Federal Register / Vol. 79, No. 118 / Thursday, June 19, 2014 / Proposed Rules 35129 

information that is already in the public 

domain, in either the same or a 

substantially-identical form, does not 

add anything new to the public’s 

understanding of Government activities. 

* * * * * 

(4) Your expertise or understanding of 

the requested records as well as your 

ability and intention to effectively 

convey information to the public. NARA 

ordinarily presumes that a 

representative of the news media 

satisfies this consideration. 

* * * * * 

(d) Requesters should ask for waiver 

or reduction of fees when they first 

submit their requests to NARA, and 

should address the criteria referenced 

above. A requester may ask for a fee 

waiver at a later time while the 

underlying record request is still 

pending or during an administrative 

appeal. 

(e) NARA may also waive (either 

partially or in full) or reduce fees for 

operational records in additional 

circumstances as a matter of 

administrative discretion. 

§ 1250.74 [Amended] 

■ 9. Amend § 1250.74(a) by removing 

the phrase ‘‘, and your right to judicial 

review of the decision if information is 

denied under a FOIA exemption’’. 

■ 10. Amend § 1250.82 as follows: 

■ a. Redesignate paragraphs (b) through 

(g) as paragraphs (c) through (h); and 

■ b. Revise paragraph (a); 

■ c. Add a new paragraph (b); and 

■ d. Revise newly redesignated 

paragraphs (f) and (h). 

The revisions and addition read as 

follows: 

§ 1250.82 How does NARA process FOIA 

requests for confidential commercial 

information? 

* * * * * 

(a) If the records are less than 10 years 

old, NARA reviews the records in 

response to a FOIA request. If NARA 

then believes that it should release the 

records under FOIA, it makes 

reasonable efforts to inform the 

submitter. The notice to the submitter 

describes the business information 

requested or includes copies of the 

requested records. NARA does not 

notify the submitter when it determines 

that: 

(1) It must withhold the information 

under FOIA’s exemptions; 

(2) The information has been 

published or made available to the 

public; or 

(3) It is required by a statute (other 

than the FOIA), or by a regulation 

issued in accordance with the 

requirements of Executive Order 12600, 

to disclose the information. 

(b) If the records are 10 or more years 

old, NARA reviews the records in 

response to a FOIA request as it would 

any other records, and at its discretion, 

informs the submitter. NARA releases 

the records if it determines that neither 

Exemption 4 nor any other exemption 

applies. 

* * * * * 

(f) NARA reviews and considers all 

objections to release that it receives 

within the time limit. Any information 

provided by a submitter under this 

provision may itself be subject to 

disclosure under FOIA. NARA 

considers a submitter who fails to 

respond within the time period 

specified in the notice to have no 

objection to disclosure of the 

information. If NARA decides to release 

the records, it informs the submitter in 

writing, along with NARA’s reasons for 

deciding to release. NARA includes 

with the notice copies of the records as 

it intends to release them. NARA also 

informs the submitter that it intends to 

release the records within a reasonable 

time after the date of the notice unless 

a U.S. District Court forbids disclosure. 

NARA will not consider any 

information it receives after the date of 

a disclosure decision. 

* * * * * 

(h) NARA notifies the requester in 

three circumstances: 

(1) When it notifies the submitter of 

the opportunity to object to disclosure, 

or to extend the time for objecting; 

(2) When it notifies the submitter of 

its intent to disclose the requested 

information; and 

(3) When a submitter files a lawsuit to 

prevent the disclosure of the 

information. 

Dated: June 10, 2014. 

David S. Ferriero, 

Archivist of the United States. 

[FR Doc. 2014–14114 Filed 6–18–14; 8:45 am] 

BILLING CODE 7515–01–P 

DEPARTMENT OF THE INTERIOR 

Office of the Secretary 

43 CFR Part 4 

[K00103 12/13 A3A10; 134D0102DR– 

DS5A300000–DR.5A311.IA000113] 

RIN 1094–AA54 

Hearing and Re-Petition Authorization 

Processes Concerning 

Acknowledgment of American Indian 

Tribes 

AGENCY: Office of the Secretary, Interior. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule revises the 

process and criteria for Federal 

acknowledgment of Indian tribes. This 

rulemaking would establish procedures 

for a new category of expedited hearing 

for petitioners who receive a negative 

proposed finding for Federal 

acknowledgment and request a hearing. 

This rule would also establish 

procedures for a new re-petition 

authorization process for petitioners 

whose petitions have been denied. This 

proposed rule is related to a Bureau of 

Indian Affairs proposed rule that would 

revise processing of petitions for Federal 

acknowledgment of Indian tribes. 

DATES: Comments on this rule must be 

received by August 18, 2014. 

ADDRESSES: You may submit comments 

by any of the following methods: 

—Federal rulemaking portal: http://

www.regulations.gov. 

—Email: karl_johnson@oha.doi.gov. 

Include the number 1094–AA54 in 

the subject line. 

—Mail or hand delivery: Karl Johnson, 

Office of Hearings and Appeals, 

Departmental Cases Hearings 

Division, U.S. Department of the 

Interior, 351 S. West Temple, Suite 

6.300, Salt Lake City, UT 84101. 

Include the number 1094–AA54 on 

the envelope. 

Please note that we will not consider 

or include in the docket for this 

rulemaking any comments received after 

the close of the comment period (see 

DATES) or any comments sent to an 

address other than those listed above. 

FOR FURTHER INFORMATION CONTACT: Karl 

Johnson, Senior Attorney, Office of 

Hearings and Appeals, Departmental 

Cases Hearings Division, (801) 524– 

5344; karl_johnson@oha.doi.gov. You 

may review the information collection 

request online at http://

www.reginfo.gov. Follow the 

instructions to review Department of the 

Interior collections under review by 

OMB. 

SUPPLEMENTARY INFORMATION: This 

proposed rule is being published in 

connection with a Bureau of Indian 

Affairs proposed rule that would 

comprehensively revise 25 CFR part 83 

to improve the processing of petitions 

for Federal acknowledgment of Indian 

tribes. The BIA proposed rule published 

on May 29, 2014 (79 FR 30766). These 

improvements include granting the 

petitioner the ability to request a 

hearing before an Office of Hearings and 

Appeals (OHA) judge if the petitioner 

receives a negative proposed finding on 

Federal acknowledgment from the 

Office of Federal Acknowledgment 

(OFA). The hearing process culminates 

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35130 Federal Register / Vol. 79, No. 118 / Thursday, June 19, 2014 / Proposed Rules 

in the judge’s issuance of a 

recommended decision on Federal 

acknowledgment for consideration by 

the Assistant Secretary—Indian Affairs. 

This proposed rule would not change 

the ‘‘reasonable likelihood’’ burden of 

proof standard in 25 CFR 83.10(a) for 

determining whether the facts claimed 

by the petitioner are valid and that the 

criteria for Federal acknowledgment 

have been met. In the acknowledgment 

context, courts have examined whether 

the Department correctly applied the 

‘‘reasonable likelihood’’ standard but 

have not articulated what the standard 

actually requires. Muwekma Ohlone 

Tribe v. Salazar, 708 F.3d 209, 220–21 

(D.C. Cir. 2013). Instead, they have only 

stated that ‘‘conclusive proof’’ or 

‘‘conclusive evidence’’ is not required. 

Id. at 212. The proposed rule would 

incorporate the Supreme Court’s 

clarification—arising from criminal 

cases in which jury instructions are 

challenged—that satisfaction of the 

‘‘reasonable likelihood’’ standard does 

not require proof that a claimed fact is 

‘‘more likely than not’’ to be true. Boyde 

v. California, 494 U.S. 370, 380 (1990). 

This proposed rule is patterned to a 

large extent after the procedural 

regulations at 43 CFR part 45, which 

contain very strict time constraints on 

procedures and unusual procedural 

requirements to expedite the process to 

comply with a statutory time limit. 

Compliance with these procedures can 

be onerous for the parties and the judge. 

The proposed rule would employ 

similar but less strict time constraints to 

achieve a proper balance between speed 

and adequate development and 

consideration of the issues. 

One of the unusual procedures 

incorporated into the proposed rule is 

the requirement to submit direct 

testimony in writing before the hearing 

to shorten the length of the hearing. See 

proposed § 4.1042(a). The hearing 

would generally be limited to crossexamination of witnesses (and any redirect and re-cross examination). 

While there is no statutory time limit 

governing the proposed hearing process 

for petitions for Federal 

acknowledgment, there is still a 

substantial need to resolve those 

petitions expeditiously. Therefore, 

issuance of a recommended decision 

completing the hearing process would 

be required within 180 days of initiation 

of the process unless the judge finds 

good cause for extending this deadline. 

In our experience, full administrative 

adjudications involving prehearing 

conferences, discovery, motions, an 

evidentiary hearing, briefing, and a 

decision often take over a year to 

complete, especially if the case involves 

multiple parties and complex issues. 

Shortening this process to 180 days will 

be a substantial challenge for the parties 

and the judge, and will require 

adherence to fairly stringent procedural 

limits and deadlines. 

