are involved except 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
[[Page 65]]
of the Bureau of Land Management in which the complaint was filed, in
which cases such offices will forward the application to the examiner.
(c) Fees payable to witnesses. (1) Witnesses subpoenaed by any party
shall be paid the same fees and mileage as are paid for like service in
the District Courts of the United States. The witness fees and mileage
shall be paid by the party at whose instance the witness appears.
(2) Any witness who attends any hearing or the taking of any
deposition at the request of any party to the controversy without having
been subpoenaed to do so shall be entitled to the same mileage and
attendance fees, to be paid by such party, to which he would have been
entitled if he had been first duly subpoenaed as a witness on behalf of
such party. This paragraph does not apply to Government employees who
are called as witnesses by the Government.
Sec.4.27 Standards of conduct.
(a) Inquiries. All inquiries with respect to any matter pending
before the Office of Hearings and Appeals shall be directed to the
Director, the Chief Administrative Law Judge, or the Chairman of the
appropriate Board.
(b) Ex parte communication--(1) Prohibition. Except to the extent
required for the disposition of ex parte matters as authorized by law,
there shall be no communication concerning the merits of a proceeding
between any party to the proceeding or any person interested in the
proceeding or any representative of a party or interested person and any
Office personnel involved or who may reasonably be expected to become
involved in the decisionmaking process on that proceeding, unless the
communication, if oral, is made in the presence of all other parties or
their representatives, or, if written, is furnished to all other
parties. Proceedings include cases pending before the Office,
rulemakings amending this Part 4 that might affect a pending case,
requests for reconsideration or review by the Director, and any other
related action pending before the Office. The terms ``interested
person'' and ``person interested in the proceeding'' include any
individual or other person with an interest in the agency proceeding
that is greater than the interest that the public as a whole may have.
This regulation does not prohibit communications concerning case status
or advice concerning compliance with procedural requirements unless the
area of inquiry is in fact an area of controversy in the proceeding. Any
oral communication made in violation of this regulation shall be reduced
to writing in a memorandum to the file by the person receiving the
communication and shall be included in the record. Any written
communication made in violation of this regulation shall be included in
the record. In proceedings other than informal rulemakings copies of the
memorandum or communication shall be provided to all parties, who shall
be given an opportunity to respond in writing.
(2) Sanctions. The administrative law judge, board, or Director who
has responsibility for the matter with respect to which a prohibited
communication has been knowingly made may impose appropriate sanctions
on the offending person or persons, which may include requiring an
offending party to show cause why its claim, motion, or interest should
not be dismissed, denied, or otherwise adversely affected; disciplining
offending Office personnel pursuant to the Department's standards of
conduct (43 CFR part 20); and invoking such sanctions against other
offending persons as may be appropriate under the circumstances.
(c) Disqualification. (1) An Office of Hearings and Appeals deciding
official must withdraw from a case if circumstances exist that would
disqualify a judge in such circumstances under the recognized canons of
judicial ethics.
(2) A party may file a motion seeking the disqualification of a
deciding official, setting forth in detail the circumstances that the
party believes require disqualification. Any supporting facts must be
established by affidavit or other sufficient evidence. A copy of the
motion should be sent to the Director.
(3) The head of the appropriate unit within the Office or the
Director may decide whether disqualification is required if the deciding
official does not withdraw under paragraph (c)(1) of this
[[Page 66]]
section or in response to a motion under paragraph (c)(2) of this
section.
(4) For purposes of this section, ``deciding official'' includes an
attorney decision maker or Indian probate judge as defined in Sec.
4.201, an administrative law judge, an administrative judge, or a member
of any Board.
[36 FR 7186, Apr. 15, 1971, as amended at 50 FR 43705, Oct. 29, 1985; 53
FR 49660, Dec. 9, 1988; 70 FR 11812, Mar. 9, 2005]
Sec.4.28 Interlocutory appeals.
There shall be no interlocutory appeal from a ruling of an
administrative law judge unless permission is first obtained from an
Appeals Board and an administrative law judge has certified the
interlocutory ruling or abused his discretion in refusing a request to
so certify. Permission will not be granted except upon a showing that
the ruling complained of involves a controlling question of law and that
an immediate appeal therefrom may materially advance the final decision.
An interlocutory appeal shall not operate to suspend the hearing unless
otherwise ordered by the Board.
Sec.4.29 Remands from courts.
Whenever any matter is remanded from any court for further
proceedings, and to the extent the court's directive and time
limitations will permit, the parties shall be allowed an opportunity to
submit to the appropriate Appeals Board, a report recommending
procedures to be followed in order to comply with the court's order. The
Board will review the reports and enter special orders governing the
handling of matters remanded to it for further proceedings by any court.
Sec.4.30 Information required by forms.
Whenever a regulation of the Office of Hearing and Appeals requires
a form approved or prescribed by the Director, the Director may in that
form require the submission of any information which he considers to be
necessary for the effective administration of that regulation.
Sec.4.31 Request for limiting disclosure of confidential information.
(a) If any person submitting a document in a proceeding under this
part 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
[[Page 67]]
this section is applicable, if the party requesting the information
agrees under oath in writing:
(1) Not to use or disclose the information except in the context of
the proceeding conducted pursuant to this part; and
(2) To return all copies of the information at the conclusion of the
proceeding to the person submitting the information under paragraph (a)
of this section.
(d) If any person submitting a document in a proceeding under this
Part other than a hearing conducted pursuant to 5 U.S.C. 554 claims that
a disclosure of information in that document to another party to the
proceeding is prohibited by law, notwithstanding the protection provided
under paragraph (c) of this section, such person:
(1) Must indicate in the original document that it contains
information of which disclosure is prohibited;
(2) Must request that the presiding officer or appeals board review
such evidence as a basis for its decision without disclosing it to the
other party or parties, and serve the request upon the parties to the
proceeding. The request shall include a copy of the document or
description as required by paragraph (a)(2)(i) of this section and state
why disclosure is prohibited, citing pertinent statutory or regulatory
authority. If the prohibition on disclosure is intended to protect the
interest of a person who is not a party to the proceeding, the party
making the request must demonstrate that such person refused to consent
to the disclosure of the evidence to other parties to the proceeding.
(3) If the presiding officer or an appeals board denies the request,
the person who made the request shall be given an opportunity to
withdraw the evidence before it is considered by the presiding official
or board unless a Freedom of Information Act request, administrative
appeal from the denial of a request, or lawsuit seeking release of the
information is pending.
(e) If the person submitting a document does not submit the copy of
the document or description required by paragraph (a)(2)(i) or (d)(2) of
this section, the presiding officer or appeals board may assume that
there is no objection to public disclosure of the document in its
entirety.
(f) Where a decision by a presiding officer or appeals board is
based in whole or in part on evidence not included in the public record
or disclosed to all parties, the decision shall so state, specifying the
nature of the evidence and the provision of law under which disclosure
was denied, and the evidence so considered shall be retained under seal
as part of the official record.
[53 FR 49661, Dec. 9, 1988]
Subpart C [Reserved]
Subpart D_Rules Applicable in Indian Affairs Hearings and Appeals
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; Pub. L. 99-
264, 100 Stat. 61, as amended.
Cross Reference: For regulations pertaining to the processing of
Indian probate matters within the Bureau of Indian Affairs, see 25 CFR
part 15. For regulations pertaining to the probate of Indian trust
estates within the Probate Hearings Division, Office of Hearings and
Appeals, see 43 CFR part 30. For regulations pertaining to the
authority, jurisdiction, and membership of the Board of Indian Appeals,
Office of Hearings and Appeals, see subpart A of this part. For
regulations generally applicable to proceedings before the Hearings
Divisions and Appeal Boards of the Office of Hearings and Appeals, see
subpart B of this part.
Scope of Subpart; Definitions
Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.
Sec.4.200 How to use this subpart.
(a) The following table is a guide to the relevant contents of this
subpart by subject matter.
------------------------------------------------------------------------
For provisions relating to . . . Consult . . .
------------------------------------------------------------------------
(1) Appeals to the Board of Indian Appeals Sec.Sec. 4.310 through
generally. 4.318.
(2) Appeals to the Board of Indian Appeals Sec.Sec. 4.201 and 4.320
from decisions of the Probate Hearings through 4.326.
Division in Indian probate matters.
(3) Appeals to the Board of Indian Appeals Sec.Sec. 4.201 and 4.330
from actions or decisions of BIA. through 4.340.
[[Page 68]]
(4) Review by the Board of Indian Appeals Sec.Sec. 4.201 and 4.330
of other matters referred to it by the through 4.340.
Secretary, Assistant Secretary-Indian
Affairs, or Director-Office of Hearings
and Appeals.
(5) Determinations under the White Earth Sec.Sec. 4.350 through
Reservation Land Settlement Act of 1985. 4.357.
------------------------------------------------------------------------
(b) Except as limited by the provisions of this part, the
regulations in subparts A and B of this part apply to these proceedings.
[73 FR 67287, Nov. 13, 2008]
Sec.4.201 Definitions.
Administrative law judge (ALJ) means an administrative law judge
with OHA appointed under the Administrative Procedure Act, 5 U.S.C.
3105.
Agency means:
(1) The Bureau of Indian Affairs (BIA) agency office, or any other
designated office in BIA, having jurisdiction over trust or restricted
land and trust personalty; and
(2) Any office of a tribe that has entered into a contract or
compact to fulfill the probate function under 25 U.S.C. 450f or 458cc.
BIA means the Bureau of Indian Affairs within the Department of the
Interior.
Board means the Interior Board of Indian Appeals within OHA.
Day means a calendar day.
Decedent means a person who is deceased.
