[Federal Register Volume 87, Number 230 (Thursday, December 1, 2022)]
[Proposed Rules]
[Pages 73688-73705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25627]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 2

[2231A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF64


Appeals From Administrative Actions

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: The Department of the Interior (Department) proposes to revise 
regulations governing the process for pursuing administrative review of 
actions by Indian Affairs officials. These changes are being proposed 
to reflect changes in the structure and nomenclature within Indian 
Affairs, and to provide greater specificity and clarity to the appeals 
process.

DATES: Interested persons are invited to submit comments on or before 
March 1, 2023.

ADDRESSES: You may submit comments by any one of the following methods.

[[Page 73689]]

     Federal eRulemaking Portal: The Federal eRulemaking Portal 
is the preferred method. Please upload comments to https://www.regulations.gov by using the ``search'' field to find the 
rulemaking and then following the instructions for submitting comments.
     Email: Please send comments to [email protected] and 
include ``RIN 1076-AF64, 25 CFR part 2'' in the subject line of your 
email.
     Mail: Please mail comments to Indian Affairs, RACA, 1001 
Indian School Road NW, Suite 229, Albuquerque, NM 87104.

FOR FURTHER INFORMATION CONTACT: Oliver Whaley, Director, Office of 
Regulatory Affairs and Collaborative Action (RACA), Office of the 
Assistant Secretary--Indian Affairs; Department of the Interior, 
telephone (202) 738-6065, [email protected].

SUPPLEMENTARY INFORMATION: This proposed rule is published in exercise 
of authority delegated by the Secretary of the Interior to the 
Assistant Secretary--Indian Affairs (Assistant Secretary; AS-IA) by 209 
Departmental Manual (DM) 8.

Table of Contents

I. Background
II. Description of Proposed Changes
    A. To Provide Mechanisms for Appealing Decisions by Indian 
Affairs Officials That Did Not Exist in 1989
    B. To Present the Regulations in Plain English
    C. To Authorize, Where Possible, the Filing of Appeal Documents 
in Portable Document Format (pdf) via Email
    D. To Clarify the Process by Which the Assistant Secretary--
Indian Affairs Takes Jurisdiction of an Appeal to the Interior Board 
of Indian Appeals (IBIA); and the Process Employed Whenever the 
Assistant Secretary--Indian Affairs Exercises Appellate Authority
    E. To Make Certain Changes to the Process for Appealing Inaction 
of an Official
    F. To Establish a New Subpart To Expedite the Effectiveness of a 
BIA Decision Regarding Recognition of a Tribal Representative
    G. To Establish a New Subpart Providing Holders of Trust 
Accounts a Mechanism for Disputing the Accuracy of Statements of 
Performance Issued by the Bureau of Trust Funds Administration 
(BTFA)
    H. To Establish a New Subpart Setting Out the Process for 
Resolving Challenges to Administrative Actions by Alternative 
Dispute Resolution Instead of by Formal Appeals
III. Tribal Consultation
    A. Land Into Trust
    B. Administrative Appeals of BTFA Statements of Performance
    C. Other Comments
IV. Subpart by Subpart Description of Proposed Revised Part 2
    A. Subpart A--Purpose, Definitions, and Scope of This Part
    B. Subpart B--Appealing Administrative Decisions
    C. Subpart C--Effectiveness and Finality of Decisions
    D. Subpart D--Appeal Bonds
    E. Subpart E--Deciding Appeals
    F. Subpart F--Appealing Inaction of an Agency Official
    G. Subpart G--Special Rules Regarding Recognition of Tribal 
Representative
    H. Subpart H--Appeals of Bureau of Trust Funds Administration 
Statements of Performance
    I. Subpart I--Alternative Dispute Resolution
V. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866)
    B. Regulatory Flexibility Act
    C. Congressional Review Act (CRA)
    D. Unfunded Mandates Reform Act of 1995
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Consultation With Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act (NEPA)
    K. Effects on the Energy Supply (E.O. 13211)
    L. Clarity of This Regulation
    M. Public Availability of Comments

I. Background

    The regulations governing administrative appeals of actions by 
Indian Affairs officials are in title 25, chapter I of the Code of 
Federal Regulations (25 CFR part 2). The last major revision of the 
part 2 regulations was in 1989. See 54 FR 6478 (Feb. 10, 1989).

II. Description of Proposed Changes

    The Department proposes to revise the appeals regulations in a 
number of ways, as explained below:

A. To Provide Mechanisms for Appealing Decisions by Indian Affairs 
Officials That Did Not Exist in 1989

    A number of significant changes have been made to the organization 
of Indian Affairs since publication of the current part 2 regulations 
in 1989. In 2003, the office of the Director of the Bureau of Indian 
Affairs was created and charged with some of the responsibilities 
previously carried out by the Commissioner of Indian Affairs and the 
Deputy Commissioner of Indian Affairs. 130 DM 3 (Apr. 21, 2003). The 
Bureau of Indian Education, formerly an agency within the Bureau of 
Indian Affairs (BIA), was established as a separate Bureau. More 
recently, the Secretary created the Bureau of Trust Funds 
Administration within the Office of the Assistant Secretary--Indian 
Affairs. Several other offices are not within any Bureau, reporting 
directly to the Assistant Secretary: the Office of Indian Gaming, the 
Office of Indian Economic Development, and the Office of Self-
Government. Furthermore, today more decisions are being made in the 
Central Office of BIA, rather than the Agency and Regional Offices. The 
current part 2 regulations do not provide for such changes within the 
organization or allow for certain types of decisions to have 
administrative appeals.
    Prior to the publication of the current part 2 regulations, the 
Secretary terminated the position of Deputy Assistant Secretary, 
reporting directly to the Assistant Secretary, and established the 
position of Deputy to the Assistant Secretary, within the BIA and 
reporting to the Commissioner of Indian Affairs. Sec. Order 3112. The 
current part 2 regulations include the Deputies to the Assistant 
Secretary among the BIA officials whose decisions are subject to appeal 
to the IBIA (with the exception of the Deputy to the Assistant 
Secretary (Indian Education Programs)). Shortly after publication of 
the current part 2 regulations, the Department re-instated Deputy 
Assistant Secretaries within the office of the Assistant Secretary, and 
retitled the Deputies to the Assistant Secretary as Office Directors 
within the BIA. The proposed revisions bring the regulatory language in 
line with the structure of Indian Affairs, and clarify that the 
Assistant Secretary has jurisdiction over appeals of actions by Deputy 
Assistant Secretaries.

B. To Present the Regulations in Plain English

    Subsequent to the 1989 promulgations of the current part 2 
regulations, Congress and the President directed Federal agencies to 
use plain and direct language in agencies' regulations. See the Plain 
Writing Act of 2010 (124 Stat. 2861), E.O. 12866 (1993), and E.O. 13565 
(2011). This draft revision complies with those directives.

C. To Authorize, Where Possible, the Filing of Appeal Documents in 
Portable Document Format (pdf) via Email

    The shift from paper documents sent via United States mail, to 
electronic documents sent via the internet, is one of the defining 
transformations of our era. But the greater convenience, speed, and 
economy that make a modern paperless case-filing system so superior 
cannot be enjoyed until necessary infrastructure is in place. For the 
BIA, as well as for stakeholders across Indian country, it will be some 
time before such infrastructure is fully enabled.

[[Page 73690]]

    Proposed subpart B, at Sec.  2.214(i), authorizes BIA officials to 
permit electronic filings, but preserves the default of reliance on 
hard copies.
    The Assistant Secretary is particularly interested in public 
comments on the proposed regulations' treatment of electronic filing.

D. To Clarify the Process by Which the Assistant Secretary-Indian 
Affairs Takes Jurisdiction of an Appeal to the Interior Board of Indian 
Appeals (IBIA); and the Process Employed Whenever the Assistant 
Secretary-Indian Affairs Exercises Appellate Authority

    Proposed subpart E, at Sec. Sec.  2.508, 2.509, and 2.510, 
addresses the Assistant Secretary's authority to take jurisdiction over 
an appeal to the IBIA, and clarifies the processes applicable to any 
appeals to the Assistant Secretary. In order to ensure that the 
Assistant Secretary has sufficient time to scrutinize a notice of 
appeal to the IBIA, and decide whether to assume jurisdiction over it, 
the deadline by which the Assistant Secretary must notify the IBIA of a 
decision to take jurisdiction has been extended, from 20 days after 
IBIA's receipt of the Notice of Appeal under the current regulations, 
to 40 days after IBIA's receipt of the Notice of Appeal.
    The Assistant Secretary is particularly interested in public 
comments on the proposed regulations' treatment of appeals to the 
Assistant Secretary.

E. To Make Certain Changes to the Process for Appealing Inaction of an 
Official

    Proposed subpart F sets out the process by which a person may try 
to compel a BIA official to take action on a request or appeal. In the 
current part 2, comparable provisions are at 25 CFR 2.8. The current 
regulations direct such appeals to the next official or entity in the 
appeals process. For example, an appeal from the inaction of a BIA 
Regional Director would go to the IBIA, which has no supervisory 
authority over the Regional Director. The proposed revisions, on the 
other hand, direct all such appeals of inaction up the chain of command 
of the official whose alleged inaction gave rise to the appeal. Under 
the proposed revisions, the only action to be taken by the superior 
official is to direct the subordinate official to take action.

F. To Establish a New Subpart To Expedite the Effectiveness of a BIA 
Decision Regarding Recognition of a Tribal Representative

    Congress exercises plenary authority over the relationship between 
Tribes and non-Tribal governments in the United States. Congress has 
delegated the responsibility for ``the management of public business 
relating to Indians'' to the Secretary of the Interior. 43 U.S.C. 1457; 
see also 25 U.S.C. 2. A vital component of such management is the 
``responsibility for carrying on government relations with [Tribes].'' 
Goodface v. Grassrope, 708 F.2d 335, 339 (8th Cir. 1983).
    Proposed subpart G sets out an appeals process intended to minimize 
the time during which a BIA tribal representative recognition decision 
does not go into effect due to being appealed. The proposed regulations 
make the decision of the first-level reviewing official (typically, the 
Regional Director) immediately effective. Interested parties may appeal 
the reviewing official's decision as provided in part 2, or initiate 
Federal litigation pursuant to the Administrative Procedures Act (APA).
    The AS-IA is particularly interested in public comments on proposed 
subpart G.

G. To Establish a New Subpart Providing Holders of Trust Accounts a 
Mechanism for Disputing the Accuracy of Statements of Performance 
Issued by the Bureau of Trust Funds Administration

    There is currently no administrative appeal procedure by which the 
recipient of a statement of performance may dispute the information 
presented on the statement. Proposed subpart H sets out such an 
administrative appeals procedure. Like all administrative appeal 
provisions, those in proposed subpart H serve two important purposes--
to provide an opportunity for the agency to correct its own errors, and 
to ensure development of a complete administrative record for a court 
to review in the event of an APA challenge to the final agency action.
    The AS-IA is particularly interested in public comments on proposed 
subpart H.

H. To Establish a New Subpart Setting Out the Process for Resolving 
Challenges to Administrative Actions by Alternative Dispute Resolution 
Instead of by Formal Appeals

    In 2001, the Secretary established the Department's Office of 
Collaborative Action and Dispute Resolution (CADR). CADR manages the 
Department's dispute resolution program, providing employees and 
outside stakeholders an alternative mechanism for resolving disputes. 
Proposed subpart I identifies the process by which a person seeking to 
challenge an agency action can make use of the CADR's dispute 
resolution program.

