`[Federal Register Volume 90, Number 6 (Friday, January 10, 2025)]
[Rules and Regulations]
[Pages 2332-2431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30358]



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Vol. 90

Friday,

No. 6

January 10, 2025

Part V





Department of the Interior





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43 CFR Part 4





Practices Before the Department of the Interior; Final Rule

  Federal Register / Vol. 90 , No. 6 / Friday, January 10, 2025 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 4

[Docket No. DOI-2022-0010; 256D0102DM; DS6CS00000; DLSN00000.000000; 
DX6CS25]
RIN 1094-AA57


Practices Before the Department of the Interior

AGENCY: Office of Hearings and Appeals, Interior.

ACTION: Interim final rule.

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SUMMARY: The Office of Hearings and Appeals (OHA) will make 
comprehensive procedural changes to Federal regulations governing 
hearings and appeals proceedings before the Department of the 
Interior's administrative tribunals. We will modify and update our 
regulations located in title 43 of the Code of Federal Regulations in 
part 4 to: promote expeditious and meaningful review of administrative 
decisions; reflect changes in the law; reorganize and streamline 
procedures and retitle subparts to improve clarity to parties; 
consolidate redundant language; eliminate outdated procedures; and 
allow OHA to continue to modernize its practice and keep pace with 
technological and other advancements, including the establishment of a 
regulatory framework for an electronic filing and case docket 
management system.

DATES: 
    Effective date: These rule is effective February 10, 2025.
    Comments due date: Send comments on or before February 10, 2025.
    Information collection requirements: Interested persons are invited 
to submit comments on any of the information collection requirements in 
43 CFR part 4, not just those related to revisions in this Interim 
Final Rule, to the Departmental Information Collection Clearance 
Officer, U.S. Department of the Interior (see ``Information 
Collection'' section below under ADDRESSES) by March 11, 2025. After 
the 60-day comment period ends, comments on the Information Collection 
Requirements will be addressed and an additional 30-day notice will be 
published.

ADDRESSES: 
    All Comments (with the exception of comments related to Information 
Collection Requirements): You may send comments, identified by Docket 
No. DOI-2022-0010 by any of the following methods:
     Federal eRulemaking Portal: Go to the Federal eRulemaking 
Portal at https://www.regulations.gov. In the Search box, enter Docket 
No. DOI-2022-0010 which is the docket number for this rulemaking. Then, 
click on the Search button. On the resulting page, in the panel on the 
left side of the screen, under the Document Type heading, check the 
Interim Final Rule box to locate this document. You may submit a 
comment by clicking on ``Comment.''
     By U.S. mail: Submit by U.S. mail to Attn: Public 
Comments, Docket No. DOI2023-0015, Office of Hearings and Appeals, 801 
North Quincy Avenue, Suite 300, Arlington, VA 22203.
     Hand/Courier Delivery: Deliver to Attn: Public Comments, 
Docket No. DOI2023-0015, Office of Hearings and Appeals, 801 North 
Quincy Avenue, Suite 300, Arlington, VA 22203. OHA's hours of operation 
are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal holidays).
    For more information on how we handle public comments, please see 
Public Availability of Comments discussion in Procedural Requirements 
below.
    Comments Related to Information Collection Requirements: Send your 
comments on the information collection request to the Departmental 
Information Collection Clearance Officer, U.S. Department of the 
Interior, Jeffrey Parrillo, 1849 C Street NW, Washington, DC 20240; or 
by email to [email protected]. Please reference OMB Control Number 
1094-New/RIN 1094-AA47'' in the subject line of your comments.

FOR FURTHER INFORMATION CONTACT: Rachel R. Lukens, telephone: 703-235-
3810, email: [email protected]. Individuals in the United 
States who are deaf, blind, hard of hearing, or have a speech 
disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Acronyms Used in This Document
II. Background
III. Summary of Changes
IV. Procedural Requirements
V. Subpart-by-Subpart Analysis

I. Acronyms Used in This Document

    For the convenience of the reader, we provide this list of some of 
the acronyms used in this interim final rule:

ADR = Alternative dispute resolution
ALJ = Administrative law judge
APA = Administrative Procedure Act
BIA = Bureau of Indian Affairs
BIE = Bureau of Indian Education
BLM = Bureau of Land Management
BOEM = Bureau of Ocean Energy Management
BOR = Bureau of Reclamation
BSEE = Bureau of Safety and Environmental Enforcement
DCHD = Departmental Cases Hearings Division
E.O. = Executive Order
FOGRSFA = Federal Oil and Gas Royalty Simplification and Fairness 
Act
FRCP = Federal Rules of Civil Procedure
FRE = Federal Rules of Evidence
FWS = U.S. Fish and Wildlife Service
IBIA = Interior Board of Indian Appeals
IBLA = Interior Board of Lands Appeals
IPJ = Indian probate judge
ISDA = Indian Self-Determination and Education Assistance Act
LTRO = Land Titles and Records Office
NEPA = National Environmental Policy Act of 1969
OHA = Office of Hearings and Appeals
OIRA = Office of Information and Regulatory Affairs
OMB = Office of Management and Budget
ONRR = Office of Natural Resources Revenue
OSM or OSMRE = Office of Surface Mining Reclamation and Enforcement
PDF = Portable Document Format
PHD = Probate Hearings Division
WELSA = White Earth Reservation Land Settlement Act

II. Background

    OHA exercises the delegated authority of the Secretary of the 
Interior to conduct hearings and decide appeals from decisions of the 
bureaus and offices of the Department of the Interior. OHA provides 
administrative process to outside litigants by providing an impartial 
forum and independent review of bureau and office decisions and 
notices. OHA's review ensures that the Department has an opportunity to 
correct its own administrative errors, final agency decisions are 
consistent with law, and, if Department decisions are challenged in 
Federal court, those courts receive fully developed administrative 
records on which to base judicial review of agency actions.
    Administrative adjudication can provide a more cost-efficient 
alternative to Federal court litigation for Federal and non-Federal 
parties. Without that administrative avenue, persons challenging bureau 
decisions would have to go directly to the Federal court system, which 
is costly and poses additional challenges for individuals who do not 
have access to legal counsel. The decisions rendered by the Director or 
by the Appeals Boards are generally final for the Department.
    OHA is comprised of the Director's office and OHA Units that 
include the

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Interior Board of Lands Appeals (IBLA), the Interior Board of Indian 
Appeals (IBIA), the Departmental Cases Hearings Division (DCHD), and 
the Probate Hearings Division (PHD). OHA judges include administrative 
law judges (ALJs), administrative judges, and Indian probate judges 
(IPJs).
    IBLA and IBIA are appellate review bodies that are separate and 
independent from the bureaus and offices whose decisions they review. 
IBLA has the authority to consider administrative appeals of decisions 
by:
    (1) The Bureau of Land Management, including but not limited to 
decisions regarding mining, grazing, energy development, timber 
harvesting, wildfire management, recreation, wild horse and burro 
management, cadastral surveys, Alaska land conveyances, rights of way, 
land exchanges, and trespass actions;
    (2) The Office of Natural Resources Revenue and the Deputy 
Assistant Secretary--Natural Resources Revenue including decisions 
regarding royalty management;
    (3) The Bureau of Ocean Energy Management and the Bureau of Safety 
and Environmental Enforcement including decisions regarding resources 
and activities on the Outer Continental Shelf;
    (4) The Bureau of Indian Affairs including decisions regarding 
royalty management on Indian lands;
    (5) The Office of Surface Mining Reclamation and Enforcement 
including decisions regarding surface coal mining operations; and
    (6) OHA's Departmental Cases Hearings Division, including decisions 
regarding grazing, surface coal mining, mining contests, and civil 
penalty assessments.
    IBIA's administrative judges have the authority to consider 
administrative appeals from decisions by:
    (1) Bureau of Indian Affairs officials, including but not limited 
to decisions regarding the use of Indian trust lands (e.g., lease 
approval, enforcement, cancellation, and rental rate adjustment); the 
use of mineral resources; conveyances of rights-of-way on Indian lands; 
land sales, exchanges, or other encumbrances; trespass; taking land 
into trust; and disputes over the recognition of Tribal officials for 
government-to-government relations between the Department and a Tribe;
    (2) OHA's Probate Hearings Division;
    (3) Presiding officers in WELSA heirship determinations;
    (4) Agency officials and ALJs in cases under the Indian Self-
Determination and Education Assistance Act (ISDA); and
    (5) Other agency officials as provided by regulation or in matters 
referred to IBIA by the Secretary, the Assistant Secretary--Indian 
Affairs, or the Director of OHA.
    The OHA Hearings Divisions (DCHD and PHD) serve as administrative 
trial courts for the Department and provide an impartial forum for the 
resolution of disputes. DCHD conducts formal hearings under the 
Administrative Procedure Act (APA) and other fact-finding hearings in 
accordance with statutes and regulations. DCHD adjudicates a wide range 
of matters related to the use and disposition of public lands and 
natural resources as well as select cases involving American Indians, 
Tribal Nations, and Alaska Natives. Case types include grazing appeals, 
civil penalties involving oil and gas resources, civil penalties under 
various wildlife and resource protection laws, surface coal mining 
cases, certain cases involving the Indian Self-Determination and 
Education Assistance Act (ISDA), disputed issues of material fact 
involving conditions and prescriptions in hydropower licenses, and 
contest proceedings related to mining claims, Alaska Native allotment 
applications, and other interests in Federal lands. DCHD also conducts 
hearings based on referrals from other entities within the Department, 
including the OHA Appeals Boards and the Director. Examples of case 
types referred for hearing include adjudications relating to oil and 
gas leases, rights-of-way, and alleged trespasses on Federal land and 
resources.
    Through formal hearings conducted by IPJs and ALJs, PHD determines 
the rightful heirs and devisees of decedents who owned trust or 
restricted property. PHD determines the validity of wills, decides what 
claims against the estate will be allowed, and orders distribution of 
the trust property to those entitled to receive it.
    In the Director's office, Ad Hoc Boards of Appeal decide various 
categories of appeals from bureau and office decisions that do not lie 
within the jurisdiction of standing appeals boards. These include 
certain debt collection matters, waivers of overpayments to 
Departmental employees, property board of survey determinations, 
government quarters rental rate adjustments, Uniform Relocation 
Assistance Act payments, and acreage limitation determinations under 
the Reclamation Reform Act. The Director also appoints appropriate 
hearings officials and establishes procedures for matters not covered 
by one of the OHA Units. In addition, the Director has the authority to 
review certain decisions in accordance with regulations.

III. Summary of Changes

    Given OHA's role in Departmental decisions, we are revising our 
procedural regulations to make hearings and appeals processes easier to 
follow and as efficient as possible while providing due process and 
meaningful administrative review for external parties and the 
Departmental bureaus and offices who appear before OHA. OHA's last 
comprehensive revision to its governing regulations was in 2010.
    During the onset of the COVID-19 pandemic in March 2020, OHA 
reviewed options to quickly meet the needs of parties and OHA's 
employees. OHA began offering the option for video hearings. In 
addition, OHA began providing the option in certain units, where 
possible, to file documents electronically using electronic mail as an 
alternative to filing paper documents. This option allowed cases to 
proceed without parties and employees taking unnecessary risks to 
travel to the office or post office.The use of electronic mail, 
however, has technological constraints and is not a long-term solution 
for electronic filing with OHA. In addition, OHA also has a need to 
replace its case docket management system because it is on an outdated 
platform, does not provide for robust data tracking and reporting, and 
is slow and cumbersome. To address these limitations, OHA has acquired 
and is working to deploy a new comprehensive electronic filing and case 
docket management system.
    To prepare for deployment of the new electronic filing and case 
docket management system and to provide further improvements to the 
hearings and appeals process for the parties, update law, and modernize 
its practice, OHA is undertaking a two-part regulatory effort.
    OHA's first set of changes to its regulations became effective on 
March 16, 2023 (88 FR 5789) and focused on initial steps in advance of 
the deployment of the electronic filing and case docket management 
system. These changes provided parties to a hearing or appeal with the 
option of sending and receiving documents electronically and identified 
that OHA Standing Orders on Electronic
    OHA has identified four objectives of the interim final rule: 
efficiency, equity, security, and transparency.
    Efficiency: The interim final rule aims to make OHA procedures as 
efficient as possible, while continuing to provide meaningful 
administrative review for the external parties and Department

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bureaus and offices who appear before OHA. A few examples of benefits 
include:
     A comprehensive, streamlined procedural framework that 
consolidates redundant language and provides information that better 
follows case chronology reduces time spent in pre-hearing proceedings 
establishing deadlines and discovery schedules and explaining rules;
     Electronic tools allow more efficient review and analysis 
of filings, including voluminous administrative records, an improvement 
over review of large paper filings; and
     Electronic processes decrease staff time dedicated to 
copying, printing, and mailing.
    Equity: The interim final rule aims to improve equitable access to 
OHA as the forum for external stakeholders to receive meaningful due 
process through administrative review of Department decisions. A few 
examples include:
     Video technology options make OHA proceedings more 
accessible for parties with physical limitations, limited financial 
resources, and limited geographic mobility; and
     Streamlined, plain language improves clarity and 
accessibility for pro se parties.
    Security: The interim final rule provides for greater data security 
and privacy protections.
    A few examples include:
     Electronic processes provide options that avoid data 
security risks of mailing paper files, including the risks of paper 
files getting lost in transit; and
     Data reliability and electronic reporting capabilities 
will be improved with a modernized system and supporting regulatory 
framework.
    Transparency: The interim final rule seeks to provide greater 
transparency. A few examples include:
     Clear and consolidated procedures provided in user-
friendly plain language are easier for parties to follow through the 
chronology of a case; and
     OHA Standing Orders provide real-time updates to provide 
accurate office contact information and guidance for electronic filing 
and service.
    In this interim final rule, OHA will make comprehensive procedural 
revisions throughout 43 CFR part 4, including additional changes to 
establish the regulatory framework for electronic filing (including 
where some appeals are filed), retitling subparts for greater 
consistency and clarity, consolidating subparts, creating two new 
subparts, and making the organization of the regulations more logical 
and concise. Some of the changes will supersede those made in March 
2023. While OHA has made language consistent across part 4 where 
possible, we placed greater emphasis on making the procedures more 
useable and understandable to those appearing before a particular OHA 
Unit in a particular type of proceeding.
    Subparts A and B contain general regulations relating to the 
procedures and practices of OHA. The relationship of these general 
provisions to other subparts is complicated, particularly because many 
subparts also intersect with regulations outside part 4. This interim 
final rule provides clarification through a cross-reference paragraph 
at the start of each subpart.
    Subpart A provides general information and authorities for OHA. 
Revisions made replace lengthy descriptions with more succinct and 
complete information about the OHA Units, which will make it easier for 
parties who appear before a particular OHA Unit to follow. Revisions to 
subpart A provide greater specificity about the membership and 
responsibilities of each of the OHA Units and regarding the powers of 
the Director of OHA and the Secretary. A revision is made to specify 
the Secretary has the authority to appoint judges at OHA, which is 
being added as a result of a U.S. Supreme Court case decided in 2018. 
Another revision adds specific descriptions of OHA's two Hearings 
Divisions as well as the Director's authority to designate hearing 
officials. This includes reference to a statute authorizing Indian 
Probate Judges, in addition to Administrative Law Judges, to adjudicate 
Indian Probate Cases. A new definitions section that applies across 
subparts will allow the removal of duplicative definitions from various 
subparts.
    Subpart B provides general rules relating to procedures and 
practices that apply to some of the OHA Units, as specified. Revisions 
are made to the provisions addressing exhaustion and finality, 
retention and withdrawal of documents, record address information, 
computation of time for filing and service, hearing transcripts, 
hearing technology, subpoena powers for probate proceedings, 
interlocutory appeals, ex parte provisions, and disqualification of 
presiding officers and board members.
    Subpart B will be further reorganized by moving Sec.  4.21 stay 
provisions and Sec.  4.22 filing and service provisions to specific 
subparts, as well as to a different section in subpart B. Regarding 
Sec.  4.21 stay provisions, this change is necessary because the 
intersection with regulations administered by bureaus and offices made 
it confusing to provide the language in subpart B's general 
authorities. Regarding Sec.  4.22 filing and service provisions, this 
change is necessary because some OHA Units continue to rely on general 
authorities in subpart B for filing and service provisions, while other 
OHA Units rely on unit- or procedure-specific language within the 
relevant subpart. For types of procedures that do not have specific 
filing provisions in other subparts, a filing, service, and issuance 
provision will be retained at the end of subpart B. We will add a 
section about alternative dispute resolution (ADR) to codify OHA's role 
in facilitating and encouraging parties to resolve disputes amicably. 
In addition, clarifying edits are made to the section related to 
limiting disclosure of confidential information.
    This interim final rule adds a new subpart C, which is currently 
reserved and does not contain any regulatory provisions. This new 
subpart will create uniform and consistent general procedural rules 
applicable to all phases of prehearing, hearing, and post-hearing 
adjudication before DCHD. In addition to aiding in the efficient, fair, 
and timely resolution of proceedings, the new rules specifically 
address current and anticipated technological advancements within DCHD. 
Subpart C allows for electronic filing and service of documents, as 
well as the use of video technology for hearings and other prehearing 
processes. The general procedural rules set forth in subpart C are 
drafted to encompass all types of proceedings pending before DCHD, 
unless specifically exempted. These regulatory changes also relocate, 
modify, and update provisions contained in the pre-existing subpart E 
that contain the rules applicable to specific types of proceedings 
before DCHD. By consolidating the rules applicable to DCHD into subpart 
C, subpart E now contains the rules applicable only to the IBLA. 
Subpart C now contains the rules for the following specific types of 
proceedings before DCHD: (1) Referrals for Fact-Finding Hearings; (2) 
Contest Proceedings; and (3) Grazing Proceedings (Inside and Outside of 
Grazing Districts).
    For the remaining provisions in subpart E pertaining to the IBLA, 
we revise the regulations to modernize and clarify IBLA's appeal 
procedures. Among other revisions, we re-order the current regulations 
to track the chronological progression of an appeal and to allow 
electronic filing and service. In addition, we revise provisions to 
improve efficiencies in the appeal process, including (1) requiring a 
person or entity to file its appeal

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directly with the IBLA instead of with the bureau or office that issued 
the decision; (2) simplifying and updating the process for granting a 
petition for a stay; (3) imposing a deadline for the bureau or office 
to file the administrative record; and (4) creating a procedure for the 
Board to affirm certain appeals without issuing an opinion.
    Subpart D provides rules applicable to proceedings before the IBIA, 
and this interim final rule modernizes, clarifies, reorganizes, and 
otherwise revises these procedures. Among other revisions, OHA revises 
existing filing requirements to take advantage of technological 
advances, provides additional types of case dispositions, and revises 
the rules governing appeals to the IBIA as a result of recent changes 
made to 25 CFR part 2 and 43 CFR part 30. The changes in 25 CFR part 2 
pertain to administrative appeals of decisions issued by BIA officials 
while the changes in 43 CFR part 30 pertain to Indian Probate Hearings 
Procedures. The changes in 25 CFR part 2 include adding a requirement 
for the appellant to serve a notice of appeal on the Solicitor's office 
and lengthening the time by which the Assistant Secretary--Indian 
Affairs may decide to review an appeal from 20 days to 40 days. 
Accordingly, revisions are needed to Subpart D. In 43 CFR part 30, some 
cross-over terminology was changed resulting in the need for revisions 
to Subpart D such as using the term ``order'' instead of ``decision or 
order,'' and referring to ``probate judge'' instead of ``judge.''
    Subpart G provides rules applicable to proceedings before the 
Director. Revisions more clearly delineate the Director's authorities 
by consolidating existing sections, adding language to distinguish 
hearing requests from appeals, and codifying procedures for both Ad Hoc 
Appeals matters and hearing matters that regularly come before the 
Director.
    OHA is relocating from subpart D to a new subpart H (currently 
reserved) its rules pertaining to the determination of the heirs of any 
person who dies entitled to receive compensation under the WELSA. The 
new subpart H will contain revised and reorganized WELSA rules that 
will reflect current practices, take advantage of technological 
advances, and be more user friendly. The revisions will serve as a 
critical guide to this practice area for new staff who are unfamiliar 
with informal procedures. Current practices will be codified by (1) 
creating new procedures for reopening a closed case and issuing orders 
correcting non-substantive errors in an order or decision; (2) removing 
unused or rarely used procedures such as procedures for rehearing and 
for the Project Director to furnish the judge with copies of 
modifications to the report of compensation due a decedent when the 
modifications are made after a final order has been issued; (3) 
replacing ``administrative judge'' with the broader term ``presiding 
officer'' to reflect that judges other than administrative judges have 
been presiding over WELSA cases; and (4) clarifying that heir 
information may be incorporated from the preliminary decision into the 
final decision if no timely objection to the preliminary decision is 
filed within 40 days or if otherwise appropriate. To take advantage of 
technological advances, the interim final rules will (1) authorize 
conducting status conferences and hearings by video, teleconference, or 
other suitable technology; and (2) require that the Project Director 
and attorneys file documents electronically, afford other interested 
parties the option to file documents electronically, and afford 
interested parties and the Project Director the option of receiving 
notices, orders, and decisions of the presiding officer electronically.
    Subpart I is currently titled ``Special Procedural Rules Applicable 
to Practice and Procedure for Hearings, Decisions, and Administrative 
Review Under Part 17 of This Title-Nondiscrimination in Federally 
Assisted Programs of the Department of the Interior-Effectuation of 
title VI of the Civil Rights Act of 1964.'' Revisions will change the 
title to ``Specific Rules Applicable to Proceedings under Part 17--
Nondiscrimination in Federally Assisted Programs'' and the language in 
the subpart will be made gender neutral. No other changes will be made.
    Subpart J governs royalties appeals, and we revise those 
regulations to clarify that the rules in subpart J govern appeals 
before IBLA concerning Federal oil and gas royalties. We also address 
judicial precedent construing when an administrative proceeding 
commences under the Federal Oil and Gas Royalty Simplification and 
Fairness Act (FOGRSFA). Consistent with that precedent, we are adding a 
definition of ``administrative proceeding'' and stating that it 
commences on the date the person receives an order from the Office of 
Natural Resources Revenue.
    Subpart K sets forth the hearing process concerning the 
acknowledgement of American Indian Tribes. The filing and service 
provisions in this subpart are updated to reflect the use of electronic 
filing and service and to remove references to the use of fax machines, 
which will be phased out going forward.
    Subpart L contains the rules applicable to surface coal mining 
hearings and appeals. This subpart is updated to allow for the use of 
electronic filing and service and to account for other technological 
developments. In addition, the provisions related to evidentiary 
hearings and discovery are revised and modified to update cross-
references and, where appropriate, to create consistency and uniformity 
with the comprehensive procedural rules governing practice before DCHD 
provided in subpart C of this part.
    The interim final rule will update nomenclature by providing 
gender-neutral language, consistent with Executive Order 13988 on 
Preventing and Combating Discrimination on the Basis of Gender Identity 
or Sexual Orientation, signed by President Joseph R. Biden, Jr., on 
January 20, 2021.
    Titles 25, 30, 50 and other parts within title 43 contain cross 
references to 43 CFR part 4. This interim final rule will make changes 
that will result in the need to update some or all of these cross 
references. OHA intends to issue a subsequent final rule to make needed 
conforming cross references corrections in these titles.

Severability

    The provisions of the interim final rule should be considered 
separately. If any portion of the rule were stayed or invalidated by a 
reviewing court, the remaining elements would continue to provide OHA 
with important and independently effective procedures that benefit 
parties before OHA and the public. Hence, if a court invalidates any 
provision of the interim final rule, that should not affect the other 
procedural improvements made by the rule. The remaining provisions 
would remain in force.

IV. Procedural Requirements

    This rule is being published as an interim final rule because it 
only makes changes to OHA's rules of agency organization, procedure, or 
practice. Under the Administrative Procedure Act, 5 U.S.C. 553(b)(A), 
notice and comment requirements do not apply to ``interpretative rules, 
general statements of policy, or rules of agency organization, 
procedure, or practice.'' OHA's rules describe procedures that parties 
and OHA must follow during administrative adjudication of a case, and 
do not alter substantive rights or interests. These rules are similar 
to provisions of the Federal Rules of Civil Procedure (FRCP) and the 
Federal Rules

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of Appellate Procedure (FRAP), which were designed to promote 
procedural efficiency. Rules primarily directed toward improving the 
efficient and effective operations of an agency are treated as 
procedural.
    This interim final rule also will allow interested parties to avail 
themselves of the full benefits of modernized hearings and appeals 
procedures. This includes putting in place a regulatory framework for 
OHA's expected deployment of a new electronic filing and case docket 
management system. This system will replace OHA's existing case docket 
management system that operates on an outdated IT platform.
    The interim final rule will be made effective 30 days after 
publication to provide time for OHA to communicate to parties and the 
public about the regulatory changes. Deployment of the electronic 
filing system is planned for early 2025 and having the regulatory 
framework and procedural improvements in place prior to the rollout of 
the system will allow OHA to communicate the changes to procedures 
simultaneously, decreasing unnecessary confusion for parties and the 
public.
    While the changes made by the interim final rule will provide 
notable improvements for parties navigating the hearings and appeals 
procedures at the Department of the Interior, OHA welcomes additional 
suggestions for improvements. OHA will consider comments received and 
consider further revisions, if appropriate.

A. Regulatory Planning and Review (E.O. 12866 and E.O. 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. as defined by that 
E.O. OIRA determined this interim final rule is significant as defined 
by E.O. 12866.
    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 further emphasizes 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 Regulatory Flexibility Act (5 U.S.C. 601 et seq.) as amended by 
the Small Business Regulatory Enforcement Fairness Act generally 
requires an agency to prepare a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act or any other statute, unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. Small entities include small 
businesses, small governmental jurisdictions (including tribal 
governments), and small not-for-profit enterprises. OHA estimates that 
the regulatory changes will have an annual effect on the economy of 
approximately $18, 964 per year, over an average of 627 cases per year. 
The Department of the Interior certifies that this rule would not have 
a significant economic effect on a substantial number of small entities 
under the Regulatory Flexibility Act. Therefore, DOI certifies that a 
final Regulatory Flexibility Analysis is not required.

C. Small Business Regulatory Enforcement Fairness Act

    The Office of Information and Regulatory Affairs has determined 
that this rule does not meet the criteria set forth in 5 U.S.C. 804(2), 
subtitle E of the Small Business Regulatory Enforcement Fairness Act of 
1996. It does not add to, change, or diminish any substantive rights of 
any parties or the public.It provides parties to OHA proceedings the 
option to file documents electronically, removes outdated information 
and references, and authorizes the use of OHA Standing Orders as the 
means of communicating current information on contract information, 
electronic filing, and other procedural matters.This rule:
    (a) Will 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) Will not 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.

D. Unfunded Mandates Reform Act

    As supported by the information provided, 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)

    This rule does not affect a taking of private property or otherwise 
have taking implications under E.O. 12630. Therefore, a takings 
implication assessment is not required.

F. Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, this rule does not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement. A federalism summary impact 
statement is not required.

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

    This rule complies with the requirements of E.O. 12988. 
Specifically, 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 of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and Tribal sovereignty.We evaluated this rule 
under the Department's consultation policy and under the criteria in 
E.O. 13175 and have determined that it does not impose substantial 
direct compliance costs on Indian tribal governments. This rule 
improves procedures for all parties who appear before OHA, including 
Indian Tribes and Tribal members.
    OHA offered to hold two consultation sessions for the White Earth 
Band of the Minnesota Chippewa Tribe, who chose to attend one. OHA 
received one comment. OHA had included language in Sec.  4.730(b) that 
would have replaced and reworded the existing language of 43 CFR 
4.351(a) pertaining to the

[[Page 2337]]

circumstances under which the Project Director would not commence a 
determination of the heirs of a person who died entitled to receive 
compensation under the WELSA. The Band expressed concern that the 
language of Sec.  4.730(b) may be too restrictive and advocated for 
returning to the existing language of Sec.  4.351(a). OHA made this 
change.
    OHA also held two Tribal consultation sessions, inviting all 
federally recognized Indian Tribes and providing advanced copies of the 
Interim Final Rule. Seventeen individuals attended from approximately 
14 tribes, law firms, or organizations. OHA received approximately a 
dozen comments from six tribes: six comments involved questions just 
requiring clarification and three were outside the scope of OHA's 
Interim Final Rule. OHA received comments in support, including that 
the procedural changes regarding electronic filing and service are long 
overdue and will greatly expedite efficiencies for matters before 
administrative forums and that the changes would make it easier, 
particularly for non-represented parties, including tribal members, to 
understand the regulations and access justice.

I. Executive Order 13211 Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This rule is not a significant energy action under the definition 
in E.O. 13211. A Statement of Energy Effects is not required. This rule 
would not have a significant effect on the nation's energy supply. 
OHA's procedural rules, and this rule, have no effect on the number of 
energy-related matters filed before OHA or on the economic impact 
resulting from any OHA decisions relating to bureau and office actions 
affecting energy supply, distribution, or use. Rather, that impact is 
determined by statutes and by substantive regulations that are issued 
by other Department bureaus and offices and which would not be affected 
by this rule. Therefore, the rule would not change the supply, 
distribution, or use of energy.

J. Paperwork Reduction Act

    This interim final rule contains existing information collections 
in use without OMB approval. All information collections require 
approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.). We 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.
    In accordance with the PRA and its implementing regulations at 5 
CFR 1320.8(d)(1), we provide the general public and other Federal 
agencies with an opportunity to comment on our proposal to seek OMB 
approval of the information collections described below. This input 
will help us assess the impact of our information collection 
requirements and minimize the public's reporting burden. It will also 
help the public understand our information collection requirements and 
provide the requested data in the desired format.
    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of this information collection, including:
    (1) Whether or not the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) Ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of response.
    Comments that you submit in response to this interim final 
rulemaking are a matter of public record. 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.
    The existing information collection requirements identified below 
require approval by OMB:
    (1) Appeals (43 CFR part 4)--To initiate an appeal, an appellant is 
required to submit a Notice of Appeal or Request/Petition for Hearing, 
identifying the bureau or office decision that they are appealing to 
the relevant OHA unit. There are no specific forms required. In most 
instances, the basic contact information of the appellant and a 
statement that they are appealing the relevant bureau or office 
decision will suffice. However, some regulations will require more 
specificity such as the rules governing grazing appeals to DCHD (Sec.  
4.170(d)) and the rules governing appeals to the IBLA (Sec.  4.403(a)). 
Those rules will require the appellant to provide a copy of the 
decision being appealed along with a statement of standing and 
timeliness. For grazing appeals to DCHD, an appellant will also be 
required to submit a statement that clearly and concisely describes the 
reasons why the appellant believes the grazing decision is incorrect. 
The appellant must also serve a copy of the Notice of Appeal on the 
bureau or office that issued the decision, and in some cases must also 
serve a copy on a specific office of the DOI Solicitor or Assistant 
Secretary, if required to do so by the regulations. Filing a Notice of 
Appeal or Request/Petition for Hearing is voluntary but is required to 
initiate a hearing or appeal. Once initiated, an OHA unit will open a 
hearing or appeal case file, and any subsequent filings will be 
associated with that file. Our burden estimates are broken down between 
hard-copy and electronic submissions.
    (2) Amendments--Appeals (43 CFR part 4)--Amendments to appeals are 
extremely rare. An appellant may amend their appeal to correct a 
misstatement or to update basic name and contact information, for 
example.
    Title of Collection: Office of Hearings and Appeals Procedural 
Regulations (43 CFR part 4).
    OMB Control Number: 1094-New.
    Form Number: None.
    Type of Review: Existing collection in use without OMB approval.
    Respondents/Affected Public: Individuals/households, private 
sector, and State/local/Tribal governments.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion.
    Total Estimated Annual Non-hour Burden Cost: $584.

[[Page 2338]]



----------------------------------------------------------------------------------------------------------------
                                                                                      Completion
                                                Annual      Number of      Total       time per    Total annual
                Requirement                    number of    responses      annual      response    burden hours
                                              respondents      each      responses     (hours)       (rounded)
----------------------------------------------------------------------------------------------------------------
                                        Appeals 43 CFR part 4 (Hardcopy)
----------------------------------------------------------------------------------------------------------------
Individuals--Recordkeeping.................            47            1           47          .75              59
Individuals--Reporting.....................                                                   .5
Private Sector--Recordkeeping..............             2            1            2          .75               3
Private Sector--Reporting..................                                                   .5
----------------------------------------------------------------------------------------------------------------
Government--Recordkeeping..................             2            1            2          .75               3
Government--Reporting......................                                                   .5
----------------------------------------------------------------------------------------------------------------
                                       Appeals 43 CFR part 4 (Electronic)
----------------------------------------------------------------------------------------------------------------
Individuals--Recordkeeping.................            38            1           38           .5              38
Individuals--Reporting.....................                                                   .5
Private Sector--Recordkeeping..............           324            1          324           .5             324
Private Sector--Reporting..................                                                   .5
Government--Recordkeeping..................            24            1           24           .5              24
Government--Reporting......................                                                   .5
----------------------------------------------------------------------------------------------------------------
                                   Amendment--Appeals 43 CFR part 4 (Hardcopy)
----------------------------------------------------------------------------------------------------------------
Individuals--Recordkeeping.................             1            1            1           .5               1
Individuals--Reporting.....................                                                   .5
Private Sector--Recordkeeping..............             1            1            1           .5               1
Private Sector--Reporting..................                                                   .5
Government--Recordkeeping..................             1            1            1           .5               1
Government--Reporting......................                                                   .5
----------------------------------------------------------------------------------------------------------------
                                  Amendment--Appeals 43 CFR part 4 (Electronic)
----------------------------------------------------------------------------------------------------------------
Individuals--Recordkeeping.................             1            1            1          .25               1
Individuals--Reporting.....................                                                   .5
Private Sector--Recordkeeping..............             1            1            1          .25               1
Private Sector--Reporting..................                                                   .5
Government--Recordkeeping..................             1            1            1           .5               1
Government--Reporting......................                                                   .5
                                            --------------------------------------------------------------------
    Totals.................................           443  ...........          443  ...........             457
----------------------------------------------------------------------------------------------------------------

    Send your written comments and suggestions on this information 
collection by March 11, 2025 to the Departmental Information Collection 
Clearance Officer, U.S. Department of the Interior, Jeffrey Parrillo, 
1849 C Street NW, Washington, DC 20240; or by email to [email protected]. Please reference: ``OMB Control Number 1094-New/RIN 
1094-AA47'' in the subject line of your comments.

J. National Environmental Policy Act

    This rule meets the criteria set forth at 43 CFR 46.210(i) for a 
Departmental categorical exclusion because it is an administrative and 
procedural regulation and does not involve any of the extraordinary 
circumstances listed in 43 CFR 46.215. Therefore, it is categorically 
excluded from the requirement to prepare an environmental impact 
statement or environmental assessment under the National Environmental 
Policy Act of 1969 (NEPA).

K. Clarity of This Regulation (Plain Language)

    We are required by Executive Orders 12866 (sec. 1(b)(12)), and 
12988 (sec. 3(b)(1)(B)), and 13563 (sec. 1(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 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 help 
us better determine if changes are appropriate, 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.

L. Public Availability of Comments

    You may submit your comments and materials regarding this interim 
final rule by one of the methods listed in ADDRESSES. We will post all 
comments on https://www.regulations.gov. This generally means that we 
will post any personal information you include with your comment.
    Comments and materials we receive will be available for public 
inspection on the internet at https://www.regulations.gov. However, the 
comment will not be publicly viewable until we post it, which might not 
be immediate.
    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

[[Page 2339]]

information from public review, we cannot guarantee that we will be 
able to do so.

V. Subpart-by-Subpart Analysis

Subpart A--General Information and Authorities--Office of Hearings and 
Appeals

    Subpart A provides general information and authorities about OHA. 
It identifies the authority of the Secretary and the Director, as well 
as the authority, membership, and jurisdiction of appeals boards and 
hearings divisions.
Sec.  4.1 Scope of Authority; Applicable Regulations
    We will subdivide this section into paragraphs and subparagraphs to 
provide needed organization and structure to this section. The opening 
paragraph will now be labeled as paragraph (a) with no substantive 
changes.
    Paragraph (b) will describe OHA Units and will add descriptions of 
the two hearings divisions in OHA, including the Departmental Cases 
Hearings Division and the Probate Hearings Division, both referenced in 
this part. Descriptions for Appeals Boards will be reorganized. To 
provide greater clarity, references to rules in other subparts or other 
regulations are provided for each OHA Unit. A new paragraph (c) will 
describe the authority of the Director to appoint an Ad Hoc Board of 
Appeals for appeals that are not within the jurisdiction of one of the 
Standing Boards. It will also clarify the Director's authority to 
designate or appoint presiding officers for hearings or appeals as 
needed for proceedings not specifically covered by an OHA Unit.
Sec.  4.2 Membership and Duties
    We will add paragraphs and subparagraphs to better delineate 
membership of the Appeals Boards and Hearings Divisions and roles of 
the chief judges. Language indicating the duties of the chief judge, 
how panels are convened, and how decisions are issued will be carried 
forward with some clarifying edits.
    We will add a new paragraph that describes Hearings Divisions as 
consisting of administrative law judges (ALJs) and, where authorized, 
Indian probate judges. This recognizes the authority provided by 25 
U.S.C. 372-2 to Indian probate judges to adjudicate Indian probate 
cases, fulfilling the hearing requirements in chapter 10 of title 25. 
We will add language indicating the duties of the chief judges of the 
Hearings Divisions, which are similar to those provided for the chief 
judges of the Appeals Boards. A new paragraph reiterates that the 
Director will designate or appoint OHA officials to conduct hearings 
and appeals that come before OHA and that are not within the 
jurisdiction of an OHA Unit.
Sec.  4.3 Representation Before OHA
    Pursuant to 5 U.S.C. 301, Sec.  4.3(a) applies Part 1 to 
representation of parties, including Interior agencies. Paragraph (a) 
of this section will be revised to reference all OHA proceedings rather 
than just those before the Boards. OHA will continue its longstanding 
practice of enforcing the representation provisions of Part 1 by 
dismissing non-Governmental parties that are not properly represented 
by a qualified individual meeting the requirements of 43 CFR 1.3.
    Paragraph (b) will be revised to clarify the applicable standard of 
conduct when the Department's Office of the Solicitor or other 
Government counsel represents an agency, bureau, or office of the 
Federal Government.
    With regard to appearances as amicus curiae, OHA will clarify the 
``timely request'' language in current regulations by adding a specific 
timeframe. Under this language, a request to appear as amicus curiae 
must be made within 30 days of the date the matter is docketed by OHA. 
It will further clarify that the granting or denying of the request is 
in the sole discretion of OHA.
Sec.  4.4 Public Records; Contact Information for Offices
    This section was recently changed in March 2023 to specify that 
contact information for offices referenced in part 4 are available in 
the OHA Standing Orders on Contact Information, and no other changes 
are being made. Final Rule, Practices Before the Department of the 
Interior, 88 FR 5789 (Mar. 16, 2023).
Sec.  4.5 Power of the Secretary and Director
    In paragraph (a) of this section, we will specify that the 
Secretary has the authority to appoint judges to OHA. In Lucia v. 
Securities and Exchange Commission, 138 S. Ct. 2044 (2018), the U.S. 
Supreme Court held that the Securities and Exchange Commission ALJs are 
inferior officers for purposes of the Appointments Clause to the U.S. 
Constitution. The U.S. Constitution provides that Congress may vest the 
appointment of inferior officers ``. . . in the President alone, in the 
courts of law, or in the heads of departments.'' U.S. Const., Art. II, 
sec. 2, cl. 2. The Secretary has appointed or ratified the appointment 
of all ALJs, administrative judges, and Indian probate judges at OHA.
    Paragraph (b)(1) will include language similar to that contained in 
current paragraph (b), indicating that the Director may assume 
jurisdiction of cases before Appeals Boards or direct Appeals Boards to 
reconsider. In addition, we will add new paragraphs (b)(2) and (b)(3) 
to clarify the authority of the Director to appoint an Ad Hoc Board or 
designate presiding officers and to provide for the internal management 
and administration of OHA, including managing case dockets. And 
finally, paragraph (b)(4) will carry forward regulatory changes to 
paragraph (b) that were finalized on March 16, 2023, and that specify 
the Director's authority to issue OHA Standing Orders.
    OHA has issued two Standing Orders that are currently posted on 
OHA's Department of the Interior website. The OHA Standing Order on 
Electronic Transmission conveys procedures currently available for the 
electronic transmission of documents, and the OHA Standing Order on 
Contact Information provides a list of up-to-date office addresses 
referenced in part 4. Throughout part 4, references to OHA Standing 
Order(s) on Electronic Transmission and OHA Standing Orders on Contact 
Information will be added. These Standing Orders will be updated as 
needed, and other Standing Orders may be issued to convey current 
information to parties and the public. For example, OHA is developing 
an electronic filing system, and when it is deployed, the OHA Standing 
Order on Electronic Transmission will be updated to help parties 
navigate the system. Subpart H also will refer to an OHA Standing Order 
on the WELSA that will be issued when the regulatory changes go into 
effect.
    Using Standing Orders rather than some other type of guidance 
aligns with how OHA communicates with interested individuals or parties 
in an administrative adjudicative setting. Standing Orders issued by 
the OHA Director apply to hearings and appeals at OHA. The Director has 
the authority to issue general notices pertaining to the functions 
assigned to OHA under 212 Departmental Manual 13.7.
Sec.  4.6 Definitions and Acronyms
    We will add a definitions and acronyms section. We will define 
administrative judge or AJ as a judge in OHA and administrative law 
judge or ALJ as a judge appointed under the Administrative Procedure 
Act, 5 U.S.C. 3105. We will define Appeals Board as the Interior Board 
of Land Appeals

[[Page 2340]]

(IBLA), the Interior Board of Indian Appeals (IBIA), or an Ad Hoc Board 
of Appeals in OHA. The definition of Standing Appeals Board, in 
contrast, will include IBIA and IBLA, but not an Ad Hoc Board of 
Appeals. We will identify acronyms for Department of the Interior 
bureaus and offices that are used throughout part 4, including the 
Bureau of Indian Affairs (BIA), Bureau of Indian Education (BIE), 
Bureau of Land Management (BLM), Bureau of Ocean Energy Management 
(BOEM), Bureau of Reclamation (BOR), Bureau of Safety and Environmental 
Enforcement (BSEE), Office of Natural Resources Revenue (ONRR), and 
Office of Surface Mining and Reclamation (OSMRE). We provide a broad 
definition of ``bureau or office'' to be used more generally in 
reference to a Department of the Interior bureau or office and specify 
those bureaus or offices that are included in the definition. We 
identify acronyms within OHA, including DCHD, IBIA, IBLA, OHA, and PHD 
Department is defined as the Department of the Interior; Director means 
the Director of OHA; the Secretary means the Secretary of the Interior; 
and Solicitor's Office means the Department of the Interior Office of 
the Solicitor.
    Since OHA employs a number of judges who are appointed under 
different authorities and pay bands, we will include a definition of 
``judge'' as an administrative judge, an Indian probate judge, or an 
administrative law judge in OHA. Indian probate judges will be defined 
as an attorney in OHA authorized by 25 U.S.C. 372-2 to adjudicate 
Indian probate cases. Indian probate judges and administrative law 
judges in the PHD carry out identical duties within OHA. We also will 
change references to ``presiding official'' or ``deciding official'' in 
existing regulations to ``presiding officer.'' These terms have been 
used in subparts A and B to describe an official who is responsible for 
a hearing or an appeal or other proceeding before OHA. Presiding 
officer will mean a judge, attorney, or other official, depending on 
the type of matter before OHA, designated by the Director to adjudicate 
a matter pending before OHA.

Subpart B--General Rules Relating to Procedures and Practice

Sec.  4.20 Purpose and Scope
    Subpart B contains the general rules applicable to all proceedings, 
as well as rules that may apply to only some of the OHA Units depending 
on the type of proceedings. This subpart will clarify that, when there 
is a conflict between the more specific rules that are found in other 
subparts in this part and the more general rules in subparts A and B, 
the specific rules will govern. In addition, the rule also indicates 
that other laws, regulations, and policies of the Department may be 
applicable to a particular type of proceeding. For example, for the 
Probate Hearings Division, the regulations in part 30 also apply to its 
proceedings.
Sec.  4.21 Exhaustion and Finality
    Currently, Sec.  4.21 is entitled ``General Provisions,'' and 
paragraphs (a) and (b) set out the general OHA procedures and criteria 
for seeking a stay of an agency decision pending administrative appeal 
to the Director or an Appeals Board. We will move these provisions from 
this subpart to Sec.  4.405 in subpart E, governing appeals to the 
IBLA. Appeals filed with IBIA are generally automatically stayed 
pursuant to 43 CFR. 4.314 and stays of grazing decisions pending appeal 
to DCHD are governed by current Sec. Sec.  4.471 and 4.472. With this 
change, OHA will eliminate any conflicts between Sec.  4.21 and stay 
provisions specifically applicable to the appeals or proceedings it 
adjudicates. See, e.g., Sec. Sec.  4.171 (DCHD), 4.314(a) (IBIA). A 
number of regulations administered by bureaus and offices that appear 
before IBLA make reference to Sec.  4.21(a) and (b). A subsequent final 
rule will make conforming changes to cross references that are needed 
as a result of the changes.
    The existing Sec.  4.21 ends with two paragraphs, (c) and (d), 
which address exhaustion of administrative remedies, finality, and the 
circumstances under which a party may seek reconsideration of a final 
decision issued by the Director or an Appeals Board. 43 CFR 4.21(c) and 
(d). Section 4.21 will continue to address exhaustion and finality with 
these provisions moved to paragraphs (a) and (b). Current paragraph (d) 
addressing reconsideration will be removed from this general subpart, 
and OHA Units will address reconsideration as applicable in specific 
subparts.
Exhaustion of Administrative Remedies and Finality of Decision
    Current paragraph 4.21(c) addresses administrative remedies and 
finality for purposes of judicial review, providing that a decision is 
not final for purposes of judicial review unless either (a) a stay has 
been sought and denied or (b) the decision has been put into effect 
pending appeal by another pertinent regulation. We will move the 
exhaustion provisions from existing paragraph (c) to Sec.  4.21(a).
    After the current Sec.  4.21 was promulgated in 1993, the Supreme 
Court decided Darby v. Cisneros, 509 U.S. 137, 152 (1993), and held 
that an otherwise final agency action is subject to judicial review 
unless a regulation requires an administrative appeal (exhaustion) and 
the decision on appeal is inoperative during that appeal. Relying on 
the exhaustion and finality requirements of the Administrative 
Procedure Act, 5 U.S.C. 704 (Section 10(c) of the APA), the Court 
concluded that courts and agencies could only require exhaustion when 
agencies, ``first, . . . adopt[ed] a rule that an agency appeal be 
taken before judicial review is available, and, second, . . . 
provid[ed] that the initial decision would be `inoperative' pending 
appeal. Otherwise, the initial decision becomes final and the aggrieved 
party is entitled to judicial review.'' Darby, 509 U.S. at 152 (quoting 
sec.704).
    We will make the provision consistent with Darby and also clarify 
that it addresses both exhaustion of administrative remedies and 
finality for purposes of judicial review by dividing these topics into 
separate paragraphs.
    Paragraph (a) addresses exhaustion and makes explicit the 
requirement that an appeal must be filed with the Director or 
applicable Appeals Board to exhaust administrative remedies except if 
(i) otherwise provided by applicable law or (ii) the decision is 
immediately effective. In other words, if neither exception applies, a 
party must file an administrative appeal in order to preserve their 
right to later challenge an agency action in federal court. A party who 
fails to timely file an administrative appeal will not be considered to 
have exhausted its administrative remedies and, as a result, will have 
forfeited their right to judicial review.
     The interim final rule's two exceptions reflect existing 
regulatory and jurisprudential requirements. Under the first exception, 
regulations that specifically address exhaustion requirements for 
certain types of decisions will still govern over this general 
provision to the extent of any conflict. Many of the bureaus and 
offices whose decisions may be appealed to the IBLA, for example, have 
exhaustion requirements that clearly mandate an administrative appeal, 
and while those regulations do not conflict with paragraph (a), their 
specific requirements will still govern under the revised rule. See, 
e.g., 30 CFR 1290.110 (requiring administrative appeals to exhaust 
administrative remedies of an order issued by the Office of Natural 
Resources Revenue); 30 CFR 590.8 (requiring appeals to the IBLA of 
orders and decisions of the Bureau of Ocean

[[Page 2341]]

Energy Management); 30 CFR 290.8 (requiring appeals to the IBLA of 
orders and decisions of the Bureau of Safety and Environmental 
Enforcement). In addition, because the new paragraph (a) applies to the 
Director and Appeals Board, but not DCHD, the exhaustion provisions 
that apply to grazing appeals will govern instead of this provision. 
See Sec.  4.174(b).
    The second exception implements the Darby holding by providing that 
a decision is subject to judicial review if it is made effective 
pending appeal. By including these exceptions, parties adversely 
affected by an agency decision will be better positioned to understand 
when exhaustion is required and assess their options for further review 
of the decision.
    Paragraph (b) will more specifically address finality for purposes 
of judicial review under 5 U.S.C. 704. Paragraphs (b)(1) and (b)(2) 
will distinguish between bureau or office decisions that are not in 
effect pending completion of the appeal and those that are in effect 
pending completion of the appeal, deeming the latter category to be 
final agency action that is subject to judicial review regardless of 
how the decisions came into effect as required by the holding in Darby. 
Paragraph (b) has three subparagraphs. Subparagraph (b)(1) will address 
decisions that are not in effect, stating that ``[a] decision that is 
not in effect pending completion of the appeal does not constitute 
final agency action for the Department.'' This provision will comply 
not only with Darby but also with the Supreme Court's more general 
definition of APA finality set out in Bennett v. Spear, 520 U.S. 154 
(1997). A bureau or office decision that is not in effect during the 
time it may be appealed, or during the pendency of the appeal, meets 
none of the Bennett indicia of finality: the decision under appeal does 
not yet mark the consummation of the agency's decision-making process, 
does not finally determine rights or obligations, and does not yet 
impose legal consequences on any party. Cf. Bennett, 520 U.S. at 178. 
Thus, it is not final agency action under 5 U.S.C. 704.
    The possibility that the decision may go into effect pending 
completion of the appeal will be addressed by subparagraph (b)(2). It 
provides, again consistent with Darby, that ``a decision that is in 
effect, or goes into effect, pending completion of the appeal is final 
agency action for the Department, subject to being superseded by a 
final decision of the Director or an Appeals Board.'' Under this 
provision, an otherwise final bureau or office decision that goes into 
effect pending appeal may be judicially reviewed even though an 
administrative appeal is pending. While an agency may require a party 
to complete an optional intra-agency appeal it has chosen to pursue, 
see Stone v. INS, 514 U.S. 386, 392 (1995) (holding that a party who 
chose to file an optional rehearing request ``cannot seek judicial 
review until the rehearing has concluded''), the interim final rule 
will treat mandatory and optional appeals alike, allowing a party to 
seek judicial review whenever a bureau or office decision is in effect. 
Doing so eliminates a needless disincentive to pursuing optional 
administrative appeals.
    The final subparagraph (b)(3) will clarify the status of a bureau 
or office decision that has been appealed and for which the Director or 
an Appeals Board has issued a final decision on appeal. Once the 
Director or an Appeals Board issues a final decision, that decision 
becomes the final agency action of the Department, and the underlying 
decision is no longer the final agency action for the Department. 
Accordingly, even if a bureau or office decision has been effective 
pending appeal, and thus deemed final for the Department, it will no 
longer be the final agency action once the Director or Appeals Board 
issues a final decision on appeal. This provision prevents the 
Department from simultaneously having two final agency actions on the 
same matter. Subparagraph (b)(3) also specifies that a final decision 
of the Director or an Appeals Board is effective on the date it is 
issued unless otherwise specified in the decision.
Sec.  4.21 Reconsideration
    Existing paragraph (d) will be removed because other than the 
Director's Office, each OHA Unit has its own reconsideration regulation 
applicable to its proceedings. The Director's Office will add a 
reconsideration provision to subpart G, Sec.  4.704, so it too will 
have a reconsideration provision that is substantively identical to the 
provision in existing Sec.  4.21(d).
Sec.  4.22 Retention of Documents; Record Address; and Extensions of 
Time
    We will move the filing and service provisions from Sec.  4.22 to 
Sec.  4.407 for appeals before the IBLA and to a new Sec.  4.32 for 
proceedings before the Director's Office and PHD. IBIA and DCHD also 
will use the filing and service provisions provided in other subparts 
in part 4. The current Sec.  4.22(c) will become Sec.  4.22(a), 
entitled, Retention of documents. The current language refers to 
``withdrawal'' of original documents, but we will clarify that OHA will 
permit the ``substitution'' of original documents for true copies 
during the time a case is pending. We also will provide that an appeals 
board may require such substitution upon a request for withdrawal in 
order to ensure an accurate record of the proceeding.
    The current Sec.  4.22(d) will become paragraph (b), entitled 
Record address information. We will require every person or entity 
filing a document in a proceeding before OHA to provide their mailing 
address and those filing electronically to provide both a mailing 
address and an electronic mailing address. Address changes will need to 
be promptly filed, and any person or entity who fails to provide or 
update their address will not be entitled to notice or service in the 
proceeding until they do so.
    The current Sec.  4.22(e) will become Sec.  4.22(c), entitled, 
Computation of time for filing and service. We propose revising this 
section to be consistent with Federal Rule of Civil Procedure 6(a)(1). 
Specifically, we will divide the current computation of time paragraph 
into three subparagraphs, which will provide three rules for computing 
time periods specified in the regulations, unless otherwise provided by 
law: (1) Exclude the day of the event that triggers the time period; 
(2) Count every day, including intermediate Saturdays, Sundays, and 
Federal holidays; and (3) Include the last day of the period, but if 
the last day is a Saturday, Sunday, Federal holiday, or other 
nonbusiness day, the period continues to run until the end of the next 
day that is not a Saturday, Sunday, Federal holiday, or other 
nonbusiness day. The only substantive change from the content of 
current Sec.  4.22(e) is that time periods of seven days or less will 
no longer exclude any Saturday, Sunday, Federal holiday, and other 
nonbusiness day. As explained in the Committee Notes for Federal Rule 
of Civil Procedure 6(a)(1), the instruction to ``count every day'' (so 
that ``day'' means ``calendar day'') enables parties to calculate time 
periods less than 7 days and greater than 7 days in the same way. Some 
time periods provided by the regulations in part 4 will be extended to 
account for this change.
    The current Sec.  4.22(f) will become Sec.  4.22(d), entitled 
Extensions of time, without any substantive changes.
Sec.  4.23 Hearings or Related Proceedings
    We will modify this section based on changes in technology and 
increased availability of recordings and because OHA employees 
typically do not

[[Page 2342]]

prepare transcriptions. The current provision indicates that hearings 
will be recorded, and transcripts will be made when requested by the 
parties. It also specifies the rate to cover the cost of OHA employees 
preparing the transcripts for requesting parties. The new language will 
provide that hearings are recorded or transcribed or both and allows 
parties to have the option to request recordings. It carries forward 
the responsibility of the parties to pay for requested copies of the 
transcript or recording. For transcripts that are prepared by a 
contractor, the language will require the parties to obtain and pay for 
them. Paragraph (b) is new and will specifically provide that hearings 
may be conducted using video, teleconference, or other suitable 
technology. OHA has already begun using video hearings for the 
convenience of OHA and the parties.
Sec.  4.24 Basis of Decision
    In Sec.  4.24, we will carry forward paragraphs (a)(1), (a)(3), 
(a)(4), and (b) with minor edits to modernize the language. Paragraph 
(a)(2) will be revised to provide greater clarity without changing the 
requirements.
Sec.  4.25 Oral Argument and Status Conferences
    We will revise this section to add ``presiding officer'' to the 
list along with the Director and Appeals Boards who have the authority 
in current regulations to grant an opportunity for oral argument. We 
also will specify that the Director, presiding officer, or Appeals 
Board may order status conferences. We also will expressly state that 
oral arguments or status conferences may be conducted by video, 
teleconference, or other suitable technology.
Sec.  4.26 Subpoena Power and Witness Provisions for Probate 
Proceedings
    In paragraph (a), which currently references only ALJs, we will add 
that Indian probate judges or presiding officers in WELSA proceedings 
under subpart H also have subpoena power when carrying out their 
statutory duties to adjudicate Indian probate cases. We also specify 
that the subpoena power will apply not only to the attendance of 
witnesses at hearings or depositions, but also to the production of 
documents or other relevant materials.
    Expanding this provision will help address a current need. For 
example, adoption or medical records may be relevant to issues arising 
in a probate case, but custodians of these records may provide them to 
OHA or a party only in response to a subpoena.
    PHD has made greater use of video, teleconference, or other 
suitable technology to hold hearings, and paragraph (b) reflects this 
change by including language that specifies the contents of a subpoena 
requiring attendance by one of these methods.
    Current regulations provide for personal service of subpoenas, but 
not service by other methods. Because witnesses may now appear by 
video, teleconference, or other suitable technology from a distant 
location, we will allow the use of registered or certified mail to 
complete service of a subpoena. Current regulations limit the distance 
a witness may be required to travel to attend a deposition or hearing 
to 100 miles from the place of service. Considering PHD's greater use 
of video, teleconference, or other suitable technology to hold 
hearings, we will specify in paragraph (d) that geographic limits do 
not apply when in-person attendance at a hearing is not required. We 
will add a new paragraph (e) on witness fees, which modernizes the 
language in current paragraph (c) without changing the substantive 
requirements. We continue to tie witness fees to those provided in the 
United States district courts.
Sec.  4.27 Ex parte Communication and Disqualification
    We will reorganize and revise this existing provision, which has 
not been updated since 1971 (36 FR 7186; April 15, 1971), by adding a 
definition of ex parte communication, explicitly prohibiting ex parte 
communications, detailing the procedure that OHA will follow if it 
received an ex parte communication, and providing the sanctions for ex 
parte communications. We will specifically provide that the appropriate 
OHA Unit supervisor will notify OHA's Director in the event of a 
prohibited communication warranting discipline of an OHA employee, and 
to clarify that discipline will only be imposed on OHA employees who 
knowingly made ex parte communications or caused ex parte 
communications to be made. We will also require that a communication be 
knowingly made or caused by a party for sanctions on that party to be 
warranted. We further specify a list of allowable communications that 
will not be considered prohibited ex parte communications.
Sec.  4.28 Interlocutory Appeals
    We will clarify and modernize the language but do not intend to 
make substantive changes except to again include Indian probate judges 
in recognition of the statutory authority of Indian probate judges to 
adjudicate Indian probate cases.
Sec.  4.29 Disqualification of Presiding Officers and Board Members
    We will delete current Sec.  4.29, which addresses remands from 
Federal courts. The current section applies only to IBIA and IBLA, but 
neither Appeals Board has found the procedures provided in the section 
necessary. Instead, IBIA and IBLA can effectively address remands from 
courts on a case-by-case basis.
    We will move the provisions regarding Disqualification of Presiding 
Officers and Board Members to this section from their current location 
in Sec.  4.27(c). We will use the term ``presiding officer'' for 
consistency with other changes to subparts A and B and also add 
language to qualify that the provision applies to members of Appeals 
Boards. No other substantive changes are made.
Sec.  4.30 Alternative Dispute Resolution
    We will remove the section entitled, ``Information Required by 
forms'' as the form required for subpoenas also has been removed. In 
its place, we will add a new section that codifies OHA's authority to 
encourage the use of alternative dispute resolution (ADR) among parties 
who have filed an appeal or requested a hearing. The Department of the 
Interior has greatly expanded its use of ADR and other informal tools 
to resolve disputes among internal parties as well as with external 
groups. ADR can provide substantial benefits to parties, allowing for 
the flexibility to craft durable and creative solutions to disputes 
while also saving time and money associated with adjudication. OHA will 
seek opportunities to regularize and expand communications about ADR to 
parties with pending cases, while also allowing parties to inquire 
about the availability of ADR for their pending matter.
Sec.  4.31 Limiting Disclosure of Confidential Information
    We will make significant clarifying amendments to this provision, 
which has been a source of challenge and confusion as currently 
drafted.
    We will define the confidential information that is subject to this 
provision as information that is exempt from public disclosure by the 
Freedom of Information Act, Trade Secrets Act, or other laws that 
explicitly exempt the information from disclosure. This definition is 
intended to clarify that this provision will not address information 
protected by common law privilege.
    We also will modernize and clarify the language describing the 
procedure

[[Page 2343]]

by which a party may request a protective order for information 
submitted to OHA that the party asserts falls within the definition of 
confidential information, and the procedure by which OHA will rule on 
the motion for protective order. We will retain language to exempt 
hearings conducted pursuant to 5 U.S.C. 554 from this provision, as 
protective orders and disputes regarding confidential information are 
generally handled through the discovery process in those fact-finding 
hearings. We also will retain language stating that notwithstanding an 
OHA ruling on a protective order, information will be released if the 
Department determines that it is subject to release under the Freedom 
of Information Act.
Sec.  4.32 Filing; Service; Issuance
    We will move the filing and service provisions that apply to the 
Director's Office and PHD from Sec.  4.22 to a new Sec.  4.32 and 
specify that they do not apply to subparts C, D, E, H, J, K, and L.
    OHA is working on an electronic filing system that is expected to 
be deployed to the parties and the public during FY 2024. The 
electronic filing system will be used for proceedings before the 
Director's office, IBLA, IBIA, and DCHD. However, while PHD will not be 
using this electronic filing system, any opportunities that become 
available for electronic transmission of documents will be provided for 
in the OHA Standing Orders on Electronic Transmission.
    We will modify paragraph (a) to add subparagraphs that address 
electronic and non-electronic filing. Paragraph (a)(1) will add 
references to the OHA Standing Order on Contact Information and the OHA 
Standing Order on Electronic Transmission. Paragraphs (a)(2) and (a)(3) 
will provide for separate provisions on methods of filing and 
timeliness.
    Paragraph (a)(2)(i) will add a requirement that any attorney 
representing a person or entity, and any Federal, State, or local 
agency must file documents electronically. This requirement will help 
maximize the efficiencies of an electronic system and provide benefits 
to OHA and the parties who appear before it.
    Paragraph (a)(3)(i) will provide that the deadline for documents 
filed electronically will be 11:59 p.m. in the time zone of the office 
where the filing is required on the due date. For those who file 
electronically, we anticipate using the time stamp of the electronic 
process OHA is using at the time. For example, when the new electronic 
filing system is deployed, the date and time of filing will be 
determined by that system. For those who choose to file documents by 
mail, paragraph (a)(3)(ii) will specify that a document will be deemed 
timely if it is mailed on or before the last day for filing or if it is 
dispatched to a commercial courier for delivery within 3 days. This 
provision is consistent with Federal Rule of Appellate Procedure 25, 
which similarly states that a brief not filed electronically is timely 
filed if it is mailed on or before the filing deadline, postage 
prepaid, by first-class mail or other equally expeditious class of mail 
or dispatched to a third-party commercial carrier for delivery to the 
clerk within 3 days of the dispatch. Paragraph (a)(3)(ii) will also 
require that the mailing or dispatch date be documented by a postmark 
date, acceptance scan, receipt, or similar written acknowledgment from 
the company delivering the document for filing. The intent of this 
language is to put parties on notice that there must be proof of the 
date a document is mailed for filing. Without such proof, a document 
may be deemed untimely. To account for the possibility of an error by 
the post office or a commercial courier, paragraph (a)(3)(ii) specifies 
that a document not received within seven business days of the filing 
deadline is presumed to have not been filed, but that presumption may 
be rebutted by the date-of-mailing documentation.
    The options we are providing for non-electronic filing do not 
include personal delivery that is not through the mail or by a third-
party commercial courier. The current language in existing paragraph 
4.22 (a) provides that ``a document is filed in the office where the 
filing is required only when the document is received in that office 
during its regular business hours and by a person authorized to receive 
it.'' This is no longer a viable option, given changes to the 
workplace, particularly since the COVID-19 pandemic. OHA has a number 
of small offices, and a person who is authorized to receive a filing 
may not be available in the office every day during all business hours 
to receive such a personal delivery. In addition, due to security and 
other reasons, an OHA office suite may not be accessible to the public. 
For these reasons, we are providing options that can offer 
documentation of delivery and verification of timeliness.
    Paragraph (b) will update and clarify the requirements for serving 
documents in OHA proceedings and will continue to require that a person 
or entity filing a document must serve a copy concurrently on the 
appropriate official of the Office of the Solicitor and other 
Government officials and all other parties.
    We will modify paragraph (b)(1) to refer to the OHA Standing 
Order(s) on contact information for current office contacts of 
Government officials and offices. The modifications will also modernize 
OHA's practice by including electronic service and providing that 
service may be accomplished electronically on any person or entity that 
has consented. References to the OHA Standing Order(s) on Electronic 
Transmission will allow OHA to provide the most current information on 
the electronic filing system in place. OHA is anticipating that the 
electronic filing system will be continually updated and improved as 
technology changes and this framework will allow for such updates 
rather than fixing in regulation specific electronic procedures. We 
anticipate that parties will be able to provide for consent to be 
served electronically through the electronic filing system.
    In paragraph (b)(3)(i), we will provide that service may be made 
electronically on any person or entity that has consented. We will also 
clarify that the Department of the Interior offices and bureaus, 
including the Office of the Solicitor, consent to electronic service. 
This will ensure that the Department's investment into an electronic 
filing system for OHA is fully used and the efficiencies of the system 
are maximized for the benefit of parties and the public. Requiring 
separate consent by the Office of the Solicitor or any of the 
Department's bureaus or offices for each case filed and communicating 
such consent to all the parties will be cumbersome and inefficient.
    Paragraph (b)(3)(i) will also give parties the opportunity to 
modernize their practice by providing that any person or entity may 
consent to electronic service. We anticipate that such consent will be 
made through the electronic filing system. Because the system will be 
continually updated over time, specific procedures to provide consent 
to electronic service will be conveyed in the OHA Standing Orders. 
Paragraph (b)(3)(ii) will address service by non-electronic means.
    In paragraph (c)(1), we will specify that OHA may issue notices, 
orders, or decision electronically as specified in the OHA Standing 
Orders on Electronic Transmission, or by rules applicable to the OHA 
Unit or the type of proceeding. Paragraph (c)(2) will provide the 
methods of non-electronic issuance that OHA may use for parties who 
have not consented to electronic service or issuance.