Decision or order (or decision and order) means:
(1) A written document issued by a judge making determinations as to
heirs, wills, devisees, and the claims of creditors, and ordering
distribution of trust or restricted land or trust personalty;
(2) The decision issued by an attorney decision maker in a summary
probate proceeding; or
(3) A decision issued by a judge finding that the evidence is
insufficient to determine that a person is deceased by reason of
unexplained absence.
Devise means a gift of property by will. Also, to give property by
will.
Devisee means a person or entity that receives property under a
will.
Estate means the trust or restricted land and trust personalty owned
by the decedent at the time of death.
Formal probate proceeding means a proceeding, conducted by a judge,
in which evidence is obtained through the testimony of witnesses and the
receipt of relevant documents.
Heir means any individual or entity eligible to receive property
from a decedent in an intestate proceeding.
Individual Indian Money (IIM) account means an interest-bearing
account for trust funds held by the Secretary that belong to a person
who has an interest in trust assets. These accounts are under the
control and management of the Secretary.
Indian probate judge (IPJ) means an attorney with OHA, other than an
ALJ, to whom the Secretary has delegated the authority to hear and
decide Indian probate cases.
Interested party means any of the following:
(1) Any potential or actual heir;
(2) Any devisee under a will;
(3) Any person or entity asserting a claim against a decedent's
estate;
(4) Any tribe having a statutory option to purchase the trust or
restricted property interest of a decedent; or
(5) Any co-owner exercising a purchase option.
Intestate means that the decedent died without a valid will as
determined in the probate proceeding.
Judge, except as used in the term ``administrative judge,'' means an
ALJ or IPJ.
LTRO means the Land Titles and Records Office within BIA.
Probate means the legal process by which applicable tribal, Federal,
or State law that affects the distribution of a decedent's estate is
applied in order to:
(1) Determine the heirs;
(2) Determine the validity of wills and determine devisees;
(3) Determine whether claims against the estate will be paid from
trust personalty; and
(4) Order the transfer of any trust or restricted land or trust
personalty to the heirs, devisees, or other persons or entities entitled
by law to receive them.
[[Page 69]]
Restricted property means real property, the title to which is held
by an Indian but which cannot be alienated or encumbered without the
Secretary's consent. For the purposes of probate proceedings, restricted
property is treated as if it were trust property. Except as the law may
provide otherwise, the term ``restricted property'' as used in this part
does not include the restricted lands of the Five Civilized Tribes of
Oklahoma or the Osage Nation.
Secretary means the Secretary of the Interior or an authorized
representative.
Trust personalty means all tangible personal property, funds, and
securities of any kind that are held in trust in an IIM account or
otherwise supervised by the Secretary.
Trust property means real or personal property, or an interest
therein, the title to which is held in trust by the United States for
the benefit of an individual Indian or tribe.
Will means a written testamentary document that was executed by the
decedent and attested to by two disinterested adult witnesses, and that
states who will receive the decedent's trust or restricted property.
[73 FR 67287, Nov. 13, 2008]
Sec. Sec.4.202-4.308 [Reserved]
General Rules Applicable to Proceedings on Appeal Before the Interior
Board of Indian Appeals
Source: 70 FR 11825, Mar. 9, 2005, unless otherwise noted.
Sec.4.310 Documents.
(a) Filing. The effective date for filing a notice of appeal or
other document with the Board during the course of an appeal is:
(1) For most documents, the date of mailing or the date of personal
delivery; or
(2) For a motion for the Board to assume jurisdiction over an appeal
under 25 CFR 2.20(e), the date that the Board receives the motion.
(b) Serving notices of appeal and pleadings. Any party filing a
notice of appeal or pleading before the Board must serve copies on all
interested parties in the proceeding. Service must be accomplished by
personal delivery or mailing.
(1) Where a party is represented in an appeal by an attorney or
other representative authorized under 43 CFR 1.3, service of any
document on the attorney or representative is service on the party.
(2) Where a party is represented by more than one attorney, service
on any one attorney is sufficient.
(3) The certificate of service on an attorney or representative must
include the name of the party whom the attorney or representative
represents and indicate that service was made on the attorney or
representative.
(c) Computation of time for filing and service. Except as otherwise
provided by law, in computing any period of time prescribed for filing
and serving a document:
(1) The day upon which the decision or document to be appealed or
answered was served or the day of any other event after which a
designated period of time begins to run is not to be included;
(2) The last day of the period is to be included, unless it is a
nonbusiness day (e.g., Saturday, Sunday, or Federal holiday), in which
event the period runs until the end of the next business day; and
(3) When the time prescribed or allowed is 7 days or less,
intermediate Saturdays, Sundays, Federal holidays, and other nonbusiness
days are excluded from the computation.
(d) Extensions of time. (1) The Board may extend the time for filing
or serving any document except a notice of appeal.
(2) A request to the Board for an extension of time must be filed
within the time originally allowed for filing.
(3) For good cause the Board may grant an extension of time on its
own initiative.
(e) Retention of documents. All documents received in evidence at a
hearing or submitted for the record in any proceeding before the Board
will be retained with the official record of the proceeding. The Board,
in its discretion, may permit the withdrawal of original documents while
a case is pending or after a decision becomes
[[Page 70]]
final upon conditions as required by the Board.
Sec.4.311 Briefs on appeal.
(a) The appellant may file an opening brief within 30 days after
receiving the notice of docketing. The appellant must serve copies of
the opening brief upon all interested parties or counsel and file a
certificate with the Board showing service upon the named parties.
Opposing parties or counsel will have 30 days from receiving the
appellant's brief to file answer briefs, copies of which must be served
upon the appellant or counsel and all other interested parties. A
certificate showing service of the answer brief upon all parties or
counsel must be attached to the answer filed with the Board.
(b) The appellant may reply to an answering brief within 15 days
from its receipt. A certificate showing service of the reply brief upon
all parties or counsel must be attached to the reply filed with the
Board. Except by special permission of the Board, no other briefs will
be allowed on appeal.
(c) BIA is considered an interested party in any proceeding before
the Board. The Board may request that BIA submit a brief in any case
before the Board.
(d) An original only of each document should be filed with the
Board. Documents should not be bound along the side.
(e) The Board may also specify a date on or before which a brief is
due. Unless expedited briefing has been granted, such date may not be
less than the appropriate period of time established in this section.
Sec.4.312 Board decisions.
Decisions of the Board will be made in writing and will set forth
findings of fact and conclusions of law. The decision may adopt, modify,
reverse, or set aside any proposed finding, conclusion, or order of an
administrative law judge, Indian probate judge, or BIA official.
Distribution of decisions must be made by the Board to all parties
concerned. Unless otherwise stated in the decision, rulings by the Board
are final for the Department and must be given immediate effect.
Sec.4.313 Amicus curiae; intervention; joinder motions.
(a) Any interested person or Indian tribe desiring to intervene, to
join other parties, to appear as amicus curiae, or to obtain an order in
an appeal before the Board must apply in writing to the Board stating
the grounds for the action sought. The Board may grant the permission or
relief requested for specified purposes and subject to limitations it
established. This section will be liberally construed.
(b) Motions to intervene, to appear as amicus curiae, to join
additional parties, or to obtain an order in an appeal pending before
the Board must be served in the same manner as appeal briefs.
Sec.4.314 Exhaustion of administrative remedies.
(a) No decision of an administrative law judge, Indian probate
judge, or BIA official that at the time of its rendition is subject to
appeal to the Board, will be considered final so as to constitute agency
action subject to judicial review under 5 U.S.C. 704, unless it has been
made effective pending a decision on appeal by order of the Board.
(b) No further appeal will lie within the Department from a decision
of the Board.
(c) The filing of a petition for reconsideration is not required to
exhaust administrative remedies.
Sec.4.315 Reconsideration of a Board decision.
(a) Reconsideration of a decision of the Board will be granted only
in extraordinary circumstances. Any party to the decision may petition
for reconsideration. The petition must be filed with the Board within 30
days from the date of the decision and must contain a detailed statement
of the reasons why reconsideration should be granted.
(b) A party may file only one petition for reconsideration.
(c) The filing of a petition will not stay the effect of any
decision or order and will not affect the finality of any decision or
order for purposes of judicial review, unless so ordered by the Board.
[[Page 71]]
Sec.4.316 Remands from courts.
Whenever any matter is remanded from any Federal court to the Board
for further proceedings, the Board will remand the matter to an
administrative law judge, an Indian probate judge, or BIA. In the
alternative, to the extent the court's directive and time limitations
permit, the parties will be allowed an opportunity to submit to the
Board a report recommending procedures for it to follow to comply with
the court's order. The Board will enter special orders governing matters
on remand.
Sec.4.317 Standards of conduct.
(a) Inquiries about cases. All inquiries about any matter pending
before the Board must be made to the Chief Administrative Judge of the
Board or the administrative judge assigned the matter.
(b) Disqualification. An administrative judge may withdraw from a
case in accordance with standards found in the recognized canons of
judicial ethics if the judge deems this action appropriate. If, before a
decision of the Board, a party files an affidavit of personal bias or
disqualification with substantiating facts, and the administrative judge
concerned does not withdraw, the OHA Director will determine the matter
of disqualification.
Sec.4.318 Scope of review.
An appeal will be limited to those issues that were before the
administrative law judge or Indian probate judge upon the petition for
rehearing, reopening, or regarding tribal purchase of interests, or
before the BIA official on review. However, except as specifically
limited in this part or in title 25 of the Code of Federal Regulations,
the Board will not be limited in its scope of review and may exercise
the inherent authority of the Secretary to correct a manifest injustice
or error where appropriate.
Appeals to the Board of Indian Appeals in Probate Matters
Source: 70 FR 11826, Mar. 9, 2005, unless otherwise noted.