III. Tribal Consultation

    On November 15, 2019, the AS-IA sent out a Dear Tribal Leader 
Letter, with a draft of the proposed revised part 2 regulations, 
inviting the Tribes to participate in consultation sessions, held 
January 22 and February 10, 2020. The letter also invited written 
comments on the proposed regulations. The AS-IA sent another Dear 
Tribal Leader Letter on January 14, 2022, requesting comments on a new 
draft, with consultation sessions on February 17 and 22, 2022. Several 
Tribes submitted written comments.

A. Land Into Trust

    Several commenters urged that fee-to-trust decisions be made final 
more quickly. One recommendation was that the Regional Director's 
decision on a mandatory land acquisition be final for the Department, 
or that appeals go to AS-IA instead of to IBIA.
    The Assistant Secretary agrees that some challenges to land-into-
trust decisions are plainly without merit and are filed for no other 
reason than delay. Recognizing that other such challenges raise 
important questions deserving substantive scrutiny through the 
administrative appeals process, the proposed part 2 regulations do not 
set out a specific process for land-into-trust decisions. The drafters 
of the proposed part 2 regulations anticipate that, by elaborating and 
clarifying the process by which the Assistant Secretary may exercise 
jurisdiction over appeals, frivolous challenges to land-into-trust 
decisions may be disposed of expeditiously.

B. Administrative Appeals of BTFA Statements of Performance

    One commenter noted its support for proposed subpart H, 
establishing an administrative appeals process for challenging BTFA 
statements of performance. In contrast, another commenter expressed 
strong opposition to proposed subpart H, asserting that it ``improperly 
disregards the statutory fiduciary relationship between Indians and the 
United States [and] improperly impairs the ability of Indian trust 
beneficiaries to ensure that the United States fulfill its trust duties 
for trust funds administration.'' In addition to opposing subpart H in 
its entirety, the commenter objects to requiring account holders to 
submit a fully-documented ``basis of objection'' within 60 days of the 
date of the statement of performance.

[[Page 73691]]

    The drafters are not persuaded that subpart H should be deleted. 
Over the past 20 plus years, the Department has improved its accounting 
practices to address shortcomings identified by the courts and the 
auditor. An administrative appeals process allows account holders to 
present a challenge without the cost of filing a Federal lawsuit. The 
purposes for requiring exhaustion of administrative appeals--giving an 
agency the opportunity to correct its own mistakes, and fostering 
development of a complete administrative record for purposes of 
judicial review--apply in this context, and justify the addition of 
subpart H to the Department's appeals regulations. Furthermore, the 
addition of subpart H does not prohibit an account holder from filing a 
lawsuit under the APA after completing the administrative process.
    The Assistant Secretary welcomes public comments on subpart H.

C. Other Comments

    One commenter suggested several additions to emphasize that a 
person must exhaust administrative remedies in order to bring a lawsuit 
under the APA. While completely agreeing with the premise, the drafters 
believe that the principle is well and unambiguously set out in the 
language of the proposed rule.
    One commenter opposes allowing the Assistant Secretary to exercise 
jurisdiction over appeals, asserting that the exercise of that 
authority has ``thwart[ed] the administrative appeal process and is an 
inefficient use of resources,'' and ``has led to abuses of authority.'' 
The drafters believe that the appellate authority vested in the 
Assistant Secretary by the proposed part 2 is appropriate, and note the 
key role played by Federal courts in checking improper uses of agency 
authority.
    The commenter further recommended that the proposed rule be 
modified to clarify that the test for whether a person has standing to 
pursue an administrative appeal, including a person seeking to 
participate in an appeal as an interested party, is the test 
articulated in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). The 
drafters have not adopted the specific language suggested by the 
commenter, nor added a definition of ``legally protected interest.'' 
But a definition of ``adversely affected'' has been added, explaining 
that it means ``the decision on appeal has caused or is likely to cause 
injury to a legally protected interest.'' In addition, the definition 
of ``Interested party'' has been revised to say that it means ``a 
person or entity whose legally protected interests are adversely 
affected by the decision on appeal or may be adversely affected by the 
decision of the reviewing official.

IV. Subpart by Subpart Description of Proposed Revised Part 2

A. Subpart A--Purpose, Definitions, and Scope of this Part

    This proposed subpart expands the definitions that will be used 
throughout the rule, including definitions for the current structure of 
Indian Affairs. The current regulations provide minimal definitions, 
and a considered effort was made to include appropriate definitions to 
provide clarity for the parties. Presently there exists confusion about 
what constitutes an administrative record. The proposed rule seeks to 
rectify that confusion. The proposed rule also provides definitions to 
distinguish between a deciding official and a reviewing official, as 
well as defining who has standing to make an appeal.
    The current regulations clearly state that part 2 only applies to 
appeals from decisions made by BIA officials. Since the part 2 
regulations were promulgated in 1989, the current structure of Indian 
Affairs has changed. Now, in addition to decisions made by officials in 
the BIA, decisions are made by officials in the Bureau of Indian 
Education, the Bureau of Trust Funds Administration, the Office of 
Indian Gaming, the Office of Indian Economic Development, and the 
Office of Self-Governance. The current regulations do not provide a 
process for the administrative appeal of actions by the officials of 
any of those offices.
    The proposed rule provides an avenue for decisions made by the 
various offices within Indian Affairs to be appealed. Subject to any 
exceptions to this part and other applicable law or regulation, an 
individual may appeal any discrete written decision made by a decision-
maker that adversely affects his or her legally protected interests, 
including a determination by the decision-maker that he or she lacks 
the authority to take the action that was requested. The proposed rule 
also contains a chart identifying actions that are not appealable under 
this part because those actions are appealable under some other part in 
title 25 of the CFR, or under provisions in title 5, 41, 42, or 48 of 
the CFR.
    Under the IBIA's current regulations, the IBIA's general appellate 
authority is limited to decisions by BIA officials. 43 CFR 4.1(b)(2); 
4.330. Therefore, the proposed part 2 regulations vest AS-IA with 
appellate authority over decisions by Indian Affairs officials who are 
not within the BIA. If IBIA's jurisdictional scope is expanded in the 
future, the Assistant Secretary may consider revising part 2 to vest in 
the IBIA jurisdiction over appeals from decisions by Indian Affairs 
officials who are not within the BIA.
    In an effort to provide further clarity for the public, the 
regulations provide the precise language for the notice of appeal 
rights that must be included in decisions that are appealable under 
this part. The proposed rule states that a copy of an appealable 
decision will be mailed to all known interested parties at their 
address of record.

B. Subpart B--Appealing Administrative Decisions

    This proposed subpart aims to provide clarity regarding whether you 
have standing to appeal a decision, whether you are required to have a 
lawyer represent you to file an appeal, and timeframes for filing 
appeals. The subpart provides a chart at Sec.  2.202 that clarifies who 
a decision-maker is and who would be the reviewing official responsible 
for reviewing an appeal of the decision. Deadlines are discussed in 
detail with explanations about how those deadlines are calculated and 
how appeals are to be filed.
    The proposed rule also provides detailed information on how to 
submit a notice of appeal and includes a list of what information must 
be included in a notice of appeal. There is an explanation of who must 
receive copies of the notice of appeal, the deadlines for interested 
parties to file responses, and the information that a response must 
contain. The proposed rule details the role of the decision-maker in 
the appeals process, which is to compile the administrative record and 
provide it to the reviewing official.

C. Subpart C--Effectiveness and Finality of Decisions

    This proposed subpart clarifies when an agency action is effective 
and when it becomes a final agency action (with definitions for both of 
those terms). The proposed rule aims to reflect IBIA case law 
interpreting the current regulations.

D. Subpart D--Appeal Bonds

    This proposed subpart provides that an interested party (as defined 
in the proposed regulations) may request an appeal bond where the delay 
caused by an appeal may result in a measurable and substantial 
financial loss or damage to a trust asset that is the subject of the 
appeal. The subpart also states that the reviewing official may on his 
or her own initiative require an appeal bond be posted. Currently the 
regulations permit appeal bonds, but do not specify what

[[Page 73692]]

is an acceptable appeal bond. The proposed rule details acceptable 
forms of appeal bonds and states that the bond must have a market value 
at least equal to the total amount of the bond. The proposed rule makes 
clear that a decision on an appeal bond cannot itself be appealed.

E. Subpart E--Deciding Appeals

    This proposed subpart provides information concerning consolidation 
of appeals, partial implementation of appealed decisions, withdrawal of 
appeals, dismissal of appeals, and applicable deadlines.
    When assessing an appeal, the reviewing official will consider all 
relevant documents submitted by the decision-maker and the participants 
that were filed within the applicable deadlines, the applicable laws, 
regulations, Secretarial Orders, Solicitor's Opinions, policies, 
implementing guidance, and prior judicial and administrative decisions 
that are relevant to the appeal.
    The proposed subpart includes a chart at Sec.  2.507 that provides 
details concerning who is a reviewing official and who will be the 
official responsible for considering an appeal of the reviewing 
official's decision. There is specific language stating that AS-IA may 
assume jurisdiction over an appeal to the IBIA within 40 days from the 
date that the IBIA received the appeal. The proposed rule provides 
clear language stating that interested parties may not petition AS-IA 
to take jurisdiction over an appeal. The rule sets forth the process 
for AS-IA to decide an appeal when jurisdiction is assumed from the 
IBIA.
    These regulations do not impact the power of the Secretary or the 
Director of the Office of Hearings and Appeals to take jurisdiction 
over an appeal pursuant to 43 CFR 4.5.

F. Subpart F--Appealing Inaction of an Agency Official

    This proposed subpart sets out a process by which a person can 
attempt to compel an agency official's action where there has been 
inaction. The current regulations require an individual to notify the 
official of their inaction, require the individual to submit certain 
documentation, and require the official to provide a decision within 10 
day of receipt or provide a reasonable time period to issue a decision 
not to exceed 60 days. The proposed rule expands the time period for 
the official to issue a response from 10 days to 15 days. The 60-day 
deadline for the reviewing official's decision does not change.
    The proposed rule then provides the appropriate chain of command 
for the Indian Affairs official so that individuals know to whom to 
submit their appeal of inaction. The rule also states that continued 
inaction is grounds for an appeal. The proposed rule establishes 
deadlines for each level of appeal. The rule states that if you exhaust 
the provisions of this subpart without obtaining a decision, the 
inaction is considered a final agency action. The rule clearly states 
that inaction by the IBIA and AS-IA is not appealable under this part.

G. Subpart G--Special Rules Regarding Recognition of Tribal 
Representatives

    This proposed subpart sets out an appeals process differing in some 
ways from the process in the rest of proposed part 2, to shorten the 
time frames for appeals of BIA tribal representative recognition 
decisions. Pursuant to the proposed subpart, a reviewing official's 
decision is immediately effective, but not final for the Department. 
The proposed subpart provides that an interested party may elect to 
pursue further administrative review, or file an APA challenge in 
Federal court.