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Subpart C--Rules Applicable to Proceedings Before the Departmental 
Cases Hearings Division

    The Departmental Cases Hearings Division (DCHD) serves as the 
administrative trial court for the Department of the Interior and 
provides an impartial forum for the resolution of disputes under the 
Department's jurisdiction. Administrative law judges (ALJs) appointed 
to DCHD conduct formal hearings under the Administrative Procedure Act 
(APA), 5 U.S.C. 551-59, and other fact-finding hearings in accordance 
with applicable statutes and regulations. DCHD adjudicates a wide range 
of matters relating to the use and disposition of public lands and 
natural resources as well as select cases involving American Indians, 
Tribal Nations, and Alaska Natives. For instance, DCHD adjudicates 
cases involving rangeland and grazing resources; surface coal mining 
resources; oil, gas, and mineral resources; wildlife and cultural 
resources; mining contests; hydropower licenses; Alaska Native 
allotment applications, Tribal acknowledgment proceedings, and certain 
Indian Self-Determination and Education Assistance Act (ISDA) cases. 
DCHD also conducts hearings and adjudicates matters referred by other 
entities within the Department, including the Director of OHA and the 
Appeals Boards.
    As part of this regulatory update, DCHD will establish a new 
subpart C within 43 CFR part 4, which is currently ``Reserved'' and 
does not contain any regulatory provisions. This new subpart will 
include uniform and consistent ``General Procedural Rules for Practice 
Before the Departmental Cases Hearings Division'' that will apply to 
all phases of prehearing, hearing, and post-hearing adjudication. The 
General Procedural Rules for Practice will serve as a procedural 
overlay for proceedings before DCHD similar in function and operation 
to the Federal Rules of Civil Procedure (FRCP) used in Federal district 
court proceedings but will be streamlined for administrative 
proceedings. The new General Procedural Rules for Practice will also 
address current and anticipated technological advancements within DCHD 
such as the electronic filing and service of documents as well as the 
use of video technology for hearings and other prehearing processes.
    DCHD will also relocate, modify, and update provisions currently in 
subpart E of 43 CFR part 4 that contain the rules applicable to certain 
types of proceedings before DCHD. At present, subpart E contains 
procedures that apply to both the IBLA and DCHD. This organizational 
structure has, at times, created confusion for litigants trying to 
ascertain which procedures apply to DCHD as opposed to the IBLA. To 
eliminate the confusion, this regulatory update will consolidate the 
rules applicable to DCHD into subpart C so that subpart E will only 
contain the rules applicable to practice before the IBLA. Once 
relocated, subpart C will contain the ``Specific Rules Applicable to 
Certain Types of Proceedings Before the Departmental Cases Hearings 
Division'' and will include the following: (1) Specific Rules 
Applicable to Referrals for Fact-Finding Hearings; (2) Specific Rules 
Applicable to Contest Proceedings; and (3) Specific Rules Applicable to 
Grazing Proceedings (Inside and Outside of Grazing Districts).
General Procedural Rules for Practice Before the Departmental Cases 
Hearings Division
    For ease of reference, the General Procedural Rules for Practice 
before DCHD will be further separated into seven distinct topic areas: 
(1) Purpose, Scope, and Definitions; (2) Filing, Service, and 
Formatting of Documents; (3) Prehearing Procedures; (4) Discovery; (5) 
Other Procedures; (6) Hearing Process and Procedure; and (7) 
Reconsideration, Appeal, and Review.
Purpose, Scope, and Definitions
Sec.  4.100 Purpose and Scope
    DCHD will add a new subpart C to establish, for the first time, a 
set of uniform and comprehensive procedures for practice before DCHD 
intended to promote the efficient and timely resolution of proceedings. 
Subpart C will also contain the rules applicable to specific types of 
proceedings adjudicated by DCHD that are currently contained in subpart 
E. As explained in paragraph (a), subpart C will consist of both: (1) 
the ``General Procedural Rules for Practice Before the Departmental 
Cases Hearings Division;'' and (2) the ``Specific Rules Applicable to 
Certain Types of Proceedings Before the Departmental Cases Hearings 
Division.''
    The General Procedural Rules for Practice set forth in subpart C 
will broadly apply to all types of proceedings adjudicated by DCHD 
unless specifically exempted by this section. Proceedings specifically 
exempted are listed in paragraph (b) and will include: (1) hydropower 
proceedings governed by 43 CFR part 45; (2) Tribal acknowledgement 
proceedings governed by 43 CFR part 4, subpart K; (3) Indian Self-
Determination and Education Assistance Act proceedings governed by 25 
CFR part 900 and 42 CFR part 137, subpart P; (4) administrative 
remedies for fraudulent claims and statements governed by 43 CFR part 
35; and (5) debt collection proceedings governed by the Departmental 
Manual. For some types of proceedings, a comprehensive set of 
regulatory provisions already exist. See, e.g., Hannahville Indian 
Cmty. v. Minneapolis Area Educ. Officer and Area Supervisory Contract 
Specialist, Bureau of Indian Affairs, 34 IBIA 252 (2000) (discussing 
the comprehensive negotiated rulemaking for cases dealing with the 
ISDA). Other proceedings, such as debt collection matters, are 
conducted using informal procedures that fall outside the scope of 
subpart C.
    As explained in paragraphs (c) and (d), other regulations may also 
apply to proceedings before DCHD. As explained in paragraph (c), 
subparts A and B are generally applicable to DCHD unless they are 
inconsistent with subpart C. Other rules applicable to specific types 
of proceedings are contained throughout title 43 and in other portions 
of the Code of Federal Regulations as described in paragraph (d). Where 
possible, those regulations should be interpreted as consistent with 
the rules in subpart C. However, to the extent that a rule applicable 
to a specific type of proceeding directly conflicts with the General 
Procedural Rules for Practice before DCHD in subpart C, the specific 
rule will apply. To the extent that a specific rule references an 
outdated or inapplicable procedure, the ALJ may direct the parties, in 
writing, to follow some, or all, of the procedures contained in the 
General Procedural Rules for Practice before DCHD contained in this 
subpart. For example, the regulations governing civil penalties 
promulgated by the Office of Natural Resources Revenue (ONRR) at 30 CFR 
1241.8 currently cross-reference hearing procedures contained in 43 CFR 
4.420-4.428; however, those hearing procedures will be eliminated as 
part of this regulatory update. Paragraph (c) of this section, will 
enable ALJs to guide the parties, in writing, to the applicable 
procedures in subpart C until ONRR has an opportunity to update its 
regulatory provisions and establish new cross-references. While 
Departmental bureaus and offices will be encouraged to update and 
correct existing cross-references, the potential for delay associated 
with those rulemaking efforts necessitates the inclusion of interim 
guidance.
    Paragraph (d) discusses the applicability of OHA Standing Orders 
issued by the Director to proceedings before DCHD. The OHA Standing

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Orders on Electronic Transmission convey current information about the 
electronic filing and service of documents, and the OHA Standing Orders 
on Contact Information convey current electronic and mailing address 
information. The OHA Standing Orders will be made available on the 
Department of the Interior's OHA website at https://www.doi.gov/oha.
Sec.  4.101 Definitions
    This section will include a definition for the term 
``administrative law judge'' and the acronym ``DCHD.'' All other 
definitions generally applicable to proceedings under 43 CFR part 4 
will be defined in subpart A.
Filing, Service, and Formatting of Documents
Sec.  4.102 Filing and Service Requirements
    This section combines the filing and service requirements of 
several existing regulations, deletes unnecessary provisions, and adds 
new provisions to modernize practice by allowing documents to be filed 
and served electronically. This section will also clarify how DCHD 
issues notices, orders, and decisions. Paragraph (a) will set forth the 
filing requirements, paragraph (b) will contain the service 
requirements, and paragraph (c) will discuss the issuance of notices, 
orders, and decisions.
    In response to the exigent circumstances presented by the COVID-19 
pandemic, DCHD began allowing parties to file and serve documents 
electronically by email. Since email filing began, DCHD's experience 
with electronic filing has been positive and has allowed DCHD to 
successfully accommodate electronic filings from parties as well as the 
electronic issuance of notices, orders, and decisions. OHA is currently 
working to develop an electronic filing system that will ultimately 
replace the use of email. DCHD will formally codify the procedures for 
the electronic filing, service, and issuance of documents as part of 
these General Procedural Rules for Practice before DCHD. In addition, 
DCHD will continue to rely on Standing Orders, which are issued to 
update filing and service procedures, provide current contact 
information, and notify parties of technological developments such as 
the anticipated implementation of a new electronic filing system.
    Paragraph (a)(1) will require that documents be filed in 
proceedings pending before DCHD in accordance with the rules in this 
section and the OHA Standing Orders on Electronic Transmission and 
Contact Information. The available methods for filing either 
electronically or non-electronically will be discussed in paragraph 
(a)(2). For a Federal, State, or local agency and for any attorney 
representing a person or entity in a proceeding before DCHD, paragraph 
(a)(2)(i) will require electronic filing unless otherwise specified in 
the OHA Standing Orders on Electronic Transmission or when the ALJ has 
allowed non-electronic filing for good cause.
    For electronic filing, paragraph (a)(3)(i) will adopt 11:59 p.m. 
Mountain Time as the deadline for filing documents with DCHD. The date 
and time of filing will be determined by DCHD using the time stamp of 
the electronic process DCHD is using at the time of filing. So, for as 
long as the OHA Standing Orders on Electronic Transmission provide that 
DCHD is accepting filings by email, the date and time of filing will be 
the date and time that appears on the email received by DCHD. When the 
new electronic filing system is deployed, the date and time of filing 
will be the date and time established by that system.
    For those who choose to file documents non-electronically by mail 
or commercial courier, paragraph (a)(3)(ii) will explain that a 
document is deemed timely if, on or before the last day for filing, it 
is sent using first-class mail or other class of mail that is at least 
as expeditious, postage prepaid, or it is dispatched to a third-party 
commercial courier for delivery within three days. This modification to 
the existing filing rules is consistent with the approach taken in 
Sec. Sec.  4.32 and 4.407 as well as the Federal Rules of Appellate 
Procedure (FRAP) at Rule 25. While DCHD has historically accepted 
filings transmitted by facsimile, that procedure will be eliminated 
going forward and replaced by electronic filing.
    Because these regulatory changes will simplify and streamline the 
filing deadlines, DCHD will no longer need the ``grace period'' 
currently found in 43 CFR 4.422(a). Paragraph (a)(3)(ii) will require 
proof of mailing or dispatch documented by ``a postmark date, 
acceptance scan, receipt, or other similar written acknowledgement.'' A 
document not received within seven business days of the filing deadline 
will be presumed untimely, but the presumption could be overcome by 
appropriate documentation establishing the date of mailing or dispatch.
    Paragraph (b)(1) will provide notice of the general requirement to 
serve documents in accordance with the rules in this section and the 
OHA Standing Orders on Electronic Transmission and Contact Information. 
Copies of documents filed with DCHD will be required to be served 
concurrently on all parties to the proceeding under paragraph (b)(2). 
Service on a party known to be represented will be governed by 
paragraph (b)(3), which requires service on the representative. A 
person or entity will be required to serve the appropriate office of 
the Office of the Solicitor as provided in the OHA Standing Orders on 
Contact Information until a particular attorney in the Office of the 
Solicitor files and serves a notice of appearance or other document in 
the proceeding, after which that attorney must be served. To ensure 
timely and accurate service, paragraphs (b)(4) and (b)(5) will set 
forth the method for determining the service address and will require 
parties to promptly file and serve written notice of any address 
changes.
    To streamline the service requirements, paragraph (b)(6) will allow 
service to occur electronically or non-electronically. Electronic 
service will be allowed under paragraph (b)(6)(i) on persons or 
entities who consent to electronic service under the terms specified in 
the OHA Standing Orders on Electronic Transmission. Paragraph (b)(6)(i) 
will also allow electronic service on the Office of the Solicitor and 
bureaus or offices of the Department of the Interior under the terms 
specified in the OHA Standing Orders on Electronic Transmission. Non-
electronic service will be authorized by mail or third-party commercial 
courier, except that in contest cases, service could also be made by 
publication under Sec.  4.163. The tables currently set forth in 43 CFR 
4.422 will not be carried over into subpart C. Addresses for serving 
the Office of the Solicitor and the bureaus and offices of the 
Department of the Interior will be set forth in the OHA Standing Orders 
on Contact Information. Proof of service will be required as specified 
under paragraph (b)(7).
    Paragraph (b)(8) of the regulations will specify when service is 
complete. Electronic service of a document will be deemed complete when 
the document is sent or as otherwise specified under the terms of the 
OHA Standing Orders on Electronic Transmission, unless the party making 
service is notified that the document was not received. For a document 
served by mail or commercial courier, service will be complete upon 
mailing or dispatch to the carrier subject to documentation showing the 
date of mailing or dispatch such as a postmark, acceptance scan, 
receipt, or other similar written acknowledgement.

[[Page 2346]]

Service by publication will be complete as set forth in Sec.  4.163.
    Notices, orders, and decisions issued by the ALJ will generally be 
served electronically as indicated in paragraph (c), and service will 
be complete on sending or as otherwise specified by the OHA Standing 
Orders on Electronic Transmission. If an electronic service address has 
not been provided, then a non-appealable notice, order, or decision 
will be issued by first-class United States mail or third-party 
commercial courier to the mailing address provided or, if not provided, 
to the last known address, and service will be complete on mailing or 
dispatch. If an electronic service address has not been provided, an 
appealable order or decision will be sent by certified United States 
mail to the mailing address provided or, if not provided, to the last 
known mailing address, and service will be complete when received. If a 
notice, order, or decision sent by certified mail is not claimed by the 
recipient or is returned as undeliverable, then service will be 
achieved by first-class United States mail, and service will be deemed 
complete on mailing.
Sec.  4.103 Document Formatting
    The document formatting requirements will standardize and clarify 
the requirements for documents filed with DCHD. Paragraph (a) will 
specify that the formatting requirements apply to any notice, motion, 
brief or other document filed with DCHD either electronically or in 
paper form. The formatting requirements will not apply to exhibits, 
attachments, and other appended documents. Paragraph (b) contains 
similar requirements to those found in the existing regulations at 43 
CFR 4.410(d) but also includes new provisions to accommodate 
electronically filed documents. For instance, paragraph (b)(10) will 
specifically require that documents filed electronically ``be in an 
electronic text-searchable portable document format (PDF).''
    Paragraph (c) will explain the method for calculating page numbers 
and will specifically exclude from page numbering computations: any 
cover page, table of contents, table of citations, signature blocks, 
certificates of service, indices, attachments, and exhibits. To 
encourage compliance with these formatting requirements, paragraph (d) 
will allow an ALJ to strike and not consider a document or pleading 
that fails to comply with the applicable formatting requirements.
Prehearing Procedures
Sec.  4.104 Prehearing Conferences
    DCHD will include a new section discussing prehearing conferences. 
Like pretrial conferences conducted in Federal district court under 
FRCP 16, prehearing conferences provide a critical first step in 
scheduling, managing, and planning the prehearing and hearing process. 
Although the current regulations only require prehearing conferences 
for some matters, DCHD's ALJs routinely conduct prehearing conferences 
with the parties during the early stages of most proceedings. The 
timing and scheduling of prehearing conferences can vary depending on 
the type of case and the procedural posture. For instance, prehearing 
conferences may be delayed if the matter is subject to a pending motion 
to dismiss, the regulations require the expeditious resolution of a 
stay petition, or the parties request time to engage in settlement 
discussions.
    Paragraph (a) will broadly explain the purpose of prehearing 
conferences for parties that may be unfamiliar with the process. 
Paragraph (b) will address the timing, scheduling, and method for 
conducting a prehearing conference.
    Paragraph (c) will contain a non-exhaustive list of the issues and 
topics that may be discussed, addressed, and resolved during the 
prehearing conference, including: simplification of the issues, 
consolidation, options for Alternative Dispute Resolution (ADR), 
discovery, the timing and appropriateness of prehearing motions, 
scheduling deadlines, hearing preparation, witness and exhibit 
disclosures, and other matters that may facilitate the timely, 
efficient, and fair resolution of the proceeding. While a few 
regulations applicable to specific types of proceedings currently 
include prehearing conference provisions, see, e.g., 43 CFR 4.430, 
4.452-1, this section will replace those provisions and establish a 
more uniform and consistent process.
    Paragraph (d) mirrors FRCP 16(e) and notifies the parties that the 
ALJ may also conduct a final prehearing conference prior to the 
commencement of any hearing to formulate a hearing plan and to 
facilitate the admission of evidence and the presentation of witnesses. 
As necessary, parties will be permitted to request the scheduling of a 
prehearing conference by filing a written motion under paragraph (e) 
that demonstrates a reasonable justification for the scheduling 
request. As explained in paragraph (f), an ALJ will issue an order 
after any prehearing conference documenting the actions agreed on and 
the rulings made by the ALJ during the conference. Post-conference 
orders will control the subsequent course of the proceeding unless 
modified by the ALJ in a written order. The consequences of 
noncompliance will be described in paragraph (g), which explains the 
potential for sanctions under Sec.  4.121 for the failure to appear at 
a prehearing conference, participate in good faith, or comply with the 
terms of a post-conference order.
Sec.  4.105 Prehearing Motions
    Parties appearing before DCHD file a significant number of 
prehearing motions that encompass many of the same types of issues that 
typically arise in Federal district court proceedings. The motions can 
be wide-ranging and complex depending on the type of proceeding. 
Parties frequently file motions related to standing, jurisdiction, 
timeliness, and mootness early in the proceeding. As the proceeding 
progresses, parties often file motions related to discovery disputes 
and evidentiary issues. The lack of standard regulatory procedures 
governing motions practice has led to inefficiencies in case processing 
and inconsistent requirements. This provision will provide a framework 
to guide parties through the briefing process for most types of 
motions.
    Paragraph (a) provides a general overview and will require that 
motions filed prior to a hearing be presented in writing unless 
otherwise authorized by the ALJ. This requirement is consistent with 
the practice of Federal districts courts at FRCP 7(b)(1)(A). Procedures 
applicable to specific types of motions appear in separate sections of 
subpart C, and summary judgment motions will be governed by Sec.  
4.111.
    Paragraph (b) describes the timing, page limits, and content of 
motions. It also requires that motions comply with the filing, service, 
and document formatting requirements set forth in Sec. Sec.  4.102 and 
4.103. A party will be authorized to file a motion any time after the 
commencement of the proceeding unless a different deadline has been 
prescribed in subpart C or in an order issued by the ALJ. Motions will 
be limited to 15 pages, unless the ALJ orders otherwise. In terms of 
content, motions will be required to contain a clear and concise 
statement indicating: (1) the purpose of the motion and the relief 
sought; (2) the factual basis for the relief sought; and (3) the legal 
arguments and reasons supporting the motion, including citations to any 
applicable legal authority.
    Responses under paragraph (c) will also be subject to the filing 
and service

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requirements of Sec.  4.102 and the document formatting requirements of 
Sec.  4.103. A response will be due 14 days after the filing of the 
motion and will be limited to 15 pages unless the ALJ orders otherwise. 
In terms of content, a response brief will be required to contain a 
clear and concise statement indicating: (1) whether the party supports 
or opposes the motion; (2) the factual basis for the response; and (3) 
the legal arguments and reasons supporting the response, including 
citations to legal authority.
    To aid in calculating due dates, this section, and most of the 
regulatory provisions in subpart C, will calculate deadlines in 7-day 
increments. To allow for the more efficient resolution of motions, 
paragraph (d) does not allow replies or further briefing unless 
authorized by the ALJ.
    In addition, this proposal will require in paragraph (e) that 
supporting documentary materials be submitted along with the motion or 
response unless the supporting materials have already been filed with 
DCHD. Any documentary materials will need to be directly referenced in 
the motion or response using pinpoint citations that specify the 
page(s) or paragraph number(s) where the supporting text is located. 
Pinpoint citations enable the ALJ to more quickly and efficiently 
review the briefing and materials submitted by the parties.
    To expedite the resolution of purely procedural motions, paragraph 
(f) will allow an ALJ to rule on a motion for procedural relief without 
waiting for a response. Examples of purely procedural motions include 
requests to modify a deadline, reschedule an action, allow additional 
briefing, or permit the filing of an overlength brief. An ALJ will also 
be authorized under paragraph (g) to summarily deny a motion without 
waiting for a response when the motion is frivolous, repetitive, or 
would cause undue delay.
Sec.  4.106 Extension of Time
    Requests for extensions of time occur with some frequency in 
proceedings before DCHD and warrant a separate section. In general, as 
explained in paragraph (a), a party may request an extension of time 
for filing a document, other than a notice of appeal or a document 
initiating a proceeding, by filing a written motion. Under this rule, 
ALJs will retain the discretion to grant or deny extensions of time 
depending on the individual circumstances. Paragraph (b) will require 
that a motion requesting an extension be filed no later than the day 
before the document is due, absent a showing of compelling 
circumstances. To obtain an extension, paragraph (c) will require the 
movant to demonstrate good cause. To enable the ALJ to more 
expeditiously adjudicate motions for extensions of time, paragraph (d) 
will require the moving party to make a reasonable effort to contact 
each party to determine whether an agreement can be reached regarding 
an extension.
    Occasionally, an ALJ may be at hearing or otherwise unavailable to 
rule on a requested extension prior to the deadline, especially when 
the request for an extension is made only a day or two before the 
deadline. To ensure consistency and certainty in the event of inaction 
by the ALJ, the regulation contains a default provision in paragraph 
(e) that allows for any document to be filed within 7 calendar days 
after the original due date if the ALJ does not rule on the motion 
before the document is due, unless the ALJ orders otherwise. This 7-day 
default extension period is consistent with the IBLA's approach under 
Sec.  4.409(b).
Sec.  4.107 Consolidation and Severance
    This regulation codifies current practices within DCHD. Paragraph 
(a) will allow for consolidation of two or more proceedings when they 
involve common factual or legal issues. Proceedings may be consolidated 
on the motion of a party or at the initiative of the ALJ. While 
relatively uncommon, consolidated cases occasionally need to be severed 
as the proceeding progresses and new information develops. Paragraph 
(b) will specifically allow a proceeding to be severed on the motion of 
a party or the initiative of the ALJ.
Sec.  4.108 Intervention and Amicus Curiae
    DCHD does not have a uniform set of regulations governing the 
standards and processes for requesting intervention. But see 43 CFR 
4.473 (grazing). In 2010, the IBLA developed a comprehensive 
intervention regulation, which it codified in the existing rules at 43 
CFR 4.406 (see 75 FR 64655; October 20, 2010, and 72 FR 10454; March 8, 
2007). In the absence of specific regulatory guidance, DCHD has relied 
on published decisions issued by the IBLA to determine when 
intervention may be appropriate in a particular proceeding. By adopting 
this regulation, DCHD intends to create certainty and consistency for 
persons and entities who seek intervention or amicus curiae status in 
proceedings pending before DCHD.
    In accordance with existing practice, paragraph (a)(1) will allow 
intervention by written motion. Paragraph (a)(2) will authorize 
intervention consistent with existing case law if: (1) the person or 
entity had a legal right to initiate the proceeding, or (2) the person 
or entity has an interest that could be adversely affected by the 
outcome of the proceeding. See, e.g., Las Vegas Valley Action Comm., 
156 IBLA 110, 112 (2001); Nev. Div. of Wildlife v. BLM & Tuledad 
Grazing Assoc., 138 IBLA 382, 390-391 (1997); Bear River Land & Grazing 
v. BLM, 132 IBLA 110, 113 (1995); San Juan Citizens Alliance, 129 IBLA 
1, 2 n.1 (1994). Paragraph (a)(3) will discuss the required contents of 
a motion to intervene. Paragraph (a)(4) will enable an ALJ to grant 
intervention but limit participation. It will also allow an ALJ to deny 
a motion to intervene if the requirements of this section are not met 
or if the ALJ determines that granting the motion to intervene will 
materially prejudice existing parties or unduly delay adjudication of 
the proceeding. A party who is granted full or limited intervenor 
status will be a party to the proceeding as explained in paragraph 
(a)(5).
    Under paragraph (b), a person or entity may also seek amicus curiae 
status. While requests for amicus curiae status occur infrequently, 
additional briefing submitted by interested persons and entities can 
provide a useful analysis of the issues. To request amicus curiae 
status, a person or entity will be required to file a written motion 
under paragraph (b)(1) that explains how the amicus brief will 
contribute to a resolution of the issues. The ALJ will have the 
discretion to grant or deny the motion under paragraph (b)(2). A person 
or entity granted amicus curiae status will not be a party to the 
proceeding under paragraph (b)(3) but will be allowed to file a written 
amicus brief that must be served on all other parties to the proceeding 
in accordance with paragraph (b)(4).
Sec.  4.109 Notice of Appearance, Substitution of Attorneys, and 
Attorney Withdrawal
    DCHD does not currently have a regulation governing notices of 
appearance, the substitution of attorneys, or the withdrawal of an 
attorney from the proceeding. This regulation will ensure that all 
parties and the ALJ have a clear understanding about which parties are 
represented and who is providing that representation. It will also 
ensure proper service of pleadings, notices, orders, and decisions.
    Paragraph (a) will require that an attorney or other representative 
file and serve a notice of appearance and provide prompt notice of any 
changes in

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legal representation. Paragraph (b) will allow parties to substitute 
attorneys by filing a notice of substitution that contains the contact 
information for the new attorney. The substitution will be effective 
upon filing.
    Paragraph (c) will allow an attorney to withdraw from a proceeding 
by filing a written motion. The attorney filing the motion will be 
required to serve the motion on all parties to the proceeding and the 
attorney's client(s). To ensure that a withdrawing attorney's client(s) 
will not be unfairly prejudiced by the withdrawal, the motion will be 
required to contain: (1) pertinent contact information for the 
attorney's client(s); (2) a statement explaining why the withdrawal 
will not unfairly prejudice the attorney's client(s); and (3) a 
statement that the attorney has taken appropriate steps to protect the 
interests of the client(s) such as providing reasonable notice, 
allowing adequate time for the employment of another attorney, and 
surrendering files related to the proceeding. Under paragraph (c)(2), a 
motion to withdraw will not be effective until the ALJ rules on the 
motion, which could be conditioned or denied by the ALJ to avoid 
prejudice to the attorney's client(s) and other parties.
Sec.  4.110 Voluntary Withdrawal and Stipulated Dismissal
    It is not uncommon for individual parties to seek a voluntary 
withdrawal and dismissal of a proceeding or for all parties to jointly 
stipulate to a dismissal of a proceeding. This provision explains the 
procedures for requesting a voluntary withdrawal or stipulated 
dismissal and states when a dismissal becomes effective. For a 
voluntary withdrawal, paragraph (a) will require that the party 
initiating the proceeding file and serve a motion to dismiss that 
confirms the party's intention to voluntarily withdraw from the 
proceeding. The voluntary withdrawal will become effective when the ALJ 
issues the order of dismissal. When all parties to a proceeding agree 
and stipulate to the dismissal of a proceeding, paragraph (b) will 
allow the parties to file and serve a joint motion to dismiss that 
becomes effective when the ALJ issues an order dismissing the 
proceeding.
Sec.  4.111 Summary Judgment
    This summary judgment provision codifies DCHD's current practices 
for resolving proceedings when there is no genuine dispute as to any 
material fact. At present, ALJs in DCHD generally allow litigants to 
file motions for summary judgment seeking full or partial relief, and 
the IBLA has long recognized this procedure as an appropriate means of 
resolving issues without a hearing. See, e.g., 06 Livestock Company, 
192 IBLA 323, 33435 (2018); Larson v. BLM (On Reconsideration), 129 
IBLA 250, 252 (1994). Although ALJs are not bound by the FRCP, this 
rule roughly parallels the procedures and standards set forth in FRCP 
56. However, this rule has been tailored for administrative proceedings 
before DCHD and modified to provide additional instructions about 
formatting, deadlines, and content requirements for motions and 
responses.
    Paragraph (a) provides a brief overview of the summary judgment 
process and standards to better serve pro se litigants and others who 
may be less familiar with the process. It also explains an ALJ's 
authority to resolve a proceeding through summary judgment when no 
genuine dispute exists as to any material fact and the movant is 
entitled to a decision as a matter of law. When an ALJ grants a summary 
judgment motion that completely resolves a matter, an evidentiary 
hearing is unnecessary and will not be conducted. See, e.g., Wroten 
Land & Cattle Co., 197 IBLA 13, 29-31 (2021) (grazing case).
    Consistent with IBLA case law, paragraph (b) expressly acknowledges 
that while FRCP 56 does not apply to proceedings before DCHD, 
corresponding provisions in the federal summary judgment rule at FRCP 
56--and Federal case law interpreting FRCP 56--may serve as useful 
guidance in administrative proceedings. See Dannelle and Chad Hensley, 
195 IBLA 345, 354-55 (2020). Thus, litigants and ALJs may continue to 
cite and rely on the extensive body of existing federal case law 
interpreting and analyzing the relevant standards applicable to summary 
judgments so long as that federal law does not conflict with the 
provisions of Sec.  4.111. See, e.g., Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 248-50 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 
322-23 (1986).
    Under paragraph (c), parties will receive explicit instructions 
regarding the formatting and required content for summary judgment 
motions filed before DCHD. This includes compliance with the filing, 
service, and document formatting provisions at Sec. Sec.  4.102 and 
4.103. As explained in paragraph (c)(1), the timing of the summary 
judgment process must comply with any deadlines or scheduling orders 
established by the ALJ. This allows the ALJ to manage the process to 
ensure fair scheduling for all parties while also preventing unexpected 
or last-minute filings that disrupt discovery or hearing preparations. 
Under paragraph (c)(2), standard page limits will apply to summary 
judgment motions unless the ALJ orders otherwise. To aid in the 
efficient and timely resolution of motions, paragraph (c)(4) expressly 
identifies the summary judgment standard, and paragraph (c)(5) lists 
the expected contents of a summary judgment motion.
    Paragraph (d) addresses the requirements for responses, which 
includes compliance with the filing, service, and document formatting 
provisions at Sec. Sec.  4.102 and 4.103. Paragraphs (d)(1), (d)(2), 
and (d)(3) specify the deadlines for filing responses and the 
applicable page limits. This rule also recognizes and authorizes the 
filing of cross-motions for summary judgment. Parties before DCHD 
frequently file cross-motions for summary judgment, and the process has 
proven to be an effective method for resolving proceedings. See 2 
Moore's Manual--Federal Practice and Procedure sec. 17 (noting that 
cross-motions for summary judgment have been recognized by the courts). 
When a party files a cross-motion, paragraph (d)(3) allows the cross-
motion and any response to the original motion for summary judgment to 
be combined into a single document with a single page limitation. 
Paragraph (d)(4) lists the expected contents of a response.
    To avoid lengthy and potentially unnecessary briefing, no replies 
or further briefing will be allowed unless authorized by the ALJ under 
paragraph (e). Declarations and affidavits will be addressed in 
paragraph (f), which is be modeled after FRCP 56(c)(4). Under paragraph 
(g), assertions of fact must be supported by documentary evidence. In 
addition, all attachments, affidavits, declarations, or other 
supporting materials must be directly referenced in the motion or 
response using pinpoint citations that identify the page(s) or 
paragraph number(s) where the supporting text is located. Pinpoint 
citations enable the ALJ to undertake a more efficient review of the 
briefing and materials submitted by the parties.
    Paragraph (h) discusses the key elements of an ALJ's consideration 
of summary judgment motions. Paragraph (h)(1) specifically acknowledge 
an ALJ's authority to direct the parties to confer and agree on 
stipulated facts, which helps to focus the briefing and simplify the 
review process. Paragraph (h)(2) mirrors FRCP 56(c)(3) and explains 
that an ALJ need only consider the materials cited by the parties but 
will allow the ALJ to also consider other materials that are part of 
the record of the proceeding. Paragraph (h)(3) recognizes that an ALJ

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may take official notice of a factual matter in the same manner as a 
Federal district court may take judicial notice. Official notice is 
described in subpart B of 43 CFR part 4 at rule Sec.  4.24(b) 
(describing types of records and matters subject to official notice), 
in the Federal Rules of Evidence (FRE) at Rule 201 (describing the 
procedure for judicial notice), and in the APA at 5 U.S.C. 556(e) 
(stating that ``[w]hen an agency decision rests on official notice of a 
material fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the contrary''). 
Paragraphs (h)(4) and (h)(5) roughly parallel FRCP 56(d) and (e) and 
will address the options available to an ALJ when facts are unavailable 
to a nonmoving party and when a party fails to properly support or 
address a fact.
    Paragraph (i) explains that the ALJ will issue a written order as 
part of the summary judgment process that grants or denies the motion 
for summary judgment in whole or in part. It also states that a summary 
judgment will only be granted if there is no genuine dispute as to any 
material fact and the movant is entitled to judgment as a matter of 
law. See 06 Livestock Company, 192 IBLA at 334; see also FRCP 56(a) 
(Federal summary judgment rule).
Discovery
Sec.  4.112 Discovery Generally
    Although a few existing regulatory schemes applicable to the 
proceedings before DCHD include express procedures for discovery, see, 
e.g., 43 CFR part 4, subpart L (surface coal mining) and 43 CFR part 45 
(hydropower), most regulations offer little guidance regarding the 
scope of discovery in administrative proceedings. Even so, the IBLA has 
recognized the authority of ALJs to authorize discovery and has 
determined that the FRCP supply useful guidance. See United States v. 
Pittsburgh Pac. Co., 68 IBLA 342, 352-53 (1982). The discovery rules 
will generally track the discovery options and procedures available 
under the FRCP, but the discovery procedures will be streamlined and 
tailored for use in administrative proceedings to increase efficiency 
and to better serve pro se litigants.
    Paragraph (a) provides parties with a general overview that defines 
the nature of the discovery process for the benefit of pro se litigants 
and others less familiar with the process. Although the FRCP do not 
apply to administrative proceedings before DCHD, paragraph (b) 
expressly acknowledges that corresponding provisions contained in the 
Federal discovery rules set forth in portions of FRCP 26 through 37--
and Federal case law interpreting FRCP 26 through 37--may serve as 
guidance in administrative proceedings when not in conflict with the 
discovery provisions in subpart C. The general discovery provisions in 
Sec.  4.112 roughly parallel the provisions of FRCP 26(b), (c), and 
(g).
    Paragraph (c) provides a broad description of the scope of 
discovery patterned after FRCP 26(b). Consistent with the standards 
used by Federal courts, parties will be able to obtain discovery of any 
nonprivileged matter that is relevant to the issues in the proceeding 
and proportional to the needs of the case. Relevant information will 
not need to be admissible at hearing if the information sought appears 
reasonably calculated to lead to the discovery of admissible evidence. 
See, e.g., FRCP 26(b)(1).
    Under these discovery provisions, the ALJ will maintain the 
discretion to determine the methods of discovery, the scope of 
discovery, and whether any limitations should apply so that the process 
is fair and equitable to all parties. Discovery needs in administrative 
proceedings before DCHD can vary widely. While some cases may require 
extensive discovery, other may require little or no discovery prior to 
adjudication by motion or at hearing. The discovery process in DCHD's 
rules is structured so that the ALJ can manage the process to ensure 
the timely completion of discovery, to explain any confusing processes 
to pro se litigants, and to avoid problems associated with a purely 
``party-driven'' process that can sometimes result in unnecessary or 
overly broad discovery requests. Under paragraph (d), ALJs will have 
the authority to allow discovery using one or more of the standard 
mechanisms recognized by the FRCP, including: interrogatories (Sec.  
4.113), requests for production (Sec.  4.114), requests for admission 
(Sec.  4.115), and depositions (Sec.  4.116).
    Paragraph (e) will address the requirement that the parties and 
their representatives sign discovery requests, answers, responses, and 
objections. The signature requirement is consistent with the 
requirements imposed by Federal district courts. See, e.g., FRCP 26(g), 
33(b)(5). Paragraph (f) addresses the authority to limit discovery 
either at the discretion of the ALJ or on the motion of a party. See, 
e.g., FRCP 26(b). Paragraph (g) of this section establishes a procedure 
for the issuance of protective orders to protect confidential, 
privileged, or sensitive information so that the information either 
will not be revealed or only disclosed in a specified manner. The 
requirements in paragraph (g) are patterned after FRCP 26(c).
    Finally, in accordance with the general practice before DCHD, 
paragraph (h) will encourage the parties to cooperate in good faith and 
reach agreements, where possible, regarding the discovery process, the 
exchange of information, and the resolution of any disputes.
Sec.  4.113 Interrogatories
    Paragraph (a) allows parties to serve written interrogatories on 
any other party, as authorized by the ALJ. Unless otherwise agreed to 
by the parties or ordered by the ALJ, interrogatories will be limited 
to 20 in number and responses will be due within 28 days of service. 
Written interrogatories serve as an effective discovery tool in 
appropriate proceedings pending before DCHD, and this rule will use 
interrogatories in administrative proceedings in a manner analogous to 
the Federal district courts under FRCP 33 (interrogatories).
Sec.  4.114 Requests for Production
    Paragraph (a) allows parties to propound requests for production as 
authorized by the ALJ. Types of requests for production generally 
include: (1) requests to produce documents, (2) requests to produce 
tangible things, and (3) requests to enter onto designated land or 
property. Paragraph (b) will identify the contents of each request, 
which requires a party to indicate with particularity: (1) the item or 
category of items to be produced, copied, or inspected; (2) a 
reasonable time, place, and manner for any inspection and related acts; 
and (3) the form in which electronically stored information is to be 
produced.
    Paragraph (c) establishes a default response period of 28 days 
unless otherwise agreed by the parties or ordered by the ALJ. Written 
requests for production serve as an effective discovery tool in 
appropriate proceedings pending before DCHD and this rule will use 
requests for production in administrative proceedings in a manner 
analogous to the Federal district courts at FRCP 34 (requests for 
production).
Sec.  4.115 Requests for Admission
    Paragraph (a) allows a party to serve another party with requests 
for admission as authorized by the ALJ. To avoid overly burdensome and 
unnecessary requests, this rule will limit the number of requests for

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admission to 20, unless otherwise authorized by the ALJ. Paragraph (b) 
requires parties to set forth each request separately, and any request 
to admit the authenticity of a document must be accompanied by a copy 
of the document unless the document has otherwise been furnished or 
made available.
    A party must answer or object to each request for admission within 
28 days of service under paragraph (c) unless another deadline is 
agreed to by the parties or ordered by the ALJ. Answers must be signed 
by the person providing the answer, and objections must be signed by 
the party's representative or the party, if unrepresented. Paragraph 
(c) also specifies appropriate types of answers and objections.
    Paragraph (d) will inform parties that a matter is deemed admitted 
unless a written answer or objection is timely served. Paragraph (e) 
will explain that a matter admitted is conclusively established unless 
the ALJ permits the admission to be withdrawn or finds the admission is 
contrary to law. Paragraph (f) makes clear that an admission made under 
this section cannot be used against a party in another proceeding.
    This process tends to be used less frequently in proceedings before 
DCHD but may serve as an effective discovery tool in appropriate 
proceedings in the same manner as requests for admission under FRCP 36 
(requests for admission).
Sec.  4.116 Depositions
    This section sets forth the procedures for scheduling and taking 
depositions by oral examination. Except for a few regulations 
applicable to specific types of proceedings before DCHD, see, e.g., 43 
CFR 4.1138 (surface mining) and 43 CFR 45.44 (hydropower), no generally 
applicable regulation currently exists that describes the deposition 
process. This rule will fill that gap by establishing consistent, 
uniform deposition procedures for administrative proceedings before 
DCHD.
    In most cases, DCHD's ALJs currently exercise their inherent 
authority to allow discovery and rely on the FRCP as guidance. See 
United States v. Pittsburgh Pac. Co., 68 IBLA 342, 349-53 (1982); see 
also 5 U.S.C. 556(c)(4) (providing ALJs with the authority to take 
depositions or have depositions taken ``when the ends of justice would 
be served''). The contours of this authority vary, however, depending 
upon whether the written discovery request or deposition request is 
directed at a party or a nonparty. Like Federal district court judges, 
an ALJ may compel a party to provide written discovery responses and 
deposition testimony without the necessity for a subpoena. However, the 
deposition of a nonparty can only be compelled by subpoena, which may 
be subject to limitations. The different processes applicable to 
discovery directed at a party versus a nonparty is reflected in 
practice under the FRCP. See 14 Bender's Forms of Discovery Treatise 
sec. 10.03[2][a]-[b] (2021) (explaining that a subpoena is only 
required for nonparties under FRCP 45).
    Under paragraph (a), a party will be allowed to take the deposition 
of any person by oral examination when authorized by the ALJ. Parties 
will be encouraged to schedule and conduct depositions by agreement 
whenever possible. If a party seeks to take the deposition of a 
nonparty, and that deposition cannot be scheduled by agreement, then 
the requesting party will be required to apply for the issuance of a 
subpoena under the procedures set forth at Sec.  4.120.
    Paragraphs (b) through (d) of this section establish the 
requirements for noticing depositions as well as the procedures for 
conducting depositions before an officer authorized to administer 
oaths. These procedures will generally follow the deposition procedures 
used in Federal district courts but have been tailored and streamlined 
to meet the needs of administrative proceedings before DCHD. See, e.g., 
FRCP 28 (persons before whom depositions may be taken), 30 (oral 
depositions). Paragraph (b) lists the contents of a deposition notice. 
Paragraph (c) explains the requirements associated with a deposition 
notice directed to an organization, business entity, government agency, 
or other entity, which will be modeled after FRCP 30(b)(6). Paragraph 
(d) details the procedures associated with the deposition, including: 
(1) administering oaths; (2) the noticing party's responsibility to 
arrange for deposition facilities and pay the costs of transcription; 
(3) the ability to conduct cross-examination; (4) the requirement to 
mark documents and tangible evidence; and (5) the requirement to 
transcribe the oral examination and prepare a certified transcript.
    These rules will not contain procedures for depositions on written 
questions, because that process is rarely used and unlikely to be used 
in the future given the advances in technology that allow depositions 
to be conducted remotely using video technology. But see FRCP 31 
(depositions by written questions). This rule does specifically address 
preservation depositions, however, because litigants before DCHD 
request permission to conduct preservation depositions with more 
frequency. Procedures for preservation depositions will be set forth in 
paragraph (e). Parties will be required to request permission to 
conduct a preservation deposition by filing a written motion or by 
making an oral request during a prehearing conference. The requesting 
party must show either: (1) that the witness will be unable to attend 
the deposition because of age, illness, or other incapacity; or (2) 
that the witness is unlikely to attend the hearing and the party will 
be unable to compel the attendance of the witness by subpoena. These 
procedures for preservation depositions roughly mirror 43 CFR 4.1033(b) 
(Tribal acknowledgement procedures).
Sec.  4.117 Supplementation or Correction
    This section will provide for the supplementation of discovery 
responses in a manner consistent with the requirements used in Federal 
district courts under FRCP 26(e). Paragraph (a) will substantially 
incorporate the supplementation requirement contained in the Federal 
discovery rules at FRCP 26(e)(1)(a) when a party learns that the answer 
or response previously provided is materially incomplete or incorrect. 
Paragraph (b) will also notify parties that the ALJ may issue an order 
at any time directing the supplementation of an answer or response.
Sec.  4.118 Motion To Compel
    This rule allows a party to request an order compelling discovery 
and will set forth the processes and procedures for making that 
request. The procedures in this section roughly track FRCP 37(a). Under 
paragraph (a), a party will be required to file a motion requesting an 
order to compel that includes: (1) a copy of the discovery request; (2) 
a copy or description of the response or objection; (3) a concise 
statement of the facts and law supporting the motion; and (4) a 
statement that the moving party has, prior to filing the motion, in 
good faith conferred or attempted to confer with the person, entity, or 
representative failing to make a disclosure or allow discovery.
    Paragraph (b) authorizes responses to be filed within 14 days and 
will also require a concise statement of the facts and law supporting 
the response. Under paragraph (c), the ALJ may issue an order granting 
or denying a motion to compel, in whole or in part, and may issue any 
other appropriate order, including a protective order or an order 
imposing curative measures. Curative measures encompass a variety of 
actions, including but not limited to, orders extending the discovery 
period,

[[Page 2351]]

authorizing additional discovery, or directing a party to make an 
additional search of its records.
Sec.  4.119 Sanctions for Failure To Comply With a Discovery Order
    This rule describes the procedures and types of sanctions an ALJ 
may impose for a failure to comply with a discovery order. As 
recognized by the IBLA, an ALJ's authority to sanction a party for 
failing to obey an order compelling discovery may be guided by FRCP 
37(b)(2)(A)-(C). See United States v. Pittsburgh Pac. Co., 68 IBLA at 
353.
    Paragraph (a) will explain that a party failing to comply with an 
ALJ order compelling discovery may be subject to appropriate sanctions. 
The requirement for notice and an opportunity to respond prior to the 
imposition of sanctions will be discussed in paragraph (b). Consistent 
with FRCP 37(b), paragraph (c) will list the potential range of 
sanctions for the violation of a discovery order based on the relevant 
circumstances and the nature of the violation. The list of sanctions 
has been tailored to administrative proceedings and does not include 
sanctions more appropriately exercised by Federal district court 
judges.
Other Procedures
Sec.  4.120 Subpoenas
    This subpoena section will establish uniform procedures for 
requesting and issuing subpoenas in DCHD proceedings. Under the APA, 
ALJs may ``issue subpoenas authorized by law.'' 5 U.S.C. 556(c)(2); see 
also 5 U.S.C. 555(d). Currently, various statutes and regulations 
applicable to proceedings before DCHD contain different authority, 
standards, and procedures for the issuance of subpoenas. This provision 
will establish standardized procedures for the issuance of subpoenas to 
the extent authorized by law. As a matter of general practice, parties 
to administrative proceedings, and their employees, generally 
understand their legal obligation to appear and testify at DCHD 
hearings without the need for a subpoena. In addition, discovery 
directed at a party to the proceeding falls within the purview of the 
discovery provisions and does not require the issuance of a subpoena. 
See 14 Bender's Forms of Discovery Treatise sec. 10.03[2][a]-[b] (2021) 
(explaining that a subpoena is only required for nonparties under FRCP 
45). Consequently, hearing subpoenas, depositions subpoenas, and 
subpoenas for document production (subpoenas duces tecum) will 
generally only be required to compel testimony and document production 
by nonparties.
    Paragraph (a) describes the purpose of this subpoena section for 
those less familiar with the process. Unlike FRCP 45, subpoenas will 
not be issued by parties or their attorneys under this section. 
Instead, any party seeking to obtain a subpoena will be required to 
file a written application with the ALJ under paragraph (b) that 
demonstrates the requested subpoena is reasonable in scope and relevant 
to the proceeding. The ALJ will then be responsible for reviewing the 
applicable legal authority and determining whether to issue the 
requested subpoena in accordance with paragraph (c).
    Under paragraph (c), if the ALJ determines that it would be 
appropriate to issue a subpoena, it would be issued on a form that 
contains the caption for the proceeding along with the name and address 
of the person or entity being subpoenaed. If the subpoena orders a 
person to testify at a hearing or deposition, then the subpoena would 
also contain the specified date, time, and place. If the subpoena 
requires testimony using video, teleconference, or other technology, 
the information necessary to testify remotely will also be included in 
the subpoena. If the subpoena requires the production of documents, the 
production date and method of production will be included in the 
subpoena.
    A party will be required to serve the subpoena in person or by 
certified or registered mail as set forth in paragraph (d). The 
existing regulation at 43 CFR 4.26(a) only authorizes personal service, 
so this will expand the methods of service. Under paragraph (e), the 
person serving the subpoena will be required to prepare a certificate 
of service swearing or affirming that the subpoena was properly served 
in the manner specified.
    Under paragraph (f), a witness who is not a party will be entitled 
to witness fees and mileage fees equivalent to that paid to witnesses 
in Federal district court under 28 U.S.C. 1821. Consistent with 43 CFR 
4.26 and FRCP 45(c), a witness who is not a party may not be compelled 
to travel to attend a hearing or deposition at place more than 100 
miles from where the person resides, is employed, or regularly 
transacts business unless another geographic limit applies by statute 
to the proceeding. No geographic limit will apply to testimony 
conducted using video, teleconference, or other suitable technology 
that allows a person to testify remotely.
    Recipients of a subpoena may file a motion to quash or modify the 
subpoena within 10 days of service under paragraph (h). Filing a motion 
to quash or modify the subpoena will stay the effect of the subpoena 
pending the ALJ's decision. Enforcement for the failure to comply with 
a subpoena occurs in Federal court. See 5 U.S.C. 555(d). According to 
the APA, an agency's subpoena may be sustained ``to the extent that it 
is found to be in accordance with law,'' and ``the court shall issue an 
order requiring the appearance of the witness or the production of the 
evidence or data within a reasonable time under penalty of punishment 
for contempt in case of contumacious failure to comply.'' Id. Paragraph 
(i) will alert parties and practitioners to the necessity for judicial 
enforcement.
Sec.  4.121 Sanctions
    Under the APA, the ALJ is vested with the general authority to 
regulate the course of the proceeding. 5 U.S.C. 556(c)(5). At present, 
only a few regulations expressly discuss the authority to impose 
sanctions. See, e.g., 43 CFR 4.27 (ex parte communication provision); 
43 CFR 4.1156 (surface mining civil penalty provision). This rule will 
establish a procedure for imposing appropriate sanction, so ALJs will 
have the ability to enforce their own rulings and orders, while also 
encouraging compliance with regulatory procedures governing the 
proceeding. This section provides consistent, well-defined procedures 
for ALJs to use when imposing sanctions so parties will better 
understand their responsibilities and the potential consequences of 
failing to comply with an ALJ order, violating a regulatory provision 
in this subpart, or engaging in other prejudicial conduct.
    As acknowledged by the IBLA, ``an ALJ can and indeed must regulate 
the course of a hearing and appropriately impose necessary sanctions,'' 
so long as parties receive notice of the possible range of sanctions 
either as part of a regulatory provision or ALJ order. See Burke 
Ranches, Inc. v. Bureau of Land Management (BLM), 173 IBLA 45, 4748 
(2007). Paragraph (a) will explicitly authorize an ALJ to impose 
appropriate sanctions for noncompliance with an ALJ order, violation of 
the regulations in this subpart, a failure to prosecute or defend in a 
timely manner, or other misconduct that prejudices another party or 
interferes with the efficient, orderly, and fair conduct of the 
proceeding. The requirement to provide notice and an opportunity to 
respond before imposing sanctions will be contained in paragraph (b). 
And paragraph (c) will list the nature and types of sanctions available 
depending

[[Page 2352]]

on the circumstances and the nature of the violation.
Sec.  4.122 Interlocutory Appeal
    The interlocutory appeal provision will better describe the process 
for obtaining permission to file an interlocutory appeal and builds on 
the general rule contained in subpart B at 43 CFR 4.28. As noted by the 
IBLA, ``interlocutory appeals are generally viewed with disfavor.'' 
Yates Petroleum, 136 IBLA 249, 250 (1996). There are three key reasons. 
First, when proceedings are stayed during an interlocutory appeal, an 
interlocutory appeal may delay the proceedings rather than advance 
decision making. Second, appeals of non-final orders tend to disrupt 
case processing and docket management at the Appeals Board, which must 
put aside older appeals to expedite an interlocutory appeal. And third, 
frequent intervention in ongoing proceedings disrupts an ALJ's proper 
administration of the proceeding and may lead to increased requests for 
interlocutory appeals. Consequently, parties seeking to obtain review 
of a non-final ALJ order before the conclusion of the proceeding will 
be required to obtain permission through the two-step process described 
in this section.
    For parties unfamiliar with the interlocutory appeal process, 
paragraph (a) provides a brief overview. The two-step process 
applicable to interlocutory appeals is described in paragraph (b). 
First, the party will be required to file an application with the ALJ 
to certify the order, in whole or in part, for interlocutory appeal. 
Second, the party will be required to obtain permission from the 
Appeals Board to file an interlocutory appeal.
    At present, the general interlocutory appeal rule in subpart B, 43 
CFR 4.28, does not provide a specific standard for ALJs to use when 
determining whether to certify an order for interlocutory review, so 
the IBLA has held that ALJs should be limited to the same standard 
applicable to the Appeals Board. Western Watersheds Project v. BLM, 164 
IBLA 300, 303-04 (2005). As part of this interim final rule, DCHD will 
adopt a standard equivalent to that used by the Federal courts at 28 
U.S.C. 1292. Under paragraph (c), an ALJ will be authorized to certify 
an order if: (1) the order involves a controlling question of law about 
which there are substantial grounds for difference of opinion; and (2) 
an immediate appeal will materially advance the completion of the 
proceeding.
    Paragraph (d) will require a party to file an application 
requesting certification by the ALJ within 14 days of the ALJ's order 
and will specify the contents of the application. Any response by a 
party opposing the application for certification must be filed within 
14 days of the filing of the application under paragraph (e). The ALJ 
will then reach a decision on certification based on the application 
and response as specified under paragraph (f).
    A party will have 14 days after the ALJ's ruling on the application 
for certification to petition the Appeals Board for permission to file 
an interlocutory appeal under paragraph (g). The contents of the 
petition will be set forth in paragraphs (g)(1) through (g)(4). The 
Appeals Board may then grant or deny permission in accordance with 
Sec.  4.28 (for the IBIA or the Ad Hoc Board) or Sec.  4.414 (for the 
IBLA).
    As explained in paragraph (i), neither the certification nor the 
interlocutory appeal will operate to suspend the proceeding, unless so 
ordered by the ALJ or the Appeals Board.
Sec.  4.123 Alternative Dispute Resolution
    Alternative dispute resolution (ADR) refers to the various 
processes and techniques used for resolving disputes without litigation 
or a hearing. DCHD offers ADR procedures consistent with the 
Administrative Dispute Resolution Act, 5 U.S.C. 571-84. Parties are 
encouraged to consider ADR as an option for dispute resolution in 
proceedings before DCHD, because ADR affords parties the opportunity to 
engage in collaborative problem solving, which could avoid the time and 
expense associated with adjudication.
    Paragraph (a) describes the purpose of ADR in administrative 
proceedings. Paragraph (b) will explain that ADR is a voluntary process 
and parties cannot be forced to agree to a resolution by participating 
in ADR. If ADR is unsuccessful in reaching an agreement, the proceeding 
will be adjudicated by the ALJ. In accordance with paragraph (c), 
parties will be able to file a request to use ADR at any time during 
the proceeding. The ALJ will also have the option of notifying the 
parties that the matter has been identified as a candidate for ADR. 
Often, the ALJ discusses ADR options during a prehearing conference if 
the pending matter appears appropriate for resolution without a 
hearing. DCHD currently has an ADR program that emphasizes mediation, 
and written procedures describing that process can be made available to 
the parties on request.
Hearing Process and Procedure
Sec.  4.124 Hearing Scheduling
    Hearings before DCHD are generally scheduled by the ALJ in 
coordination with the parties. Paragraph (a) codifies this practice and 
identifies relevant considerations for scheduling, including applicable 
statutory requirements, the convenience of the parties and witnesses, 
the availability of suitable hearing space, and the need for any 
special accommodations.
    During the COVID-19 pandemic, DCHD also developed a process for 
conducting hearings using remote video technology. In doing so, DCHD 
considered the procedures of other Federal agencies using video 
technology. See, e.g., Lederer, Report for ACUS: Analysis of 
Administrative Agency Adjudicatory Hearing Use of Remote Appearances 
and Virtual Hearings (June 3, 2021); Admin. Conf. of the U.S., 
Recommendation 2021-4, Virtual Hearings in Agency Adjudication (86 FR 
36075; July 8, 2021). While DCHD expects to conduct in-person hearings 
going forward, DCHD also anticipates that hearings will continue to be 
conducted using video technology, in whole or in part, as warranted by 
the individual circumstances of each case.
    Paragraph (b) will expressly authorize the use of video, 
teleconference, and other suitable technology for hearings. Given that 
technology can change rapidly over time, this provision does not 
attempt to identify the precise technology that will be used for 
conducting the hearing. Instead, paragraph (c) explains that parties 
will receive advance written notice of the hearing location and dates, 
and to the extent that a hearing will be conducted, in whole or in 
part, using video, teleconference, or other suitable technology, the 
parties will also be provided with instructions and guidance for 
participating in the hearing using those technologies.
Sec.  4.125 Hearing Postponements
    Hearing postponements are generally disfavored. Once a hearing has 
been scheduled, the parties and the ALJ will have begun preparing for 
the hearing by arranging for the attendance of witnesses and securing 
the services of a reporter to transcribe the proceeding. Consequently, 
paragraph (a) requires a party requesting a postponement to show good 
cause and reasonable diligence in preparing for the hearing. This 
standard mirrors the existing requirement for postponements found at 43 
CFR 4.432 (hearings involving

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questions of fact) and 43 CFR 4.452-3 (contest proceedings).
    Paragraph (b) will generally require a motion for postponement be 
filed at least 21 days before the hearing, absent compelling 
circumstances. Parties will also be put on notice that ALJs generally 
will not grant a postponement request made less than 10 days in advance 
of the hearing date, unless all parties agree to postpone the hearing, 
or the requesting party demonstrates that an emergency occurred that 
could not be anticipated. ALJs are generally more receptive to 
postponement requests when all parties agree to the delay or when the 
parties have committed to engage in settlement discussions that could 
resolve the matter without the need for a hearing.
    Paragraph (c) describes the contents of any motion as well as the 
requirement to contact the other parties to ascertain their willingness 
to agree to a postponement. DCHD's ALJs generally disfavor repeated 
requests for postponement made by the same party and will require a 
showing of compelling circumstances under paragraph (d) to avoid 
prejudice to other parties and to ensure that the interests of justice 
are met.
Sec.  4.126 Hearing Procedures Generally
    As provided in the APA at 5 U.S.C. 556(d): ``A party is entitled to 
present his case or defense by oral or documentary evidence, to submit 
rebuttal evidence, and to conduct such cross-examination as may be 
required for a full and true disclosure of the facts.'' Paragraph (a) 
provides a broad overview of the hearing procedures applicable to 
administrative proceedings before DCHD consistent with the language of 
the APA. It also emphasizes the presentation of evidence, preparation 
of a verbatim transcript under Sec.  4.128, and the use of the hearing 
record to inform the ALJ's decision. See also 5 U.S.C. 556(e) 
(describing hearing record).
    Paragraph (b) sets forth the authority of the ALJ to conduct 
hearings in an orderly and judicial manner. See, e.g., 43 CFR 4.474(a) 
(grazing). As the administrative trial court for the Department of the 
Interior, ALJs use similar procedures to those used in Federal district 
courts to conduct civil trials. The broad powers of ALJs have been 
summarized in the APA at 5 U.S.C. 556(c) and include the authority to 
``regulate the course of the hearing.'' At present, a variety of 
regulatory provisions list the authority and powers of ALJs applicable 
to specific types of proceedings. See, e.g., 43 CFR 4.433 (hearings 
involving questions of fact), 43 CFR 4.474 (grazing), 43 CFR 4.1121 
(surface mining), 43 CFR 45.31 (hydropower). Paragraph (b) will 
establish a uniform description of the authority and powers of the ALJ 
when conducting hearings. This authority will include the power to: 
subpoena witnesses, administer oaths, call and examine witnesses, 
provide for the sequestration of witnesses, rule on the admission of 
evidence, take official notice of a factual matter, issue protective 
orders, recess or continue a hearing, rule on motions, direct the 
filing of written briefs, and impose sanctions.
    Paragraph (c) will address the order and presentation of witnesses 
and evidence at hearing. The ALJ determines the order of presentation 
based on the applicable legal standards as well as considerations of 
fairness and judicial efficiency. Applicable legal standards may 
include the burden of proof. Fairness and judicial efficiency 
considerations may include agreements made by the parties and witness 
availability. Each party will remain responsible for presenting its 
case and defenses to ensure the adequacy of the hearing record, subject 
to any limitations imposed by law, regulation, or order.
    In accordance with paragraph (d), the ALJ will prescribe the 
format, timing, and content of any post-hearing briefs either at the 
conclusion of the hearing or in a subsequent written order. Once a 
hearing concludes, no additional evidence will be received unless the 
ALJ finds good cause to reopen a hearing under paragraph (e). Under 
paragraph (f), an ALJ will be able to find that a party waived its 
right to a hearing if the party failed to appear at the hearing without 
good cause.
Sec.  4.127 Evidence
    As explained in the APA at 5 U.S.C. 556(c)(3), the ALJ has the 
authority to ``rule on offers of proof and receive relevant evidence.'' 
In addition, ``[a]ny oral or documentary evidence may be received, but 
the agency as a matter of policy shall provide for the exclusion of 
irrelevant, immaterial, or unduly repetitious evidence.'' See 5 U.S.C. 
556(d). Paragraph (a) expressly recognizes the ALJ's authority to admit 
or exclude evidence. The Federal Rules of Evidence (FRE), while not 
directly applicable to administrative hearings conducted under subpart 
C, would be available for use by the ALJ as guidance.
    Paragraph (b) will specify that oral testimony must be under oath 
or affirmation. It will also explain that witnesses are subject to 
cross-examination, see 5 U.S.C. 556(d), and may be questioned at 
hearing by the ALJ. Paragraph (c) will explain that objections to the 
admission of evidence during hearing must be made on the record, and if 
the ALJ sustains an objection to the admission of evidence, the 
affected party will be able to preserve the issue by making an offer of 
proof.
    Parties are encouraged to stipulate to relevant factual matters, 
whenever possible, to streamline the hearing under paragraph (d). As 
explained in paragraph (d), stipulations will be binding on the parties 
with respect to the matters stipulated. Oral stipulations will be made 
on the record at hearing and written stipulations will be received into 
evidence as exhibits.
    Paragraph (e) sets forth the requirements for using depositions at 
hearing and will be roughly modeled after 43 CFR 45.53 (hydropower). 
This paragraph will inform parties that depositions do not become part 
of the hearing record unless received into evidence, in whole or in 
part, as an exhibit by the ALJ. The requirements for using a deposition 
will be explained in paragraph (e)(1). Paragraph (e)(2) explains when 
an ALJ will exclude a question and response from evidence. For purposes 
of ensuring completeness, paragraph (e)(3) will permit another party to 
request the inclusion of additional portions of a deposition based on 
considerations of fairness. Paragraph (e)(4) will address the process 
for admitting both written and video depositions.
Sec.  4.128 Transcripts and Reporting
    In accordance with DCHD's historic practice, hearings conducted 
under subpart C will be transcribed verbatim. The procedures for 
obtaining a transcript and paying the associated fees will be set forth 
in paragraph (a). At present, some regulations applicable to specific 
types of proceedings within DCHD's jurisdiction provide for the payment 
of reporting costs by the bureau or office. See, e.g., 43 CFR 4.476(d) 
(grazing), 43 CFR 4.452-7(a) (Government mining contest), 43 CFR 4.436 
(hearings involving fact finding). Other regulatory provisions are 
silent on the allocation of costs. Paragraph (a) will establish a 
standardized procedure for allocating costs when hearings are conducted 
before DCHD. Allocating these costs to the bureau or office involved in 
the proceeding will serve the adjudicatory function of those programs 
and will address DCHD's limited budget to cover such costs.
    Paragraph (b) will explain that the official transcript, along with 
any exhibits, must be duly certified by the