Sec.4.320 Who may appeal a judge's decision or order?
Any interested party has a right to appeal to the Board if he or she
is adversely affected by a decision or order of a judge under part 30 of
this subtitle:
(a) On a petition for rehearing;
(b) On a petition for reopening;
(c) Regarding purchase of interests in a deceased Indian's estate;
or
(d) Regarding modification of the inventory of an estate.
[76 FR 7505, Feb. 10, 2011]
Sec.4.321 How do I appeal a judge's decision or order?
(a) A person wishing to appeal a decision or order within the scope
of Sec.4.320 must file a written notice of appeal within 30 days after
we have mailed the judge's decision or order and accurate appeal
instructions. We will dismiss any appeal not filed by this deadline.
(b) The notice of appeal must be signed by the appellant, the
appellant's attorney, or other qualified representative as provided in
Sec.1.3 of this subtitle, and must be filed with the Board of Indian
Appeals, Office of Hearings and Appeals, U.S. Department of the
Interior, 801 North Quincy Street, Arlington, Virginia 22203.
[73 FR 67288, Nov. 13, 2008]
Sec.4.322 What must an appeal contain?
(a) Each appeal must contain a written statement of the errors of
fact and law upon which the appeal is based. This statement may be
included in either the notice of appeal filed under Sec.4.321(a) or an
opening brief filed under Sec.4.311(a).
(b) The notice of appeal must include the names and addresses of the
parties served.
[73 FR 67288, Nov. 13, 2008]
Sec.4.323 Who receives service of the notice of appeal?
(a) The appellant must deliver or mail the original notice of appeal
to the Board.
(b) A copy of the notice of appeal must be served on the judge whose
decision is being appealed, as well as on every other interested party.
(c) The notice of appeal filed with the Board must include a
certification that
[[Page 72]]
service was made as required by this section.
[73 FR 67288, Nov. 13, 2008]
Sec.4.324 How is the record on appeal prepared?
(a) On receiving a copy of the notice of appeal, the judge whose
decision is being appealed must notify:
(1) The agency concerned; and
(2) The LTRO where the original record was filed under Sec.30.233
of this subtitle.
(b) If a transcript of the hearing was not prepared, the judge must
have a transcript prepared and forwarded to the LTRO within 30 days
after receiving a copy of the notice of appeal. The LTRO must include
the original transcript in the record.
(c) Within 30 days of the receipt of the transcript, the LTRO must
do the following:
(1) Prepare a table of contents for the record;
(2) Make two complete copies of the original record, including the
transcript and table of contents;
(3) Certify that the record is complete;
(4) Forward the certified original record, together with the table
of contents, to the Board by certified mail or other service with
delivery confirmation; and
(5) Send one copy of the complete record to the agency.
(d) While the appeal is pending, the copies of the record will be
available for inspection at the LTRO and the agency.
(e) Any party may file an objection to the record. The party must
file his or her objection with the Board within 15 days after receiving
the notice of docketing under Sec.4.325.
(f) For any of the following appeals, the judge must prepare an
administrative record for the decision and a table of contents for the
record and must forward them to the Board:
(1) An interlocutory appeal under Sec.4.28;
(2) An appeal from a decision under Sec. Sec.30.126 or 30.127
regarding modification of an inventory of an estate; or
(3) An appeal from a decision under Sec.30.124 determining that a
person for whom a probate proceeding is sought to be opened is not
deceased.
[76 FR 7505, Feb. 10, 2011]
Sec.4.325 How will the appeal be docketed?
The Board will docket the appeal on receiving the probate record
from the LTRO or the administrative record from the judge, and will
provide a notice of the docketing and the table of contents for the
record to all interested parties as shown by the record on appeal. The
docketing notice will specify the deadline for filing briefs and will
cite the procedural regulations governing the appeal.
[73 FR 67288, Nov. 13, 2008]
Sec.4.326 What happens to the record after disposition?
(a) After the Board makes a decision other than a remand, it must
forward to the designated LTRO:
(1) The record filed with the Board under Sec.4.324(d) or (f); and
(2) All documents added during the appeal proceedings, including any
transcripts and the Board's decision.
(b) The LTRO must conform the duplicate record retained under Sec.
4.324(b) to the original sent under paragraph (a) of this section and
forward the duplicate record to the agency concerned.
[73 FR 67288, Nov. 13, 2008]
Appeals to the Board of Indian Appeals from Administrative Actions of
Officials of the Bureau of Indian Affairs: Administrative Review in
Other Indian Matters Not Relating to Probate Proceedings
Source: 54 FR 6487, Feb. 10, 1989, unless otherwise noted.
Sec.4.330 Scope.
(a) The definitions set forth in 25 CFR 2.2 apply also to these
special rules. These regulations apply to the practice and procedure
for: (1) Appeals to the Board of Indian Appeals from administrative
actions or decisions of officials of the Bureau of Indian Affairs issued
under regulations in 25 CFR chapter 1, and (2) administrative review by
the Board of Indian Appeals of other matters pertaining to Indians
[[Page 73]]
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
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
[[Page 74]]
by this section and shall show the names and addresses of all parties
served. If the appellant is an Indian or an Indian tribe not represented
by counsel, the appellant may request the official of the Bureau whose
decision is appealed to assist in service of copies of the notice of
appeal and any supporting documents.
(b) The notice of appeal will be considered to have been served upon
the date of personal service or mailing.
Sec.4.334 Extensions of time.
Requests for extensions of time to file documents may be granted
upon a showing of good cause, except for the time fixed for filing a
notice of appeal which, as specified in Sec.4.332 of this part, may
not be extended.
Sec.4.335 Preparation and transmittal of record by official of the
Bureau of Indian Affairs.
(a) Within 20 days after receipt of a notice of appeal, or upon
notice from the Board, the official of the Bureau of Indian Affairs
whose decision is appealed shall assemble and transmit the record to the
Board. The record on appeal shall include, without limitation, copies of
transcripts of testimony taken; all original documents, petitions, or
applications by which the proceeding was initiated; all supplemental
documents which set forth claims of interested parties; and all
documents upon which all previous decisions were based.
(b) The administrative record shall include a Table of Contents
noting, at a minimum, inclusion of the following:
(1) The decision appealed from;
(2) The notice of appeal or copy thereof; and
(3) Certification that the record contains all information and
documents utilized by the deciding official in rendering the decision
appealed.
(c) If the deciding official receives notification that the
Assistant Secretary--Indian Affairs has decided to review the appeal
before the administrative record is transmitted to the Board, the
administrative record shall be forwarded to the Assistant Secretary--
Indian Affairs rather than to the Board.
Sec.4.336 Docketing.
An appeal shall be assigned a docket number by the Board 20 days
after receipt of the notice of appeal unless the Board has been properly
notified that the Assistant Secretary--Indian Affairs has assumed
jurisdiction over the appeal. A notice of docketing shall be sent to all
interested parties as shown by the record on appeal upon receipt of the
administrative record. Any objection to the record as constituted shall
be filed with the Board within 15 days of receipt of the notice of
docketing. The docketing notice shall specify the time within which
briefs shall be filed, cite the procedural regulations governing the
appeal and include a copy of the Table of Contents furnished by the
deciding official.
Sec.4.337 Action by the Board.
(a) The Board may make a final decision, or where the record
indicates a need for further inquiry to resolve a genuine issue of
material fact, the Board may require a hearing. All hearings shall be
conducted by an administrative law judge of the Office of Hearings and
Appeals. The Board may, in its discretion, grant oral argument before
the Board.
(b) Where the Board finds that one or more issues involved in an
appeal or a matter referred to it were decided by the Bureau of Indian
Affairs based upon the exercise of discretionary authority committed to
the Bureau, and the Board has not otherwise been permitted to adjudicate
the issue(s) pursuant to Sec.4.330(b) of this part, the Board shall
dismiss the appeal as to the issue(s) or refer the issue(s) to the
Assistant Secretary--Indian Affairs for further consideration.
Sec.4.338 Submission by administrative law judge of proposed findings,
conclusions and recommended decision.
(a) When an evidentiary hearing pursuant to Sec.4.337(a) of this
part is concluded, the administrative law judge shall recommend findings
of fact and conclusions of law, stating the reasons for such
recommendations. A copy of the recommended decision shall be sent to
each party to the proceeding, the Bureau official involved, and the
[[Page 75]]
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.
(c) As used herein, the following terms shall have the following
meanings:
(1) The term Act means the White Earth Reservation Land Settlement
Act of 1985 as amended.
(2) The term Board means the Board of Indian Appeals in the Office
of Hearings and Appeals, Office of the Secretary.
(3) The term Project Director means the Superintendent of the
Minnesota Agency, Bureau of Indian Affairs, or other Bureau of Indian
Affairs official with delegated authority from the Minneapolis Area
Director to serve as the federal officer in charge of the White Earth
Reservation Land Settlement Project.
(4) The term party (parties) in interest means the Project Director
and any presumptive or actual heirs of the decedent, or of any issue of
any subsequently deceased presumptive or actual heir of the decedent.
(5) The term compensation means a monetary sum, as determined by the
Project Director, pursuant to section 8(c) of the Act.
(6) The term administrative judge means an administrative judge or
an administrative law judge, attorney-advisor, or other appropriate
official of the Office of Hearings and Appeals to whom the Director of
the Office of Hearings and Appeals has redelegated his authority, as
designee of the Secretary, for making heirship determinations as
provided for in these regulations.
(7) The term appellant means a party aggrieved by a final order or
final order upon reconsideration issued by an administrative judge who
files an appeal with the Board.
[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991, as amended at 64
FR 13363, Mar. 18, 1999]
Sec.4.351 Commencement of the determination process.