Comments are welcome on any 

revisions to these regulations that might 

better balance the parties’ need for an 

adequate opportunity to prepare and 

present their cases and the substantial 

need to resolve each petition as 

expeditiously as possible. More 

particularly, comments are invited 

addressing the propriety of requiring 

direct testimony to be submitted in 

writing before the hearing and setting a 

180-day time limit for completion of the 

hearing process and issuance of a 

recommended decision. 

Under this proposed rule, the 180-day 

period for the hearing process would 

commence when we issue the docketing 

notice after receiving the referral notice 

and record from OFA, and would end 

when the judge issues a recommended 

decision. During that period, at least one 

prehearing conference would be held; 

discovery would be conducted as 

approved by the judge or agreed to by 

the parties; evidence, including direct 

written testimony and oral crossexamination, would be presented at a 

hearing; post-hearing briefs would be 

filed; and a recommended decision 

would be issued by the judge. Any 

person or organization may file a motion 

to intervene in the hearing process. 

Upon a proper showing of interest or 

other factors, the judge may grant 

intervention. 

This proposed rule also includes 

summary decision procedures, i.e., 

procedures for issuing a recommended 

decision without a hearing based on the 

absence of any genuine disputed issue 

of material fact in the record. We invite 

comments on whether the final rule 

should include summary decision 

procedures. 

We also request comments on the 

following questions: (1) Who is an 

appropriate OHA judge to preside over 

the hearing process and issue a 

recommended decision on Federal 

acknowledgment or over the re-petition 

authorization process and issue a final 

decision on whether re-petitioning is 

authorized—an administrative law 

judge appointed under 5 U.S.C. 3105, an 

administrative judge with OHA, or an 

attorney designated by the OHA 

Director to serve as the OHA judge (the 

proposed rule defines ‘‘OHA judge’’ 

broadly to include all three); (2) whether 

the factual basis for the OHA judge’s 

decision should be limited to the 

hearing record; and (3) whether the 

hearing record should include all 

evidence in OFA’s administrative record 

for the petition or be limited to 

testimony and exhibits specifically 

identified by the petitioner and OFA. 

Procedural Requirements 

A. Regulatory Planning and Review 

(E.O. 12866 and 13563) 

Executive Order (E.O.) 12866 provides 

that the Office of Information and 

Regulatory Affairs (OIRA) at the Office 

of Management and Budget (OMB) will 

review all significant rules. OIRA has 

determined that this rule is not 

significant. 

E.O. 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 

E.O. 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 rule will 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.). 

C. Small Business Regulatory 

Enforcement Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. It 

will not result in the expenditure by 

State, local, or tribal governments, in the 

aggregate, or by the private sector of 

$100 million or more in any one year. 

The rule’s requirements will not result 

in a major increase in costs or prices for 

consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions. Nor will 

this rule have significant adverse effects 

on competition, employment, 

investment, productivity, innovation, or 

the ability of the U.S.-based enterprises 

to compete with foreign-based 

enterprises because the rule is limited to 

Federal acknowledgment of Indian 

tribes. 

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Federal Register / Vol. 79, No. 118 / Thursday, June 19, 2014 / Proposed Rules 35131 

D. Unfunded Mandates Reform Act 

This rule does not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of more than $100 million per year. The 

rule does 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) 

Under the criteria in Executive Order 

12630, this rule does not affect 

individual property rights protected by 

the Fifth Amendment nor does it 

involves a compensable ‘‘taking.’’ A 

takings implication assessment is 

therefore not required. 

F. Federalism (E.O. 13132) 

Under the criteria in Executive Order 

13132, this rule has no substantial direct 

effect on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. 

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

This rule complies with the 

requirements of Executive Order 12988. 

Specifically, this rule has been reviewed 

to eliminate errors and ambiguity and 

written to minimize litigation; and is 

written in clear language and contains 

clear legal standards. 

H. Consultation With Indian Tribes 

(E.O. 13175) 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments,’’ 59 FR 22951 (May 4, 

1994), supplemented by Executive 

Order 13175, Consultation and 

Coordination with Indian Tribal 

Governments, 65 FR 67249 (Nov. 6, 

2000), and 512 DM 2, the Department 

has assessed the impact of this rule on 

Tribal trust resources and has 

determined that it does not directly 

affect Tribal resources. The rules are 

procedural and administrative in nature. 

However, the Department has consulted 

with federally recognized Indian tribes 

regarding the companion proposed rule 

being published concurrently by the 

BIA. That rule is an outgrowth of the 

‘‘Discussion Draft’’ of the Federal 

acknowledgment rule, which the 

Department distributed to federally 

recognized Indian tribes in June 2013, 

and on which the Department hosted 

five consultation sessions with federally 

recognized Indian tribes throughout the 

country in July and August 2013. 

Several federally recognized Indian 

tribes submitted written comments on 

that rule. The Department considered 

each tribe’s comments and concerns and 

has addressed them, where possible. 

The Department will continue to 

consult on that rule during the public 

comment period and tribes are 

encouraged to provide feedback on this 

proposed rule during those sessions as 

well. 

I. Paperwork Reduction Act 

The information collection 

requirements are subject to an exception 

under 25 CFR part 1320 and therefore 

are not covered by the Paperwork 

Reduction Act. 

J. National Environmental Policy Act 

This rule does not constitute a major 

Federal action significantly affecting the 

quality of the human environment 

because it is of an administrative, 

technical, and procedural nature. See 43 

CFR 46.210(i). No extraordinary 

circumstances exist that would require 

greater review under the National 

Environmental Policy Act. 

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 and 12988 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 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 

‘‘COMMENTS’’ 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 are unclearly written, which 

sections or sentences are too long, the 

sections where you believe 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. 

List of Subjects in 43 CFR Part 4, 

Subpart K 

Administrative practice and 

procedure, Hearing and re-petition 

authorization procedures, Indians-tribal 

government. 

For the reasons stated in the 

preamble, the Department of the 

Interior, Office of the Secretary, 

proposes to amend 43 CFR part 4 as 

follows: 

PART 4—DEPARTMENT HEARINGS 

AND APPEALS PROCEDURES 

■ 1. The authority for part 4 continues 

to read as follows: 

Authority: 5 U.S.C. 301, 503–504; 25 

U.S.C. 9, 372–74, 410, 2201 et seq.; 43 U.S.C. 

1201, 1457; Pub. L. 99–264, 100 Stat. 61, as 

amended. 

■ 2. Add Subpart K to read as follows: 

Subpart K—Hearing and Re-Petition 

Authorization Processes Concerning 

Acknowledgment of American Indian 

Tribes 

General Provisions 

Sec. 

4.1001 What terms are used in this subpart? 

4.1002 What is the purpose of this subpart? 

4.1003 Which general rules of procedure 

and practice do not apply? 

4.1004 How are time periods computed? 

Representatives 

4.1010 Who may represent a party, and 

what requirements apply to a 

representative? 

Document Filing and Service 

4.1011 What are the form and content 

requirements for documents under this 

subpart? 

4.1012 Where and how must documents be 

filed? 

4.1013 How must documents be served? 

Judge’s Powers, Unavailability, 

Disqualification, and Communications 

4.1014 What are the powers of the judge? 

4.1015 What happens if the judge becomes 

unavailable? 

4.1016 When can a judge be disqualified? 

4.1017 Are ex parte communications 

allowed? 

Motions 

4.1018 What are the requirements for 

motions? 

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35132 Federal Register / Vol. 79, No. 118 / Thursday, June 19, 2014 / Proposed Rules 

Hearing Process 

Docketing, Intervention, Prehearing 

Conferences, and Summary Decision 

4.1020 What will OHA do upon receiving 

the record from OFA? 

4.1021 What are the requirements for 

motions for intervention? 

4.1022 How are prehearing conferences 

conducted? 

4.1023 What are the requirements for 

motions for summary decision and 

responses thereto? 

Information Disclosure and Discovery 

4.1030 What are the requirements for OFA’s 

witness and exhibit list? 

4.1031 How may parties obtain discovery of 

information needed for the case? 

4.1032 When must a party supplement or 

amend information it has previously 

provided? 

4.1033 What are the requirements for 

written interrogatories? 

4.1034 What are the requirements for 

depositions? 

4.1035 How can parties request documents, 

tangible things, or entry on land? 

4.1036 What sanctions may the judge 

impose for failure to comply with 

discovery? 

4.1037 What are the requirements for 

subpoenas and witness fees? 

Hearing, Briefing, and Decision 

4.1040 When and where will the hearing be 

held? 

4.1041 What are the parties’ rights during 

the hearing? 

4.1042 What are the requirements for 

presenting testimony? 

4.1043 How may a party use a deposition in 

the hearing? 

4.1044 What are the requirements for 

exhibits, official notice, and stipulations? 

4.1045 What evidence is admissible at the 

hearing? 

4.1046 What are the requirements for 

transcription of the hearing? 

4.1047 What is the standard of proof? 

4.1048 When will the hearing record close? 

4.1049 What are the requirements for posthearing briefs? 

4.1050 What are the requirements for the 

judge’s recommended decision? 