[[Page 2354]]

reporter and submitted to the ALJ for filing. Any corrections to the 
transcript must be made in accordance with the procedures in paragraph 
(c).
Sec.  4.129 Decision
    As explained in paragraph (a), an ALJ will issue a written decision 
following hearing, unless a statute or regulation allows for the 
issuance of an oral decision. See, e.g., 43 CFR 4.1187(e) (surfacing 
mining). Paragraph (b) recognizes that decisions issued by the ALJ are 
final for the Department unless a notice of appeal, petition for 
review, or petition for reconsideration is filed or the applicable 
statute, regulation, or order of referral requires the ALJ to issue: 
(1) proposed findings of fact on issues presented at hearing; or (2) a 
recommended decision that includes findings of fact and conclusions of 
law. See, e.g., 43 CFR 4.338(a) (referral from the IBIA); 43 CFR 
4.409(g) (referral from the IBLA).
Reconsideration, Appeal, and Review
Sec.  4.130 Reconsideration
    At present, DCHD does not have a general regulation governing 
reconsideration, and the lack of a regulatory standard and procedure 
has created uncertainty. See Idaho Cattle Ass'n, 190 IBLA 99 (2017), 
reconsideration denied, 195 IBLA 283 (2020). This section will create a 
reconsideration rule for DCHD and will provide for the expedited review 
of petitions for reconsideration before the expiration of the normal 
30-day appeal period.
    To ensure a quick review, paragraph (a) requires that a petition 
for reconsideration from a dispositive order or decision be filed 
within 14 days after issuance of the order or decision. DCHD will adopt 
an ``extraordinary circumstances'' standard in paragraph (b) that 
generally mirrors the IBLA's regulatory approach as well as the 
standards used by Federal courts when reviewing motions to amend or 
alter a judgment under FRCP 59(e). See, e.g., Kona Enters. v. Estate of 
Bishop, 229 F.3d 877, 890 (9th Cir. 2000); Mouzon v. Radiancy, Inc., 
309 FRD. 60, 63 (D.D.C. 2015); Firestone v. Firestone, 76 F.3d 1205, 
1208 (D.C. Cir. 1996) (per curiam).
    Because strict deadlines exist for filing appeals and requesting 
review, paragraph (c) will not allow responses to petitions for 
reconsideration unless authorized by the ALJ. Paragraph (d) will 
require the ALJ to expeditiously review the petition for 
reconsideration within 10 days of filing and determine whether to 
accept the petition for reconsideration for further analysis. If the 
ALJ fails to act on the petition for reconsideration within 10 days, 
then the petition for reconsideration will be deemed denied.
    As explained in paragraph (e), filing a petition for 
reconsideration will not stay the effectiveness of the dispositive 
order or decision unless the ALJ accepts the petition for 
reconsideration for further analysis. However, if the ALJ accepts the 
petition for reconsideration for further analysis, the effectiveness of 
the dispositive order or decision will be automatically stayed, and all 
applicable deadlines will be tolled until the ALJ issues a decision on 
reconsideration.
    As explained in paragraph (f), a decision on reconsideration issued 
by the ALJ will be final for purposes of appeal and review. A notice 
issued by the ALJ declining to accept the petition for reconsideration 
for further analysis or a failure by the ALJ to act on the petition 
within 10 days will not be subject to appeal or review. If a party 
files a notice of appeal or requests review of the dispositive order or 
decision before the ALJ resolves the petition for reconsideration, the 
ALJ will no longer have jurisdiction, and the matter will be forwarded 
to the appropriate appellate or reviewing authority.
    Paragraph (g) makes clear that a party will not be required to file 
a petition for reconsideration to exhaust administrative remedies.
Sec.  4.131 Appeal and Review
    Given the wide range of different matters subject to DCHD's 
jurisdiction, the process for appealing or seeking review is governed 
by the statutory or regulatory provisions applicable to the specific 
type of proceeding involved. This section will advise parties to review 
and follow the requirements set forth in the pertinent statutes and 
regulations that govern their proceeding.
Specific Rules Applicable to Certain Types of Proceedings Before the 
Departmental Cases Hearings Division
    The rules applicable to certain types of proceedings before DCHD 
are divided into three broad categories: (1) Specific Rules Applicable 
to Referrals for Fact-Finding Hearings; (2) Specific Rules Applicable 
to Contest Proceedings; and (3) Specific Rules Applicable to Grazing 
Proceedings (Inside and Outside of Grazing Districts).
Specific Rules Applicable to Referrals for Fact-Finding Hearings
Sec.  4.150 Procedures for Hearing Referrals
    At present, the procedures for adjudicating matters referred to an 
ALJ for factfinding are set forth in the existing regulations at 43 CFR 
4.430-4.438. As part of this regulatory update, DCHD will relocate the 
provisions governing fact-finding hearings from subpart E to subpart C. 
DCHD will also modify and revise the existing provisions governing 
fact-finding hearings to specifically incorporate and apply the General 
Procedural Rules for Practice before DCHD as set forth in subpart C at 
Sec. Sec.  4.100 through 4.131.
    Paragraph (a) provides a general overview and explains that a 
proceeding may be referred to an ALJ for an evidentiary hearing by an 
Appeals Board or other Departmental entity when it appears that 
specific issues of material fact require a hearing for resolution. 
While referrals typically originate from one of the Appeals Boards, 
other Departmental entities, including the Secretary and the Director 
of OHA, may also make referrals.
    Under paragraph (b), DCHD will specifically adopt and apply the 
General Procedural Rules for Practice before DCHD in addition to the 
rules set forth at Sec. Sec.  4.150 through 4.151. By incorporating and 
applying the General Procedural Rules for Practice before DCHD, it will 
no longer be necessary to include separate provisions related to 
prehearing conferences, hearing notices, postponements, evidence, 
hearing conduct, court reporting, and transcription, such as those 
contained in the existing regulations at 43 CFR 4.430-4.437. Therefore, 
the existing provisions will be removed as part of this regulatory 
update and fact-finding hearings will be governed by the more 
comprehensive General Procedural Rules for Practice before DCHD 
contained in subpart C.
    Paragraph (c) will specifically acknowledge the ALJ's authority to 
conduct the proceedings and any hearing involving questions of fact in 
an orderly and judicial manner, subject to any limitations prescribed 
in the referral. Typical limitations contained in a referral could 
include a deadline for completing the hearing or a restriction on the 
scope of the issues to be adjudicated. Unless otherwise directed by the 
referring entity, however, paragraph (d) will authorize the ALJ to 
``consider other relevant issues or evidence identified after referral 
of the matter to DCHD.'' This provision in paragraph (d) reflects 
current practice

[[Page 2355]]

and is consistent with the IBLA's rule at Sec.  4.409(g)(4).
Sec.  4.151 Resolution of Hearing Referrals
    Currently, 43 CFR 4.438 describes the types of action to be taken 
by an ALJ upon completion of a fact-finding hearing. This section will 
roughly mirror the existing regulatory provision and will also comply 
with the requirements of the IBLA's rule at Sec.  4.409(g)(3). Subject 
to the instructions contained in the referral, the ALJ will be required 
to issue one of the following at the conclusion of the proceeding: (1) 
proposed findings of fact on the issues presented at hearing; (2) a 
recommended decision that includes findings of fact and conclusions of 
law; or (3) a decision that will be final for the Department unless a 
notice of appeal is filed.
    If an ALJ issues proposed findings of fact or a recommended 
decision, then paragraph (b) will require the ALJ to transmit the 
entire record of the proceeding to the entity making the referral. 
Under paragraph (c), parties will have 30 days from service of any 
proposed findings of fact or a recommended decision to file exceptions 
or comments with the entity making the referral. If the ALJ issues a 
final decision that may be appealed to an Appeals Board or other 
Departmental entity, then paragraph (d) will require the ALJ to advise 
the parties of their appeal rights at the conclusion of the decision.
Specific Rules Applicable to Contest Proceedings
    The rules governing contest proceedings are currently codified at 
43 CFR 4.450-4.452-9 in subpart E. As part of this interim final 
rulemaking, DCHD proposes that the contest proceeding provisions be 
relocated to subpart C and renumbered as Sec. Sec.  4.160 through 
4.169. For the most part, the rules governing private and Government 
contest will not be substantively modified, except that the General 
Procedural Rules for Practice before DCHD contained in subpart C will 
be substituted for the existing provisions governing the hearing 
process. Most changes will be directed at fixing cross-references, 
adopting gender-neutral terminology, using plain language, combining 
similar topics, and making formatting more consistent with other 
provisions in subpart C.
Sec.  4.160 Private Contests; Initiation of a Private Contest
    This section will carry forward the text from the existing 
regulation at 43 CFR 4.450-1 with minor modifications, including a 
reference to the ``person or entity'' and a cross-reference to indicate 
that the proceedings will be governed by the regulations at Sec. Sec.  
4.160 through 4.169 of this subpart.
Sec.  4.161 Private Contests; Protests
    This section will carry forward the text from the existing 
regulation at 43 CFR 4.450-2 with minor modifications, including a 
reference to the ``person or entity'' and other edits to modernize the 
language.
Sec.  4.162 Private Contests; Complaint
    This section will combine the text from the existing regulations at 
43 CFR 4.450-3 and 4.450-4 into one section and will renumber the 
paragraphs accordingly. Additional minor edits will be made to 
modernize the language and to include a cross-reference to the OHA 
Standing Orders on Contact Information in paragraph (b)(8). In 
addition, paragraph (e) will be updated to increase the filing fee to 
$20 and the deposit towards the reporter's fee to $200.
Sec.  4.163 Private Contests; Service
    This section will carry forward the text from the existing 
regulation at 43 CFR 4.450-5 with some modifications. The modifications 
will include changes to formatting, cross-references to subpart C, and 
modernization of the regulatory language.
    Paragraph (a) will include the information currently contained in 
the first unnumbered paragraph of the existing regulation at 43 CFR 
4.450-5 as well as the 30-day service deadline contained in the 
existing regulation at 43 CFR 4.450-3. To update the service 
provisions, the existing cross references to 43 CFR 4.422 will be 
removed and replaced with a cross-reference to the service provisions 
in subpart C set forth at Sec.  4.102, except that non-electronic 
service will still be allowed by personal delivery, registered mail, or 
certified mail. The paragraph will also be modified to modernize the 
language related to service on minors and persons adjudged legally 
incompetent.
    Paragraph (b) will include the information contained in paragraph 
(a) of the existing regulation at 43 CFR 4.450-5 but will make 
modifications to correct the cross-references and to replace 
``manager'' with the ``BLM State Office.''
    Paragraph (c) will address service by publication and will include 
the information contained in paragraphs (b)(1) and (b)(2) of the 
existing regulation at 43 CFR 4.450-5 with modifications to modernize 
the language and to replace ``manager'' with the ``BLM State Office.'' 
Paragraph (d) will address publication, mailing, and posting of notice 
and will include the information contained in paragraph (b)(3) of the 
existing regulation at 43 CFR 4.450-5 with modifications to modernize 
the language and to specifically reference the ``BLM State Office.'' 
Given recent trends that have reduced the availability of newspapers of 
general circulation, DCHD is seeking comments on the possibility of 
``publishing'' notice on the website of the BLM State Office when a 
newspaper of general circulation is not available or the possibility of 
providing notice through other means.
    Proof of service will be discussed in paragraph (e) and will carry 
forward the information contained in the existing regulation at 43 CFR 
4.450-5 with modifications to modernize the language and to 
specifically reference the ``BLM State Office.''
Sec.  4.164 Private Contests; Answer to Complaint
    The rule will combine the existing regulations at 43 CFR 4.450-6 
and 43 CFR 4.450-7 into one section and will modify the formatting to 
be consistent with this regulatory update.
Sec.  4.165 Government Contests; Initiation of Government Contest
    The rule will carry forward the text from the existing regulation 
at 43 CFR 4.451-1 without modification.
Sec.  4.166 Government Contests; Complaint and Service
    The rule will carry forward the text from the existing regulation 
at 43 CFR 4.451-2 with some modifications. The modifications will 
include changes to formatting, adjustments to the paragraph numbering, 
updates to the cross-references, and modernization of the regulatory 
language.
    This section will be organized into two paragraphs. Paragraph (a) 
will explain that Government contest proceedings will be governed by 
the rules relating to private contests, subject to the listed 
exceptions. Paragraph (b) will contain the exceptions specifically 
related to service.
Sec.  4.167 Government Contest; Answer to Complaint
    This new section will mirror the procedures applicable to private 
contest proceedings. The inclusion of an answer provision will ensure 
that contestees understand their obligation to file an answer to the 
complaint in a Government contest proceeding. This section will 
replicate the provisions of Sec.  4.160-5 but will include specific

[[Page 2356]]

references to the Government contest complaint.
Sec.  4.168 Proceedings Before Administrative Law Judge
    DCHD will modify and revise the existing provisions governing 
proceedings before the ALJ to specifically incorporate and apply the 
General Procedural Rules for Practice before DCHD as provided in this 
subpart at Sec. Sec.  4.100 through 4.131. At present, the regulatory 
provisions governing proceedings before the ALJ are set forth at 43 CFR 
4.452-1 to 4.452-9. Those existing provisions will be removed as part 
of this regulatory update and replaced by two new sections: (1) Sec.  
4.168 will describe proceedings before the ALJ; and (2) Sec.  4.169 
will describe the appeal procedures.
    Paragraph (a) will specifically incorporate and apply the General 
Procedural Rules for Practice before DCHD set forth in subpart C to 
contest proceedings in addition to the rules applicable to contest 
proceedings. By incorporating and applying the General Procedural Rules 
for Practice before DCHD, it will no longer be necessary to include 
separate provisions related to prehearing conferences, hearing notices, 
postponements, evidence, hearing conduct, or evidence such as those 
contained in the existing regulations at 43 CFR 4.452-1 to 4.452-8. 
Therefore, the existing provisions will be removed, and contest 
proceedings will be governed by the more comprehensive General 
Procedural Rules for Practice before DCHD contained in subpart C.
    Paragraph (b) will recognize the authority of the ALJ to conduct a 
contest proceeding in an orderly and judicial manner and to issue a 
decision that will be final for the Department unless appealed. 
Paragraph (c) will address the allocation of the reporter's fees 
consistent with the existing regulation at 43 CFR 4.452-7. The 
government agency initiating the proceeding will continue to be 
responsible for the reporter's fees regardless of which party is 
successful. In a private contest, each party will continue to be 
responsible for reimbursing DCHD for the reporter's fees covering that 
portion of the party's direct evidence and cross-examination, but if 
the ultimate decision is adverse to the contestant, then the contestant 
will be required to pay all costs otherwise payable by the contestee.
Sec.  4.169 Appeal
    This section will carry forward the text from the existing 
regulation at 43 CFR 4.452-9 with some modifications to correct the 
cross-references and to identify the ``Board'' as the ``IBLA.''
Specific Rules Applicable To Grazing Proceedings (Inside and Outside of 
Grazing Districts)
    The rules governing grazing proceedings are currently codified at 
43 CFR 4.470-.480 in subpart E. As part of this interim final 
rulemaking, DCHD proposes that the existing grazing procedures be 
removed from subpart E and relocated to subpart C. The provisions 
governing grazing procedures will be renumbered as Sec. Sec.  4.170 
through 4.175 and will be revised, updated, and modified as set forth 
below. DCHD also will incorporate and apply the General Procedural 
Rules for Practice before DCHD in subpart C to grazing proceedings.
Sec.  4.170 Appealing a Grazing Decision
    This section will explain the process for appealing a grazing 
decision to DCHD. At present, the appeal process is discussed in 43 CFR 
4.470. DCHD will revise and update the existing regulation by requiring 
that appeals be filed directly with DCHD, requiring appeals to be 
served in accordance with the filing and service rules in subpart C, 
and describing the contents of a grazing appeal with more specificity.
    Under paragraph (a), an appellant will be required to file an 
appeal from a grazing decision with DCHD in accordance with Sec.  4.102 
(filing and service) and Sec.  4.103 (document formatting). To be 
timely, paragraph (b) will require an appellant to file a notice of 
appeal within 30 days after receipt of the grazing decision or within 
30 days after the grazing decision becomes final as provided in 43 CFR 
4160.3(a). Paragraph (c) will require service of the notice of appeal 
in accordance with the filing and service provisions contained in Sec.  
4.102 on: (1) each person or entity named in the BLM grazing decision; 
(2) the appropriate official of the Office of the Solicitor; and (3) 
the BLM office that issued the decision.
    Paragraph (d) will specify the contents of a grazing appeal, which 
will include: (1) a copy of the decision or proposed decision being 
appeal; (2) a statement showing that the person or entity filing the 
notice of appeal is adversely affected by the decision; (3) a statement 
of timeliness providing the date when the person or entity filing the 
notice of appeal received a copy of the decision and showing that the 
appeal is timely; and (4) a statement that clearly and concisely states 
the reasons why the appellant believes the BLM grazing decision is 
incorrect, which contains specific factual allegations related to the 
BLM grazing decision being appealed and a summary of the applicable 
legal arguments. DCHD frequently receives notices of appeal that fail 
to adequately address standing, timeliness, and the grounds for appeal. 
These shortcomings can lead to inefficiencies in case processing and 
delays in adjudication. Given that a significant percentage of grazing 
appeals are initiated by pro se litigants, the increased specificity 
contained in this interim final rule should lead to more complete 
initial filings and allow for more expeditious case processing.
    This interim final rule also addresses waiver and amendments in 
paragraph (e). It informs those who practice before DCHD that any 
ground for appeal not included in the notice of appeal is waived unless 
the ALJ grants permission to amend the notice of appeal based on a 
motion demonstrating good cause. The current regulation at 43 CFR 
4.470(c) does not expressly inform appellants that a motion to amend is 
necessary or that the good cause standard will be applied when 
evaluating a request to amend.
    Paragraph (f) will explain that a person or entity who receives 
proper notice of a grazing decision and then fails to file a timely 
notice of appeal may not later challenge the matters decided in the 
grazing decision.
    For those who timely file a notice of appeal, paragraph (g) will 
explain that the grazing decision will not be automatically stayed. To 
request a stay, a person or entity will be required to comply with the 
procedures in Sec.  4.171.
Sec.  4.171 Petitions for Stay
    This section will describe the standards and procedures for 
obtaining a stay. At present, the stay petition procedures and criteria 
are contained in the existing regulations at 43 CFR 4.471-4.472. DCHD 
will clarify the process for obtaining a stay and update the criteria 
used by the ALJ when determining whether a stay is warranted. The 
updated stay criteria will be consistent with the criteria adopted by 
the IBLA as part of this regulatory update in Sec.  4.405(b).
    Under paragraph (a), appellants will be able to seek a stay by 
filing a petition for a stay concurrently with the notice of appeal. 
While the current regulation at 43 CFR 4.471(c) requires an appellant 
to satisfy four specific criteria, paragraph (a)(1) will contain only 
three criteria--and all three reflect criteria presently considered 
under the existing rule. These criteria will include: (1) irreparable 
harm, (2) the balance of harms, and (3) the likelihood of success.
    The interim final rule will not include the existing ``public 
interest'' criterion. Instead, DCHD will adopt an approach

[[Page 2357]]

consistent with Federal court opinions holding that when the Federal 
Government is the party opposing the stay, the balance of harms and 
public interest ``merge.'' See Nken v. Holder, 556 U.S. 418, 435 (2009) 
(holding that, in the context of a stay, assessing the harm to the 
opposing party and weighing the public interest ``merge when the 
Government is the opposing party''); see also Aposhian v. Barr, 958 
F.3d 969, 978 (10th Cir. 2020) (applying Nken in denying preliminary 
injunction of a final rule issued by the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives); Drakes Bay Oyster Co. v. Jewell, 747 F.3d 
1073, 1092 (9th Cir. 2014) (applying Nken in denying preliminary 
injunction concerning National Park Service special use permit for 
oyster farming); Colo. Wild Horse & Burro Coalition, Inc. v. Jewell, 
130 F. Supp. 3d 205, 220-21 (D.D.C. 2015) (applying Nken in denying 
preliminary injunction of gather of wild horses). Under this principle, 
consideration of the ``public interest'' as a separate element becomes 
unnecessary because the public interest is deemed to align with the 
balance of harms. If the balance of harms weighs in favor of granting 
the stay, so does the public interest. If the balance of harms weighs 
in favor of denial, so does the public interest. The IBLA has favorably 
cited this reasoning in a published decision, see Western Watersheds 
Project v. BLM, 195 IBLA 115, 137 n.135 (2020), and adopted this 
approach in several unpublished stay orders.
    The irreparable harm criterion under subparagraph (a)(1)(i) 
requires appellants to show they ``will likely be irreparably harmed by 
implementation of the grazing decision pending the appeal, and that 
harm will be avoided by granting the stay.'' This criterion corresponds 
with the current regulatory factor at 43 CFR 4.471(c)(3), but the 
interim final rule will eliminate the ``immediate'' terminology and 
instead will require a showing that the irreparable harm will likely 
occur ``pending resolution of the appeal.'' This modification promotes 
the purpose of a stay, which is to prevent or minimize irreparable harm 
while an appeal is being considered. Elimination of the term 
``immediate'' will not allow stays to be granted when the harm is 
speculative or is likely to occur at some indefinite time in the 
future, because the appellant must still show that irreparable harm 
will likely occur as a result of the decision at some definite time 
while the grazing appeal is pending. In addition, the appellant must 
demonstrate that the harm ``will be avoided by granting the stay.''
    The balance of harms criterion under subparagraph (a)(1)(ii) will 
remain substantially the same as the relative harm factor in the 
current regulation at 43 CFR 4.471(c)(1). The additional explanatory 
language requires a showing that the ``irreparable harm to the 
appellant absent a stay exceeds the harm to the United States or other 
parties from a stay being granted'' and is intended to better describe 
the standard. The third criterion set forth in subparagraph (a)(1)(iii) 
addresses the likelihood of success on the merits and remains the same 
as the standard contained in the existing regulation at 43 CFR 
4.471(c)(2).
    Paragraph (a)(2) will retain the requirement that the appellant 
seeking a stay bears the burden of proof to demonstrate that a stay 
should be granted under all three criteria. Paragraph (a)(3) will 
better describe and explain the filing and service requirements by 
expressly citing to proposed rules Sec. Sec.  4.102 and 4.103 as well 
as the applicable Standing Orders. It also lists the individuals 
entitled to receive service.
    Under paragraph (b), BLM and other persons or entities wishing to 
file a response will have 14 days after service of the stay petition to 
file any response with DCHD. The existing regulations allow responses 
to be filed within 10 days, see 43 CFR 4.472(a), but that time frame 
has led to frequent requests for extensions of time. With the expanded 
use of electronic filing, DCHD believes the additional response period 
will still provide ALJs with adequate time to adjudicate stay petitions 
by the 45-day deadline. This rule also notifies litigants that the 
failure to file a response will not be construed as an admission that 
the stay petition should be granted.
    Under paragraph (c) no replies or further briefing will be allowed 
unless authorized by the ALJ. If all parties consent to a stay or if 
the parties file responses affirmatively stating no opposition to a 
stay, paragraph (d) would allow the ALJ to summarily grant the stay 
petition without considering the stay criteria.
    Finally, under paragraph (e), DCHD will retain the 45-day time 
frame for adjudicating a stay petition that currently exists in 43 CFR 
4.472(d).
Sec.  4.172 BLM Document Filing Requirements
    At present, 43 CFR 4.472 contains a list of documents that BLM must 
transmit within 10 days after receipt of a grazing appeal and stay 
petition. However, the current regulation does not adequately identify 
the documents typically necessary for an adjudication of a stay 
petition. To ensure that ALJs have the requisite documentation to meet 
the deadline for resolving a stay petition, paragraph (a) contains a 
more complete list of documents that BLM will be required to 
transmitted within 14 days of receiving the notice of appeal.
    Paragraph (b) will allow the ALJ to direct BLM to serve a copy of 
its record for the grazing decision on all parties to the proceeding in 
addition to, or in lieu of, the discovery procedures set forth in the 
General Procedural Rules for Practice before DCHD contained in this 
subpart at Sec. Sec.  4.112 through 4.119. This initial disclosure 
option is intended to expedite adjudications on the merits and 
potentially eliminate the need for additional discovery. This approach 
is conceptually analogous to the initial document disclosure 
requirements contained in FRCP 26 and will be included to accelerate 
the exchange of relevant, discoverable information.
Sec.  4.173 Adjudication of Grazing Appeal
    Paragraph (a) will incorporate and apply the General Procedural 
Rules for Practice before DCHD as provided in this subpart at 
Sec. Sec.  4.100 through 4.131 in addition to the rules applicable to 
grazing proceedings at Sec. Sec.  4.170 through 4.175. Doing so will 
eliminate the need for several existing provisions related to hearing 
notices, intervention, ALJ authority, service, the conduct of the 
hearing, court reporting, and transcripts contained in the current 
grazing regulations at 43 CFR 4.473-4.477. By removing those existing 
provisions and substituting the more comprehensive General Procedural 
Rules for Practice before DCHD set forth in subpart C, parties will 
benefit from a more detailed procedural roadmap for the adjudication of 
grazing appeals.
    Paragraph (b) will recognize the authority of the ALJ to conduct 
grazing proceedings in an orderly and judicial manner. Paragraph (c) 
will recognize the authority of the ALJ to issue written decisions that 
are final for the Department unless appealed under Sec.  4.175. It will 
also require ALJs to identify and describe the basis for the decision 
and apply the substantial compliance standard contained in the existing 
regulations at 43 CFR 4.480(b).
Sec.  4.174 Effect of Decision Pending Appeal; Exhaustion and Finality
    This section will clarify when a BLM grazing decision becomes 
effective and will explicitly state the requirements for exhaustion. 
These concepts are

[[Page 2358]]

currently discussed in the existing regulations at 43 CFR 4.479, and 
these proposed revisions do not make significant substantive changes. 
Paragraph (a) will explain when a BLM grazing decision becomes 
effective pending an appeal before an ALJ. Paragraph (b) will 
explicitly state the requirement to exhaust administrative remedies. 
The exhaustion provision is consistent with the current regulatory 
requirements but will be stated more plainly to avoid confusion.
Sec.  4.175 Appeal and Review
    This section will explain a party's right to appeal to the IBLA or 
seek judicial review. At present, a party's right to appeal and or seek 
review is described in the existing regulations at 43 CFR 4.478, and 
this rule does not modify the existing standards. Instead, this 
provision has been re-organized for clarity. Paragraph (a) will contain 
the requirements for an appeal to the IBLA from a stay petition order 
or a decision on the merits, and paragraph (b) will contain the 
requirements for judicial review.

Subpart D--Rules Applicable to Appeals Before the Interior Board of 
Indian Appeals

    The Interior Board of Indian Appeals (Board) hears appeals from 
decisions rendered by Department of the Interior officials involving 
Indian matters and decides those appeals finally for the Department. 
The subjects of these appeals include the use of Indian trust lands and 
mineral resources; conveyances of rights-of-way on Indian lands; land 
sales, exchanges, and other encumbrances; trespass; acquisitions of 
land in trust; disputes over the recognition of tribal officials for 
government-to-government relations; probates of trust or restricted 
property; heirship under the WELSA; and pre-award disputes under the 
Indian Self-Determination and Education Assistance Act. The Board also 
decides other matters referred to it by the Secretary of the Interior, 
the Director of OHA, or the Assistant Secretary--Indian Affairs. The 
Board's mission is to provide an impartial forum within the Department 
of the Interior for the fair resolution of disputes involving Indian 
matters under the Department's jurisdiction.
    Subpart D provides rules applicable to appeals to the Board. We 
will modernize, clarify, reorganize, and otherwise revise these rules 
to reflect current practice, take advantage of technological advances, 
and make the rules more user friendly.
Scope of Subpart; Definitions
Sec.  4.200 How To Use This Subpart
    We will revise the table in Sec.  4.200(a) that serves as a guide 
to the contents of subpart D by subject matter, by changing the 
following cross-references: In (a)(1) add Sec. Sec.  4.200 through 
4.201 for clarity and in (a)(5) replace ``Sec. Sec.  4.350 through 
4.357'' with ``subpart H of this part'' because we also will revise and 
relocate to subpart H the provisions regarding WELSA appeals, currently 
in Sec. Sec.  4.350 through 4.357. In addition, in (a)(2) and various 
other places in subpart D, we will replace the term ``decisions'' with 
``orders'' for consistency with the existing probate regulations in 43 
CFR part 30 that describe the probate ``orders'' that are appealable to 
the Board.
Sec.  4.201 Definitions
    We will include in Sec.  4.201 only those terms used exclusively in 
subpart D or that have a specialized meaning in subpart D. 
Specifically, this section will include definitions of ``adversely 
affected,'' ``agency,'' ``appellant,'' ``Board,'' ``day,'' 
``decedent,'' ``devise,'' ``devisee,'' ``estate,'' ``formal probate 
proceeding,'' ``heir,'' ``Individual Indian Money (IIM) account,'' 
``interested party,'' ``intestate,'' ``probate judge'', ``LTRO,'' 
``probate,'' ``restricted property,'' ``trust personalty,'' ``trust 
property,'' and ``will''. Other terms common to all subparts in part 4 
will be defined in subpart A.
    We will add a definition of ``adversely affected.'' The term 
appears in Sec. Sec.  4.320 and 4.331 to describe who may appeal to the 
Board. The definition is consistent with other Departmental regulations 
and well-established Board precedent that, to have standing to appeal 
to the Board, an appellant must have suffered or be likely to suffer an 
injury to a legally protected interest because of the action, order, or 
decision on appeal. See, e.g., Preservation of Los Olivos v. Pacific 
Regional Director, 58 IBIA 278, 296-97 (2014).
    We will revise the definition of ``agency'' to update the statutory 
citation contained in it.
    We will add a definition of ``appellant'' for clarity. We will 
revise the definition of ``formal probate proceeding'' to replace the 
word ``judge'' with ``probate judge'' for clarity. We will revise the 
definition of ``interested party,'' which is used to describe persons 
or entities who may file an appeal or are entitled to receive service 
of pleadings and orders. The current definition is limited to probate 
appeals and mirrors the definition in 43 CFR 30.101. Without changing 
the scope of the term as applied to probate appeals, we add language 
addressing administrative appeals from actions or decisions of BIA 
officials. The definition is consistent with well-established Board 
precedent that, to have standing to appeal to the Board, a person or 
entity must have a legally protected interest that was injured or is 
likely to be injured by the action, decision, or order on appeal. We 
will add a definition of ``probate judge,'' meaning an ALJ or IPJ in 
the Probate Hearings Division, for clarity. We will delete the 
definitions of ``administrative law judge (ALJ),'' ``BIA,'' ``Indian 
probate judge (IPJ),'' and ``Secretary'' as duplicative of the 
definitions in subpart A. We will delete the definition of ``decision 
or order (or decision order),'' which is used in reference to probate 
cases, because it is outdated. The existing probate regulations in 43 
CFR part 30, which were amended effective January 19, 2022, identify 
the probate ``orders'' that are appealable to the Board. We will remove 
the definition of ``judge,'' because it is convoluted as it excludes 
administrative judge and means an ALJ or IPJ. Where the term ``judge'' 
is used in the existing subpart D regulations, the term ``probate 
judge'' will be used instead.
Sec. Sec.  4.202-4.309 [Reserved]
    We will renumber this subheading, from ``Sec. Sec.  4.202-4.308'' 
to ``Sec. Sec.  4.202-4.309,'' because it currently omits reference to 
reserved Sec.  4.309.
General Rules for Practice Before the Interior Board of Indian Appeals
Sec.  4.310 Documents; Filing, Service, Computing Time, and Extensions
    We will revise and add new provisions to our existing regulation at 
Sec.  4.310 to modernize Board practice by allowing for electronic 
filing and service of documents and clarifying filing and service 
requirements.
    Existing paragraph (a) will be revised and moved to paragraph (c), 
and existing paragraph (b) will be revised and moved to paragraph (d). 
We will add new paragraphs (a) and (b), which will address how 
documents are filed with the Board. New paragraph (a) directs that 
documents must be delivered to the Board as specified in subpart D and 
in the OHA Standing Orders on Electronic Transmission and the OHA 
Standing Orders on Contact Information found on the Department of the 
Interior OHA website and provides the website address for the OHA 
Standing Orders. New paragraph (b) specifies that documents may be 
filed with the Board electronically and

[[Page 2359]]

nonelectronically, also under the terms of the OHA Standing Orders. New 
paragraph (b) also specifies that Federal, State, and local agencies 
and any attorney representing a person or entity before the Board must 
file electronically unless otherwise specified in the OHA Standing 
Orders on Electronic Transmission or when the Board has allowed 
nonelectronic filing for good cause.
    Paragraph (c) will update and clarify the effective date for filing 
a notice of appeal or other document with the Board. Paragraph (c)(1) 
specifies that, for documents filed by electronic transmission under 
the terms specified in the OHA Standing Orders on Electronic 
Transmission, the effective date for filing documents with the Board by 
electronic means is the date of transmission to the Board. Paragraph 
(c)(1) institutes a new filing deadline for documents filed 
electronically with the Board: 11:59 p.m. Eastern Time on the due date. 
We will determine the date and time of filing by using the date and 
time of filing reflected by the electronic process the Board is using 
at the time. For example, while the OHA Standing Orders on Electronic 
Transmission provide that the Board may accept certain filings by 
email, the date and time of filing is the date and time that appears on 
the email received by the Board. When the OHA Standing Orders on 
Electronic Transmission indicate that the new electronic filing system 
is deployed, the date and time of filing will be determined by that 
system. A document filed electronically will be considered timely filed 
if it is transmitted to the Board, as reflected by the electronic 
filing system, by 11:59 Eastern Time on the last day of the period 
prescribed for filing.
    Paragraphs (c)(2) and (c)(3) will provide, consistent with Board 
precedent, that the effective date of filing a document with the Board 
by non-electronic means is the date of ``mailing'' to the Board if sent 
by an official government mail system, such as U.S. mail, or the date 
of delivery to the Board if delivered by commercial courier or hand 
delivery. See Confederated Tribes and Bands of the Yakama Nation v. 
Northwest Regional Director, 56 IBIA 176, 181-83 (2013). Existing Sec.  
4.310 uses the term ``personal delivery'' to describe filings that are 
not sent by an official government mail system, and the term ``personal 
delivery'' is not defined but has been construed by the Board to mean 
commercial courier or hand delivery. See id. We will use the terms 
``commercial courier'' and ``hand delivery'' instead of ``personal 
delivery.'' Paragraph (c)(2) specifies that a document filed using U.S. 
mail or a foreign government's mail system will be considered timely or 
untimely based on the date of the postmark, regardless of when the 
document is received by the Board or placed in the mail, except that if 
the postmark is not legible then the person or entity who is required 
to file the document will bear the burden of proving when it was 
mailed. Paragraph (c)(3) specifies that the date of filing by 
commercial courier or hand delivery is the date of receipt in the 
Board's office during its regular business hours by a person authorized 
to receive the filing. If a document is delivered to the Board by 
commercial courier or hand delivery and is received after the Board's 
regular business hours, the document will be considered filed on the 
next business day.
    Paragraph (d) will update and clarify requirements for serving 
documents that are filed with the Board. Paragraph (d) clarifies that 
service must be done concurrently with filing, and that complete copies 
of documents filed with the Board, including all attachments, must be 
served on all interested parties, either by electronic transmission, 
mailing, delivery by commercial courier, or hand delivery. We will no 
longer use the term ``personal delivery'' to describe service by 
commercial courier or hand delivery. We will also modernize our service 
requirements by allowing service to occur electronically on the Office 
of the Solicitor and the bureau or office whose decision is being 
appealed as specified in the OHA Standing Orders on Electronic 
Transmission. Paragraph (d) provides that service may be made 
electronically on other persons or entities through means that the 
person or entity to be served has consented to in writing under the 
terms specified in the OHA Standing Orders on Electronic Transmission. 
Paragraph (d) also specifies that all documents filed with the Board 
must include a certification that service was made as required by this 
section, which may help to reduce the frequency of the Board needing to 
issue orders to the parties to complete service.
    We will re-number, without changes, existing paragraphs (c), (d), 
and (e) as paragraphs (e), (f), and (g), respectively.
    Paragraph (f) that was added in a Direct Final Rule will be deleted 
as more specific information about electronic filing and service is 
provided for in paragraphs (a) through (d).
Sec.  4.311 Briefs on Appeal
    We will not change Sec.  4.311.
Sec.  4.312 Board Decisions
    In any given year, the Board may have a significant backlog of 
pending appeals, some of which may have been filed three or more years 
earlier. In some instances, the delay may result from the parties' 
request to suspend consideration of the appeal for settlement 
discussions or other reasons, but in other situations the delay may 
simply result from the volume and complexity of the appeals that have 
been filed. We are designating the existing text of Sec.  4.312 as 
paragraph ``(a).''
    Paragraph (b) is new and will authorize the Board in its discretion 
to issue, through a panel of administrative judges, an order affirming 
without opinion. Since 1999, the Department of Justice, Executive 
Office for Immigration Review, Board of Immigration Appeals, has 
authorized or required its appellate adjudicators to affirm the results 
reached below without opinion where (1) the result reached in the 
decision under review was correct; (2) any errors in the decision under 
review were harmless or nonmaterial; and (3) either (a) the issue on 
appeal is squarely controlled by precedent and does not involve the 
application of precedent to a novel factual situation; or (b) the 
factual and legal questions raised on appeal are not so substantial as 
to warrant issuance of a written opinion. See 84 FR 31463, July 2, 
2019; 67 FR 54878; August 26, 2002; 64 FR 56135, October 18, 1999. For 
IBIA's efficient case management, paragraph (b) will allow the Board to 
issue orders affirming without opinion in similar circumstances. An 
affirmance without opinion under paragraph (b) does not reflect an 
abbreviated review of a case; it reflects the use of an abbreviated 
order to describe the Board's review where the regulatory requirements 
of paragraph (b) are met. Paragraph (b)'s use of the word ``may'' 
reflects that it is within the Board's discretion to affirm without 
opinion under this provision and that the Board is not required to do 
so.
    Paragraph (b) will state what must be included in a Board order 
affirming an appealed decision or order without opinion. Specifically, 
the Board's order must cite the Board's delegated authority (Sec.  4.1) 
and this paragraph (Sec.  4.312(b)), and state, without further 
explanation or reasoning, that the result of the decision or order 
under review is affirmed without opinion. Paragraph (b) will also 
specify, similar to the Department of Justice's Board of Immigration 
Appeals affirmance without opinion provision, see 8 CFR

[[Page 2360]]

1003.1(e)(4) (2022), that the order will approve the result reached but 
will not necessarily imply approval of all the reasoning of the 
decision or order under review. Judicial review will occur as it occurs 
in review of affirmances without opinion by the Department of Justice's 
Board of Immigration Appeals, including the court's review of the 
reasoning contained in the decision or order that had been affirmed 
without opinion by the Board of Indian Appeals.
    Paragraph (c) is new and will specify that nothing in paragraph (a) 
or paragraph (b) limits the Board's authority to summarily dismiss a 
case or to summarily adopt, modify, reverse, or set aside a decision or 
order under review. The Board has issued summary dispositions in 
various circumstances, for example based on an appellant's failure to 
allege error in the decision being appealed, and will continue to be 
able to use summary dispositions to efficiently manage its docket and 
dispose of cases.
    Paragraph (d) is new and will give appellants the option to proceed 
to Federal court after 36 months without a decision by the Board if the 
decision being appealed is not in effect and all appellants wish to do 
so. When an appeal has been pending for an extended time, it presents 
potential problems for the parties and the Board. If the Department has 
required the appeal to be taken to exhaust administrative remedies and 
the decision being appealed has been stayed pending appeal, the 
appellant is prevented from seeking judicial review and the affected 
bureau or office remains unable to implement or modify its decision. In 
addition, the facts and associated legal issues underlying the dispute 
may have changed during the pendency of the appeal so that a Board 
decision would in effect address a problem that no longer exists or has 
changed in material ways.
    Under paragraph (d), the Board will assume that an appellant wishes 
to maintain the appeal with the Board unless the appellant moves for 
the Board to issue an order dismissing the case without an opinion by 
the Board on the merits and making the decision or order being appealed 
final for the Department. If all the appellants in a case submit or 
join such a motion, the Board will issue an order dismissing the case 
without an opinion by the Board, and the appealed decision will become 
final for the Department as of the date of the Board's order. Paragraph 
(d) does not address cases in which the appealed decision is in effect, 
because an appellant in such a case already could seek judicial review.
Sec.  4.313 Amicus Curiae; Intervention; Joinder Motions
    We propose no changes to Sec.  4.313.
Sec.  4.314 Effect of Decision Pending Appeal and Exhaustion of 
Administrative Remedies
    We are adding a new paragraph (a) consistent with the revisions to 
Sec.  4.21. Existing Sec.  4.21 generally does not apply to decisions 
by the BIA, because as a general rule BIA decisions are automatically 
stayed during the appeal period and during the pendency of an appeal. 
See 25 CFR 2.6; 43 CFR 4.314. Because our revisions to Sec.  4.21 will 
make it consistent with Sec.  4.314, we will add a new paragraph (a) to 
specify that, except as otherwise provided by applicable statute or 
regulation, Sec. Sec.  4.21 and 4.314 govern the effect of a decision 
pending appeal and exhaustion of administrative remedies. Because Sec.  
4.21 will address exhaustion of administrative remedies and finality, 
we will revise the language of existing paragraph (a), which will 
become paragraph (b), to specifically address the effect of a decision 
pending appeal. The revised paragraph (b) will provide that, except as 
otherwise provided by applicable statute or regulation, a decision of 
an ALJ, IPJ, or BIA official will not be effective during the time in 
which an appeal may be filed with the Board, and the timely filing of a 
notice of appeal will suspend the effect of the decision appealed from 
pending the Board's decision on appeal, unless the Board issues an 
order making the decision or any part of it immediately effective.
    Existing paragraphs (b) and (c) will become paragraphs (c) and (d), 
respectively.
Sec.  4.31 Reconsideration of a Board Decision
    We will not make changes to paragraphs (a), (b), or (c).
    We will add a new paragraph (d), which will specify, similar to the 
Department of Justice's Board of Immigration Appeals regulations, see 8 
CFR 1003.2(b)(3) (2022), that a petition for reconsideration based 
solely on an argument that the case should not have been affirmed 
without opinion under Sec.  4.312(b) is not permitted.
Sec.  4.316 Remands From Courts
    We propose no changes to Sec.  4.316.
Sec.  4.317 Standards of Conduct
    We are revising and clarifying paragraph (a). Existing paragraph 
(a) states that ``[a]ll inquiries about any matter pending before the 
Board'' must be made to the Chief Administrative Judge or the 
administrative judge assigned to the matter. At the same time, however, 
Sec.  4.27 prohibits ex parte communications concerning the merits of a 
proceeding, and a reader might be confused if they do not read both 
provisions together.
    In addition, inquires by parties regarding case status are 
routinely handled by the Board's staff. Section 4.317(a) specifies 
that, except for ex parte communications that are prohibited by Sec.  
4.27, all inquiries by a party to a matter pending before the Board 
should be directed to the Board's clerk, and all inquiries by a non-
party (e.g., Congressional offices, media, etc.) to a matter pending 
before the Board should be directed to the chief administrative judge 
of the Board or the administrative judge assigned to the matter. Under 
Sec.  4.2, the chief administrative judge of the Board acts on behalf 
of the Board in conducting correspondence and oversees responses to all 
types of inquiries.
    We are not changing paragraph (b).
Sec.  4.318 Scope of Review
    We are revising and updating Sec.  4.318 to make it consistent with 
the list in Sec.  4.320 of the probate orders that are appealable to 
the Board and to reflect changes in the probate regulations in 43 CFR 
part 30 that became effective in 2022. See 86 FR 72086; December 20, 
2021. Existing Sec.  4.318 provides that an appeal to the Board in a 
probate matter will be limited to the issues that were before the ALJ 
or IPJ ``upon the petition for rehearing, reopening, or regarding 
tribal purchase of interests . . . .'' This list is incomplete compared 
to existing Sec.  4.320(c), which is not limited to ``tribal'' purchase 
of interests, and compared to existing Sec.  4.320(d), which includes 
``modification of the inventory of an estate.'' Therefore, we are 
revising Sec.  4.318 to provide that an appeal to the Board in a 
probate matter will be limited to those issues that were before the ALJ 
or IPJ upon the petition for rehearing or reopening, or regarding added 
or omitted property or purchase of interests in an estate.
Specific Rules for Appeals in Probate Matters
Sec.  4.320 Who may appeal a probate judge's order?
    In Sec.  4.320, we are replacing the term ``judge'' with ``probate 
judge'' for clarity and to replace ``decision'' with ``order'' for 
consistency with the existing probate regulations in 43 CFR part 30, 
which identify the ``orders'' that are subject to appeal to the Board. 
The Board lacks jurisdiction to review directly an initial

[[Page 2361]]

probate ``decision'' determining heirs or beneficiaries; a party must 
first exhaust remedies with the probate judge by seeking rehearing or 
reopening. See Estate of Thomas Eugene Iron, 58 IBIA 123, 123 n.2 
(2013).
    We are not changing paragraphs (a), (b), or (c).
    We are revising paragraph (d), which currently refers to orders 
regarding ``modification of the inventory of an estate,'' to instead 
refer to orders regarding ``added or omitted property.'' Under the 
revised probate regulations, a probate judge's final order on a request 
for reconsideration of a distribution order regarding added or omitted 
property is subject to appeal to the Board.
    We will add paragraph (e) to clarify that an order determining that 
a person for whom a probate proceeding is sought is not deceased is 
subject to appeal to the Board. These determinations are referred to in 
existing Sec.  4.324(f)(3).
Sec.  4.321 How do I appeal a probate judge's order?
    We will revise paragraph (a) to replace the term ``judge'' with 
``probate judge'' for clarity, to replace ``decision'' with ``order'' 
for consistency with the existing probate regulations, and to replace 
``mailed'' with ``sent'' to describe the issuance of probate orders by 
electronic and non-electronic means.
    Paragraph (b) will update the methods for filing a notice of appeal 
to include electronic means and non-electronic means (including mail, 
commercial courier, or hand delivery), in accordance with a cross-
reference to revised Sec.  4.310(b). We will omit the term ``personal 
delivery'' in favor of ``commercial courier'' and ``hand delivery.''
Sec.  4.322 What must an appeal contain?
    We propose no changes to Sec.  4.322.
Sec.  4.323 Who receives service of the notice of appeal?
    We will revise paragraph (a) to omit the language ``deliver or 
mail'' as unnecessary because the electronic and non-electronic methods 
of filing a notice of appeal are set forth in Sec.  4.321(b). Revised 
paragraph (a) specifies that the appellant must file the original 
notice of appeal with the Board.
    Paragraph (b) will update the methods for serving a notice of 
appeal to include electronic and non-electronic means, in accordance 
with a cross-reference to revised Sec.  4.310(d). We also are revising 
paragraph (b) to replace ``judge'' with ``probate judge'' for clarity 
and to replace ``decision'' with ``order'' for consistency with the 
existing probate regulations.
    We are not changing paragraph (c).
    Paragraph (d) was added in a Direct Final Rule and will be deleted 
as more specific information about electronic filing and service is 
provided for in revised Sec.  4.321(b) and Sec.  4.323(b).
Sec.  4.324 How is the record on appeal prepared?
    We are revising paragraph (a) to replace ``judge'' with ``probate 
judge'' for clarity and to replace ``decision'' with ``order'' for 
consistency with the existing probate regulations.
    Paragraph (b) will be revised to replace ``judge'' with ``probate 
judge'' for clarity.
    Paragraph (c)(4) will be revised to replace reference to Sec.  
4.310(f), which was added in a Direct Final Rule and will be deleted, 
with reference to revised Sec.  4.310(b). We are not changing 
paragraphs (d) or (e).
    Paragraph (f) will be revised to replace ``judge'' with ``probate 
judge'' for clarity and will replace ``decision'' with ``order'' for 
consistency with the existing probate regulations.
    Paragraph (f)(2) will be revised to replace ``decision'' with 
``order,'' to replace ``Sec. Sec.  30.126 or 30.127'' with ``Sec.  
30.235,'' and to replace ``modification of an inventory of an estate'' 
with ``added or omitted property'' for consistency with the existing 
probate regulations.
    Paragraph (f)(3) will be revised to replace ``decision'' with 
``order'' for consistency with the existing probate regulations and to 
omit ``to be opened'' as unnecessary verbiage.
Sec.  4.325 How will the appeal be docketed?
    Section 4.325 will be revised to replace ``judge'' with ``probate 
judge'' for clarity.
Sec.  4.326 What happens to the record after disposition?
    We propose no changes to Sec.  4.326.
Specific Rules for Appeals From Administrative Actions Not Relating to 
Probate Proceedings
Sec.  4.330 Scope
    In paragraph (a), we are removing an outdated cross-reference and 
correcting a citation. In paragraph (b)(3), we will delete references 
to the Minerals Management Service and replace them with references to 
the Office of Natural Resources Revenue (ONRR) or successor 
organization since the Minerals Management Service was reorganized and 
its royalty and mineral revenue management functions were transferred 
to ONRR in 2010. See 75 FR 61051 (October 4, 2010) (discussing the 
creation and transfer of functions to ONRR under Secretarial Orders No. 
3299 (May 19, 2010) and No. 3302 (June 18, 2010)). We will also, due to 
IBLA's revisions, delete reference to 43 CFR 4.410 and replace it with 
a reference to 43 CFR subpart E.
Sec.  4.331 Who May Appeal
    We are revising paragraph (a) to add the term ``adversely'' before 
``affected'' to clarify that an interested party who is adversely 
affected by a final administrative action or decision may appeal to the 
Board. The Board has consistently held that, in order to have a right 
of appeal to the Board, an appellant must have a legally protected 
interest that is adversely affected by the decision that is being 
appealed. See Preservation of Los Olivos v. Pacific Regional Director, 
58 IBIA 278, 296 (2014).
Sec.  4.332 Appeal to the Board; How Taken; Mandatory Time for Filing; 
Preparation Assistance; Requirement for Bond
    Paragraph (a) will update the methods for filing a notice of appeal 
to include electronic means and non-electronic means (including mail, 
commercial courier, or hand delivery), in accordance with a cross-
reference to revised Sec.  4.310(b). We will omit the term ``personal 
delivery'' in favor of ``commercial courier'' and ``hand delivery.'' In 
addition, existing paragraph (a) only requires service on the Assistant 
Secretary--Indian Affairs. Consistent with changes to 25 CFR part 2, we 
will add a requirement for the appellant to also serve and certify 
completion of service of the notice of appeal on the Associate 
Solicitor, Division of Indian Affairs.
    Existing paragraph (b) provides that in accordance with 25 CFR 
2.20(c) a notice of appeal shall not be effective for 20 days from 
receipt by the Board, during which time the Assistant Secretary--Indian 
Affairs may decide to review the appeal. We will revise paragraph (b) 
due to changes to BIA's 25 CFR part 2 regulations. In paragraph (b), 
``25 CFR 2.20(c)'' will be replaced with ``25 CFR 2.508'' and the 
Assistant Secretary--Indian Affairs will be given 40 days from the 
Board's receipt of a notice of appeal, instead of 20 days from the 
Board's receipt, to decide to review the appeal and notify the Board. 
If within 40 days from the Board's receipt of the notice of appeal the 
Board receives notification from the Assistant Secretary--Indian 
Affairs that he or she has decided to review the appeal, the

[[Page 2362]]

Board will transmit any documents concerning the case filed with the 
Board to the Assistant Secretary--Indian Affairs.
    We will not change paragraphs (c) or (d).
Sec.  4.333 Service of Notice of Appeal
    We are revising Sec.  4.333 to remove the paragraph lettering and 
delete the text of paragraph (b) as unnecessary. Consistent with 
changes to 25 CFR part 2, and Sec.  4.332(a), we will add a requirement 
for the appellant to also serve the notice of appeal on the Associate 
Solicitor, Division of Indian Affairs.
Sec.  4.334 Extensions of Time
    We propose no changes to Sec.  4.334.
Sec.  4.335 Preparation and Transmittal of Record by Official of the 
Bureau of Indian Affairs
    We propose no changes to Sec.  4.335.
Sec.  4.336 Docketing and Objections to the Administrative Record
    We will separate Sec.  4.336 into two paragraphs, (a) and (b). In 
paragraph (a), the ``20 days'' period in which the Board waits to 
assign a docket number to an appeal will be replaced with ``40 days'' 
consistent with Sec.  4.332(b). Consistent with changes to 25 CFR part 
2, paragraph (a) will also provide that if, before the date on which 
the Board will ordinarily assign a docket number to the appeal, the 
Board received notice that the Assistant Secretary--Indian Affairs had 
decided not to assume jurisdiction over the appeal, the Board will 
assign a docket number to the appeal upon receipt of that notice. 
Revised paragraph (a) will provide that the Board will include the 
Table of Contents for the administrative record with the notice of 
docketing unless the Table of Contents was previously sent to 
interested parties. To mitigate impacts of the new 40-day time period 
for the Assistant Secretary--Indian Affairs to notify the Board of an 
assumption of jurisdiction over an appeal, which is to occur only 
rarely, the Board may want to send the Table of Contents to interested 
parties upon receipt of the administrative record, before the Board 
will otherwise issue a notice of docketing containing the Table of 
Contents.
    Paragraph (b) will include the existing requirement in Sec.  4.336 
that any objection to the administrative record as constituted must be 
filed with the Board within 15 days of the objecting party's receipt of 
the Table of Contents (which under the existing rule is included with 
the notice of docketing and under the interim final rule may be sent 
before the notice of docketing or included with it).
Sec.  4.337 Action by the Board
    We are not making changes to Sec.  4.337.
Sec.  4.338 Submission by Administrative Law Judge of Proposed 
Findings, Conclusions and Recommended Decision
    We are not making changes to Sec.  4.338.
Sec.  4.339 Exceptions or Comments Regarding Recommended Decision by 
Administrative Law Judge
    We are not making changes to Sec.  4.339.
Sec.  4.340 Disposition of the Record
    We are not making changes to Sec.  4.340.
White Earth Reservation Land Settlement Act of 1985; Authority of 
Administrative Judges; Determinations of the Heirs of Persons Who Died 
Entitled to Compensation
    We will revise and relocate to subpart H the provisions regarding 
WELSA appeals, currently in Sec. Sec.  4.350 through 4.357.

Subpart E--Rules Applicable to Appeals Before the Interior Board of 
Land Appeals

    The Interior Board of Land Appeals (Board) decides finally for the 
Department of the Interior appeals from decisions rendered by 
Departmental officials relating to the use and disposition of public 
lands and resources; the use and disposition of resources of the Outer 
Continental Shelf and the authorization of activities on the Outer 
Continental Shelf; the collection of energy and mineral revenue from 
the Outer Continental Shelf and onshore Federal and Indian lands, 
subject to the restrictions in Sec.  4.330 of this part; and the 
conduct of surface coal mining under the Surface Mining Control and 
Reclamation Act.
    The Board's mission is to provide an impartial forum within the 
Department of the Interior for the fair resolution of disputes 
involving public lands and natural resources under the Department's 
jurisdiction.
Sec.  4.400 Scope of Rules
    We will add this section to make clear that the rules in subpart E, 
proposed Sec. Sec.  4.400 through 4.418, will govern practice before 
the Board only; this subpart will no longer include provisions that 
apply to proceedings in the Departmental Cases Hearings Division 
(DCHD). We will expressly state that the rules in subparts A and B of 
part 4 will apply to Board proceedings only when not inconsistent with 
rules set forth in subpart E. This section will also include a 
statement that OHA Standing Orders apply to proceedings before the 
Board.
Sec.  4.401 Definitions
    We will revise the definitions in Sec.  4.400 and move them to 
Sec.  4.401. We will include in Sec.  4.401 only those terms used 
exclusively in subpart E or that have a specialized meaning in subpart 
E. Specifically, this section will include definitions of 
administrative law judge (ALJ), adversely affected, ``appealable 
decision,'' ``appellant,'' ``board,'' ``office or officer,'' and 
``party to the case.'' Other terms common to all subparts in part 4 
will be defined in subpart A.
    We will revise the definition of ``administrative law judge'' to 
specify that, in subpart E, the term refers only to an administrative 
law judge appointed t CHD.
    We will add to Sec.  4.401 the definitions of ``adversely 
affected'' and ``party to the case,'' which are currently defined in 
Sec.  4.410(b) (``party to a case'') and (d) (``adversely affected). 
Current Sec.  4.410 is the regulation governing ``who may appeal.'' 
These terms will be used in the revised section by the same title, 
proposed Sec.  4.402, ``who may appeal (standing).'' We will revise the 
definition of ``adversely affected'' for clarity, which we explain in 
the discussion of Sec.  4.402(a). We also will add a definition of 
``appealable decision,'' which is another term that will be used in 
proposed Sec.  4.402(a).
    We will add a definition of ``appellant,'' which will mean ``a 
person or entity appealing the decision to the Board.'' Certain 
regulations within proposed subpart E apply only to an appellant and 
not to other persons or entities. For example, the proposed stay 
provisions in Sec.  4.405 apply only to appellants, and only an 
appellant will be permitted to file a statement of reasons or reply 
brief under Sec.  4.410. Since we refer explicitly to the appellant in 
those proposed regulations, we have defined the term.
    We will retain the definitions of ``Board'' and ``office or 
officer'' and deleting the remaining definitions in current Sec.  4.400 
as either duplicative of the definitions in subpart A or unnecessary.
Sec.  4.402 Who May Appeal (Standing)
    We will revise our current regulation at 43 CFR 4.410 to clarify 
who may file an appeal from a bureau or office decision, that is, who 
has ``standing.'' The proposed revisions will codify but not 
substantively change the current standing requirements. Clarifying the 
Board's standing requirements will prevent confusion regarding what a 
person or entity must demonstrate at the

[[Page 2363]]

time they file an appeal and will help the Board to better manage its 
docket by dismissing those appeals that do not meet the requirements 
set forth in our proposed standing rules.
    First, in paragraph (a), we will retain the requirement that a 
person or entity who wishes to appeal must be a ``party to the case'' 
and ``adversely affected'' by an ``appealable decision.'' Each of these 
terms will be defined in the proposed definitions section, Sec.  4.401. 
The definition of ``party to the case'' will retain the definition 
found in current Sec.  4.410(b). The definition of ``adversely 
affected'' will retain the language found in current Sec.  4.410(d), 
but it will also specify that legally cognizable interests may include 
a property or economic interest in the affected public lands or 
resources, or a cultural, recreational, or aesthetic interest in the 
affected public lands or resources. This additional language will 
reflect our long-standing interpretation of the types of legally 
cognizable interests that may establish a basis for standing. See, 
e.g., Center for Biological Diversity, 195 IBLA 298, 302 (2020). 
``Appealable decision'' will be defined in Sec.  4.401 as a decision 
that authorizes, denies, prohibits, or requires some action that 
affects a person or entity having or seeking some right, title, or 
interest in public lands or resources. This definition is used in Board 
precedent, and its inclusion in the interim final rule is intended to 
assist potential appellants in understanding what types of bureau or 
office decisions they may properly appeal to the Board. See Burning Man 
Project, 197 IBLA 66, 73-74 (2021).
    Paragraph (b) will address decisions over which the Board does not 
have jurisdiction, which is currently addressed in Sec.  4.410(a)(1)-
(3). The list in proposed paragraph (b) will encompass the same 
decisions listed in current Sec.  4.410(a)(1)-(3) but will be more 
broadly worded. For example, instead of specifying that there is a 
right to appeal to the Board except as otherwise provided ``in Group 
2400 of chapter II of this title,'' the interim final rule will state 
that ``[a]n appeal cannot be filed . . . [w]here a . . . regulation 
provides a different review process or makes a decision final for the 
Department.''
    Paragraph (c) will contain the provision currently in Sec.  
4.410(e) regarding appeals relating to land selections under the Alaska 
Native Claims Settlement Act. In the phrase, ``a regional corporation 
shall have a right to appeal to the Board,'' we will add the word 
``appropriate'' before ``regional'' for consistency with 43 U.S.C. 
1613(h) (``Authorization for land conveyances,'' where Congress used 
``appropriate Regional Corporation'') and the regulations in 43 CFR 
part 2650. See, e.g., 43 CFR 2650.7(d) (``appropriate regional 
corporation''). We will also change ``shall have'' in the same phrase 
to ``has.''
Sec.  4.403 How To Appeal
    We will revise the current regulation at 43 CFR 4.411 to explain 
the procedures for appealing a bureau or office decision.
    In paragraph (b), we will change how an appeal is filed: Unless a 
statute or regulation requires otherwise, instead of filing a notice of 
appeal with the bureau or office that issued the decision, a person or 
entity who wants to appeal will file their notice of appeal with the 
Board and concurrently serve the notice on the office of the officer 
who made the decision and the Office of the Solicitor. This new 
procedure will be consistent with how complaints are filed in Federal 
court because it will require appeals to be filed in the forum that 
will decide the appeal. The interim final rule will still ensure that 
all affected parties receive timely notice of the appeal by requiring 
at the time of filing with the Board that the notice of appeal be 
concurrently served on the bureau or office that made the decision, all 
persons or entities named in the decision, and the proper 
representative of the Office of the Solicitor (paragraph (b)(2)). This 
provision will not apply in the event a bureau or office has specific 
regulations requiring appeals to be filed directly with that bureau or 
office See, e.g., 30 CFR 290.4, 590.4 (requiring that appeals be filed 
directly with BSEE and BOEM).
    We will also require appellants to file, with their notice of 
appeal, certain documents that will help the Board determine if it has 
jurisdiction over a matter. More specifically, in paragraph (a) we will 
require an appellant to provide the Board with a copy of the decision 
being appealed; a statement of facts establishing that the appellant 
has standing; and a statement of timeliness and any corroborating 
documentation providing the date when the appellant received notice of 
the decision. Corroborating documentation of an appellant's 
notification of the decision could include an email from the bureau or 
office transmitting the decision, a screenshot of when the bureau or 
office posted notice of the decision online, or a copy of the envelope 
in which the bureau or office mailed the decision. These new 
requirements will increase the efficiency of the appeals process by 
ensuring the Board receives timely notice of an appeal and minimizing 
the need for the Board to request additional jurisdictional briefing. 
For example, in some instances, it is unclear if an appellant has 
standing to file its appeal and the Board may require an appellant to 
submit additional briefing before we can adjudicate an appeal or a 
petition for stay. By requiring the appellant to submit a statement of 
standing setting forth facts supporting their status as a party to the 
case that is adversely affected by the decision being appealed, we will 
more easily be able to determine if an appellant is qualified to file 
its appeal and avoid unnecessary delays.
    In proposed paragraph (c), we address when an appellant must file 
and serve the notice of appeal. Unless a statute or regulation provides 
otherwise, the notice of appeal must be filed no later than 30 days 
after the date of receiving notice of the decision (paragraph (c)(1)), 
which is the same requirement as in the current rule. This 30-day 
deadline applies ``[e]xcept as otherwise provided by statute or 
regulation,'' which accommodates the requirements that currently appear 
in 30 CF 290.3, 590.3, and 1290.105(a)(2), which specify that appeals 
of BSEE, BOEM, and certain ONRR decisions must be filed within 60 days 
of receiving the decision being appealed.
    In paragraph (c)(2), we will add a provision specifying how to 
compute the 30-day appeal period. We will specify that a person or 
entity will be deemed to have received notice of the decision at the 
earliest of the following dates: when the decision is delivered by mail 
or delivery service as indicated on a U.S. Postal Service or delivery 
service tracking report or, if no tracking report exists, and absent 
contrary evidence, seven days after the date of the postmark on the 
envelope containing the decision as long as the envelope was properly 
addressed and had proper postage prepaid; when the bureau or office 
electronically transmits the decision or a notice that the decision is 
available on a public website to the person or entity; when the bureau 
or office notifies the public in an online news release that the 
decision is available on a public website; when the bureau or office 
publishes the decision in the Federal Register; or if the bureau or 
office did not serve, email, or publish the decision, then when the 
person or entity receives actual notice of the decision. In paragraph 
(c)(3), we explain that filing is accomplished as provided in proposed 
Sec.  4.407.
    In paragraph (c)(4), we will retain the language in current Sec.  
4.411(c), which provides that no extension of time may be granted for 
filing a notice of appeal and that, if an appeal is untimely, the