H. Subpart H--Appeals of Bureau of Trust Funds Administration 
Statements of Performance

    This proposed subpart sets out a process by which Tribal or 
Individual Indian Money (IIM) account holders may dispute the accuracy 
of account balances contained within a Statement of Performance. 
Presently there is no opportunity for account holders to question their 
account balance administratively.
    Currently, account holders receive a Statement of Performance at 
least each quarter. In limited circumstances, account holders may only 
receive a Statement of Performance annually based upon limited 
activity. The Statement of Performance contains specific information: 
(1) the source, type, and status of the funds; (2) the beginning 
balance; (3) the gains and losses; (4) receipts and disbursements; and 
(5) the ending balance. If an account holder believes that the balance 
contained within the Statement of Performance is not accurate, this 
subpart will provide them with an opportunity to dispute the accuracy. 
The appeal process must be initiated within 60 calendar days of the 
statement date located on the Statement of Performance.
    This subpart is designed to provide an account holder with an 
opportunity to submit to the deciding official an objection to the 
Statement of Performance. The deciding official is required to 
acknowledge receipt of the account holder's objection within 10 
calendar days. The deciding official will review the information 
contained within the objection, make a determination about the accuracy 
of the account balance, and issue a decision on the objection within 30 
calendar days from the date of receipt of your objection. The account 
holder then has an opportunity to submit an appeal of that decision to 
the Director, Bureau of Trust Funds Administration. This appeal must be 
filed within 30 calendar days of the issuance of the decision being 
appealed. The Director, Bureau of Trust Funds Administration will issue 
a ruling within 30 calendar days of the receipt of the account holder's 
appeal. The account holder may then appeal the Director, Bureau of 
Trust Funds Administration ruling to the AS-IA. AS-IA will make a final 
decision on the account holder's appeal.
    Statements of Performance and decisions rendered pursuant to this 
subpart are deemed accurate and complete when the deadline for 
submitting an objection to the Statement of Performance or an appeal to 
the decision on an objection has expired and the account holder has not 
submitted an objection or an appeal.
    The proposed rule also notes that, if a Tribe has entered into a 
settlement with the United States and that settlement contains language 
concerning the challenge of a Statement of Performance, the language in 
the settlement agreement will control over these regulations.
    This proposed subpart applies only to the data on the Statement of 
Performance itself. If an account holder wants to challenge the 
underlying lease that generated the proceeds deposited into their trust 
account, that challenge must be made (using the process in subpart A at 
Sec.  2.103 and subpart B) to the individual BIA Agency or Region that 
approved the lease.

I. Subpart I--Alternative Dispute Resolution

    The Secretary established the Office of Collaborative Action and 
Dispute Resolution (CADR) in 2001. The Department has embraced 
alternative dispute resolution as an option in certain circumstances 
where the parties agree to participate. Adding this subpart to the part 
2 regulations reaffirms the Department's commitment to providing 
another avenue to resolve disputes between the Department and parties.

[[Page 73693]]

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget will review 
all significant rules. The Office of Information and Regulatory Affairs 
has determined that this rule is not significant. Executive Order 13563 
reaffirms the principles of E.O. 12866 while calling for improvements 
in the nation's regulatory system to promote predictability, to reduce 
uncertainty, and to use the best, most innovative, and least burdensome 
tools for achieving regulatory ends. The Executive order directs 
agencies to consider regulatory approaches that reduce burdens and 
maintain flexibility and freedom of choice for the public where these 
approaches are relevant, feasible, and consistent with regulatory 
objectives. E.O. 13563 emphasizes further that regulations must be 
based on the best available science and that the rulemaking process 
must allow for public participation and an open exchange of ideas. We 
have developed this rule in a manner consistent with these 
requirements.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this proposed rule 
would not have a significant economic effect on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). This proposed rule would only affect internal agency processes.

C. Congressional Review Act (CRA)

    This rule is not a major rule under 5 U.S.C. 804(2). This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act of 1995

    This rule would not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule would not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    This rule would not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630 because 
this rulemaking, if adopted, does not affect individual property rights 
protected by the Fifth Amendment or involve a compensable ``taking.'' A 
takings implication assessment is not required.

F. Federalism (E.O. 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule 
would not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement. A federalism 
summary impact statement is not required because this proposed rule 
only affects internal agency processes for appeals of actions taken by 
officials subordinate to the Assistant Secretary--Indian Affairs.

G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. 
This rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

H. Consultation With Indian Tribes (E.O. 13175)

    The Department strives to strengthen its nation-to-nation 
relationship with Indian Tribes through a commitment to consultation 
with Indian Tribes and recognition of their right to self-governance 
and Tribal sovereignty. We have evaluated this rule under the 
Department's consultation policy and under the criteria in Executive 
Order 13175 and have identified substantial direct effects on 
federally-recognized Indian Tribes that will result from this rule.

I. Paperwork Reduction Act

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) is not 
required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

J. National Environmental Policy Act (NEPA)

    This rule would not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because this is an administrative and procedural regulation. 
(For further information see 43 CFR 46.210(i)). We have also determined 
that the rule does not involve any of the extraordinary circumstances 
listed in 43 CFR 46.215 that would require further analysis under NEPA.

K. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

L. Clarity of this regulation

    We are required by Executive Orders 12866 (section 1(b)(12)), 12988 
(section 3(b)(l)(B)), and 13563 (section l(a)), and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use common, everyday words and clear language rather than 
jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which sections or sentences are 
too long, the sections where you feel lists or tables would be useful, 
etc.

M. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

[[Page 73694]]

List of Subjects in 25 CFR Part 2

    Administrative practice and procedure, Indians-tribal government.


0
For the reasons stated in the preamble, the Bureau of Indian Affairs, 
Department of the Interior, proposes to revise 25 CFR part 2 to read as 
follows:

PART 2--APPEALS FROM ADMINISTRATIVE DECISIONS

Subpart A--Purpose, Definitions, and Scope of This Part
Sec.
2.100 What is the purpose of this part?
2.101 What terms do I need to know?
2.102 What may I appeal under this part?
2.103 Are all appeals subject to this part?
2.104 How will I know what decisions are appealable under this part?
2.105 Who will receive notice of decisions that are appealable under 
this part?
2.106 How does this part comply with the Paperwork Reduction Act?

Subpart B--Appealing Administrative Decisions

2.200 Who may appeal a decision?
2.201 Do I need a lawyer in order to file a document in an appeal?
2.202 Who decides administrative appeals?
2.203 How long do I have to file an appeal?
2.204 Will the reviewing official grant a request for an extension 
of time to file a Notice of Appeal?
2.205 How do I file a Notice of Appeal?
2.206 What must I include in my Notice of Appeal?
2.207 Do I have to send the Notice of Appeal to anyone other than 
the reviewing official?
2.208 What must I file in addition to the Notice of Appeal?
2.209 Who may file a response to the statement of reasons?
2.210 How long does the decision-maker or an interested party have 
to file a response?
2.211 What must a response to the statement of reasons include?
2.212 Will the reviewing official accept additional briefings?
2.213 What role does the decision-maker have in the appeal process?
2.214 What requirements apply to my submission of documents?

Subpart C--Effectiveness and Finality of Decisions

2.300 When is a decision effective?
2.301 When is a decision a final agency action?

Subpart D--Appeal Bonds

2.400 When may the reviewing official require an appeal bond?
2.401 How will the reviewing official determine whether to require 
an appeal bond?
2.402 What form of appeal bond will the reviewing official accept?
2.403 May I appeal the decision whether to require an appeal bond?
2.404 What will happen to my appeal if I fail to post a required 
appeal bond?
2.405 How will the reviewing official notify interested parties of 
the decision on a request for an appeals bond?

Subpart E--Deciding Appeals

2.500 May an appeal be consolidated with other appeals?
2.501 May an appealed decision be partially implemented?
2.502 May I withdraw my appeal once it has been filed?
2.503 May an appeal be dismissed without a decision on the merits?
2.504 What information will the reviewing official consider?
2.505 When will the reviewing official issue a decision on an 
appeal?
2.506 How does the reviewing official notify the appellant and other 
interested parties of a decision?
2.507 How do I appeal a reviewing official's decision?
2.508 May the AS-IA take jurisdiction over an appeal to the IBIA?
2.509 May I ask the AS-IA to take jurisdiction over my appeal?
2.510 How will the AS-IA handle my appeal?
2.511 May the Secretary decide an appeal?
2.512 May the Director of the Office of Hearings and Appeals take 
jurisdiction over a matter?

Subpart F--Appealing Inaction of an Agency Official

2.600 May I compel an agency official to take action?
2.601 When must a decision-maker respond to a request to act?
2.602 What may I do if the decision-maker fails to respond?
2.603 How do I submit an appeal of inaction?
2.604 What will the next official in the decision-maker's chain of 
command do in response to my appeal?
2.605 May I appeal continued inaction by the decision-maker or the 
next official in the decision-maker's chain of command?
2.606 May I appeal inaction by a reviewing official on an appeal 
from a decision?
2.607 What happens if no official responds to my requests under this 
subpart?

Subpart G--Special Rules Regarding Recognition of Tribal 
Representatives

2.700 What is the purpose of this subpart?
2.701 May a Local Bureau Official's decision to recognize, or 
decline to recognize, a Tribal representative be appealed?
2.702 How will I know what decisions are appealable under this 
subpart?
2.703 How do I file a Notice of Appeal of a Tribal representative 
recognition decision?
2.704 How long do I have to file an appeal of a Tribal 
representative recognition decision?
2.705 Is there anything else I must file?
2.706 When must I file my statement of reasons?
2.707 May the LBO and interested parties file a response to the 
statement of reasons?
2.708 How long do interested parties have to file a response?
2.709 What will the LBO do in response to my appeal?
2.710 When will the reviewing official decide a Tribal 
representative recognition appeal?
2.711 May the decision deadline be extended?
2.712 May the AS-IA take jurisdiction over the appeal?
2.713 May I ask the AS-IA to take jurisdiction over the appeal?
2.714 May the reviewing official's decision on Tribal representative 
recognition be appealed?

Subpart H--Appeals of Bureau of Trust Funds Administration Statements 
of Performance

2.800 What is the purpose of this subpart?
2.801 What terms do I need to know for this subpart?
2.802 What must I do if I want to challenge the accuracy of activity 
within a Statement of Performance?
2.803 Is every account holder allowed to challenge the accuracy of 
activity within a Statement of Performance?
2.804 May I challenge the underlying action that generated the 
proceeds deposited into my account under this subpart?
2.805 May I challenge anything other than the activity in the 
account under this subpart?
2.806 What must my Objection to the Statement of Performance 
contain?
2.807 What must my Basis of Objection contain?
2.808 To whom must I submit my Objection to the Statement of 
Performance?
2.809 When must I submit my Objection to the Statement of 
Performance?
2.810 Will the decision-maker acknowledge receipt of my Objection to 
the Statement of Performance?
2.811 May I request an extension of time to submit my Objection to 
the Statement of Performance?
2.812 May I appeal the denial of my request for an extension of 
time?
2.813 If I fail to submit either an Objection to the Statement of 
Performance or the Basis of Objection within the applicable 
deadlines, what is the consequence?
2.814 How long will the decision-maker have to issue a Decision on 
my Objection to the Statement of Performance?
2.815 What information will the Decision on my Objection to the 
Statement of Performance contain?
2.816 May I appeal the Decision on my Objection to the Statement of 
Performance?
2.817 What must my Appeal of the Decision on the Objection to the 
Statement of Performance contain?
2.818 To whom must I submit my Appeal of a Decision on my Objection 
to the Statement of Performance?
2.819 When must my Appeal be filed?
2.820 May I submit any other documents in support of my Appeal?
2.821 May I request an extension of time to submit my Appeal?
2.822 What happens if I do not submit my Appeal within the 30-day 
deadline?
2.823 When will the reviewing official issue the BTFA's ruling?

[[Page 73695]]

2.824 May I appeal the BTFA's ruling?
2.825 When does the Statement of Performance or a Decision become 
final?

Subpart I--Alternative Dispute Resolution

2.900 Is there a procedure other than a formal appeal for resolving 
disputes?
2.901 How do I request alternative dispute resolution?
2.902 When do I initiate alternative dispute resolution?
2.903 What will Indian Affairs do if I request alternative dispute 
resolution?

    Authority:  43 U.S.C. 1457; 25 U.S.C. 9; 5 U.S.C. 301.