Re-Petition Authorization Process 

4.1060 How does an unsuccessful petitioner 

request authorization to re-petition for 

Federal acknowledgment? 

4.1061 What will OHA do with a request? 

4.1062 What can the judge do? 

4.1063 When will the judge allow a repetition? 

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 

479a–1. 

General Provisions 

§ 4.1001 What terms are used in this 

subpart? 

As used in this subpart: 

Assistant Secretary means the 

Assistant Secretary—Indian Affairs 

within the Department of the Interior, or 

that officer’s authorized representative, 

but does not include representatives of 

the Office of Federal Acknowledgment. 

Day means a calendar day. 

Department means the Department of 

the Interior, including the Assistant 

Secretary and OFA. 

Discovery means a prehearing process 

for obtaining facts or information to 

assist a party in preparing or presenting 

its case. 

Ex parte communication means an 

oral or written communication to the 

judge that is made without providing all 

parties reasonable notice and an 

opportunity to participate. 

Full intervenor means a person 

granted leave by the judge to intervene 

as a full party under § 4.1021. 

Hearing process means the process by 

which OHA handles a case forwarded to 

OHA by OFA pursuant to 25 CFR 

83.39(a), from receipt to issuance of a 

recommended decision as to whether 

the petitioner should be acknowledged 

as a federally recognized Indian tribe for 

purposes of federal law. 

Judge means an administrative law 

judge appointed under 5 U.S.C. 3105, an 

administrative judge, or an attorneyadvisor with the Office of Hearings and 

Appeals assigned to preside over the 

hearing process under this subpart by 

the Office of Hearings and Appeals. 

OFA means the Office of Federal 

Acknowledgment within the Office of 

the Assistant Secretary—Indian Affairs, 

Department of the Interior. 

OHA means the Office of Hearings 

and Appeals, Department of the Interior. 

Party means the petitioner or 

unsuccessful petitioner (as appropriate), 

OFA, or a full intervenor. 

Person means an individual; a 

partnership, corporation, association, or 

other legal entity; an unincorporated 

organization; and any federal, state, 

tribal, county, district, territorial, or 

local government or agency. 

Petitioner means an entity that has 

submitted a documented petition to 

OFA requesting Federal 

acknowledgment as a federally 

recognized Indian tribe under 25 CFR 

part 83 and has elected to have a 

hearing under 25 CFR 83.38. 

Re-petition authorization process 

means the process by which OHA 

handles a request for re-petitioning filed 

with OHA by an unsuccessful petitioner 

under 25 CFR 83.4(b), from receipt to 

issuance of a decision as to whether the 

unsuccessful petitioner is authorized to 

re-petition for acknowledgment as a 

federally recognized Indian tribe. 

Representative means a person who: 

(1) Is authorized by a party to 

represent the party in a hearing process 

or re-petition authorization process 

under this subpart; and 

(2) Has filed an appearance under 

§ 4.1010. 

Secretary means the Secretary of the 

Interior or his or her designee. 

Senior Department employee has the 

same meaning as the term ‘‘senior 

employee’’ in 5 CFR 2637.211(a). 

Unsuccessful petitioner means an 

entity that was denied Federal 

acknowledgment after petitioning under 

a version of the acknowledgment 

regulations at part 54 or part 83 of title 

25 in effect prior to [EFFECTIVE DATE 

OF FINAL RULE]. 

§ 4.1002 What is the purpose of this 

subpart? 

(a) To obtain acknowledgment as an 

Indian tribe for purposes of Federal law 

and therefore entitlement to a 

government-to-government relationship 

with the United States, an entity may 

file a petition with the OFA under 25 

CFR 83.20. If OFA issues a negative 

proposed finding, the petitioner may 

elect to have a hearing under 25 CFR 

83.38(a) before a judge who will issue a 

recommended decision under 25 CFR 

83.39(d). These regulations contain 

rules of practice and procedure 

applicable to the hearing process 

referred to in 25 CFR 83.38(a) and 83.39. 

(b) Under 25 CFR 83.4(b), an 

unsuccessful petitioner may seek 

authorization from a judge to re-petition 

for acknowledgment. These regulations 

also contain rules of practice and 

procedure applicable to the re-petition 

authorization process. 

(c) This subpart will be construed and 

applied to each hearing process or repetition authorization process to 

achieve a just and speedy 

determination, consistent with adequate 

consideration of the issues involved. 

§ 4.1003 Which rules of procedure and 

practice apply? 

(a) Notwithstanding the provisions of 

§ 4.20, the general rules in 43 CFR part 

4, subpart B, do not apply to the hearing 

process or the re-petition authorization 

process under this subpart. 

(b) The provisions of §§ 4.1001, 

4.1002, and 4.1004 through 4.1018 

apply to both the hearing process and 

the re-petition authorization process. 

(c) The provisions of §§ 4.1020 

through 4.1050 apply to: 

(1) The hearing process; and 

(2) The re-petition authorization 

process to the extent, if any, that the 

judge determines that they apply in 

whole or in part. 

(d) The provisions of §§ 4.1060 

through 4.1063 apply to the re-petition 

authorization process. 

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Federal Register / Vol. 79, No. 118 / Thursday, June 19, 2014 / Proposed Rules 35133 

§ 4.1004 How are time periods computed? 

(a) General. Time periods are 

computed as follows: 

(1) The day of the act or event from 

which the period begins to run is not 

included. 

(2) The last day of the period is 

included. 

(i) If that day is a Saturday, Sunday, 

or other day on which the Federal 

government is closed for business, the 

period is extended to the next business 

day. 

(ii) The last day of the period ends at 

5 p.m. at the place where the filing or 

other action is due. 

(3) If the period is less than 7 days, 

any Saturday, Sunday, or other day on 

which the Federal government is closed 

for business that falls within the period 

is not included. 

(b) Extensions of time. (1) No 

extension of time can be granted to file 

a motion for intervention under 

§ 4.1021. 

(2) An extension of time to file any 

other document under this subpart may 

be granted only upon a showing of good 

cause. 

(i) To request an extension of time, a 

party must file a motion under § 4.1018 

stating how much additional time is 

needed and the reasons for the request. 

(ii) The party must file the motion 

before the applicable time period 

expires, unless the party demonstrates 

extraordinary circumstances that justify 

a delay in filing. 

(iii) The judge may grant the 

extension only if: 

(A) It would not unduly prejudice 

other parties; and 

(B) It would not delay the 

recommended decision under § 4.1050. 

Representatives 

§ 4.1010 Who may act as a party’s 

representative, and what requirements 

apply to a representative? 

(a) Individuals. A party who is an 

individual may either act as his or her 

own representative in the hearing 

process or re-petition authorization 

process under this subpart or authorize 

an attorney to act as his or her 

representative. 

(b) Organizations. A party that is an 

organization or other entity may 

authorize one of the following to act as 

its representative: 

(1) An attorney; 

(2) A partner, if the entity is a 

partnership; 

(3) An officer or full-time employee, 

if the entity is a corporation, 

association, or unincorporated 

organization; 

(4) A receiver, administrator, 

executor, or similar fiduciary, if the 

entity is a receivership, trust, or estate; 

or 

(5) An elected or appointed official or 

an employee, if the entity is a federal, 

state, tribal, county, district, territorial, 

or local government or component. 

(c) OFA. OFA’s representative will be 

an attorney from the Office of the 

Solicitor. 

(d) Appearance. A representative 

must file a notice of appearance. The 

notice must: 

(1) Meet the form and content 

requirements for documents under 

§ 4.1011; 

(2) Include the name and address of 

the person on whose behalf the 

appearance is made; 

(3) If the representative is an attorney 

(except for an attorney with the Office 

of the Solicitor), include a statement 

that he or she is a member in good 

standing of the bar of the highest court 

of a state, the District of Columbia, or 

any territory or commonwealth of the 

United States (identifying which one); 

and 

(4) If the representative is not an 

attorney, include a statement explaining 

his or her authority to represent the 

entity. 

(d) Disqualification. The judge may 

disqualify any representative for 

misconduct or other good cause. 

Document Filing and Service 

§ 4.1011 What are the form and content 

requirements for documents under this 

subpart? 

(a) Form. Each document filed in a 

case under this subpart must: 

(1) Measure 81⁄2 by 11 inches, except 

that a table, chart, diagram, or other 

attachment may be larger if folded to 

81⁄2 by 11 inches and attached to the 

document; 

(2) Be printed on just one side of the 

page; 

(3) Be clearly typewritten, printed, or 

otherwise reproduced by a process that 

yields legible and permanent copies; 

(4) Use 12-point font size or larger; 

(5) Be double-spaced except for 

footnotes and long quotations, which 

may be single-spaced; 

(6) Have margins of at least 1 inch; 

and 

(7) Be bound on the left side, if 

bound. 

(b) Caption. Each document must 

begin with a caption that includes: 

(1) The name of the case under this 

subpart and the docket number, if one 

has been assigned; 

(2) The name and docket number of 

the proceeding to which the case under 

this subpart relates; and 

(3) A descriptive title for the 

document, indicating the party for 

whom it is filed and the nature of the 

document. 