[[Page 2364]]

appeal will not be considered, and the Board will dismiss it for lack 
of jurisdiction. The documents listed in paragraph (a)(1)-(3) are 
separate from the notice of appeal, and therefore the time for filing 
those documents could be extended.
Sec.  4.40 Effect of Appeal
    We will include a new section explaining the effect an appeal of a 
decision has on the bureau or office's ability to take action related 
to that decision. The section will codify Board precedent by specifying 
when an appeal of a decision is filed, the bureau or office that issued 
the decision loses jurisdiction to modify, rescind, or supersede it. 
See, e.g., Century Offshore Management Corp. (On Reconsideration), 196 
IBLA 250, 253 (2021); Sojitz Energy Venture, Inc., 193 IBLA 1, 3-4 
(2018). The appeal transfers jurisdiction from the bureau or office to 
the Board, and the bureau or office cannot modify or supersede its 
decision without first asking the Board to remand the decision to the 
bureau or office. Also, if the Board stays the decision on appeal, the 
bureau or office may only make new decisions related to the subject of 
the decision on appeal if the new decisions are functionally 
independent from the decision on appeal. For example, a decision to 
temporarily close grazing allotments after a fire is functionally 
independent from a decision to renew grazing permits on the same 
allotment. Chipmunk Grazing Association, Inc., 188 IBLA 35, 44 (2016).
Sec.  4.405 Effectiveness of Decision Pending Appeal; Petitions for 
Stay
    We will move the provisions addressing the effectiveness of 
decisions pending appeal and petitions for a stay from current Sec.  
4.21 to new Sec.  4.405. The first two paragraphs of Sec.  4.21 
addressing these topics, paragraphs (a) and (b), currently apply almost 
exclusively to the Board and the Director's Office. Decisions pending 
appeal to IBIA are generally automatically stayed pursuant to 43 CFR 
4.314 and stays of grazing decisions pending appeal to DCHD are 
governed by current Sec. Sec.  4.471 and 4.472. With this move of Sec.  
4.21(a) and (b) to Sec.  4.405, OHA will eliminate any conflicts 
between Sec.  4.21 and individual unit procedures and ensure that each 
unit has stay provisions specifically applicable to the appeals it 
hears. See, e.g., Sec. Sec.  4.171 (DCHD), 4.314(a) (IBIA).
    The current version of Sec.  4.21 was promulgated in 1993. Final 
Rule, Department Hearings and Appeals Procedures, 58 FR 4939 (Jan. 19, 
1993) (a non-substantive, technical amendment was made in 2010). 
Paragraph (a) of Sec.  4.21 currently specifies when and under what 
circumstances a decision goes into effect pending appeal. These 
provisions apply unless ``otherwise provided by law or other pertinent 
regulation.'' 43 CFR 4.21(a). Under current Sec.  4.21(a), bureau and 
office decisions are stayed during the period in which an appeal to the 
Board may be taken. But a bureau or office by separate regulation may 
put a decision into immediate effect to avoid this automatic stay, see, 
e.g., id. Sec.  2931.8(b) (placing BLM decisions concerning special 
recreation permits into immediate effect pending appeal), or an Appeals 
Board may do so itself ``when the public interest requires.'' Id. Sec.  
4.21(a)(1). Once the period for filing an appeal has passed, the 
decision goes into effect, even if an appeal has been filed, unless an 
appellant has filed a petition for a stay together with its notice of 
appeal. Id. Sec.  4.21(a)(2). If an appellant has filed a petition for 
a stay, then the decision will remain automatically stayed for an 
additional 45 days from the expiration of the time for filing a notice 
of appeal, unless the Board denies the petition within that time. Id. 
Sec. Sec.  4.21(a)(3), (b)(4). After the end of the 45-day period, the 
decision will go into effect unless the Board has granted the petition 
for stay.
    The current regulation also specifies the procedures and standards 
for obtaining a stay pending appeal. Id. Sec.  4.21(b). An appellant 
must establish that four criteria have been met. Id. These regulatory 
criteria are similar to those used by Federal courts when considering 
whether to issue preliminary injunctions. Compare id. Sec.  4.21(b)(1), 
with Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008) (``A plaintiff seeking 
a preliminary injunction must establish that he is likely to succeed on 
the merits, that he is likely to suffer irreparable harm in the absence 
of preliminary relief, that the balance of equities tips in his favor, 
and that an injunction is in the public interest.''). Section 4.21(b) 
also specifies that the petitioner for a stay ``bears the burden of 
proof to demonstrate that a stay should be granted,'' and directs the 
Board to act on a stay petition ``within 45 calendar days of the 
expiration of the time for filing a notice of appeal.'' 43 CFR 
4.21(b)(2), (b)(4).
    We will revise these regulations to clarify the provisions 
addressing the effectiveness of decisions pending appeal, eliminate 
uncertainty as to when a stay may be sought, and update the criteria 
used for deciding whether to grant a stay.
Effect of Decision Pending Appeal
    Like current Sec.  4.21(a), Sec.  4.405(a) will address when a 
bureau or office decision is in effect during an appeal.
    The differences between current Sec.  4.21(a) and new Sec.  
4.405(a) are minor. As the current rule does, paragraph (a) will begin 
with an introductory proviso that acknowledges that the effectiveness 
provisions in Sec.  4.21(a) may be overridden by other law. This occurs 
primarily when a decision is placed into immediate effect at issuance 
pursuant to a statute or regulation. We will modify the proviso to 
eliminate the unnecessary reference to regulations since they are 
encompassed within the term ``law.''
    The other changes to paragraph (a) are similarly minor. For 
example, paragraphs (a)(1)-(3) will be revised to refer to ``persons or 
entities'' instead of only ``persons'' and to ``the Board'' instead of 
``the Director or an Appeals Board.'' In addition, we will revise 
paragraph (a)(1), to state that the Board may place a decision or part 
of a decision into immediate effect when the public interest requires 
``or to protect trust resources.'' We will add ``or to protect trust 
resources'' to reflect the Department's trust responsibilities to 
American Indians, Alaska Natives, and affiliated Island Communities. 
Paragraph (a)(3), like current Sec.  4.21(a)(3), will state that a 
decision, or that portion of a decision, for which a stay is not 
granted will become effective immediately after the Board denies or 
partially denies the petition for a stay or fails to act on the 
petition within the time specified in paragraph (b)(8). The cross-
referenced paragraph (b)(8) will impose the same time frame in current 
Sec.  4.21(b)(4) within which the Board must grant or deny a petition 
for a stay: 45 days after the expiration of the time for filing a 
notice of appeal.
Petitions for Stay
    In paragraph (b), we will clarify certain procedural requirements, 
currently contained in Sec.  4.21(b), for filing petitions for a stay. 
Like the current regulation, we will state in paragraph (b)(1) that 
only an appellant who properly files an appeal may petition for a stay. 
This provision means that the party must have standing and meet all 
other jurisdictional requirements for bringing an appeal.
    In paragraph (b)(2), we make a minor word change in the requirement 
to file a petition for a stay ``together with a timely notice of 
appeal'' to state instead that the petition must be filed ``at the same 
time the appellant files a notice of appeal.'' This change is intended 
to clarify that the deadline to file a petition

[[Page 2365]]

for a stay is the same as the deadline for a notice of appeal. Related 
to this requirement, in paragraph (b)(8), we add a provision that 
specifies that we will deny any petition for a stay that is not filed 
at the same time the appellant files its notice of appeal. Unlike 
Federal courts, where requests for stays or injunctive relief can be 
made at any time during the proceeding, parties appealing a bureau or 
office decision will be expected to file a petition for a stay at the 
beginning of the appeal or never at all. Although appellants will not 
be able to file a petition for a stay later in an appeal, they will be 
able to seek a stay or injunction in Federal district court. Under both 
the current and revised regulations (current Sec.  4.21(a)(3) and (c) 
and revised Sec.  4.21(b)(2)), once a decision is in effect, it is 
final agency action for purposes of 5 U.S.C. 704 and may be challenged 
in Federal court. See In the Matter of Mandan, Hidatsa and Arikara 
Nation, 53 OHA 198, 203 (2018) (ruling that, upon the expiration of 45 
days or the denial of a stay petition, ``a decision becomes not only 
effective, but also `subject to judicial review' under the 
Administrative Procedure Act''). Accordingly, if circumstances compel 
an appellant to seek a stay later in the appeal process, the appellant 
could pursue a stay or injunction in Federal court.
    We recognize that, currently, Sec.  4.21 does not prohibit late-
filed petitions for a stay. But it is rare that appellants file 
petitions for a stay later than filing a notice of an appeal, and we 
are aware of only one instance in which we granted a petition for a 
stay that was filed after the notice of appeal. In Colorado Wild Public 
Lands Inc., 189 IBLA 392, 399 (2017), aff'd, Colo. Wild Pub. Lands, 
Inc. v. Shoop, No. 17-cv-01564-MSK, 2021 U.S. Dist. LEXIS 56706 (D. 
Colo. Mar. 25, 2021), we denied a stay in 2015 because we found it 
unlikely that BLM will immediately consummate a land exchange, but we 
granted a renewed petition for a stay in 2017 when the appellant showed 
that the land exchange was imminent. By expressly stating that 
appellants may only file a petition for a stay at the same time they 
file a notice of appeal, Sec.  4.405(b) will provide clarity for the 
parties and certainty to the bureaus and offices about when a decision 
on appeal may be implemented.
    Paragraph (b)(3) will revise and clarify the filing and service 
requirements for a petition for a stay. It will require an appellant to 
file a petition for a stay with the Board and serve the petition for a 
stay on the bureau or office that made the decision being appealed, the 
appropriate Office of the Solicitor and, as in the current rule, all 
persons named in the decision. Paragraph (b)(3) will cross-reference 
the regulation at Sec.  4.407, which will state in more detail how 
documents filed with the Board must be filed and served. This provision 
differs from the current regulation, which envisions that an appellant 
will file both a notice of appeal and a petition for a stay with the 
office of the official who made the decision being appealed and serve 
both documents on the Board. Consistent with the changes for notices of 
appeal in Sec.  4.403, we will change the requirement for filing 
petitions for stay so that they will be filed with the Board.
    The criteria that must be satisfied to receive a stay, currently in 
Sec.  4.21(b)(1), are revised and reordered in paragraph (b)(4). 
Paragraph (b)(4) has three criteria, with all three reflecting criteria 
presently considered under the existing rule; namely, both current and 
interim final rules require a showing of likelihood of irreparable 
harm, likelihood of success on the merits, and that the balance of 
harms weighs in favor of granting the stay.
    This rule will not include the ``public interest'' criterion, 
however. Instead, we will follow the lead of Federal courts that have 
held in the context of deciding whether to issue stays or preliminary 
injunctions that when the Federal Government is the opposing party, the 
balancing of the harms and the public interest ``merge.'' See Nken v. 
Holder, 556 U.S. 418, 435 (2009) (holding that, in the context of a 
stay, assessing the harm to the opposing party and weighing the public 
interest ``merge when the Government is the opposing party''); see also 
Aposhian v. Barr, 958 F.3d 969, 978 (10th Cir. 2020) (applying Nken in 
denying a preliminary injunction of a final rule issued by the Bureau 
of Alcohol, Tobacco, Firearms, and Explosives); Drakes Bay Oyster Co. 
v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (applying Nken in 
denying a preliminary injunction concerning a National Park Service 
special use permit for oyster farming); Colo. Wild Horse & Burro 
Coalition, Inc. v. Jewell, 130 F. Supp. 3d 205, 22021 (D.D.C. 2015) 
(applying Nken in denying a preliminary injunction of a gather of wild 
horses). Under this principle, the consideration of the ``public 
interest'' as a separate element is unnecessary because the public 
interest is always deemed aligned with the balancing of harms. If the 
balance of harms weighs in favor of granting the stay, so does the 
public interest. If the balance of harms weighs in favor of denial, so 
does the public interest. We have favorably cited this reasoning in a 
published decision and adopted it in a number of unpublished stay 
orders, see Western Watersheds Project v. BLM, 195 IBLA 115, 137 n.135 
(2020), so this rule will eliminate the public interest criterion as 
being superfluous given our retention of the balance-of-harms 
criterion.
    Turning to the three stay criteria set out in paragraph (b)(4), the 
first criterion, will be that the appellants must show they ``will 
likely be irreparably harmed by implementation of the decision pending 
resolution of the appeal, and that harm will be avoided by granting the 
stay.'' This criterion corresponds to the current criterion requiring 
that the petitioner demonstrate ``[t]he likelihood of immediate and 
irreparable harm if the stay is not granted.'' The interim final rule 
will eliminate the ``immediate'' terminology and instead will require a 
showing that irreparable harm is likely to occur ``pending resolution 
of the appeal''--before the appeal is decided. This change will promote 
the purpose of granting stays, which is to prevent or minimize 
irreparable harm while an appeal is being considered, while also 
accounting for the fact that petitions for a stay will be filed at the 
beginning of the administrative appeal process, which may not 
correspond to when the harm is expected to occur. Given the restriction 
on when a petition for a stay may be filed in paragraph (b)(2), we will 
remove the immediacy requirement to better allow the Board to issue 
stays to prevent irreparable harm that is likely to occur while an 
appeal is pending.
    The elimination of the term ``immediate'' is not intended to allow 
the Board to grant stays when the harm is speculative or is likely to 
occur at some indefinite time in the future. Similar to what the 
immediacy element currently requires, the appellant will be required to 
show that irreparable harm is likely to occur as a result of the 
decision at some definite time while the appeal is pending.
    The irreparable harm criterion will also include a new ending 
clause that will codify another element needed to warrant a stay--that 
the irreparable harm to the appellant ``will be avoided by granting the 
stay.'' This clause will clarify that the Board will not grant a stay 
in situations in which a stay of the appealed decision will not prevent 
the harm alleged by an appellant. An example is an appeal from a 
discretionary decision denying a permit to undertake some activity, 
where the appellant's injury is the inability to conduct the activity. 
A stay of the permit denial will not alleviate that injury because it 
will not grant the permit but merely return the application

[[Page 2366]]

to a pending status. In fact, because an appeal divests a bureau or 
office of jurisdiction to undo or modify its decision, Century Offshore 
Mgm't Corp. (On Reconsideration), 196 IBLA 250, 253 (2021), the bureau 
or office will have no jurisdiction to grant the permit pending appeal. 
In such situations, because a stay of the decision will not prevent 
irreparable harm or afford the appellant with any legal or practical 
benefit, the Board denies the petition for a stay. See, e.g., Triple 
Dare Running Co., 195 IBLA 224, 229 (2020). Making this concept an 
express part of the irreparable harm criterion will provide greater 
clarity to appellants and allow them to better determine whether it is 
necessary to seek a stay.
    The second criterion, in paragraph (b)(4)(ii), will address the 
balance of harms and will be substantively identical to the current 
rule's first criterion. The current rule states the criterion as the 
``relative harm to the parties if the stay is granted or denied.'' The 
revised wording--that the ``irreparable harm to the appellant absent a 
stay exceeds the harm to the United States and other parties from a 
stay being granted''--is designed to better express what harms are 
being considered and balanced, but the revision is not meant to change 
the meaning or operation of the existing ``relative harm'' criterion. 
The third criterion, in paragraph (b)(4)(iii), will address the 
likelihood of success on the merits and will be the same as the current 
criterion in Sec.  4.21(b)(1)(ii).
    Paragraph (b)(5) will retain the requirement of current Sec.  
4.21(b)(2) that the appellant seeking a stay bears the burden of proof 
to demonstrate that a stay should be granted. We will add a phrase to 
this requirement to specify that the appellant's burden is to show that 
a stay should be granted, in whole or in part, under all three criteria 
set forth in paragraph (b)(4). This sentence reflects existing 
regulatory requirements and Board practice. See, e.g., Tom Kitchar, 195 
IBLA 151, 159 (2020) (``A failure to satisfy any one of the stay 
criteria will result in denial of a petition for a stay.''). The 
inclusion of the words ``in whole or in part'' reflects the existing 
language in Sec.  4.21(b)(4), which allows the Board to ``grant or deny 
a petition for a stay pending appeal, either in whole or in part,'' 
authorizing the imposition of stays of all aspects of a decision on 
appeal or only portions of it. See, e.g., Deschutes River Landowners 
Committee, 136 IBLA 105, 108 (1996) (noting that the Board granted the 
stay in part and denied it in part to allow certain actions authorized 
by the decision to proceed.). Including the phrase here recognizes that 
an appellant may seek a stay of only a portion of the decision on 
appeal.
    Paragraph (b)(6) will retain the current regulation's provision 
that allows any party the option of responding to a petition for a 
stay, but it will provide a 14-day filing deadline instead of the 
current 10-day deadline. We believe providing the additional time for 
filing a response will still give the Board sufficient time to rule on 
the petition within the 45-day period set forth in paragraph (b)(8) 
(current Sec.  4.21(b)(4)), especially because responses are now 
routinely electronically filed. This paragraph will also provide, 
similar to current Sec.  4.21(b)(3), that a failure to respond to a 
petition for stay will not be construed as an admission that the Board 
should grant the petition and therefore will not automatically result 
in the stay being granted based on default. Paragraph (b)(7) will 
prohibit appellants from filing replies to responses to petitions, 
which is not expressly stated in the current regulation.
    Paragraph (c)(8) will retain the requirement for the Board to grant 
or deny a petition for a stay, in whole or in part, within 45 days of 
the expiration of the time for filing a notice of appeal. This 
paragraph will also state that, in appeals of decisions that have been 
placed in immediate effect, the Board will deny any petition for a stay 
that is not filed at the same time the appellant filed its notice of 
appeal. We seek comment on whether the rule should explicitly 
acknowledge that a joint petition for stay, which is consented to by 
all parties to an appeal, may be filed at any time. The interim final 
rule is not intended to foreclose such a filing. In addition, this 
paragraph will specify that if the Board fails to act on a petition for 
a stay within 45 days of the expiration of the time for filing a notice 
of appeal, ``the petition will be deemed denied.'' This provision, 
which is not in the current regulation, will provide certainty to 
bureaus and offices that seek to implement a decision on appeal because 
the Board could not unexpectedly grant a stay after the 45-day period.
    New paragraph (b)(9) will codify the Board's authority to summarily 
grant a petition for a stay without addressing the stay criteria when 
all parties consent to the stay or affirmatively state they do not 
oppose the stay. See, e.g., Linn Blancett, 178 IBLA 272, 275 (2006) 
(stating that the Board had stayed the effect of the challenged 
decision with the consent of the bureau).
    Request for comments on alternative approach.
    In addition to seeking comments on Sec.  4.405 as published, we 
also seek comments on an alternative procedure for how the Board would 
adjudicate petitions for a stay. Under the alternative procedure, we 
would distinguish between decisions that have been placed into 
immediate effect and decisions that have not been placed into immediate 
effect. Specifically, decisions that are placed into immediate effect 
pursuant to a statute or regulation would remain in effect pending the 
resolution of the appeal unless the appellant and the bureau or office 
that issued the decision on appeal file a joint petition for a stay. 
Keeping decisions that are immediately effective upon issuance in 
effect during an appeal is consistent with the Department's 
determination that that the public interest is served by having those 
decisions in effect regardless of whether an appeal is filed.
    Examples of regulations that either automatically place a decision 
into immediate effect or authorize the deciding official to do so 
include the following:
     30 CFR 290.7 (Bureau of Safety and Environmental 
Enforcement (BSEE) orders);
     30 CFR 590.7 (Bureau of Ocean Energy Management (BOEM) 
orders);
     43 CFR 2801.10(b), 2881.10(b) (Bureau of Land Management 
(BLM) rights-of-way decisions);
     43 CFR 2920.2 (BLM minimum impact permit decisions);
     43 CFR 2931.8(b) (BLM special recreation permit 
decisions);
     43 CFR 3165.4(c) (BLM oil and gas operations decisions);
     43 CFR 3200.5(b) (BLM geothermal leasing decisions);
     43 CFR 3809.803 (BLM surface management decisions 
concerning mining);
     43 CFR 3809.808(b) (BLM State Director decisions 
concerning mining surface management);
     43 CFR 4770.3(b), (c) (BLM wild horse and burro 
decisions);
     43 CFR 5003.1 (BLM forest management and wildfire 
decisions).
    Under this alternative, these types of decisions, when in immediate 
effect, would remain in effect unless the bureau or office consents to 
a stay. We would not require the consent of all parties; a stay would 
be granted if the appellant and the bureau or office agree to a stay, 
even if one or more intervenors object. By keeping decisions in effect 
pending appeal unless the bureau or office consents to a stay, this 
alternative would honor the decision of the Department, codified in its 
rules, that certain types of decisions should be

[[Page 2367]]

put into immediate effect despite the filing of an administrative 
appeal. Moreover, the proposal for granting stays of decisions that 
have been placed into immediate effect only when the bureau or office 
consents to a stay would not deprive an appellant of all remedies to 
prevent irreparable harm. Because the decision is in effect, it would 
be deemed a final agency action for purposes of judicial review, and 
therefore an appellant may file suit in Federal court and seek a stay 
in that forum. We would allow a joint petition for a stay to be filed 
at any time during the appeal.
    When a decision is not placed into immediate effect, the stay 
standards and procedures set forth in Sec.  4.405 of this rule would 
apply.
Sec.  4.406 Record on Appeal
    The Board's existing regulation at 43 CFR 4.411(d)(3) requires the 
office of the officer who made the decision to ``promptly forward'' to 
the Board ``[t]he complete administrative record'' associated with an 
appeal. The existing regulations do not otherwise provide direction on 
records. In this rule, we are adding a new regulation addressing 
records to clarify Board procedures, increase Board efficiency, and 
ensure that parties to an appeal have timely access to the documents 
supporting a bureau or office's decision on appeal. In this section of 
the rule, we describe the ``record,'' rather than the ``administrative 
record.'' We have made this change to distinguish what bureaus and 
offices submit to the Board (their record) from what Federal courts 
consider in the event a Board decision is appealed--namely, the 
administrative record that is reviewed under the Administrative 
Procedure Act.
    In paragraph (a), we are changing the existing requirement in Sec.  
4.411(d)(3) to ``promptly forward'' to the Board the administrative 
record, and instead require that bureaus and offices promptly file the 
record with the Board and serve it on the parties to an appeal no later 
than 60 days after being served with the notice of appeal. This new 
requirement will accomplish two objectives. First, it will ensure that 
the parties to an appeal automatically receive a copy of the record 
submitted to the Board. While some bureaus and offices routinely 
provide their records to the parties to an appeal, not all do. By 
eliminating this inconsistency, and the need under the current rule for 
parties to affirmatively request a copy of the record, the interim 
final rule will reduce delays in the briefing process and, therefore, 
the time appeals may be pending before the Board.
    Second, the proposed rule's requirement will further improve the 
efficiency of the appeals process. The current regulation does not 
include a time frame within which records must be submitted, requiring 
only that bureaus and offices must ``promptly'' forward them to the 
Board. In many instances, this means an appellant does not have access 
to the record prior to its deadline for filing a statement of reasons. 
Without the record, appellants are at a disadvantage in crafting their 
statements of reasons and often seek extensions of time until they have 
received and had an opportunity to review the record, extending the 
time it takes an appeal to be adjudicated. By requiring bureaus and 
offices to promptly file and serve the record no later than 60 days 
after service of a notice of appeal, paragraph (a) provides certainty 
to appellants regarding when they will have access to the record 
underlying the bureau or office decision and will help guard against 
appeals that languish on the Board's docket for lack of a record. The 
interim final rule works in concert with Sec.  4.410(b), which shifts 
the deadlines for an appellant's statement of reasons to 30 days after 
the record is filed. Together, these changes will create a logical and 
streamlined timeframe for the appeals process. Because the Board 
recognizes that in limited circumstances a bureau or office may not be 
able to meet the 60-day deadline for filing its record, paragraph (a) 
also provides that the Board may allow extensions of the deadline.
    Paragraph (b) will provide revised language describing the contents 
of the record, specifying that it contains ``[a]ll documents and 
materials that the deciding officer directly or indirectly considered 
in reaching a final decision.'' This will replace the existing rule's 
description of the record, in Sec.  4.411(d)(3), as the ``complete 
administrative record compiled during the officer's consideration of 
the matter leading to the decision being appealed.'' The new language 
will identify, with more specificity, what comprises a record, 
emphasizing that the record consists only of documents and materials 
directly or indirectly considered by the decision maker. See Bar MK 
Ranches v. Yeutter, 994 F.2d 735, 739 (10th Cir. 1993) (``The complete 
administrative record consists of all documents and materials directly 
or indirectly considered by the agency.''); Thompson v. Dep't of Labor, 
885 F.2d 551, 555 (9th Cir. 1989) (``all documents and materials 
directly or indirectly considered by agency decision-makers'') 
(citations and internal quotations omitted). In particular, the new 
language is intended to clarify that the record is not necessarily the 
same as a bureau or office's ``case file,'' which often includes 
documents that were not directly or indirectly considered by the 
decision maker (e.g., early drafts of documents, personal staff notes 
that were not available to the decision maker, etc.). See, e.g., 
Wallace Forest Conservation Area Advisory Committee, 192 IBLA 108, 126-
27 (2017) (explaining that a bureau's administrative record is not 
equivalent to its ``case file'').
    In paragraph (c), we will add new direction about how records are 
to be formatted. We will require that a record be in digital or 
electronic form and include an index of all documents. The bureau or 
office will be required to sequentially number the pages of each 
document and ensure that the text of all documents is electronically 
searchable. This requirement will enable the Board and the parties to 
navigate records more easily. Currently, records often come to the 
Board without the capability to be searched. Sometimes records are 
submitted without an index or as a single pdf document that does not 
separate out individual documents. Requiring records to be more easily 
accessible will be more efficient for the Board and aid the Board and 
the parties in understanding the decision-making process for the 
decision on appeal. The phrase ``[u]nless otherwise ordered by the 
Board'' at the beginning of paragraph (c) will be included to allow for 
special circumstances that prevent a bureau or office from meeting 
these formatting requirements. The bureau or office will be able to 
request that the Board authorize an alternative format for the record.
    Finally, in paragraph (d), we will add a provision explaining how a 
bureau or office may complete the record if it inadvertently omitted a 
document from the record it filed with the Board. The bureau or office 
will be required to either secure a stipulation by all parties that the 
document was inadvertently omitted from the record or file a motion to 
complete the record and obtain the Board's approval to add the document 
to the record.
Sec.  4.407 Filing, Service, Deadline Computations, and Issuance
    Section 4.407 combines the requirements in several existing 
regulations, deletes unnecessary provisions, and adds new provisions to 
modernize Board practice by allowing for electronic filing of 
documents; clarifying service requirements; simplifying how we compute 
deadlines;

[[Page 2368]]

and specifying how the Board will issue notices, orders, and decisions.
    First, paragraphs (a)(1) and (a)(2) are new provisions that address 
how documents are filed with the Board. Paragraph (a)(1) will direct 
that documents must be delivered to the Board as specified in these 
rules and OHA Standing Orders on Contact Information and Electronic 
Transmission. paragraph (a)(2) will specify that documents may be filed 
non-electronically and electronically, also as specified in OHA 
Standing Orders on Electronic Transmission. Due to the COVID-19 
pandemic, in March 2020 the Board started allowing parties to submit 
documents electronically via email. Since that time, we have been able 
to successfully accommodate electronic filing, which has made it easier 
for parties to file documents and helped eliminate uncertainties in 
computing other filing deadlines. We are now codifying this practice to 
modernize our procedures. Paragraph (a)(2)(i) will specify that 
Federal, State, and local agencies and any attorney representing a 
person or entity before the Board must file electronically unless 
otherwise specified in the OHA Standing Orders on Electronic 
Transmission or when the Board has allowed non-electronic filing for 
good cause.
    Paragraph (a)(3) institutes a new deadline for documents filed 
electronically with the Board: 11:59 p.m., Eastern Time on the due 
date. We will determine the date and time of filing by using the date 
and time of filing reflected by the electronic process the Board is 
using at the time. For example, while the OHA Standing Orders on 
Electronic Transmission provide that the Board is accepting filing by 
email, the date and time of filing is the date and time that appears on 
the email received by the Board. When the OHA Standing Orders on 
Electronic Transmission indicate that the new electronic filing system 
is deployed, the date and time of filing will be determined by that 
system.
    For those who choose to file documents by mail, paragraph (a)(3) 
specifies that a document will be deemed timely if it is mailed to the 
Board on or before the last day for filing or if it is dispatched to a 
third-party commercial courier for delivery to the Board within 3 days. 
This provision is consistent with Federal Rule of Appellate Procedure 
25, which similarly states that a brief not filed electronically is 
timely filed ``if on or before the last day for filing[ ] it is . . . 
mailed to the clerk by first-class mail, or other class of mail that is 
at least as expeditious, postage prepaid; or dispatched to a third-
party commercial carrier for delivery to the clerk within 3 days.'' 
Paragraph (a)(3) will also specify that ``[t]he date of mailing or 
dispatch must be documented by a postmark date, acceptance scan, 
receipt, or similar written acknowledgment from the carrier delivering 
the document for filing.'' The intent of this language is to put 
parties on notice that there must be proof of the date a document is 
mailed to the Board for filing. Without such proof, a document may be 
deemed untimely. To account for the possibility of an error by the 
third-party carrier, paragraph (a)(3) will specify that a document not 
received within seven business days of the filing deadline is presumed 
untimely, but that presumption may be overcome by the documentation 
establishing the date of mailing or dispatch.
    Because the changes to paragraph (a) simplify filing deadlines, we 
no longer need the existing rule's ``grace period,'' found in current 
Sec.  4.401(a), and which provides that a document is timely filed when 
it ``is filed not later than 10 days after it was required to be filed 
and it is determined that the document was transmitted or probably 
transmitted to the office in which the filing is required before the 
end of period in which it was required to be filed.'' We therefore have 
eliminated this provision.
    The interim final rule will delete current paragraph Sec.  4.401(b) 
about transferees and encumbrancers. This paragraph has been in the 
Department's regulations since at least 1956, see, e.g., 21 FR 1845; 
March 27, 1956 (43 CFR part 221, Appeals and Contests), and although it 
has been carried forward since then, it is no longer necessary.
    Paragraph (b) will update and clarify requirements for serving 
notices of appeal and all other documents that are filed with the 
Board, currently found in 43 CFR 4.401(c). Paragraph (b)(1) will state 
the general requirement that any person or entity who files a document 
in an appeal must also serve the document under the terms specified in 
this section (Sec.  4.407) and in the OHA Standing Orders on Electronic 
Transmission and the OHA Standing Orders on Contact Information.
    Paragraph (b)(2)(i) will require that any person or entity filing a 
notice of appeal with the Board must serve a copy of it concurrently on 
the office of the officer who made the decision; each person or entity 
named in the decision on appeal; the appropriate official of the Office 
of the Solicitor as set forth in subparagraph (b)(2)(iii); and if the 
decision involved a mining claim on national forest land, then on all 
parties who participated in the proceeding below. Paragraph (b)(2)(ii) 
will require that any person or entity filing any other document with 
the Board must serve a copy of it concurrently on the appropriate 
official of the Office of the Solicitor and on all other parties to the 
appeal, including intervenors. Paragraph (b)(2)(iii) will address who 
the appropriate official of the Office of the Solicitor is by requiring 
parties to serve the Office of the Solicitor as provided in the OHA 
Standing Orders on Contact Information until a particular attorney of 
the Office of the Solicitor files and serves a document in the appeal, 
after which time parties must serve the particular attorney.
    Paragraph (b)(3) will retain the current rule's requirement, in 
Sec.  4.401(c)(2), that service on parties known to be represented by 
an attorney or other designated representative must be made on the 
representative.
    Paragraph (b)(4) will specify the address parties should use to 
serve their filings on other persons or entities. First, it will 
require every person or entity who files a document in connection with 
an appeal to provide the physical or electronic address that the person 
or entity intends to use for service in the appeal. If a person or 
entity wants to receive service by electronic mail, the person or 
entity will be required to consent to electronic service. The 
requirement to consent to electronic service is also stated in 
subparagraph (b)(6)(i), which allows a party to serve others 
electronically only if they have consented to electronic service in 
writing under the terms specified in the OHA Stating Orders on 
Electronic Transmission. If a person or entity has not consented to 
electronic service, then anyone serving a document on that person or 
entity will be required to use the mailing address in the person's or 
entity's most recent filing or, if there has not been any filing, the 
mailing address of the person or entity as provided by the bureau or 
office where the appeal originated.
    Paragraph (b)(5) will require that, when a party's mailing or email 
address changes while an appeal is pending, the party must promptly 
file and serve a written notice of the change identifying the appeal or 
appeals to which the notice applies using the applicable docket number 
or docket numbers when available. The intent of this new paragraph is 
to clarify that it is a party's responsibility to keep its service 
address up to date.
    Paragraph (b)(6) will direct how service may occur. In paragraph 
(b)(6)(i), we will modernize our service requirements by allowing 
service to be

[[Page 2369]]

made electronically on the Office of the Solicitor and the bureau or 
office whose decision is being appealed as specified in the OHA 
Standing Orders on Electronic Transmission. Also, this paragraph will 
retain the option to serve other persons or entities electronically 
when the person or entity to be served has consented to electronic 
service in writing as specified in the OHA Standing Orders on 
Electronic Transmission. Paragraph (b)(6)(ii) will address non-
electronic service and provide that any document may be served non-
electronically by United States mail or commercial courier for delivery 
within three days.
    Paragraph (b)(7) will retain the requirement in existing Sec.  
4.401(c)(5) that a party must certify that service has been or will be 
made and specify the date and manner of service.
    Paragraph (b)(8) will update and simplify when service is complete. 
Under the current rule at Sec.  4.401(c)(6), service is complete when a 
document is ``[d]elivered to the party.'' The interim final rule will 
address both electronic and nonelectronic service, providing that 
service by electronic means is complete on sending or as otherwise 
directed by the OHA Standing Orders on Electronic Transmission, unless 
the party making service is notified that the document was not received 
by the party served, and service by mail or commercial courier will be 
complete on mailing or delivery to the carrier. By revising the rule so 
that service of a non-electronic document by mail or commercial courier 
is complete ``on mailing or delivery to the carrier,'' we will 
eliminate the uncertainty associated with determining when a document 
is actually delivered to a party. The rule will also specify that the 
date of mailing or delivery must be documented by a postmark date, 
acceptance scan, receipt, or similar written acknowledgment from the 
carrier delivering the document. We therefore will no longer need 
current Sec.  4.401(c)(7), which specifies that in the absence of 
evidence to the contrary, delivery is deemed to take place five 
business days after the document was sent.
    Paragraph (c) will provide new language simplifying how deadlines 
are computed when documents are not served electronically. It will 
provide that when a party may or must act within a specified time after 
being served, and the document is not served electronically or 
delivered on the date stated in the proof of service, 3 days will be 
added to the deadline. This new method for computing deadlines 
associated with nonelectronically served documents is consistent with 
Federal Rule of Appellate Procedure 25.
    Finally, paragraph (d) will be a new provision about how the Board 
issues notices, orders, and decisions. The provision will state that 
the Board will issue notices, orders, and decisions to the party's 
electronic mail address unless the party requests otherwise. If an 
electronic mail address is not provided by the party in a document 
filed in the appeal or in a document filed in the proceedings below, 
then the Board will use the party's record address as provided under 
Sec.  4.22(b) or, if not provided, the party's last known mailing 
address.
Sec.  4.408 Document Formatting Requirements
    In Sec.  4.408, we will simplify and clarify the formatting 
requirements for documents filed with the Board, including documents 
filed electronically. The interim final rule will modernize the current 
formatting requirements found in Sec.  4.401(d) to accommodate 
electronically filed documents, but it will not substantially alter the 
requirements contained in the existing rule.
    In paragraph (a), we will specify that the formatting requirements 
apply to all documents filed with the Board, both paper and electronic, 
excluding exhibits, attachments, and the administrative record. 
Paragraph (b) will identify the formatting requirements applicable to 
both paper and electronic documents and largely repeats the formatting 
requirements currently in Sec.  4.401(d)(2). New requirements will 
specify that each motion, brief, or other document must be filed 
separately, and documents filed electronically must be in electronic 
text-searchable portable document format (PDF) while maintaining 
original document formatting, unless specified differently in the OHA 
Standing Orders on Electronic Transmission. We will delete the 
requirement that documents be typewritten, printed, or otherwise 
reproduced legibly because electronic filing has made this a rare issue 
that we can address on a case-by-case basis.
    Like the current regulation, paragraph (c) will identify content 
that may be excluded from page limitations, for example, cover pages, 
tables of contents, certificates of service, and attachments.
    Finally, paragraph (d) will replace the provision currently in 
Sec.  4.401(d)(1)(ii), which provides that any document that does not 
comply with the formatting requirements ``may be rejected.'' Paragraph 
(d) will clarify that when a document does not comply with the 
formatting requirements, the Board may decide not to consider it. We 
included the phrase ``decide not to consider'' to clarify that the 
document will remain in the Board's files but will not be considered in 
resolving the appeal. The Board will issue an order stating that it 
will not consider the document.
Sec.  4.409 Motions
    The Board's procedural docket is robust--the Board adjudicates over 
500 non-dispositive motions each fiscal year. But the current 
regulations that govern motions practice are unorganized and 
incomplete, which has led to confusion for the parties practicing 
before the Board. To better serve these practitioners, we will revise 
our current regulations to move all motions under one section.
In General
    In paragraph (a)(1), we will replace the language in current Sec.  
4.407, which states that any motion filed with the Board must provide a 
concise statement of the reasons supporting the motion. Instead, we 
will add details to this requirement by specifying that any motion must 
be in writing, state with particularity the relief sought, and include 
the reasons it should be granted. We also will add a requirement in 
paragraph (a)(2) that any moving party must first confer with all other 
known parties to the appeal to determine whether they will agree to all 
or part of the relief sought in the motion before filing the motion 
with the Board, except for a motion by an appellant to withdraw or 
voluntarily dismiss an appeal or an adversarial motion, such as a 
motion to dismiss for lack of jurisdiction. A similar conferral 
requirement is currently in our extension-of-time regulation at Sec.  
4.405. By making this a requirement in our general motions regulation, 
we will promote amicable resolution of issues before the motion is 
filed. This should result in fewer motions needing to be filed and, 
when one is filed, reduce the time the parties must wait for the Board 
to rule on a motion. On the latter point, under the current 
regulations, any party may file a motion and the opposing party has 15 
days to respond. See 43 CFR 4.407(b). Our current regulations also 
require that we factor in the 10-day grace period if any response is 
filed by mail. See id. at Sec.  4.401(a). Oftentimes, however, we 
receive no response, or we receive a non-opposition at the end of the 
response period. Updating this rule to require all moving parties to 
make reasonable efforts to confer with all other parties before filing 
the motion will permit the Board to rule on unopposed motions more 
efficiently.

[[Page 2370]]

    Paragraph (a)(3) will provide that, except as provided in paragraph 
(b) about motions for extension of time or in a Board order governing 
filings in a particular appeal, any response to the motion be filed 
within 14 days after service, instead of 15 days after service as in 
the current regulation.
    Paragraph (a)(4) will be new and will allow a party to file a reply 
to a response to a motion no later than seven days after service of the 
response. The reply will be limited to 10 pages and could only address 
new issues or arguments raised in the response.
Extensions of Time
    Formerly Sec.  4.405, this provision in Sec.  4.409(b) will retain 
much of the former language. However, the meet-and-confer paragraph 
will be eliminated because we have to make that a general requirement 
rather than one limited to extensions of time. In addition, unlike the 
current rules which expressly prohibit responses to motions for 
extensions of time, see current Sec.  4.407(b), the interim final rule 
will allow any party that opposes the motion to file a response within 
three business days after the motion is filed. We also will reduce the 
time in which a document must be filed if the Board does not act on the 
motion before the document is due, from 15 days to 7 days after the 
original filing deadline. In addition, we will eliminate current Sec.  
4.405(f), which allows bureaus or offices one automatic extension of 30 
days to file an answer. Because we are changing Sec.  4.410(c) to 
expand the time that an answer is due, from 30 days to 60 days after a 
statement of reasons is filed, we believe the automatic extension 
provision will no longer be necessary.
Intervention and Amicus Curiae
    We will update and streamline our current intervention and amicus 
curiae regulation set forth in Sec.  4.406. We will include separate 
provisions addressing intervention (paragraph (c)) and amicus curiae 
(paragraph (d)).
    First, in paragraph (c)(1), we will change the 30-day intervention 
period to a 60-day period. Also, in paragraphs (c)(1) and (d)(3), we 
will require that all movants seeking to intervene or file a brief as 
an amicus curiae in a pending appeal serve their motion on all parties 
in the appeal. Our current regulations only require that parties serve 
other parties; no provision currently exists for requiring a non-party 
movant to serve documents filed with the Board on parties to the 
appeal.
    In paragraphs (c)(2) and (c)(3), we will continue to require a 
movant to either demonstrate that they had a right to appeal the 
decision in the first instance or show how they would be adversely 
affected if the Board reversed, vacated, set aside, or modified the 
decision being appealed. The Board considers these matters on a case-
by-case basis.
    In paragraph (c)(4), we will retain the Board's authority to grant, 
grant with limitation, or deny the motion to intervene, at which point 
the Board may allow the movant to file a brief as amicus curiae. We 
also will limit participation of an intervenor who had a right to 
appeal the decision under Sec.  4.402 (current Sec.  4.410) to the 
issues raised by the other parties to the appeal. This provision is 
intended to prevent an intervenor who had a right to appeal the 
decision but failed to do so from circumventing the appeal deadline and 
raising new issues that should have been raised in a separate appeal.
    In paragraph (d), we will address participation as amicus curiae. 
The current rule views such participation solely as an alternative that 
the Board may allow in lieu of granting a motion for intervention. The 
current rule thus does not address motions to participate as amicus 
curiae. Paragraph (d) will explicitly allow such motions and allow the 
Board to grant or deny them in its discretion. To assist the Board in 
exercising its discretion, the movant will state their interest in the 
appeal and tell the Board how a brief will contribute to resolving the 
issues on appeal. The interim final rule will also retain the 
distinction that a movant who is granted intervenor status will be a 
party to the appeal while an amicus curiae will not be a party to the 
appeal.
Consolidation
    Paragraph (e) will address consolidation and differs slightly from 
the current provision in Sec.  4.404. Instead of allowing consolidation 
if the facts or legal issues are the same or similar, the interim final 
rule will allow consolidation ``when they involve common factual or 
legal issues.'' The phrase is intended to be more specific than the 
current phrase, and like the current provision, it is intended to 
promote efficiency by avoiding duplicative adjudication. Any party may 
file a motion to consolidate two or more appeals pending before the 
Board. We have also retained our authority to consolidate appeals on 
our own initiative.
Suspension of Consideration of Appeal
    We will add a new provision in Sec.  4.409(f) addressing common 
motions to suspend consideration of an appeal while the parties, for 
example, attempt to settle the matter or wait for a judgment in a 
related Federal court case. Any party will be allowed to file a motion 
to suspend consideration of a pending appeal. If granted, the Board 
will toll any remaining filing deadlines until a date specified in a 
Board notice or order and could require the parties to file periodic 
status reports. This provision will also allow the Board to lift the 
suspension upon motion by any party or at the Board's initiative.
Motion for Evidentiary Hearing
    The regulation governing motions for evidentiary hearing in 
paragraph (g) is in substance identical to the existing rule at Sec.  
4.415. The current rule has five lettered paragraphs (a)-(e). The 
interim final rule instead uses numbered paragraphs, with paragraphs 
(1), (2), (3), and (4) substantively identical to existing paragraphs 
(a), (b), (c), and (e), respectively. As with the current rule, the 
interim final rule will allow any party to move the Board to refer an 
appeal to DCHD for a hearing before an ALJ. The moving party must 
specify in their motion what the issues of material fact are, what 
evidence must be presented by oral testimony, what witnesses need to be 
examined, and what documentary evidence needs to be explained, if any. 
The Board may order a hearing before an ALJ in DCHD if the movant can 
demonstrate that disputed issues of material fact exist which, if 
proved, would alter the disposition of the appeal, or that disputed 
factual or legal issues cannot be decided without holding a hearing to 
resolve them. We have retained the portion of the regulation that will 
require us, upon ordering a hearing, to specify the issues of fact upon 
which the hearing is to be held. We will continue under the regulation 
to order the ALJ to issue findings of fact on specified issues, a 
recommended decision, or a decision that will be final in the absence 
of an appeal. The hearing will be conducted under the Hearings 
Procedures that govern the practice before DCHD.
    The primary difference from the current hearing provision is the 
omission of the language in current Sec.  4.415(d). That section 
authorizes, but does not require, the Board to order three things in 
conjunction with a hearing: suspend the effectiveness of the decision 
under review; authorize the ALJ to specify additional issues; and 
authorize the parties to stipulate to additional issues with the 
approval of the ALJ. In the interim final rule, we will remove the 
authorization in current Sec.  4.415(d)(1) to suspend the effectiveness 
of the decision under review and will instead grant a stay

[[Page 2371]]

under Sec.  4.405 if the requirements of that section are met. We will 
also delete the remaining two authorizations addressing additional 
issues for the ALJ to consider. Instead, paragraph (4) will provide 
that the ALJ may consider other relevant issues and evidence identified 
after referral of the case for a hearing unless the Board orders 
otherwise. This provision authorizes the ALJ to specify additional 
issues and accept stipulations of the parties, so current Sec.  
4.415(d)(2)-(3) will be omitted as redundant.
Attorney Substitution and Withdrawal
    The Board currently does not have a procedural regulation governing 
the withdrawal or substitution of an attorney in a pending appeal. 
Withdrawal and substitution arise often enough that we will include a 
new provision to ensure consistency in the way they are handled. 
Paragraph (h)(1) will provide that a party can substitute an attorney 
by filing with the Board and serving a notice of substitution. The 
notice will be effective upon filing, and the Board will update its 
records accordingly upon receipt.
    In paragraph (h)(2), we will require an attorney seeking to 
withdraw as counsel without providing a substitute to file a motion to 
withdraw. The attorney will be required to serve the motion to withdraw 
on all parties to the appeal and on the attorney's clients. The 
attorney will be required to include in the motion pertinent contact 
information for the attorney's clients; a statement explaining why the 
withdrawal will not unfairly prejudice the attorney's clients, and a 
statement that the attorney has taken appropriate steps to protect the 
interests of the clients, such as giving the clients reasonable notice 
that provides adequate time for the employment of another attorney and 
surrendering files related to the appeal. Withdrawal will not be 
effective unless the Board grants the motion to withdraw, and the Board 
may condition or deny withdrawal to avoid prejudice to the clients and 
other parties.
Sec.  4.410 Briefs
    The Department's existing regulations set forth the briefing 
requirements for appeals before the Board in two provisions: 43 CFR 
4.412 specifies the requirements for statements of reasons and reply 
briefs, and Sec.  4.414 specifies the requirements for answers. To 
allow readers to find the Board's briefing requirements more easily, we 
will locate the requirements for statements of reasons, reply briefs, 
and answers in one section of the regulations entitled Briefs. In Sec.  
4.410, we have gathered the briefing requirements from existing 
Sec. Sec.  4.412 and 4.414 and addressed each type of brief in the 
chronological order in which it will be filed.
    Paragraph (a) will be new to the Department's regulations. 
Paragraph (a) will explain that Sec.  4.410 governs the briefing of an 
appeal before the Board. It will also require that a party seek the 
Board's permission to depart from those requirements when the party 
wishes to exceed a page limit, extend a deadline, file a brief not 
expressly provided for in this section, or otherwise depart from the 
requirements of Sec.  4.410. Only after a party has obtained the 
Board's permission to depart from the briefing requirements will it be 
allowed to file its brief. With the addition of this paragraph, the 
Board proposes removing as duplicative the current provisions in 
paragraphs 4.412(a), 4.412(d)(2), 4.414(b), which provide that the 
requirements for the specified briefs apply ``[u]nless the Board orders 
otherwise upon motion for good cause shown.''
Statements of Reasons
    In paragraph (b), we will make several more changes to the 
requirements for statements of reasons. First, we will change when a 
statement of reasons is due. Under the existing regulation, a statement 
of reasons is due no later than 30 days after the notice of appeal was 
filed. Frequently, parties will ask the Board to extend this deadline 
until after the bureau or office provides the appellant the record 
supporting the decision on appeal, allowing the appellant an 
opportunity to view the information upon which the bureau or office 
made its decision and tailor its arguments to that information. Some 
bureaus consistently provide the record to appellants and consent to 
these extensions, and others require appellants to file a request under 
the Freedom of Information Act to obtain the record. As a matter of 
practice, the Board routinely grants motions to extend the deadline to 
file a statement of reasons until after an appellant has an opportunity 
to review the bureau or office's record.
    For consistency, and to ensure that appellants are aware of all 
information supporting the decision on appeal, we will change the 
deadline for a statement of reasons to ``after the record on appeal is 
submitted to the Board.'' With this requirement and Sec.  4.406(a), the 
Board will require the bureau or office whose decision has been 
appealed to submit the record supporting the decision on appeal to the 
Board within 60 days from receiving the notice of appeal and serve it 
upon the appellant, and then allow the appellant 30 additional days to 
file its statement of reasons. This will allow the appellant to have 
the bureau or office's rationale for the decision when drafting its 
statement of reasons, which promotes fairness and eliminates the need 
for an appellant to file a Freedom of Information Act request to obtain 
the record.
    Second, we will add a provision to explain what an appellant must 
include in its statement of reasons for its appeal. In paragraph 
(b)(3), we will add a sentence stating that the statement of reasons 
must set forth with specificity all legal and factual errors alleged to 
have been made in the decision being appealed. This sentence will be 
added to the regulation for clarity, consistency, and transparency, and 
is consistent with Board precedent. See, e.g., Jean Public, 194 IBLA 
269, 273 (2019) (``[A]ppeals must be dismissed when an appellant fails 
to allege any legally cognizable error with a bureau's decision''); 
United States v. Fletcher De Fisher, 92 IBLA 226, 226-27 (1986) 
(dismissing appeal when appellant filed five-sentence statement of 
reasons making only conclusory allegations of error in each sentence 
because it ``does not adequately point out the basis for appellants' 
belief that the decision appealed from is in error''); United States v. 
Lewis Maus, 6 IBLA 164, 165 (1972) (``The statement [of reasons] does 
not meet the requirements of the rules of practice in that it does not 
point out the grounds upon which the decision appealed from is in 
error.''). We also will specify in paragraph (b)(4) that an appellant 
must include all arguments in support of the appeal in the statement of 
reasons and may not incorporate by reference arguments made in other 
documents. Consolidating an appellant's arguments in the statement of 
reasons facilitates the Board's review and helps ensure that an 
appellant complies with the page limit for statements of reasons. 
Appellants will still be able to attach declarations and other exhibits 
to their statements of reasons as authorized by Sec.  4.408(c) 
(Document Elements Excluded from Page Computations).
    Third, we will add a provision to this section about the issues a 
party may raise on appeal when the bureau or office provided an 
opportunity for participation in its decision-making process. This 
provision appears in current Sec.  4.410(c), in a regulation about who 
may appeal to the Board. We will move this provision to Sec.  4.410(b) 
about the briefing requirements because it is more relevant to the 
content of the statement of reasons than it is to the

[[Page 2372]]

entities that may file an appeal and therefore fits more logically in 
Sec.  4.410(b). Also, we will amend the existing provision in two ways: 
(1) We will change the phrase ``as party to the case, as set forth in 
paragraph (a) of this section,'' to simply ``a party,'' because, in 
this context, the other words are unnecessary; and (2) we will revise 
the provision to allow a party to raise on appeal not only those issues 
the party raised during its participation in the decision making 
process, but also any issues raised by anyone else who participated in 
the decision-making process. This expansion of the rule will allow for 
the possibility that a party intentionally did not raise an issue to 
the bureau or office because the issue was already adequately presented 
by another person or entity. A party should not be prevented from 
raising an issue on appeal that it did not raise below only because it 
chose not to duplicate other participation or burden the bureau or 
office with redundant comments or objections.
    Finally, with respect to statements of reasons, we will make three 
additional changes so that readers may find requirements where they 
most logically fit. We will move existing 4.412(b), about statements of 
standing in appeals related to land selections under the Alaska Native 
Claims Settlement Act, to Sec.  4.403(a)(2), where we will expand its 
requirements to all appellants. Please see the discussion of Sec.  
4.403(a)(2) for an explanation of that change. We also will remove the 
provision in paragraph 4.412(c) about summary dismissal for failure to 
file a statement of reasons because it is addressed by Sec.  4.412, 
Affirming without opinion. Last, we will remove the provision in 
paragraph 4.412(e) stating that the formatting requirements in existing 
paragraph 4.401(d) apply to statements of reasons because that 
requirement will be covered by Sec.  4.408, which provides the 
formatting requirements for any document filed in an appeal to the 
Board.
Answers
    Section 4.410(c) contains the requirements for the bureau or 
office's answer to the appellant's statement of reasons, which are 
currently set forth in existing Sec.  4.414. We will make several 
changes to the requirements for an answer. First, instead of stating 
that any person or entity served with a notice of appeal may file an 
answer, we will revise the requirement to state that the bureau or 
office may file one answer. Typically, the bureau or office is the only 
entity that files an answer. The change will have the effect of 
requiring any entity, other than the bureau or office whose decision is 
on appeal, who wants to participate in the proceeding to seek the 
Board's permission to intervene or file an amicus brief in the appeal. 
We anticipate that this change will have minimal effect on those with 
an interest in an appeal and will serve to clarify the requirements for 
properly participating in that appeal before the Board.
    Second, we will change the deadline for filing an answer from 30 
days after service of the statement of reasons to 60 days after service 
of the statement of reasons or an intervenor's brief filed in support 
of an appellant under paragraph (d). Although the existing regulation 
at Sec.  4.414(a) requires the bureau or office to file the answer 
within 30 days, the regulation at existing Sec.  4.405(f) allows one 
automatic 30-day extension of the deadline, which bureaus and offices 
routinely seek. To prevent the need to seek the automatic 30-day 
extension and make the appeals process more efficient for the 
Department, we will extend the deadline to 60 days. Also, because we 
will add paragraph (d), which will allow an intervenor in support of an 
appellant to file a brief within 14 days after service of the statement 
of reasons, we will allow the bureau or office to delay filing an 
answer until it receives both the statement of reasons and the 
intervenor's brief. This will allow the bureau or office to respond to 
the arguments of both the appellant and the intervenor in one answer, 
reducing the need to file two separate answers.
    In addition to these changes, we will remove the provision from 
existing paragraph 4.414(b)(2) that states that the party that filed an 
answer may not file any further pleading. The next document a bureau, 
office, or intervenor will file after an answer will be a sur-reply, 
which we will address in paragraph (f). We also will remove certain 
phrases and sentences from the requirements for filing an answer. The 
existing regulation at Sec.  4.414 refers in several places to the 
``answer or motion.'' Because we will add a new section of the 
regulations specifically addressing the requirements for motions (Sec.  
4.409), we will remove the references to motions from Sec.  4.410(c). 
Existing paragraph 4.414(c) states that, if an answer is filed or 
served after the time required, the Board may disregard it in deciding 
the appeal. We will remove that sentence from the requirements for 
answers because it is covered by Sec.  4.411, Sanctions. Finally, we 
will remove the provision in existing paragraph 4.414(d) stating that 
the formatting requirements in existing paragraph 4.401(d) apply to 
answers because that requirement will be covered by Sec.  4.408.
Intervenor Briefs
    We will add a new paragraph specifically addressing the 
requirements for intervenor briefs. Paragraph (d) will establish 
deadlines for intervenors to file a brief either in support of the 
appellant or the bureau or office. Subparagraph (d)(1) will require an 
intervenor in support of an appellant to file a brief within 14 days 
after service of the statement of reasons, and subparagraph (d)(2) will 
require an intervenor in support of the bureau or office to file a 
brief within 14 days after service of the answer. Allowing the 
intervenor to review the brief of the party it supports should allow it 
to omit duplicative arguments and tailor its briefing to its unique 
perspective. Subparagraph (d)(3) will limit an intervenor's brief to 20 
pages, excluding exhibits, declarations, or other attachments. 
Ordinarily, intervenors should be able to rely on the briefs of the 
party they support to make the relevant arguments, so they should 
require fewer pages than those allotted to the appellant and bureau or 
office. This is particularly true where the intervenor had a right to 
appeal the decision because Sec.  4.409(c)(4) will limit that 
intervenor's participation to those issues raised by the other parties 
to the appeal.
Reply Briefs
    The requirements for reply briefs are set forth in current Sec.  
4.412(d). We will move those requirements to Sec.  4.410(e) with a few 
changes. First, the existing requirements state that the filing of a 
reply brief is discouraged. We will remove that sentence and expressly 
allow appellants to file a reply to an answer because it is common for 
appellants to do so. Section 4.410(e) will allow the appellant to file 
one reply brief. The reply brief must be filed within 21 days after 
service of the answer or, if intervention has been granted in support 
of the bureau or office, within 14 days of service of the intervenor's 
brief. To limit repetitive arguments that do not meaningfully add to 
those that should have been contained in the statement of reasons, we 
revise the statement in existing paragraph 4.412(e)(2) that the reply 
brief is limited to the issues raised in the answer to specifying that 
it is limited to new issues raised in the answer or an intervenor's 
brief filed in support of the bureau or office. In other words, 
appellants will not be allowed to use a reply brief to raise new 
arguments not raised in their statement of reasons, the answer, or the 
intervenor's brief or to repeat arguments they already made in

[[Page 2373]]

their statements of reasons. We modeled this provision after United 
States Supreme Court Rule 15, which says, in briefing petitions for 
certiorari, ``Any petitioner may file a reply brief addressed to new 
points raised in the brief in opposition. . . .''
    Finally, as mentioned in the explanation of the changes to the 
requirements for statements of reasons, we will remove the provision in 
paragraph 4.412(e) stating that the formatting requirements in existing 
paragraph 4.401(d) apply to statements of reasons and reply briefs 
because that requirement will be covered by Sec.  4.408, which provides 
the formatting requirements for any document filed in an appeal to the 
Board.
Sur-Replies
    Paragraph (f) will state that the Board will not accept a sur-reply 
unless a party first files a motion demonstrating a compelling reason 
to file a sur-reply and the Board grants the motion. This provision 
will allow a party that filed an answer to file a sur-reply if it can 
show compelling reasons to do so, which is a change from the existing 
rule at Sec.  4.414(b)(2) that prohibits the party that filed an answer 
from filing any further pleading. We will add this provision after the 
requirements for a Reply Brief so that it appears in the order in which 
briefs will be filed chronologically.
Attachments
    In Sec.  4.410(g), we will add a provision addressing how the Board 
considers attachments to briefs. Paragraph (g) will expressly allow a 
party to attach exhibits, declarations, or other documents to a brief. 
This paragraph will then state, consistent with the Board's practice, 
that the Board will consider attachments to the extent it finds them 
reliable and relevant to the issues on appeal. Parties do not need to 
seek permission to attach exhibits, declarations, or other documents to 
statements of reasons, answers, intervenor briefs, and replies.
Notices of Supplemental Authority
    In Sec.  4.410(h), we will add a provision allowing the parties to 
file notices of supplemental authority after the statement of reasons, 
answer, and reply have been filed. The Board does not currently have a 
regulation to this effect, so the Board considers supplemental 
authority on a case-by-case basis. Adding a provision expressly 
addressing these notices will ensure consistency and reduce the 
possibility that a party will submit new briefing without the Board's 
approval under the guise of a notice of supplemental authority. The 
language in paragraph (h) will promote efficiency by limiting the 
number of pages for the notice and any response to the notice and 
specifying a deadline for a response, and it will be consistent with 
recent Board precedent. See, e.g., WildEarth Guardians, 196 IBLA 1, 30-
31 (2020) (explaining that the supplemental authority may only be 
authority that has come to a party's attention after that party's brief 
has been filed and could not have been presented to the bureau before 
it made its decision).
Sec.  4.411 Sanctions
    Sec.  4.411 will codify the Board's authority to enforce its rules 
and orders through appropriate sanctions, something the existing rules 
do not explicitly address. By doing so, the interim final rule will 
provide notice to all persons and entities appearing before the Board 
about the penalties that we may impose for failure to comply with the 
rules and Board orders. While failure to comply is not prevalent, it 
does happen, and we currently have express authority to sanction only 
in specified situations, such as for improper ex parte communications 
under current 43 CFR 4.27(b)(2) or for filing and service violations 
under the existing summary dismissal provisions of Sec.  4.402. Section 
4.411 will provide more general authority and eliminate the need for 
the existing summary dismissal provisions in Sec.  4.402(b)-(d). The 
existing summary dismissal provision in Sec.  4.402(a) will be replaced 
with Sec.  4.412(a), which allows the Board to affirm without opinion a 
challenged decision when an appellant fails to file a statement of 
reasons within the time required, which currently can result in summary 
dismissal pursuant to existing Sec.  4.402(a).
    Section 4.411 will authorize the Board to impose appropriate 
sanctions on any person or entity who violates the regulations in part 
4, an order of the Board, or any other statute or regulation that 
governs the appeal. Paragraph (a) will state that the sanction may 
include, after notice and opportunity for the person or entity to 
respond, dismissal of all or part of an appeal, denial of a motion, 
refusal to consider a filing, and the exclusion of evidence from 
consideration. Paragraph (b) will set out the circumstances under which 
the Board will, absent extenuating circumstances, sanction a party by 
dismissing its appeal. Specifically, the Board will dismiss the appeal 
if the appellant has failed to provide financial security when required 
by regulation or order; violated the regulations in part 4 repeatedly; 
or caused prejudice to another party because of a violation of a Board 
order or the regulations in part 4.
Sec.  4.412 Affirming Without Opinion
    Section 4.412 will provide two circumstances in which the Board 
will affirm a decision on appeal without issuing a detailed order or 
decision analyzing the appellant's arguments and the bureau or office's 
rationale.
    First, Sec.  4.412(a) will address the circumstance in which an 
appellant does not file a statement of reasons or state any reasons for 
its appeal in a filing with the Board. In this circumstance, paragraph 
(a) will authorize the Board to ``affirm without opinion'' the decision 
on appeal. Although the effect of summarily dismissing an appeal is 
similar to affirming the decision on appeal without issuing a decision, 
the term ``affirm'' more accurately reflects the result from an 
appellant's failure to articulate the reasons for its appeal. Under 
Board precedent, an appellant must show error in the challenged 
decision to prevail on appeal. See, e.g., Enterprise Field Services, 
LLC, 193 IBLA 313, 320 (2018) (``The appellant has the burden to show 
error in [the] decision.''); Wells J. Horvereid, 88 IBLA 345, 348 
(1985) (``The burden of proof is on appellant to show error in the 
decision appealed from''). Because this burden cannot be satisfied if 
the appellant fails to articulate any reasons for its appeal, the 
proper result is to affirm the challenged decision, as opposed to 
dismissing the appeal. See, e.g., Chugach Alaska Corp., 143 IBLA 127, 
132 (1998) (affirming the challenged decision because the appellant had 
not satisfied its burden of demonstrating error in the decision).
    Paragraph (a) will, in conjunction with Sec.  4.411 (sanctions), 
replace our existing summary dismissal authority in Sec.  4.402(a). 
Existing Sec.  4.402(a) provides that an appeal ``will be subject to 
summary dismissal'' for four specified reasons. Dismissal is a type of 
sanction that is now expressly authorized under Sec.  4.411, and that 
section lists the circumstances under which the Board will dismiss an 
appeal absent extenuating circumstances. But when an appellant fails to 
articulate the reasons for its appeal, it is more appropriate to 
summarily affirm the decision being appealed rather than dismissing the 
appeal and Sec.  4.412(a) addresses that situation.
    Section 4.412(a)'s use of the word ``may'' reflects that it is 
within the Board's discretion to affirm without an opinion and that the 
Board is not required to do so in all instances, e.g.,

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if the statement of reasons is belatedly filed and no prejudice is 
shown. This is consistent with the Board's prior practice. See United 
States v. Lee H. Rice, 2 IBLA 124, 126 (1972) (holding that when an 
appellant neglects to file a statement of reasons, the regulation 
stating that the appeal ``will be subject to summary dismissal'' does 
not require dismissal and the circumstances ``must be evaluated within 
the discretionary power of the Secretary's appellate authority'').
    Paragraph 4.412(b) will provide another circumstance in which the 
Board may affirm the decision on appeal without an issuing an opinion 
documenting reasons for doing so. This paragraph will address the 
circumstance in which a bureau or office has provided a previous level 
of administrative review before the appeal to the Board--for example, 
BLM State Director Review, review of a royalty decision by the Director 
of ONRR, or review by an ALJ in DCHD. Where a bureau or office decision 
has been reviewed by one of these bureau or office officials or an ALJ, 
this new regulation will authorize the Board to affirm the official's 
or ALJ's decision without opinion if the Board makes certain 
determinations. Specifically, the Board will have to determine that (1) 
the official or ALJ reached the correct result; (2) any errors in the 
decision were harmless or nonmaterial; and (3) the issues on appeal are 
squarely controlled by existing Board or Federal court precedent and do 
not involve the application of precedent to a novel factual situation, 
or the factual and legal issues raised on appeal are not so substantial 
that the appeal warrants the issuance of a written opinion by the 
Board. If the Board can make these three determinations, it will be 
able to affirm the decision on appeal without issuing a detailed 
opinion analyzing the appellant's arguments and the bureau, office, or 
ALJ's rationale.
    This new provision is similar to IBIA's ``affirming without 
opinion'' provision in Sec.  4.312(c). In the section of the preamble 
addressing that section, IBIA explains that the provision is based on a 
regulation for the Department of Justice's Board of Immigration 
Appeals, which requires its Board members to affirm the results reached 
below without opinion in the same circumstances included in Sec.  
4.312(c) and Sec.  4.412(b)(1)-(3). See 8 CFR 1003.1(e)(4) (2022). Like 
IBIA, the Board will adopt this practice to promote efficient docket 
management. Also, as IBIA explains, a Board order affirming without 
opinion does not reflect an abbreviated review of an appeal; it 
reflects the use of an abbreviated order to describe the Board's review 
where the regulatory requirements of paragraph (b) are met. As in 
paragraph (a), paragraph (b)'s use of the word ``may'' reflects that it 
is within the Board's discretion to affirm without opinion under this 
provision and that the Board is not required to do so.
    Paragraph (c) will state what must be included in a Board order 
affirming an appealed decision without opinion. Specifically, the 
Board's order must cite this section (Sec.  4.412), state that it 
affirms the decision on appeal, and expressly adopt the decision on 
appeal. Once the Board issues an order stating these three things, the 
Board's order will become the final decision for the Department and 
subject to judicial review.
Sec.  4.413 Scope of Review, Burden To Show Error, and Standards of 
Review
    We will add a new section that will set forth the scope of the 
Board's review, the appellant's burden to show error in the decision on 
appeal, and the Board's standard of review. The Department does not 
have regulations that address these topics, and we will add provisions 
codifying the Board's case law and providing clarity and consistency 
for those bringing and responding to appeals before the Board.
Scope of Review
    In paragraph (a), the Board will restate the principle that is set 
forth in current Sec.  4.1 (and new Sec.  4.1, with minor modification) 
that the Office of Hearings and Appeals, which includes the Board, 
``may hear, consider, and decide those matters [within the jurisdiction 
of the Department] as fully and finally as might the Secretary, subject 
to any limitations on its authority imposed by the Secretary.'' In the 
Board's decisions, we have cited this statement from Sec.  4.1 in 
explaining that the scope of our review is de novo.
    The Board's review authority is de novo in scope because we decide 
matters ``as fully and finally as might the Secretary.'' This means 
that unlike Federal courts, which are limited in their review to the 
administrative record created before the agency under the 
Administrative Procedure Act, the Board is ``not limited by the record 
before [a bureau] at the time it [made a decision on appeal] in 
determining the correctness of that decision.'' There are instances, 
therefore, when the Board may, in its discretion, accept and consider 
information provided by parties on appeal, in furtherance of carrying 
out our ``duty to have before us as complete a record as possible.'' 
SUWA, 191 IBLA 37, 44 (2017) (quoting Wyoming Outdoor Council, 160 IBLA 
387, 398 (2004)). Moreover, the Board's ``review is not limited to the 
theories upon which the parties have proceeded,'' Oregon Cedar Products 
Co, 119 IBLA 89, 93 (1991), and our de novo review authority ``includes 
the right to determine for ourselves any factual or legal question 
necessary to adjudicate an appeal.'' Benton C. Cavin, 83 IBLA 107, 125 
(1984). Paragraph (a) will codify these principles.
    In addition, paragraph (a) will state that the Board may affirm, 
modify, vacate, set aside, or reverse any decision properly brought 
before it for review, and may remand the matter as may be just under 
the circumstances. This statement will codify Board practice to provide 
clarity and transparency. The Board will use language that mirrors the 
authority in 28 U.S.C. 2106, which provides that an appellate court 
``may affirm, modify, vacate, set aside or reverse any judgment, 
decree, or order of a court lawfully brought before it for review, and 
may remand the cause and direct the entry of such appropriate judgment, 
decree, or order, or require such further proceedings to be had as may 
be just under the circumstances.'' The Board uses the terms ``vacate'' 
and ``set aside'' interchangeably because we interpret them to have the 
same meaning. See Black's Law Dictionary (8th ed. 2004) (defining ``set 
aside'' as ``to annul or vacate'').
Burden To Show Error
    In paragraph (b), the Board will codify the appellant's burden to 
show that the bureau, office, or ALJ made an error in the decision the 
appellant has appealed. This statement will be consistent with Sec.  
4.410(b)(3), which will specify that, in the statement of reasons, the 
appellant must set forth with specificity all legal or factual errors 
alleged to have been made in the decision on appeal. This statement 
will also be consistent with the Board's precedent. See, e.g., 
Enterprise Field Services, 193 IBLA at 320; Wells J. Horvereid, 88 IBLA 
at 348.
Standards of Review
    In paragraph (c), we will adopt general standards of review the 
Board will use in resolving appeals. Subparagraph (c)(1) will draw upon 
language in the APA to set forth the overarching standard of review the 
Board uses in every appeal. In 5 U.S.C. 706 (sec. 10(e) of the APA), 
Congress directed that courts reviewing agency action must, among other 
things, ``hold unlawful and set aside agency action, findings, and 
conclusions found to be . . . arbitrary, capricious, an abuse of 
discretion, or otherwise not in