Subpart A--Purpose, Definitions, and Scope of This Part


Sec.  2.100  What is the purpose of this part?

    If you are adversely affected by certain decisions of a Bureau of 
Indian Affairs (Bureau) official, you can challenge (appeal) that 
decision to a higher authority within the Department of the Interior 
(Department) by following the procedures in this part. Except as 
otherwise provided in this part or in other applicable laws and 
regulations, you must exhaust the appeal mechanisms available under 
this part before you can seek review in a Federal district court under 
the Administrative Procedure Act (5 U.S.C. 704).


Sec.  2.101  What terms do I need to know?

    Administrative record means all documents and materials that were 
considered directly or indirectly, or were presented for consideration, 
in the course of making the decision that is the subject of the appeal.
    Adversely affected means the decision on appeal has caused or is 
likely to cause injury to a legally protected interest.
    Agency means the Department of the Interior, inclusive of all its 
offices and bureaus.
    Appeal means:
    (1) A written request for administrative review of a decision-
maker's decision or inaction that is claimed to adversely affect the 
interested party making the request; or
    (2) The process you must follow when you seek administrative review 
of a decision-maker's decision or inaction.
    Appellant means the person or entity who files an appeal.
    AS-IA means the Assistant Secretary--Indian Affairs, Department of 
the Interior. AS-IA also means the Principal Deputy Assistant 
Secretary--Indian Affairs or other official delegated the authority of 
the AS-IA when the office of the AS-IA is vacant, when the AS-IA is 
unable to perform the functions of the office, or when the AS-IA is 
recused from the matter.
    BIA means the Bureau of Indian Affairs.
    BIE means the Bureau of Indian Education.
    BTFA means the Bureau of Trust Funds Administration.
    Days mean calendar days, unless otherwise provided. Days during 
which the agency is closed because of a lapse in appropriations do not 
count as days for purposes of calculating deadlines for actions by 
Federal officials under this part.
    Decision means an agency action that permits, approves, or grants 
permission, requires compliance, or grants or denies requested relief.
    Decision-maker means the Indian Affairs official whose decision or 
inaction is being appealed.
    Effective means that the decision will be implemented by the 
Department.
    Final agency action means a decision that represents the 
consummation of the agency's decision-making process and is subject to 
judicial review under 5 U.S.C. 704. Final agency actions are 
immediately effective unless the decision provides otherwise.
    IBIA means the Interior Board of Indian Appeals within the Office 
of Hearings and Appeals.
    IED means the Office of Indian Economic Development
    Indian Affairs means all offices and personnel subject to the 
authority of the AS-IA.
    Interested party means a person or entity whose legally protected 
interests are adversely affected by the decision on appeal or may be 
adversely affected by the decision of the reviewing official.
    Local Bureau Official (``LBO'') means the Superintendent, Field 
Representative, or other BIA official who serves as the primary point 
of contact between BIA and a Tribe or individual Indian.
    Notice of Appeal (``NOA'') means a written document that an 
appellant files with the reviewing official and serves on the decision-
maker and interested parties.
    OIG means the Office of Indian Gaming.
    OJS means the Office of Justice Services.
    OSG means the Office of Self Governance.
    Participant means the appellant, any interested party who files a 
response as provided for in Sec.  2.209, and any Tribe that is an 
interested party.
    Person means an individual human being or other entity.
    Reviewing official means an Indian Affairs official who is 
authorized to review and issue decisions on appeals filed under this 
part, and the IBIA, unless otherwise provided in this part.
    Trust Asset means trust lands, natural resources, trust funds, or 
other assets held by the Federal Government in trust for Indian Tribes 
and individual Indians.
    We, us, and our, mean the officers and employees of Indian Affairs.
    You (in the text of each section) and I (in the section headings) 
mean an interested party who is considering, pursuing, or participating 
in an administrative appeal as provided for in this part.


Sec.  2.102  What may I appeal under this part?

    (a) Subject to the exceptions in this part and other applicable law 
or regulation, you may appeal:
    (1) Any discrete, written decision made by a decision-maker that 
adversely affects you, including a determination by the decision-maker 
that she or he lacks either the duty or authority to take the action 
that you have requested; and
    (2) Inaction by Indian Affairs officials by following the 
procedures in subpart F of this part.
    (b) You may not appeal in the following circumstances.
    (1) You may not separately appeal the issuance of component 
documents of the administrative record, including, but not limited to, 
appraisals or market studies, reports, studies, investigations, notices 
of impoundment or public sale, recommendations, or National 
Environmental Policy Act documents. The adequacy of these types of 
documents cannot be challenged unless and until an appealable decision 
is made in reliance upon these documents.
    (2) You may not appeal an agency's notification to you that it is 
pursuing or is considering pursuing action against you in Federal 
district court, unless separate regulations in this title require you 
to follow administrative appeal procedures in accordance with this part 
or other regulations such as those listed in Sec.  2.103 to appeal the 
notification. Such notifications include, but are not limited to, 
notices that could lead the agency to pursue actions for money damages 
against you, such as actions for trespass, ejectment, eviction, 
nuisance, conversion, or waste to Indian land under the Federal common 
law or statute.
    (3) You may not appeal final agency actions (though you may be able 
to seek review in Federal district court).
    (c) Any challenge to preliminary, procedural, or intermediate 
actions by a reviewing official must be submitted to the reviewing 
official prior to that official's issuing the decision. The reviewing 
official will address such

[[Page 73696]]

challenges in the final decision. Such a challenge is not a separate 
appeal.


Sec.  2.103  Are all appeals subject to this part?

    Not all appeals are subject to this part. Decisions by some Indian 
Affairs officials may be appealed to the Interior Board of Indian 
Appeals, subject to the regulations at 43 CFR part 4. Other regulations 
govern appeals of administrative decisions regarding certain topics. 
Table 1 to this section lists some decision topics that are subject to 
different appeals regulations, in whole or in part, and where to find 
those regulations.

                         Table 1 to Sec.   2.103
------------------------------------------------------------------------
     For appeal rights related to . . .             Refer to . . .
------------------------------------------------------------------------
Access to student records..................  25 CFR part 43.
Acknowledgment as a federally recognized     25 CFR part 83.
 Indian Tribe.
Adverse employment decisions against Bureau  43 CFR part 20.
 of Indian Affairs employees.
Any decision by a Court of Indian Offenses.  25 CFR part 11.
Appointment or termination of contract       25 CFR part 38.
 educators.
Debts owed by Federal employees............  5 CFR part 550.
Determination of heirs, approval of wills,   43 CFR part 4,
 and probate proceedings.                    43 CFR part 30,
                                             25 CFR part 16,
                                             25 CFR part 17.
Indian School Equalization Program student   25 CFR part 39.
 count.
Eligibility determinations for adult care    25 CFR part 20.
 assistance, burial assistance, child
 assistance, disaster, emergency and
 general assistance, and the Tribal work
 experience program.
Certain adverse enrollment decisions.......  25 CFR part 62.
Freedom of Information Act requests........  43 CFR part 2.
Grazing permits for trust or restricted      25 CFR part 166.
 lands.
Indian Reservation Roads Program funding...  25 CFR part 170.
Leasing of trust or restricted lands.......  25 CFR part 162.
Matters subject to the Contract Disputes     48 CFR part 33,
 Act.                                        48 CFR part 6101.
Privacy Act requests.......................  43 CFR part 2.
Restricting an Individual Indian Money       25 CFR part 115.
 account.
Rights-of-way over or across trust or        25 CFR part 169.
 restricted lands.
Secretarial elections......................  25 CFR part 81
Self-Determination contracts...............  25 CFR part 900.
Self-Governance compacts...................  25 CFR part 1000.
Student rights and due process.............  25 CFR part 42.
Tribally controlled colleges and             25 CFR part 41.
 universities.
Departmental quarters......................  41 CFR part 114.
------------------------------------------------------------------------

Sec.  2.104  How will I know what decisions are appealable under this 
part?

    (a) When an Indian Affairs official makes a decision that is 
subject to an appeal under this part, she or he will transmit the 
decision to interested parties by U.S. Mail or, upon request, by 
electronic mail. Unless the decision is immediately effective, and 
except for decisions that are subject to appeal to IBIA, the official 
will include the following notice of appeal rights at the end of the 
decision document:

    This decision may be appealed by any person or entity who is 
adversely affected by the decision. Appeals must be submitted to the--
[appropriate reviewing official]--at--[address, including email 
address]. The appeals process begins when you file with the reviewing 
official a notice of appeal, complying with the provisions of 25 CFR 
2.205--2.207.
    Deadline for Appeal. Your notice of appeal must be submitted in 
accordance with the provisions of 25 CFR 2.214 within 30 days of the 
date you receive notice of this decision pursuant to 25 CFR 2.203. If 
you do not file a timely appeal, you will have failed to exhaust 
administrative remedies as required by 25 CFR part 2. If no appeal is 
timely filed, this decision will become effective at the expiration of 
the appeal period. No extension of time may be granted for filing a 
notice of appeal.
    Appeal Contents and Packaging. Your notice of appeal must comply 
with the requirements in 25 CFR 2.214. It must clearly identify the 
decision being appealed. If possible, attach a copy of this decision 
letter. The notice and the envelope in which it is mailed should be 
clearly labeled, ``Notice of Appeal.'' If electronic filing is 
available, ``Notice of Appeal'' must appear in the subject line of the 
email submission. Your notice of appeal must list the names and 
addresses of the interested parties known to you and certify that you 
have sent them and this office copies of the notice by any of the 
mechanisms permitted for transmitting the NOA to the BIA.
    Where to Send Copies of Your Appeal.
    [For appeals to IA officials, not IBIA]: In addition to sending 
your appeal to--[the reviewing official],-- you must send a copy of 
your appeal to this office at the address on the letterhead--[if an 
email address is included in the letterhead, you may submit your 
appeals documents via email, with ``Notice of Appeal'' in the subject 
line of the email submission].
    [For appeals to the IBIA]: If the reviewing official is the IBIA, 
you must also send a copy of your appeal to the AS-IA and to the 
Associate Solicitor, Division of Indian Affairs. If the reviewing 
official is the IBIA, your appeal will be governed by the IBIA's 
regulations, at 43 CFR part 4.
    Assistance. If you can establish that you are an enrolled member of 
a federally recognized Tribe and you are not represented by an 
attorney, you may, within 10 days of receipt of this decision, request 
assistance from this office in the preparation of your appeal. Our 
assistance is limited to serving your filings on the interested parties 
and allowing limited access to government records and other documents 
in the

[[Page 73697]]

possession of this office. We cannot obtain an attorney for you or act 
as your attorney on the merits of the appeal.

    (b) If a decision-maker issues a decision that does not include 
notice of appeal rights, the decision-maker will provide written notice 
of appeal rights and the decision may be appealed as follows:
    (1) If the decision-maker discovers within 30 days of issuing the 
decision that the decision did not include notice of appeal rights, 
then the decision-maker will provide written notice of appeal rights to 
interested parties, and inform them that they may appeal the decision 
within 30 days from the date of receipt of the notice. If no appeal is 
filed by the new deadline, the interested parties will have failed to 
exhaust administrative remedies as required by this part and the 
decision will become effective.
    (2) If the decision-maker does not discover within 30 days of 
issuing the decision that the decision did not include notice of appeal 
rights and no administrative appeal is filed within 30 days of the 
issuance of the decision, then the decision becomes effective 31 days 
after it was issued.
    (3) If the decision-maker discovers, more than 30 days but less 
than 365 days, after the date of the decision that the decision did not 
include notice of appeal rights, then the decision-maker will 
immediately notify the interested parties that the decision was issued 
without the requisite notice of appeal rights. If the decision has not 
actually been implemented, the decision-maker shall stay the 
implementation of the decision and reissue the decision with the appeal 
rights notice as provided in this section. If the decision has been 
implemented, the decision maker shall notify the interested parties of 
that fact, and notify them that they may file a challenge to the 
decision in Federal court, or pursue the administrative appeal process 
set out in this section.