(a) Unless an heirship determination which is recognized by the Act
already exists, the Project Director shall commence the determination of
the heirs of those persons who died entitled to receive compensation by
filing with
[[Page 76]]
the administrative judge all data, identifying the purpose for which
they are being submitted, shown in the records relative to the family of
the decedent.
(b) The data shall include but are not limited to:
(1) A copy of the death certificate if one exists. If there is no
death certificate, then another form of official written evidence of the
death such as a burial or transportation of remains permit, coroner's
report, or church registry of death. Secondary forms of evidence of
death such as an affidavit from someone with personal knowledge
concerning the fact of death or an obituary or death notice from a
newspaper may be used only in the absence of any official proof or
evidence of death.
(2) Data for heirship finding and family history, certified by the
Project Director. Such data shall contain:
(i) The facts and alleged facts of the decedent's marriages,
separations and divorces, with copies of necessary supporting documents;
(ii) The names and last known addresses of probable heirs at law and
other known parties in interest;
(iii) Information on whether the relationships of the probable heirs
at law to the decedent arose by marriage, blood, or adoption.
(3) Known heirship determinations, including those recognized by the
Act determining the heirs of relatives of the decedent, and including
those rendered by courts from Minnesota or other states, by tribal
courts, or by tribunals authorized by the laws of other countries.
(4) A report of the compensation due the decedent, including
interest calculated to the date of death of the decedent, and an outline
of the derivation of such compensation, including its real property
origins and the succession of the compensation to the deceased, citing
all of the intervening heirs at law, their fractional shares, and the
amount of compensation attributed to each of them.
(5) A certification by the Project Director or his designee that the
addresses provided for the parties in interest were furnished after
having made a due and diligent search.
[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991]
Sec.4.352 Determination of administrative judge and notice thereof.
(a) Upon review of all data submitted by the Project Director, the
administrative judge will determine whether or not there are any
apparent issues of fact that need to be resolved.
(b) If there are no issues of fact requiring determination, the
administrative judge will enter a preliminary determination of heirs
based upon inheritance laws in accordance with the Act. Such preliminary
determination will be entered without a hearing, and, when possible and
based upon the data furnished and/or information supplementary thereto,
shall include the names, birth dates, relationships to the decedent, and
shares of the heirs, or the fact that the decedent died without heirs.
(1) Upon issuing a preliminary determination, the administrative
judge shall issue a notice of such action and shall mail a copy of said
notice, together with a copy of the preliminary determination, to each
party in interest allowing forty (40) days in which to show cause in
writing why the determination should not become final. The
administrative judge shall cause a certificate to be made as to the date
and manner of such mailing.
(2) The Project Director shall also cause, within seven (7) days of
receipt of such notice, the notice of the preliminary determination to
be posted in the following sites:
The White Earth Band, Box 418, White Earth, Minnesota 56591
The Minnesota Chippewa Tribe, Box 217, Cass Lake, Minnesota 56633
Minnesota Agency, Bureau of Indian Affairs, Room 418, Federal Building,
522 Minnesota Avenue, NW, Bemidji, Minnesota 56601-3062
and in such other sites as may be deemed appropriate by the Project
Director. Such other sites may include, but not be limited to:
Elbow Lake Community Center, R.R. 2, Waubun, Minnesota 56589
Postmaster, Callaway, Minnesota 56521
Community Center, Route 2, Bagley, Minnesota 56621
Community Center, Star Route, Mahnomen, Minnesota 56557
Postmaster, Mahnomen, Minnesota 56557
Rice Lake Community Center, Route 2, Bagley, Minnesota 56621
[[Page 77]]
Postmaster, Ogema, Minnesota 56569
Pine Point Community Center, Ponsford, Minnesota 56575
Postmaster, White Earth, Minnesota 56591
White Earth IHS, White Earth, Minnesota 56591
Postmaster, Ponsford, Minnesota 56575
American Indian Center, 1113 West Broadway, Minneapolis, Minnesota 55411
American Indian Center, 1530 East Franklin Avenue, Minneapolis,
Minnesota 55404
American Indian Center, 341 University Avenue, St. Paul, Minnesota 55103
Little Earth of United Tribes Community Services, 2501 Cedar Avenue
South, Minneapolis, Minnesota 55404
Naytahwaush Community Center, Naytahwaush, Minnesota 56566
The Project Director shall provide a certificate showing when the
notice of the preliminary determination was forwarded for posting, and
to which locations. A posting certificate showing the date and place of
posting shall be signed by the person or official who performs the act
and returned to the Project Director. The Project Director shall file
with the administrative judge the original posting certificates and the
Project Director's certificate of mailing showing the posting locations
and when the notice of the preliminary determination was forwarded for
posting.
(3) If no written request for hearing or written objection is
received in the office of the administrative judge within the forty (40)
days of issuance of the notice, the administrative judge shall issue a
final order declaring the preliminary determination to be final thirty
(30) days from the date on which the final order is mailed to each party
in interest.
(c) When the administrative judge determines either before or after
issuance of a preliminary determination that there are issues which
require resolution, or when a party objects to the preliminary
determination and/or requests a hearing, the administrative judge may
either resolve the issues informally or schedule and conduct a
prehearing conference and/or a hearing. Any prehearing conference,
hearing, or rehearing, conducted by the administrative judge shall be
governed insofar as practicable by the regulations applicable to other
hearings under this part and the general rules in subpart B of this
part. After receipt of the testimony and/or evidence, if any, the
administrative judge shall enter a final order determining the heirs of
the decedent, which shall become final thirty (30) days from the date on
which the final order is mailed to each party in interest.
(d) The final order determining the heirs of the decedent shall
contain, where applicable, the names, birth dates, relationships to the
decedent, and shares of heirs, or the fact that the decedent died
without heirs.
[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991; 57 FR 2319, Jan.
21, 1992, as amended at 64 FR 13363, Mar. 18, 1999]
Sec.4.353 Record.
(a) The administrative judge shall lodge the original record with
the Project Director.
(b) The record shall contain, where applicable, the following
materials:
(1) A copy of the posted public notice of preliminary determination
and/or hearing showing the posting certifications, the administrative
judge's certificate of mailing, the posting certificates, and the
Project Director's certificate of mailing.
(2) A copy of each notice served on parties in interest, with proof
of mailing;
(3) The record of evidence received, including any transcript made
of testimony;
(4) Data for heirship finding and family history, and data
supplementary thereto;
(5) The final order determining the heirs of the decedent and the
administrative judge's notices thereof; and
(6) Any other material or documents deemed relevant by the
administrative judge.
Sec.4.354 Reconsideration or rehearing.
(a) Any party aggrieved by the final order of the administrative
judge may, within thirty (30) days after the date of mailing such
decision, file with the administrative judge a written petition for
reconsideration and/or rehearing. Such petition must be under oath and
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
[[Page 78]]
the new evidence or testimony is to be. It shall also state justifiable
reasons for the prior failure to discover and present the evidence.
(b) If proper grounds are not shown, or if the petition is not filed
within the time prescribed in paragraph (a) of this section, the
administrative judge shall issue an order denying the petition and shall
set forth therein the reasons therefor. The administrative judge shall
serve copies of such order on all parties in interest.
(c) If the petition appears to show merit, or if the administrative
judge becomes aware of sufficient additional evidence to justify
correction of error even without the filing of a petition, or upon
remand from the Board following an appeal resulting in vacating the
final order, the administrative judge shall cause copies of the
petition, supporting papers, and other data, or in the event of no
petition an order to show cause or decision of the Board vacating the
final order in appropriate cases, to be served on all parties in
interest. The parties in interest will be allowed a reasonable,
specified time within which to submit answers or legal briefs in
opposition to the petition or order to show cause or Board decision. The
administrative judge shall then reconsider, with or without hearing, the
issues of fact and shall issue a final order upon reconsideration,
affirming, modifying, or vacating the original final order and making
such further orders as are deemed warranted. The final order upon
reconsideration shall be served on all parties in interest and shall
become final thirty (30) days from the date on which it is mailed.
(d) Successive petitions for reconsideration and/or rehearing shall
not be permitted. Nothing herein shall be considered as a bar to the
remand of a case by the Board for further reconsideration, hearing, or
rehearing after appeal.
Sec.4.355 Omitted compensation.
When, subsequent to the issuance of a final order determining heirs
under Sec.4.352, it is found that certain additional compensation had
been due the decedent and had not been included in the report of
compensation, the report shall be modified administratively by the
Project Director. Copies of such modification shall be furnished to all
heirs as previously determined and to the appropriate administrative
judge.
Sec.4.356 Appeals.
(a) A party aggrieved by a final order of an administrative judge
under Sec.4.352, or by a final order upon reconsideration of an
administrative judge under Sec.4.354, may appeal to the Board
(address: Board of Indian Appeals, Office of Hearings and Appeals, 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
[[Page 79]]
the final order or final order upon reconsideration is vacated, the
proceeding shall be remanded to the appropriate administrative judge for
reconsideration and/or rehearing.
[56 FR 61383, Dec. 3, 1991, as amended at 67 FR 4368, Jan. 30, 2002]
Sec.4.357 Guardians for minors and incompetents.
Persons less than 18 years of age and other legal incompetents who
are parties in interest may be represented at all hearings by legally
appointed guardians or by guardians ad litem appointed by the
administrative judge.
Subpart E_Special Rules Applicable to Public Land Hearings and Appeals
Authority: Sections 4.470 to 4.480 are also issued under authority
of 43 U.S.C. 315a.
Cross Reference: See subpart A for the authority, jurisdiction and
membership of the Board of Land Appeals within the Office of Hearings
and Appeals. For general rules applicable to proceedings before the
Board of Land Appeals as well as the other Appeals Boards of the Office
of Hearings and Appeals, see subpart B.