[[Page 2375]]

accordance with law.'' 5 U.S.C. (2)(A). The APA also directs courts to 
set aside agency action after formal adjudication proceedings when they 
are unsupported by substantial evidence. 5 U.S.C. (2)(E). The Supreme 
Court explained the application of 5 U.S.C. 706(2)(A) and (2)(E) in 
Dickinson v. Zurko, 527 U.S. 150, 164 (1999): ``A reviewing court 
reviews an agency's reasoning to determine whether it is `arbitrary' or 
`capricious,' or, if bound up with a record-based factual conclusion, 
to determine whether it is supported by `substantial evidence.' ''
    Subparagraph (c)(1) of Sec.  4.413 will reference the APA standards 
for judicial review of agency action and, by doing so, codify the 
standard of review set forth in numerous Board decisions. See, e.g., 
Larry Marker, 194 IBLA 283, 290 (2019) (``[T]he Board will uphold [a 
decision] which has a rational basis that is stated in the decision and 
supported by facts of record demonstrating that the decision is not 
arbitrary, capricious, or an abuse of discretion.''); Desert 
Sportsman's Rifle and Pistol Club, Inc., 188 IBLA 339, 346 (2016) 
(``The Board will therefore set aside a BLM decision if we conclude it 
is arbitrary, capricious, an abuse of discretion, or lacks a rational 
basis supported in the record''); David L. Antley, 178 IBLA 194, 197 
(2009) (``BLM's exercise of its discretionary authority . . . must have 
a rational basis and be supported by facts of record demonstrating that 
an action is not arbitrary, capricious, or an abuse of discretion.''). 
Subparagraph (c)(1) does not apply to DCHD and therefore will not alter 
the requirement that, when reviewing grazing decisions issued by BLM, 
an ALJ in DCHD will not set aside the BLM decision if it is reasonable 
and represents substantial compliance with BLM's grazing regulations, 
in accordance with current 43 CFR 4.480(b) and 43 CFR 4.173(c)(2). 
Subparagraph Sec.  4.413(c)(1) will indicate the standard of review we 
will apply to the ALJ's decision, not the standard of review the ALJ 
will use in reviewing BLM's grazing decision. See, e.g., Southern 
Nevada Water Authority, 191 IBLA 382, 403 (2017) (holding that the ALJ 
erred by ``failing to accord BLM's decision, and the opinion of its 
experts, appropriate deference''). We recognize that applying the APA 
standards to all appeals before the Board, regardless of the subject 
matter, will be a change from historical Board practice, where the 
standard of review has sometimes varied by subject matter. For example, 
in reviewing a decision assessing civil penalties for violations of 
offshore oil and gas regulations, the Board stated that it will uphold 
the decision when there is a reasonable explanation for the agency's 
decision and a rational connection between the agency's findings and 
choice. Petro Ventures, Inc., 167 IBLA 315, 325 (2005). But in 
reviewing a BLM decision on an application for a right-of-way, the 
Board said it will uphold the decision ``when the record shows that the 
decision is based on a reasoned analysis of the factors involved, with 
due regard for the public interest, and no sufficient reason is shown 
to disturb BLM's decision.'' Harriet Natter, 181 IBLA 72, 82 (2011). By 
consistently applying the APA standards to appeals before the Board, 
subparagraph (c)(1) will provide consistency, transparency, and ease of 
application by both the Board and practitioners by invoking familiar 
standards backed by a long history of judicial case law.
    In subparagraph (c)(2), we will codify the principle, employed in 
appeals since the inception of the Board, that we review questions of 
law de novo, without deferring to the legal interpretations of the 
bureau, office, or ALJ. See, e.g., WildEarth Guardians, 196 IBLA 227, 
237 (2020); Davis Creek Mining Co., 194 IBLA 173, 188 (2019); United 
States v. Scavarda, 189 IBLA 9, 13 (2016); see also Statoil Gulf of 
Mexico LLC. 42 OHA 261, 289 (2011) (stating that the Board is not 
``obliged to defer to [a bureau's] legal interpretations'').
    In paragraph (c)(3), we will codify the principle that the Board 
will not overturn a bureau or office decision based on a ``harmless 
error,'' which we define as an error that does not prejudice a party or 
affect any party's substantial rights. This principle is based on the 
APA's ``prejudicial error'' rule, which directs courts reviewing agency 
decisions to take ``due account . . . of the rule of prejudicial 
error.'' 5 U.S.C. 706; see Shinseki v. Sanders, 556 U.S. 396, 406-11 
(2009) (explaining that the APA's prejudicial error rule summarizes the 
``harmless error'' rule courts apply in reviewing decisions by lower 
courts and administrative bodies); see also, e.g., Gino Foianini, 171 
IBLA 244, 251 n.7 (2007) (modifying an ALJ's decision ``to the extent 
it misstated the burden of persuasion,'' finding ``this misstatement is 
harmless error, as appellant did not satisfy'' the proper burden); 
ASARCO Inc., 152 IBLA 20, 27-28 (2000) (finding a bureau's failure to 
consider appellant's evidence was harmless error because appellant did 
not explain how consideration will have changed the analysis or 
result); Michael P. Grace, 50 IBLA 150, 152 (1980) (finding BLM's 
misstatement of the county in which a lease was located was harmless 
error because ``the lease was properly identified by number, and the 
well by section and township''). These provisions will provide 
transparency to the public and a greater understanding of how the Board 
resolves appeals.
Sec.  4.414 Interlocutory Appeals
    In the Department's current regulations, interlocutory appeals to 
the Board of an ALJ's ruling are governed by Sec.  4.28 in subpart B. 
Under that provision, a party may only appeal an ALJ's interlocutory 
ruling if the Appeals Board grants permission to do so and the ALJ 
either certifies the interlocutory ruling for appeal or abuses their 
discretion in failing to do so. The provision explains that permission 
for an interlocutory appeal will only be granted if the appellant shows 
``that the ruling complained of involves a controlling question of law 
and that an immediate appeal therefrom may materially advance the final 
decision.'' Finally, the current provision specifies that an 
interlocutory appeal does not operate to suspend a hearing before the 
ALJ unless the Board orders otherwise.
    The Department will carry these principles forward into this 
interim final rule with a few modifications. As explained in the 
preamble for subpart C, DCHD proposes its own interlocutory appeal 
regulation, Sec.  4.122, to address in more detail the requirements for 
seeking review of a non-final DCHD order. The regulation will specify 
the content of and deadlines for an application for the ALJ's 
certification of a ruling and a petition for the Appeals Board's 
permission to file an interlocutory appeal. DCHD's regulation will also 
clarify that an ALJ uses the standard currently set forth in Sec.  4.28 
to determine whether to certify the order or deny the application for 
certification. Specifically, the ALJ will determine whether ``[t]he 
order involves a controlling question of law about which there are 
substantial grounds for difference of opinion'' and whether ``[a]n 
immediate appeal will materially advance the completion of the 
proceeding.''
    The Board will add a complementary section to subpart E, Sec.  
4.414, which confirms Sec.  4.122's applicability to interlocutory 
appeals from DCHD and specifies how the Board will decide whether to 
grant permission to file an interlocutory appeal. Like DCHD's Sec.  
4.122(b), paragraph (a) will explain that permission to file an 
interlocutory appeal is a two-step process requiring an application in 
accordance with Sec.  4.122(d) asking the ALJ to certify the 
interlocutory order and a petition to the

[[Page 2376]]

Board for permission to file an interlocutory appeal under Sec.  
4.122(g).
    Paragraph (b) will state when the Board will grant permission to 
file an interlocutory appeal. Subparagraphs (b)(1) and (2) will specify 
that the Board will grant permission to file an interlocutory appeal if 
it (1) agrees with the ALJ that the interlocutory ruling involves a 
controlling question of law about which there are substantial grounds 
for a difference of opinion and that an immediate appeal will 
materially advance the completion of the proceeding or (2) determines 
that the ALJ abused their discretion by denying certification.
Sec.  4.415 Petition for Reconsideration
    In the Department's current regulations, requests for 
reconsideration of the Board's dispositive orders and decisions are 
governed by Sec. Sec.  4.21(d) and 4.403. Current Sec.  4.21(d), which 
applies to all units of the Office of Hearings and Appeals, provides 
that the Board may grant reconsideration of a decision only in 
extraordinary circumstances, where sufficient reason exists, when a 
request for reconsideration is filed within the time required by the 
regulations governing practice before the Board. The regulations 
governing practice before the Board are currently found in Sec.  4.403 
and provide additional requirements for reconsideration.
    We will move the detailed requirements for reconsideration of Board 
decisions from Sec.  4.403 to Sec.  4.415 and revising those 
requirements in several ways. We will remove the language in current 
Sec.  4.403(a), stating that the Board's decision is final agency 
action and effective on the date issued, because that principle will be 
stated in Sec.  4.21(b)(3). We will rephrase and reorder the provisions 
in the remaining paragraphs of Sec.  4.403--the provisions of 
paragraphs 4.403(b), (c), (d), (e), and (f)--so that Sec.  4.415 first 
addresses how petitions for reconsideration may be filed and then 
addresses when the Board will grant them.
    One change will appear throughout Sec.  4.415. We will replace the 
phrase ``motion for reconsideration'' with ``petition for 
reconsideration'' because motions generally are filed during a 
proceeding while petitions for reconsideration are filed after a 
proceeding.
    In Sec.  4.415(a), we will specify that parties may petition for 
reconsideration of only dispositive orders or decisions--those that 
finally resolve an appeal--instead of interlocutory decisions such as 
rulings on motions or petitions for a stay. The time in which a party 
may petition for reconsideration will remain 60 days, and the time for 
filing a response, which will be addressed in Sec.  4.415(c), will 
remain at 21 days. Both the petition and any response to the petition 
will be limited to 15 pages to discourage parties from rearguing the 
original bases of the appeal and encourage focusing on one or more of 
the three reasons for reconsideration identified in Sec.  4.415(b). 
Because the bases for reconsideration will be limited to one or more of 
the three reasons, we believe the page limits will be reasonable and 
promote efficiency. Paragraph (a) will also state that the deadline to 
file a petition for reconsideration cannot be extended. This paragraph 
will include the sentence in current Sec.  4.403(b)(2) stating that a 
motion for reconsideration may include a request that the Board stay 
the effectiveness of its decision.
    Finally, this paragraph will state that the Board will not accept a 
petition for reconsideration of a Board order affirming without opinion 
the decision on appeal under Sec.  4.412.
    In paragraph 4.415(b), we will state affirmatively that the Board 
will grant the petition for reconsideration only in extraordinary 
circumstances where sufficient reason exists, using the same language 
as in current Sec.  4.21(d). We remove the language in current Sec.  
4.403(c) that instructs those moving for reconsideration to 
``[s]pecifically describe the extraordinary circumstances that warrant 
reconsideration'' and ``[i]nclude all arguments and supporting 
documents,'' and replacing that language with the instruction that the 
moving party must establish that one of three enumerated reasons for 
reconsideration exists. We will move the statement that the Board will 
deny a petition that merely repeats arguments made in the original 
appeal from current Sec.  4.403(f)(1) to Sec.  4.415(b).
    Paragraph (b) will then specify, in subparagraphs (1) through (3), 
the three reasons that will warrant reconsideration. Before 2010, the 
regulation at Sec.  4.403 stated only that ``The Board may reconsider a 
decision in extraordinary circumstances for sufficient reason,'' 43 CFR 
4.403 (2009), and did not specify or provide examples of those 
circumstances. In a proposed rule in 2007, the Board explained that it 
``has had sufficient experience with the regulation to enable it to 
identify circumstances that have frequently been found `extraordinary' 
'' and decided to ``amend the regulation to provide guidance based on 
this experience.'' Interior Board of Land Appeals Procedures, 72 FR 
10454; March 8, 2007). In the final regulation in 2010, the Board added 
a list of examples of circumstances that may warrant the Board granting 
a motion for reconsideration. Interior Board of Land Appeals and Other 
Appeals Procedures, 75 FR 64655; October 20, 2010. Our additional 
experience since 2010 leads us to conclude that further refinement of 
these circumstances is warranted and will be beneficial to those who 
practice before the Board.
    Paragraphs (b)(1) through (3) will provide the exclusive list of 
reasons that, in our experience, covers all of the circumstances in 
which the Board will exercise its discretion to grant reconsideration.
    The first reason for reconsideration, which will appear as Sec.  
4.415(b)(1), will be that the Board misstated a material fact, 
resulting in an erroneous decision. This reason is similar to the first 
example of an extraordinary circumstance in the current regulation at 
Sec.  4.403(d)(1), which is ``[e]rror in the Board's interpretation of 
material facts,'' but the new language clarifies that it will not be 
sufficient to simply fault the Board's factual finding or 
interpretation of the facts. Instead, the moving party will be required 
to show that the Board misstated a fact, and that the Board's reliance 
on that misstated fact resulted in an erroneous decision. The fact that 
a party disagrees with the Board's interpretation of a material fact or 
its resolution of a disputed fact, however, does not amount to a 
``misstatement'' of that fact and will not justify reconsideration.
    The second reason for reconsideration, which will appear as Sec.  
4.415(b)(2), will be that evidence exists that was not before the Board 
at the time it issued the final decision and that demonstrates error in 
the decision. This language is in current Sec.  4.403(d)(4) as an 
example of an extraordinary circumstance that may warrant 
reconsideration. The Board will move language from current Sec.  
4.403(e), which requires the party moving for reconsideration on the 
basis of new evidence to ``explain why the evidence was not provided to 
the Board during the course of the original appeal,'' so it directly 
follows the language from current 4.403(d)(4). Section4.415(b)(2) will 
add that the petitioner must submit that evidence with the petition for 
reconsideration.
    The third reason for reconsideration, which will appear as Sec.  
4.415(b)(3), will be that the Board's decision failed to cite and 
address a binding statute, regulation, or decision that would require a 
different outcome in the decision. The reference to a binding 
``decision'' is intended to include judicial decisions as well as all 
types of

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binding Departmental decisions, including Secretary Orders and 
Solicitor M Opinions. The provision will also state that it will not be 
sufficient to argue only that the Board misinterpreted or misapplied 
the law cited in the decision, because that will amount to mere 
disagreement with the Board's decision, which is better addressed by 
seeking judicial review in Federal court.
    The Board's list of reasons for reconsideration will not include 
two examples of extraordinary circumstances that were included in the 
2010 rulemaking: recent judicial development and change in Departmental 
policy. With respect to recent judicial developments, in its 2007 
proposed rule, the Board cited the case of Amoco Production Co., 143 
IBLA 45, 54A-54E (1998), dismissed with prejudice, Civ. No. 1:99CV00538 
RMU (D.D.C. Aug. 28, 2002), as an example of the Board granting 
reconsideration on this ground. In that case, the Board was alerted to 
a ruling by the United States District Court for the District of 
Columbia, issued while the petition for reconsideration was pending, 
reaching a legal conclusion contrary to the Board's original decision. 
The Board found that the District Court's decision ``controls our 
disposition of this case on reconsideration.'' Amoco Production Co., 
143 IBLA at 54E. Besides this case, we found no published decision of 
the Board citing a recent judicial development as a basis for 
reconsideration. If the situation arises in the future, we believe 
reconsideration would be warranted only in the rare situation where the 
subsequent judicial decision was binding on the Board, and the interim 
final rule will allow that circumstance to serve as a basis for 
reconsideration under paragraph (b)(3).
    We also will remove a change in Departmental policy as a basis for 
reconsideration. While a Departmental policy expressed in a regulation, 
Secretary's Order, or Solicitor's Memorandum Opinion binds the Board, 
other Departmental policies do not. See, e.g., Center for Native 
Ecosystems, 182 IBLA 37, 53 (2012) (``[S]tatements of policy and 
instructional memoranda do not have the force and effect of law or 
establish binding legal norms unless they are issued pursuant to 
notice-and-comment under the Administrative Procedure Act''). When the 
Board proposed adding changes in Departmental policy as a basis for 
reconsideration in its 2007 proposed rule, it cited as examples Conoco, 
Inc., 164 IBLA 237, 241-42 (2005), Conoco, Inc., 115 IBLA 105, 106 
(1990), and Ladd Petroleum Corp., 107 IBLA 5, 8 (1989), none of which 
were decisions made in response to a petition for reconsideration. In 
each of these appeals, the Board applied a new regulation or a new 
interpretation of a regulation to a pending appeal where doing so would 
benefit appellants and there were no countervailing regulations, public 
policy considerations, or intervening rights. The application of the 
new policy or regulation was discretionary, and in at least one of 
these decisions, the basis for the Board's conclusion was the absence 
of a rational basis for the decision on appeal. Since the Board added 
this basis for reconsideration to the regulations, we have not applied 
this provision in any published reconsideration decision. Applying a 
new policy, opinion, or regulation retroactively to already decided 
appeals through reconsideration raises due process and fairness issues 
entirely different from those associated with a pending appeal because 
the parties would not have prior notice of the application of the new 
rule. To the extent the Board's decision fails to cite and address a 
binding regulation, Secretary's Order, or M-Opinion that existed before 
the Board issued its decision, a party could seek reconsideration 
citing paragraph (b)(3). We therefore will omit ``change in 
Departmental policy'' from the list of reasons for reconsideration.
    The list of three reasons for the Board to grant reconsideration is 
consistent with Federal Rule of Civil Procedure 59(e), Motion to Alter 
or Amend a Judgment, which Federal courts have found provide them 
discretion to grant a motion to alter or amend a judgment if there is 
an intervening change of controlling law, the availability of new 
evidence, or the need to correct a clear error. See Firestone v. 
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam). It is also 
consistent with Federal Rule of Civil Procedure 60(b), which provides 
that grounds for relief from a final judgment of a Federal court 
include mistake and newly discovered evidence that, with reasonable 
diligence, could not have been discovered in time to move for a new 
trial.
    The remainder of Sec.  4.415 draws upon the language in current 
paragraphs 4.403(b)(4) and (b)(5). Paragraph 4.415(d) will include the 
principle, currently stated in Sec.  4.403(b)(4), that a petition for 
reconsideration will not stay the effectiveness or affect the finality 
of the Board's order or decision unless so ordered by the Board for 
good cause. The language will replace ``the Board's decision'' with 
``the Board's order or decision'' because the Board issues dispositive 
orders and dispositive decisions.
    We also will add a sentence clarifying the effect of a stay on the 
finality of the Board's order or decision. The sentence will explain 
that, if the Board stays the effectiveness of the order or decision, 
that order or decision will not be final until the Board rules on the 
petition. We will retain the language in current Sec.  4.403(b)(5), 
stating that a party does not need to file a motion for reconsideration 
to exhaust its administrative remedies, but moving it to paragraph 
4.415(e).
    Finally, we will remove the language in existing Sec.  4.403(f)(2), 
stating that we will not grant a motion for reconsideration that seeks 
relief from legally binding consequences of a statute or regulation. A 
petitioner who only seeks that relief will not be able to show one of 
the three enumerated reasons for reconsideration, so this statement 
will no longer be necessary.
Sec.  4.416 Appeals of Wildfire Management Decisions
    In Sec.  4.416, the Board will revise language in current Sec.  
4.416 to clarify the deadline by which the Board must decide appeals of 
BLM wildfire management decisions. The existing regulation states that 
the Board must decide these appeals ``within 60 days after all 
pleadings have been filed, and within 180 days after the appeal was 
filed.'' The word ``and'' has caused confusion and uncertainty: if the 
Board must decide an appeal both in ``60 days after all pleadings have 
been filed'' and ``within 180 days after the appeal was filed,'' the 
effect of the regulation is to provide a shifting deadline of whichever 
event occurs first. Using only the deadline of 60 days after all 
pleadings have been filed is also uncertain because the Board does not 
know whether BLM will file an answer, or the appellant will file a 
reply in a particular appeal. To provide the most certainty, we will 
specify that the Board must decide an appeal of a BLM wildfire 
management decision within 180 days after the notice of appeal was 
filed. We will also state that the Board may issue an expedited 
briefing schedule to meet this deadline. Because this provision will 
remain in Sec.  4.416, the cross-references to Sec.  4.416 in 43 CFR 
4190.1(b), 5003.1(c) will remain accurate.
Sec.  4.417 Coordination With Judicial Review
    Section 4.417 will be new and will provide express, codified 
authority to the Board so that it may coordinate its work with that of 
the judiciary if a bureau or office decision is appealed to the Board 
and challenged in Federal

[[Page 2378]]

court at the same time. The Board continues to have jurisdiction to 
decide an appeal even when the decision at issue is being litigated in 
Federal court. But as the Tenth Circuit Court of Appeals has noted, 
``an IBLA appeal and a federal lawsuit proceeding on parallel tracks is 
not ideal and may undermine judicial and administrative efficiency, 
which the exhaustion doctrine is intended to protect.'' Farrell-Cooper 
Mining Co. v. U.S. Dep't of the Interior, 864 F.3d 1105, 1117 (10th 
Cir. 2017). These ``parallel tracks'' could significantly complicate 
and delay court proceedings if the Board were to rule on the bureau or 
office decision while the court is reviewing that same decision. 
Accordingly, the Board exercises its jurisdiction sparingly when an 
appellant has elected to seek judicial review concurrently with a Board 
appeal or when an appellant appeals a decision that is also the subject 
of judicial review.
    Under this section, when an appellant has sought judicial review of 
the appealed decision, the Board ``may suspend consideration or 
dismiss'' the appeal after providing notice to the parties. While the 
Board currently has implied authority to take these actions and has 
done so in the past, the paragraph makes that authority explicit and 
highlights a way the Board may ensure efficient coordination with the 
courts.
Sec.  4.418 Precedential Effect of Decisions and Orders
    We will add a new section that explains the differing legal 
significance of dispositive orders and decisions. In resolving an 
appeal, the Board will issue either a dispositive order or a decision. 
While each is binding on the parties to the appeal, only a decision 
establishes binding precedent on the Board and bureaus and offices for 
future appeals. An order has no precedential value. See, e.g., Colorado 
Environmental Coalition, 173 IBLA 362, 369 (2008). The Board has on 
occasion needed to remind parties that dispositive orders should not be 
cited as binding precedent in arguing their appeals. See, e.g., 
Southern Utah Wilderness Alliance, 177 IBLA 284, 286 n.2 (2009) 
(``Counsel are reminded that unpublished orders of the Board are not 
binding precedent.'').
    To provide the public and appellants with a clear understanding of 
the distinction, the section explains that dispositive orders ``resolve 
an appeal and are binding on the parties, but they are not 
precedential, and the Board is not obligated to follow or distinguish 
them in orders or decisions issued in other appeals.'' The regulation 
then explains that orders may nonetheless be appropriately cited to 
establish res judicata, estoppel, or the law of the case. It then 
contrasts orders with decisions, explaining that decisions ``are 
precedential'' and ``unless superseded or overruled, decisions may be 
cited as binding precedent in other appeals.'' We include the phrase 
``[u]nless superseded or overruled'' to reflect the fact that our prior 
decisions can be superseded by a change in law (statute or regulation) 
or overturned either by a subsequent Board decision, the OHA Director, 
or the Solicitor. By expressly stating the distinction by rule, the 
Board ensures the public understands this longstanding principle and 
why orders cannot be cited as binding precedent.

Subpart G--Rules Applicable to Proceedings Before the Director

    We will modify this subpart by modernizing the language, 
consolidating existing sections, and adding language to address and 
distinguish hearing requests from appeals. We also will add several new 
sections to codify specific rules applicable to the practice before an 
Ad Hoc Board or Hearing Official. The new Sec.  4.703 will codify 
procedures for hearings that were not previously provided in this part, 
and new Sec. Sec.  4.705 to 4.706 will provide specific guidance 
relating to other adjudications not covered by other subparts in this 
part. The new Sec.  4.704 will contain rules regarding reconsideration 
that are currently in Sec.  4.21(d) of this part.
Sec.  4.700 Scope
    We will define in this paragraph the scope of subpart G and its 
relationship to subparts A and B.
Sec.  4.701 Who May Appeal; Who May Request a Hearing
    We will modify this section to add a description of who may request 
a hearing from the OHA Director. The existing language of Sec.  4.700 
describing who may appeal to the OHA Director has been retained as 
paragraph (a) New language is as paragraph (b) to mirror that language 
with regard to hearing requests that are provided in other regulations 
or in Departmental policy.
Sec.  4.702 Appeals Procedures
    We will add a new Sec.  4.701 that provides timeframes and 
parameters for appeal procedures before the Director or the Ad Hoc 
Board. The new Sec.  4.701 combines the existing Sec. Sec.  4.701, 
4.702, and 4.704, and portions of the existing Sec.  4.703, and adds 
additional clarification regarding the procedures applicable to appeals 
to the Director. The breadth of cases considered for appeal by the 
Director or Ad Hoc Board is extremely varied and, as such, we will add 
basic appeal procedures to allow for consideration of the different 
types of matters that may be appealed.
Sec.  4.703 Hearings Procedures
    We will add a new Sec.  4.702 that provides timeframes and 
parameters for hearings before the Director or presiding officers 
appointed by the Director. This section also provides specific 
reference to the regulations applicable to hearings in Administrative 
Wage Garnishment proceedings and regulations applicable to referrals 
for a hearing from the National Indian Gaming Commission. These 
references clarify in OHA rules that these hearing matters are handled 
by the Director's Office and provide the applicable authority for 
clarity.
Sec.  4.704 Reconsideration
    We will move the existing Sec.  4.21(d) to this new section. The 
IBLA, IBIA, and DCHD each have reconsideration provisions in their 
rules. As such, the existing Sec.  4.21(d) only applies to matters 
before the Director and is more appropriately located here.
Sec.  4.705 Department of the Interior Employee Matters
    We will add a new Sec.  4.704 addressing employee matters that are 
regularly filed with the Director's Office but are unaddressed in the 
existing subpart G. These matters have constituted the bulk of the 
Director's Office docket in recent years. Because the matters are 
internal to the Department--the disputes are between the Department and 
its employees rather than external parties--the specific procedures 
applying to these matters are contained in a variety of Departmental 
policies rather than in published regulations. We may publish 
additional procedures regarding these employee matters in OHA Standing 
Orders issued by the Director, which are referenced in this section. 
The OHA Standing Orders will reference the existing Departmental 
policies and provide OHA-specific procedural guidance to employees 
involved in these matters.

Subpart H--Rules Applicable to Proceedings Under the White Earth 
Reservation Land Settlement Act

    The rules and procedures for determining the heirs of any person 
who dies entitled to receive compensation under the WELSA are presently 
located at 43 CFR 4.350-4.357. We will relocate these rules to subpart 
H, which is presently reserved, and to modernize, clarify, reorganize, 
and otherwise revise these rules to reflect current practice,

[[Page 2379]]

take advantage of technological advances, and make the rules more user 
friendly.
    To better inform potential heirs, virtually all of whom are not 
represented by counsel, the revisions will convert the rules to a 
question-and-answer format, divide the rules into more sections under 
several subheadings, and provide more detail and clarity. Use of the 
question-and-answer format is consistent with its use in part 30 
pertaining to OHA probates of trust or restricted property, and in 
current subpart D in the subsection concerning appeals of probate 
orders. Some of the rules are patterned after or reference as guidance 
the rules in part 30.
    The rules will also create procedures for reopening a closed case 
that are consistent with present practice, and more detailed procedures 
for handling a case remanded to the presiding officer by the Board of 
Indian Appeals. We believe the latter changes will obviate any need for 
the statement in Sec.  4.354(d) that ``[n]othing herein shall be 
considered as a bar to the remand of a case by the Board for further 
reconsideration, hearing, or rehearing after appeal.'' Therefore, this 
statement will be removed.
    We also will remove procedures that are never or rarely used. We 
will remove all rehearing procedures or references in Sec. Sec.  
4.352(c), 4.354, and 4.356 because no rehearing has been requested or 
conducted for at least the last decade.
    We also will remove Sec.  4.355. That section directs the Project 
Director to furnish the administrative judge with copies of 
modifications to the report of compensation due a decedent when the 
modifications are made after a final order determining heirs has been 
issued. However, the Project Director has never done so because it is 
unnecessary, given that the administrative judge does not determine 
compensation, and modifications to the report of compensation do not 
change the administrative judge's determination of heirs. The section 
contains other directions, but they do not govern actions in the heir 
determination process before OHA. Therefore, the entire section will be 
removed.
    Subpart H will contain newly defined terms, some of which will 
replace terms both defined and undefined in the existing regulations. 
To avoid confusing variation in terminology, this preamble often uses 
the newly defined regulatory terms when referring to the existing 
regulations. To facilitate understanding of the preamble, table 1, 
below, identifies the key newly defined terms in the regulations and 
the terms that they will replace in the existing regulations:

                   Table 1--Subpart H Regulatory Terms
------------------------------------------------------------------------
Newly defined regulatory term           Existing regulatory term
------------------------------------------------------------------------
final decision...............  final order or final order determining
                                the heirs or final order determining
                                heirs.
notice of the preliminary      notice of the preliminary determination
 decision.                      or notice of preliminary determination.
preliminary decision.........  preliminary determination of heirs or
                                preliminary determination.
presiding officer............  administrative judge.
------------------------------------------------------------------------

    Note also that the definition of ``party (parties) in interest'' 
will be modified not to include the Project Director. In provisions 
applicable to the parties in interest and the Project Director, the 
Project Director will be specifically referenced.
Cross Reference
    We will add a cross reference to subparts A and B of part 4, which 
contain rules generally applicable to all types of proceedings before 
OHA's Hearings Divisions and Appeal Boards, and to 43 CFR 4.310-4.318, 
which contain general rules applicable to proceeding before the Board 
of Indian Appeals.
General Provisions
Sec.  4.710 What is this subpart's authority and scope?
    Existing Sec.  4.350 addresses three topics: (1) the rules' 
authority and scope, (2) applicable definitions, and (3) applicable 
inheritance laws. We will address these topics in three separate 
sections--Sec. Sec.  4.710, 4.712, and 4.713--under a new subheading: 
``General Provisions.'' Consistent with Sec.  4.350, Sec.  4.710 
identifies the authority and scope of the subpart as applying to the 
heir determination process under WELSA.
Sec.  4.711 To what extent do other regulations and OHA Standing Orders 
apply?
    Existing Sec.  4.352(c) provides that any prehearing conference, 
hearing, or rehearing will be governed insofar as practicable by ``the 
regulations applicable to other hearings under [part 4] and the general 
rules in subpart B.'' We will amend and expand upon this provision in 
Sec.  4.711(a).
    Specifically, we will provide that the general rules contained in 
both subparts A and B will apply to the entire WELSA heir determination 
process unless they are inconsistent with the rules in subpart H or the 
rules in subparts A and B provide otherwise. This will help clarify 
which rules apply to the determination process to better inform the 
public.
    Changes to subpart A include those that will: (1) clarify that 
Sec.  4.3, which references provisions of part 1 on representation of 
parties, applies to all of OHA; and (2) add Sec.  4.6 consolidating 
into one section many definitions and acronyms repeated in various 
portions of part 4.
    In subpart B, Sec. Sec.  4.23(b) and 4.25 will authorize conducting 
status conferences and hearings by video, teleconference, or other 
suitable technology. Sec.  4.26 will clarify that a presiding officer 
may issue subpoenas to the extent authorized by law. Sec.  
4.27(a)(2)(v) will clarify that communications between employees of the 
WELSA Project Office or the Bureau of Indian Affairs (BIA) and OHA 
employees about a WELSA case are not ex parte communications unless the 
WELSA Project Office or BIA has filed a request for hearing, petition 
for reopening, or petition for reconsideration in that case.
    The other paragraphs of Sec.  4.711 will add provisions describing 
the extent to which other regulations and OHA Standing Orders apply. 
Paragraph (b) will state that specific portions of the rules in part 30 
governing the process for probating restricted land or trust property 
may be used as guidance in the determination process unless they are 
inconsistent with the rules in this subpart. Those portions pertain to 
the following topics: (1) presumption of death of an heir; (2) 
renunciation of an interest in an estate; and (3) formal hearing, 
discovery, and other procedures. Referencing specific formal procedures 
(topic (3)) rather than vaguely referencing ``the regulations 
applicable to other hearings under [part 4],'' as existing Sec.  
4.352(c) does, will provide clearer guidance for the public and the 
presiding officer.

[[Page 2380]]

    Paragraph (c) will clarify that the general rules in 43 CFR 4.310-
4.318 apply to appeals to the Board under subpart H unless they are 
inconsistent with the rules in subpart H. Paragraph (d) instructs that 
the OHA Standing Order on WELSA Proceedings issued by the OHA Director 
will also apply to the determination process.
Sec.  4.712 What definitions apply to this subpart?
    Existing Sec.  4.350(c) contains definitions applicable to the 
WELSA determination process. We will relocate them to Sec.  4.712. To 
promote clarity and brevity, we also will amend some of them and add or 
replace definitions directly or by including language that the new 
definitions section in subpart A applies to subpart H.
    Additions will include definitions of ``decedent,'' ``determination 
process,'' ``estate,'' ``final decision,'' ``heir,'' ``preliminary 
decision,'' and ``presiding officer'' in subpart H and ``judge'' in 
subpart A.
    ``Final decision'' and ``preliminary decision'' will supplant the 
undefined terms ``final order determining the heirs'' and ``preliminary 
determination of heirs'', respectively, used in the existing 
regulations. ``Final decision'' will be labeled as a decision rather 
than an order and defined to clearly differentiate it from an order 
upon reconsideration, order upon reopening, and order upon remand, all 
of which are final orders.
    The definition of ``administrative judge'' will be moved to subpart 
A, and ``administrative judge'' throughout subpart H will be replaced 
with ``presiding officer.'' This term has a broader meaning than 
administrative judge, including not only an administrative judge, but 
also other types of judges or appropriate officials. The broader 
meaning comports with recent and present practices of administrative 
law judges and Indian probate judges presiding over WELSA cases, and 
administrative judges on the Board hearing appeals. It affords the OHA 
Director the flexibility to assign appropriate officials to preside 
over WELSA cases, if necessary, for effective and efficient case 
management.
    Existing Sec. Sec.  4.356(a) and 4.354(a) state that a ``party 
aggrieved'' by an administrative judge's final decision may appeal or 
petition for reconsideration, respectively. ``Party'' is not a defined 
term, so we will identify who may take these actions by using the 
defined term ``party in interest'' rather than ``party.'' We also will 
replace the term ``aggrieved'' with the term ``adversely affected'' 
because ``adversely affected'' is more commonly used in OHA regulations 
and interpreted in OHA case law. We believe that a ``party in 
interest'' who is adversely affected by a final order and the Project 
Director, without consideration of any effect on the Project Director, 
are the persons who should be able to petition for reconsideration or 
appeal.
    This dictates that the Project Director will be removed from the 
definition of party (parties) in interest.'' The rules will be reworded 
elsewhere so that this change does not affect the Project Director's 
authority to seek review of WELSA decisions or orders.
    The definition of ``Project Director'' will also be amended to 
clarify that it includes a person in charge of the WELSA project 
pursuant to a contract executed under the Indian Self-Determination and 
Education Assistance Act, 25 U.S.C. 5321-5332, because this inclusion 
better describes the current Project Director.
Sec.  4.713 What law governs the determination of heirs?
    Existing Sec.  4.350(b) directs application of inheritance laws in 
accordance with WELSA, notwithstanding that the decedent may have died 
testate. That provision will be placed in a separate section, Sec.  
4.713, and reworded for clarity. This will include stating more 
specifically, as WELSA does, that the Minnesota inheritance laws of 
intestate succession in effect on March 26, 1986, apply.
Sec.  4.714 What authority does the presiding officer have during the 
determination process?
    Section 4.714 will list various actions a presiding officer may 
take and has no counterpart in the existing regulations. It is 
patterned after Sec.  30.120, which lists actions an OHA judge may take 
under part 30 when probating restricted land or trust property. 
However, for most of these actions, we will not include separate 
sections detailing parameters for those actions, unlike part 30, 
because most of these actions are rarely taken during a WELSA 
determination process. Instead, we will state in Sec.  4.711(b) that 
certain portions of part 30 may be used as guidance. This approach will 
clarify the presiding officer's authority without cluttering subpart H 
with provisions that will rarely be applied.
Sec.  4.715 How may minors or other legal incompetents be represented?
    Existing Sec.  4.357, which provides that minors and other legal 
incompetents who are parties in interest may be represented by 
guardians, has been relocated to Sec.  4.715.
Filing and Issuance
Sec.  4.720 Where and how must documents be filed with the presiding 
officer?
    The existing WELSA regulations contain no provisions addressing 
where and how documents must be filed with the presiding officer. 
Section 4.720 will provide that documents must be filed with the 
presiding officer as specified in the OHA Standing Order on WELSA 
Proceedings, including requiring that the Project Director and 
attorneys must file electronically unless otherwise specified or 
allowed by the presiding officer. The OHA Standing Order on WELSA 
Proceedings will provide the proper address and methods for filing 
either electronically or non-electronically. These changes will 
accommodate the electronic filing of documents and maintaining of up-
to-date addresses.
Sec.  4.721 When is a filing with the presiding officer timely?
    The existing WELSA regulations do not contain any provisions 
specifically addressing when a filing with the presiding officer is 
timely. However, existing Sec.  4.352(c) states that the general rules 
in subpart B--which address, among other topics, filing requirements--
apply insofar as practicable.
    In subpart B, existing Sec.  4.22(a) states that a document is 
filed when it is received during regular business hours in the office 
where the filing is required. This requirement is changed by Sec.  
4.721, which will provide that a document electronically filed is 
deemed timely if received by 11:59 p.m. Central Time on the date the 
document is due, and that a document filed non-electronically is 
considered filed on the date it is sent by first-class United States 
mail or dispatched to a commercial carrier if certain conditions are 
met.
Sec.  4.722 To whom will a presiding officer issue a notice, order, or 
decision?
    Existing Sec. Sec.  4.352(b)(1), (b)(3), and (c) and 4.354(b) and 
(c) require that certain specified orders and notices be issued by the 
administrative judge to each party in interest. Section 4.722 will 
apply this requirement to every notice, order, or decision of the 
presiding officer to compile a complete record.
Sec.  4.723 By what means may the presiding officer issue a notice, 
order, or decision?
    Existing Sec. Sec.  4.352(b)(1), (b)(3), and (c) and 4.354(c) 
require that certain

[[Page 2381]]

specified orders and notices of the administrative judge be mailed to 
each party in interest. Section 4.723 will give a person the option to 
receive all notices, orders, and decisions of the presiding officer 
electronically or non-electronically under the terms specified in the 
OHA Standing Order on WELSA Proceedings. Non-electronic methods will be 
U.S. mail or commercial courier.
Sec.  4.724 How will issuance of a presiding officer's notice, order, 
or decision be documented?
    Existing Sec.  4.352(b)(1) requires the administrative judge to 
cause preparation of a certificate identifying the date and manner of 
mailing of the preliminary decision and notice thereof. Section 4.724 
will modify this requirement by requiring that the date and method of 
issuance, as well as the names of the persons to whom each document is 
issued, must be included in the document itself rather than a separate 
certificate. This change will enhance efficiency and provide the public 
with the pertinent information in one document instead of two. To 
compile a complete record, Sec.  4.724 will also apply the requirement 
to each notice, order, or decision rather than just the preliminary 
decision and notice.
Commencement of Determination Process
Sec.  4.730 How does the Project Director commence the determination 
process?
    Existing Sec.  4.351 describes how the heir determination process 
is commenced by the Project Director and that no process will be 
commenced if a certain type of heir determination already exists. For 
clarity and ease of use, we will reorganize, reword, and separate the 
description into two sections under a new subheading: ``Commencement of 
Determination Process.''
    Section 4.730 will simplify and reword the language of existing 
Sec.  4.351(a) to state generally how the process will commence.
Sec.  4.731 What evidence must the Project Director file with the 
presiding officer?
    Existing Sec.  4.351(a) requires the Project Director to file with 
the administrative judge ``all data . . . shown in the records relative 
to the family of the decedent.'' This language will be reworded in 
Sec.  4.731(a), requiring ``sufficient evidence to enable the presiding 
officer to determine the decedent's heirs under the Act.'' This 
sufficiency requirement will promote full development of the records 
before they are transmitted to the presiding officer, promoting 
efficiency and minimizing the need for the presiding officer to request 
additional information or dismiss a case to gather sufficient evidence.
    Section 4.731 will also require specific information. Except for 
the following information, the specific information is also required in 
existing Sec.  4.351(b): dates of births and deaths of the parties in 
interest and copies of documents evidencing these dates and whether the 
relationships of decedent's potential heirs and other known parties in 
interest arose by marriage, blood, or adoption.
Sec.  4.732 What will the presiding officer do after receiving the 
evidence filed by the Project Director?
    Existing Sec.  4.352 describes the process by which the 
administrative judge issues a preliminary decision and final decision, 
including the Project Director's involvement in notifying the parties 
in interest of the preliminary decision. We will separate this 
description into numerous sections under three new subheadings: 
``Commencement of Determination Process,'' ``Preliminary Decision--
Content, Notification, Objections,'' and ``Final Decision and Lodging 
of Record.''
    Existing Sec.  4.352(c) provides that when the administrative judge 
determines either before or after issuance of a preliminary decision 
that there are issues of fact, or when a party objects to the 
preliminary decision and/or requests a hearing, the administrative 
judge may pursue various options to resolve the issues and then enter a 
final decision. Section 4.732(b) will expand the list of options in 
that the presiding officer may take to resolve issues of fact to 
include any action authorized by subpart H.
    Existing Sec.  4.352(b) and (c) are ambiguous as to whether 
issuance of a preliminary decision is always required and may be 
interpreted as allowing issuance of a final decision without first 
issuing a preliminary decision if there are issues of fact. Section 
4.732(c) and (d) will clarify that the presiding officer will issue a 
preliminary decision if no hearing is held but may issue a final 
decision without first issuing a preliminary decision if a hearing is 
held.
Preliminary Decision--Content, Notification, Objections
Sec.  4.740 What must the preliminary decision determining decedent's 
heirs contain?
    Section 4.740 will require that the preliminary decision contain 
the same contents as required under existing Sec.  4.352(b).
Sec.  4.741 How will notification of the preliminary decision be 
provided?
    Section 4.741 will set forth the process for notifying parties in 
interest of the preliminary decision. That process will generally be 
the same as the process established in existing Sec.  4.352(b)(1) and 
(2), with the following clarifications or differences. Section 4.741(a) 
will clarify that the notice of the preliminary decision will be issued 
on the same day that the preliminary decision is issued. Section 
4.741(b) and (c) will remove the Minnesota Chippewa Tribe from the list 
of sites where posting of the notice is mandatory; remove the addresses 
of the mandatory posting sites; remove the list of sites where posting 
may be deemed appropriate by the Project Director; and provide that the 
OHA Standing Order on WELSA Proceedings on OHA's website will specify 
the addresses of the mandatory sites and any additional appropriate 
sites identified by the Project Director. This will allow for changes 
in addresses and locations without the need to amend the regulations.
Sec.  4.742 What evidence of posting of the notice of preliminary 
decision must be filed with the presiding officer?
    Section 4.742 will retain but reword for readability the provisions 
of existing Sec.  4.352(b)(2) for preparation and filing of 
certificates regarding the posting of the notice of the preliminary 
decision.
Sec.  4.743 What are the filing requirements for objecting to a 
preliminary decision and requesting a hearing?
    Existing Sec.  4.352(b)(1) and (3) imply but do not specifically 
state that a party in interest may file a written objection or request 
for hearing after a preliminary decision is issued. Section 4.743 will 
specifically state that they may file a written objection and that the 
objection may include a request for hearing, as opposed to filing a 
request for hearing separate from an objection. Section 4.743(b) will 
specify the following new details that must be included in an 
objection: an allegation of error of fact or law in the preliminary 
decision; a specific and concise statement of the grounds on which the 
objection is based; and if the objection includes a request for 
hearing, the disputed issues of fact.

[[Page 2382]]

Sec.  4.744 What happens if no timely objection to the preliminary 
decision is filed?
    Existing Sec.  4.352(b)(3) states that a final decision will be 
issued if no request for hearing or written objection is timely filed 
after issuance of a preliminary decision. Section 4.744 will state that 
a final decision will be issued if no timely written objection is 
filed; any request for hearing will be included in the objection 
pursuant to Sec.  4.743(c).
Sec.  4.745 What happens if an objection to the preliminary decision is 
filed?
    Existing Sec.  4.352(c) provides that when a party objects to the 
preliminary decision and/or requests a hearing, the administrative 
judge may pursue various options to resolve the issues of fact and then 
enter a final decision. Section 4.745 will generally follow this 
approach but add detail as to when the presiding may deny an objection 
without providing the parties in interest and Project Director with the 
opportunity to file responses to the objection, and when the presiding 
officer will provide them with this opportunity and copies of the 
objection and any supporting papers. Section 4.745 also specifically 
requires resolution of the objection in the final decision, unlike 
Sec.  4.352(c).
Final Decision and Lodging of Record
Sec.  4.750 What must the final decision determining decedent's heirs 
contain?
    Existing Sec.  4.352(b) and (d) specify the same heir information 
as content requirements for the preliminary decision and final 
decision, respectively. Section 4.750 will specify the same content 
requirements for the final decision and add to them, including that the 
final decision must resolve any objection to the preliminary decision, 
set forth the reasons for the resolution, and notify any party in 
interest who is adversely affected by the final decision, and the 
Project Director, of their right to petition for reconsideration of or 
appeal the final decision.
    Existing Sec.  4.352(b)(3) states that the administrative judge 
will issue a final decision declaring the preliminary decision to be 
final if no written objection to the preliminary decision or request 
for hearing is filed with 40 days of issuance of the preliminary 
decision. Section 4.750 will modify this somewhat, providing that the 
heir information may be incorporated from the preliminary decision into 
the final decision if no timely objection to the preliminary decision 
is filed within 40 days or if otherwise appropriate. This change 
comports with current practice.
Sec.  4.751 What happens to the determination process record and what 
must it include?
    Section 4.751 will contain the same requirements as existing Sec.  
4.353 for lodging the determination process record and its contents, 
except: (1) the public notice of hearing and certification thereof will 
not be specifically listed in the content requirements because the 
record rarely contains these documents, given that hearings are rarely 
conducted, and the presiding officer may include any such documents 
under the catchall provision of documents deemed relevant; (2) the 
content requirements will not include a certificate or proof of mailing 
for each notice and the final decision because the distribution 
information for each notice, order, or decision will be contained in 
the document itself rather than a separate document pursuant to Sec.  
4.724; and (3) each notice, order, or decision will be included in the 
record, whereas Sec.  4.353 only requires that certain notices and 
orders be included.
Reconsideration of Final Decision
Sec.  4.760 How can a final decision be challenged?
    Section 4.760 will identify the options for challenging a final 
decision.
    Section 4.354 states that a ``party aggrieved by'' a final decision 
may petition for reconsideration, but the term ``party'' is not defined 
and ``aggrieved'' is not commonly used by OHA. We to clarify in Sec.  
4.760 that a ``party in interest adversely affected'' by a final 
decision, or the Project Director, may file a petition. ``Party 
(parties) in interest'' is a defined term and ``adversely affected'' is 
more commonly used in OHA regulations and interpreted in OHA case law 
than ``aggrieved.'' We will also clarify that these entities may either 
file a petition for reconsideration with the presiding officer or file 
an appeal with the Board under Sec.  4.783, but not both.
Sec.  4.761 What are the requirements for filing a petition for 
reconsideration?
    Section 4.761 will detail the filing requirements for a petition 
for reconsideration. Existing Sec.  4.354(a) sets a deadline of 30 days 
after the date of mailing of the final decision to file a petition. 
Section 4.761(a) sets the same deadline: 30 days after the date of 
issuance of the final decision, i.e., the date it is mailed or 
otherwise transmitted.
    Existing Sec.  4.354(a) contains content requirements for the 
petition, including that it must be under oath and that if it is based 
on newly discovered evidence, the petitioner must state justifiable 
reasons for the prior failure to discover and present the evidence and 
must provide witness affidavits describing the evidence. The petition 
content requirements of Sec.  4.761(b) will differ in that no 
affidavits or petitioner's oath will be mandated because the rules of 
evidence and procedure should be less formal in administrative 
proceedings, especially where, as in the determination process, the 
parties in interest are rarely represented by counsel. Section 4.761(b) 
will also more precisely define when the statement and description 
regarding newly discovered evidence are required. They will be mandated 
if the petition is based on evidence newly discovered after, or 
evidence that was unavailable before, issuance of the final decision.
Sec.  4.762 Does any distribution of the estate occur while a petition 
for reconsideration is pending?
    Section 4.762 will contain new language, modeled after 43 CFR 
30.238(f) and 30.239, that the Project Director must not initiate 
distribution of the estate while a petition for reconsideration is 
pending. If the petition is filed by a party in interest, the presiding 
officer will issue a notice of receipt of the petition to the Project 
Director as soon as practicable.
Sec.  4.763 How will the presiding officer decide a petition for 
reconsideration?
    Like existing Sec.  4.354, Sec.  4.763 will describe the process 
the presiding officer will follow to decide a petition for 
reconsideration. Section 4.354(c) states that the process will 
culminate in issuance of a ``final order upon reconsideration,'' 
whereas Sec.  4.763(a) states the process will result in issuance of an 
``order upon reconsideration,'' removing the word ``final'' to more 
clearly differentiate it from the ``final decision.''
    Section 4.354(b) describes the circumstances under which the 
administrative judge will deny a petition. Section 4.763(b) will state 
that denial is discretionary rather than mandatory under those 
circumstances (paragraphs (b)(1) and (b)(5)), add paragraphs (b)(2), 
(b)(3), and (b)(4) to the list of circumstances, and add language that 
the denial may occur without providing the Project Director and the 
parties in interest with an opportunity to respond to the petition.
    Section 4.354(c) contains procedures that apply if the petition is 
not denied under Sec.  4.354(b). Section 4.763(c) will reword the same 
procedures for clarity,

[[Page 2383]]

including allowing the Project Director and the parties in interest a 
reasonable, specified time in which to file a written response to the 
petition. We also will add a provision in Sec.  4.763(a) stating that 
the presiding officer may take any action listed in Sec.  4.732(b) to 
resolve any issues of fact.
Sec.  4.764 What will the order upon reconsideration contain?
    Section 4.764, like existing Sec.  4.354(c), will state that the 
presiding officer, in the order upon reconsideration, may affirm, 
modify, or vacate the final decision. However, they differ in several 
respects. First, under Sec.  4.764, the other option of denying the 
petition in accordance with Sec.  4.763(b) will be effectuated in the 
order upon reconsideration, whereas Sec.  4.354(b) provides for denial 
in a separate unnamed order. Second, Sec.  4.764 will require the 
presiding officer to state the reasons for selecting any of the four 
options, but this requirement only applies to a denial of a petition 
under Sec.  4.354(a). Third, Sec.  4.764, unlike Sec.  4.354, will 
provide that the order upon reconsideration contain a notice stating 
that any party in interest who is adversely affected by the order upon 
reconsideration, as well as the Project Director, have the right to 
appeal the order to the Board.
Sec.  4.765 How can an order upon reconsideration be challenged?
    Existing Sec.  4.356(a) provides that an order upon reconsideration 
may be appealed to the Board within 30 days of mailing. Section 4.765 
will state that an order upon reconsideration may be appealed to the 
Board as provided in Sec.  4.783, which allows an appeal within 30 days 
of the date of issuance of the order, which could be issued by mail or 
by electronic transmission.
    Existing Sec.  4.354(d) provides that successive petitions for 
reconsideration or rehearing are not allowed. Section 4.764 will also 
prohibit successive reconsideration petitions but will omit any 
reference to rehearing petitions because none have been filed in at 
least a decade.
Reopening of Closed Case and Correction of Errors
Sec.  4.770 What are the methods and standards for reopening a closed 
case?
    OHA has found that reopening's of closed cases are occasionally 
necessary to correct errors of fact or law in a final decision, but the 
existing regulations do not address reopening a closed case. Therefore, 
we will add new provisions addressing reopening, including Sec.  4.770, 
which will set forth the methods and standards for reopening a closed 
case.
    Under paragraph (b), methods for instituting a reopening will be 
the filing of a petition for reopening by an adversely affected party 
in interest or the Project Director, or the presiding officer reopening 
on their own initiative. Under paragraph (c)(1), an error will have to 
be discovered more than 30 days after the final decision's date of 
issuance; otherwise, the appropriate remedy will be to file a petition 
for reconsideration. If a reopening is sought more than 3 years after 
the final decision's date of issuance, reopening will be permitted 
under paragraph (c)(2)(ii) only if the presiding officer finds that the 
need to correct the error outweighs the interests of the public and 
heirs in the final decision's finality.
Sec.  4.771 When must a petition for reopening be filed?
    Under Sec.  4.771, the Project Director will be permitted to file a 
petition at any time. All other petitioners will have to file their 
petitions within one year after the petitioner discovers the alleged 
error. Petitions for reopening filed before the deadline for filing a 
petition for reconsideration will be treated as a petition for 
reconsideration.
Sec.  4.772 What must be included in a petition for reopening?
    Under Sec.  4.772(a), a petition will be required to contain a 
statement of the grounds for the petition and the requested relief and 
to append relevant documentary evidence. Under paragraph (b), a 
petition by a party in interest will also be required to state the date 
of discovery of the error and to append relevant documentary evidence 
about when and how it was discovered. Under paragraph (c), a petition 
filed more than 3 years after the final decision will be required to 
show that the need to correct the error outweighs the interests of the 
public and heirs in the final decision's finality, and relevant factors 
will be listed.
Sec.  4.773 What is not appropriate for a petition for reopening?
    Section 4.773 will identify actions a petition may not take, 
including raising issues or objections that were previously addressed 
in an order issued in the case or when the petitioner had the 
opportunity to raise them earlier, and submitting evidence that was 
available or discoverable when the final decision was issued, or 
available during any period of reconsideration of the final decision.
Sec.  4.774 How will the presiding officer decide a petition for 
reopening?
    Section 4.774 will describe the method for deciding a petition as a 
two-stage process. First, under paragraph (b), the presiding officer 
will have the discretion to deny the petition under certain 
circumstances without providing the Project Director and the parties in 
interest an opportunity to respond to the petition. Those circumstances 
will include not meeting the standards set forth in Sec.  4.770(c); 
raising issues that were previously addressed in an order issued in the 
case or for the first time on reopening and the petitioner is a party 
in interest who received proper notice of the preliminary decision or 
hearing; basing the petition on newly discovered evidence which fails 
to meet the requirements of Sec.  4.761(b)(2); or otherwise failing to 
assert proper grounds for reopening.
    Second, under paragraph (c), if the presiding officer does not deny 
the petition, the presiding officer will issue a notice, along with a 
copy of the petition and any supporting papers, allowing the Project 
Director and the parties in interest a reasonable, specified time in 
which to file a written response to the petition. The presiding officer 
will then consider, with or without a hearing, the issues raised.
Sec.  4.775 How will the presiding officer decide a case reopened on 
their own initiative?
    Under Sec.  4.775, when a presiding officer reopens a case on their 
own initiative, they will issue a notice identifying the error, 
explaining how the presiding officer intends to modify the final 
decision to correct the error, and allowing the Project Director and 
any party in interest a reasonable, specified time in which to file a 
written response to the notice. They will then consider, with or 
without a hearing, the issues raised.
Sec.  4.776 What will the order upon reopening contain?
    Under Sec.  4.776, the presiding officer will have discretion in 
the order upon reopening to deny the petition for reopening, if any, in 
accordance with Sec.  4.774(b) or affirm, modify, or vacate the final 
decision. The order will also contain the reasons for doing so and a 
notice that any party in interest who is adversely affected by the 
order upon reopening, as well as the Project Director, have the right 
to appeal the order to the Board.

[[Page 2384]]

Sec.  4.777 What happens to the record after the presiding officer 
issues an order upon reopening?
    Section 4.777 will provide that the presiding must submit the 
record made on reopening to the Project Director.
Sec.  4.778 What are non-substantive errors in an order or decision and 
how may they be corrected?
    In Sec.  4.778, we will codify the present practice of a presiding 
officer being able to issue orders correcting non-substantive errors in 
an order or decision, either on their own initiative or pursuant to a 
request filed by the Project Director or any party in interest. A 
correction order will not be subject to appeal to the Board.
Finality and Appeal of Final Decision and Orders
Sec.  4.780 When will the final decision and orders upon 
reconsideration, reopening, or remand become final?
    Existing Sec. Sec.  4.352(c) and 4.354(c) state that an 
administrative judge's final decision or final order upon 
reconsideration become final 30 days from the date they are mailed. A 
separate section, Sec.  4.356(a), provides that either of these final 
documents may be appealed to the Board within 30 days of mailing. These 
provisions are in conflict because on the 30th day from the mailing 
date, the decision or order becomes final, yet it is still appealable 
on the 30th day.
    Section 4.780 will remedy this conflict and state more clearly: (1) 
that the presiding officer's final decision will become final on the 
expiration of the 30 days allowed for filing a notice of appeal or 
petition for reconsideration unless a notice of appeal or petition for 
reconsideration is timely filed; and (2) that an order upon 
reconsideration, order upon reopening, or order upon remand will 
similarly become final on the expiration of the 30 days allowed for 
filing a notice of appeal unless a notice of appeal is timely filed.
    As previously mentioned, Sec.  4.354(c) classifies an 
administrative judge's order addressing any of the following as a final 
order upon reconsideration: (1) a petition for reconsideration of a 
final order determining the heirs, (2) a reconsideration of a final 
order determining the heirs initiated by the administrative judge, or 
(3) issues before the presiding officer after the Board remands a case. 
We will treat order (1) as an order upon reconsideration, order (2) as 
an order upon reopening, and order (3) as an order upon remand.
Sec.  4.781 Which presiding officer decisions or orders may be appealed 
and who may appeal them?
    Existing Sec.  4.356 addresses numerous topics regarding appeals to 
the Board. For better clarity and readability, we will divide the 
topics into several sections and reword them.
    Section 4.356(a) states that a ``party aggrieved'' by a final 
decision or ``final order upon reconsideration'' may appeal to the 
Board. ``Final order upon reconsideration'' includes not only what the 
rules will refer to as an ``order upon reconsideration,'' but also what 
the rules will refer to as an ``order upon reopening'' and what is 
referred to as an ``order upon remand.'' All of these orders will be 
appealable to the Board and therefore Sec.  4.781 will list them and 
the final decision as appealable.
    Because the term ``party'' is not defined and ``aggrieved'' is not 
commonly used by OHA, we also will clarify in Sec.  4.781 that a 
``party in interest'' who is ``adversely affected'' by a listed 
decision or order, or the Project Director, may appeal. ``Party 
(parties) in interest'' is a defined term and ``adversely affected'' is 
more commonly used in OHA regulations and interpreted in OHA case law 
than ``aggrieved.''
Sec.  4.782 What happens if a petition for reconsideration and a notice 
of appeal are timely filed?
    The content of Sec.  4.782 is new. It will clarify that if both a 
petition for reconsideration and an appeal are timely filed, the Board 
will dismiss the appeal without prejudice and the presiding officer 
will issue an order upon reconsideration.
Sec.  4.783 When and how may a presiding officer's decision or order be 
appealed?
    Section 4.783(a) will reword Sec.  4.356(b) and part of Sec.  
4.356(d) for clarity and apply the 30-day deadline for filing a notice 
of appeal and the 30-day deadline for filing a statement of reasons not 
only to appeals of a final decision or order upon reconsideration, but 
also to appeals of an order upon reopening or order upon remand.
    Section 4.783(b) will contain a new provision, patterned after the 
revised version of Sec.  4.321(b). Paragraph (b) will require that both 
the notice of appeal and statement of reasons be signed by the 
appellant, the appellant's attorney, or other qualified representative 
and must be filed by electronic transmission, mail, commercial courier, 
or hand delivery, in accordance with Sec.  4.310(b).
Sec.  4.784 What are the requirement for serving the notice of appeal 
and statement of reasons?
    Section 4.784, like existing Sec.  4.356(a), will require the 
appellant to serve a copy of the notice of appeal on the Project 
Director and the presiding officer. However, there will be several 
differences. Section 4.356(a) requires service by mail, while Sec.  
4.784(a) will require service in accordance with Sec.  4.310(d), which 
allows for other methods under certain circumstances. Also, Sec.  
4.784, unlike Sec.  4.356, will apply its service provisions to the 
statement of reasons as well, including a new service requirement to 
provide a certificate of service.
Sec.  4.785 When will the determination process record be forwarded to 
the Board?
    Like existing Sec.  4.356(c), Sec.  4.785 will require the Project 
Director to ensure that the determination process record is 
expeditiously forwarded to the Board.
Sec.  4.786 What actions may the Board take to resolve a timely appeal?
    Section 4.786 will slightly reword but make no substantive changes 
to the actions in existing Sec.  4.356(d) and (e) that the Board may 
take to resolve a timely appeal.
Sec.  4.787 What happens to the record after disposition?
    Section 4.787 will be a new provision identifying what happens to 
the record after disposition on appeal.
Procedures After Board Remand
Sec.  4.790 What happens if the Board remands the case to the presiding 
officer?
    Existing Sec.  4.354(c) characterizes several types of orders, 
including an order upon remand, as a final order upon reconsideration, 
and states that the administrative judge will issue the order after 
considering, with or without a hearing, the issues of fact. It also 
contains a requirement that the administrative judge will, in 
appropriate cases, serve all parties in interest with a Board decision 
vacating and remanding a case and allow them a reasonable specified 
time to file responses.
    Section 4.790 will eliminate this requirement because the Board 
itself will serve its decision on those parties. Section 4.790 will 
provide more broadly that the presiding officer may, after a Board 
decision remanding a case and subject to any directions or restrictions 
in the Board's decision and Sec.  4.315, take any action authorized by 
subpart H to

[[Page 2385]]

resolve any issues of fact or law and will issue an order named ``order 
upon remand'' determining those issues. This broad authority will 
include allowing the parties in interest to respond to the Board 
decision when the presiding officer deems it proper.
Sec.  4.791 What will the order upon remand contain?
    Existing Sec.  4.354(c) states that the final order upon 
reconsideration (i.e., the order upon remand) will affirm, modify, or 
vacate the original final order (i.e., final decision). Because the 
Board may remand a case for findings of fact alone or other purposes 
that may not involve affirming, modifying, or vacating the final 
decision, Sec.  4.791 will require the order upon remand to resolve the 
issues of fact or law. This may or may not include affirming, 
modifying, or vacating the final decision.
    Section 4.791 will also include new provisions that require the 
order upon remand to include the reasoning for the resolution of the 
issues and a notice stating that any party in interest who is adversely 
affected by the order, as well as the Project Director, have the right 
to appeal the order to the Board.
Sec.  4.792 What happens to the record after the presiding officer 
issues an order upon remand?
    Section 4.792 contains a new provision stating that the presiding 
officer must submit the record made upon remand to the Project 
Director.