Sec.  2.105  Who will receive notice of decisions that are appealable 
under this part?

    Except as provided in other regulations governing specific types of 
decisions (see Sec.  2.103), the decision-maker will transmit a copy of 
all appealable decisions to all known interested parties at the 
addresses the decision-maker has on file for them.


Sec.  2.106  How does this part comply with the Paperwork Reduction 
Act?

    The information collected from the public under this part is 
cleared and covered by Office of Management and Budget (OMB) Control 
Number 1076-NEW. Please note that a Federal Agency may not conduct or 
sponsor, and you are not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

Subpart B--Appealing Administrative Decisions


Sec.  2.200  Who may appeal a decision?

    You have a right to appeal a decision made by an Indian Affairs 
official if you can show, through credible statements, that you are 
adversely affected by the decision.


Sec.  2.201  Do I need a lawyer in order to file a document in an 
appeal?

    No. You may represent yourself. If you are represented by someone 
else, your representative must meet the standards established in 43 CFR 
part 1 and must provide documentation of his or her authority to act on 
your behalf.


Sec.  2.202   Who decides administrative appeals?

    Except where a specific section of this part sets out a different 
appellate hierarchy, table 1 to this section identifies the reviewing 
officials for appeals under this part:

                         Table 1 to Sec.   2.202
------------------------------------------------------------------------
     Official issuing the decision          Reviewing official or IBIA
------------------------------------------------------------------------
Agency Superintendent or Field           Regional Director, BIA
 Representative, BIA.
Regional Director, BIA.................  IBIA.
District Commander, OLES...............  Deputy Director BIA, Office of
                                          Justice Services (OJS).
Deputy Director, BIA...................  Director, BIA.
Director, BIA..........................  IBIA.
Principal of a Bureau operated School..  Education Program
                                          Administrator.
Education Program Administrator........  Associate Deputy Director, BIE.
Associate Deputy Director, BIE.........  Director, BIE.
President of a Bureau operated Post-     Director, BIE.
 Secondary School.
Director, BIE..........................  AS-IA.
BTFA decision-maker....................  Director, BTFA.
Director of: OIG; IED; OSG.............  Appropriate Deputy Assistant
                                          Secretary--Indian Affairs.
Deputy Assistant Secretary--Indian       AS-IA.
 Affairs; Director, BTFA.
------------------------------------------------------------------------

Sec.  2.203  How long do I have to file an appeal?

    (a) You have 30 days after you receive a copy of the decision you 
are appealing to file a Notice of Appeal, except as provided in Sec.  
2.104(b).
    (b) We will presume that you have received notice of the decision 
10 days after the date that the decision was mailed to you, if the 
decision-maker mailed the document to the last address the decision-
maker has on file for you.
    (c) If the reviewing official receives proof that the document was 
delivered before the expiration of the 10-day period, you are presumed 
to have received notice on the date of delivery, and you have 30 days 
from that date to file an appeal.


Sec.  2.204  Will the reviewing official grant a request for an 
extension of time to file a Notice of Appeal?

    No. No extensions of time to file a Notice of Appeal will be 
granted.


Sec.  2.205  How do I file a Notice of Appeal?

    (a) To file a Notice of Appeal to an Indian Affairs official, you 
must submit the Notice of Appeal to the reviewing official identified 
in the decision document's notice of appeal rights, as prescribed in 
Sec.  2.104. Your submission must comply with Sec.  2.214.
    (b) If you are appealing to the IBIA, you must comply with IBIA's 
regulations, set out at 43 CFR part 4.


Sec.  2.206  What must I include in my Notice of Appeal?

    In addition to meeting the requirements of Sec.  2.214, your Notice 
of Appeal must include an explanation of how you satisfy the 
requirements of standing set out in Sec.  2.200 and a copy of the 
decision being appealed, if possible.

[[Page 73698]]

Sec.  2.207  Do I have to send the Notice of Appeal to anyone other 
than the reviewing official?

    (a) Yes. You must provide copies of your Notice of Appeal to the 
decision-maker and all interested parties known to you. If you are an 
individual Indian and are not represented by an attorney, you may 
request that we make the copies for you and mail your appeal documents 
to all interested parties.
    (b) If you are appealing to the IBIA, you must also send a copy of 
your Notice of Appeal to the AS-IA and to the Associate Solicitor for 
Indian Affairs at the same time you send the appeal to the IBIA.


Sec.  2.208  What must I file in addition to the Notice of Appeal?

    No later than 10 days after filing your Notice of Appeal, you must 
submit to the reviewing official, the decision-maker, and interested 
parties a statement of reasons that:
    (1) Explains why you believe the decision was wrong;
    (2) Identifies relevant information or evidence you believe the 
decision-maker failed to consider;
    (3) Describes the relief you seek;
    (4) Provides all documentation you believe supports your arguments; 
and
    (5) Complies with the requirements of Sec.  2.214.


Sec.  2.209  Who may file a response to the statement of reasons?

    Any interested party may file a response to the statement of 
reasons, thereby becoming a participant. The decision-maker may also 
file a response to the statement of reasons.


Sec.  2.210  How long does the decision-maker or an interested party 
have to file a response?

    The decision-maker or an interested party has 30 days after 
receiving a copy of the statement of reasons to file a response.


Sec.  2.211  What must a response to the statement of reasons include?

    (a) A response to a statement of reasons must comply with Sec.  
2.214. In addition, the response must:
    (1) State when the interested party or decision-maker submitting 
the response received the statement of reasons;
    (2) Explain how the interested party submitting the response is 
adversely affected by the decision being appealed or may be adversely 
affected by the reviewing official's decision; and
    (3) Explain why the interested party or decision maker submitting 
the response believes the arguments made in the appellant's Notice of 
Appeal and statement of reasons are right or wrong.
    (b) The response may also include statements and documents 
supporting the position of the interested party or decision-maker 
submitting.


Sec.  2.212  Will the reviewing official accept additional briefings?

    (a) Yes. The appellant may file a reply with the reviewing official 
within 21 days of receiving a copy of any response brief.
    (b) Any interested party may, within 10 days after receiving the 
table of contents of the administrative record (AR), request copies of 
some or all of the AR. Such party may submit a supplemental brief 
within 10 days after receiving the requested documents.
    (c) Any interested party may ask the reviewing official for 
permission to file additional briefing. The reviewing official's 
decision on whether to grant the request is not appealable.
    (d) No documents other than those specified in this part and those 
permitted by the reviewing official under paragraph (c) of this section 
may be filed.
    (e) The reviewing official will not consider documents not timely 
filed.


Sec.  2.213  What role does the decision-maker have in the appeal 
process?

    (a) The decision-maker is responsible for:
    (1) Compiling the administrative record;
    (2) Sending the administrative record to the reviewing official 
within 20 days of the decision-maker's receipt of the Notice of Appeal; 
and
    (3) Making available a copy of the administrative record for review 
by interested parties. When the decision-maker transmits the 
administrative record to the reviewing official, the decision-maker 
shall transmit to the interested parties a copy of the table of 
contents of the administrative record. Interested parties may view the 
administrative record at the office of the decision-maker. Interested 
parties may request copies of all or part of the administrative record. 
Where reproduction and transmission of the administrative record 
imposes costs on BIA exceeding $50, BIA may charge the requestor for 
those costs. BIA shall not incur such costs without the requestor's 
approval. The decision-maker shall respond to requests for documents in 
the administrative record within 30 days of receipt of the request, 
either by providing the requested documents or identifying a date by 
which the documents shall be provided. The decision-maker shall redact 
the documents provided to the requester as required by law (e.g., the 
Privacy Act). The decision-maker may withhold information in the 
administrative record, invoking privileges available in civil 
litigation; such withholding being subject to judicial review. 
Provision of documents in the administrative record to an interested 
party under this part is not governed by the Freedom of Information 
Act. Failure of a decision-maker to respond to a request for documents 
under this section may be appealed as provided in subpart F of this 
part.
    (b) If a decision-maker believes that a compacting or contracting 
Tribe possesses Federal records that are relevant to the analysis of 
the appeal, the decision-maker may request that the Tribe produce the 
documents. Within two weeks of receiving the decision-maker's request, 
the Tribe shall either provide the requested documents to the decision-
maker or explain why it is not providing the documents. This section 
does not apply to Tribal records. See 25 U.S.C. 5329(b).
    (c) The decision-maker may file a response to the statement of 
reasons.


Sec.  2.214  What requirements apply to my submission of documents?

    Except where a section in this part (or 43 CFR part 4 with respect 
to submissions to the IBIA) sets out other requirements, you must 
comply with the following provisions:
    (a) Information required in every submission. (1) The submitter's 
contact information, consisting of name, mailing address, telephone 
number, and email address if any; or the name, mailing address, 
telephone number, and email address of the submitter's representative;
    (2) A certificate of service by the submitter that the submission 
was served on all interested parties known to the submitter, a list of 
parties served, and the date and method of service; and
    (3) The signature of the interested party or his or her 
representative.
    (b) Filing documents. A document is properly filed with an agency 
official by:
    (1) Personal delivery, either hand delivery by an interested party 
or via private mail carrier, during regular business hours to the 
person designated to receive mail in the immediate office of the 
official;
    (2) United States mail to the facility officially designated for 
receipt of mail addressed to the official. The document is considered 
filed by mail on the date that it is postmarked; and
    (3) Electronic mail (email) is permissible only in accordance with 
the provisions in paragraph (i) of this section.

[[Page 73699]]

    (c) Service generally. A copy of each document filed in a 
proceeding under this part must be served by the filing party on the 
relevant agency official(s) and all other known interested parties. If 
an interested party is represented by an attorney, service of any 
document shall be made upon such attorney. Where an interested party is 
represented by more than one attorney, service upon one of the 
attorneys shall be sufficient.
    (d) Record address. Every person who files a document in an appeal 
shall, at the time of the initial filing in the matter, provide his or 
her contact information. Such person must promptly inform the decision-
maker or reviewing official of any change in address. Any successors in 
interest of such person shall promptly inform the decision-maker or 
reviewing official of his or her interest in the matter and provide 
contact information. agency officials and other parties to an appeal 
shall have fulfilled their service requirement by transmitting 
documents to a party's last known address.
    (e) Computation of time for filing and service. Documents must be 
filed within the deadlines established in this part (or by 43 CFR part 
4 for filings submitted to the IBIA), or as established by Department 
officials in a particular matter. 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 included. The last 
day of the period so computed is to be included, unless it is a 
Saturday, Sunday, Federal legal holiday, or other day on which the 
office to which the document is addressed is not conducting business, 
in which event the period runs until the end of the next day on which 
the office to which the document is addressed is conducting business. 
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 deadline for filing and serving any 
document may be extended by the agency official before whom the 
proceeding is pending, except that the deadline for filing a Notice of 
Appeal may not be extended.
    (2) A request for an extension of time must be filed within the 
time allowed for the filing or serving of the document.
    (3) A request for extension of time must be filed with the same 
office as the document that is the subject of the request.
    (g) Formatting. All submissions, except exhibits, must be typed in 
12-point font, (double-spaced) using a standard 8\1/2\- by 11-inch word 
processing format, except that a document submitted by an interested 
party who is not represented by an attorney may be hand-written. An 
agency official may decline to consider an illegible hand-written 
submission. An agency official who declines to consider a hand-written 
submission shall promptly notify the submitter of the decision not to 
consider the submission.
    (h) Page limits for particular filings are set out in the sections 
addressing those filings. Attachments and exhibits not drafted by or 
for the submitter do not count toward the page limit.
    (i) Submitting and serving documents by email. Submitting documents 
by email to an agency official is only permitted when the receiving 
official has notified the known interested parties that email 
submissions are acceptable. Documents may only be served via email on 
interested parties who have stated, in writing, their willingness to 
accept service by email. No single email submission may exceed 10 
megabytes (MB). Submissions may be divided into separate emails for 
purposes of complying with this requirement. Filings submitted by email 
shall be in PDF format. Email submissions that arrive at the agency 
official's office after 5:00 p.m. shall be deemed to have arrived on 
the next work day.
    (j) Non-compliant submissions. An agency official may decline to 
consider a submission that does not comply with the requirements in 
this section, or take other action she/he deems appropriate. A non-
compliant submission is nonetheless a Federal record, and must be 
preserved as other Federal records.