(c) Signature. The original of each 

document must be signed by the 

representative of the person for whom 

the document is filed. The signature 

constitutes a certification by the 

representative that: 

(1) He or she has read the document; 

(2) The statements in the document 

are true to the best of his or her 

knowledge, information, and belief; and 

(3) The document is not being filed 

for the purpose of causing delay. 

(d) Contact information. Below the 

representative’s signature, the document 

must provide the representative’s name, 

mailing address, street address (if 

different), telephone number, facsimile 

number (if any), and electronic mail 

address (if any). 

§ 4.1012 Where and how must documents 

be filed? 

(a) Place of filing. Any documents 

relating to a case under this subpart 

must be filed with the Office of the 

Director, OHA. The OHA Director’s 

Office’s address, telephone number, and 

facsimile number are set forth at 

www.doi.gov/oha/about-ohadirector.cfm. 

(b) Method of filing. (1) A document 

must be filed with OHA using one of the 

following methods: 

(i) By hand delivery of the original 

document; 

(ii) By sending the original document 

by express mail or courier service for 

delivery on the next business day; or 

(iii) By sending the document by 

facsimile if: 

(A) The document is 20 pages or less, 

including all attachments; 

(B) The sending facsimile machine 

confirms that the transmission was 

successful; and 

(C) The original of the document is 

sent by regular mail on the same day. 

(2) Parties are encouraged, but not 

required, to supplement any filing by 

providing the appropriate office with an 

electronic copy of the document on 

compact disc. 

(c) Date of filing. A document under 

this subpart is considered filed on the 

date it is received. However, any 

document received by OHA after 5 p.m. 

is considered filed on the next regular 

business day. 

(d) Nonconforming documents. If any 

document submitted for filing under 

this subpart does not comply with the 

requirements of this subpart or any 

applicable order, it may be rejected. If 

the defect is minor, the filer may be 

notified of the defect and given a chance 

to correct it. 

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§ 4.1013 How must documents be served? 

(a) Filed documents. Any document 

related to a case under this subpart must 

be served at the same time the 

document is delivered or sent for filing. 

Copies must be served on each party, 

using one of the methods of service in 

paragraph (c) of this section. 

(b) Documents issued by OHA or the 

judge. A complete copy of any notice, 

order, decision, or other document 

issued by OHA or the judge under this 

subpart must be served on each party, 

using one of the methods of service in 

paragraph (c) of this section. 

(c) Method of service. Service must be 

accomplished by one of the following 

methods: 

(1) By hand delivery of the document; 

(2) By sending the document by 

express mail or courier service for 

delivery on the next business day; or 

(3) By sending the document by 

facsimile if: 

(i) The document is 20 pages or less, 

including all attachments; 

(ii) The sending facsimile machine 

confirms that the transmission was 

successful; and 

(iii) The document is sent by regular 

mail on the same day. 

(d) Certificate of service. A certificate 

of service must be attached to each 

document filed under this subpart. The 

certificate must be signed by the serving 

party’s representative and include the 

following information: 

(1) The name, address, and other 

contact information of each party’s 

representative on whom the document 

was served; 

(2) The means of service, including 

information indicating compliance with 

paragraph (c)(3) or (c)(4) of this section, 

if applicable; and 

(3) The date of service. 

Judge’s Powers, Unavailability, 

Disqualification, and Communications 

§ 4.1014 What are the powers of the 

judge? 

The judge has all powers necessary to 

conduct the hearing process or the repetition authorization process in a fair, 

orderly, expeditious, and impartial 

manner, including the powers to: 

(a) Administer oaths and affirmations; 

(b) Issue subpoenas to the extent 

authorized by law; 

(c) Rule on motions; 

(d) Authorize discovery as provided 

for in this subpart; 

(e) Hold hearings and conferences; 

(f) Regulate the course of hearings; 

(g) Call and question witnesses; 

(h) Exclude any person from a hearing 

or conference for misconduct or other 

good cause; 

(i) Issue a recommended decision for 

the hearing process or a final decision 

for the re-petition authorization process; 

and 

(j) Take any other action authorized 

by law. 

§ 4.1015 What happens if the judge 

becomes unavailable? 

(a) If the judge becomes unavailable or 

otherwise unable to perform the duties 

described in § 4.1014, OHA will 

designate a successor. 

(b) If a hearing has commenced and 

the judge cannot proceed with it, a 

successor judge may do so. At the 

request of a party, the successor judge 

may recall any witness whose testimony 

is material and disputed, and who is 

available to testify again without undue 

burden. The successor judge may, 

within his or her discretion, recall any 

other witness. 

§ 4.1016 When can a judge be 

disqualified? 

(a) The judge may withdraw from a 

case at any time the judge deems 

himself or herself disqualified. 

(b) At any time before issuance of the 

judge’s decision, any party may move 

that the judge disqualify himself or 

herself for personal bias or other valid 

cause. 

(1) The party must file the motion 

promptly after discovering facts or other 

reasons allegedly constituting cause for 

disqualification. 

(2) The party must file with the 

motion an affidavit or declaration 

setting forth the facts or other reasons in 

detail. 

(c) The judge must rule upon the 

motion, stating the grounds for the 

ruling. 

(1) If the judge concludes that the 

motion is timely and meritorious, he or 

she must disqualify himself or herself 

and withdraw from the case. 

(2) If the judge does not disqualify 

himself or herself and withdraw from 

the case, the judge must continue with 

the hearing process or re-petition 

authorization process and issue a 

decision. 

§ 4.1017 Are ex parte communications 

allowed? 

(a) Ex parte communications with the 

judge or his or her staff are prohibited 

in accordance with 5 U.S.C. 554(d). 

(b) This section does not prohibit ex 

parte inquiries concerning case status or 

procedural requirements, unless the 

inquiry involves an area of controversy 

in the hearing process or re-petition 

authorization process. 

§ 4.1018 What are the requirements for 

motions? 

(a) General. Any party may apply for 

an order or ruling on any matter related 

to the hearing process or re-petition 

authorization process by presenting a 

motion to the judge. A motion may be 

presented any time after OHA issues the 

docketing notice. 

(1) A motion made at a hearing may 

be stated orally on the record, unless the 

judge directs that it be written. 

(2) Any other motion must: 

(i) Be in writing; 

(ii) Comply with the requirements of 

this subpart with respect to form, 

content, filing, and service; and 

(iii) Not exceed 10 pages. 

(b) Content. (1) Each motion must 

state clearly and concisely: 

(i) Its purpose and the relief sought; 

(ii) The facts constituting the grounds 

for the relief sought; and 

(iii) Any applicable statutory or 

regulatory authority. 

(2) A proposed order must accompany 

the motion. 

(c) Response. Except as otherwise 

required by this subpart or by order of 

the judge, any other party may file a 

response to a written motion within 14 

days after service of the motion. When 

a party presents a motion at a hearing, 

any other party may present a response 

orally on the record. 

(d) Reply. Unless the judge orders 

otherwise, no reply to a response may 

be filed. 

(e) Effect of filing. Unless the judge 

orders otherwise, the filing of a motion 

does not stay the hearing process. 

(f) Ruling. The judge will rule on the 

motion as soon as feasible, either orally 

on the record or in writing. The judge 

may summarily deny any dilatory, 

repetitive, or frivolous motion. 

Hearing Process 

Docketing, Intervention, Prehearing 

Conferences, and Summary Decision 

§ 4.1020 What will OHA do upon receiving 

the record from OFA? 

Within 5 days after issuance of the 

referral notice under 25 CFR 83.39(a) 

the actions required by this section must 

be taken. 

(a) OHA must: 

(1) Docket the case; 

(2) Assign a judge to preside over the 

hearing process and issue a 

recommended decision; and 

(3) Issue a docketing notice that 

informs the parties of the docket 

number and the judge assigned to the 

case. 

(b) The judge assigned under 

paragraph (a)(2) of this section must 

issue a notice setting the time, place, 

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and method for conducting an initial 

prehearing conference under 

§ 4.1022(a). This notice may be 

combined with the docketing notice 

under paragraph (a)(3) of this section. 

§ 4.1021 What are the requirements for 

motions for intervention and responses? 

(a) General. A person may file a 

motion for intervention within 15 days 

after issuance of the referral notice 

under 25 CFR 83.39(a). 

(b) Content of the motion. The motion 

for intervention must contain the 

following: 

(1) A statement setting forth the 

interest of the person and, if the person 

seeks intervention under paragraph (d) 

of this section, a showing of why that 

interest may be adversely affected by the 

final determination of the Assistant 

Secretary under 25 CFR 83.43; 

(2) An explanation of the person’s 

position with respect to the issues of 

material fact raised in the election of 

hearing in no more than two pages; and 

(3) A list of the witnesses and exhibits 

the person intends to present at the 

hearing, other than solely for 

impeachment purposes, including: 

(A) For each witness listed, his or her 

name, address, telephone number, and 

qualifications and a brief narrative 

summary of his or her expected 

testimony; and 

(B) For each exhibit listed, a statement 

specifying whether the exhibit is in the 

administrative record reviewed by OFA. 