Appeals Procedures
Appeals Procedures; General
Sec.4.400 Definitions.
As used in this subpart:
Administrative law judge means an administrative law judge in the
Office of Hearings and Appeals, appointed under 5 U.S.C. 3105.
BIA means the Bureau of Indian Affairs.
BLM means the Bureau of Land Management.
Board means the Interior Board of Land Appeals in the Office of
Hearings and Appeals. The address of the Board is 801 N. Quincy Street,
Suite 300, Arlington, Virginia 22203. The telephone number is 703-235-
3750, and the facsimile number is 703-235-8349.
BOEMRE means the Bureau of Ocean Energy Management, Regulation and
Enforcement.
Bureau or Office means BIA, BLM, BOEMRE, ONRR, the Deputy Assistant
Secretary--Natural Resources Revenue, or any successor organization, as
appropriate.
Last address of record means the address in a person's most recent
filing in an appeal or, if there has not been any filing, the person's
address as provided in the Bureau or Office decision under appeal.
ONRR means the Office of Natural Resources Revenue.
Office or officer includes ``administrative law judge'' or ``Board''
where the context so requires.
Party includes a party's representative(s) where the context so
requires.
Secretary means the Secretary of the Interior or an authorized
representative.
[75 FR 64663, Oct. 20, 2010; 75 FR 68704, Nov. 9, 2010]
Sec.4.401 Documents.
(a) Grace period for filing. Whenever a document is required under
this subpart to be filed within a certain time and it is not received in
the proper office during that time, the delay in filing will be waived
if the document is filed not later than 10 days after it was required to
be filed and it is determined that the document was transmitted or
probably transmitted to the office in which the filing is required
before the end of the period in which it was required to be filed.
Determinations under this paragraph shall be made by the officer before
whom is pending the appeal in connection with which the document is
required to be filed.
(b) Transferees and encumbrancers. Transferees and encumbrancers of
land the title to which is claimed or is in the process of acquisition
under any public land law shall, upon filing notice of the transfer or
encumbrance in the proper land office, become entitled to receive and be
given the same notice of any appeal, or other proceeding thereafter
initiated affecting such interest which is required to be given to a
party to the proceeding. Every such notice of a transfer or encumbrance
will be noted upon the records of the land office. Thereafter such
transferee or encumbrancer must be made a party to any proceedings
thereafter initiated adverse to the entry.
[[Page 80]]
(c) Service of documents. (1) A party that files any document under
this subpart must serve a copy of it concurrently as follows:
(i) On the appropriate official of the Office of the Solicitor under
Sec.4.413(c) and (d);
(ii) For a notice of appeal and statement of reasons, on each person
named in the decision under appeal; and
(iii) For all other documents, on each party to the appeal
(including intervenors).
(2) Service on a person or party known to be represented by counsel
or other designated representative must be made on the representative.
(3) Service must be made at the last address of record of the person
or party (if unrepresented) or the representative, unless the person,
party, or representative has notified the serving party of a subsequent
change of address.
(4) Service may be made as shown in the following table:
------------------------------------------------------------------------
If the document is . . . Service may be made by . . .
------------------------------------------------------------------------
(i) A notice of appeal............... (A) Personal delivery;
(B) Registered or certified mail,
return receipt requested;
(C) Delivery service, delivery
receipt requested, if the last
address of record is not a post
office box; or
(D) Electronic means, such as
electronic mail or facsimile, if
the person to be served has
previously consented to that
means in writing.
(ii) Not a notice of appeal.......... (A) Personal delivery;
(B) Mail;
(C) Delivery service, if the last
address of record is not a post
office box; or
(D) Electronic means, such as
electronic mail or facsimile, if
the person to be served has
previously consented to that
means in writing.
------------------------------------------------------------------------
(5) At the conclusion of any document that a party must serve under
the regulations in this subpart, the party must sign a written statement
that:
(i) Certifies that service has been or will be made in accordance
with the applicable rules; and
(ii) Specifies the date and manner of service.
(6) Service that complies with paragraphs (c)(2) through (4) of this
section is complete as shown in the following table:
------------------------------------------------------------------------
Service is complete when the
If service is made by . . . document is . . .
------------------------------------------------------------------------
(i) Personal delivery................ Delivered to the party.
(ii) Mail or delivery service........ Delivered to the party.
(iii) Electronic means............... Transmitted to the party, unless
the serving party learns that it
did not reach the party to be
served.
------------------------------------------------------------------------
(7) In the absence of evidence to the contrary, delivery under
paragraph (c)(6)(ii) of this section is deemed to take place 5 business
days after the document was sent. A document is considered sent when it
is given to the U.S. Postal Service (or deposited in one of its
mailboxes), properly addressed and with proper postage affixed, or when
it is given to a delivery service (or deposited in one of its
receptacles), properly addressed and with the delivery cost prepaid.
(d) Document format. (1) The format requirements in paragraph (d)(2)
of this section apply to any pleading, motion, brief, or other document
filed in a case under this subpart, other than an exhibit or attachment
or the administrative record.
(i) An exhibit or attachment must be 8\1/2\ by 11 inches in size or,
if larger, folded to 8\1/2\ by 11 inches and attached to the document.
(ii) Any document that does not comply with the requirements in this
paragraph (d) may be rejected.
(2) A document filed in a case must:
(i) Be 8\1/2\ by 11 inches in size;
(ii) Be printed on just one side of the page;
(iii) Be clearly typewritten, printed, or otherwise reproduced by a
process that yields legible and permanent copies;
(iv) Use 11 point font size or larger;
[[Page 81]]
(v) Be double-spaced except for the case caption, argument headings,
long quotations, and footnotes, which may be single-spaced;
(vi) Have margins of at least 1 inch;
(vii) Be numbered sequentially, starting on the second page; and
(vii) Be stapled in the upper left-hand corner, if stapled, or bound
on the left side, if bound.
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 68
FR 33803, June 5, 2003; 75 FR 64664, Oct. 20, 2010]
Sec.4.402 Summary dismissal.
An appeal to the Board will be subject to summary dismissal by the
Board for any of the following causes:
(a) If a statement of the reasons for the appeal is not included in
the notice of appeal and is not filed within the time required;
(b) If the notice of appeal is not served upon adverse parties
within the time required; and
(c) If the statement of reasons, if not contained in the notice of
appeal, is not served upon adverse parties within the time required.
(d) If the statement of standing required by Sec.4.412(b) is not
filed with the Board or is not served upon adverse parties within the
time required.
[36 FR 7186, Apr. 15, 1971, as amended at 47 FR 26392, June 18, 1982]
Sec.4.403 Finality of decision; reconsideration.
(a) The Board's decision is final agency action and is effective on
the date it is issued, unless the decision itself provides otherwise.
(b) The Board may reconsider its decision in extraordinary
circumstances.
(1) A party that wishes to request reconsideration of a Board
decision must file a motion for reconsideration with the Board within 60
days after the date of the decision.
(2) The motion may include a request that the Board stay the
effectiveness of its decision.
(3) Any other party to the original appeal may file a response to a
motion for reconsideration with the Board within 21 days after service
of the motion, unless the Board orders otherwise.
(4) A motion for reconsideration will not stay the effectiveness or
affect the finality of the Board's decision unless so ordered by the
Board for good cause.
(5) A party does not need to file a motion for reconsideration in
order to exhaust its administrative remedies.
(c) A motion for reconsideration must:
(1) Specifically describe the extraordinary circumstances that
warrant reconsideration; and
(2) Include all arguments and supporting documents.
(d) Extraordinary circumstances that may warrant granting
reconsideration include, but are not limited to:
(1) Error in the Board's interpretation of material facts;
(2) Recent judicial development;
(3) Change in Departmental policy; or
(4) Evidence that was not before the Board at the time the Board's
decision was issued and that demonstrates error in the decision.
(e) If the motion cites extraordinary circumstances under paragraph
(d)(4) of this section, it must explain why the evidence was not
provided to the Board during the course of the original appeal.
(f) The Board will not grant a motion for reconsideration that:
(1) Merely repeats arguments made in the original appeal, except in
cases of demonstrable error; or
(2) Seeks relief from the legally binding consequences of a statute
or regulation.
[75 FR 64664, Oct. 20, 2010]
Sec.4.404 Consolidation.
If the facts or legal issues in two or more appeals pending before
the Board are the same or similar, the Board may consolidate the
appeals, either on motion by a party or at the initiative of the Board.
[75 FR 64665, Oct. 20, 2010]
Sec.4.405 Extensions of time.
(a) If a document other than a notice of appeal is required to be
filed or served within a definite time, a party may seek additional time
by filing with the Board a motion requesting an extension of time.
[[Page 82]]
(b) A motion requesting an extension must be filed no later than the
day before the date the document is due, absent compelling
circumstances. The motion may be filed and served by facsimile. Section
4.401(a) does not apply to a motion requesting an extension of time.
(c) Except as provided in paragraph (f) of this section, before
filing a motion requesting an extension of time, the moving party must
make reasonable efforts to contact each other party to determine whether
the party opposes the motion. The moving party must state in its motion:
(1) Whether any party it reached opposes the motion; and
(2) What steps it took to contact any party it was unable to reach.
(d) Except as provided in paragraph (f) of this section, the party
must support its motion requesting an extension of time by showing there
is good cause to grant it.
(e) A Board order granting or denying a motion requesting an
extension will state when the document must be filed. Except as provided
in paragraph (f) of this section, if the Board does not act on a motion
before the document is due, the document must be filed no later than 15
days after the original due date, unless the Board orders otherwise.
(f) A party seeking additional time to file an answer may have one
automatic extension, not to exceed 30 days, of the deadline in Sec.