Subpart C--Effectiveness and Finality of Decisions


Sec.  2.300  When is a decision effective?

    (a) Agency decisions that are subject to further administrative 
appeal become effective when the appeal period expires without an 
appeal being filed, except as provided elsewhere in this chapter.
    (b) When an agency decision is effective pursuant to paragraph (c) 
of this section or Sec.  2.714, the administrative appeal will proceed 
unless an interested party challenges the agency decision in Federal 
court.
    (c) Agency decisions that are subject to further administrative 
appeal and for which an appeal is timely filed may be made immediately 
effective by the reviewing official based on public safety, Indian 
education safety, protection of trust resources, or other public 
exigency.
    (1) A decision-maker whose decision has been appealed may ask the 
reviewing official to make the appealed decision immediately effective 
or the reviewing official may make the appealed decision immediately 
effective on his or her own initiative.
    (2) A reviewing official's decision to make an appealed decision 
immediately effective must explain why public safety, Indian education 
safety, protection of trust resources, or other public exigency 
justifies making the decision immediately effective. Any challenge to 
the decision to put an appealed decision into immediate effect shall be 
incorporated into the ongoing appeal.
    (3) A decision by a reviewing official (other than the IBIA) to 
place an appealed decision into immediate effect must be in writing and 
include the following notice of appeal rights:

    As explained above, based on concerns about public safety, Indian 
education safety, protection of trust resources, or other exigency, I 
have placed the challenged decision into immediate effect, as 
authorized by 25 CFR 2.300. I will continue with my review of the 
matter on appeal unless and until an interested party files suit in 
federal court challenging the agency decision.


Sec.  2.301  When is a decision a final agency action?

    An agency decision that is not subject to administrative appeal is 
a final agency action and immediately effective when issued unless the 
decision provides otherwise.

Subpart D--Appeal Bonds


Sec.  2.400  When may the reviewing official require an appeal bond?

    (a) Any interested party who may suffer a financial loss or damage 
to Indian Trust Assets as a result of an appeal may ask the reviewing 
official to require the appellant to post an appeal bond.
    (b) The reviewing official may decide on his or her own initiative 
to require an appeal bond in accordance with this subpart.


Sec.  2.401   How will the reviewing official determine whether to 
require an appeal bond?

    The reviewing official may require an appeal bond if the party 
requesting the appeal bond can demonstrate that the delay caused by the 
appeal may result

[[Page 73700]]

in a measurable and substantial financial loss or damage to Indian 
Trust Assets. The amount of the appeal bond will be commensurate with 
the estimated financial loss or damage to Indian Trust Assets.


Sec.  2.402  What form of appeal bond will the reviewing official 
accept?

    The reviewing official will only accept an appeal bond that has a 
market value at least equal to the total bond amount in one, or a 
combination of, the following forms.
    (a) Negotiable U.S. Treasury securities, accompanied by a statement 
granting the AS-IA full authority to sell the securities and direct the 
proceeds to the party who was harmed by the appellant's unsuccessful 
appeal.
    (b) Certificates of deposit that indicate on their face that AS-IA 
approval is required prior to redemption by any party.
    (c) An irrevocable letter of credit issued by a federally insured 
financial institution and made payable to the Office of the AS-IA. The 
letter of credit must have an initial expiration date of not less than 
two years from the date of issuance and be automatically renewable for 
at least one year.
    (d) A surety bond issued by a company approved by the U.S. 
Department of the Treasury.


Sec.  2.403   May I appeal the decision whether to require an appeal 
bond?

    No. The reviewing official's decision whether to require an appeal 
bond is not appealable.


Sec.  2.404  What will happen to my appeal if I fail to post a required 
appeal bond?

    If you are required to post a bond and fail to do so within the 
time allowed by the reviewing official to post the bond, the reviewing 
official will dismiss your appeal.


Sec.  2.405   How will the reviewing official notify interested parties 
of the decision on a request for an appeals bond?

    When the reviewing official decides whether to require an appeal 
bond, she or he will provide the interested parties with written notice 
of the decision.

Subpart E--Deciding Appeals


Sec.  2.500   May an appeal be consolidated with other appeals?

    Yes. The reviewing official may, either on his or her own 
initiative or upon request by the decision-maker or interested party, 
consolidate identical or similar appeals filed by you and others or 
consolidate multiple appeals that you file that also contain identical 
or similar issues.


Sec.  2.501   May an appealed decision be partially implemented?

    Yes. The reviewing official may identify any parts of a decision-
maker's decision that have not been appealed, to allow the decision-
maker to implement those parts of the decision. The reviewing official 
will notify interested parties of a determination to implement 
unchallenged components of the decision-maker's decision. An interested 
party who disagrees with the reviewing official's determination may 
seek reconsideration by the reviewing official. A request for 
reconsideration must be filed within 15 days of issuance of the 
determination.


Sec.  2.502  May I withdraw my appeal once it has been filed?

    Yes. You may withdraw your appeal at any time before the reviewing 
official issues a decision. To withdraw an appeal, you must write to 
the reviewing official and all participants stating that you want to 
withdraw your appeal. If you withdraw your appeal it will be dismissed 
by the reviewing official. While the dismissal of a withdrawn appeal is 
without prejudice, the appeals time frame set out in this part will be 
unaffected by a withdrawn appeal. Therefore, any refiling of a 
withdrawn appeal must be within the original filing deadline 
established pursuant to Sec.  2.104.


Sec.  2.503  May an appeal be dismissed without a decision on the 
merits?

    Yes, the reviewing official may dismiss an appeal without a 
decision on the merits when:
    (a) You are late in filing your appeal;
    (b) You lack standing because you do not meet the requirements of 
Sec.  2.200 for bringing an appeal;
    (c) You have withdrawn the appeal;
    (d) You have failed to pay a required appeal bond;
    (e) The reviewing official lacks the authority to grant the 
requested relief;
    (f) If you are represented and your representative does not meet 
the standards established in 43 CFR part 1 related to eligibility to 
practice before the Department, and you have failed to substitute 
yourself or an eligible representative after being given an opportunity 
to do so; or
    (g) The reviewing official determines there are other circumstances 
that warrant a dismissal and explains those circumstances in the 
dismissal order.


Sec.  2.504  What information will the reviewing official consider?

    (a) The reviewing official will consider:
    (1) The administrative record for the decision, prepared by the 
decision-maker under Sec.  2.213;
    (2) All relevant documents submitted by the decision-maker and 
participants that were filed in accordance with applicable deadlines; 
and
    (3) Laws, regulations, Secretarial Orders, Solicitor's Opinions, 
policies, implementing guidance, and prior judicial and administrative 
decisions that are relevant to the appeal.
    (b) If the reviewing official considers documentation that was not 
included in the administrative record, the reviewing official will:
    (1) Provide a copy of that documentation to the decision-maker and 
interested parties; and
    (2) Establish a schedule for the decision-maker and interested 
parties to review and comment on the documentation.


Sec.  2.505  When will the reviewing official issue a decision on an 
appeal?

    (a) The reviewing official (other than the IBIA) will issue a 
written decision, including the basis for the decision, within 90 days 
after the latest of:
    (1) The filing of the statement of reasons;
    (2) The filing of any responses, replies, or supplemental briefs 
under Sec. Sec.  2.209 through 2.212; or
    (3) The filing of any comments on additional material under Sec.  
2.504(b).
    (b) A reviewing official (other than the IBIA) may, for good cause 
and with notice to the decision-maker and participants, extend the 
deadline for the official's decision one time by no more than 90 days.


Sec.  2.506  How does the reviewing official notify the appellant and 
other interested parties of a decision?

    The reviewing official will send the decision to the decision-maker 
and interested parties.


Sec.  2.507  How do I appeal a reviewing official's decision?

    (a) To appeal a reviewing official's decision that is not a final 
agency action, you must file your appeal in accordance with the 
instructions for appeal contained in the decision.
    (b) The decision will include instructions that briefly describe 
how to appeal the decision, to whom the appeal should be directed, and 
the deadline for filing an appeal, and will refer interested parties to 
the regulations governing the appeal.
    (c) If you are appealing to the IBIA, you must comply with IBIA's 
regulations, set out at 43 CFR part 4.
    (d) Except where a specific section of this part sets out a 
different appellate

[[Page 73701]]

hierarchy, table 1 to this paragraph (d) indicates the official to whom 
subsequent appeals should be addressed.

                        Table 1 to Paragraph (d)
------------------------------------------------------------------------
   Reviewing official (or IBIA) whose     Official to whom the appeal is
       decision is being appealed                   addressed
------------------------------------------------------------------------
Regional Director......................  IBIA.
Principal of a Bureau operated school..  Education Program
                                          Administrator.
Education Program Administrator........  Associate Deputy Director,
                                          Bureau of Indian Education.
Associate Deputy Director, BIE.........  Director, BIE.
President of a Bureau operated post-     Director, BIE.
 secondary school.
Deputy Director BIA, Office of Justice   IBIA.
 Services (OJS).
Director, BIE..........................  AS-IA.
Director, BTFA.........................  AS-IA.
Director, BIA..........................  IBIA.
Deputy Assistant Secretary--Indian       AS-IA.
 Affairs.
AS-IA..................................  (Decision is final for the
                                          Department).
IBIA...................................  (Decision is final for the
                                          Department).
------------------------------------------------------------------------

Sec.  2.508  May the AS-IA take jurisdiction over an appeal to the 
IBIA?

    Yes. The AS-IA has 40 days from the date on which the IBIA received 
your Notice of Appeal to take jurisdiction from the IBIA. The AS-IA 
will notify the IBIA in writing of the assumption of jurisdiction and 
request the administrative record of the appeal. At any time in the 40 
days, the AS-IA may notify the IBIA that she or he is not going to take 
jurisdiction over an appeal, at which point the IBIA will assign a 
docket number to the appeal under its regulations in 43 CFR part 4. If 
the IBIA does not receive written notice from the AS-IA within the 40 
day period of the AS-IA's intent to take jurisdiction over the appeal, 
the IBIA will assign a docket number to your appeal.


Sec.  2.509  May I ask the AS-IA to take jurisdiction over my appeal?

    No. The AS-IA will not consider a request from any interested party 
to take jurisdiction over an appeal.


Sec.  2.510  How will the AS-IA handle my appeal?