(c) Timing of response to a motion. 

Any response to a motion for 

intervention must be filed by a party 

within 7 days after service of the 

motion. 

(d) Intervention of right. The judge 

will grant intervention where the person 

has an interest that may be adversely 

affected by the Assistant Secretary’s 

final determination under 25 CFR 83.43. 

(e) Permissive Intervention. If 

paragraph (d) of this section does not 

apply, the judge will consider the 

following in determining whether 

intervention is appropriate: 

(1) The nature of the issues; 

(2) The adequacy of representation of 

the person’s interest which is provided 

by the existing parties to the proceeding; 

(3) The ability of the person to present 

relevant evidence and argument; and 

(4) The effect of intervention on the 

Department’s implementation of its 

statutory mandates. 

(f) How an intervenor may participate. 

(1) A person granted leave to intervene 

under paragraph (d) of this section may 

participate as a full party or in a 

capacity less than that of a full party. 

(2) If the intervenor wishes to 

participate in a limited capacity or if the 

intervenor is granted leave to intervene 

under paragraph (e) of this section, the 

extent and the terms of the participation 

will be determined by the judge. 

(3) An intervenor may not raise issues 

of material fact beyond those raised in 

the election of hearing under 25 CFR 

83.38(a)(1). 

§ 4.1022 How are prehearing conferences 

conducted? 

(a) Initial prehearing conference. The 

judge will conduct an initial prehearing 

conference with the parties at the time 

specified in the docketing notice under 

§ 4.1020, within 35 days after issuance 

of the docketing notice. 

(1) The initial prehearing conference 

will be used: 

(i) To identify, narrow, and clarify the 

disputed issues of material fact and 

exclude issues that do not qualify for 

review as factual, material, and 

disputed; 

(ii) To consider the parties’ motions 

for discovery under § 4.1031 and to set 

a deadline for the completion of 

discovery; 

(iii) To discuss the evidence on which 

each party intends to rely at the hearing; 

(iv) To set the deadline for submission 

of written testimony under § 4.1042; and 

(v) To set the date, time, and place of 

the hearing. 

(2) The initial prehearing conference 

may also be used: 

(i) To discuss limiting and grouping 

witnesses to avoid duplication; 

(ii) To discuss stipulations of fact and 

of the content and authenticity of 

documents; 

(iii) To consider requests that the 

judge take official notice of public 

records or other matters; 

(iv) To discuss the submission of 

written testimony, briefs, or other 

documents in electronic form; and 

(v) To consider any other matters that 

may aid in the disposition of the case. 

(b) Other conferences. The judge may 

direct the parties to attend one or more 

other prehearing conferences, if 

consistent with the need to complete the 

hearing process within 180 days. Any 

party may by motion request a 

conference. 

(c) Notice. The judge must give the 

parties reasonable notice of the time and 

place of any conference. A conference 

will ordinarily be held by telephone, 

unless the judge orders otherwise. 

(d) Representatives’ preparation and 

authority. Each party’s representative 

must be fully prepared during the 

prehearing conference for a discussion 

of all procedural and substantive issues 

properly raised. The representative must 

be authorized to commit the party that 

he or she represents respecting those 

issues. 

(e) Parties’ Meeting. Before the initial 

prehearing conference, the parties’ 

representatives must make a good faith 

effort: 

(1) To meet in person, by telephone, 

or by other appropriate means; and 

(2) To reach agreement on discovery 

and the schedule of remaining steps in 

the hearing process. 

(f) Failure to attend. Unless the judge 

orders otherwise, a party that fails to 

attend or participate in a conference, 

after being served with reasonable 

notice of its time and place, waives all 

objections to any agreements reached in 

the conference and to any consequent 

orders or rulings. 

(g) Scope. During a conference, the 

judge may dispose of any procedural 

matters related to the case. 

(h) Order. Within 3 days after the 

conclusion of each conference, the judge 

must issue an order that recites any 

agreements reached at the conference 

and any rulings made by the judge 

during or as a result of the conference. 

§ 4.1023 What are the requirements for 

motions for summary decision and 

responses? 

(a) Timing of motion. At any time 

after OHA issues a docketing notice 

under § 4.1020, a party may file a 

motion for summary decision on all or 

part of the proceeding. 

(b) Motion requirements. The party 

filing a motion for summary decision 

must: 

(1) Concisely state the material facts 

that the party contends are undisputed; 

(2) Verify those facts with supporting 

affidavits or declarations, depositions, 

answers to interrogatories, admissions, 

documents produced on request, or 

other documentation; 

(3) Include references to the specific 

portions of the record that verify those 

facts; and 

(4) State why the party is entitled to 

summary decision as a matter of law. 

(c) Response requirements. If a motion 

for summary decision is properly made 

and supported, an opposing party may 

not rely merely on allegations or denials 

in its own pleading; rather, its response 

must either: 

(1) State why the moving party is not 

entitled to summary decision as a matter 

of law; or 

(2) Do all of the following: 

(i) Concisely state the material facts 

which the opposing party contends are 

disputed; 

(ii) Verify that those facts are disputed 

with supporting affidavits or 

declarations, depositions, answers to 

interrogatories, admissions, documents 

produced on request, or other 

documentation; and 

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(iii) Include references to the specific 

portions of the record that verify that 

those facts are disputed. 

(d) Establishing facts. All material 

facts set forth by the moving party and 

properly supported by an accurate 

reference to the record will be taken as 

true for the purpose of summary 

decision unless specifically 

controverted by the opposing party’s 

response. Alternatively, the material 

facts for the purpose of summary 

decision may be established by an 

agreement of the parties enumerating 

those facts. 

(e) Affidavits. A supporting or 

opposing affidavit must be made on 

personal knowledge, set out facts that 

would be admissible in evidence, and 

show that the affiant is competent to 

testify on the matters stated. If a 

document or part of a document is 

referred to in an affidavit, a copy must 

be filed with the affidavit unless the 

document is longer than 10 pages, the 

document is already in the record, and 

the affidavit specifies the location of the 

document in the record. 

(f) When affidavits are unavailable. If 

a party opposing the motion shows by 

affidavit that, for specified reasons, it 

cannot present facts essential to justify 

its opposition, the judge may: 

(1) Deny the motion for summary 

decision; 

(2) Order a continuance to enable 

affidavits to be obtained, depositions to 

be taken, or other discovery to be 

undertaken; or 

(3) Issue any other just order. 

(g) Standards for decision. The judge 

may grant summary decision under this 

section if the record (including the 

pleadings, affidavits or declarations, 

depositions, answers to interrogatories, 

admissions, documents produced on 

request, and other documentation) 

shows that: 

(1) There is no genuine disputed issue 

as to any material fact; and 

(2) The moving party is entitled to 

summary decision as a matter of law. 

(h) Proceeding not fully adjudicated 

on the motion. If summary decision is 

not rendered on the whole proceeding, 

the judge should, to the extent feasible, 

determine and specify by order what 

material facts are not genuinely 

disputed. The facts so specified must be 

treated as established in the proceeding. 

Information Disclosure and Discovery 

§ 4.1030 What are the requirements for 

OFA’s witness and exhibit list? 

Within 14 days after issuance of the 

referral notice under 25 CFR 83.39(a), 

OFA must file a list of the witnesses and 

exhibits it intends to present at the 

hearing, other than solely for 

impeachment purposes, including: 

(a) For each witness listed, his or her 

name, address, telephone number, 

qualifications, and a brief narrative 

summary of his or her expected 

testimony; and 

(b) For each exhibit listed, a statement 

specifying whether the exhibit is in the 

administrative record reviewed by OFA. 

§ 4.1031 How may parties obtain discovery 

of information? 

(a) General. By agreement of the 

parties or with the permission of the 

judge, a party may obtain discovery of 

information to assist in preparing or 

presenting its case. Available methods 

of discovery are: 

(1) Written interrogatories; 

(2) Depositions as provided in 

paragraph (h) of this section; and 

(3) Requests for production of 

designated documents or tangible things 

or for entry on designated land for 

inspection or other purposes. 

(b) Criteria. Discovery may occur only 

as agreed to by the parties or as 

authorized by the judge in a written 

order or during a prehearing conference. 

The judge may authorize discovery only 

if the party requesting discovery 

demonstrates: 

(1) That the discovery will not 

unreasonably delay the hearing process; 

(2) That the scope of the discovery is 

not unduly burdensome; 

(3) That the method to be used is the 

least burdensome method available; 

(4) That any trade secrets or 

proprietary information can be 

adequately safeguarded; 

(5) That the standards for discovery 

under paragraphs (f) through (h) of this 

section have been met, if applicable; 

and 

(6) That the information sought: 

(i) Will be admissible at the hearing 

or appears reasonably calculated to lead 

to the discovery of admissible evidence; 

(ii) Is not otherwise obtainable by the 

party; 

(iii) Is not cumulative or repetitious; 

and 

(iv) Is not privileged or protected from 

disclosure by applicable law. 