4.414(a) by filing a motion for such extension under paragraphs (a) and
(b) of this section.
[75 FR 64665, Oct. 20, 2010]
Sec.4.406 Intervention; amicus curiae.
(a) A person who wishes to intervene in an appeal must file a motion
to intervene within 30 days after the person knew or should have known
that the decision had been appealed to the Board.
(b) A motion to intervene must set forth the basis for the proposed
intervention, including:
(1) Whether the person had a right to appeal the decision under
Sec.4.410 or would be adversely affected if the Board reversed,
vacated, set aside, or modified the decision; and
(2) How and when the person learned of the appeal.
(c) The Board may:
(1) Grant the motion to intervene;
(2) Deny the motion to intervene for good cause, e.g., where
granting it would disadvantage the rights of the existing parties or
unduly delay adjudication of the appeal; or
(3) Grant the motion to intervene but limit the person's
participation in the appeal.
(d) A person may file a motion at any time to file a brief as an
amicus curiae.
(1) The motion must state the person's interest in the appeal and
how its brief will be relevant to the issues involved.
(2) The Board may grant or deny the motion in its discretion. The
Board may also allow a person to file a brief as amicus curiae if it
denies the person's motion to intervene.
(e) A person granted full or limited intervenor status is a party to
the appeal, while an amicus curiae is not. A person granted amicus
curiae status must serve its brief on the parties to the appeal.
[75 FR 64665, Oct. 20, 2010]
Sec.4.407 Motions.
(a) Any motion filed with the Board must provide a concise statement
of the reasons supporting the motion.
(b) When a person or party files a motion, other than a motion for
an extension of time under Sec.4.405, any party has 15 days after
service of the motion to file a written response, unless a provision of
this subpart or the Board by order provides otherwise.
(c) The Board will rule on any motion as expeditiously as possible.
(d) The requirements of Sec.4.401(d) apply to a motion.
[75 FR 64665, Oct. 20, 2010]
appeals to the board of land appeals
Sec.4.410 Who may appeal.
(a) Any party to a case who is adversely affected by a decision of
the Bureau or Office or an administrative law judge has the right to
appeal to the Board, except:
[[Page 83]]
(1) As otherwise provided in Group 2400 of chapter II of this title,
(2) To the extent that decisions of Bureau of Land Management
officers must first be appealed to an administrative law judge under
Sec.4.470 and part 4100 of this title,
(3) Where a decision has been approved by the Secretary, and
(4) As provided in paragraph (e) of this section.
(b) A party to a case, as set forth in paragraph (a) of this
section, is one who has taken action that is the subject of the decision
on appeal, is the object of that decision, or has otherwise participated
in the process leading to the decision under appeal, e.g., by filing a
mining claim or application for use of public lands, by commenting on an
environmental document, or by filing a protest to a proposed action.
(c) Where the Bureau or Office provided an opportunity for
participation in its decisionmaking process, a party to the case, as set
forth in paragraph (a) of this section, may raise on appeal only those
issues:
(1) Raised by the party in its prior participation; or
(2) That arose after the close of the opportunity for such
participation.
(d) A party to a case is adversely affected, as set forth in
paragraph (a) of this section, when that party has a legally cognizable
interest, and the decision on appeal has caused or is substantially
likely to cause injury to that interest.
(e) For decisions rendered by Departmental officials relating to
land selections under the Alaska Native Claims Settlement Act, as
amended, any party who claims a property interest in land affected by
the decision, an agency of the Federal Government or a regional
corporation shall have a right to appeal to the Board.
[47 FR 26392, June 18, 1982, as amended at 68 FR 33803, June 5, 2003; 75
FR 64665, Oct. 20, 2010]
Sec.4.411 Appeal; how taken, mandatory time limit.
(a) A person who wishes to appeal to the Board must file a notice
that the person wishes to appeal.
(1) The notice of appeal must be filed in the office of the officer
who made the decision (not the Board).
(2) Except as otherwise provided by law:
(i) A person served with the decision being appealed must transmit
the notice of appeal in time for it to be received in the appropriate
office no later than 30 days after the date of service of the decision;
and
(ii) If a decision is published in the Federal Register, a person
not served with the decision must transmit the notice of appeal in time
for it to be received in the appropriate office no later than 30 days
after the date of publication.
(b) The notice of appeal must give the serial number or other
identification of the case. The notice of appeal may include a statement
of reasons for the appeal, and a statement of standing if required by
Sec.4.412(b).
(c) No extension of time will be granted for filing the notice of
appeal. If a notice of appeal is filed after the grace period provided
in Sec.4.401(a), the notice of appeal will not be considered and the
case will be closed by the officer from whose decision the appeal is
taken. If the notice of appeal is filed during the grace period provided
in Sec.4.401(a) and the delay in filing is not waived, as provided in
that section, the notice of appeal will not be considered and the appeal
will be dismissed by the Board.
(d) After receiving a timely notice of appeal, the office of the
officer who made the decision must promptly forward to the Board:
(1) The notice of appeal;
(2) Any statement of reasons, statement of standing, and other
documents included with the notice of appeal; and
(3) The complete administrative record compiled during the officer's
consideration of the matter leading to the decision being appealed.
(R.S. 2478, as amended, 43 U.S.C. 1201; sec. 25, Alaska Native Claims
Settlement Act, as amended, 43 U.S.C. 1601-1628; and the Administrative
Procedure Act, 5 U.S.C. 551, et seq.)
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 49
FR 6373, Feb. 21, 1984; 75 FR 64665, Oct. 20, 2010]
[[Page 84]]
Sec.4.412 Statement of reasons; statement of standing; reply briefs.
(a) An appellant must file a statement of reasons for appeal with
the Board no later than 30 days after the notice of appeal was filed.
Unless the Board orders otherwise upon motion for good cause shown, the
text of a statement of reasons may not exceed 30 pages, excluding
exhibits, declarations, or other attachments.
(b) Where the decision being appealed relates to land selections
under the Alaska Native Claims Settlement Act, as amended, the appellant
also shall file with the Board a statement of facts upon which the
appellant relies for standing under Sec.4.410(b) within 30 days after
filing of the notice of appeal. The statement may be included with the
notice of appeal filed pursuant to Sec.4.411 or the statement of
reasons filed pursuant to paragraph (a) of this section or may be filed
as a separate document.
(c) Failure to file the statement of reasons and statement of
standing within the time required will subject the appeal to summary
dismissal as provided in Sec.4.402, unless the delay in filing is
waived as provided in Sec.4.401(a).
(d) The filing of a reply brief is discouraged. However, an
appellant who wishes to file a reply brief may do so within 15 days
after service of an answer under Sec.4.414.
(1) The reply brief is limited to the issues raised in the answer.
(2) Unless the Board orders otherwise upon motion for good cause
shown, the text of a reply brief may not exceed 20 pages, excluding
exhibits, declarations, or other attachments.
(e) The requirements of Sec.4.401(d) apply to a statement of
reasons and a reply brief.
[47 FR 26392, June 18, 1982, as amended at 67 FR 4368, Jan. 30, 2002; 75
FR 64666, Oct. 20, 2010]
Sec.4.413 Service of notice of appeal.
(a) The appellant must serve a copy of the notice of appeal on each
person named in the decision from which the appeal is taken and on the
Office of the Solicitor as identified in paragraphs (c) and (d) of this
section. Service must be accomplished and certified as prescribed in
Sec.4.401(c).
(b) Failure to serve a notice of appeal will subject the appeal to
summary dismissal as provided in Sec.4.402.
(c) The appellant must serve a copy of the notice of appeal on the
Office of the Solicitor as shown in the following table.
------------------------------------------------------------------------
If the appeal is taken from a Then the appellant must serve the
decision of . . . notice on . . .
------------------------------------------------------------------------
(1) ONRR, the Deputy Assistant Regional Solicitor, Rocky Mountain
Secretary--Natural Resources Region, U.S. Department of the
Revenue, or BIA concerning Interior, 755 Parfet Street, Suite
royalties. 151, Lakewood, CO 80215.
(2) BOEMRE........................ Associate Solicitor, Division of
Mineral Resources, U.S. Department
of the Interior, Washington, DC
20240.
(3) The Director, BLM............. (i) If the decision concerns use and
disposition of public lands,
including land selections under the
Alaska Native Claims Settlement
Act, as amended: Associate
Solicitor, Division of Land and
Water Resources, U.S. Department of
the Interior, Washington, DC 20240;
or
(ii) If the decision concerns use
and disposition of mineral
resources: Associate Solicitor,
Division of Mineral Resources, U.S.
Department of the Interior,
Washington, DC 20240.
(4) A BLM State Office (including The appropriate office identified in
all District, Field, and Area paragraph (d) of this section.
Offices within that State
Office's jurisdiction).
(5) An Administrative Law Judge... The persons identified in paragraph
(e) of this section.
------------------------------------------------------------------------
(d) This paragraph applies to any appeal taken from a decision of a
BLM State Office, including all District, Field, and Area Offices within
that State Office's jurisdiction. The appellant must serve documents on
the Office of the Solicitor in accordance with the following table,
unless the decision identifies a different official:
------------------------------------------------------------------------
BLM state office Mailing address
------------------------------------------------------------------------
(1) Alaska........................ Regional Solicitor, Alaska Region,
U.S. Department of the Interior,
4230 University Drive, Suite 300,
Anchorage, AK 99508-4626.
[[Page 85]]
(2) Arizona....................... Field Solicitor, U.S. Department of
the Interior, U.S. Courthouse,
Suite 404, 401 W. Washington St.
SPC 44, Phoenix, AZ 85003.