    If the AS-IA takes jurisdiction over your appeal, or if an appeal 
is made to the AS-IA in accordance with table 1 to paragraph (d) in 
Sec.  2.507, the following procedures shall apply:
    (a) Within 10 days of receipt of an appeal, or of assumption of 
jurisdiction over an appeal to the IBIA, the AS-IA shall transmit to 
the official who issued the decision being appealed and all known 
interested parties a notice that will include information on when and 
how to file briefs, access to the administrative record, and may 
include instructions for filing briefs via email.
    (b) Briefs shall comply with Sec.  2.214, and be submitted as 
follows, unless the AS-IA specifies otherwise:
    (1) Initial briefs are invited from the appellant, all interested 
parties, and the official whose decision is on appeal. Initial briefs 
may not exceed 30 pages and shall be due within 21 days of the date of 
the AS-IA's notice. Initial briefs must include certification of 
service on the reviewing official and all other interested parties 
identified in the AS-IA's initial notice to interested parties;
    (2) Answering briefs shall be due within 35 days of the date of the 
AS-IA's notice. Answering briefs shall not exceed 15 pages; and
    (3) For good cause shown, the AS-IA may extend deadlines, may allow 
handwritten briefs, may provide for different page limits, and may 
permit submission of reply briefs.
    (c) The AS-IA shall render a decision on the appeal within 60 days 
of the end of briefing. The AS-IA may, for good cause and with notice 
to the participants, extend the deadline for issuing a decision by no 
more than 60 days.
    (d) The AS-IA may summarily affirm the decision of the official 
whose decision is on appeal based on the record before the official 
whose decision is on appeal.
    (e) The AS-IA may delegate to the Principal Deputy Assistant 
Secretary--Indian Affairs the authority and responsibility for 
rendering a final agency decision on an appeal over which the AS-IA is 
exercising jurisdiction.


Sec.  2.511   May the Secretary decide an appeal?

    Yes. Nothing in this part will be construed as affecting the 
Secretary's authority to take jurisdiction over an appeal as set out in 
43 CFR 4.5(a).


Sec.  2.512  May the Director of the Office of Hearings and Appeals 
take jurisdiction over a matter?

    Yes. Nothing in this part will be construed as affecting the 
authority vested in the Director of the Office of Hearings and Appeals 
to take jurisdiction over matters in front of the IBIA, as provided in 
43 CFR 4.5(b).

Subpart F--Appealing Inaction of an Agency Official


Sec.  2.600  May I compel an agency official to take action?

    (a) Yes. If a decision-maker fails to take action on a written 
request for action that you believe the decision-maker is required to 
take, you may make the decision-maker's inaction the subject of appeal.
    (b) Before filing an appeal with the next official in the decision-
maker's chain of command, you must:
    (1) Send a written request to the decision-maker, asking that he or 
she take the action originally asked of him or her;
    (2) Identify the statute, regulation, or other source of law that 
you believe requires the decision-maker to take the action being 
requested;
    (3) Describe the interest adversely affected by the decision-
maker's inaction, including a description of the loss, impairment or 
impediment of such interest caused by the inaction; and
    (4) State that, unless the decision-maker either takes action on 
the written request within 15 days of receipt of your request, or 
establishes a date by which a decision will be made, you will appeal 
the decision-maker's inaction in accordance with this subpart.
    (c) You must include a copy of your original request to the 
decision-maker, or other documentation establishing the date and nature 
of the original request.


Sec.  2.601  When must a decision-maker respond to a request to act?

    A decision-maker receiving a request as specified in Sec.  2.600 
has 15 days from receiving the request to issue a written response. The 
response may be a decision, a procedural order that will

[[Page 73702]]

further the decision-making process, or a written notice that a 
decision will be rendered by a date no later than 60 days from the date 
of the request.


Sec.  2.602   What may I do if the decision-maker fails to respond?

    If the decision-maker does not respond as provided for in Sec.  
2.601, you may appeal the decision-maker's continued inaction to the 
next official in the decision-maker's chain of command. For purposes of 
this subpart:
    (a) BIA's chain of command is as follows:
    (1) Local Bureau Official;
    (2) Regional Director (find addresses on the Indian Affairs 
website, currently at https://www.bia.gov/regional-offices);
    (3) Director, Bureau of Indian Affairs (1849 C Street NW, MS 4606, 
Washington, DC 20240); and
    (4) Assistant Secretary--Indian Affairs (1849 C Street NW, MS 4660, 
Washington, DC 20240).
    (b) BIE's chain of command is as follows:
    (1) Principal of Bureau-operated school;
    (2) Education Program Administrator;
    (3) Associate Deputy Director, BIE;
    (4) Director, BIE; and
    (5) AS-IA.
    (c) The Office of Justice Services' chain of command is as follows:
    (1) Deputy Director BIA, Office of Justice Services;
    (2) Director, BIA; and
    (3) AS-IA
    (d) You may appeal inaction by an official within the Office of the 
AS-IA to the AS-IA.


Sec.  2.603  How do I submit an appeal of inaction?

    You may appeal the inaction of a decision-maker by sending a 
written ``appeal from inaction of an official'' to the next official in 
the decision-maker's chain of command. You must enclose a copy of the 
original request for decision to which the decision-maker has not 
responded and a copy of the request for decision that you sent to the 
decision-maker pursuant to Sec.  2.600. If filing by email is 
permitted, ``Appeal of Inaction'' must appear in the subject line of 
the email submission.


Sec.  2.604  What will the next official in the decision-maker's chain 
of command do in response to my appeal?

    An official who receives an appeal from the inaction of a decision-
maker that complies with the requirements of this subpart will, within 
15 days of receiving the appeal, formally direct the decision-maker to 
respond within 15 days of the decision-maker's receipt of the official 
direction. The official will send to all interested parties a copy of 
his or her instructions to the decision-maker.


Sec.  2.605  May I appeal continued inaction by the decision-maker or 
the next official in the decision-maker's chain of command?

    Yes. If the official fails to timely direct the decision-maker to 
respond to the request for decision, or if the decision-maker fails to 
respond within the time frame identified by the official pursuant to 
Sec.  2.604, you may appeal the continued inaction by either agency 
official to the next highest officer in the chain of command above both 
agency officials. Your appeal must be submitted as provided for in 
Sec. Sec.  2.602 and 2.603. The official will respond as provided for 
in Sec.  2.604.


Sec.  2.606  May I appeal inaction by a reviewing official on an appeal 
from a decision?

    (a) Yes. If a reviewing official fails to take action on the appeal 
within the timeframes established in Sec.  2.505, any interested party 
may appeal the reviewing official's inaction as provided for in this 
subpart.
    (b) Inaction by the IBIA or by the AS-IA is not subject to appeal 
under this part.


Sec.  2.607  What happens if no official responds to my requests under 
this subpart?

    If you exhaust all the provisions of this subpart and the 
Department has still not taken action on your request, the Department's 
inaction may be subject to judicial review pursuant to 5 U.S.C. 706(1).

Subpart G--Special Rules Regarding Recognition of Tribal 
Representative


Sec.  2.700  What is the purpose of this subpart?

    The purpose of this subpart is to expedite administrative review of 
a Bureau decision to recognize, or to decline to recognize, a Tribal 
representative. Provisions in subparts A through F of this part also 
apply, except that, if a provision in this subpart conflicts with a 
provision in subparts A through F of this part, the provision in this 
subpart will govern.


Sec.  2.701  May a Local Bureau Official's decision to recognize, or 
decline to recognize, a Tribal representative be appealed?

    Yes. A written decision by the LBO to recognize or decline to 
recognize a Tribal representative is appealable.


Sec.  2.702  How will I know what decisions are appealable under this 
subpart?

    When an LBO issues a Tribal representative recognition decision, 
the official will include the following notice of appeal rights at the 
end of the decision document:

YOU HAVE 10 DAYS TO APPEAL THIS DECISION.

    This decision may be appealed to the--[appropriate reviewing 
official. If the LBO is a Regional Director, the reviewing official is 
the Director of the BIA]--at--[address, including email address if 
filing by email is permitted].
    Deadline for Appeal. Your notice of appeal must be submitted as 
provided for in 25 CFR 2.214 within 10 (ten) days of the date you 
receive notice of this decision. Your notice of appeal must explain how 
you satisfy the standing requirements in 25 CFR 2.200. If you do not 
file a timely appeal, you will have failed to exhaust administrative 
remedies required by these regulations. If no appeal is timely filed, 
this decision will become effective at the expiration of the appeal 
period. No extension of time may be granted for filing a notice of 
appeal.


Sec.  2.703  How do I file a Notice of Appeal of a Tribal 
representative recognition decision?

    To file a Notice of Appeal, you must submit, as provided in Sec.  
2.214, the Notice of Appeal to the reviewing official identified in the 
decision document's notice of appeal rights, as prescribed in Sec.  
2.702.


Sec.  2.704  How long do I have to file an appeal of a Tribal 
representative recognition decision?

    You have 10 days after you receive the Tribal representative 
recognition decision to file a Notice of Appeal.


Sec.  2.705  Is there anything else I must file?

    Yes. You must file a statement of reasons setting out your 
arguments in support of your appeal, and include any supporting 
documentation you wish to present to the reviewing official. Your 
statement of reasons must comply with the requirements set out in Sec.  
2.214.


Sec.  2.706  When must I file my statement of reasons?

    You must submit your statement of reasons to the reviewing official 
and interested parties no later than 10 days after filing your Notice 
of Appeal.


Sec.  2.707  May the LBO and interested parties file a response to the 
statement of reasons?

    Yes. Any interested party, as well as the LBO, may file a response 
to the statement of reasons, thereby becoming a participant.

[[Page 73703]]

Sec.  2.708  How long do interested parties have to file a response?

    (a) The LBO and any interested party have 10 days after receiving a 
copy of the statement of reasons to file a response, which must be 
served on the appellant, the LBO and other interested parties.
    (b) For good cause shown, the reviewing official may allow the 
appellant to file a reply brief.


Sec.  2.709  What will the LBO do in response to my appeal?

    Upon receipt of your Notice of Appeal, the LBO must transmit, 
within 15 days, the administrative record to the reviewing official and 
transmit your Notice of Appeal to the AS-IA.


Sec.  2.710  When will the reviewing official decide a Tribal 
representative recognition appeal?

    The reviewing official will issue a written decision, including the 
basis for the decision, within 30 days after the latest of the filing 
of your statement of reasons or interested parties' response.


Sec.  2.711  May the decision deadline be extended?

    Yes. A reviewing official may, for good cause and with notice to 
the interested parties and the LBO, extend the deadline for the 
reviewing official's decision one time, for no more than an additional 
30 days.


Sec.  2.712  May the AS-IA take jurisdiction over the appeal?

    Yes. The AS-IA may take jurisdiction over the appeal at any time 
before the reviewing official issues a final decision.


Sec.  2.713  May I ask the AS-IA to take jurisdiction over the appeal?

    No. The AS-IA will not consider a request from any interested party 
to take jurisdiction over the appeal.


Sec.  2.714  May the reviewing official's decision on Tribal 
representative recognition be appealed?

    Yes. The reviewing official's decision is immediately effective, 
but not final for the Department. Therefore, any participant may appeal 
the reviewing official's decision as provided for in this part, or 
pursue judicial review in Federal court. Notwithstanding any other 
regulation, the reviewing official's Tribal representative recognition 
decision shall remain in effect and binding on the Department unless 
and until the reviewing official's decision is reversed by superior 
agency authority or reversed or stayed by order of a Federal court.

Subpart H--Appeals of Bureau of Trust Funds Administration 
Statements of Performance


Sec.  2.800  What is the purpose of this subpart?