(c) Motions. A party may initiate 

discovery: 

(1) Pursuant to an agreement of the 

parties; or 

(2) By filing a motion that: 

(i) Briefly describes the proposed 

methodology, purpose, and scope of the 

discovery; 

(ii) Explains how the discovery meets 

the criteria in paragraphs (b)(1) through 

(b)(6) of this section; and 

(iii) Attaches a copy of any proposed 

discovery request (written 

interrogatories, notice of deposition, or 

request for production of designated 

documents or tangible things or for 

entry on designated land). 

(d) Timing of motions. Any discovery 

motion under paragraph (c)(2) of this 

section must be filed: 

(1) Within 20 days after issuance of 

the docketing notice under § 4.1020 if 

the discovery sought is between the 

petitioner and OFA; and 

(2) Within 30 days after issuance of 

the docketing notice under § 4.1020 if 

the discovery sought is between a full 

intervenor and another party. 

(e) Objections. (1) A party must file 

any objections to a discovery motion or 

to specific portions of a proposed 

discovery request within 10 days after 

service of the motion. 

(2) An objection must explain how, in 

the objecting party’s view, the discovery 

sought does not meet the criteria in 

paragraphs (b)(1) through (b)(6) of this 

section. 

(f) Materials prepared for hearing. A 

party generally may not obtain 

discovery of documents and tangible 

things otherwise discoverable under 

paragraph (b) of this section if they were 

prepared in anticipation of or for the 

hearing by or for another party’s 

representative (including the party’s 

attorney, expert, or consultant). 

(1) If a party wants to discover these 

materials, it must show: 

(i) That it has substantial need of the 

materials in preparing its own case; and 

(ii) That the party is unable without 

undue hardship to obtain the substantial 

equivalent of the materials by other 

means. 

(2) In ordering discovery of these 

materials when the required showing 

has been made, the judge must protect 

against disclosure of the mental 

impressions, conclusions, opinions, or 

legal theories of an attorney. 

(g) Experts. Unless restricted by the 

judge, a party may discover any facts 

known or opinions held by an expert 

concerning any relevant matters that are 

not privileged. Such discovery will be 

permitted only if: 

(1) The expert is expected to be a 

witness at the hearing; or 

(2) The expert is relied on by another 

expert who is expected to be a witness 

at the hearing, and the party shows: 

(i) That it has a compelling need for 

the information; and 

(ii) That it cannot feasibly obtain the 

information by other means. 

(h) Limitations on depositions. (1) A 

party may depose a witness only if the 

party shows that the witness: 

(i) Will be unable to attend the 

hearing because of age, illness, or other 

incapacity; or 

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(ii) Is unwilling to attend the hearing 

voluntarily, and the party is unable to 

compel the witness’s attendance at the 

hearing by subpoena. 

(2) Paragraph (h)(1)(ii) of this section 

does not apply to any person employed 

by or under contract with the party 

seeking the deposition. 

(3) A party may depose a senior 

Department employee of OFA if the 

party shows: 

(i) That the employee’s testimony is 

necessary in order to provide 

significant, unprivileged information 

that is not available from any other 

source or by less burdensome means; 

and 

(ii) That the deposition would not 

significantly interfere with the 

employee’s ability to perform his or her 

official duties. 

(i) Completion of discovery. All 

discovery must be completed within 35 

days after the initial prehearing 

conference, unless the judge sets a 

different deadline. 

§ 4.1032 When must a party supplement or 

amend information? 

(a) Discovery. A party must promptly 

supplement or amend any prior release 

given in response to a discovery request 

if it learns that the response: 

(1) Was incomplete or incorrect when 

made; or 

(2) Though complete and correct 

when made, is now incomplete or 

incorrect in any material respect. 

(b) Witnesses and exhibits. (1) Within 

10 days after the date set for completion 

of discovery, each party must file an 

updated version of the list of witnesses 

and exhibits required under 25 CFR 

83.38(a)(1)(B), § 4.1021(b)(3), or 

§ 4.1030(a). 

(2) If a party wishes to include any 

new witness or exhibit on its updated 

list, it must provide an explanation of 

why it was not feasible for the party to 

include the witness or exhibit on its list 

under 25 CFR 83.38(a)(1)(ii), 

§ 4.1021(b)(3), or § 4.1030(a). 

(c) Failure to disclose. (1) A party that 

fails to disclose information required 

under 25 CFR 83.38(a)(1)(ii), 

§ 4.1021(b)(3), § 4.1030(a), or paragraphs 

(a) or (b) of this section will not be 

permitted to introduce as evidence at 

the hearing testimony from a witness or 

other information that it failed to 

disclose. 

(2) Paragraph (c)(1) of this section 

does not apply if the failure to disclose 

was substantially justified or is 

harmless. 

(3) Before or during the hearing, a 

party may object under paragraph (c)(1) 

of this section to the admission of 

evidence. 

(4) The judge will consider the 

following in determining whether to 

exclude evidence under paragraphs 

(c)(1) through (c)(3) of this section: 

(i) The prejudice to the objecting 

party; 

(ii) The ability of the objecting party 

to cure any prejudice; 

(iii) The extent to which presentation 

of the evidence would disrupt the 

orderly and efficient hearing of the case; 

(iv) The importance of the evidence; 

and 

(v) The reason for the failure to 

disclose, including any bad faith or 

willfulness regarding the failure. 

§ 4.1033 What are the requirements for 

written interrogatories? 

(a) Motion required. A party wishing 

to propound interrogatories must file a 

motion under § 4.1031(c), unless the 

parties agree otherwise. 

(b) Judge’s order. During or promptly 

after the initial prehearing conference, 

the judge will issue an order under 

§ 4.1031(b) with respect to any 

discovery motion requesting the use of 

written interrogatories. The order will 

either grant the motion and approve the 

use of some or all of the proposed 

interrogatories or deny the motion. 

(c) Answers to interrogatories. Except 

upon agreement of the parties, the party 

to whom the proposed interrogatories 

are directed must file its answers to any 

interrogatories approved by the judge 

within 15 days after issuance of the 

order under paragraph (b) of this 

section. 

(1) Each approved interrogatory must 

be answered separately and fully in 

writing. 

(2) The party or its representative 

must sign the answers to interrogatories 

under oath or affirmation. 

(d) Access to records. A party’s 

answer to an interrogatory is sufficient 

when: 

(1) The information may be obtained 

from an examination of records, or from 

a compilation, abstract, or summary 

based on records; 

(2) The burden of obtaining the 

information from the records is 

substantially the same for all parties; 

(3) The answering party specifically 

identifies the individual records from 

which the requesting party may obtain 

the information and where the records 

are located; and 

(4) The answering party provides the 

requesting party with reasonable 

opportunity to examine the records and 

make a copy, compilation, abstract, or 

summary. 

§ 4.1034 What are the requirements for 

depositions? 

(a) Motion and notice. A party 

wishing to take a deposition must file a 

motion under § 4.1031(c), unless the 

parties agree otherwise. Any notice of 

deposition filed with the motion must 

state: 

(1) The time and place that the 

deposition is to be taken; 

(2) The name and address of the 

person before whom the deposition is to 

be taken; 

(3) The name and address of the 

witness whose deposition is to be taken; 

and 

(4) Any documents or materials that 

the witness is to produce. 

(b) Judge’s order. During or promptly 

after the initial prehearing conference, 

the judge will issue an order under 

§ 4.1031(b) with respect to any 

discovery motion requesting the taking 

of a deposition. The order will either 

grant the motion and approve the taking 

of the deposition, subject to any 

conditions or restrictions the judge may 

impose or deny the motion. 

(c) Required arrangements. If the 

parties agree to or the judge approves 

the taking of the deposition, the party 

requesting the deposition must make 

appropriate arrangements for necessary 

facilities and personnel. 

(1) The deposition will be taken at the 

time and place agreed to by the parties 

or indicated in the judge’s order. 

(2) The deposition may be taken 

before any disinterested person 

authorized to administer oaths in the 

place where the deposition is to be 

taken. 

(3) Any party that objects to the taking 

of a deposition because of the 

disqualification of the person before 

whom it is to be taken must do so either: 

(i) Before the deposition begins; or 

(ii) As soon as the disqualification 

becomes known or could have been 

discovered with reasonable diligence. 

(4) A deposition may be taken by 

telephone conference call, if agreed to 

by the parties or approved in the judge’s 

order. 

(d) Testimony. Each witness deposed 

must be placed under oath or 

affirmation, and the other parties must 

be given an opportunity for crossexamination. 

(e) Representation of witness. The 

witness being deposed may have 

counsel or another representative 

present during the deposition. 

(f) Recording and transcript. Except as 

provided in paragraph (g) of this 

section, the deposition must be 

stenographically recorded and 

transcribed at the expense of the party 

that requested the deposition. 

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(1) Any other party may obtain a copy 

of the transcript at its own expense. 

(2) Unless waived by the deponent, 

the deponent will have 3 days after 

receiving the transcript to read and sign 

it. 