(3) California.................... Regional Solicitor, Pacific
Southwest Region, U.S. Department
of the Interior, 2800 Cottage Way,
Room E-1712, Sacramento, CA 95825-
1890.
(4) Colorado...................... Regional Solicitor, Rocky Mountain
Region, U.S. Department of the
Interior, 755 Parfet Street, Suite
151, Lakewood, CO 80215.
(5) Eastern States................ (i) For decisions involving
Connecticut, Delaware, Illinois,
Indiana, Iowa, Maine, Maryland,
Massachusetts, Michigan, Minnesota,
New Hampshire, New Jersey, New
York, Ohio, Pennsylvania, Rhode
Island, Vermont, Virginia, West
Virginia, or Wisconsin: Regional
Solicitor, Northeast Region, U.S.
Department of the Interior, One
Gateway Center, Suite 612, Newton,
MA 02458.
(ii) For decisions involving
Alabama, Arkansas, Florida,
Georgia, Kentucky, Louisiana,
Mississippi, Missouri, North
Carolina, South Carolina, or
Tennessee: Regional Solicitor,
Southeast Region, U.S. Department
of the Interior, 75 Spring Street,
SW., Suite 304, Atlanta, Georgia
30303.
(6) Idaho......................... Field Solicitor, U.S. Department of
the Interior, University Plaza, 960
Broadway Avenue, Suite 400, Boise,
ID 83706.
(7) Montana (covers the states of (i) Deliveries by U.S. Mail: Field
Montana, North Dakota, and South Solicitor, U.S. Department of the
Dakota). Interior, P.O. Box 31394, Billings,
MT 59107-1394.
(ii) All other deliveries: Field
Solicitor, U.S. Department of the
Interior, 316 North 26th Street,
Room 3005, Billings, MT 59101.
(8) Nevada........................ Regional Solicitor, Pacific
Southwest Region, U.S. Department
of the Interior, 2800 Cottage Way,
Room E-1712, Sacramento, CA 95825-
1890.
(9) New Mexico (covers the states Regional Solicitor, Southwest
of New Mexico, Kansas, Oklahoma, Region, U.S. Department of the
and Texas). Interior, 505 Marquette Ave., NW.,
Suite 1800, Albuquerque, NM 87102.
(10) Oregon (covers the states of Regional Solicitor, Pacific
Oregon and Washington). Northwest Region, U.S. Department
of the Interior, 805 SW. Broadway,
Suite 600, Portland, OR 97205.
(11) Utah......................... Regional Solicitor, Intermountain
Region, U.S. Department of the
Interior, 6201 Federal Building,
125 South State Street, Salt Lake
City, UT 84138-1180.
(12) Wyoming (covers the states of Regional Solicitor, Rocky Mountain
Wyoming and Nebraska). Region, U.S. Department of the
Interior, 755 Parfet Street, Suite
151, Lakewood, CO 80215.
------------------------------------------------------------------------
(e) This paragraph applies to any appeal taken from a decision of an
administrative law judge.
(1) Except as provided in paragraph (e)(2) of this section, the
appellant must serve either:
(i) The attorney from the Office of the Solicitor who represented
the Bureau or Office at the hearing; or
(ii) If there was no hearing, the attorney who was served with a
copy of the decision by the administrative law judge.
(2) If the decision involved a mining claim on national forest land,
the appellant must serve either:
(i) The attorney from the Office of General Counsel, U.S. Department
of Agriculture, who represented the U.S. Forest Service at the hearing;
or
(ii) If there was no hearing, the attorney who was served with a
copy of the decision by the administrative law judge.
(f) Parties must serve the Office of the Solicitor as required by
this section until a particular attorney of the Office of the Solicitor
files and serves a Notice of Appearance or Substitution of Counsel.
Thereafter, parties must serve the Office of the Solicitor as indicated
by the Notice of Appearance or Substitution of Counsel.
(g) The appellant must certify service as provided in Sec.
4.401(c)(5).
[75 FR 64666, Oct. 20, 2010]
Sec.4.414 Answers.
(a) Any person served with a notice of appeal who wishes to
participate in the appeal must file an answer or appropriate motion with
the Board within 30 days after service of the statement of reasons for
appeal. The answer must respond to the statement of reasons for appeal.
(b) Unless the Board orders otherwise upon motion for good cause
shown:
(1) The text of the answer or motion may not exceed 30 pages,
excluding exhibits, declarations, or other attachments; and
(2) The party may not file any further pleading.
(c) Failure to file an answer or motion will not result in a
default. If an answer or motion is filed or served after the time
required, the Board may
[[Page 86]]
disregard it in deciding the appeal, unless the delay in filing is
waived as provided in Sec.4.401(a).
(d) The requirements of Sec.4.401(d) apply to an answer or motion.
[75 FR 64666, Oct. 20, 2010]
Sec.4.415 Motion for a hearing on an appeal involving questions
of fact.
(a) Any party may file a motion that the Board refer a case to an
administrative law judge for a hearing. The motion must state:
(1) What specific issues of material fact require a hearing;
(2) What evidence concerning these issues must be presented by oral
testimony, or be subject to cross-examination;
(3) What witnesses need to be examined; and
(4) What documentary evidence requires explanation, if any.
(b) In response to a motion under paragraph (a) of this section or
on its own initiative, the Board may order a hearing if there are:
(1) Any issues of material fact which, if proved, would alter the
disposition of the appeal; or
(2) Significant factual or legal issues remaining to be decided, and
the record without a hearing would be insufficient for resolving them.
(c) If the Board orders a hearing, it must:
(1) Specify the issues of fact upon which the hearing is to be held;
and
(2) Request the administrative law judge to issue:
(i) Proposed findings of fact on the issues presented at the
hearing;
(ii) A recommended decision that includes findings of fact and
conclusions of law; or
(iii) A decision that will be final for the Department unless a
notice of appeal is filed in accordance with Sec.4.411.
(d) If the Board orders a hearing, it may do one or more of the
following:
(1) Suspend the effectiveness of the decision under review pending a
final Departmental decision on the appeal if it finds good cause to do
so;
(2) Authorize the administrative law judge to specify additional
issues; or
(3) Authorize the parties to agree to additional issues that are
material, with the approval of the administrative law judge.
(e) The hearing will be conducted under Sec. Sec.4.430 to 4.438
and the general rules in subpart B of this part. Unless the Board orders
otherwise, the administrative law judge may consider other relevant
issues and evidence identified after referral of the case for a hearing.
[75 FR 64666, Oct. 20, 2010]
Sec.4.416 Appeals of wildfire management decisions.
The Board must decide appeals from decisions under Sec.4190.1 and
Sec.5003.1(b) of this title within 60 days after all pleadings have
been filed, and within 180 days after the appeal was filed.
[68 FR 33803, June 5, 2003]
Hearings Procedures
Hearings procedures; general--Table of Contents
Sec.4.420 Applicability of general rules.
To the extent they are not inconsistent with these special rules,
the general rules of the Office of Hearings and Appeals in subpart B of
this part are also applicable to hearings, procedures.
Sec.4.421 Definitions.
In addition to the definitions in Sec.4.400, as used in this
subpart:
Director means the Director of BLM or a BLM Deputy Director or
Assistant Director.
Manager means the BLM official with direct jurisdiction over the
public lands that are pertinent to the decision or contest.
Person named in the decision means any of the following persons
identified in a final BLM grazing decision: An affected applicant,
permittee, lessee, or agent or lienholder of record, or an interested
public as defined in Sec.4100.0-5 of this title.
State Director means the supervising BLM officer for the State in
which a particular range lies, or an authorized representative.
[75 FR 64667, Oct. 20, 2010]
[[Page 87]]
Sec.4.422 Documents.
(a) Grace period for filing. Whenever a document is required under
this subpart to be filed within a certain time and it is not received in
the proper office during that time, the delay in filing will be waived
if the document is filed not later than 10 days after it was required to
be filed and it is determined that the document was transmitted or
probably transmitted to the office in which the filing is required
before the end of the period in which it was required to be filed.
Determinations under this paragraph shall be made by the officer before
whom is pending the appeal or contest in connection with which the
document is required to be filed. This paragraph does not apply to
requests for postponement of hearings under Sec. Sec.4.452-1 and
4.452-2.
(b) Transferees and encumbrancers. Transferees and encumbrancers of
land, the title to which is claimed or is in the process of acquisition
under any public land law shall, upon filing notice of the transfer or
encumbrance in the proper land office, become entitled to receive and be
given the same notice of any contest, appeal, or other proceeding
thereafter initiated affecting such interest which is required to be
given to a party to the proceeding. Every such notice of a transfer or
encumbrance will be noted upon the records of the land office.
Thereafter such transferee or encumbrancer must be made a party to any
proceedings thereafter initiated adverse to the entry.
(c) Service of documents. (1) A party that files any document under
this subpart must serve a copy of it concurrently as follows:
(i) On the appropriate official of the Office of the Solicitor under
Sec.4.413(c) and (d);
(ii) For a notice of appeal and statement of reasons, on each person
named in the decision under appeal; and
(iii) For all other documents, on each party to the appeal.
(2) Service on a party known to be represented by counsel or other
designated representative must be made on the representative.
(3) Service must be made at the last address of record of the party
(if unrepresented) or the representative, unless the party or
representative has notified the serving party of a subsequent change of
address.
(4) Service may be made as shown in the following table:
------------------------------------------------------------------------
If the document is . . . Service may be made by . . .
------------------------------------------------------------------------
(i) An appeal under Sec. 4.470.. (A) Personal delivery;
(B) Registered or certified mail,
return receipt requested;
(C) Delivery service, delivery
receipt requested, if the last
address of record is not a post
office box; or
(D) Electronic means, such as
electronic mail or facsimile, if
the person to be served has
previously consented to that means
of service in writing.