    (a) The purpose of this subpart is to allow an account holder to 
dispute the accuracy of the activity contained within a Statement of 
Performance.
    (b) The appeals process in this subpart is summarized as follows:
    (1) Account holders receive a Statement of Performance at least 
each quarter. In limited circumstances, account holders may only 
receive a Statement of Performance annually based upon activity.
    (2) An account holder may submit an Objection to the Statement of 
Performance (``Objection'') to the decision-maker.
    (3) The decision-maker will render a Decision on the Objection to 
the Statement of Performance (``Decision'').
    (4) An account holder may submit an Appeal of the Decision on the 
Objection to the Statement of Performance (``Appeal'') to the Director, 
BTFA.
    (5) The Director, BTFA will render the BTFA's ruling on the account 
holder's appeal.
    (6) An account holder may appeal the BTFA's ruling to the AS-IA.
    (7) The AS-IA's decision on the account holder's appeal is a final 
agency action.


Sec.  2.801  What terms do I need to know for this subpart?

    Account holder means a Tribe or a person who owns the funds in a 
Tribal or Individual Indian Money (IIM) account that is maintained by 
the Secretary.
    Appeal of the Decision on the Objection to the Statement of 
Performance (``Appeal'') means your appeal of the decision-maker's 
decision.
    Basis of Objection to the Statement of Performance (``Basis of 
Objection'') means the documentation you submit supporting your 
Objection to the Statement of Performance.
    BTFA means the Bureau of Trust Funds Administration.
    BTFA's Ruling means the ruling issued by Director, BTFA on your 
Appeal of the decision-maker's decision.
    Decision on the Objection to the Statement of Performance 
(``Decision'') means the decision-maker's decision on your Objection to 
the Statement of Performance.
    Decision-maker means the Director, Office of Trust Analysis and 
Research within the Bureau of Trust Funds Administration who reviews 
your Objection to the Statement of Performance.
    Objection to the Statement of Performance (``Objection'') means the 
document you submit to the decision-maker, alleging errors in your 
Statement of Performance.
    Reviewing official means the Director, BTFA.
    Statement of Performance (SOP) means the document that is issued to 
each account holder that identifies:
    (1) The source, type, and status of the funds;
    (2) The beginning balance;
    (3) The gains and losses;
    (4) Receipts and disbursements; and
    (5) The ending balance.


Sec.  2.802  What must I do if I want to challenge the accuracy of 
activity within a Statement of Performance?

    If you want to challenge the accuracy of activity within a 
Statement of Performance, you must submit an Objection to the Statement 
of Performance within 60 calendar days of the statement date.


Sec.  2.803   Is every account holder allowed to challenge the accuracy 
of activity within a Statement of Performance?

    Yes. Unless your ability to challenge the accuracy of activity 
within a Statement of Performance is limited pursuant to a court order 
or settlement, you may challenge an SOP as provided for in this 
subpart.


Sec.  2.804  May I challenge the underlying action that generated the 
proceeds deposited into my account under this subpart?

    No. This subpart is solely for the purpose of challenging the 
accuracy of the activity within the SOP. If you want to challenge the 
underlying action that generated the proceeds deposited into your trust 
account, you must contact the BIA agency responsible for the action.


Sec.  2.805  May I challenge anything other than the activity in the 
account under this subpart?

    No. The purpose of this subpart is to provide a method for account 
holders to dispute the activity in the account.


Sec.  2.806  What must my Objection to the Statement of Performance 
contain?

    Your Objection to the Statement of Performance must be in writing 
and contain all of the following:
    (a) Your name, address, and telephone number;
    (b) The statement date of the specific Statement of Performance 
that you are challenging;
    (c) A copy of the Statement of Performance being challenged; and
    (d) The Basis of Objection.

[[Page 73704]]

Sec.  2.807  What must my Basis of Objection contain?

    Your Basis of Objection must be in writing and contain:
    (a) A statement that details all of the errors or omissions that 
you believe exist in the Statement of Performance, with as much 
explanatory detail as possible;
    (b) A statement describing the corrective action that you believe 
BTFA should take; and
    (c) All information that you believe relates to the error(s) or 
omission(s) in the specific Statement of Performance.


Sec.  2.808  To whom must I submit my Objection to the Statement of 
Performance?

    (a) You must submit your Objection to the Statement of Performance 
to the decision-maker at: U.S. Department of the Interior, Bureau of 
Trust Funds Administration, Attn: Director, Office of Trust Analysis 
and Research, 1849 C Street NW, Washington, DC 20240.
    (b) Your submission must comply with the provisions of Sec.  2.214.


Sec.  2.809  When must I submit my Objection to the Statement of 
Performance?

    You must submit your Objection to the Statement of Performance 
within 60 calendar days of the statement date on the Statement of 
Performance you are challenging.


Sec.  2.810  Will the decision-maker acknowledge receipt of my 
Objection to the Statement of Performance?

    Yes. The decision-maker will provide an acknowledgement of receipt 
of your Objection to the Statement of Performance within 10 calendar 
days of receipt in the form of a letter that will be mailed to the 
address you provided in your Objection.


Sec.  2.811  May I request an extension of time to submit my Objection 
to the Statement of Performance?

    Yes. Within 60 calendar days of the statement date on your 
Statement of Performance, you may request an extension of time, 
submitted in compliance with the provisions of Sec.  2.214, from the 
decision-maker to submit your Objection to the Statement of 
Performance. The decision-maker may grant one 30-day extension of time 
in which to submit your Objection to the Statement of Performance.


Sec.  2.812  May I appeal the denial of my request for an extension of 
time?

    No. The denial of an extension of time to submit the Objection to 
the Statement of Performance is not appealable.


Sec.  2.813  If I fail to submit either an Objection to the Statement 
of Performance or the Basis of Objection within the applicable 
deadlines, what is the consequence?

    If you fail to submit either the Objection to the Statement of 
Performance or the Basis of Objection within the applicable deadlines:
    (a) The Statement of Performance at issue will be deemed accurate 
and complete for all purposes;
    (b) You will have waived your right to invoke the remainder of the 
review and appeals process as to that Statement of Performance; and
    (c) You will have failed to exhaust the administrative remedies 
available within the Department.


Sec.  2.814  How long will the decision-maker have to issue a Decision 
on my Objection to the Statement of Performance?

    The decision-maker will have 30 calendar days from the date of 
receipt of your Basis of Objection to the Statement of Performance to 
issue a Decision on your Objection to the Statement of Performance. If 
your Basis of Objection is not received when you submit your Objection 
to the Statement of Performance and an extension of time was not asked 
for and granted, the decision-maker will dismiss your Objection to the 
Statement of Performance.


Sec.  2.815  What information will the Decision on my Objection to the 
Statement of Performance contain?

    The Decision on your Objection to the Statement of Performance will 
contain an explanation as to whether the decision-maker agrees or 
disagrees with your Objection to the Statement of Performance. If the 
decision-maker agrees with your Objection to the Statement of 
Performance, a correction will be made and reflected on your Statement 
of Performance. If the decision-maker disagrees with your Objection to 
the Statement of Performance, the Decision will provide information 
about your right to appeal the Decision.


Sec.  2.816  May I appeal the Decision on my Objection to the Statement 
of Performance?

    Yes. The Decision issued by the decision-maker is appealable to the 
reviewing official, who is the Director, BTFA.


Sec.  2.817  What must my Appeal of the Decision on the Objection to 
the Statement of Performance contain?

    Your Appeal must comply with the instructions in Sec.  2.214 and 
must include the statement date of the specific Statement of 
Performance that you are appealing.


Sec.  2.818  To whom must I submit my Appeal of a Decision on my 
Objection to the Statement of Performance?

    You must submit your Appeal, as provided in Sec.  2.214, to the 
reviewing official, at: U.S. Department of the Interior, Bureau of 
Trust Funds Administration, Attn: Director, BTFA, 1849 C Street NW, 
Washington, DC 20240.


Sec.  2.819  When must my Appeal be filed?

    You must file your Appeal within 30 calendar days of the date that 
the decision-maker issued the Decision.


Sec.  2.820  May I submit any other documents in support of my Appeal?

    No. You may not submit any other documents in support of your 
Appeal. The reviewing official may only consider the documents that 
were reviewed by the decision-maker.


Sec.  2.821  May I request an extension of time to submit my Appeal?

    No. You must submit the Appeal within 30 calendar days of the 
issuance of the Decision. The reviewing official will not grant an 
extension of time to submit your appeal of a Decision.


Sec.  2.822  What happens if I do not submit my Appeal within the 30-
day deadline?

    If you fail to submit your Appeal within the 30-day deadline:
    (a) The decision-maker's decision will be effective;
    (b) The Statement of Performance at issue will be deemed accurate 
and complete;
    (c) You will have waived your right to invoke the remainder of the 
review and appeals process as to that same Statement of Performance; 
and
    (d) You will have failed to exhaust the administrative remedies 
available within the Department.


Sec.  2.823  When will the reviewing official issue the BTFA's ruling?

    The reviewing official will issue the BTFA's ruling within 30 
calendar days of receipt of your Appeal of a Decision on your Objection 
to the Statement of Performance. The ruling will provide information 
about your right to further appeal.


Sec.  2.824  May I appeal the BTFA's ruling?

    Yes. The BTFA's ruling may be appealed to the AS-IA. The 
procedures, requirements, and deadlines set out in Sec. Sec.  2.816, 
2.817, and 2.819 through 2.821 apply to appeals to the AS-IA under this 
subpart. Submit your Appeal to: U.S. Department of the Interior, Office 
of the Assistant Secretary--Indian Affairs, MS 4660, 1849 C Street NW, 
Washington, DC 20240, as provided in Sec.  2.214.

[[Page 73705]]

Sec.  2.825  When does the Statement of Performance or a Decision 
become final?

    (a) Statements of Performance, and decisions rendered by Department 
officials under this subpart, are final when the deadline for 
submitting an Objection to the Statement of Performance or an Appeal 
has expired and the account holder has not submitted an Objection to 
the Statement of Performance or an Appeal.
    (b) A decision rendered by the AS-IA is a final agency action.

Subpart I--Alternative Dispute Resolution


Sec.  2.900  Is there a procedure other than a formal appeal for 
resolving disputes?

    Yes. We strongly encourage parties to work together to reach a 
consensual resolution of disputes whenever possible. Use of an 
alternative approach to dispute resolution can save time and money, 
produce more durable and creative solutions, and foster improved 
relationships. It may be appropriate and beneficial to consider the use 
of alternative dispute resolution (ADR) processes and techniques at any 
stage in a dispute. The parties may request information from the 
decision-maker on the use of an ADR process.


Sec.  2.901  How do I request alternative dispute resolution?

    If you are interested in pursuing alternative dispute resolution, 
you may contact the reviewing official to make a request to use ADR for 
a particular issue or dispute.


Sec.  2.902  When do I initiate alternative dispute resolution?

    We will consider a request to use alternative dispute resolution at 
any time. If you file a Notice of Appeal, you may request the 
opportunity to use a consensual form of dispute resolution.


Sec.  2.903  What will Indian Affairs do if I request alternative 
dispute resolution?

    If all interested parties concur, the reviewing official may stay 
(discontinue consideration of) the appeal while the parties pursue ADR. 
Where the parties agree to use ADR, Indian Affairs and other interested 
parties may seek assistance from the Department of the Interior's 
Office of Collaborative Action and Dispute Resolution (CADR). CADR can 
assist in planning and facilitating an effective collaboration or 
dispute resolution process. Parties are encouraged to consider best 
practices for engagement, including but not limited to, the use of 
neutral facilitation and other collaborative problem-solving approaches 
to promote effective dialogue and conflict resolution.

Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2022-25627 Filed 11-30-22; 8:45 am]
BILLING CODE 4337-15-P