(3) The person before whom the 

deposition was taken must certify the 

transcript following receipt of the 

signed transcript from the deponent or 

expiration of the 3-day review period, 

whichever occurs first. 

(g) Video recording allowed. The 

testimony at a deposition may be video 

recorded, subject to any conditions or 

restrictions that the parties may agree to 

or the judge may impose, at the expense 

of the party requesting the recording. 

(1) The video recording may be in 

conjunction with an oral examination 

by telephone conference held under 

paragraph (c)(3) of this section. 

(2) After the deposition has been 

taken, the person recording the 

deposition must: 

(i) Provide a copy of the recording to 

any party that requests it, at the 

requesting party’s expense; and 

(ii) Attach to the recording a 

statement identifying the case and the 

deponent and certifying the authenticity 

of the recording. 

(h) Use of deposition. A deposition 

may be used at the hearing as provided 

in § 4.1043. 

§ 4.1035 How can parties request 

documents, tangible things, or entry on 

land? 

(a) Motion required. A party wishing 

to request the production of designated 

documents or tangible things or entry on 

designated land must file a motion 

under § 4.1031(c), unless the parties 

agree otherwise. A request may include 

any of the following that are in the 

possession, custody, or control of 

another party: 

(1) The production of designated 

documents for inspection and copying; 

(2) The production of designated 

tangible things for inspection, copying, 

testing, or sampling; or 

(3) Entry on designated land or other 

property for inspection and measuring, 

surveying, photographing, testing, or 

sampling either the property or any 

designated object or operation on the 

property. 

(b) Judge’s order. During or promptly 

after the initial prehearing conference, 

the judge will issue an order under 

§ 4.1031(b) with respect to any 

discovery motion requesting the 

production of documents or tangible 

things or entry on land for inspection, 

copying, or other purposes. The order 

will: 

(1) Grant the motion and approve the 

use of some or all of the proposed 

requests; or 

(2) Deny the motion. 

(c) Compliance with order. Except 

upon agreement of the parties, the party 

to whom any approved request for 

production is directed must permit the 

approved inspection and other activities 

within 15 days after issuance of the 

order under paragraph (a) of this 

section. 

§ 4.1036 What sanctions may the judge 

impose? 

(a) Upon motion of a party, the judge 

may impose sanctions under paragraph 

(b) of this section if any party: 

(1) Fails to comply with an order 

approving discovery; or 

(2) Fails to supplement or amend a 

response to discovery under § 4.1032(a). 

(b) The judge may impose one or more 

of the following sanctions: 

(1) Infer that the information, 

testimony, document, or other evidence 

withheld would have been adverse to 

the party; 

(2) Order that, for the purposes of the 

hearing, designated facts are 

established; 

(3) Order that the party not introduce 

into evidence, or otherwise rely on to 

support its case, any information, 

testimony, document, or other evidence: 

(i) That the party improperly 

withheld; or 

(ii) That the party obtained from 

another party in discovery; 

(4) Allow another party to use 

secondary evidence to show what the 

information, testimony, document, or 

other evidence withheld would have 

shown; or 

(5) Take other appropriate action to 

remedy the party’s failure to comply. 

§ 4.1037 What are the requirements for 

subpoenas and witness fees? 

(a) Request for subpoena. (1) Except 

as provided in paragraph (a)(2) of this 

section, any party may file a motion 

requesting the judge to issue a subpoena 

to the extent authorized by law for the 

attendance of a person, the giving of 

testimony, or the production of 

documents or other relevant evidence 

during discovery or for the hearing. 

(2) A party may subpoena a senior 

Department employee of the OFA only 

if the party shows: 

(i) That the employee’s testimony is 

necessary in order to provide 

significant, unprivileged information 

that is not available from any other 

source or by less burdensome means; 

and 

(ii) That the employee’s attendance 

would not significantly interfere with 

the ability to perform his or her 

government duties. 

(b) Service. (1) A subpoena may be 

served by any person who is not a party 

and is 18 years of age or older. 

(2) Service must be made by hand 

delivering a copy of the subpoena to the 

person named therein. 

(3) The person serving the subpoena 

must: 

(i) Prepare a certificate of service 

setting forth the date, time, and manner 

of service or the reason for any failure 

of service; and 

(ii) Swear to or affirm the certificate, 

attach it to a copy of the subpoena, and 

return it to the party on whose behalf 

the subpoena was served. 

(c) Witness fees. (1) A party who 

subpoenas a witness who is not a party 

must pay him or her the same fees and 

mileage expenses that are paid 

witnesses in the district courts of the 

United States. 

(2) A witness who is not a party and 

who attends a deposition or hearing at 

the request of any party without having 

been subpoenaed to do so is entitled to 

the same fees and mileage expenses as 

if he or she had been subpoenaed. 

However, this paragraph does not apply 

to federal employees who are called as 

witnesses by OFA. 

(d) Motion to quash. (1) A person to 

whom a subpoena is directed may 

request by motion that the judge quash 

or modify the subpoena. 

(2) The motion must be filed: 

(i) Within 5 days after service of the 

subpoena; or 

(ii) At or before the time specified in 

the subpoena for compliance, if that is 

less than 5 days after service of the 

subpoena. 

(3) The judge may quash or modify 

the subpoena if it: 

(i) Is unreasonable; 

(ii) Requires evidence during 

discovery that is not discoverable; or 

(iii) Requires evidence during a 

hearing that is privileged or irrelevant. 

(e) Enforcement. For good cause 

shown, the judge may apply to the 

appropriate United States District Court 

for the issuance of an order compelling 

the appearance and testimony of a 

witness or the production of evidence as 

set forth in a subpoena that has been 

duly issued and served. 

Hearing, Briefing, and Decision 

§ 4.1040 When and where will the hearing 

be held? 

(a) Except as provided in paragraph 

(b) of this section, the hearing will be 

held at the time and place set at the 

initial prehearing conference under 

§ 4.1022(a)(1)(v), generally within 20 

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days after the date set for completion of 

discovery. 

(b) On motion by a party or on the 

judge’s initiative, the judge may change 

the date, time, or place of the hearing if 

he or she finds: 

(1) That there is good cause for the 

change; and 

(2) That the change will not unduly 

prejudice the parties and witnesses. 

§ 4.1041 What are the parties’ rights 

during the hearing? 

Consistent with the provisions of this 

subpart, and as necessary to ensure full 

and accurate disclosure of the facts, the 

parties have the following rights during 

the hearing: 

(a) Each party may: 

(1) Present direct and rebuttal 

evidence; 

(2) Make objections, motions, and 

arguments; and 

(3) Cross-examine witnesses and 

conduct re-direct and re-cross 

examination as permitted by the judge. 

(b) The petitioner may conduct oral 

cross-examination of OFA staff who 

participated in the preparation of the 

proposed finding. 

§ 4.1042 What are the requirements for 

presenting testimony? 

(a) Written direct testimony. Unless 

otherwise ordered by the judge, all 

direct hearing testimony must be 

prepared and submitted in written form. 

(1) Prepared written testimony must: 

(i) Have line numbers inserted in the 

left-hand margin of each page; 

(ii) Be authenticated by an affidavit or 

declaration of the witness; 

(iii) Be filed within 15 days after the 

date set for completion of discovery, 

unless the judge sets a different 

deadline; and 

(iv) Be offered as an exhibit during the 

hearing. 

(2) Any witness submitting written 

testimony must be available for crossexamination at the hearing. 

(b) Oral testimony. Oral examination 

of a witness in a hearing, including on 

cross-examination or redirect, must be 

conducted under oath and in the 

presence of the judge, with an 

opportunity for all parties to question 

the witness. 

(c) Telephonic testimony. The judge 

may by order allow a witness to testify 

by telephonic conference call. 

(1) The arrangements for the call must 

let each party listen to and speak to the 

witness and each other within the 

hearing of the judge. 

(2) The judge will ensure the full 

identification of each speaker so the 

reporter can create a proper record. 

(3) The judge may issue a subpoena 

under § 4.1037 directing a witness to 

testify by telephonic conference call. 

§ 4.1043 How may a party use a deposition 

in the hearing? 

(a) In general. Subject to the 

provisions of this section, a party may 

use in the hearing any part or all of a 

deposition taken under § 4.1034 against 

any party who: 

(1) Was present or represented at the 

taking of the deposition; or 

(2) Had reasonable notice of the taking 

of the deposition. 

(b) Admissibility. (1) No part of a 

deposition will be included in the 

hearing record, unless received in 

evidence by the judge. 

(2) The judge will exclude from 

evidence any question and response to 

which an objection: 

(i) Was noted at the taking of the 

deposition; and 

(ii) Would have been sustained if the 

witness had been personally present 

and testifying at a hearing. 

(3) If a party offers only part of a 

deposition in evidence: 

(i) An adverse party may require the 

party to introduce any other part that 

ought in fairness to be considered with 

the part introduced; and 

(ii) Any other party may introduce 

any other parts. 