Subpart I--Specific Rules Applicable to Proceedings Under Part 17--
Nondiscrimination in Federally Assisted Programs

    The Interim final rule will shorten the title and update 
nomenclature in Subpart I by providing gender-neutral language, 
consistent with Executive Order 13988 on Preventing and Combating 
Discrimination on the Basis of Gender Identity or Sexual Orientation, 
signed by President Joseph R. Biden, Jr., on January 20, 2021. No other 
substantive changes will be made.

Subpart J--Specific Rules Applicable to Appeals Concerning Federal Oil 
and Gas Royalties

    Subpart J of the Department's regulations at 43 CFR part 4 contains 
the Specific Rules Applicable to Appeals Concerning Federal Oil and Gas 
Royalties. These regulations implement the Federal Oil and Gas Royalty 
Simplification and Fairness Act (FOGRSFA) and apply to appeals of 
decisions by the Office of Natural Resources Revenue (ONRR) determining 
royalties due the United States under Federal oil and gas leases.
    Under this rule, Subpart J will include a new, brief paragraph 
cross-referencing subpart A, which identifies the authority, 
jurisdiction, and membership of the Interior Board of Land Appeals 
(IBLA) within the Office of Hearings and Appeals, and subpart B, which 
contains the general rules applicable to proceedings before IBLA as 
well as the other units of the Office of Hearings and Appeals. Subpart 
J will also include a new section, 4.900, describing the scope of the 
subpart J rules. We also will change Sec. Sec.  4.903, 4.904, 4.906, 
and 4.409. We propose no changes to the remaining regulations in this 
subpart (Sec. Sec.  4.901, 4.902, 4.905, 4.907, and 4.908).
Sec.  4.900 Scope of Rules
    We will add new Sec.  4.900 to make clear that the rules in subpart 
J will govern appeals before IBLA concerning Federal oil and gas 
royalties. We will expressly state that the rules in subpart E are 
applicable to proceedings before the Board unless they are inconsistent 
with the rules in subpart J, and when there is a conflict between the 
regulations in subpart E and subpart J, the rules in subpart J will 
govern.
Sec. Sec.  4.903, 4.904, and 4.906 When does an administrative 
proceeding commence?
    Under FOGRSFA, 30 U.S.C. 1724(h), the Department has 33 months to 
resolve challenges to royalty decisions--or ``administrative 
proceedings''--starting when those proceedings are ``commenced.'' After 
33 months, the Department loses jurisdiction over an appeal of a 
royalty decision, and the decision is deemed either affirmed or 
reversed depending on the amount of money at issue (if under $10,000, 
the decision is deemed reversed, and if over $10,000, the decision is 
deemed affirmed).
    There is a difference between the language in FOGRSFA and the 
language in the Department's existing regulations with respect to when 
an administrative proceeding commences. This difference was highlighted 
and criticized by the United States Court of Appeals for the District 
of Columbia Circuit in Murphy Exploration & Production Co. v. U.S. 
Department of the Interior, 252 F.3d 473, 481, modified on other 
grounds on denial of petition for reh'g, 270 F.3d 957 (D.C. Cir. 2001). 
The Department's current regulation at 43 CFR 4.904(a) states that an 
``appeal'' ``commences'' when a notice of appeal is filed. The Court of 
Appeals held that this interpretation of the statute is inconsistent 
with the statute's text, which states that an ``administrative 
proceeding'' ``commences'' when an order has been issued and is subject 
to appeal. The Court opined that, by stating that an appeal commences 
when it is filed, the Department had read ```subject to appeal' out of 
the statute.'' Murphy Explo. & Prod. Co., 252 F.3d at 481 (citing 30 
U.S.C. 1702(18)).
    This difference between FOGRSFA and the Department's regulations 
can operate to give the Department an additional 2 months to decide a 
royalty appeal because appellants have 60 days to appeal a royalty 
order. But the Board is bound to follow the Department's regulations. 
See, e.g., Pac. Offshore Operators, Inc., 165 IBLA 62, 76 (2005) 
(``Duly promulgated regulationshave the force and effect of law and 
arebindingon theDepartmentand thisBoard.''). And for that reason, the 
Board has applied the Department's regulations despite the criticism of 
the Court of Appeals. Nevertheless, because of the inconsistency 
between the statute and the regulations, it is not uncommon for 
appellants to cite the Murphy Exploration & Production Co. decision and 
argue that the Board has calculated the 33-month deadline incorrectly.
    To resolve this conflict between the current regulations and the 
decision by the Court of Appeals for the District of Columbia Circuit 
in Murphy Exploration & Production Co., we will revise current 
Sec. Sec.  4.903, 4.904, and 4.906. First, we will add a definition of 
``administrative proceeding'' to Sec.  4.903 that is consistent with 
FOGRSFA, 30 U.S.C. 1702(18). The new definition will define 
``administrative proceeding'' as ``any process in which an order is 
issued by ONRR or a delegated State and is subject to appeal or has 
been appealed either to the ONRR Director or IBLA under 30 CFR 
1290.105.'' While FOGRSFA defines an administrative proceeding as an 
agency process in which ``a demand, decision or order issued by the 
Secretary'' is subject to appeal or has been appealed,'' 30 U.S.C. 
1702(18), our definition only uses the term ``order'' because the 
Department's existing regulatory definition of ``order'' is broadly 
written to encompass ``demands'' and ``decisions'' issued by ONRR. See 
43 CFR 4.903 (defining ``Order'' to mean ``any document or portion of a 
document issued by ONRR or a delegated State that contains mandatory or 
ordering language regarding any monetary or nonmonetary obligation 
under any Federal oil and gas lease or leases'')
    Second, we will revise current Sec. Sec.  4.904 and 4.906 to use 
the term ``administrative proceeding'' instead of

[[Page 2386]]

the word ``appeal'' where appropriate. Third, we will revise 43 
CFR4.904(a) to specify that an administrative proceeding commences on 
the date you receive an ONRR order.
    Our change to the subpart J regulations leaves one aspect of the 
Murphy Exploration & Production Co. decision unaddressed. With respect 
to administrative proceedings that arise from a lessee's demand that 
ONRR refund money that the lessee overpaid, the Court of Appeals held 
that it is the lessee's demand, not ONRR's response to the demand, that 
begins an administrative proceeding under FOGRSFA. Murphy Explo. & 
Prod. Co., 252 F.3d at 480 (``We conclude that Murphy's request that 
DOI refund its royalty overpayments triggered an `administrative 
proceeding' within the meaning ofSec.  1702(18).''). The regulation at 
43 CFR 4.904(a), however, which specifies that an administrative 
proceeding commences on ``the date you receive ONRR's order,'' will 
also apply to an administrative proceeding involving a refund request. 
In contrast to the rule for a lessee's refund demand set forth by the 
D.C. Circuit, under the Department's regulation the administrative 
proceeding will commence when the lessee receives ONRR's order 
responding to its refund request.
    We believe this construction is required by the plain language of 
FOGRSFA, which defines an administrative proceeding as an ``agency 
process in which a demand, decision or order issued by the Secretary or 
a delegated State is subject to appeal or has been appealed.'' 30 
U.S.C. 1702(18) (emphasis added). It is the Secretary's ``demand, 
decision or order'' that triggers an administrative proceeding under 
the express terms of the statute. While the D.C. Circuit acknowledged 
that the ``placement of `issued by the Secretary' arguably implies that 
the . . . phrase modifies `demand,' `decision,' and `order,' '' the 
court found that reading ``implausible'' and concluded that ``demand'' 
encompasses demands made by lessees as well as those issued by ONRR. 
Murphy Explo. & Prod. Co, 252 F.3d at 480-81. The court reasoned that 
because ``demand'' and ``order'' are separately enumerated, and because 
any demand issued by the Secretary would also be an order, Congress 
must have intended ``demand'' to have a separate meaning: ``We will not 
assume that Congress intended the definition of `demand' to be 
perfectly coextensive with `order.' '' Id. at 481.
    The Department cannot acquiesce to the D.C. Circuit's 
interpretation, however, because that interpretation is contrary to the 
express wording of the statute and misperceives why ``demand'' is 
separately enumerated. Congress specifically qualified and limited 
which ``demand[s]'' it was including within the definition of 
administrative proceeding to those ``issued by the Secretary.'' It 
needed to do so because Congress had defined ``demand'' to include both 
orders to pay issued by the Secretary and written requests made by a 
lessee or its designee. 30 U.S.C. 1702(23). Congress therefore needed 
to express which of the two types of demands it was referring to. And 
while Congress defined ``demand'' to be a type of ``order to pay,'' id. 
Sec.  1702(23)(A), including ``demand'' along with the broader (and 
undefined by FOGRSFA) term ``order'' is not redundant but a useful 
clarification of which types of demands Congress intended to include 
within the term ``administrative proceeding.'' Moreover, the D.C. 
Circuit's interpretation requires an incongruous reading of the 
remainder of the definition, since a request made by the lessee is not 
``subject to appeal'' by the requesting lessee. Rather, the Secretary's 
response to the request is subject to appeal.
    For these reasons, the revised regulation implements the plain 
language of the statute by defining ``administrative proceeding'' as a 
``process in which an order is issued by ONRR or a delegated State.'' A 
lessee's demand will not be the subject of an appeal until the 
Secretary acts on it by issuing a decision or order. Furthermore, we 
believe this reading of the statutory language avoids any logistical or 
practical difficulty caused by determining when ONRR receives a 
lessee's demand.
Sec.  4.906 What if the Department does not issue a decision by the 
date my appeal ends?
    In addition to replacing the word ``appeal'' with ``administrative 
proceeding,'' we will clarify edits in Sec.  4.906. For example, in 
paragraph 4.906(a), we will omit as unnecessary current subparagraphs 
(a)(1) and (a)(2) because those subparagraphs simply repeat the 
statutory language contained in 30 U.S.C. 1724(h)(2), which is 
referenced in paragraph 4.906(a). In addition, we will simplify 
paragraph 4.906(b)(1) by referring to 30 U.S.C. 1724(h)(2), omitting 
current subparagraph (b)(2), and renumbering paragraph (b)(3) as 
(b)(2).
    We also will add a new paragraph 4.906(d) to clarify when the 33-
month period ends and the 180-day period to seek judicial review 
begins. 30 U.S.C. 1724(j) states that ``a judicial proceeding 
challenging the final agency action'' is ``timely so long as such 
judicial proceeding is commenced within 180 days from receipt of notice 
by the lessee or its designee of the final agency action.'' In 2017, 
the D.C. Circuit rejected the Government's argument that the 180-day 
period begins on the date of the final Departmental decision, as 
dictated by the end of the 33-month review period. The Court held that 
``[Section] 1724(j) provides that the 180-day period runs not from the 
date of the final decision, but from the lessee's `receipt of notice' 
of the final decision.'' Cont'l Res., Inc. v. Jewell, 846 F. 3d 1232, 
1234-35 (D.C. Cir. 2017). Our addition will identify the notice that 
will start the beginning of the 180-day period.
    Specifically, consistent with the D.C. Circuit's holding, paragraph 
4.906(d) will provide that, if your administrative proceeding ends 
while your appeal is pending before the Board, the Board loses 
jurisdiction as of the ending date (i.e., the statutory 33 months plus 
any extensions), and the Board will issue an order that dismisses the 
appeal, provides notice reflecting this dismissal, and removes the 
appeal from the Board's docket. The appellant's receipt of this notice 
begins the 180-day period in which a judicial proceeding challenging 
the final agency action must be brought under 30 U.S.C. 1724(j).
Sec.  4.909 How do I request an extension of time?
    Existing Sec.  4.909 explains how parties may request an extension 
of time during an appeal of a royalty decision to the IBLA. Paragraph 
(b) specifies where and how a written request for an extension of time 
must be filed. We will revise this paragraph to refer to IBLA's filing 
regulations in Sec.  4.407 of subpart E. That reference will replace 
the current detailed instructions in subparagraphs (b)(1) and (b)(2).We 
also will change the requirement in paragraph (b) that someone seeking 
an extension of time file a ``written request'' to requiring a 
``written motion,'' and for consistency, we will replace ``request'' 
with ``motion'' in paragraphs (c), (e), and (f).

Subpart K--Specific Rules Applicable to Hearings Concerning the 
Acknowledgment of American Indian Tribes

    As part of this regulatory update, DCHD will revise the filing and 
service provisions of subpart K at 43 CFR 4.1012, 4.1013 as well as a 
minor revision to correct a cross-reference related to ex parte 
communications in Sec.  4.1017. The revisions will provide

[[Page 2387]]

additional detail regarding the electronic filing and service of 
documents while maintaining the existing options for filing and service 
using express mail and overnight delivery. DCHD initially began 
allowing parties to file and serve documents electronically by email in 
response to the exigent circumstances presented by the COVID-19 
pandemic. Since email filing began, DCHD's experience has been 
positive. Filing by email has made it easier for parties to transmit 
documents to DCHD while also allowing for the more expeditious issuance 
of notices, orders, and decisions. OHA is currently working to develop 
an electronic filing system that will ultimately replace the use of 
email. On March 16, 2023, OHA implemented a Direct Final Rule that 
allowed for the electronic transmission of documents and the use of OHA 
Standing Orders to convey information concerning the electronic 
transmission of documents (88 FR. 5792; January 30, 2023).
Sec.  4.1012 Where and how must documents be filed?
    The revisions will modify this section to provide additional detail 
concerning the electronic filing of documents. Paragraph (a) will 
require documents to be filed with DCHD in accordance with the OHA 
Standing Orders on Electronic Transmission and the OHA Standing Orders 
on Contact Information, which will be available on OHA's website. OHA's 
Standing Orders are issued to update filing and service procedures, 
provide current contact information, and notify parties of 
technological developments such as the anticipated implementation of a 
new electronic filing system.
    Paragraph (b) will replace existing paragraph (e) and will specify 
that filing could occur either electronically or non-electronically. 
However, a person or entity represented by an attorney will be required 
to file electronically under subparagraph (b)(1), unless otherwise 
specified in the OHA Standing Orders on Electronic Transmission or the 
ALJ has allowed non-electronic filing for good cause. While the 
existing regulation allows for filing by facsimile, that option will be 
eliminated going forward.
    Paragraph (c) addresses timeliness and will replace the 5:00 p.m. 
deadline currently contained in existing paragraph (c). For electronic 
filing, a document will be deemed timely if filed by 11:59 p.m. 
Mountain Time on the date the filing is due. For non-electronic filing, 
a document will be deemed timely if, on or before the last day for 
filing, the document is sent by express mail or dispatched to a third-
party commercial courier for delivery on the next business day. The 
party filing the document will be responsible for obtaining proof of 
mailing or dispatch. A document not received within two business days 
of the filing deadline will be presumed untimely, but the presumption 
could be overcome by appropriate documentation establishing the date of 
mailing or dispatch.
    Paragraph (d) will maintain the language in existing paragraph (d) 
and will continue to allow the ALJ to reject a document that does not 
comply with the filing requirements in this subpart or other applicable 
order. If the defect is minor, the party filing the document may be 
notified of the defect and given an opportunity to correct.
Sec.  4.1013 How must documents be served?
    Paragraph (a) will retain the requirement that documents filed with 
DCHD be concurrently served on all parties to the proceeding and will 
additionally require compliance with the OHA Standing Orders on 
Electronic Transmission and the OHA Standing Orders on Contact 
Information. Paragraphs (b), (c), and (d) will explain the process for: 
serving represented parties, identifying the service address, and 
providing notice of address changes.
    As explained in paragraph (c), every person or entity who files a 
document with DCHD will be required to provide the mailing or 
electronic address that the person or entity intends to use for service 
in the proceeding. A person or entity seeking to receive service 
electronically will be required to consent to electronic service. If a 
person or entity does not consent to electronic service, then service 
will need to occur using the mailing address in the person's or 
entity's most recent filing or, if there has not been any filing, the 
mailing address of the person or entity as provided by the Office of 
Federal Acknowledgment (OFA) within the Office of the Assistant 
Secretary--Indian Affairs, Department of the Interior.
    The manner of service will be described in paragraph (e). Persons 
or entities will be allowed to serve the Office of the Solicitor 
electronically as specified in the OHA Standing Orders on Electronic 
Transmission. In addition, electronic service will be allowed if the 
person or entity consents to electronic service under the terms 
specified in the OHA Standing Orders on Electronic Transmission. Non-
electronic service will be authorized using personal delivery, express 
mail, or third-party commercial courier for delivery on the next 
business day. As specified in paragraph (f), a certificate of service 
will be required at the conclusion of any document indicating the date 
and manner of service.
    Service will be deemed complete as set forth in paragraph (g) and 
will replace the existing language in (c)(4) concerning electronic 
confirmation of transmission. For electronic service, a document will 
be served when the document is sent, unless the serving party receives 
notice that the document was not received. For documents served by 
express mail or commercial courier for delivery on the next business 
day, service will be complete on mailing or dispatch to the courier as 
documented by a postmark, acceptance scan, receipt, or other similar 
written acknowledgement.
    An ALJ will generally issue a notice, order, recommended decision, 
or other document electronically as set forth in paragraph (h), and 
service will be complete on sending, unless otherwise directed by the 
OHA Standing Orders on Electronic Transmission. If an electronic 
service address has not been provided, then a notice, order, or other 
document will be issued by first-class United States mail or third-
party commercial courier to the address provided or, if not provided, 
to the last known address, and service will be complete on mailing. If 
an electronic service address has not been provided, then a recommended 
decision will be sent by certified United States mail to the mailing 
address provided or, if not provided, to the last known address, and 
service will be complete when received. If the certified mail is not 
claimed or is returned as undeliverable, then service will be made by 
first-class United States mail and service will be deemed complete on 
mailing.
Sec.  4.1017 Are ex parte communications allowed?
    The only modification to this section will change the cross-
reference in paragraph (a) from Sec.  4.27(b) to Sec.  4.27 to reflect 
the changes made to subpart B as part of this regulatory overhaul.

Subpart L--Specific Rules Applicable to Hearings and Appeals Concerning 
Surface Coal Mining

    As part of this regulatory update, OHA will revise select 
provisions in subpart L. These changes will provide additional detail 
regarding the electronic filing and service of documents, update cross-
references, and create uniformity and consistency with the new 
comprehensive procedural

[[Page 2388]]

rules governing practice before DCHD in subpart C of this part.
General Provisions
Sec.  4.1100 Scope and Definitions
    This proposal will modify the existing definitions section by 
adding a new paragraph (a) that discusses the scope of the rules. Most 
of the definitions will be moved to subpart A and paragraph (b) will 
only retain the following three definitions: ``act,'' ``administrative 
law judge or ALJ,'' and ``Board.'' The definition of administrative law 
judge will also be revised to include ``ALJ'' as the commonly used 
acronym and to specify that ALJs are appointed to DCHD.
Sec.  4.1101 Jurisdiction of the Board
    The revision will omit the existing cross-reference to Sec.  4.21 
to account for changes made to Sec.  4.21 as part of this regulatory 
update.
Sec.  4.1107 Filing of Documents
    The revisions to this section will provide additional detail 
concerning the electronic filing of documents. In recent years, DCHD 
and IBLA have allowed parties to file documents electronically by 
email. This change made it easier for parties to timely transmit 
documents while also facilitating the expeditious issuance of notices, 
orders, and decisions. OHA is currently working to develop an 
electronic filing system that will ultimately replace the use of email. 
On March 16, 2023, OHA implemented a Direct Final Rule that allowed for 
the electronic transmission of documents and the use of OHA Standing 
Orders to convey information concerning the electronic transmission of 
documents (88 FR. 5792; January 30, 2023).
    As part of the revisions to this section, paragraph (a) will govern 
filings with DCHD, and paragraph (b) will govern filings with IBLA. 
This section will also include specific cross-references to the filing 
and service rules for DCHD (Sec.  4.102) and IBLA (Sec.  4.407) to 
ensure uniformity and consistency with other types of proceedings. In 
addition, this section will continue to rely on Standing Orders that 
will be posted on OHA's website. Standing Orders are issued to update 
filing and service procedures, provide current contact information, and 
notify parties of technological developments such as the anticipated 
implementation of a new electronic filing system.
    Under paragraph (a)(1), the filing of initial pleadings and all 
documents before DCHD will be governed by Sec.  4.102 of this part as 
well as the OHA Standing Orders on Electronic Transmission and the OHA 
Standing Orders on Contact Information. The effective filing date for 
documents will also be determined as specified in Sec.  4.102, and the 
person or entity filing the document will have the burden of 
establishing the filing date.
    Paragraph (b)(1) will require that a notice of appeal, petition for 
review, or other documents in a proceeding being conducted by the IBLA 
be filed as specified by Sec.  4.407 of this part as well as the OHA 
Standing Orders on Electronic Transmission and the OHA Standing Orders 
on Contact Information. The effective filing date will also be 
determined as specified in Sec.  4.407, and the person or entity filing 
the document will have the burden of establishing the filing date.
Sec.  4.1108 Form of Documents
    This section will make minor modifications to the existing rule to 
modernize and update the language. The revisions to paragraph (e) will 
require a document to be signed or ``digitally signed'' by the ``person 
or entity'' submitting the document. Paragraph (f) will require an 
email address to be included along with the other contact information. 
In paragraph (g), the revisions will cross-reference the document 
formatting requirements contained in Sec.  4.103 (DCHD) of this part 
and Sec.  4.408 (IBLA) of this part.
Sec.  4.1109 Service
    Paragraph (a) will maintain the existing requirement that all 
documents initiating a proceeding be concurrently served on the Office 
of the Solicitor. It will also carry forward existing language in 
paragraph (a)(2) that refers parties to the OHA Standing Orders on 
Contact Information for the applicable addresses, telephone numbers, 
and geographic information. To create consistency with other service 
provisions, paragraphs (c) and (d) will require parties to serve 
documents for matters pending before DCHD in accordance with Sec.  
4.102 of this part and for matters pending before IBLA in accordance 
with Sec.  4.407 of this part.
Sec.  4.1110 Intervention
    We propose no changes to Sec.  4.1110.
Sec.  4.111 Voluntary Dismissal
    We propose no changes to Sec.  4.1111.
Sec.  4.112 Motions
    We propose no changes to Sec.  4.1112.
Sec.  4.113 Consolidation of Proceedings
    We propose no changes to Sec.  4.1113.
Sec.  4.114 Advancement of Proceedings
    We propose no changes to Sec.  4.1114.
Sec.  4.115 Waiver of Right to Hearing
    We propose no changes to Sec.  4.1115.
Sec.  4.116 Status of Notices of Violation and Orders of Cessation 
Pending Review by the Office of Hearings and Appeals
    We propose no changes to Sec.  4.1116.
Sec.  4.1117 Reconsideration
    The revisions to this section will add cross references to the 
reconsideration provisions as part of this rulemaking for DCHD (Sec.  
4.130) and IBLA (Sec.  4.415). At present, the existing reconsideration 
provision only references reconsideration to IBLA. As revised, 
paragraph (a) will generally allow a petition for reconsideration to be 
filed with DCHD in accordance with Sec.  4.130 of this part but will 
not allow petitions for reconsideration in proceedings involving an 
expedited review under Sec.  4.1180 or a suspension or revocation under 
Sec.  4.1190. Paragraph (b) will specifically cross-reference IBLA's 
reconsideration provision at Sec.  4.415 of this part.
Hearings and Discovery
Sec.  4.1120 Proceedings Before an Administrative Law Judge
    As part of OHA's larger regulatory update, DCHD established a new 
subpart C that contains general procedural rules applicable to the 
prehearing, hearing, and post-hearing stages of a proceeding. To ensure 
consistency and uniformity in adjudications by an ALJ within DCHD, the 
current provisions at 43 CFR 4.1120-4.1141, which discuss the 
evidentiary hearing and discovery processes, will be eliminated and 
replaced with the General Procedural Rules for Practice before DCHD 
contained in subpart C at Sec. Sec.  4.100 through 4.131. The General 
Procedural Rules for Practice before DCHD will govern proceedings 
before an ALJ in addition to any other specific provisions retained in 
subpart L.
    The General Procedural Rules for Practice before DCHD in subpart C 
of this part comprehensively discuss the powers of an ALJ as well as 
the procedures relevant to discovery and evidentiary hearings. For 
example, prehearing conferences are addressed at Sec.  4.104, subpoenas 
are discussed at Sec.  4.120, discovery authority is explained in rules 
Sec. Sec.  4.112 through 4.119, summary judgment procedures are 
described in Sec.  4.111, hearing scheduling is addressed in Sec.  
4.124, hearing processes are set forth in Sec.  4.126, evidentiary 
issues are discussed at Sec.  4.127, and interlocutory review is 
addressed with more specificity in

[[Page 2389]]

Sec.  4.122. Consequently, paragraph (a) will require compliance with 
those General Procedural Rules for Practice before DCHD.
    As explained in paragraph (b), an ALJ will have the authority to 
preside over any hearing required by the Act to be conducted pursuant 
to 5 U.S.C. 554. The ALJ will conduct the hearing in an orderly and 
judicial manner and will be authorized to take any action authorized by 
the Act, subpart C of this part, subpart L of this part, or 5 U.S.C. 
554-557.
Sec.  4.1121 Initial Orders and Decisions
    This section combines the existing regulations set forth in 
Sec. Sec.  4.1127 and 4.1128 with some revisions to modernize the 
language and to correct the cross-references that changed as part of 
this regulatory update.
Sec.  4.1122 Termination of Jurisdiction
    This provision is currently set forth in existing rule Sec.  
4.1121(c) and will be retained in its own section so that issues 
surrounding the termination of jurisdiction will be more clearly 
highlighted.
Sec. Sec.  4.1123 Through 4.1141 [Removed]
    As part of this regulatory update, the provisions at Sec. Sec.  
4.1123 through 4.1141 will be removed and replaced with the General 
Procedural Rules for Practice before DCHD contained in subpart C as 
well as any other specific provisions retained in subpart L. The 
General Procedural Rules for Practice before DCHD at Sec. Sec.  4.100 
through 4.131 of this part have been and developed to establish uniform 
and consistent procedures for case processing before DCHD.
Petitions for Review of Proposed Assessments of Civil Penalties
Sec.  4.1150 Who May File
    The only modification to this section will replace the words ``the 
Hearings Division, OHA'' with ``DCHD.''
Sec.  4.1153 Answer
    The only modification to this section will replace the words ``the 
Hearings Division, OHA'' with ``DCHD.''
Sec.  4.1161 Who May File
    The only modification to this section will replace the words ``the 
Hearings Division, OHA'' with ``DCHD.''
Sec.  4.1182 Where To File
    The only modification to this section will replace the words ``the 
Hearings Division'' with ``DCHD.''
Sec.  4.1190 Initiation of Proceedings
    The only modification to this section will replace the words ``the 
Hearings Division, OHA'' with ``DCHD.''
Sec.  4.1191 Answer
    The only modification to this section will replace the words ``the 
Hearings Division, OHA'' with ``DCHD.''
Sec.  4.1200 Filing the Application for Review With the Office of 
Hearings and Appeals
    The only modification to this section will replace the words ``the 
Hearings Division, OHA'' with ``DCHD.''
Sec.  4.1201 Request for Scheduling of a Hearing
    The only modifications to this section will replace the words ``the 
Hearing Division, OHA'' in paragraphs (a) and (b) with ``DCHD'' and 
will replace the words ``the main office of OHA'' in paragraph (c) with 
``DCHD.''
Sec.  4.1202 Response To Request for the Scheduling of a Hearing
    The only modification to this section will replace the words ``the 
Hearings Division, OHA'' with ``DCHD.''
Sec.  4.1203 Application for Temporary Relief From Alleged 
Discriminatory Acts
    The only modification to this section will replace the words ``the 
Hearings Division, OHA'' with ``DCHD.''
Sec.  4.1262 Where To File
    The only modification to this section will replace the words ``the 
Hearings Division, OHA'' with ``DCHD.''
Sec.  4.1272 Interlocutory Appeals
    The revisions to this section will remove existing paragraphs (a) 
through (g) and replace them with a new paragraph (a). Paragraph (a) 
will cross-reference the interlocutory appeal procedures created as 
part of this regulatory update for DCHD (Sec.  4.122) and IBLA (Sec.  
4.414). Paragraph (b) will carry forward the existing language in 
paragraph (h).
Sec.  4.1286 Motion for a Hearing on an Appeal Involving Issues of Fact
    The revision to this section will correct the cross-references that 
changed as part of this regulatory update.
Sec.  4.1287 Action by Administrative Law Judge
    The revisions to this section will remove existing paragraphs (a) 
through (c) and replace them with a new paragraph. The new paragraph 
will cross-reference the rules for adjudicating referrals at Sec. Sec.  
4.150 through 4.151 of this part.
Sec.  4.1301 Who May File
    The only modification to this section will replace the words ``the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior'' with ``DCHD.''
Sec.  4.1303 Contents and Service of Petition
    The revision to this section will correct a cross-reference that 
changed as part of this regulatory update.
Sec.  4.1304 Answer, Motion, or Statement of OSM
    The only modification to this section will replace the words ``the 
Hearings Division'' with ``DCHD.''
Sec.  4.1352 Who May File; Where To File; When To File
    The only modification to this section will replace the words ``the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior'' with ``DCHD.''
Sec.  4.1362 Where To File; When To File
    The only modification to this section will replace the words ``the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior'' with ``DCHD.''
Sec.  4.1367 Request for Temporary Relief
    The only modification to this section will replace the words ``the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior'' with ``DCHD.''
Sec.  4.1371 Who May File, Where To File, When To File
    The only modifications to this section will replace the words ``the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior'' in paragraph (a) with ``DCHD'' and will replace the 
words ``the Hearings Division'' in paragraph (c) with ``DCHD.''
Sec.  4.1376 Petition for Temporary Relief From Notice of Proposed 
Suspension or Rescission or Notice of Suspension or Rescission; Appeal 
From Decisions Granting or Denying Temporary Relief
    The only modification to this section will replace the words ``the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior'' with ``DCHD.''
Sec.  4.1381 Who May File; When To File; Where To File
    The only modifications to this section will replace the words ``the 
Hearings

[[Page 2390]]

Division, Office of Hearings and Appeals, U.S. Department of the 
Interior'' in paragraph (a) with ``DCHD'' and will replace the words 
``the Hearings Division'' in paragraph (c) with ``DCHD.''
Sec.  4.1386 Petition for Temporary Relief From Decision; Appeals From 
Decisions Granting or Denying Temporary Relief
    The only modification to this section will replace the words ``the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior'' with ``DCHD.''
Sec.  4.1393 Status of Decision Pending Administrative Review
    The existing rule contains a cross-reference to Sec.  4.21(a) that 
has changed as part of this regulatory update. The substance of IBLA's 
rule at Sec.  4.405(a)(1) will be inserted so that the cross-reference 
to Sec.  4.21 will no longer be necessary.

List of Subjects in 43 CFR Part 4

    Administrative practice and procedure, Claims.

Proposed Regulation Promulgation

    For the reasons given in the preamble, we amend 43 CFR part 4 as 
follows:

PART 4--DEPARTMENT OF THE INTERIOR HEARINGS AND APPEALS PROCEDURES

0
1. The authority citation 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.


0
2. Revise the part heading to read as set forth above.

0
3. Revise subparts A and B to read as follows:
Subpart A--General Information and Authorities--Office of Hearings and 
Appeals
Sec.
4.1 Scope of authority; applicable regulations.
4.2 Membership and duties.
4.3 Representation before OHA.
4.4 Public records; contact information for offices.
4.5 Power of the Secretary and Director.
4.6 Definitions and acronyms.
Subpart B--General Rules Relating to Procedures and Practice
4.20 Purpose and scope.
4.21 Exhaustion and finality.
4.22 Retention of documents; record address; and extensions of time.
4.23 Hearings or related proceedings.
4.24 Basis of decision.
4.25 Oral argument and status conferences.
4.26 Subpoena power and witness provisions for probate proceedings.
4.27 Ex parte communication and disqualification.
4.28 Interlocutory appeals.
4.29 Disqualification of presiding officers and board members.
4.30 Alternative dispute resolution.
4.31 Limiting disclosure of confidential information.
4.32 Filing; service; issuance.

Subpart A--General Information and Authorities--Office of Hearings 
and Appeals


Sec.  4.1  Scope of authority; applicable regulations.

    (a) In general. The Office of Hearings and Appeals (OHA), headed by 
a Director, is an authorized representative of the Secretary for the 
purpose of hearing, considering, and deciding matters within the 
jurisdiction of the Department involving hearings, appeals, and other 
review functions of the Secretary, including those established by 
statute, regulations, or policy. OHA may hear, consider, and decide 
those matters as fully and finally as might the Secretary, subject to 
any limitations on its delegated authority imposed by the Secretary.
    (b) OHA Units--(1) Departmental Cases Hearings Division. (i) The 
Departmental Cases Hearings Division (DCHD) is composed of 
administrative law judges (ALJs) who conduct formal hearings under the 
Administrative Procedure Act, 5 U.S.C. 554, as well as other 
evidentiary hearings in accordance with statutes and regulations or by 
referral from an Appeals Board or other Departmental entity.
    (ii) Rules applicable to proceedings before DCHD are contained in 
procedures in subpart C of this part, and, for particular types of 
proceedings, in regulations located in other parts and subparts of 
title 43 as well as in other parts of the Code of Federal Regulations.
    (2) Probate Hearings Division. (i) The Probate Hearings Division 
(Ph.D.) is composed of ALJs and Indian probate judges (IPJs) who 
conduct formal hearings to determine the rightful heirs and devisees of 
decedents who owned trust or restricted property. ALJs, IPJs, or other 
presiding officers may also conduct related informal proceedings.
    (ii) Rules applicable to proceedings before Ph.D. are contained in 
part 30 of this subtitle and in regulations in other parts of the Code 
of Federal Regulations. Wherever there is any conflict between part 30 
of this subtitle and subpart B of this part, part 30 will govern.
    (3) Interior Board of Indian Appeals. (i) The Interior Board of 
Indian Appeals (IBIA) is composed of administrative judges (AJs) who 
issue final decisions for the Department on appeals of decisions issued 
by Departmental officials including the following:
    (A) Administrative actions of officials of the Bureau of Indian 
Affairs, issued under 25 CFR chapter I, except as limited in 25 CFR 
chapter I or Sec.  4.330 of this part;
    (B) Decisions and orders of ALJs and IPJs in Indian probate 
matters; and
    (C) Such other matters pertaining to Indians as are referred to 
IBIA by the Secretary, the OHA Director, or the Assistant Secretary-
Indian Affairs for exercise of review authority of the Secretary.
    (ii) Rules applicable to appeals before IBIA are contained in 
subpart D of this part and in regulations in other parts of the Code of 
Federal Regulations.
    (4) Interior Board of Land Appeals. (i) The Interior Board of Land 
Appeals (IBLA) is composed of AJs who issue final decisions for the 
Department on appeals of decisions issued by Departmental officials 
related to the following:
    (A) The use and disposition of public lands and resources, 
including land selections arising under the Alaska Native Claims 
Settlement Act, as amended;
    (B) The use and disposition of resources in, and authorization of 
activities on, the submerged lands of the Outer Continental Shelf;
    (C) The collection of revenue from the development of Federal 
minerals and resources on the Outer Continental Shelf;
    (D) In certain instances, minerals held in trust or restricted 
status for Indian Tribes and individual Indians, and royalties from 
leases of those minerals, subject to the restrictions in Sec.  4.330 of 
this part; and
    (E) The conduct of surface coal mining under the Surface Mining 
Control and Reclamation Act of 1977.
    (ii) Rules applicable to appeals before IBLA are contained in 
subpart E of this part and, for specific types of appeals, in subparts 
J and L of this part, and in regulations in other parts of the Code of 
Federal Regulations.
    (c) Director's Office and Ad Hoc Boards of Appeals.(1) Appeals to 
the head of the Department that do not lie within the appellate review 
jurisdiction of a Standing Appeals Board and that are not specifically 
excepted in the general delegation of authority to the Director may be 
considered and ruled upon by the Director or an Ad Hoc Boards of 
Appeals appointed by the Director to consider the appeals and issue 
decisions.

[[Page 2391]]

    (2) The Director or Ad Hoc Board of Appeals may decide finally for 
the Department all questions of fact and law necessary to complete 
adjudication of the issues. Jurisdiction of the Ad Hoc Board would 
include, but not be limited to, the appellate and review authority of 
the Secretary referred to in parts 13, 21, and 230 of this title and in 
36 CFR parts 8 and 20.
    (3) The Director may designate appropriate presiding officers and 
identify processes in accordance with statutes and regulations for 
hearings and appeals that are not specifically covered by an OHA Unit 
in paragraph (b) of this section. Rules applicable to hearings or 
appeals in the Director's office are contained in subpart G of this 
part, in procedures in other subparts in this part, and in other parts 
of the Code of Federal Regulations that address particular types of 
proceedings.


Sec.  4.2  Membership and duties.

    (a) Standing Appeals Boards. The Standing Appeals Boards consist of 
AJs and the Director as an ex officio member.
    (1) The Director may designate a chief judge for each Standing 
Appeals Board. A chief judge is responsible for internal management and 
administration of the Standing Appeals Board, including management of 
the case docket. A chief judge is authorized to carry out such other 
duties as may be necessary to conduct the routine business of the 
Standing Appeals Board.
    (2) A chief judge of a Standing Appeals Board may assign an appeal 
to a panel of any two AJs of the Standing Appeals Board, but if the AJs 
assigned to the panel cannot agree on a decision, a chief judge may 
assign one or more additional AJs to consider the appeal. The 
concurrence of a majority of the AJs who consider an appeal is 
sufficient for a decision.
    (3) Decisions of a Standing Appeals Board must be in writing and 
signed by not less than a majority of the AJs who considered the 
appeal. The Director, being an ex officio member of the Standing 
Appeals Board, may participate in the consideration of any appeal and 
sign the resulting decision.
    (b) Hearings Divisions. The Hearings Divisions consist of ALJs and, 
where authorized, IPJs. The Director may designate a chief judge for 
each Hearings Division. A chief judge is responsible for internal 
management and administration of the Hearings Division, including 
management of case dockets. A chief judge is authorized to carry out 
such other duties as may be necessary to conduct the routine business 
of the Hearings Division.
    (c) Other Hearings and Appeals. For hearings and appeals that are 
not within the jurisdiction of an OHA Unit, the Director will designate 
or appoint the appropriate OHA officials to an Ad Hoc Board of Appeals 
or as a presiding officer consistent with the applicable statute or 
regulation.


Sec.  4.3  Representation before OHA.

    (a) Appearances generally. Representation of parties in proceedings 
before OHA is governed by Part 1 of this subtitle, which regulates 
practice before the Department of the Interior.
    (b) Representation of the Government. When the Department's Office 
of the Solicitor represents an agency, bureau, or office of the 
Department in a proceeding before OHA, it will do so in the same manner 
as private counsel represents a client. Government counsel for other 
agencies, bureaus or offices of the Federal Government involved in any 
proceeding before OHA will represent the Government agency in the same 
manner as a private counsel represents a client.
    (c) Appearances as amicus curiae. Any person or entity who seeks to 
appear as amicus curiae in a proceeding must make a timely request 
within 30 days of the date the matter is docketed by OHA unless another 
time period is specified by regulation. The request must state the 
grounds for the request. OHA retains sole discretion to grant or deny 
each request. If OHA grants a request, it retains sole discretion to 
determine the scope of the amicus appearance.


Sec.  4.4  Public records; contact information for offices.

    Part 2 of this subtitle prescribes the rules governing availability 
of the public records of OHA. Contact information for offices 
referenced in this part is available in the OHA Standing Orders on 
Contact Information on the Department of the Interior OHA website at 
https://www.doi.gov/oha.


Sec.  4.5  Power of the Secretary and Director.

    (a) Secretary. Nothing in this part may deprive the Secretary of 
any power conferred upon the Secretary by law including:
    (1) The authority to take jurisdiction at any stage of any case 
before any employee of the Department, including any judge or other 
presiding officer of OHA, and render the final decision in the matter 
after holding such hearing as may be required by law; and
    (2) The authority to review any decision of any employee of the 
Department, including any judge or other presiding officer of OHA, or 
to direct any such employee or employees to reconsider a decision; and
    (3) The authority to appoint judges to OHA.
    (b) Director. Nothing in this part may deprive the Director of any 
power delegated by the Secretary or otherwise conferred upon the 
Director by law.
    (1) The Director may assume jurisdiction of any case before any 
Appeals Board or review any decision of any Appeals Board or direct 
reconsideration of any decision by any Appeals Board.
    (2) The Director has the authority to appoint an Ad Hoc Board of 
Appeals, designate presiding officers to conduct hearings or 
proceedings, identify appropriate procedures if not otherwise specified 
by statute or regulations, or fulfill other hearings and appeals needs 
of the Department.
    (3) The Director is responsible for the internal management and 
administration of OHA and its units including managing case dockets. 
The Director is authorized to carry out such other duties as may be 
necessary to conduct the routine business of OHA and its units.
    (4) The Director may issue OHA Standing Orders to convey current 
information to parties and the public. This includes, but is not 
limited to, the OHA Standing Orders on Contact Information for 
Department of the Interior offices referenced in this part and the OHA 
Standing Orders on Electronic Transmission to convey information 
related to electronic transmission, including filing and service. The 
OHA Standing Orders may be issued in the event of an emergency or other 
contingency. The OHA Standing Orders are available on the Department of 
the Interior OHA website at https://www.doi.gov/oha.
    (c) Exercise of reserved power. If the Secretary or Director 
assumes jurisdiction of a case or reviews a decision, the parties and 
the appropriate Departmental personnel will be advised of such action, 
the administrative record will be requested, and, after the review 
process is completed, the Secretary or Director will issue a decision.


Sec.  4.6  Definitions and acronyms.

    In this part:
    Administrative judge or AJ means an administrative judge in the 
Office of Hearings and Appeals.
    Administrative law judge or ALJ means an administrative law judge 
in the Office of Hearings and Appeals appointed under the 
Administrative Procedure Act, 5 U.S.C. 3105.
    Appeals Board means the Interior Board of Land Appeals, the 
Interior

[[Page 2392]]

Board of Indian Appeals, or an Ad Hoc Board of Appeals in the Office of 
Hearings and Appeals.
    BIA means the Bureau of Indian Affairs in the Department of the 
Interior.
    BIE means the Bureau of Indian Education in the Department of the 
Interior.
    BLM means the Bureau of Land Management in the Department of the 
Interior.
    BOEM means the Bureau of Ocean Energy Management in the Department 
of the Interior.
    BOR means the Bureau of Reclamation in the Department of the 
Interior.
    BSEE means the Bureau of Safety and Environmental Enforcement in 
the Department of the Interior.
    Bureau or Office means one of the bureaus or offices within the 
Department of the Interior, other than OHA, and may include BIA, BIE, 
BLM, BOEM, BOR, BSEE, FWS, ONRR, OSMRE, or any predecessor or successor 
organization, as appropriate.
    DCHD means the Departmental Cases Hearings Division in the Office 
of Hearings and Appeals.
    Department means Department of the Interior.
    Director means the Director of the Office of Hearings and Appeals.
    FWS means the U.S. Fish and Wildlife Service in the Department of 
the Interior.
    IBIA means the Interior Board of Indian Appeals in the Office of 
Hearings and Appeals.
    IBLA means the Interior Board of Land Appeals in the Office of 
Hearings and Appeals.
    Indian probate judge or IPJ means an attorney in the Office of 
Hearings and Appeals authorized to adjudicate Indian probate cases 
under 25 U.S.C. 372-2.
    Interested person or entity means any person or entity with an 
interest in the agency proceeding that is greater than the interest 
that the public as a whole may have.
    Judge means an administrative judge, an Indian probate judge, or an 
administrative law judge in the Office of Hearings and Appeals.
    OHA means the Office of Hearings and Appeals in the Department of 
the Interior.
    OHA Standing Order means a notice that contains information for 
parties and the public that is issued by the OHA Director pursuant to 
Sec.  4.5(b)(4) and made available on the Department of the Interior 
OHA website at https://www.doi.gov/oha.
    OHA Unit means the DCHD, IBIA, IBLA, or PHD
    ONRR means the Office of Natural Resources Revenue in the 
Department of the Interior.
    OSM or OSMRE means the Office of Surface Mining Reclamation and 
Enforcement in the Department of the Interior.
    Person or entity means an individual; a corporation; partnership; 
trust; institution; association; organization; any other private 
entity; any officer, employee, agent, department, or instrumentality of 
the United States; any officer, employee, agent, department, or 
instrumentality of any Indian Tribe; or any officer, employee, agent, 
department, or instrumentality of any State or political subdivision.
    PHD means the Probate Hearings Division in the Office of Hearings 
and Appeals.
    Presiding officer means a judge, attorney, or other official 
designated by the Director to adjudicate a matter pending before the 
Office of Hearings and Appeals.
    Secretary means the Secretary of the Interior.
    Solicitor's Office means the Department of the Interior Solicitor's 
office.
    Standing Appeals Board means the IBIA or IBLA.
    WELSA means White Earth Reservation Land Settlement Act.

Subpart B--General Rules Relating to Procedures and Practice


Sec.  4.20  Purpose and scope.

    (a) Purpose. The purpose of this subpart is to establish general 
rules of practice, where appropriate.
    (b) Scope. General rules applicable to proceedings before OHA are 
set forth in subparts A and B of this part. Rules applicable to 
particular units or a particular type of proceeding are set forth in 
other subparts of this part. Wherever there is any conflict between one 
of the general rules in subparts A or B of this part and a rule in 
another subpart of this part, the specific rule will govern. Other 
laws, regulations, and policies of the Department may also address and 
be applicable to a particular type of proceeding. In addition, part 1 
of this subtitle, which regulates practice before the Department of the 
Interior, applies to proceedings before OHA.


Sec.  4.21  Exhaustion and finality.

    (a) Exhaustion. An appeal must be filed with the Director or 
applicable Appeals Board to exhaust administrative remedies unless 
otherwise provided by applicable law or the decision is immediately 
effective.
    (b) Finality--(1) Decisions not in effect. A decision that is not 
in effect pending completion of an appeal does not constitute final 
agency action for the Department.
    (2) Decisions in effect. A decision that is in effect, or goes into 
effect, pending completion of an appeal is final agency action for the 
Department, subject to being superseded by a final decision of the 
Director or an Appeals Board.
    (3) Final Department Decision. The final decision of the Director 
or an Appeals Board constitutes the final agency action of the 
Department and is effective on the date it is issued unless the 
decision provides otherwise.


Sec.  4.22  Retention of documents; record address; and extensions of 
time.

    (a) Retention of documents--(1) In general. All documents received 
in evidence in a hearing or submitted for the record in any proceeding 
before an OHA Unit will be retained in the official record of the 
proceedings.
    (2) Withdrawal and substitution of original documents. The 
substitution of original documents may be permitted while the case is 
pending upon the submission of true copies. When a decision has become 
final for the Department, an Appeals Board in its discretion may, upon 
request and after notice to the other party or parties, permit the 
withdrawal of original documents in whole or in part. As a condition of 
granting permission for such withdrawal, the Appeals Board may require 
the substitution of true copies in its discretion and as necessary to 
ensure an accurate record of the proceeding.
    (3) Sealed against disclosure. Transcripts of testimony and/or 
documents received or reviewed pursuant to Sec.  4.31 will be sealed 
against disclosure to unauthorized persons and retained with the 
official record, subject to the withdrawal and substitution provisions.
    (b) Record address information. At the time of initial filing, 
every person or entity who files a document in connection with any 
proceeding before OHA must provide their mailing address. A person or 
entity filing electronically must also provide the electronic mailing 
address that the person or entity intends to use in the proceeding.
    (1) Address changes. A person or entity who has provided their 
address in a proceeding must promptly file and serve upon other parties 
to the proceeding, written notice of any change to their address 
information with the OHA Unit in which the matter is pending.
    (2) Successors. The successors of a person or entity who has 
provided their

[[Page 2393]]

address in a proceeding must promptly file notice of their own 
addresses.
    (3) Failure to provide or update a record address. A person or 
entity who fails to provide or update their address information as 
required is not entitled to notice or service in connection with the 
proceeding until they have provided or updated their address 
information.
    (c) Computation of time for filing and service. Except as otherwise 
provided by law, the following rules apply when computing any time 
period specified in a regulation, notice, order, or decision.
    (1) Exclude the day of the event that triggers the time period;
    (2) Count every day, including intermediate Saturdays, Sundays, and 
Federal holidays; and
    (3) Include the last day of the period, but if the last day is a 
Saturday, Sunday, Federal holiday, or other nonbusiness day, the period 
continues to run until the end of the next day that is not a Saturday, 
Sunday, Federal holiday, or other nonbusiness day.
    (d) Extensions of time. (1) The time for filing or serving any 
document may be extended by the presiding officer before whom the 
proceeding is pending, except for the time for filing a notice of 
appeal and except where such extension is contrary to law or 
regulation.
    (2) A request for an extension of time must be filed within the 
time allowed for the filing or serving of the document and must be 
filed in the same office in which the proceeding is pending.


Sec.  4.23  Hearings or related proceedings.

    (a) Transcripts. Hearings may be recorded, transcribed verbatim, or 
both. Interested parties may request a copy of the transcripts or 
recording of the hearing. The requesting party is responsible for fees 
and expenses of preparing their copy of a transcript or recording. For 
transcripts prepared by a contractor with a Department of the Interior 
bureau or office, each party is responsible for obtaining and paying 
for its copy of the transcript consistent with any statutory provisions 
governing the proceeding.
    (b) Video, teleconferencing, or other suitable technology. In 
circumstances that the presiding officer deems appropriate, a hearing 
or proceeding may be conducted, in whole or in part, using video, 
teleconferencing, or other suitable technology.


Sec.  4.24  Basis of decision.

    (a) Record. (1) The record of a hearing consists of the transcript 
of testimony or summary of testimony and exhibits together with all 
documents filed in conjunction with the hearing.
    (2) If a hearing has been held on a referred issue of fact pursuant 
to Sec.  4.337 or Sec.  4.415, this record is the sole basis for 
decision on the referred issues of fact that are involved, except to 
the extent that official notice may be taken of a fact as provided in 
paragraph (b) of this section.
    (3) Where a hearing has been held in other proceedings, the record 
made is the sole basis for decision except to the extent that official 
notice may be taken of a fact as provided in paragraph (b) of this 
section.
    (4) In any case, no decision after a hearing or on appeal may be 
based upon any record, statement, file, or similar document that is not 
open to inspection by the parties to the hearing or appeal, except for 
documents or other evidence received or reviewed pursuant to Sec.  
4.31(d).
    (b) Official notice. The presiding officer or an Appeals Board may 
take official notice of the public records of the Department of the 
Interior and of any matter of which the courts may take judicial 
notice.


Sec.  4.25  Oral argument and status conferences.

    The Director or the presiding officer or an Appeals Board may, in 
their discretion, order or grant upon a written request, an opportunity 
for oral argument or status conferences. An oral argument or status 
conference may be conducted by video, teleconferencing, or other 
suitable technology.


Sec.  4.26  Subpoena power and witness provisions for probate 
proceedings.

    (a) Purpose. To the extent authorized by law, subpoenas may be 
issued by Ph.D. ALJs or IPJs in a probate proceeding under part 30 of 
this subtitle, or by the presiding officer in a probate proceeding 
under subpart H of this part, to require the attendance of a person, 
the giving of testimony, or the production of documents or other 
relevant materials.
    (b) Issuance. The ALJ, IPJ, or presiding officer may issue a 
subpoena on a form that contains the caption for the proceeding, 
specifies the name and address of the person or entity from whom the 
testimony or material is sought, and orders one or more of the 
following:
    (1) If the subpoena requires the person to testify in person at a 
hearing or deposition, then the subpoena will order the person to 
appear at a specified date, time, and place;
    (2) If the subpoena requires the person to testify at a hearing or 
deposition using video, teleconferencing, or other suitable technology, 
then the subpoena will order the person to appear at a specified date 
and time and will contain the information necessary to testify 
remotely; or
    (3) If the subpoena requires the production of designated 
documents, electronically stored information, or other tangible 
materials by a nonparty, then the subpoena will order production by a 
specified date and will designate whether the production must occur in 
person, by mail, by third party commercial courier, or by electronic 
means.
    (c) Service. A subpoena must be served by one of the following 
methods:
    (1) In person. A subpoena may be served by any person who is not a 
party to the proceeding and is 18 years of age or older by hand-
delivering a copy of the subpoena to the person or entity named in the 
subpoena; or
    (2) By registered or certified mail. A subpoena may be served by 
registered or certified mail, with a return receipt requested, to the 
last known residential address or place of business of the person or 
entity named in the subpoena.
    (d) Geographic limits. A witness may be required to attend a 
deposition or hearing at a place not more than 100 miles from the place 
of service, except that no geographic limits apply to attendance at a 
deposition or hearing that is conducted using video, teleconferencing, 
or other suitable technology that allows a witness to testify remotely.
    (e) Witness fees. Witnesses subpoenaed by any party will be paid 
the same fees and mileage as are paid for like service in District 
Courts of the United States under 28 U.S.C. 1821. The witness fees and 
mileage will be paid by the party who requested the appearance. Any 
witness who appears without being subpoenaed is also entitled to the 
same fees and mileage to be paid by the party who requested the 
appearance. This paragraph does not apply to Government employees who 
are called as witnesses by the Government.


Sec.  4.27  Ex parte communication and disqualification.

    (a) Definition of ex parte communication. (1) An ex parte 
communication is any oral or written communication related to the 
merits of a pending proceeding or appeal before OHA that was not on the 
record, not furnished to all other parties, or not made in the presence 
of all parties, and that takes place between:
    (i) Any party to the proceeding or appeal or any person or entity 
interested in the proceeding or appeal; and
    (ii) Any OHA personnel who is involved in, or who may reasonably be 
expected to become involved in, the

[[Page 2394]]

decision-making process in that proceeding or appeal.
    (2) The following types of communications are not ex parte 
communications:
    (i) Communications concerning case status, case scheduling, or the 
availability of Alternative Dispute Resolution;
    (ii) Communications concerning compliance with procedural 
requirements, unless that compliance is an area of controversy in the 
proceeding or appeal;
    (iii) Communications between Bureau of Indian Affairs (BIA) 
employees and Ph.D. employees about a probate case held pursuant to 43 
CFR part 30, unless BIA has filed a petition for rehearing, reopening, 
or reconsideration in that case;
    (iv) Communications between Interior Business Center (IBC) 
employees and OHA employees about an employee debt waiver request or 
appeal held pursuant to Sec.  4.704 of this part; and,
    (v) Communications between employees of the WELSA Project Office or 
the Bureau of Indian Affairs (BIA) and OHA employees about a probate 
case held pursuant to 43 CFR part 4, subpart H, unless the WELSA 
Project Office or BIA has filed a request for hearing, petition for 
reopening, or petition for reconsideration in that case.
    (b) Prohibition. Any ex parte communication is prohibited.
    (c) Procedure for addressing ex parte communication. (1) OHA 
personnel receiving an ex parte communication must place in the record 
for the pending proceeding or appeal the written communication or, if 
oral, a memorandum stating the substance of the oral communication.
    (2) The affected OHA unit must provide, or order the person or 
entity that made the ex parte communication to provide, the 
communication to all parties and provide them with an opportunity to 
respond in writing, and any response must be placed in the record for 
the pending proceeding or appeal.
    (d) Sanctions for ex parte communication. (1) After considering the 
relevant circumstances and the nature of the violation, the Director, 
Appeals Board, or presiding officer may impose appropriate sanctions on 
a party who knowingly made or knowingly caused to be made a prohibited 
ex parte communication. Appropriate sanctions for an ex parte 
communication may include:
    (i) Ruling adversely on the issue that was the subject of the ex 
parte communication; or
    (ii) Requiring the party to show cause why its claim, motion, or 
interest should not be dismissed, denied, or otherwise adversely 
affected.
    (2) Before imposing sanctions, the Director, Appeals Board, or 
presiding officer will provide notice and an opportunity to respond.
    (3) The appropriate supervisor is responsible for notifying the 
Director and, in accordance with Department regulations and policy, 
disciplining OHA personnel who knowingly made or caused to be made a 
prohibited ex parte communication.


Sec.  4.28  Interlocutory appeals.

    Interlocutory appeals from a ruling of an ALJ or IPJ are not 
permitted unless an ALJ or IPJ has certified the interlocutory ruling 
or abused their discretion in refusing a request to certify and an 
Appeals Board has granted permission for such an appeal. An Appeals 
Board will not grant permission for an interlocutory appeal except upon 
a showing that the interlocutory ruling involves a controlling question 
of law about which there are substantial grounds for a difference of 
opinion and that an immediate appeal will materially advance the 
completion of the proceeding. An interlocutory appeal will not operate 
to suspend the hearing unless otherwise ordered by the Appeals Board.


Sec.  4.29  Disqualification of presiding officers and board members.

    (a) A presiding officer or Board member must withdraw from a case 
if circumstances exist that would disqualify a judge under the 
recognized canons of judicial ethics.
    (b) A party may file a motion seeking the disqualification of a 
presiding officer or Board member, setting forth in detail the 
circumstances that the party believes require disqualification. Any 
supporting facts must be established by affidavit or other sufficient 
evidence. The moving party must also send a copy of the motion to the 
Director.
    (c) The chief judge of the appropriate OHA unit or the Director may 
decide whether disqualification is required if the presiding officer or 
Board member does not withdraw under paragraph (a) of this section or 
in response to a motion under paragraph (b) of this section.


Sec.  4.30  Alternative dispute resolution.

    While a matter is before OHA, the Director or OHA Unit may notify 
the parties at any time that the matter has been identified as a 
candidate for Alternative Dispute Resolution (ADR). The notice will 
describe the available options and may include an order directing the 
parties to participate in an assessment conference or otherwise 
communicate whether they are willing to participate in an ADR process. 
While a matter is pending before OHA, an individual party or the 
parties jointly may ask the Director or OHA Unit about the availability 
of ADR in the matter. The use of an ADR process is entirely voluntary 
and will only be used if all parties agree to participate.


Sec.  4.31  Limiting disclosure of confidential information.

    (a) Confidential information. Confidential information includes 
information that is exempt from public disclosure under:
    (1) The Freedom of Information Act (5 U.S.C. 552);
    (2) The Trade Secrets Act (18 U.S.C. 1905); or
    (3) Other laws that exempt the information from public disclosure.
    (b) Filing a motion for a protective order. A person or entity who 
intends to file a document that may contain confidential information, 
and who wishes to prevent or limit disclosure of that confidential 
information, must also file and serve a motion for a protective order. 
The motion for a protective order must include the following.
    (1) A statement specifying the factual and legal justification for 
nondisclosure.
    (2) A copy of the document with the information exempt from 
disclosure redacted, or if it is not practicable to submit a copy of 
the document because redaction of the information would render the 
document unintelligible, a description of the document.
    (3) A statement indicating one of the following:
    (i) That the confidential information may be disclosed to other 
parties to the proceeding or appeal who agree in a written affidavit or 
declaration under penalty of perjury to the following conditions:
    (A) Not to use or disclose the information except in the context of 
the proceeding or appeal;
    (B) Not to retain the information in any format after the 
conclusion of the proceeding or appeal; and
    (C) To return all physical copies of the information at the 
conclusion of the proceeding or appeal to the person or entity who 
submitted the information; or
    (ii) That disclosure of the identified confidential information in 
that document to another party to the proceeding is prohibited by law, 
notwithstanding the conditions provided in paragraph (b)(3)(i) of this 
section. This paragraph (b)(3)(ii) does

[[Page 2395]]

not apply to hearings conducted pursuant to 5 U.S.C. 554. When this 
paragraph (b)(3)(ii) applies, the person or entity submitting the 
confidential information must include the following in the motion for a 
protective order:
    (A) A request that the presiding officer or Appeals Board consider 
the confidential information as a basis for its decision without 
disclosing it to the other party or parties.
    (B) A statement explaining why disclosure is prohibited, citing 
pertinent statutory or regulatory authority. If the prohibition on 
disclosure is intended to protect the interest of a person or entity 
who is not a party to the proceeding, the person or entity making the 
request must demonstrate that such person or entity refused to consent 
to the disclosure of the confidential information to other parties to 
the proceeding.
    (c) Ruling on motion for a protective order. (1) If the motion for 
a protective order satisfies the requirements of paragraph (b)(3)(i) of 
this section, the presiding officer or Appeals Board will grant the 
protective order. The presiding officer or Appeals Board may direct 
that the information be filed under seal and will require service of 
the information on the other parties to the proceeding or appeal upon 
filing of the written agreement required in paragraph (b)(3)(i) of this 
section. The information will be disclosed to the parties to the 
proceeding or appeal only under the conditions of paragraph (b)(3)(i) 
of this section unless the Department determines the confidential 
information must be released under the Freedom of Information Act or in 
accordance with part 2 of this title.
    (2) If the motion for a protective order satisfies the requirements 
of paragraph (b)(3)(ii) of this section, the presiding officer or 
Appeals Board will grant the protective order. The presiding officer or 
Appeals Board may direct that the information be filed under seal and 
will not disclose the information unless the Department determines the 
confidential information must be released under the Freedom of 
Information Act or in accordance with part 2 of this title.
    (3) If the presiding officer or Appeals Board denies a motion for a 
protective order seeking to prevent disclosure of confidential 
information to the parties to a proceeding or appeal under paragraph 
(b)(3)(ii) of this section, the presiding officer or Appeals Board must 
provide the person or entity who submitted the information an 
opportunity to withdraw the information before it is further considered 
by the presiding officer or Appeals Board unless a Freedom of 
Information Act request, administrative appeal from the denial of a 
request, or lawsuit seeking release of the information is pending.
    (d) Waiver. If the person or entity submitting a document does not 
specify that the document contains confidential information, the 
presiding officer or Appeals Board may assume that the person or entity 
submitting the document does not object to public disclosure of any 
confidential information contained in that document or may allow a 
reasonable period of time to redact any confidential information 
identified after filing.
    (e) Confidential information in an OHA decision. Where a decision 
by a presiding officer or Appeals Board is based, in whole or in part, 
on confidential information subject to a protective order, the 
presiding officer or Appeals Board must specify the nature of the 
confidential information and the provision of law under which 
disclosure was denied and must retain the confidential information 
under seal as part of the official record.


Sec.  4.32  Filing; service; issuance.

    The provisions of this section do not apply to proceedings under 
subparts C, D, E, H, J, K and L of this part.
    (a) Filing--(1) Generally. A document required or permitted to be 
filed in a proceeding must be delivered to the office where the filing 
is required as specified in this part or part 30 of this title, the OHA 
Standing Orders on Contact Information, and the OHA Standing Orders on 
Electronic Transmission.
    (2) Methods of filing--(i) Electronic. A document may be filed 
electronically under the terms specified in the OHA Standing Orders on 
Electronic Transmission. Any Federal, State, or local agency, or any 
attorney representing a person or entity, must file electronically, 
unless otherwise specified in the OHA Standing Orders on Electronic 
Transmission or when the OHA unit where the filing is required has 
allowed non-electronic filing for good cause.
    (ii) Non-electronic. Any document filed non-electronically must be 
delivered to the office where the filing is required at the address 
specified in the OHA Standing Orders on Contact Information.
    (3) Timeliness--(i) Electronic. A document filed electronically is 
deemed timely if filed by 11:59 p.m. in the time zone of the office 
where the document is due on the date the document is due under the 
terms specified in the OHA Standing Orders on Electronic Transmission.
    (ii) Non-electronic. A document not filed electronically is deemed 
timely filed if, on or before the last day for filing, it is sent by 
first-class United States mail, or other class of mail that is at least 
as expeditious, postage prepaid; or it is dispatched to a third-party 
commercial courier for delivery within 3 days. The date of mailing or 
dispatch must be documented by a postmark date, acceptance scan, 
receipt, or similar written acknowledgement from the company delivering 
the document for filing. A document not received within 7 business days 
of the filing deadline is presumed untimely, but the presumption may be 
overcome by the appropriate documentation establishing the date of 
mailing or dispatch.
    (b) Service--(1) Generally. Any person or entity who files a 
document in a proceeding before OHA must also serve the document under 
the terms specified in this section and in the OHA Standing Orders on 
Electronic Transmission and the OHA Standing Orders on Contact 
Information.
    (2) Service on represented parties. Service on a party known to be 
represented by counsel, or another designated representative, must be 
made on the representative.
    (3) Manner of service--(i) Electronic. Service may be made 
electronically on the Office of the Solicitor and the bureau or office 
whose decision is being appealed under the terms specified in the OHA 
Standing Orders on Electronic Transmission. Service may be made 
electronically on all other persons or entities who have consented to 
electronic service under the terms specified in the OHA Standing Orders 
on Electronic Transmission.
    (ii) Non-electronic. Service may be made non-electronically by 
United States mail or third-party commercial courier for delivery 
within 3 days.
    (c) Issuance--(1) Electronic. A notice, order, or decision by an 
OHA Unit may be issued electronically under the terms specified in the 
OHA Standing Orders on Electronic Transmission, or in specific rules 
applicable to particular OHA Units or particular types of proceedings.
    (2) Non-electronic. Unless otherwise specified, non-electronic 
issuance may be made by U.S. mail, personal delivery, or third-party 
commercial courier.

0
4. Add subpart C to read as follows:

Subpart C--Rules Applicable to Proceedings Before the Departmental 
Cases Hearings Division

Sec.