(ii) A complaint under Sec. (A) Any of the methods specified in
4.450-4 or 4.451-2. paragraph (c)(4)(i) of this
paragraph; or
(B) Publication as specified in Sec.
4.450-5.
(iii) Neither an appeal nor a (A) Personal delivery;
complaint.
(B) Mail;
(C) Delivery service, if the last
address of record is not a post
office box; or
(D) Electronic means, such as
electronic mail or facsimile, if
the person to be served has
consented to that means in writing.
------------------------------------------------------------------------
(5) At the conclusion of any document that a party must serve under
the regulations in this subpart, the party must sign a written statement
that:
(i) Certifies that service has been or will be made in accordance
with the applicable rules; and
(ii) Specifies the date and manner of service.
(6) Service that complies with paragraphs (c)(2) through (4) of this
section is complete as shown in the following table:
------------------------------------------------------------------------
If service is made by . . . Service is complete when . . .
------------------------------------------------------------------------
(i) Personal delivery............. The document is delivered to the
party.
[[Page 88]]
(ii) Mail or delivery service..... The document is delivered to the
party.
(iii) Electronic means............ The document is transmitted to the
party, unless the serving party
learns that it did not reach the
party to be served.
(iv) Publication.................. The final notice is published under
Sec. 4.450-5(b)(3).
------------------------------------------------------------------------
(7) In the absence of evidence to the contrary, delivery under
paragraph (c)(6)(ii) of this section is deemed to take place 5 business
days after the document was sent.
(d) The manager or administrative law judge, as the case may be, may
extend the time for filing or serving any document in a contest, other
than a notice of appeal under Sec.4.452-9.
[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 68
FR 33803, June 5, 2003; 75 FR 64667, Oct. 20, 2010]
Sec.4.423 Subpoena power and witness provisions.
The administrative law judge is authorized to issue subpoenas
directing the attendance of witnesses at hearings to be held before him
or at the taking of depositions to be held before himself or other
officers, for the purpose of taking testimony but not for discovery. The
issuance of subpoenas, service, attendance fees, and similar matters
shall be governed by the Act of January 31, 1903 (43 U.S.C. 102-106),
and 28 U.S.C. 1821.
hearings on appeals involving questions of fact
Sec.4.430 Prehearing conferences.
(a) The administrative law judge may, in his discretion, on his own
motion or motion of one of the parties or of the Bureau or Office direct
the parties or their representatives to appear at a specified time and
place for a prehearing conference to consider: (1) The possibility of
obtaining stipulations, admissions of facts and agreements to the
introduction of documents, (2) the limitation of the number of expert
witnesses, and (3) any other matters which may aid in the disposition of
the proceedings.
(b) The administrative law judge shall issue an order which recites
the action taken at the conference and the agreements made as to any of
the matters considered, and which limits the issues for hearing to those
not disposed of by admissions or agreements. Such order shall control
the subsequent course of the proceeding before the administrative law
judge unless modified for good cause, by subsequent order.
[36 FR 7186, Apr. 15, 1971, as amended at 75 FR 64668, Oct. 20, 2010]
Sec.4.431 Fixing of place and date for hearing; notice.
The administrative law judge shall fix a place and date for the
hearing and notify all parties and the Bureau or Office. All hearings
held in connection with land selection appeals arising under the Alaska
Native Claims Settlement Act, as amended, shall be conducted within the
State of Alaska, unless the parties agree otherwise.
[47 FR 26392, June 18, 1982, as amended at 75 FR 64668, Oct. 20, 2010]
Sec.4.432 Postponements.
(a) Postponements of hearings will not be allowed upon the request
of any party or the Bureau or Office except upon a showing of good cause
and proper diligence. A request for a postponement must be served upon
all parties to the proceeding and filed in the office of the
administrative law judge at least 10 days prior to the date of the
hearing. In no case will a request for postponement served or filed less
than 10 days in advance of the hearing or made at the hearing be granted
unless the party requesting it demonstrates that an extreme emergency
occurred which could not have been anticipated and which justifies
beyond question the granting of a postponement. In any such emergency,
if time does not permit the filing of such request prior to the hearing,
it may be made orally at the hearing.
(b) The request for a postponement must state in detail the reasons
why a postponement is necessary. If a request is based upon the absence
of witnesses, it must state what the substance of the
[[Page 89]]
testimony of the absent witnesses would be. No postponement will be
granted if the adverse party or parties file with the examiner within 5
days after the service of the request a statement admitting that the
witnesses on account of whose absence the postponement is desired would,
if present, testify as stated in the request. If time does not permit
the filing of such statement prior to the hearing, it may be made orally
at the hearing.
(c) Only one postponement will be allowed to a party on account of
the absence of witnesses unless the party requesting a further
postponement shall at the time apply for an order to take the testimony
of the alleged absent witness by deposition.
[36 FR 7186, Apr. 15, 1971, as amended at 75 FR 64668, Oct. 20, 2010]
Sec.4.433 Authority of the administrative law judge.
(a) The administrative law judge has general authority to conduct
the hearing in an orderly and judicial manner, including authority to:
(1) Administer oaths;
(2) Call and question witnesses;
(3) Subpoena witnesses as specified in paragraph (b) of this
section;
(4) Issue findings and decisions as specified in paragraph (c) of
this section; and
(5) Take any other actions that the Board may prescribe in referring
the case for hearing.
(b) The administrative law judge has authority to subpoena witnesses
and to take and cause depositions to be taken for the purpose of taking
testimony but not for discovery. This authority must be exercised in
accordance with the Act of January 31, 1903 (32 Stat. 790; 43 U.S.C. 102
through 106).
(c) The administrative law judge has authority to issue any of the
following, as specified by the Board under Sec.4.415(c)(2):
(1) Proposed findings of fact on the issues presented at the
hearing;
(2) A recommended decision that includes findings of fact and
conclusions of law; or
(3) A decision that will be final for the Department unless a notice
of appeal is filed in accordance with Sec.4.411 within 30 days of
receipt of the decision.
(d) The issuance of subpoenas, the attendance of witnesses, and the
taking of depositions are governed by Sec. Sec.4.423 and 4.26.
[75 FR 64668, Oct. 20, 2010]
Sec.4.434 Conduct of hearing.
(a) The administrative law judge may seek to obtain stipulations as
to material facts.
(b) Unless the administrative law judge directs otherwise:
(1) The appellant will first present its evidence on the facts at
issue; and
(2) The other parties and the Bureau or Office will then present
their evidence on such issues.
[75 FR 64668, Oct. 20, 2010]
Sec.4.435 Evidence.
(a) All oral testimony shall be under oath and witnesses shall be
subject to cross-examination. The administrative law judge may question
any witnesses. Documentary evidence may be received if pertinent to any
issue. The administrative law judge will summarily stop examination and
exclude testimony which is obviously irrelevant and immaterial.
(b) Objections to evidence will be ruled upon by the administrative
law judge. Such rulings will be considered, but need not be separately
ruled upon, by the Board in connection with its decision. Where a ruling
of an administrative law judge sustains an objection to the admission of
evidence, the party affected may insert in the record, as a tender of
proof, a summary written statement of the substance of the excluded
evidence and the objecting party may then make an offer of proof in
rebuttal.
Sec.4.436 Reporter's fees.
Reporter's fees shall be borne by the Bureau or Office.
[36 FR 7186, Apr. 15, 1971, as amended at 75 FR 64668, Oct. 20, 2010]
Sec.4.437 Copies of transcript.
Each party must pay for any copies of the transcript that the party
requests. The Bureau or Office will file
[[Page 90]]
the original transcript with the case record.
[75 FR 64668, Oct. 20, 2010]
Sec.4.438 Action by administrative law judge.
(a) Upon completion of the hearing and the incorporation of the
transcript in the record, the administrative law judge will issue and
serve on the parties, as specified by the Board under Sec.4.415(c)(2):
(1) Proposed findings of fact on the issues presented at the
hearing;
(2) A recommended decision that includes findings of fact and
conclusions of law and that advises the parties of their right to file
exceptions under paragraph (c) of this section; or
(3) A decision that will be final for the Department unless a notice
of appeal is filed in accordance with Sec.4.411.
(b) The administrative law judge will promptly send to the Board the
record and:
(1) The proposed findings;
(2) The recommended decision; or
(3) The final decision if a timely notice of appeal is filed.
(c) The parties will have 30 days from service of proposed findings
or a recommended decision to file exceptions with the Board.
[75 FR 64668, Oct. 20, 2010]
contest and protest proceedings
Sec.4.450 Private contests and protests.
Sec.4.450-1 By whom private contest may be initiated.
Any person who claims title to or an interest in land adverse to any
other person claiming title to or an interest in such land or who seeks
to acquire a preference right pursuant to the Act of May 14, 1880, as
amended (43 U.S.C. 185), or the Act of March 3, 1891 (43 U.S.C. 329),
may initiate proceedings to have the claim of title or interest adverse
to his claim invalidated for any reason not shown by the records of the
Bureau of Land Management. Such a proceeding will constitute a private
contest and will be governed by the regulations herein.
Sec.4.450-2 Protests.
Where the elements of a contest are not present, any objection
raised by any person to any action proposed to be taken in any
proceeding before the Bureau will be deemed to be a protest and such
action thereon will be taken as is deemed to be appropriate in the
circumstances.
Sec.4.450-3 Initiation of contest.
Any person desiring to initiate a private contest must file a
complaint in the proper land office (see Sec.1821.2-1 of chapter II of
this title). The contestant must serve a copy of the complaint on the
contestee not later than 30 days after filing the complaint and must
file proof of such service, as required by Sec.4.422(c), in the office
where the complaint was filed within 30 days after service.