(c) Video-recorded deposition. If the 

deposition was video recorded and is 

admitted into evidence, relevant 

portions will be played during the 

hearing and transcribed into the record 

by the reporter. 

§ 4.1044 What are the requirements for 

exhibits, official notice, and stipulations? 

(a) General. (1) Except as provided in 

paragraphs (b) through (e) of this 

section, any material offered in 

evidence, other than oral testimony, 

must be offered in the form of an 

exhibit. 

(2) Each exhibit offered by a party 

must be marked for identification. 

(3) Any party who seeks to have an 

exhibit admitted into evidence must 

provide: 

(i) The original of the exhibit to the 

reporter, unless the judge permits the 

substitution of a copy; and 

(ii) A copy of the exhibit to the judge. 

(b) Material not offered. If a document 

offered as an exhibit contains material 

not offered as evidence: 

(1) The party offering the exhibit 

must: 

(i) Designate the matter offered as 

evidence; 

(ii) Segregate and exclude the material 

not offered in evidence, to the extent 

feasible; and 

(iii) Provide copies of the entire 

document to the other parties appearing 

at the hearing. 

(2) The judge must give the other 

parties an opportunity to inspect the 

entire document and offer in evidence 

any other portions of the document. 

(c) Official notice. (1) At the request 

of any party at the hearing, the judge 

may take official notice of any matter of 

which the courts of the United States 

may take judicial notice, including the 

public records of any Department party. 

(2) The judge must give the other 

parties appearing at the hearing an 

opportunity to show the contrary of an 

officially noticed fact. 

(3) Any party requesting official 

notice of a fact after the conclusion of 

the hearing must show good cause for 

its failure to request official notice 

during the hearing. 

(d) Stipulations. (1) The parties may 

stipulate to any relevant facts or to the 

authenticity of any relevant documents. 

(2) If received in evidence at the 

hearing, a stipulation is binding on the 

stipulating parties. 

(3) A stipulation may be written or 

made orally at the hearing. 

§ 4.1045 What evidence is admissible at 

the hearing? 

(a) General. (1) Subject to the 

provisions of § 4.1032(b), the judge may 

admit any written, oral, documentary, or 

demonstrative evidence that is: 

(i) Relevant, reliable, and probative; 

and 

(ii) Not privileged or unduly 

repetitious or cumulative. 

(2) The judge may exclude evidence if 

its probative value is substantially 

outweighed by the risk of undue 

prejudice, confusion of the issues, or 

delay. 

(3) Hearsay evidence is admissible. 

The judge may consider the fact that 

evidence is hearsay when determining 

its probative value. 

(4) The Federal Rules of Evidence do 

not directly apply to the hearing, but 

may be used as guidance by the judge 

and the parties in interpreting and 

applying the provisions of this section. 

(b) Objections. Any party objecting to 

the admission or exclusion of evidence 

shall concisely state the grounds. A 

ruling on every objection must appear in 

the record. 

§ 4.1046 What are the requirements for 

transcription of the hearing? 

(a) Transcript and reporter’s fees. The 

hearing must be transcribed verbatim. 

(1) OHA will secure the services of a 

reporter and pay the reporter’s fees to 

provide an original transcript to OHA 

on an expedited basis. 

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(2) Each party must pay the reporter 

for any copies of the transcript obtained 

by that party. 

(b) Transcript Corrections. (1) Any 

party may file a motion proposing 

corrections to the transcript. The motion 

must be filed within 5 days after receipt 

of the transcript, unless the judge sets a 

different deadline. 

(2) Unless a party files a timely 

motion under paragraph (b)(1) of this 

section, the transcript will be presumed 

to be correct and complete, except for 

obvious typographical errors. 

(3) As soon as feasible after the close 

of the hearing and after consideration of 

any motions filed under paragraph (b)(1) 

of this section, the judge will issue an 

order making any corrections to the 

transcript that the judge finds are 

warranted. 

§ 4.1047 What is the standard of proof? 

(a) Reasonable likelihood standard. 

The judge will consider a criterion to be 

met if the evidence establishes a 

reasonable likelihood that the facts 

claimed by the petitioner are true and 

that those facts demonstrate that the 

petitioner meets the criterion. 

(b) Meaning of standard. To prove a 

‘‘reasonable likelihood’’ that a claimed 

fact is true, the petitioner must show 

that there is more than a mere 

possibility that it is true, but need not 

show that it is more likely than not to 

be true. 

§ 4.1048 When will the hearing record 

close? 

(a) The hearing record will close 

when the judge closes the hearing, 

unless he or she directs otherwise. 

(b) Evidence may not be added after 

the hearing record is closed, but the 

transcript may be corrected under 

§ 4.1046(b). 

§ 4.1049 What are the requirements for 

post-hearing briefs? 

(a) General. (1) Each party may file a 

post-hearing brief within 20 days after 

the close of the hearing, unless the judge 

sets a different deadline. 

(2) A party may file a reply brief only 

if requested by the judge. The deadline 

for filing a reply brief, if any, will be set 

by the judge. 

(3) The judge may limit the length of 

the briefs to be filed under this section. 

(b) Content. (1) An initial brief must 

include: 

(i) A concise statement of the case; 

(ii) A separate section containing 

proposed findings regarding the issues 

of material fact, with supporting 

citations to the hearing record; 

(iii) Arguments in support of the 

party’s position; and 

(iv) Any other matter required by the 

judge. 

(2) A reply brief, if requested by the 

judge, must be limited to any issues 

identified by the judge. 

(c) Form. (1) An exhibit admitted in 

evidence or marked for identification in 

the record may not be reproduced in the 

brief. 

(i) Such an exhibit may be 

reproduced, within reasonable limits, in 

an appendix to the brief. 

(ii) Any pertinent analysis of an 

exhibit may be included in a brief. 

(2) If a brief exceeds 30 pages, it must 

contain: 

(i) A table of contents and of points 

made, with page references; and 

(ii) An alphabetical list of citations to 

legal authority, with page references. 

§ 4.1050 What are the requirements for the 

judge’s recommended decision? 

(a) Timing. The judge must issue a 

recommended decision within 180 days 

after issuance of the docketing notice 

under § 4.1020(a)(3), unless the judge 

issues an Order finding good cause to 

issue the recommended decision at a 

later date. 

(b) Content. (1) The recommended 

decision must contain all of the 

following. 

(i) Recommended findings of fact on 

all disputed issues of material fact. 

(ii) Recommended conclusions of law: 

(A) Necessary to make the findings of 

fact (such as rulings on materiality and 

on the admissibility of evidence); and 

(B) As to whether the applicable 

criteria for Federal acknowledgment 

have been met. 

(iii) Reasons for the findings and 

conclusions. 

(2) The judge may adopt any of the 

findings of fact proposed by one or more 

of the parties. 

(c) Service. Promptly after issuing a 

recommended decision, the judge must: 

(1) Serve the decision on each party 

to the hearing; and 

(2) Forward the complete record to 

the Assistant Secretary—Indian Affairs, 

including the recommended decision 

and hearing record. 

Re-Petition Authorization Process 

§ 4.1060 How does an unsuccessful 

petitioner request authorization to repetition? 

(a) To request authorization to repetition for Federal acknowledgment, an 

unsuccessful petitioner must submit to 

OHA a certification that: 

(1) Is signed and dated by the 

unsuccessful petitioner’s governing 

body; 

(2) States that it is the unsuccessful 

petitioner’s official request for repetitioning; and 

(3) Explains how it meets the 

conditions of 25 CFR 83.4(b)(1). 

(b) The unsuccessful petitioner need 

not re-submit materials previously 

submitted to the Department but may 

supplement its petition. 

§ 4.1061 What will OHA do with a request? 

After receiving the request for repetitioning, OHA will: 

(a) Docket the case; 

(b) Assign a judge to preside over the 

re-petition authorization process and 

issue a decision; and 

(c) Issue a docketing notice that 

informs the parties of the docket 

number and the judge assigned to the 

case. 

§ 4.1062 What can the judge do? 

In addition to the powers in § 4.1014, 

the judge has the powers to: 

(a) Request evidence from OFA and 

the unsuccessful petitioner; and 

(b) Determine the extent, if any, to 

which §§ 4.1020 through 4.1050 will 

apply in whole or in part. 

§ 4.1063 When will the judge allow a repetition? 

The judge will issue a decision 

allowing the unsuccessful petitioner to 

re-petition if: 

(a) Any third parties that participated 

as a party in an administrative 

reconsideration or Federal Court appeal 

concerning the unsuccessful petitioner 

have consented in writing to the repetitioning; and 

(b) The unsuccessful petitioner 

proves, by a preponderance of the 

evidence, that either: 

(1) A change from the previous 

version of the regulations to the current 

version of the regulations warrants 

reconsideration of the final 

determination; or 

(2) The ‘‘reasonable likelihood’’ 

standard was misapplied in the final 

denial. 

Dated: June 9, 2014. 

Rhea Suh, 

Assistant Secretary for Policy, Management 

and Budget. 

[FR Doc. 2014–13817 Filed 6–18–14; 8:45 am] 

BILLING CODE 4310–W7–P 

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