[[Page 2396]]

General Procedural Rules for Practice Before the Departmental Cases 
Hearings Division

Purpose, Scope, and Definitions

4.100 Purpose and scope.
4.101 Definitions.

Filing, Service, and Formatting of Documents

4.102 Filing, service, and issuance.
4.103 Document formatting.

Prehearing Procedures

4.104 Prehearing conferences.
4.105 Prehearing motions.
4.106 Extension of time.
4.107 Consolidation and severance.
4.108 Intervention and amicus curiae.
4.109 Notice of appearance; substitution of attorneys; and attorney 
withdrawal.
4.110 Voluntary withdrawal and stipulated dismissal.
4.111 Summary judgment.

Discovery

4.112 Discovery generally.
4.113 Interrogatories.
4.114 Requests for production.
4.115 Requests for admission.
4.116 Depositions.
4.117 Supplementation or correction.
4.118 Motion to compel.
4.119 Sanctions for failure to comply with a discovery order.

Other Procedures

4.120 Subpoenas.
4.121 Sanctions.
4.122 Interlocutory appeal.
4.123 Alternative dispute resolution.

Hearing Process and Procedure

4.124 Hearing scheduling.
4.125 Hearing postponements.
4.126 Hearing procedures generally.
4.127 Evidence.
4.128 Transcripts and reporting.
4.129 Decision.

Reconsideration, Appeal, and Review

4.130 Reconsideration.
4.131 Appeal and review.

Specific Rules Applicable to Certain Types of Proceedings Before the 
Departmental Cases Hearings Division

Specific Rules Applicable to Referrals for Fact-Finding Hearings

4.150 Procedures for hearing referrals.
4.151 Resolution of hearing referrals.

Specific Rules Applicable to Contest Proceedings

4.160 Private contests, initiation of a private contest.
4.161 Private contests, protests.
4.162 Private contests, complaint.
4.163 Private contests, service.
4.164 Private contests, answer to complaint.
4.165 Government contests, initiation of a Government contest.
4.166 Government contests, complaint and service.
4.167 Government contests, answer to complaint.
4.168 Proceedings before administrative law judge.
4.169 Appeal.

Specific Rules Applicable to Grazing Proceedings (Inside and Outside of 
Grazing Districts)

4.170 Appealing a grazing decision.
4.171 Petitions for stay.
4.172 BLM document filing requirements and initial disclosures.
4.173 Adjudication of grazing appeal.
4.174 Effect of decision pending appeal, exhaustion and finality.
4.175 Appeal and review.

General Procedural Rules for Practice Before the Departmental Cases 
Hearings Division

Purpose, Scope, and Definitions


Sec.  4.100  Purpose and scope.

    (a) Purpose. This subpart contains the general procedural rules for 
practice before the Departmental Cases Hearings Division (DCHD) at 
Sec. Sec.  4.100 through 4.131, as well as the specific rules 
applicable to certain types of proceedings before DCHD at Sec. Sec.  
4.150 through 4.175.
    (b) Scope. The general procedural rules for practice before DCHD at 
Sec. Sec.  4.100 through 4.131 apply to all types of proceedings within 
the jurisdiction of DCHD except the following:
    (1) Hydropower proceedings governed by part 45 of this title;
    (2) Tribal Acknowledgement proceedings governed by subpart K of 
this part;
    (3) Indian Self-Determination and Education Assistance Act 
proceedings governed by 25 CFR part 900 and 42 CFR part 137, subpart P;
    (4) Administrative Remedies for Fraudulent Claims and Statements 
governed by 43 CFR part 35 of this title; and
    (5) Debt collection proceedings governed by the Departmental 
Manual.
    (c) Subparts A and B. The general rules contained in subparts A and 
B of this part are applicable to proceedings before DCHD unless they 
are inconsistent with the rules in this subpart. Subpart A contains the 
authority, jurisdiction, and membership of DCHD. Subpart B contains the 
general rules applicable to proceedings before DCHD and other 
components of the Office of Hearings and Appeals (OHA).
    (d) Other regulations. Rules applicable to specific types of 
proceedings within the jurisdiction of DCHD are contained throughout 
title 43 and in other portions of the Code of Federal Regulations, 
including, but not limited to, titles 25, 30, 34, and 50. To the extent 
that a rule applicable to a specific type of proceeding directly 
conflicts with the general procedural rules for practice before DCHD in 
this subpart, the specific rule will apply. If a specific rule contains 
references to outdated or inapplicable procedures, the ALJ may direct 
the parties, in writing, to follow some or all of the procedures 
contained in the general procedural rules for practice before DCHD in 
this subpart.
    (e) Standing Orders. Standing Orders issued by the Director of OHA 
may also apply to proceedings before DCHD. Standing Orders are 
available on the Department of the Interior OHA website at https://www.doi.gov/oha.


Sec.  4.101  Definitions.

    In addition to the definitions in subpart A, the following 
definitions apply to this subpart:
    Administrative law judge (ALJ) means an administrative law judge 
appointed to the Departmental Cases Hearings Division (DCHD).
    DCHD means the Departmental Cases Hearings Division in the Office 
of Hearings and Appeals.

Filing, Service, and Formatting of Documents


Sec.  4.102  Filing, service, and issuance.

    (a) Filing--(1) Generally. Any document filed in a proceeding 
before DCHD must be delivered as specified in this subpart and in the 
OHA Standing Orders on Electronic Transmission and the OHA Standing 
Orders on Contact Information found on the Department of the Interior 
OHA website at https://www.doi.gov/oha.
    (2) Methods of filing--(i) Electronic. A document may be filed 
electronically under the terms specified in the OHA Standing Orders on 
Electronic Transmission. Any Federal, State, or local agency and any 
attorney representing a person or entity must file electronically, 
unless otherwise specified in the OHA Standing Orders on Electronic 
Transmission or when the ALJ has allowed non-electronic filing for good 
cause.
    (ii) Non-electronic. A document not filed electronically must be 
delivered to DCHD at the address specified in the OHA Standing Orders 
on Contact Information.
    (3) Timeliness--(i) Electronic. A document filed electronically is 
deemed timely if filed by 11:59 p.m. Mountain Time on the date the 
document is due under the terms specified in the OHA Standing Orders on 
Electronic Transmission.
    (ii) Non-electronic. A document not filed electronically is deemed 
timely filed if, on or before the last day for filing, it is sent by 
first-class United States mail, or other class of mail that is at least 
as expeditious, postage

[[Page 2397]]

prepaid; or it is dispatched to a third-party commercial courier for 
delivery within 3 days. The date of mailing or dispatch must be 
documented by a postmark date, acceptance scan, receipt, or similar 
written acknowledgement from the carrier delivering the document for 
filing. A document not received within 7 business days of the filing 
deadline is presumed untimely, but the presumption may be overcome by 
the documentation establishing the date of mailing or dispatch.
    (b) Service--(1) Generally. Any person or entity who files a 
document in a proceeding before DCHD must also serve the document under 
the terms specified in this section and in accordance with the OHA 
Standing Orders on Electronic Transmission and the OHA Standing Orders 
on Contact Information.
    (2) Person or entity to serve. A person or entity that files any 
document with DCHD must serve a copy of the document concurrently as 
follows:
    (i) For a notice of appeal or other document initiating a 
proceeding, on the bureau or office where the proceeding originated; on 
each person or entity named in the decision on appeal or identified in 
the document authorizing the initiation of the proceeding; and on the 
appropriate official of the Office of the Solicitor as specified in the 
OHA Standing Orders on Contact Information; and
    (ii) For all other documents, on each party to the proceeding 
(including intervenors).
    (3) Service on represented parties. Service on a party known to be 
represented by an attorney, or another designated representative, must 
be made on the representative. Parties must serve the appropriate 
office of the Office of the Solicitor as provided in the OHA Standing 
Orders on Contact Information until a particular attorney of the Office 
of the Solicitor files and serves a notice of appearance or other 
document in the proceeding, after which that attorney must be served. 
If the proceeding involves another Federal Government agency, such as a 
mining claim on national forest land, service must be on the 
appropriate office of the Government agency involved until a particular 
attorney serves a notice of appearance or other document in the 
proceeding, after which that attorney must be served.
    (4) Service address. Every person or entity who files a document in 
connection with a proceeding before DCHD must provide the mailing or 
electronic address that the person or entity intends to use for service 
in the proceeding. A person or entity seeking to receive service 
electronically must consent to electronic service as required by 
paragraph (b)(6)(i) of this section. If a person or entity has not 
consented to electronic service, then anyone serving a document on that 
person or entity must use the mailing address in the person's or 
entity's most recent filing or, if there has not been any filing, the 
mailing address of the person or entity as provided by the bureau or 
office where the proceeding originated.
    (5) Address changes. A party whose mailing or electronic address 
changes during the proceeding must promptly file and serve a written 
notice of the change. The notice must specify the proceedings to which 
the notice applies using the applicable docket number or docket numbers 
when available.
    (6) Manner of service. A document may be served electronically or 
non-electronically as follows:
    (i) Electronic. Service may be made electronically on the Office of 
the Solicitor and the bureau or office under the terms specified in the 
OHA Standing Orders on Electronic Transmission. Service may be made 
electronically on all other persons or entities who have consented to 
electronic service under the terms specified in the OHA Standing Orders 
on Electronic Transmission.
    (ii) Non-electronic. Service may be made non-electronically by 
United States mail or third-party commercial courier for delivery 
within 3 days. In contest cases, service may be made by publication for 
complaints initiated under Sec.  4.163.
    (7) Certificate of service. At the conclusion of any document that 
a party must serve under the regulations in this subpart, the party or 
the party's representative must sign a written statement that:
    (i) Certifies that service has been or will be made in accordance 
with the applicable rules; and
    (ii) Specifies the date and manner of service.
    (8) Completion of service--(i) Electronic. Service by electronic 
means is complete on sending or as otherwise provided under the terms 
specified in the OHA Standing Orders on Electronic Transmission, unless 
the party making service is notified that the document was not received 
by the party served.
    (ii) Non-electronic. Service by mail or by commercial courier is 
complete on mailing or dispatch to the carrier. The date of mailing or 
dispatch must be documented by a postmark date, acceptance scan, 
receipt, or other similar written acknowledgement from the carrier 
delivering the document.
    (iii) Publication. Service by publication is complete when the 
requirements set forth in Sec.  4.163 have been satisfied.
    (c) Issuance. An ALJ may issue notices, orders, decisions, or other 
documents electronically or non-electronically as follows:
    (1) Electronic. A notice, order, decision, or other document will 
be issued electronically to the electronic service address provided by 
the person or entity, and service is complete on sending or as 
otherwise specified by the OHA Standing Orders on Electronic 
Transmission.
    (2) Non-electronic. If an electronic service address has not been 
provided, then:
    (i) A non-appealable notice, order, decision, or other document 
will be issued by first-class United States mail or third-party 
commercial courier to the mailing address provided by the person or 
entity or, if not provided, to the last known address, and service is 
complete on mailing or dispatch; and
    (ii) An appealable order or decision will be sent by certified 
United States mail to the mailing address provided by the person or 
entity or, if not provided, to the last known mailing address, and 
service is complete when received. If an order or decision sent by 
certified mail is not claimed by the recipient or is returned as 
undeliverable, then service will be made by first-class United States 
mail, and service is deemed complete when mailed.


Sec.  4.103  Document formatting.

    (a) Scope. The formatting requirements of this section apply to any 
notice, motion, brief, or other document filed under this subpart, 
whether filed electronically or in paper form. These formatting 
requirements do not apply to exhibits, attachments, or documents 
appended to or provided in addition to a party's notice, motion, brief, 
or other pleading.
    (b) General requirements. All documents must:
    (1) Be captioned with a docket number and a document title;
    (2) Be formatted for 8.5 by 11-inch paper, and if filed in paper 
form, be printed on just one side of the page with a staple or other 
binding in the upper left-hand corner;
    (3) Be typewritten, printed, or otherwise reproduced so that the 
document is clearly legible;
    (4) Use 12-point font size or larger;
    (5) Be double-spaced except for the caption, argument headings, 
long quotations, and footnotes which may be single-spaced;
    (6) Have margins of at least 1 inch on all four sides;
    (7) Have pages that are numbered sequentially;

[[Page 2398]]

    (8) Be signed, or digitally signed, by the party or the party's 
representative;
    (9) Include the mailing or electronic address that the person or 
entity intends to use for service in the proceeding; and
    (10) Be in an electronic text-searchable portable document format 
(PDF) if filed electronically, maintaining original document formatting 
unless otherwise provided by the OHA Standing Orders on Electronic 
Transmission.
    (c) Exclusions from page numbering computations. Any document 
subject to page limitations as set forth in this subpart or an order 
issued by the ALJ may exclude from the page numbering computations: any 
cover page, table of contents, table of authorities, signature blocks, 
certificates of service, indices, attachments, and exhibits.
    (d) Consequences of noncompliance. The ALJ may strike and not 
consider any pleading or document that fails to comply with the 
requirements of this section.

Prehearing Procedures


Sec.  4.104  Prehearing conferences.

    (a) Purpose. The ALJ may conduct one or more prehearing conferences 
to facilitate the efficient, fair, and timely resolution of a 
proceeding.
    (b) Notice and timing. At the discretion of the ALJ, prehearing 
conferences may be scheduled at any appropriate time during the 
proceeding by issuing an order directing the parties, or their 
representatives, to appear at a specified date and time. A prehearing 
conference may occur by telephone, videoconference, or other 
appropriate means.
    (c) Matters for consideration. An ALJ may conduct one or more 
prehearing conferences to consider scheduling, case management, and 
other matters including, but not limited to:
    (1) Simplifying or narrowing the issues;
    (2) Consolidating proceedings;
    (3) Discussing the utility of settlement or alternative dispute 
resolution procedures;
    (4) Ascertaining the appropriateness and timing of discovery, 
including the resolution of any discovery disputes;
    (5) Determining the appropriateness and timing of any prehearing 
motions, including motions for summary judgment and other dispositive 
motions;
    (6) Evaluating the possibility of obtaining agreements or 
stipulations related to facts or documents;
    (7) Scheduling a hearing and establishing appropriate hearing 
procedures;
    (8) Identifying witnesses and exhibits and scheduling the timing 
for prehearing disclosures;
    (9) Addressing issues associated with the admission of evidence;
    (10) Resolving specific procedural disputes and adopting procedures 
to manage any potentially difficult or complex issues;
    (11) Establishing appropriate case-management deadlines; and
    (12) Discussing any other matters that may aid in the disposition 
of the proceeding.
    (d) Final prehearing conference. Prior to the commencement of any 
hearing, the ALJ may conduct a final prehearing conference to formulate 
a hearing plan and to facilitate the admission of evidence and the 
presentation of witnesses.
    (e) Request to schedule prehearing conference. A party may request 
that the ALJ schedule a prehearing conference by filing a written 
motion that demonstrates a reasonable justification for the scheduling 
request.
    (f) Post-conference orders. After a prehearing conference, the ALJ 
will issue an order documenting the actions agreed on and the rulings 
made by the ALJ during the prehearing conference. The post-conference 
order will control the subsequent course of the proceeding, unless 
modified by the ALJ in a written order.
    (g) Consequences of noncompliance. In accordance with Sec.  4.121, 
an ALJ may sanction a person or entity that fails to appear for a 
prehearing conference, fails to participate in good faith, or fails to 
comply with the terms of a post-conference order.


Sec.  4.105  Prehearing motions.

    (a) Overview. A party may apply for an order requesting relief by 
presenting a motion to the ALJ. A motion made prior to a hearing must 
be presented in writing, unless otherwise authorized by the ALJ. 
Motions must conform to the general requirements of this section as 
well as any provisions in this subpart applicable to the specific type 
of motion, except that motions for summary judgment are governed by 
Sec.  4.111.
    (b) Motion. A motion must be filed and served in accordance with 
Sec. Sec.  4.102 and 4.103 and must comply with the following:
    (1) Timing. A motion may be filed any time after the commencement 
of a proceeding unless a different deadline has been prescribed by a 
provision of this subpart or in an order issued by the ALJ.
    (2) Page limits. A motion may not exceed 15 pages unless the ALJ 
orders otherwise.
    (3) Content. A motion must clearly and concisely state:
    (i) The purpose of the motion and the relief sought;
    (ii) The factual basis for the relief sought; and
    (iii) The legal arguments and reasons supporting the motion, 
including citations to any applicable legal authority.
    (c) Response. A response brief must be filed and served in 
accordance with Sec. Sec.  4.102 and 4.103 and must comply with the 
following:
    (1) Timing. A response brief must be filed within 14 days after 
filing of the motion unless a different response period is prescribed 
by a provision in this subpart or an order issued by the ALJ.
    (2) Page limits. A response may not exceed 15 pages unless the ALJ 
orders otherwise.
    (3) Content. A response must clearly and concisely state:
    (i) Whether the party opposes or supports the relief sought in the 
motion;
    (ii) The factual basis for the response; and
    (iii) The legal arguments and reasons supporting the response, 
including citations to any applicable legal authority.
    (d) Reply. No reply or further briefing related to the motion will 
be accepted unless authorized by ALJ.
    (e) Supporting documentary materials. Exhibits, attachments, 
affidavits, declarations, or other documentary materials supporting a 
motion or response must be directly referenced in the motion or 
response using pinpoint citations that identify the specific page(s) or 
paragraph number(s) where the supporting text is located. Supporting 
documentary materials must be submitted with the motion or response 
unless the supporting materials have already been filed with DCHD.
    (f) Procedural motions. The ALJ may rule on a motion requesting 
procedural relief without waiting for a response. Types of motions 
seeking procedural relief include, but are not limited to, requests to 
modify a deadline, reschedule an action, allow additional briefing, or 
permit the filing of an overlength brief.
    (g) Summary denial. An ALJ may summarily deny a motion without 
waiting for a response when the motion is frivolous, is repetitive, or 
would cause undue delay.

[[Page 2399]]

Sec.  4.106  Extension of time.

    (a) Scope. A party may request an extension of time for filing a 
document, other than a notice of appeal or a document initiating the 
proceeding, by filing and serving a written motion.
    (b) Timing. A motion for an extension of time must be filed no 
later than the day before the document is due, absent a showing of 
compelling circumstances.
    (c) Good cause. A motion for an extension of time must demonstrate 
good cause.
    (d) Duty to confer. Prior to filing a motion for an extension of 
time, the moving party must make a reasonable effort to contact each 
party to determine whether an agreement can be reached regarding the 
requested extension. In the motion, the moving party must state:
    (1) Whether any other party agrees to all, or part, of the relief 
requested;
    (2) Whether any other party objects to all, or part, of the relief 
requested; and
    (3) Any steps taken to contact a party it was unable to reach.
    (e) Inaction. If the ALJ does not act on the motion before the 
document is due, the document must be filed no later than 7 calendar 
days after the original due date, unless the ALJ orders otherwise.


Sec.  4.107  Consolidation and severance.

    (a) Consolidation. The ALJ may consolidate two or more proceedings 
when they involve common factual or legal issues. Proceedings may be 
consolidated on the motion of a party or at the initiative of the ALJ.
    (b) Severance. Once consolidated, proceedings may be severed by the 
ALJ on the motion of a party or at the initiative of the ALJ. When 
determining whether to sever, the ALJ may consider any relevant 
factors, including any impacts on the efficient, just, and timely 
resolution of the proceedings.


Sec.  4.108  Intervention and amicus curiae.

    (a) Intervention--(1) Motion to intervene. Any person or entity 
that wants to participate in a proceeding as an intervenor must file a 
written motion and must serve a copy of the motion on all parties to 
the proceeding.
    (2) Who may request intervention. A person or entity may seek 
intervention if:
    (i) The person or entity had a legal right to initiate the 
proceeding; or
    (ii) The person or entity has an interest that could be adversely 
affected by the outcome of the proceeding.
    (3) Contents of motion. A motion to intervene must contain:
    (i) The factual and legal basis supporting the motion to intervene, 
including citations to any applicable legal authority; and
    (ii) A statement indicating when the person or entity requesting 
intervention learned of the proceeding.
    (4) Ruling on motion. The ALJ may:
    (i) Grant the motion;
    (ii) Grant the motion but limit participation by the person or 
entity; or
    (iii) Deny the motion if:
    (A) The movant fails to meet the requirements of this section; or
    (B) The ALJ determines that granting the motion would materially 
prejudice the existing parties or unduly delay adjudication of the 
proceeding.
    (5) Party status. A person or entity granted full or limited 
intervenor status is a party to the proceeding. If the ALJ denies the 
motion to intervene, the ALJ may allow the person or entity to file a 
brief as amicus curiae.
    (b) Amicus curiae--(1) How to request amicus curiae status. Any 
person or entity that wants to file a brief in the proceeding as amicus 
curiae must file a written motion. The motion must describe the 
interest of the person or entity in the proceeding and explain how an 
amicus brief will contribute to the resolution of the issues. The 
motion must be served on all parties to the proceeding.
    (2) Ruling on motion. The ALJ has the discretion to grant or deny 
the motion and may consider any relevant factors, including whether an 
amicus brief would contribute to the resolution of the issues or cause 
undue delay.
    (3) Party status. A person or entity granted amicus curiae status 
is not a party to the proceeding.
    (4) Amicus brief. A person or entity granted amicus curiae status 
must serve its brief on all parties to the proceeding.


Sec.  4.109  Notice of appearance; substitution of attorneys; and 
attorney withdrawal.

    (a) Notice of Appearance. To ensure proper service of pleadings, 
notices, orders, and decisions, an attorney or other representative 
must file and serve a notice of appearance and promptly notify DCHD and 
all other parties to the proceeding of any changes to legal 
representation.
    (b) Attorney substitution--(1) Form and content. A party may 
substitute attorneys by filing and serving a notice of substitution 
that includes the pertinent contact information for the new attorney.
    (2) Effectiveness. The notice of substitution is effective upon 
filing.
    (c) Attorney withdrawal--(1) Form and content. Except as provided 
in paragraph (b) of this section, an attorney may request to withdraw 
as the representative for a party by filing a written motion. The 
motion must be served on all parties to the proceeding as well as the 
attorney's client(s) and must contain:
    (i) Pertinent contact information for the attorney's client(s);
    (ii) A statement explaining why the withdrawal will not unfairly 
prejudice the attorney's client(s); and
    (iii) A statement that the attorney has taken appropriate steps to 
protect the interests of the client(s) such as providing reasonable 
notice, allowing adequate time for the employment of another attorney, 
and surrendering files related to the proceeding.
    (2) Effectiveness. A withdrawal is not effective until the ALJ 
rules on the motion, which may be conditioned or denied by the ALJ to 
avoid prejudice to the attorney's client(s) and other parties.


Sec.  4.110  Voluntary withdrawal and stipulated dismissal.

    (a) Voluntary withdrawal. At any time, a party that initiated a 
proceeding may request a voluntary withdrawal by filing and serving a 
motion to dismiss that confirms the party's intention to voluntarily 
withdraw from the proceeding. A party's voluntary withdrawal is 
effective when the ALJ issues an order of dismissal.
    (b) Stipulated dismissal. When all parties to a proceeding agree 
and stipulate to the dismissal of a proceeding, they may file and serve 
a joint motion to dismiss. The stipulated dismissal is effective when 
the ALJ issues an order dismissing the proceeding.


Sec.  4.111  Summary judgment.

    (a) Overview. The summary judgment procedure is a method for 
resolving proceedings in which there is no genuine dispute as to any 
material fact. If the ALJ determines that no genuine dispute exists as 
to any material fact and the movant is entitled to a decision as a 
matter of law, the ALJ will issue a written order resolving the matter 
and will not conduct an evidentiary hearing.
    (b) Guidance. Although the Federal Rules of Civil Procedure do not 
apply to proceedings before DCHD, corresponding provisions contained in 
the Federal summary judgment rule set forth at Rule 56--and Federal 
case law interpreting Rule 56--may serve as guidance in administrative 
adjudications when not in conflict with this section.
    (c) Motion. A motion for summary judgment must be filed and served 
in accordance with Sec. Sec.  4.102 and 4.103 and must comply with the 
following:
    (1) Timing. A motion for summary judgment must be filed by the 
deadline established in a written order issued by the ALJ.

[[Page 2400]]

    (2) Page limits. A motion for summary judgment may not exceed 30 
pages unless the ALJ orders otherwise.
    (3) Scope. A party may move for summary judgment as to all of the 
issues in the proceeding or may request a partial summary judgment as 
to some of the issues.
    (4) Standard. The moving party must demonstrate that there is no 
genuine dispute as to any material fact and that the moving party is 
entitled to judgment as a matter of law.
    (5) Content. A summary judgment motion must include:
    (i) A clear and concise statement identifying each issue on which 
summary judgment is sought;
    (ii) A statement of the material facts for which the moving party 
asserts there is no genuine dispute, which must be supported by 
documentary evidence; and
    (iii) A discussion of the legal arguments and reasons supporting 
the motion for summary judgment, including citations to applicable 
legal authority.
    (d) Response. A response to a motion for summary judgment must be 
filed and served in accordance with Sec. Sec.  4.102 and 4.103 and must 
comply with the following:
    (1) Timing. Unless the ALJ orders otherwise, any other party to the 
proceeding may file a response to the summary judgment motion within 28 
days after the filing of the summary judgment motion. A response may be 
accompanied by a cross-motion for summary judgment requesting full or 
partial relief.
    (2) Response to cross-motion. If a party files a cross-motion for 
summary judgment, any other party to the proceeding may file a response 
within 28 days after the filing of the cross-motion unless a different 
response period is ordered by the ALJ.
    (3) Page limits. Responses may not exceed 30 pages unless the ALJ 
orders otherwise. If a party elects to combine a response and cross-
motion in a single document, then the combined document may not exceed 
50 pages unless the ALJ orders otherwise.
    (4) Content. A response must include:
    (i) A clear and concise statement indicating whether the party 
opposes or supports the motion for summary judgment with respect to 
each issue identified in the motion for summary judgment;
    (ii) A statement of any material facts relied on in the response, 
which must be supported by documentary evidence, and if the party 
opposes summary judgment on one or more issues, the response must 
specifically identify any genuinely disputed material facts or the 
basis for any assertion that a fact cannot be established; and
    (iii) A discussion of the legal arguments and reasons for opposing 
or supporting the summary judgment motion, including citations to 
applicable legal authority.
    (e) Reply. No reply or further briefing related to the summary 
judgment motion will be accepted unless authorized by the ALJ.
    (f) Declaration or affidavit. A declaration or affidavit used to 
support or oppose a motion for summary judgment must be made on 
personal knowledge, cite facts that would be admissible in evidence, 
and show that the declarant or affiant is competent to testify on the 
matters stated.
    (g) Supporting materials. Any assertions of fact in a motion or 
response must be supported by documentary evidence and must reference 
any exhibits, attachments, affidavits, declarations, or other materials 
using pinpoint citations that identify the specific page(s) or 
paragraph number(s) where the supporting text is located. Documentary 
evidence must be submitted with the motion or response unless the 
supporting materials have already been filed with DCHD.
    (h) Consideration by ALJ. (1) To facilitate consideration of any 
summary judgment motion, the ALJ may direct the parties to confer and 
attempt to agree on joint stipulations of fact.
    (2) The ALJ need only consider the materials cited by the parties, 
but the ALJ may consider other materials that are part of the record of 
the proceeding.
    (3) The ALJ may take official notice of a factual matter under 43 
CFR 4.24(b) in the same manner as a Federal district court may take 
judicial notice.
    (4) If a party fails to properly support an assertion of fact or 
fails to properly address another party's assertion of fact, the ALJ 
may:
    (i) Provide an opportunity to properly support or address the fact;
    (ii) Consider the fact undisputed for purposes of the motion;
    (iii) Grant summary judgment if the motions and supporting 
materials, including the facts considered undisputed, show that the 
moving party is entitled to a summary judgment order; or
    (iv) Issue any other appropriate order.
    (5) If a nonmoving party establishes by declaration or affidavit 
that the party cannot, for good cause shown, present facts essential to 
justify its opposition, the ALJ may:
    (i) Defer consideration of the motion;
    (ii) Deny the motion;
    (iii) Allow time for the nonmoving party to obtain evidence by 
discovery or other methods; or
    (iv) Issue any other appropriate order.
    (i) Order. The ALJ will issue a written order granting or denying a 
motion for summary judgment, in whole or in part. A motion for summary 
judgment may only be granted if there is no genuine dispute as to any 
material fact and the movant is entitled to judgment as a matter of 
law.

Discovery


Sec.  4.112  Discovery generally.

    (a) Overview. Discovery is a prehearing process that allows a party 
to obtain relevant facts and information from another party during a 
proceeding.
    (b) Guidance. Although the Federal Rules of Civil Procedure do not 
apply to proceedings before DCHD, corresponding Federal discovery 
provisions in portions of Rules 26 through 37--and Federal case law 
interpreting Rules 26 through 37--may serve as guidance in 
administrative adjudications when not in conflict with the discovery 
rules in this subpart.
    (c) Scope. As authorized by an ALJ, a party may engage in discovery 
regarding any nonprivileged matter that is relevant to the issues in 
the proceeding and proportional to the needs of the case. Relevant 
information need not be admissible at hearing if the information sought 
appears reasonably calculated to lead to the discovery of admissible 
evidence.
    (d) Methods of discovery. During a prehearing conference, or on the 
motion of a party, the ALJ may authorize discovery by one or more of 
the following methods:
    (1) Written interrogatories (Sec.  4.113);
    (2) Requests for production (Sec.  4.114);
    (3) Requests for admission (Sec.  4.115); or
    (4) Depositions (Sec.  4.116).
    (e) Signatures. Discovery requests must be signed by the party's 
representative or the party, if unrepresented. Answers and responses to 
discovery requests must be signed by the person providing the answers 
or responses on behalf of the party. Objections must be signed by the 
party's representative or the party, if unrepresented. A signature 
certifies that to the best of that person's knowledge, information, and 
belief formed after a reasonable inquiry that:
    (1) The answer or response is complete and accurate at the time it 
is signed; and
    (2) The request, answer, response, or objection is:
    (i) Consistent with any applicable regulations or ALJ orders;

[[Page 2401]]

    (ii) Nonfrivolous;
    (iii) Not made for any improper purpose such as delay or 
harassment; and
    (iv) Not unreasonable or unduly burdensome.
    (f) Limitations. At the discretion of the ALJ, or on the motion of 
a party, the ALJ may limit the frequency or extent of discovery 
authorized in Sec. Sec.  4.113 through 4.116 by:
    (1) Not allowing the requested discovery;
    (2) Limiting the number of interrogatories, requests for 
production, or depositions or restricting the time, place, or length of 
any deposition;
    (3) Imposing specific limits or parameters on the production of 
electronically stored information when not reasonably accessible 
because of undue burden or cost;
    (4) Allowing only specific methods of discovery;
    (5) Finding that certain matters may not be inquired into or that 
discovery will be limited in scope to certain matters; and
    (6) Issuing protective orders.
    (g) Protective orders. A protective order may be issued so that 
confidential, privileged, or sensitive information will not be revealed 
or only disclosed in a specified manner. The ALJ may issue a protective 
order based on a motion filed by one party or a joint motion by all 
parties to the proceeding. A motion for a protective order filed by one 
party must contain a certification that the movant conferred, or 
attempted to confer, with the other parties in good faith. Any 
responses to a motion for protective order must be filed within 14 days 
after filing of the motion, unless the ALJ specifies a different 
response period.
    (h) Cooperation. The parties are encouraged to cooperate in good 
faith and reach agreements, where possible, regarding the discovery 
process, the exchange of information, and the resolution of any 
discovery disputes.


Sec.  4.113  Interrogatories.

    (a) Generally. When authorized by the ALJ, a party may conduct 
discovery by serving written interrogatories on any other party. Unless 
the parties agree or the ALJ orders otherwise, a party may not serve 
more than 20 written interrogatories on each party. For purposes of the 
20-interrogatory limitation, each discrete subpart of an interrogatory 
counts as a separate interrogatory.
    (b) Answers and objections. Unless a longer or shorter time period 
is agreed to by the parties or ordered by the ALJ, answers and 
objections must be served within 28 days of service of the 
interrogatories. Each interrogatory must be answered separately and 
fully in writing, unless it is objected to, in whole or in part, in 
which event the reasons for the objection must be stated with 
specificity in place of the answer. Answers and objections must be 
signed in accordance with Sec.  4.112(e). Answers must be signed by the 
person providing the answer, and objections must be signed by the 
party's representative or the party, if unrepresented.


Sec.  4.114  Requests for production.

    (a) Generally. When authorized by the ALJ, a party may conduct 
discovery by serving a written request on any other party to:
    (1) Produce, or permit the requesting party to arrange for the 
inspection and copying of, any specified documents or electronically 
stored information in the responding party's possession, custody, or 
control;
    (2) Permit the requesting party, or someone acting on the 
requesting party's behalf, to inspect, copy, test, or sample any 
tangible things in the responding party's possession, custody, or 
control; or
    (3) Permit the requesting party, or someone acting on the 
requesting party's behalf, to enter onto designated land or property in 
the possession or control of the responding party for the purpose of 
inspecting, measuring, surveying, photographing, examining, testing, or 
sampling.
    (b) Content of request. As applicable, each request must set forth 
with particularity:
    (1) The item or category of items to be produced, copied, or 
inspected;
    (2) A reasonable time, place, and manner for any inspection and 
related acts; and
    (3) The form in which electronically stored information is to be 
produced.
    (c) Responses and objections. Unless a longer or shorter time 
period is agreed to by the parties or ordered by the ALJ, responses and 
objections must be served within 28 days of receipt of the request. The 
response must state, with respect to each item, whether the production 
or inspection will be permitted as requested or whether there are any 
objections. If the responding party makes any objections, the reasons 
must be stated with specificity. Responses and objections must be 
signed in accordance with Sec.  4.112(e). Responses must be signed by 
the person providing the response, and objections must be signed by the 
party's representative or the party, if unrepresented.


Sec.  4.115  Requests for admission.

    (a) Generally. When authorized by the ALJ, a party may conduct 
discovery by serving a written request on any other party to admit the 
truth of any relevant factual matters or the authenticity of any 
specified documents. Unless the parties agree or the ALJ orders 
otherwise, a party may not serve more than 20 written requests for 
admission. For purposes of this 20-request limitation, each discrete 
subpart of a request counts as a separate request.
    (b) Content of request. Each matter for which an admission is 
requested must be set forth separately. A request to admit the 
authenticity of a document must be accompanied by a copy of the 
document unless it has been otherwise furnished or made available for 
inspection and copying.
    (c) Answers and objections. The party to whom the request is 
directed must answer or object to each matter within 28 days of being 
served, unless a longer or shorter time period is agreed to by the 
parties or ordered by the ALJ. Answers and objections must be signed in 
accordance with Sec.  4.112(e). Answers must be signed by the person 
providing the answers, and objections must be signed by the party's 
representative or the party, if unrepresented. A responding party must 
specifically answer or object to each matter as follows:
    (1) Admit the matter, in whole or in part;
    (2) Deny the matter, in whole or in part;
    (3) State in detail why the responding party cannot truthfully 
admit or deny the matter, and if the denial is based on a lack of 
knowledge or information, demonstrate that the party has made a 
reasonable inquiry and that the information known, or readily 
obtainable, is insufficient to admit or deny; or
    (4) State the grounds for any objections with specificity.
    (d) Effect of not answering. A matter is deemed admitted unless a 
written answer or objection is served on the requesting party within 28 
days of service of the request, except that a longer time period may be 
agreed to by the parties or ordered by the ALJ.
    (e) Withdrawal. A matter admitted under this section is 
conclusively established unless the ALJ permits, on motion, the 
admission to be withdrawn or amended or determines that the admission 
is contrary to law.
    (f) Effect of admission. An admission under this section cannot be 
used against the party in any other proceeding.

[[Page 2402]]

Sec.  4.116  Depositions.

    (a) Generally. When authorized by the ALJ, a party may take the 
deposition of any person by oral examination. Parties are encouraged to 
schedule and conduct depositions by agreement whenever possible.
    (b) Notice of deposition. The party scheduling a deposition must 
give reasonable notice in writing to every party to the proceeding and 
to the person being examined. The notice must include:
    (1) The name, address, and other contact information for the person 
to be examined;
    (2) The time and place of the deposition, and if conducted by 
videoconference or other suitable technology, the information necessary 
to access and attend the deposition remotely;
    (3) The subject matter upon which the person will be examined;
    (4) The name or descriptive title of the officer before whom the 
deposition will be taken along with the method of recording and 
transcribing the deposition;
    (5) If a subpoena for document production is issued under Sec.  
4.120 to a nonparty deponent, the materials designated for production 
as set forth in the subpoena; and
    (6) If the deposition is being taken for the purpose of preserving 
testimony for hearing, a statement to that effect.
    (c) Deposition of organization, business entity, government agency, 
or other entity. When the deposition of an organization, business 
entity, government agency, or other entity is sought, the organization, 
business entity, government agency, or other entity must designate one 
or more officers, directors, or agents to testify on its behalf.
    (d) Procedure for deposition. Depositions must be conducted, 
transcribed, and certified in accordance with the following procedures 
unless the ALJ authorizes an alternative procedure or imposes other 
requirements:
    (1) The deposition must be taken before an officer authorized to 
administer oaths by Federal law or the law of the place where the 
examination is held;
    (2) The party providing notification of the deposition must arrange 
and pay the expenses associated with securing the necessary facilities, 
personnel, and transcript;
    (3) The deposition must be under oath or affirmation;
    (4) The deponent may be examined and cross-examined and the 
questions and answers, together with all objections made, must be 
transcribed by the officer before whom the deposition is taken;
    (5) Documents and other tangible things produced for inspection 
during a deposition must, on a party's request, be marked for 
identification and appended or attached to the written deposition 
transcript;
    (6) When the testimony is fully transcribed and reduced to writing, 
the deposition transcript must be submitted to the deponent for 
examination, identification of any corrections, and signature, unless 
the deponent has waived the right to review and sign; and
    (7) The officer must certify the deposition transcript and, if the 
deposition is not signed by the deponent, must certify the reasons for 
the failure to sign.
    (e) Procedure for preservation deposition. A party may depose a 
witness for the purpose of preserving testimony for hearing if:
    (1) The ALJ authorizes the preservation deposition based on a 
written motion or an oral request made during a prehearing conference;
    (2) The requesting party demonstrates that one of the following 
criteria has been met:
    (i) The witness will be unable to attend the hearing because of 
age, illness, or other incapacity; or
    (ii) The witness is unwilling or unlikely to attend the hearing and 
the party is unable to compel the attendance of the witness by 
subpoena; and
    (3) The requesting party complies with any requirements imposed by 
the ALJ related to transcription, recording, or other deposition 
procedures.


Sec.  4.117  Supplementation or correction.

    (a) Requirement. A party who responded to an interrogatory, request 
for production, or request for admission with an answer or response 
that was complete when made must supplement or correct a prior response 
in a timely manner if the party learns that the answer or response is 
materially incomplete or incorrect and if the additional or corrective 
information has not been otherwise made known to the other parties 
during the discovery process or in writing.
    (b) Order. At any time, an ALJ may issue an order directing the 
supplementation of an answer or response.


Sec.  4.118  Motion to compel.

    (a) Motion. Any party may file a motion with the ALJ requesting an 
order compelling disclosure or discovery. A motion must include:
    (1) A copy of the discovery request;
    (2) A copy of the response or objection or, if a copy is 
unavailable, a description of the response or objection;
    (3) A concise statement of the facts and law supporting the motion 
to compel, including citations to any applicable legal authority; and
    (4) A statement that the moving party has, prior to the filing of 
the motion, in good faith conferred or attempted to confer with the 
person, entity, or representative failing to make a disclosure or allow 
discovery.
    (b) Response. A response to a motion to compel must be filed within 
14 days of the filing of the motion unless a longer or shorter time 
period is ordered by the ALJ and must contain a concise statement of 
the facts and law supporting the response, including citations to any 
applicable legal authority.
    (c) Order. The ALJ may issue an order granting or denying the 
motion, in whole or in part, and may issue any other appropriate order, 
including, but not limited to, a protective order or an order imposing 
curative measures. Curative measures include, but are not limited to, 
orders extending the discovery period, authorizing additional 
discovery, or directing a party to conduct an additional search of its 
records.


Sec.  4.119  Sanctions for failure to comply with a discovery order.

    (a) Failure to comply. If a party fails to comply with an order 
compelling discovery, the ALJ may issue such orders as are just, 
including but not limited to, an order imposing appropriate sanctions 
under this section.
    (b) Notice. Appropriate sanctions may be imposed after notice and 
an opportunity to respond. The notice and opportunity to respond may be 
in any form directed by the ALJ and may be limited to an oral response 
during a prehearing conference or hearing.
    (c) Types of sanctions. After considering the relevant 
circumstances and the nature of the violation, the ALJ may impose 
appropriate sanctions, including but not limited to, the following:
    (1) Inferring that the admission, testimony, or other evidence 
would have been adverse to the party;
    (2) Directing that designated facts be taken as established or 
admitted for purposes of the proceeding in accordance with the claim of 
the party obtaining the order;
    (3) Prohibiting the party withholding discovery from supporting or 
opposing a designated claim or defense or from

[[Page 2403]]

introducing designated matters into evidence;
    (4) Striking pleadings in whole or in part;
    (5) Ordering that the party withholding discovery has waived any 
objection to the introduction and use of secondary evidence to show 
what the withheld discovery would have shown; and
    (6) Entering a decision or order adjudicating the proceeding, in 
whole or in part, against the party withholding discovery in violation 
of a discovery order.

Other Procedures


Sec.  4.120  Subpoenas.

    (a) Purpose. Subpoenas may be issued to the extent authorized by 
law to require the attendance of a person, the giving of testimony, or 
the production of documents or other relevant materials.
    (b) Contents of application. A party may request the issuance of a 
subpoena by written application. The application must:
    (1) Describe the testimony sought or the materials to be produced 
with specificity;
    (2) Identify the name, address, and contact information for the 
person or entity to be subpoenaed;
    (3) Specify the time, date, location, and method for obtaining the 
testimony or other material sought; and
    (4) Demonstrate that the requested subpoena is reasonable in scope 
and relevant to the proceeding.
    (c) Issuance. The ALJ may issue a subpoena on a form that contains 
the caption for the proceeding, specifies the name and address of the 
person or entity from whom the testimony or material is sought, and 
orders one or more of the following:
    (1) If the subpoena requires the person to testify in person at a 
hearing or deposition, then the subpoena will order the person to 
appear at a specified date, time, and place;
    (2) If the subpoena requires the person to testify at a hearing or 
deposition using videoconferencing or other suitable technology, then 
the subpoena will order the person to appear at a specified date and 
time and will contain the information necessary to testify remotely; or
    (3) If the subpoena requires the production of designated 
documents, electronically stored information, or other tangible 
materials by a nonparty, then the subpoena will order production by a 
specified date and will designate whether the production must occur in 
person, by mail, delivery service, or other electronic means.
    (d) Service. A party must serve a copy of the subpoena as follows:
    (1) In person. A subpoena may be served by any person who is not a 
party to the proceeding and is 18 years of age or older by hand-
delivering a copy of the subpoena to the person named in the subpoena; 
or
    (2) By registered or certified mail. A subpoena may be served by 
registered or certified mail, with a return receipt requested, to the 
last known residential address or place of business of the person or 
entity named in the subpoena.
    (e) Certificate of service. The person serving the subpoena must:
    (1) Prepare a certificate of service setting forth the date, time, 
and manner of service, or the reasons for any failure of service; and
    (2) 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. That party will then be responsible for filing the certificate 
of service with the ALJ and serving it on all other parties to the 
proceeding.
    (f) Witness fees. Witnesses subpoenaed by any party must be paid 
the same fees and mileage expenses that are paid to witnesses in the 
United States district courts under 28 U.S.C. 1821. The witness fee 
will be paid by the party who requested the appearance. Any witness who 
appears without being subpoenaed is entitled to the same fees and 
mileage expenses as if that person had been subpoenaed, except that 
witness fees do not apply to Government employees who are called as 
witnesses by the Government.
    (g) Geographic limits. A witness may be required to attend a 
hearing or deposition at a place not more than 100 miles from where the 
person resides, is employed, or regularly transacts business in person 
unless another geographic limit applies by statute to the proceeding. 
No geographic limit applies to testimony conducted using 
videoconferencing or other suitable technology that is available to all 
participants in the proceeding and that allows a witness to testify 
remotely.
    (h) Motion to quash or modify. A party or person to whom a subpoena 
is directed may file a written motion to quash or modify the subpoena 
within 10 days of service. A motion to quash or modify the subpoena 
will stay the effect of the subpoena pending the ALJ's decision on the 
motion.
    (i) Enforcement. If a person fails or refuses to comply with a 
subpoena, the ALJ may apply to the U.S. Department of Justice to 
initiate a judicial enforcement proceeding or may authorize the party 
to seek judicial enforcement in the appropriate United States district 
court.


Sec.  4.121  Sanctions.

    (a) Authority of ALJ. The ALJ is vested with the general authority 
to regulate the course of the proceedings. The ALJ may impose 
appropriate sanctions on a person or entity for:
    (1) Noncompliance with an ALJ order;
    (2) Violation of the regulations in this subpart;
    (3) A failure to prosecute or defend in a timely manner; or
    (4) Other misconduct that prejudices another party or interferes 
with the efficient, orderly, and fair conduct of the proceeding.
    (b) Notice. Appropriate sanctions may be imposed after notice and 
an opportunity to respond. The notice and opportunity to respond may be 
in any form directed by the ALJ and may be limited to an oral response 
during a prehearing conference or hearing.
    (c) Types of sanctions. After considering the relevant 
circumstances and the nature of the violation, failure, or misconduct, 
the ALJ may impose appropriate sanctions, including the following:
    (1) Deeming a party's objection waived;
    (2) Striking all, or part, of a pleading;
    (3) Precluding a party from making a late filing or conditioning a 
late filing on terms that the ALJ deems fair and equitable;
    (4) Denying a motion;
    (5) Excluding evidence or witnesses;
    (6) Expelling a person or entity from the hearing;
    (7) Issuing an order or decision against a party;
    (8) Dismissing a claim or defense;
    (9) Dismissing a proceeding; and
    (10) Taking any other action authorized by law.


Sec.  4.122  Interlocutory appeal.

    (a) Overview. An interlocutory appeal is a challenge brought before 
an Appeals Board of a non-final order issued by an ALJ prior to the 
conclusion of the proceeding. Permission must be obtained before an 
interlocutory appeal can be filed with an Appeals Board and will only 
be authorized in limited circumstances.
    (b) General procedures. Permission to file an interlocutory appeal 
is a two-step process, requiring a party to:
    (1) File an application requesting the ALJ to certify an ALJ order, 
in whole or in part, for interlocutory appeal; and
    (2) Petitioning the Appeals Board for permission to file an 
interlocutory appeal of the ALJ's order, in whole or in part.

[[Page 2404]]

    (c) Standards for ALJ certification. The ALJ will certify an order 
for interlocutory appeal only when the ALJ determines that:
    (1) The order involves a controlling question of law about which 
there are substantial grounds for difference of opinion; and
    (2) An immediate appeal will materially advance the completion of 
the proceeding.
    (d) Timing and content of application. An application requesting 
certification must be filed and served within 14 days of the date of 
the ALJ's order. The application must:
    (1) Identify the order, or portion of the order, for which review 
is sought;
    (2) Clearly and concisely state the grounds for appeal; and
    (3) Demonstrate that the standards for certification in paragraph 
(c) of this section are met.
    (e) Responses. Any party that opposes the application for 
certification may file and serve a response within 14 days of the 
filing of the application.
    (f) ALJ certification. Based on a review of the application and any 
responses filed, the ALJ may:
    (1) Certify the order, or portion of the order, for interlocutory 
appeal; or
    (2) Deny the application.
    (g) Petition to Appeals Board. Within 14 days of the ALJ's ruling 
on the application for certification, the requesting party may petition 
the Appeals Board for permission to file an interlocutory appeal. The 
petition must include:
    (1) A copy of the ALJ's order for which review is sought;
    (2) Copies of all filings made in support of or in opposition to 
the application for certification before the ALJ;
    (3) A copy of the ALJ's certification for interlocutory appeal or 
the order denying the application for certification; and
    (4) If the ALJ denied the application for certification, a clear 
and concise statement of reasons explaining why the ALJ's denial was an 
abuse of discretion.
    (h) Permission from Appeals Board. The Appeals Board will grant or 
deny permission to file an interlocutory appeal in accordance with 
Sec.  4.28 or Sec.  4.414 of this part.
    (i) Suspension of proceeding. Neither the certification of an order 
for interlocutory appeal nor an interlocutory appeal will operate to 
suspend the proceeding before the ALJ unless so ordered by the ALJ or 
Appeals Board.


Sec.  4.123  Alternative dispute resolution.

    (a) Purpose. Alternative dispute resolution (ADR) refers to the 
various processes and techniques used for resolving disputes without 
the necessity of further litigation or a hearing.
    (b) Process. Participation in an ADR process is entirely voluntary. 
A party cannot be forced to agree to a resolution of the dispute by 
participating in an ADR process, and if the parties do not agree to 
participate or cannot reach agreement through the ADR process, the 
proceeding will be adjudicated by the ALJ.
    (c) Availability. At any time during the pendency of a proceeding, 
a party may file a request to use an ADR process or the ALJ may notify 
the parties that the matter has been identified as a candidate for ADR. 
The ALJ may also issue a notice describing the ADR processes used by 
DCHD and directing the parties to communicate in writing, or verbally 
during a prehearing status conference, whether they are willing to 
participate in an ADR process. The written ADR procedures used by DCHD 
can be made available to the parties on request.

Hearing Process and Procedure


Sec.  4.124  Hearing scheduling.

    (a) Hearing location and date. The ALJ, in coordination with the 
parties and consistent with any applicable statutory requirements, will 
schedule the hearing and determine the hearing location and dates. In 
making this determination, the ALJ may consider other relevant factors 
such as the convenience of the parties and witnesses, the availability 
of suitable hearing space, and the need for any special accommodations.
    (b) Videoconferencing and other technology. In appropriate 
circumstances as determined by the ALJ, a hearing may be conducted, in 
whole or in part, using videoconferencing or other suitable technology.
    (c) Notice of hearing. In advance of the hearing, a written notice 
containing the hearing location and hearing dates will be issued to all 
parties to the proceeding. If a hearing will be conducted, in whole or 
in part, using videoconferencing or other technology, the hearing 
notice will contain instructions and guidance for participating in the 
hearing.


Sec.  4.125  Hearing postponements.

    (a) Good cause required. Postponement of a scheduled hearing 
generally will not be approved, except upon a showing of good cause and 
reasonable diligence in preparing for the hearing.
    (b) Timing of motion. A party must file a request for a 
postponement at least 21 days prior to the date of the hearing absent 
compelling circumstances. The ALJ will not grant a request for 
postponement made less than 10 days in advance of the hearing unless 
all parties agree to the postponement or the party requesting a 
postponement demonstrates that an emergency occurred which could not 
have been anticipated and which justifies the granting of a 
postponement.
    (c) Form and content of motion. The motion for a postponement must 
state in detail the reasons why a postponement is necessary. The moving 
party must also make a reasonable effort to contact each party to 
determine whether an agreement can be reached regarding the requested 
postponement. In the motion, the moving party must state:
    (1) Whether any other party agrees to the postponement;
    (2) Whether any other party objects to the postponement; and
    (3) Any steps taken to contact a party it was unable to reach.
    (d) Limitation on postponements. A party generally will not be 
granted more than one hearing postponement, unless that party can show 
compelling circumstances that are beyond the party's control. In 
determining whether to grant more than one postponement to a party, the 
ALJ may consider the interests of justice and the relative prejudice to 
the parties.


Sec.  4.126  Hearing procedures generally.

    (a) Overview. A hearing is an opportunity for a party to present 
its case or defense by any reasonable method. Parties may submit oral, 
documentary, or demonstrative evidence as well as rebuttal evidence and 
may conduct such cross-examination as may be required for a full and 
true disclosure of the facts. During the hearing, a verbatim transcript 
will be prepared in accordance with Sec.  4.128 that includes the oral 
arguments, testimony, and exhibits received into evidence. The hearing 
record, together with any motions, documents filed, and rulings made by 
the ALJ during the hearing and prehearing process, may inform the ALJ's 
decision in the matter.
    (b) Hearing procedures. The ALJ has the authority to conduct the 
hearing in an orderly and judicial manner, including the authority to:
    (1) Subpoena witnesses for hearing pursuant to Sec.  4.120;
    (2) Administer oaths and affirmations;
    (3) Regulate the course of the hearing and the conduct of 
representatives, parties, and witnesses;
    (4) Call and examine witnesses;

[[Page 2405]]

    (5) Provide for the sequestration of witnesses;
    (6) Receive, rule on, exclude, or limit evidence;
    (7) Take official notice of a factual matter under Sec.  4.24(b) in 
the same manner as a Federal district court may take judicial notice;
    (8) Issue protective orders and impose other measures to protect 
information or documents that are confidential, privileged, or 
otherwise sensitive;
    (9) Continue or recess the hearing, in whole or in part, for a 
reasonable period of time;
    (10) Direct that written motions or briefs be provided addressing 
issues raised during the hearing;
    (11) Rule on any oral or written motions;
    (12) Impose appropriate sanctions; and
    (13) Exercise any other authority necessary to conduct the hearing 
in an orderly and judicial manner.
    (c) Presentation at hearing. The ALJ will determine the order of 
presentation for witnesses and evidence at hearing based on the 
applicable legal standards as well as considerations of fairness and 
judicial efficiency. Each party is responsible for presenting its case 
or defense at the hearing to ensure the adequacy of the hearing record, 
subject to any limitations imposed by law, regulation, or order.
    (d) Post-hearing briefs. The ALJ may prescribe the format, timing, 
and content of any post-hearing briefs at the conclusion of the hearing 
or in a subsequent written order.
    (e) Conclusion of hearing. Once the hearing concludes, errors in 
the transcript may be corrected in accordance with Sec.  4.128, but no 
additional evidence will be received unless the ALJ directs otherwise. 
If the ALJ finds good cause to reopen the hearing and allow additional 
evidence to be received, all parties will have an opportunity to offer 
responsive evidence and, if necessary, a new hearing may be scheduled.
    (f) Waiver of hearing. The ALJ may determine that a party has 
waived its right to a hearing if, after notice, the party fails to 
appear at the hearing without good cause. Waiver of a right to a 
hearing does not mean that the ALJ will rule against the party failing 
to appear, but it does mean that the party's opportunity to present 
evidence and examine witnesses has been waived.


Sec.  4.127  Evidence.

    (a) Admissibility and exclusion of evidence. The ALJ has the 
authority to admit or exclude evidence. The Federal Rules of Evidence, 
while not directly applicable to hearings conducted under this subpart, 
may be used as guidance by the ALJ. The ALJ will exclude evidence that 
is irrelevant, immaterial, or unduly repetitious.
    (b) Oral testimony. All oral testimony must be under oath or 
affirmation. Witnesses will be subject to cross-examination by any 
other party, and the ALJ may question any witness during the hearing.
    (c) Objections. Any objections to the admission of evidence or 
testimony must concisely state the grounds for the objection. Oral 
rulings on objections will be made on the record and included in the 
transcript of the hearing. When the ALJ sustains an objection to the 
admission of evidence, the affected party may preserve the issue for 
appeal by making an offer of proof on the record showing what the party 
expected to establish by the testimony or evidence. Any adverse party 
may then make an offer of proof in rebuttal on the record.
    (d) Stipulations. The parties may stipulate to any relevant factual 
matters. When received into evidence, stipulations will be binding on 
the parties with respect to the matters stipulated. Oral stipulations 
may be made on the record at hearing and written stipulations may be 
received into evidence as exhibits. The parties are encouraged to agree 
to stipulations of fact whenever possible.
    (e) Depositions. A deposition will not become part of the hearing 
record unless it has been received into evidence, in whole or in part, 
as an exhibit by the ALJ.
    (1) Requirements. A party may only use a deposition against a party 
who:
    (i) Was present or represented at the taking of the deposition; or
    (ii) Had reasonable notice of the taking of the deposition.
    (2) Exclusion. The ALJ 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 the hearing.
    (3) Completeness. If a party offers only part of a deposition in 
evidence, another party to the proceeding may request that the party be 
required to include any other part of the deposition that ought in 
fairness be considered with the part introduced.
    (4) Written and video depositions. A deposition admitted into 
evidence, in whole or in part, must include a certified written 
transcript, but the ALJ may, in appropriate circumstances, permit 
relevant portions of a video deposition to be played at hearing and 
transcribed into the hearing record by the reporter.


Sec.  4.128  Transcripts and reporting.

    (a) Transcript and reporter's fees. A hearing conducted pursuant to 
this subpart will be transcribed verbatim. The procedures for obtaining 
a transcript and paying the associated fees are as follows:
    (1) DCHD will secure the services of a reporter to prepare a 
transcript and will pay the reporter's fees to provide an original 
transcript to DCHD.
    (2) Each party is responsible for obtaining and paying for its copy 
of the transcript consistent with any statutory or regulatory 
provisions governing the proceeding.
    (3) The government agency, bureau, or office participating in the 
hearing as a party will be responsible for reimbursing DCHD for 
reporting fees.
    (b) Official transcript. The official transcript, along with any 
exhibits, must be duly certified by the reporter and submitted to the 
ALJ for filing as part of the proceeding along with any corrections 
made pursuant to paragraph (c) of this section.
    (c) Corrections. (1) Any party may file a motion proposing 
corrections to the transcript. The motion must be filed within 10 days 
of receipt of the transcript unless the ALJ orders otherwise.
    (2) If no party files a timely motion, the ALJ will presume that 
the transcript is correct and complete, except for obvious 
typographical errors.
    (3) As soon as feasible after the conclusion of the hearing and 
after consideration of any motions proposing correction, the ALJ will 
issue an order making any corrections to the transcript that the ALJ 
finds are warranted.


Sec.  4.129  Decision.

    (a) Basis for decision. Following a hearing, the ALJ will issue a 
written decision that identifies and describes the basis for the 
decision unless the applicable statute or regulation allows for an oral 
ruling.
    (b) Decision. The decision issued by the ALJ will be final for the 
Department, unless a notice of appeal, petition for review, or petition 
for reconsideration is timely filed or the applicable statute, 
regulation, or order of referral requires the ALJ to issue:
    (1) Proposed findings of fact on the issues presented at hearing; 
or
    (2) A recommended decision that includes findings of fact and 
conclusions of law.

[[Page 2406]]

Reconsideration, Appeal, and Review


Sec.  4.130  Reconsideration.

    (a) Procedural requirements. Any party may petition for 
reconsideration of a dispositive order or decision within 14 days after 
the date of issuance. A petition for reconsideration must be made in 
writing and served on all parties to the proceeding in accordance with 
Sec.  4.102. A petition for reconsideration may not exceed 15 pages 
unless otherwise authorized by the ALJ.
    (b) Standards. A petition for reconsideration must state with 
specificity the relief sought and must demonstrate that extraordinary 
circumstances warrant reconsideration. Extraordinary circumstances may 
include:
    (1) An error or misstatement of material fact or law that resulted 
in an erroneous order or decision or that would require a different 
outcome;
    (2) A failure to cite and address a binding statute, regulation, or 
decision, including a recent judicial decision, that would require a 
different outcome; or
    (3) The existence of evidence not available to the ALJ when the 
order or decision issued that would require a different outcome. To 
satisfy this requirement, the petitioner must:
    (i) Proffer the evidence along with the petition for 
reconsideration, and
    (ii) Provide a detailed explanation showing why the petitioner, in 
the exercise of reasonable diligence, did not submit the evidence prior 
to issuance of the order or decision.
    (c) Responses. No responses may be filed to a petition for 
reconsideration, unless authorized by the ALJ.
    (d) Review by ALJ. The ALJ will review the petition for 
reconsideration and notify the parties within 10 days whether the 
petition for reconsideration will be accepted for further analysis. If 
the ALJ does not take any action on the petition for reconsideration 
within 10 days, then the petition for reconsideration is deemed denied.
    (e) Status while a petition is pending. Filing a petition for 
reconsideration will not stay the effectiveness of the dispositive 
order or decision and will not toll any deadlines to seek appeal or 
review of the order or decision, unless the ALJ accepts the petition 
for reconsideration for further analysis. If the ALJ accepts the 
petition for reconsideration for further analysis, then the 
effectiveness of the dispositive order or decision will automatically 
be stayed and all applicable deadlines tolled until the ALJ issues a 
decision on reconsideration.
    (f) Appeal or review. A decision on reconsideration issued by the 
ALJ will be final for purposes of appeal and review under Sec.  4.131. 
A notice issued by the ALJ declining to accept the petition for further 
analysis, or a failure by the ALJ to take action on the petition within 
10 days, is not subject to appeal or review. If a party files a notice 
of appeal or requests review of the dispositive order or decision 
before the petition for reconsideration is resolved, then the ALJ will 
no longer have jurisdiction over the petition for reconsideration and 
the matter will be forwarded to the appropriate appellate or reviewing 
authority.
    (g) Petition not required for exhaustion. Filing a petition for 
reconsideration is not required to exhaust administrative remedies.


Sec.  4.131  Appeal and review.

    Any party seeking to appeal or otherwise obtain review of a final 
order or decision of the ALJ must comply with the statutory or 
regulatory provisions applicable to the specific type of proceeding 
involved.

Specific Rules Applicable to Certain Types of Proceedings Before the 
Departmental Cases Hearings Division

Specific Rules Applicable to Referrals for Fact-Finding Hearings


Sec.  4.150  Procedures for hearing referrals.

    (a) Overview. A proceeding may be referred to an ALJ for an 
evidentiary hearing by an Appeals Board or other Departmental entity 
when it appears that specific issues of material fact require a hearing 
for resolution.
    (b) Applicable rules. In a proceeding referred to an ALJ for fact-
finding, the general procedural rules for practice before DCHD at 
Sec. Sec.  4.100 through 4.131 govern practice and procedure in 
addition to the rules applicable to referrals for fact-finding hearings 
set forth in this section and Sec.  4.151.
    (c) Authority of the ALJ. The ALJ has the authority to conduct the 
proceeding and the hearing in an orderly and judicial manner, subject 
to any limitations or restrictions prescribed in the referral issued by 
the Appeals Board or other Departmental entity making the referral.
    (d) Issues and evidence. Unless otherwise directed by the Appeals 
Board or other Departmental entity making the referral, the ALJ may 
consider other relevant issues or evidence identified after referral of 
the matter to DCHD.


Sec.  4.151  Resolution of hearing referrals.

    (a) Types of action. At the conclusion of the proceeding, the ALJ 
will issue one of the following as specified in the referral issued by 
the Appeals Board or other Departmental entity making the referral:
    (1) Proposed findings of fact on the issues presented at the 
hearing;
    (2) A recommended decision that includes findings of fact and 
conclusions of law; or
    (3) A decision that will be final for the Department unless a 
notice of appeal is filed.
    (b) Transmittal of record. If the ALJ issues proposed findings of 
fact or a recommended decision, the ALJ will transmit the entire record 
of the proceeding, including the hearing transcript, to the Appeals 
Board or other Departmental entity making the referral.
    (c) Exceptions and comments. The parties will have 30 days from 
service of any proposed findings of fact or a recommended decision to 
file exceptions or comments with the Appeals Board or other 
Departmental entity making the referral.
    (d) Final decision. If the ALJ issues a final decision that may be 
appealed to an Appeals Board or other Departmental entity, the ALJ will 
advise the parties at the conclusion of the decision of their right to 
file an appeal.

Specific Rules Applicable to Contest Proceedings


Sec.  4.160  Private contests; initiation of a private contest.

    Any person or entity who claims title to or an interest in land 
adverse to any other person or entity claiming title to or an interest 
in such land or who seeks to acquire a preference right pursuant to the 
Act of May 14, 1880, as amended (43 U.S.C. 185), or the Act of March 3, 
1891 (43 U.S.C. 329), may initiate proceedings to have the claim of 
title or interest adverse to that claim invalidated for any reason not 
shown by BLM's records. Such a proceeding will constitute a private 
contest and will be governed by the regulations at Sec. Sec.  4.160 
through 4.169.


Sec.  4.161  Private contests; protests.

    Where the elements of a contest are not present, any objection 
raised by a person or entity to any action proposed to be taken in any 
proceeding before BLM will be deemed to be a protest and appropriate 
action will be taken based on the circumstances.


Sec.  4.162  Private contests; complaint.

    (a) Filing a complaint. Any person or entity desiring to initiate a 
private contest must file a complaint in the proper BLM State Office as 
identified at 43 CFR 1821.10 and in accordance with the OHA Standing 
Orders on Contact

[[Page 2407]]

Information found on the Department of the Interior OHA website at 
https://www.doi.gov/oha.
    (b) Contents of complaint. The complaint must contain the following 
information, under oath:
    (1) The name and address of each interested party;
    (2) A legal description of the land involved;
    (3) A reference, so far as known to the contestant, to any 
proceedings pending for the acquisition of title to, or an interest, in 
such land:
    (4) A statement describing with particularity the facts 
constituting the grounds for contest;
    (5) A statement of the law under which the contestant claims or 
intends to acquire title to, or an interest in, the land and the facts 
showing that the contestant is qualified to do so;
    (6) A statement that the proceeding is not collusive or speculative 
but is instituted and will be diligently pursued in good faith;
    (7) A request for relief that the adverse interest be invalidated;
    (8) The BLM State Office where the complaint is filed and the 
mailing or electronic address to which documents must be sent for 
service on the contestant; and
    (9) A notice that unless the contestee files an answer to the 
complaint in the appropriate BLM State Office within 30 days after 
service of the notice, the allegations of the complaint will be taken 
as confessed.
    (c) Amendment of complaint. Except insofar as the BLM State Office, 
ALJ, Director, Appeals Board, or Secretary may raise issues in 
connection with deciding a contest, issues not raised in a complaint 
may not be raised later by the contestant unless the ALJ permits the 
complaint to be amended after due notice to the other parties and an 
opportunity to object.
    (d) Corroboration required. All allegations of fact in the 
complaint which are not matters of official record or capable of being 
judicially noticed and which, if proved, would invalidate the adverse 
interest must be corroborated under oath by the statement of witnesses. 
Each such allegation of fact must be corroborated by the statement of 
at least one witness having personal knowledge of the alleged fact and 
such fact must be set forth in the statement. All statements by 
witnesses must be attached to the complaint.
    (e) Filing fee. Each complaint must be accompanied by a filing fee 
of $20 and a deposit of $200 toward the reporter's fees. Any complaint 
which is not accompanied by the required fee and deposit will not be 
accepted for filing.
    (f) Waiver of issues. Any issue not raised by a private contestant 
in accordance with the provisions of paragraph (b) or (c) of this 
section, which was known or could have been known by the exercise of 
reasonable diligence, will be deemed waived.


Sec.  4.163  Private contests; service.

    (a) Service generally. The complaint must be served upon every 
contestee in the manner provided in Sec.  4.102(b), except that non-
electronic service must be made by personal delivery, registered mail, 
or certified mail and must include a return receipt. The complaint must 
be served not later than 30 days after filing the complaint, and proof 
of service must be filed in the BLM State Office where the contest is 
pending, unless service is made by publication, in which case, service 
must be in accordance with the provisions in paragraph (c) of this 
section. When the contest is against the heirs of a deceased entryman, 
the notice must be served on each heir. If the person to be served is a 
minor, then service of the complaint must be made on the minor's parent 
or guardian, or if neither exists, the adult having care or control 
over the minor. If the person to be served has been legally adjudged 
incompetent, then service of the complaint must be made on that 
person's legal guardian, or if no legal guardian exists, the person 
having care or control over the incompetent person.
    (b) Summary dismissal and waiver of defect in service. If a 
complaint when filed does not meet all the requirements of Sec.  
4.162(b) and (d), or if the complaint is not served upon each contestee 
as required by this section, the complaint will be summarily dismissed 
by the BLM State Office. However, where prior to the summary dismissal 
of a complaint, a contestee answers without questioning the service or 
proof of service of the complaint, any defect in service will be deemed 
waived as to such answering contestee.
    (c) Service by publication--(1) When service may be made by 
publication. When the contestant has made a diligent search and inquiry 
to locate the contestee, but the contestee cannot be located, the 
contestant may proceed with service by publication after first filing 
an affidavit with the BLM State Office that includes:
    (i) A statement that the contestee could not be located after a 
diligent search and inquiry along with a detailed description of the 
efforts made to locate the contestee, which must occur not more than 15 
days prior to the filing of the statement;
    (ii) The last known address of the contestee; and
    (iii) The affidavits or declarations of two individuals who live in 
the vicinity of the land at issue who either provide the last known 
address of the contestee or state that they have no knowledge of the 
contestee's whereabouts.
    (2) Contents of published notice. The published notice must give 
the names of the parties to the contest, a legal description of the 
land at issue, the substance of the charges contained in the complaint, 
the address of the BLM State Office where the contest is pending, and a 
statement that upon the failure to file an answer in the BLM State 
Office within 30 days after the completion of publication of such 
notice, the allegations of the complaint will be taken as confessed. 
The published notice must also contain a statement of the dates of 
publication.
    (d) Publication, mailing, and posting of notice--(1) Notice by 
publication must be made by publishing the notice at least once a week 
for 5 successive weeks in a newspaper of general circulation in the 
county in which the land at issue is located.
    (2) Within 15 days after the first publication of a notice, the 
contestant must send a copy of the notice and the complaint by 
registered or certified mail, return receipt requested, to the 
contestee at the contestee's last known address. The return receipts 
must be filed in the BLM State Office where the contest is pending.
    (3) A copy of the notice as published must be posted in the BLM 
State Office where the contest is pending and also in a conspicuous 
place upon the land at issue. Such postings must be made within 15 days 
after the first publication of notice.
    (e) Proof of Service--(1) Proof of publication of the notice must 
be made by filing a copy of the notice as published along with an 
affidavit or declaration of a representative from the newspaper 
publishing the notice with the BLM State Office where the contest is 
pending.
    (2) Proof of posting of the notice must be by affidavit or 
declaration of the person who posted the notice on the land and by the 
certificate of an authorized officer of BLM as to posting in the State 
Office.
    (3) Proof of the mailing of notice must be by affidavit or 
declaration of the person who mailed the notice and must contain a copy 
of the return receipt.


Sec.  4.164  Private contests; answer to complaint.

    (a) Deadline and contents of answer. Within 30 days after service 
of the

[[Page 2408]]

complaint or after the last publication of the notice, the contestee 
must file an answer in the BLM State Office where the contest is 
pending together with proof of service of the answer upon the 
contestant. The answer must contain the mailing or electronic address 
to which all notices or other documents must be sent for service upon 
the contestee.
    (b) Contents of answer. The answer must specifically respond to 
each of the allegations in the complaint.
    (c) Admissions and amendments. Any allegation not denied by the 
answer will be considered admitted at hearing, unless the ALJ permits 
the answer to be amended after due notice to the parties and an 
opportunity to object.
    (d) Failure to answer. If an answer is not filed as required, the 
allegations of the complaint will be taken as admitted by the contestee 
and the BLM State Office will decide the case without a hearing.
    (e) Referral. If an answer is filed, the BLM State Office will 
refer the matter to DCHD upon determining that the elements of a 
private contest have been established.


Sec.  4.165  Government contests; initiation of a Government contest.

    The Government may initiate a contest for any cause affecting the 
legality or validity of any entry or settlement or mining claim.


Sec.  4.166  Government contests; complaint and service.

    (a) Complaint. The proceedings in Government contests are governed 
by Sec. Sec.  4.160 through 4.164 of this subpart with the following 
exceptions:
    (1) No corroboration will be required of a Government contest 
complaint and the complaint need not be under oath.
    (2) A Government contest complaint will not be deemed insufficient 
and subject to dismissal for failure to name all parties interested or 
for failure to serve every party who has been named.
    (3) No filing fee or deposit toward the reporter's fee is required 
of the Government contestant.
    (4) Any action required of the Government contestant may be taken 
by any authorized Government employee.
    (5) The statements required by Sec.  4.162(b)(5) and (6) need not 
be included in the Government contest complaint.
    (6) No posting of the notice of publication on the land at issue 
will be required of the Government contestant.
    (7) The provisions of Sec.  4.162(f) do not apply.
    (b) Service--(1) Where service is by publication, the affidavits 
and declarations required by Sec.  4.163(c)(1) need not be filed. The 
Government contestant must file a statement with the BLM State Office 
demonstrating that the contestee could not be located after a diligent 
search and inquiry, the last known address of the contestee, and a 
description of the efforts and inquiries made to locate the party 
sought to be served. The diligent search must occur not more than 15 
days prior to the filing of the statement.
    (2) In lieu of the requirements of Sec.  4.163(d)(2), the 
Government contestant must, as part of the diligent search before 
publication or within 15 days after the first publication, send a copy 
of the complaint by certified mail, return receipt requested, to the 
contestee at the last known address of record. The return receipts must 
be filed in the BLM State Office where the contest is pending.
    (3) The affidavit or declaration required by Sec.  4.163(e)(3) need 
not be filed.


Sec.  4.167  Government contests; answer to complaint.

    (a) Deadline and contents of answer. Within 30 days after service 
of the Government contest complaint or after the last publication of 
the notice, the contestee must file an answer in the BLM State Office 
where the contest is pending together with proof of service of the 
answer upon the Government contestant. The answer must contain or be 
accompanied by the mailing or electronic address to which all notices 
or other documents must be sent for service upon the contestee.
    (b) Contents of answer. The answer must specifically respond to 
each of the allegations in the complaint.
    (c) Admissions and amendments. Any allegation not denied by the 
answer will be considered admitted at hearing, unless the ALJ permits 
the answer to be amended after due notice to the parties and an 
opportunity to object.
    (d) Failure to answer. If an answer is not filed as required, the 
allegations of the complaint will be taken as admitted by the contestee 
and the BLM State Office will decide the case without a hearing.
    (e) Referral. If an answer is filed, the BLM State Office will 
refer the matter to DCHD.


Sec.  4.168  Proceedings before administrative law judge.

    (a) Applicable rules. In contest proceedings before the ALJ, the 
general procedural rules for practice before DCHD at Sec. Sec.  4.100 
through 4.131 govern practice and procedure in addition to the specific 
rules applicable to contest proceedings at Sec. Sec.  4.160 through 
4.169.
    (b) Authority of the ALJ. The ALJ has the authority to conduct the 
proceeding in an orderly and judicial manner and to issue a written 
decision or order that will be final for the Department, unless 
appealed to the IBLA.
    (c) Reporter fees--(1) The Government agency, bureau, or office 
initiating the contest proceeding will be responsible for reimbursing 
DCHD for all reporter's fees in a Government contest proceeding 
regardless of which party is ultimately successful.
    (2) In the case of a private contest, each party will be required 
to reimburse DCHD for reporter's fees covering that portion of the 
party's direct evidence and cross-examination of witnesses within 60 
days following the hearing. If the ultimate decision is adverse to the 
contestant, then the contestant must also pay all the reporter's fees 
otherwise payable by the contestee.
    (3) Reporter's fees will be calculated based on the rates 
established pursuant to the reporting contract.


Sec.  4.169  Appeal.

    Any party, including the Government, adversely affected by the 
decision of the ALJ may appeal to the IBLA as provided in Sec.  4.403 
and the rules set forth in subparts A, B, and E of this part. No 
further hearing will be allowed in connection with the appeal to the 
IBLA, but the IBLA, after considering the evidence, may remand any case 
for further hearing if it considers such action necessary to develop 
the facts.

Specific Rules Applicable to Grazing Proceedings (Inside and Outside of 
Grazing Districts)


Sec.  4.170  Appealing a grazing decision.

    (a) Eligibility to file appeal. Any applicant, permittee, lessee, 
or other person or entity whose interest is adversely affected by a BLM 
grazing decision may appeal the decision by filing a notice of appeal 
with DCHD in accordance with Sec. Sec.  4.102 and 4.103.
    (b) Deadline and location for filing appeal. The notice of appeal 
must be filed with DCHD within 30 days after service of the grazing 
decision or within 30 days after a proposed grazing decision becomes 
final as provided in 43 CFR 4160.3(a).
    (c) Service of appeal. A copy of the notice of appeal must be 
served in accordance with Sec.  4.102, the OHA Standing Orders on 
Electronic Transmission, and the OHA Standing Orders on Contact 
Information on the following:
    (1) Each person or entity named in the BLM grazing decision;
    (2) The appropriate official of the Office of the Solicitor; and

[[Page 2409]]

    (3) The BLM office that issued the decision.
    (d) Contents of appeal. A notice of appeal must include the 
following:
    (1) A copy of the decision or proposed decision being appealed;
    (2) A statement of standing showing that the person or entity 
seeking to appeal is adversely affected by the decision;
    (3) A statement of timeliness providing the date, and any 
corroborating documentation, showing when the person or entity filing 
the notice of appeal received a copy of the decision and showing that 
the appeal has been timely filed in accordance with paragraph (b) of 
this section; and
    (4) A statement that clearly and concisely states the reasons why 
the appellant believes the BLM grazing decision is incorrect. The 
statement must contain specific factual allegations related to the BLM 
grazing decision being appealed and a summary of the applicable legal 
arguments.
    (e) Waiver and amendment. Any ground for appeal not included in the 
notice of appeal is waived, unless the ALJ grants permission to amend 
the notice of appeal based on a motion demonstrating good cause.
    (f) Failure to appeal. A person or entity who, after receiving 
proper notice, does not timely file a notice of appeal from a BLM 
grazing decision may not later challenge the matters resolved in the 
grazing decision.
    (g) Effect of appeal. Filing an appeal does not by itself stay the 
effect of a BLM grazing decision. To request a stay of the effect of 
the decision pending appeal, a person or entity must also comply with 
Sec.  4.171.


Sec.  4.171  Petitions for stay.

    (a) Standards and procedures for obtaining a stay. An appellant 
under Sec.  4.170 may petition for a stay of a BLM grazing decision by 
filing the petition for a stay with DCHD concurrently with the notice 
of appeal. Filings must be made in accordance with Sec. Sec.  4.102 and 
4.103. Except as otherwise provided by statute or other pertinent 
regulation, the following requirements apply:
    (1) Stay criteria. The appellant must demonstrate that issuance of 
a stay is warranted based on the following three criteria:
    (i) Irreparable harm. The appellant will likely be irreparably 
harmed by implementation of the grazing decision pending resolution of 
the appeal, and the harm will be avoided by granting the stay;
    (ii) Balance of harms. The irreparable harm to the appellant absent 
a stay exceeds the harm to the United States or other parties from a 
stay being granted; and
    (iii) Likelihood of success. The appellant is likely to succeed on 
the merits.
    (2) Burden of proof. The person or entity seeking a stay bears the 
burden of demonstrating that a stay should be granted, in whole or in 
part, under all three criteria set forth in paragraph (a)(1) of this 
section.
    (3) Service. The petition for a stay, along with the notice of 
appeal, must be served in accordance with Sec.  4.102, the OHA Standing 
Orders on Electronic Transmission, and the OHA Standing Orders on 
Contact Information on the following:
    (i) Each person or entity named in the BLM grazing decision;
    (ii) The appropriate official of the Office of the Solicitor; and
    (iii) The BLM office that issued the decision.
    (b) Response to petition for a stay. If a petition for a stay has 
been filed, then:
    (1) Any BLM response to the petition for a stay must be filed, 
along with any other documents that BLM wishes the ALJ to consider when 
adjudicating the petition for a stay, no later than 14 days after 
receiving a copy of the notice of appeal and petition for a stay. BLM 
must also serve a copy of its response on all other parties to the 
appeal in accordance with Sec.  4.102, the OHA Standing Orders on 
Electronic Transmission, and the OHA Standing Orders on Contact 
Information.
    (2) Any other person or entity who wishes to respond to the 
petition for a stay may file a motion to intervene in the appeal under 
Sec.  4.108, together with a response to the petition for a stay, no 
later than 14 days after being served with a copy of the notice of 
appeal and petition for a stay. A copy of the motion to intervene and 
response must be served on all other parties to the appeal in 
accordance with Sec.  4.102, the OHA Standing Orders on Electronic 
Transmission, and the OHA Standing Orders on Contact Information on the 
following:
    (i) Each party to the proceeding;
    (ii) The appropriate official of the Office of the Solicitor; and
    (iii) The BLM office that issued the decision.
    (3) The failure to file a response will not be construed as an 
admission that the petition for a stay should be granted.
    (c) Replies. No replies or further briefing related to the petition 
for a stay will be accepted unless authorized by the ALJ.
    (d) Effect of consent or lack of opposition. The ALJ may summarily 
grant a petition for a stay, in whole or in part, without considering 
the criteria in paragraph (a)(1) if all parties to the appeal consent 
to the stay or file responses to the petition affirmatively stating no 
opposition to the stay.
    (e) Deadline for ruling. The ALJ will grant or deny a petition for 
a stay, in whole or in part, within 45 days of the expiration of the 
time for filing a notice of appeal.


Sec.  4.172  BLM document filing requirements and initial disclosures.

    (a) BLM document filing requirements. Within 14 days of receiving 
the notice of appeal, BLM must file and serve a copy of the following 
documents in accordance with Sec.  4.102:
    (1) The final grazing decision;
    (2) The proposed grazing decision;
    (3) Any proof of service for the decision being appealed;
    (4) Any protests of the proposed decision;
    (5) Any relevant National Environmental Policy Act (NEPA) 
documents;
    (6) Any relevant rangeland health determinations;
    (7) Any relevant resource management plans;
    (8) The application, permit, lease, or other documents evidencing 
authorized use;
    (9) Any relevant notices regarding unauthorized use; and
    (10) Any other key documents directly cited in the final grazing 
decision.
    (b) BLM initial disclosures. At any appropriate time during the 
proceeding, the ALJ may direct BLM to serve a copy of its record for 
the grazing decision on all parties to the proceeding in addition to, 
or in lieu of, the discovery procedures set forth in the general 
procedural rules for practice before DCHD at Sec. Sec.  4.112 through 
4.119 of this subpart.
    (1) Unless otherwise directed by the ALJ, BLM's record for the 
grazing decision must contain a copy of any nonprivileged, discoverable 
materials that the deciding official considered when taking the action 
at issue in the proceeding.
    (2) BLM's initial disclosures are considered discovery materials 
and should not be filed with DCHD unless otherwise directed by the ALJ.


Sec.  4.173  Adjudication of grazing appeal.

    (a) Applicable rules. In grazing proceedings before the ALJ, the 
general procedural rules for practice before DCHD at Sec. Sec.  4.100 
through 4.131 of this subpart govern practice and procedure in addition 
to the rules applicable to grazing proceedings at Sec. Sec.  4.170 
through 4.175 of this subpart.

[[Page 2410]]

    (b) Authority of ALJ. The ALJ has the authority to conduct the 
proceeding in an orderly and judicial manner.
    (c) Decision or order. The ALJ has the authority to issue a written 
decision or order that will be final for the Department unless timely 
appealed under Sec.  4.175.
    (1) Basis for decision. The ALJ will issue a written decision that 
identifies and describes the basis for the decision.
    (2) Substantial compliance standard. No grazing decision will be 
set aside on appeal if it is reasonable and represents substantial 
compliance with the provisions of part 4100 of this title.


Sec.  4.174  Effect of decision pending appeal; exhaustion and 
finality.

    (a) Effect of grazing decision pending appeal. Except as otherwise 
provided by statute or other pertinent regulation:
    (1) A BLM grazing decision will not be effective during the time in 
which a person or entity adversely affected by the grazing decision may 
file an appeal under Sec.  4.170.
    (2) A BLM grazing decision made immediately effective on issuance 
or on a date established by the grazing decision will remain in effect 
unless the ALJ grants a stay.
    (3) A BLM grazing decision will become effective on the day after 
expiration of the time during which a person or entity adversely 
affected may file a notice of appeal unless a petition for a stay is 
filed concurrently with a timely notice of appeal.
    (4) A BLM grazing decision, or that portion of a BLM grazing 
decision for which a stay is sought but not granted, will become 
effective immediately after the ALJ denies or partially denies the 
petition for a stay or fails to act on the petition within the time 
specified in Sec.  4.171(e).
    (b) Exhaustion and finality of grazing decision. To exhaust 
administrative remedies, a petition for a stay must be filed 
concurrently with a timely notice of appeal of the BLM grazing decision 
unless BLM has made the decision immediately effective. The BLM grazing 
decision will not be considered final and subject to judicial review 
unless it has been made effective pending a resolution of the appeal in 
the manner provided by paragraphs (a)(2) or (a)(4) of this section.


Sec.  4.175  Appeal and review.

    (a) Appeal to the Interior Board of Land Appeals--(1) Appeal of 
stay petition order. Any person or entity adversely affected by the 
ALJ's order granting or denying a petition for a stay may file an 
appeal with the IBLA in accordance with Sec.  4.403. Unless the IBLA 
orders otherwise, an appeal of the stay petition order under this 
section:
    (i) Will not suspend the effectiveness of the ALJ's stay petition 
order; and
    (ii) Will not suspend further proceedings before the ALJ.
    (2) Appeal of decision or order on the merits. Any person or entity 
adversely affected by the ALJ's decision or order on the merits may 
file an appeal with the IBLA in accordance with Sec.  4.403.
    (b) Judicial Review. A BLM grazing decision may only be challenged 
in Federal court under 5 U.S.C. 704 if administrative remedies have 
been exhausted and the decision has become final and effective in 
accordance with Sec.  4.174(b).

Subpart D--Rules Applicable to Appeals Before the Interior Board of 
Indian Appeals

0
5. Revise the heading of subpart D to read as set forth above.
0
6. Amend Sec.  4.200 by revising the table in paragraph (a) to read as 
follows:


Sec.  4.200  How to use this subpart.

    (a) * * *

------------------------------------------------------------------------
      For provisions relating to . . .              Consult . . .
------------------------------------------------------------------------
(1) Appeals to the Board of Indian Appeals   Sec.  Sec.   4.200, 4.201,
 generally.                                   and 4.310 through 4.318.
(2) Appeals to the Board of Indian Appeals   Sec.  Sec.   4.201 and
 from orders of the Probate Hearings          4.320 through 4.326.
 Division in Indian probate matters.
(3) Appeals to the Board of Indian Appeals   Sec.  Sec.   4.201 and
 from actions or decisions of the Bureau of   4.330 through 4.340.
 Indian Affairs.
(4) Review by the Board of Indian Appeals    Sec.  Sec.   4.201 and
 of other matters referred to it by the       4.330 through 4.340.
 Secretary, Assistant Secretary--Indian
 Affairs, or Director--Office of Hearings
 and Appeals.
(5) Determinations under the White Earth     Subpart H of this part.
 Reservation Land Settlement Act of 1985,
 as amended..
------------------------------------------------------------------------

* * * * *

0
7. Amend Sec.  4.201 by:
0
a. Adding introductory text;
0
b. Removing the definition of ``Administrative law judge (ALJ);''
0
c. Adding, in alphabetical order, a definition for ``Adversely 
affected;''
0
d. Revising paragraph (2) of the definition of ``Agency;''
0
e. Adding, in alphabetical order, definition for ``Appellant;''
0
f. Removing the definitions of ``BIA'', and ``Decision or order (or 
decision and order)'';
0
g. Revising the definitions of ``Formal probate proceeding'' and 
``Interested party;''
0
h. Removing the definitions of ``Indian probate judge (IPJ)'' and 
``Judge;''
0
i. Adding, in alphabetical order, a definition for ``Probate judge;'' 
and
0
j. Removing the definition of ``Secretary.''
    The revisions read as follows:


Sec.  4.201  Definitions.

    In addition to the definitions in subpart A of this part, the 
following definitions apply to this subpart:
    ``Adversely affected'' means that a person or entity has a legally 
protected interest that was or is likely to be injured by the action, 
decision, or order on appeal.
    ``Agency'' * * *
    (2) Any office of a Tribe that has entered into a contract or 
compact to fulfill the probate function under 25 U.S.C. 5321 or 5363.
    ``Appellant'' means a person or entity appealing an action, 
decision, or order to the Board.
* * * * *
    ``Formal probate proceeding'' means a proceeding, conducted by a 
probate judge, in which evidence is obtained through the testimony of 
witnesses and the receipt of relevant documents.
* * * * *
    ``Interested party'' means a person or entity adversely affected by 
the action, decision, or order on appeal, or whose interest would be 
adversely affected if that action, decision, or order were modified, 
reversed, or set aside. In an appeal from an order of a probate judge, 
the term ``interested party'' is limited to:
    (1) Any potential or actual heir;
    (2) Any devisee under a will;
    (3) Any person or entity asserting a claim against a decedent's 
estate;
    (4) Any Tribe having a statutory option to purchase the trust or 
restricted property interest of a decedent; or

[[Page 2411]]

    (5) Any co-owner exercising a purchase option.
* * * * *
    ``Probate judge'' means an ALJ or IPJ in the Probate Hearings 
Division.
* * * * *

0
8. Revise the undesignated center heading before Sec.  4.310 to read, 
``General Rules for Practice Before the Interior Board of Indian 
Appeals''.

0
9. Amend Sec.  4.310 by:
0
a. Revising the section heading;
0
b. Removing paragraph (f);
0
c. Redesignating paragraphs (a) through (e) as paragraphs (c) through 
(g);
0
d. Adding new paragraphs (a) and (b); and
0
e. Revising newly redesignated paragraphs (c) and (d).
    The additions and revisions read as follows:


Sec.  4.310  Documents; filing, service, computing time, and 
extensions.

    (a) Filing with the Board Generally. A document required or 
permitted to be filed with the Board must be delivered to the Board as 
specified in this subpart and in the OHA Standing Orders on Contact 
Information and the OHA Standing Orders on Electronic Transmission 
found on the Department of the Interior OHA website, at https://www.doi.gov/oha.
    (b) Methods of Filing--(1) Electronic. A document may be filed 
electronically with the Board under the terms specified in the OHA 
Standing Orders on Electronic Transmission. Any Federal, State, or 
local agency and any attorney representing a person or entity must file 
electronically, unless otherwise specified in the OHA Standing Orders 
on Electronic Transmission or the Board has allowed non-electronic 
filing for good cause.
    (2) Non-electronic. A document filed by mail, commercial courier, 
or hand delivery must be delivered to the Board at the address 
specified in the OHA Standing Orders on Contact Information.
    (c) Timeliness and effective date of filing. When the Board is 
determining timeliness, the effective date for filing a notice of 
appeal or other document with the Board depends on the method of 
filing.
    (1) Electronic. For documents filed by electronic transmission 
under the terms specified in the OHA Standing Orders on Electronic 
Transmission, the effective date of filing is the date of transmission 
to the Board. A document filed electronically will be considered timely 
filed if it is transmitted to the Board by 11:59 p.m. Eastern Time on 
the last day of the period prescribed for filing.
    (2) Mail. For documents sent by United States mail or a foreign 
government's mail system, the effective date of filing is the date of 
mailing to the Board.
    (i) If the envelope bears a legible postmark dated on or before the 
last day of the period prescribed for filing, the document will be 
considered timely filed although it is received after the prescribed 
deadline.
    (ii) If the envelope bears a legible postmark dated after the last 
day of the period prescribed for filing the document, the document will 
not be considered timely filed, regardless of when the document is 
deposited in the mail.
    (iii) If the envelope bears an illegible postmark, the person or 
entity who is required to file the document has the burden of proving 
the date of mailing to the Board.
    (3) Commercial courier or hand delivery. For documents delivered by 
commercial courier or hand delivery, the effective date of filing is 
the date of receipt in the Board's office during its regular business 
hours by a person authorized to receive the filing. A document 
delivered by commercial courier or hand delivery that is received after 
the Board's regular business hours is considered filed on the next 
business day.
    (d) Serving Notices of Appeal and other documents. Any party filing 
a notice of appeal or other document with the Board must concurrently 
serve complete copies of the document, including any attachments, on 
all interested parties in the proceeding, except as provided at 43 CFR 
4.31. Service must be made by electronic transmission, mailing, 
delivery by commercial courier, or delivery by hand. Service may be 
made electronically on the Office of the Solicitor and Department of 
the Interior bureaus and offices under the terms specified in the OHA 
Standing Orders on Electronic Transmission. Service may be made 
electronically on all other persons or entities, through means they 
have consented to in writing, under the terms specified in the OHA 
Standing Orders on Electronic Transmission. All documents filed with 
the Board must include a certification that service was made as 
required by this section.
* * * * *

0
10. Revise Sec.  4.312 to read as follows:


Sec.  4.312  Board decisions.

    (a) Decisions of the Board will be made in writing and will set 
forth findings of fact and conclusions of law. The decision may adopt, 
modify, reverse, or set aside any proposed finding, conclusion, or 
order of an administrative law judge, Indian probate judge, or BIA 
official. Distribution of decisions must be made by the Board to all 
parties concerned. Unless otherwise stated in the decision, rulings by 
the Board are final for the Department and must be given immediate 
effect.
    (b) The Board may issue an order affirming, without opinion, a 
decision or order of an administrative law judge, Indian probate judge, 
or BIA official if the Board determines that: the result reached was 
correct; any errors in the decision or order under review were harmless 
or nonmaterial; and either the issues on appeal are squarely controlled 
by existing Board or Federal court precedent and do not involve the 
application of precedent to a novel factual situation, or the factual 
and legal issues raised on appeal are not so substantial that the case 
warrants the issuance of a written opinion by the Board. An order 
affirming without opinion under this paragraph will cite the Board's 
delegated authority and this paragraph; and state, without further 
explanation or reasoning, that the result of the decision or order 
under review is affirmed without opinion. Such an order approves the 
result reached but does not necessarily imply approval of all the 
reasoning of the decision or order under review.
    (c) Nothing in paragraph (a) or (b) of this section limits the 
Board's authority to summarily dismiss an appeal or to summarily adopt, 
modify, reverse, or set aside a decision or order under review.
    (d) If the Board does not issue a decision in a case within 36 
months after the notice of appeal is received by the Board and the 
decision or order of an administrative law judge, Indian probate judge, 
or BIA official being appealed is not in effect, the appellant may move 
for the Board to issue an order dismissing the case without an opinion 
by the Board on the merits and making the decision or order being 
appealed final for the Department. In consolidated appeals, the 36-
month period will begin after the last notice of appeal is received by 
the Board. If each appellant in a case, including any consolidated 
appeals, submits or joins a written motion for dismissal under this 
paragraph, the Board will issue an order dismissing the case without an 
opinion by the Board. The Board's order, issued under authority of this 
paragraph, will make the decision or order being appealed final for the 
Department. The date of the Board's order is the date of finality of 
the decision or order being appealed for the purpose of judicial 
review.

[[Page 2412]]


0
11. Revise and republish Sec.  4.314 to read as follows:


Sec.  4.314  Effect of decision pending appeal and exhaustion of 
administrative remedies.

    (a) Except as otherwise provided by applicable statute or 
regulation, the provisions of 43 CFR 4.21 and this section govern the 
effect of a decision pending appeal and exhaustion of administrative 
remedies.
    (b) A decision of an administrative law judge, Indian probate 
judge, or BIA official will not be effective during the time in which 
an interested party may file a notice of appeal, and the timely filing 
of a notice of appeal will suspend the effect of the decision appealed 
from pending the Board's decision on appeal, unless by order of the 
Board the decision, or any part of it, is made immediately effective.
    (c) No further appeal will lie within the Department from a 
decision of the Board.
    (d) The filing of a petition for reconsideration is not required to 
exhaust administrative remedies.

0
12. Amend Sec.  4.315 by adding paragraph (d) to read as follows:


Sec.  4.315  Reconsideration of a Board decision.

* * * * *
    (d) A petition for reconsideration based solely on an argument that 
the case should not have been affirmed without opinion under Sec.  
4.312(b) is not permitted.

0
13. Amend Sec.  4.317 by revising paragraph (a) to read as follows:


Sec.  4.317  Standards of conduct.

    (a) Inquiries about cases. Except for ex parte communications that 
are prohibited under 43 CFR 4.27, all inquiries by a party to a matter 
pending before the Board should be directed to the Board's clerk, and 
all inquiries by a non-party to a matter pending before the Board 
should be directed to the chief administrative judge of the Board or 
the administrative judge assigned the matter.
* * * * *

0
14. Amend Sec.  4.318 by revising the first sentence to read as 
follows:


Sec.  4.318  Scope of review.

    An appeal will be limited to those issues that were before the 
administrative law judge or Indian probate judge upon the petition for 
rehearing or reopening, or regarding added or omitted property or 
purchase of interests in an estate, or before the BIA official on 
review. * * *

0
15. Revise the undesignated center heading before Sec.  4.320 to read, 
``Specific Rules for Appeals in Probate Matters''.

0
16. Amend Sec.  4.320 by:
0
a. Revising the section heading;
0
b. Revising the introductory text and paragraph (d); and
0
c. Adding paragraph (e).
    The revisions and addition read as follows:


Sec.  4.320  Who may appeal a probate judge's order?

    Any interested party has a right to appeal to the Board if he or 
she is adversely affected by an order of a probate judge under part 30 
of this subtitle:
* * * * *
    (d) Regarding added or omitted property; or
    (e) Determining that a person for whom a probate proceeding is 
sought is not deceased.

0
17. Revise Sec.  4.321 to read as follows:


Sec.  4.321  How do I appeal a probate judge's order?

    (a) A person wishing to appeal an order within the scope of Sec.  
4.320 must file a written notice of appeal within 30 days after the 
probate judge has sent the order and accurate appeal instructions. We 
will dismiss any appeal not filed by this deadline.
    (b) The notice of appeal must be signed by the appellant, the 
appellant's attorney, or other qualified representative as provided at 
43 CFR 1.3, and must be filed with the Board of Indian Appeals by 
electronic transmission, mail, commercial courier, or hand delivery, in 
accordance with Sec.  4.310(b).

0
18. Amend Sec.  4.323 by:
0
a. Revising paragraphs (a) and (b); and
0
b. Removing paragraph (d).
    The revisions read as follows:


Sec.  4.323  Who receives service of the notice of appeal?

    (a) The appellant must file the original notice of appeal with the 
Board.
    (b) A copy of the notice of appeal must be served on the probate 
judge whose order is being appealed, as well as on every other 
interested party, in accordance with Sec.  4.310(d).
* * * * *

0
19. Amend Sec.  4.324 by:
0
a. Revising paragraph (a) introductory text and paragraph (b);
0
b. In paragraph (c)(4), removing ``Sec.  4.310(f)'' and adding in its 
place ``Sec.  4.310(b)''; and
0
c. Revising paragraph (f) introductory text and paragraphs (f)(2) and 
(3).
    The revisions read as follows:


Sec.  4.324  How is the record on appeal prepared?

    (a) On receiving a copy of the notice of appeal, the probate judge 
whose order is being appealed must notify:
* * * * *
    (b) If a transcript of the hearing was not prepared, the probate 
judge must have a transcript prepared and forwarded to the LTRO within 
30 days after receiving a copy of the notice of appeal. The LTRO must 
include the original transcript in the record.
* * * * *
    (f) For any of the following appeals, the probate judge must 
prepare an administrative record for the order and a table of contents 
for the record and must forward them to the Board:
* * * * *
    (2) An appeal from an order under 43 CFR 30.253 regarding added or 
omitted property; or
    (3) An appeal from an order under 43 CFR 30.124 determining that a 
person for whom a probate proceeding is sought is not deceased.


Sec.  4.325  How will the appeal be docketed?

0
20. Amend Sec.  4.325, by adding the word ``probate'' before the word 
``judge'' in the first sentence.

0
21. Revise the undesignated center heading before Sec.  4.330 to read, 
``Specific Rules for Appeals from Administrative Actions Not Relating 
to Probate Proceedings''.

0
22. Amend Sec.  4.330 by revising paragraphs (a) and (b)(3) to read as 
follows:


Sec.  4.330  Scope.

    (a) These regulations apply to the practice and procedure for:
    (1) Appeals to the Board of Indian Appeals from administrative 
actions or decisions of officials of the Bureau of Indian Affairs 
issued under regulations in 25 CFR chapter I; and
    (2) Administrative review by the Board of Indian Appeals of other 
matters pertaining to Indians which are referred to it for exercise of 
review authority of the Secretary or the Assistant Secretary--Indian 
Affairs.
    (b) * * *
    (3) Appeals from decisions pertaining to final recommendations or 
actions by officials of the Office of Natural Resources Revenue or any 
predecessor or successor organization, unless the decision is based on 
an interpretation of Federal Indian law (decisions not so based which 
arise from determinations of the Office of Natural Resources Revenue or 
any predecessor or successor organization, are appealable to the 
Interior Board of Land Appeals in accordance with subpart E of this 
part).

[[Page 2413]]


0
23. Amend Sec.  4.331 by revising the introductory text to read as 
follows:


Sec.  4.331  Who may appeal.

    Any interested party adversely affected by a final administrative 
action or decision of an official of the Bureau of Indian Affairs 
issued under regulations in title 25 of the Code of Federal Regulations 
may appeal to the Board of Indian appeals, except--
* * * * *

0
24. Amend Sec.  4.332 by revising paragraph (a) introductory text and 
paragraph (b) to read as follows:


Sec.  4.332  Appeal to the Board; how taken; mandatory time for filing; 
preparation assistance; requirement for bond.

    (a) A notice of appeal must be in writing, signed by the appellant 
or by his attorney of record or other qualified representative as 
provided by 43 CFR 1.3, and filed with the Board of Indian Appeals by 
electronic transmission, mail, commercial courier, or hand delivery, in 
accordance with Sec.  4.310(b). The notice of appeal must be filed 
within 30 days after receipt by the appellant of the decision from 
which the appeal is taken. A copy of the notice of appeal must 
simultaneously be sent to the Assistant Secretary--Indian Affairs and 
the Associate Solicitor, Division of Indian Affairs. As required by 
Sec.  4.333, the notice of appeal sent to the Board must certify that a 
copy has been sent to the Assistant Secretary--Indian Affairs and to 
the Associate Solicitor, Division of Indian Affairs. A notice of appeal 
not timely filed will be dismissed for lack of jurisdiction. A notice 
of appeal must include:
* * * * *
    (b) In accordance with 25 CFR 2.508, within 40 days from the 
Board's receipt of a notice of appeal, the Assistant Secretary--Indian 
Affairs may decide to review the appeal. If within that time the Board 
receives proper notice from the Assistant Secretary--Indian Affairs 
that a decision has been made to review the appeal, any documents 
concerning the case filed with the Board will be transmitted to the 
Assistant Secretary--Indian Affairs.
* * * * *

0
25. Revise Sec.  4.333 to read as follows:


Sec.  4.333  Service of notice of appeal.

    On or before the date of filing of the notice of appeal the 
appellant must serve a copy of the notice upon each known interested 
party, upon the official of the Bureau of Indian Affairs from whose 
decision the appeal is taken, upon the Assistant Secretary--Indian 
Affairs, and upon the Associate Solicitor, Division of Indian Affairs. 
The notice of appeal filed with the Board must certify that service was 
made as required by this section and must show the names and addresses 
of all parties served. If the appellant is an Indian or an Indian Tribe 
not represented by counsel, the appellant may request the official of 
the Bureau whose decision is appealed to assist in service of copies of 
the notice of appeal and any supporting documents.

0
26. Revise Sec.  4.336 to read as follows:


Sec.  4.336  Docketing and objections to the administrative record.

    (a) An appeal will be assigned a docket number by the Board 40 days 
after receipt of the notice of appeal unless the Board has been 
properly notified that the Assistant Secretary--Indian Affairs has 
assumed jurisdiction over the appeal. If, prior to the time that the 
Board would ordinarily assign a docket number, the Board receives 
notice that the Assistant Secretary--Indian Affairs has decided not to 
assume jurisdiction over the appeal, the Board will assign a docket 
number to the appeal upon receipt of that notice. A notice of docketing 
will be sent to all interested parties as shown by the record on appeal 
upon receipt of the administrative record and assignment of a docket 
number. The docketing notice will specify the time within briefs must 
be filed, cite the procedural regulations governing the appeal, and 
include a copy of the Table of Contents furnished by the deciding 
official if it was not previously sent to the interested parties.
    (b) Any objection to the administrative record as constituted must 
be filed with the Board within 15 days of the objecting party's receipt 
of the Table of Contents.


Sec. Sec.  4.350-4.357  [Removed]

0
27. Remove the undesignated center heading ``White Earth Reservation 
Land Settlement Act of 1985; Authority of Administrative Judges; 
Determinations of the Heirs of Persons Who Died Entitled to 
Compensation'' and Sec. Sec.  4.350 through 4.357.

0
28. Revise subpart E to read as follows:
Subpart E--Rules Applicable to Appeals Before the Interior Board of 
Land Appeals
Sec.
4.400 Scope of rules.
4.401 Definitions.
4.402 Who may appeal; decisions not subject to appeal.
4.403 How to appeal.
4.404 Effect of appeal.
4.405 Effect of decision pending appeal; petitions for stay.
4.406 Record on appeal.
4.407 Filing, service, deadline computations, and issuance.
4.408 Document formatting requirements.
4.409 Motions.
4.410 Briefs.
4.411 Sanctions.
4.412 Affirming without opinion.
4.413 Scope of review, burden to show error, and standards of 
review.
4.414 Interlocutory appeals of ALJ orders.
4.415 Petition for reconsideration.
4.416 Appeals of wildfire management decisions.
4.417 Coordination with judicial review.
4.418 Precedential effect of decisions and orders.


Sec.  4.400  Scope of rules.

    The regulations in this subpart set forth rules applicable to 
appeals before the Interior Board of Land Appeals. General rules in 
subparts A and B of this part are applicable to the proceedings before 
the Board unless they are inconsistent with these rules. Wherever there 
is any conflict between the general rules in subpart B and the rules in 
this subpart, the rules in this subpart will govern. In addition, the 
OHA Standing Orders apply to appeals before the Board and are available 
on the Department of the Interior OHA website, at https://www.doi.gov/oha.


Sec.  4.401  Definitions.

    In addition to the definitions in subpart A of this part, the 
following definitions apply to this subpart:
    Administrative law judge (ALJ) means an administrative law judge 
appointed to the Departmental Cases Hearings Division.
    Adversely affected means that a person or entity has a legally 
cognizable interest, and the decision on appeal has caused or is 
substantially likely to cause injury to that interest. A legally 
cognizable interest may include, but is not limited to, a property or 
economic interest in the affected lands or resources, or a cultural, 
recreational, or aesthetic interest in the affected lands or resources.
    Appealable decision is a final bureau or office decision as 
described at Sec.  4.1(b)(4) of this part that authorizes, denies, 
prohibits, or requires some action that adversely affects a person or 
entity having or seeking some right, title, or interest in lands or 
resources.
    Appellant means a person or entity appealing a decision to the 
Board.
    Board means the Interior Board of Land Appeals in OHA.
    Office or officer includes an administrative law judge or the Board 
where the context so requires.
    Party to the case is a person or entity that has taken action that 
is the subject of the decision on appeal or is the object of that 
decision, or has otherwise

[[Page 2414]]

participated in the process leading to the decision under appeal, e.g., 
by filing a mining claim or application for use of public lands, by 
commenting on an environmental document, or by filing a protest to a 
proposed action.


Sec.  4.402  Who may appeal; decisions not subject to appeal.

    (a) Standing. Any person or entity that is a party to the case and 
is adversely affected by an appealable decision of a bureau or office 
or an ALJ has the right to appeal to the Board, except as provided in 
paragraph (b) of this section.
    (b) Decisions not subject to appeal. An appeal cannot be filed:
    (1) Where a statute or regulation provides a different review 
process or makes a decision final for the Department; or
    (2) Where a decision has been made or approved by the Secretary, 
Deputy Secretary, or an Assistant Secretary unless otherwise provided 
by statute or regulation.
    (c) Land selections under the Alaska Native Claims Settlement Act. 
For appealable decisions rendered by Departmental officials relating to 
land selections under the Alaska Native Claims Settlement Act, as 
amended, any party who claims a property interest in land affected by 
the decision, an agency of the Federal Government or an appropriate 
regional corporation has a right to appeal to the Board.


Sec.  4.403  How to appeal.

    (a) What to file with the notice of appeal. A person or entity that 
wishes to appeal to the Board must file a notice that the person or 
entity wishes to appeal. When a person or entity files a notice of 
appeal, they must also file the following documents:
    (1) A copy of the decision being appealed;
    (2) A statement of facts showing that the person or entity seeking 
to appeal is a party to the case who is adversely affected by the 
decision and thereby meets the standing requirements set forth at Sec.  
4.402; and
    (3) A statement and any corroborating documentation providing the 
date when the person or entity filing the appeal received notice of the 
decision to show that the appeal has been timely filed in accordance 
with paragraph (c) of this section.
    (b) Where to file and serve the notice of appeal. Except as 
otherwise provided by statute or regulation:
    (1) The notice of appeal must be filed with the Board as specified 
in Sec.  4.407(a); and
    (2) The notice of appeal must be concurrently served as specified 
at Sec.  4.407(b).
    (c) When to file and serve the notice of appeal--(1) Except as 
otherwise provided by statute or regulation, a person or entity must 
file the notice of appeal no later than 30 days after the date of 
receiving notice of the decision.
    (2) Notwithstanding the provisions of other regulations, a person 
or entity receives notice of a decision at the earliest of the 
following dates:
    (i) The date of delivery by mail or delivery service as indicated 
on a U.S. Postal Service or delivery service tracking report or, if no 
tracking report exists, then, absent contrary evidence, 7 days after 
the date of the postmark on the envelope containing the decision as 
long as the envelope was properly addressed and had proper postage 
prepaid;
    (ii) The date the bureau or office electronically transmits the 
decision,, or a notice that the decision is available on a public 
website, to the person or entity at an electronic address provided by 
the person or entity, and the bureau or office does not receive 
electronic notification that the transmission was unsuccessful;
    (iii) The date the bureau or office notifies the public in an 
online news release that the decision is available on a public website;
    (iv) The date of the decision's publication in the Federal 
Register; or
    (v) If none of these dates apply, the date the person or entity 
receives actual notice of the decision.
    (3) Filing is accomplished as provided at Sec.  4.407.
    (4) No extension of time will be granted for filing the notice of 
appeal. If a notice of appeal is filed with the Board after the last 
day for filing a timely notice of appeal, then the notice of appeal 
will not be considered, and the Board will dismiss the appeal for lack 
of jurisdiction.


Sec.  4.404  Effect of appeal.

    Once an appeal has been filed, the issuing bureau or office cannot 
modify, rescind, or supersede the decision on appeal without first 
seeking a remand of the decision from the Board. If the decision is 
stayed during the appeal, the bureau or office may only make decisions 
related to the subject of the decision on appeal if those decisions are 
functionally independent of the decision on appeal.


Sec.  4.405  Effect of decision pending appeal; petitions for stay.

    (a) Effect of decision pending appeal. Except as otherwise provided 
by law:
    (1) A decision will not be effective during the time in which a 
person or entity adversely affected may file a notice of appeal; 
however, when the public interest requires or to protect trust 
resources, the Board may provide that a decision, or any part of a 
decision, will be effective immediately.
    (2) A decision will become effective on the day after the 
expiration of the time during which a person or entity adversely 
affected may file a notice of appeal unless a petition for a stay 
pending appeal is filed at the same time as a timely notice of appeal.
    (3) A decision, or that portion of a decision, for which a stay is 
sought but not granted will become effective immediately after the 
Board denies or partially denies the petition for a stay or fails to 
act on the petition within the time specified in paragraph (b)(8) of 
this section.
    (b) Petitions for Stay--(1) Who may file a petition for a stay. 
Only an appellant who properly files an appeal may petition to stay the 
effect of a decision during an appeal.
    (2) When to file a petition for stay. An appellant must file a 
petition for stay at the same time the appellant files a notice of 
appeal.
    (3) Filing and service. An appellant seeking a stay must file a 
petition for a stay with the Board and serve the petition on the bureau 
or office that made the decision being appealed, the proper Office of 
the Solicitor, and each party named in the decision. Filing and service 
must be made as specified in Sec.  4.407 of this subpart.
    (4) Stay criteria. Except as otherwise provided by law, an 
appellant seeking a stay must demonstrate that issuance of a stay is 
warranted based upon the following criteria:
    (i) Irreparable harm. The appellant will likely be irreparably 
harmed by implementation of the decision pending resolution of the 
appeal, and the harm will be avoided by granting the stay;
    (ii) Balance of harms. The irreparable harm to the appellant absent 
a stay exceeds the harm to the United States and other parties from a 
stay being granted; and
    (iii) Likelihood of success. The appellant is likely to succeed on 
the merits.
    (5) Burden of proof. An appellant seeking a stay has the burden to 
demonstrate that a stay should be granted in whole or in part, under 
all three criteria set forth at paragraph (b)(4) of this section.
    (6) Responses to a petition for a stay. Any party may file a 
response to a petition for a stay within 14 days after service; failure 
to file a response will

[[Page 2415]]

not be construed as an admission that the Board should grant the 
petition.
    (7) Replies. No replies to a response will be accepted.
    (8) Ruling on a petition for stay. The Board will grant or deny a 
petition for a stay, in whole or in part, within 45 days of the 
expiration of the time for filing a notice of appeal. The Board will 
deny any petition for a stay that is not filed at the same time the 
appellant filed its notice of appeal. If the Board fails to act on a 
petition for a stay within 45 days of the expiration of the time for 
filing a notice of appeal, the petition will be deemed denied.
    (9) Effect of consent or lack of opposition. The Board may 
summarily grant a petition for a stay, in whole or in part, without 
considering the criteria listed in paragraph (b)(4) of this section if 
all parties to the appeal consent to the stay or file responses to the 
petition affirmatively stating no opposition to the petition.


Sec.  4.406  Record on appeal.

    (a) Filing the record. The bureau or office must promptly file the 
record with the Board and concurrently serve a copy of the record on 
all parties to the appeal no later than 60 days after being served with 
the notice of appeal unless the bureau or office seeks and the Board 
grants a different filing deadline.
    (b) Contents. All documents and materials that the deciding officer 
directly or indirectly considered in reaching a final decision must be 
included in the record.
    (c) Format. Unless otherwise ordered by the Board upon motion by 
the bureau or office, the record must be formatted as follows:
    (1) The record must be in digital or electronic form;
    (2) The record must include an index of all documents;
    (3) The pages of each document must be sequentially numbered; and
    (4) If possible, the text of all documents must be electronically 
searchable.
    (d) Completion of record. The bureau or office may file and serve 
documents inadvertently omitted from the record either by stipulation 
of the parties or by order of the Board upon motion.


Sec.  4.407  Filing, service, deadline computations, and issuance.

    (a) Filing--(1) Generally. A document filed with the Board must be 
delivered to the Board as specified in this subpart and the OHA 
Standing Orders on Electronic Transmission and the OHA Standing Orders 
on Contact Information found on the Department of the Interior OHA 
website, at https://www.doi.gov/oha.
    (2) Methods of filing. (i) Electronic. A document may be filed 
electronically under the terms specified in the OHA Standing Orders on 
Electronic Transmission. Any Federal, State, or local agency and any 
attorney representing a person or entity must file electronically, 
unless otherwise specified in the OHA Standing Orders on Electronic 
Transmission or when the Board has allowed non-electronic filing for 
good cause.
    (ii) Non-electronic. Any document filed non-electronically must be 
delivered to the Board at the address specified in the OHA Standing 
Orders on Contact Information.
    (3) Timeliness--(i) Electronic. A document that is filed 
electronically is deemed timely filed if it is filed by 11:59 p.m. 
Eastern Time on the date the document is due, under the terms specified 
in the OHA Standing Orders on Electronic Transmission.
    (ii) Non-electronic. A document that is not filed electronically is 
deemed timely filed if, on or before the last day for filing, it is 
mailed to the Board by first-class United States mail, or other class 
of mail that is at least as expeditious, postage prepaid; or it is 
dispatched to a third-party commercial courier for delivery to the 
Board within 3 days. The date of mailing or dispatch must be documented 
by a postmark date, acceptance scan, receipt, or similar written 
acknowledgement from the carrier delivering the document for filing. A 
document not received within 7 days of the filing deadline is presumed 
untimely, but the presumption may be overcome by the documentation 
establishing the date of mailing or dispatch.
    (b) Service. (1) Generally. Any person or entity who files a 
document in an appeal must also serve the document under the terms 
specified in this section and in the OHA Standing Orders on Electronic 
Transmission and the OHA Standing Orders on Contact Information.
    (2) Person or entity to serve. A person or entity that files any 
document under this subpart must serve a copy of it concurrently as 
follows:
    (i) For a notice of appeal, on the office of the officer who made 
the decision; each person or entity named in the decision; the 
appropriate official of the Office of the Solicitor as set forth at 
paragraph (b)(2)(iii) of this section; and if the decision involved a 
mining claim on national forest land, then on all parties who 
participated in the proceeding below.
    (ii) For all other documents, on the appropriate official of the 
Office of the Solicitor as set forth at paragraph (b)(2)(iii) of this 
section and on each party to the appeal (including intervenors).
    (iii) Parties must serve the Office of the Solicitor as provided in 
the OHA Standing Orders on Contact Information until a particular 
attorney of the Office of the Solicitor files and serves a document in 
the appeal, after which that attorney must be served.
    (3) Service on represented parties. Service on a party known to be 
represented by an attorney or other designated representative must be 
made on the representative.
    (4) Service address. Every person or entity who files a document in 
connection with an appeal must provide the physical or electronic 
address that the person or entity intends to use for service in the 
appeal. A person or entity seeking to receive service by electronic 
mail must consent to electronic service as required at paragraph 
(b)(6)(i) of this section. If a person or entity has not consented to 
electronic service, then anyone serving a document on that person or 
entity must use the mailing address in the person's or entity's most 
recent filing or, if there has not been any filing, the mailing address 
of the person or entity as provided by the bureau or office where the 
appeal originated.
    (5) Address changes. A party whose mailing or email address changes 
while an appeal is pending must promptly file and serve a written 
notice of the change. The notice must specify the appeal or appeals to 
which the notice applies using the applicable docket number or docket 
numbers when available.
    (6) Manner of service. A document may be served electronically or 
non-electronically as follows:
    (i) Electronic. Service may be made electronically on the Office of 
the Solicitor and the bureau or office whose decision is being appealed 
under the terms specified in the OHA Standing Orders on Electronic 
Transmission. Service may be made electronically on all other persons 
or entities who have consented to electronic service in writing under 
the terms specified in the OHA Standing Orders on Electronic 
Transmission.
    (ii) Non-electronic. Service may be made non-electronically by 
United States mail or commercial courier for delivery within 3 days.
    (7) Certificate of service. At the conclusion of any document that 
a party must serve under this subpart, the party or the party's 
representative must sign a written statement that:
    (i) Certifies service has been or will be made in accordance with 
the applicable rules; and

[[Page 2416]]

    (ii) Specifies the date and manner of service.
    (8) Completion of service--(i) Electronic. Service by electronic 
means is complete on sending or as otherwise directed by the OHA 
Standing Orders on Electronic Transmission, unless the party making 
service is notified that the document was not received by the party 
served.
    (ii) Non-electronic. Service by mail or by commercial courier is 
complete on mailing or delivery to the carrier. The date of mailing or 
delivery must be documented by a postmark date, acceptance scan, 
receipt, or similar written acknowledgement from the carrier delivering 
the document.
    (c) Computing deadlines. When a party may or must act within a 
specified time period after being served, and the document is not 
served electronically on the party or delivered to the party on the 
date stated in the proof of service, 3 days are added after the period 
would otherwise expire.
    (d) Issuance. The Board will issue notices, orders, and decisions 
to the party's electronic mail address unless the party requests 
otherwise. If an electronic mail address is not provided by the party 
in a document filed in the appeal or in a document filed in the 
proceedings below, then the Board will issue notices, orders, and 
decisions by U.S. mail, personal delivery, or commercial courier using 
the party's record address as provided under Sec.  4.22(b) or, if not 
provided, the party's last known mailing address.


Sec.  4.408  Document formatting requirements.

    (a) Documents subject to formatting requirements. The formatting 
requirements of this section apply to any notice, motion, brief, or 
other document filed in an appeal subject to this subpart, whether 
filed electronically or in paper form. These formatting requirements do 
not apply to an exhibit, an attachment, or the administrative record.
    (b) General requirements. Each motion, brief, or other document 
must be filed separately. In addition, all documents must:
    (1) Be captioned with a docket number and a concise title that 
clearly conveys what is being filed;
    (2) Use 12-point font size or larger throughout the document;
    (3) Be double-spaced except for the case caption, headings, long 
quotations, and footnotes, which may be single-spaced;
    (4) Have margins of at least 1 inch on all four sides;
    (5) Have pages that are numbered sequentially;
    (6) Be signed by the party or the party's representative;
    (7) Be 8\1/2\ by 11 inches in size if filed in paper form, with 
print on just one side of the page and the document stapled or bound in 
the upper left-hand corner; and
    (8) Be in electronic text-searchable portable document format (PDF) 
if filed electronically, maintaining original document formatting 
unless specified differently in the OHA Standing Orders on Electronic 
Transmission.
    (c) Document elements excluded from page computations. Documents 
subject to page limitations may exclude from the number computation any 
cover page, table of contents, table of citations, signature blocks, 
certificates of service, indices, attachments, and exhibits.
    (d) Consequences of non-compliance. The Board may decide not to 
consider any document that does not comply with the requirements in 
paragraphs (b) and (c) of this section.


Sec.  4.409  Motions.

    (a) In general--(1) Form and content. Any motion filed with the 
Board must be in writing and state with particularity the relief sought 
and provide the reasons for the motion.
    (2) Duty to confer. (i) Except as provided in paragraph (a)(2)(ii) 
of this section, before filing a motion, the moving party must make 
reasonable efforts to contact each party to determine whether agreement 
can be reached on the relief sought in the motion. The moving party 
must state in its motion:
    (A) Whether any party it reached agrees to all or part of the 
motion; and
    (B) What steps it took to contact any party it was unable to reach.
    (ii) The duty to confer does not apply to a motion by an appellant 
to withdraw or voluntarily dismiss an appeal or an adversarial motion 
(for example, a motion to dismiss for lack of jurisdiction).
    (3) Responses. Except as provided in paragraph (b)(4) of this 
section or a Board order, any party has 14 days after service of the 
motion to file a response.
    (4) Replies. A party has 7 days from service of the response to 
file a reply. The reply may not exceed 10 pages and is limited to new 
issues or arguments raised in the response.
    (b) Extensions of Time. (1) Except as otherwise provided in this 
subpart, a party may seek additional time by filing with the Board a 
motion for an extension of time.
    (2) A motion for an extension must be filed no later than the day 
before the date the document is due, absent extenuating circumstances.
    (3) The party must support its motion for an extension of time by 
showing there is good cause to grant it.
    (4) If a party opposes the motion for an extension of time, the 
party must file its response within 3 business days after service of 
the motion to file a response.
    (5) A Board order granting or denying a motion for an extension 
will state when the document must be filed. If the Board does not act 
on a motion before the document is due, the document must be filed no 
later than 7 days after the original due date, unless the Board orders 
otherwise.
    (c) Intervention. (1) How to intervene. A person or entity that 
wishes to intervene must file a motion to intervene within 60 days 
after the person or entity knew or should have known that the decision 
had been appealed. The person or entity filing a motion to intervene 
must serve the motion on all parties to the appeal.
    (2) Who may file a motion to intervene. A person or entity may seek 
to intervene if they had a right to appeal the decision under these 
rules or would be adversely affected if the Board reversed, vacated, 
set aside, or modified the decision.
    (3) Contents of a motion to intervene. The motion must identify how 
the proposed intervenor meets the eligibility requirements set forth at 
paragraph (c)(2) of this section and when the proposed intervenor 
learned of the appeal.
    (4) The Board's action on a motion to intervene. The Board may 
grant the motion to intervene; grant the motion to intervene but limit 
the person's or entity's participation in the appeal; or deny the 
motion to intervene if the proposed intervenor fails to meet the 
requirements of this paragraph (c) or if the Board determines that 
granting the motion would prejudice the existing parties or unduly 
delay adjudication of the appeal. If the intervenor had a right to 
appeal the decision, the Board will limit participation to the issues 
raised by the other parties to the appeal, along with any additional 
limitations deemed necessary to avoid prejudice or undue delay. If the 
Board denies the motion to intervene, the Board may allow the person or 
entity to file a brief as amicus curiae. A person or entity granted 
full or limited intervenor status is a party to the appeal.
    (d) Amicus curiae. (1) A person or entity may file a motion to file 
a brief as an amicus curiae. The motion must state the person's or 
entity's interest in the appeal and how their brief will

[[Page 2417]]

contribute to resolving the issues on appeal.
    (2) The Board may grant or deny the motion in its discretion.
    (3) A person or entity seeking to participate as amicus curiae must 
serve its motion, and its brief if the motion is granted, on all 
parties to the appeal.
    (4) A person or entity granted amicus curiae status is not a party 
to the appeal.
    (e) Consolidation. The Board, either on a party's motion or at the 
Board's initiative, may consolidate two or more appeals when they 
involve common factual or legal issues.
    (f) Suspension of consideration of appeal. Any party may file a 
motion to suspend consideration of a pending appeal. If granted, the 
Board will toll any remaining filing deadlines until a date specified 
in a Board notice or order. The Board may require the parties to file 
periodic status reports. The Board may lift the suspension and place an 
appeal in an active status upon motion by either party or at the 
Board's initiative.
    (g) Evidentiary Hearing before an ALJ. (1) Any party may file a 
motion that the Board refer an appeal to an ALJ for a hearing. The 
motion must state:
    (i) What specific issues of material fact require a hearing;
    (ii) What evidence concerning these issues must be presented by 
oral testimony, or be subject to cross-examination;
    (iii) What witnesses need to be examined; and
    (iv) What documentary evidence requires explanation, if any.
    (2) In response to a motion for hearing or on its own initiative, 
the Board may order a hearing before an ALJ if there are:
    (i) Any disputed issues of material fact which, if proved, would 
alter the disposition of the appeal; or
    (ii) Significant factual or legal issues remaining to be decided, 
and the record without a hearing would be insufficient for resolving 
them.
    (3) If the Board orders a hearing, it must:
    (i) Specify the issues of fact upon which the hearing is to be 
held; and
    (ii) Request the ALJ to issue:
    (A) Proposed findings of fact on the issues presented at the 
hearing;
    (B) A recommended decision that includes findings of fact and 
conclusions of law; or
    (C) A decision that will be final for the Department unless a 
notice of appeal is filed in accordance with Sec.  4.403.
    (4) The hearing will be conducted under the general rules in 
subpart C of this part. Unless the Board orders otherwise, the ALJ may 
consider other relevant issues and evidence identified after referral 
of the case for a hearing.
    (h) Attorney substitution and withdrawal--(1) Attorney 
substitution--(i) Form and content. A party may substitute attorneys by 
filing and serving a notice of substitution that includes the pertinent 
contact information for the new attorney.
    (ii) Effective date. The notice of substitution is effective upon 
filing.
    (2) Attorney withdrawal--(i) Form and content. An attorney may 
request to withdraw from representing a party to an appeal without 
providing a substitute by filing a written motion to withdraw. The 
attorney must serve the motion on all parties and the attorney's 
client(s). The motion must contain the following:
    (A) Pertinent contact information for the attorney's client(s);
    (B) A statement explaining why the withdrawal will not unfairly 
prejudice the attorney's client(s); and
    (C) A statement that the attorney has taken appropriate steps to 
protect the interests of the client(s) such as providing reasonable 
notice, allowing adequate time for the employment of another attorney, 
and surrendering files related to the appeal.
    (ii) Effective date. A withdrawal is not effective unless the Board 
grants the motion to withdraw. The Board may condition or deny 
withdrawal to avoid prejudice to the client(s) and other parties.


Sec.  4.410  Briefs.

    (a) Applicability. Unless otherwise ordered by the Board, the 
provisions of this section govern the briefing of an appeal. A party is 
required to seek and obtain the Board's leave to exceed the page 
limits, extend the time periods, file a brief not expressly provided 
for in this section, or otherwise depart from the requirements of this 
section.
    (b) Statement of reasons. (1) An appellant must file a statement of 
reasons supporting an appeal with the Board no later than 30 days after 
the record on appeal is filed with the Board.
    (2) The statement of reasons may not exceed 30 pages, excluding 
exhibits, declarations, or other attachments.
    (3) The statement of reasons must set forth with specificity all 
legal or factual errors alleged to have been made in the decision being 
appealed. However, where the bureau or office provided an opportunity 
for participation in its decision-making process, a party may raise on 
appeal only those issues:
    (i) Raised to the bureau or office by anyone who participated in 
the decision-making process; or
    (ii) That arose after the close of the opportunity for such 
participation.
    (4) All arguments in support of the appeal must be set forth in the 
statement of reasons. An appellant may not incorporate by reference 
arguments made in other documents.
    (c) Answer. (1) The bureau or office may file one answer responding 
to a statement of reasons within 60 days after service of the statement 
of reasons or, if an intervenor files a brief in support of an 
appellant, 60 days after service of an intervenor's brief filed under 
paragraph (d)(1) of this section.
    (2) The answer may not exceed 30 pages, excluding exhibits, 
declarations, or other attachments.
    (3) Failure to file an answer will not result in a default.
    (d) Intervenor brief. Unless otherwise ordered by the Board, the 
following requirements apply to an intervenor brief:
    (1) An intervenor in support of an appellant may file a brief 
within 14 days after service of the statement of reasons.
    (2) An intervenor in support of the bureau or office may file a 
brief within 14 days after service of the answer.
    (3) An intervenor's brief may not exceed 20 pages, excluding 
exhibits, declarations, or other attachments.
    (e) Reply brief. (1) An appellant may file one reply brief 
responding to an answer within 21 days after service of the answer or, 
if an intervenor files a brief in support of the bureau or office, 
within 14 days of service of an intervenor's brief filed under 
paragraph (d)(2) of this section.
    (2) The reply brief is limited to addressing new issues raised in 
the answer or intervenor's brief(s).
    (3) The reply brief may not exceed 20 pages, excluding exhibits, 
declarations, or other attachments.
    (f) Sur-reply. No sur-reply may be filed unless a party first files 
a motion demonstrating a compelling reason to file a sur-reply and the 
Board grants the motion.
    (g) Attachments. A party may attach exhibits, declarations, or 
other documents with a brief. The Board will consider the attachments 
to the extent the Board finds them reliable and relevant to the issues 
on appeal.
    (h) Notices of supplemental authority. If pertinent and significant 
authorities come to a party's attention after the party's brief has 
been filed, a party may promptly advise the Board by filing a notice 
(with service on all parties) setting forth the citations to the 
authorities. The notice must state the reasons for providing the 
supplemental authorities and may not exceed three pages. Any response 
to the notice must be filed and served within 7 days and may not exceed 
three pages.

[[Page 2418]]

Sec.  4.411  Sanctions.

    The Board may impose appropriate sanctions on any person or entity 
that violates the regulations of this part, an order of the Board, or 
any other statute or regulation that governs the appeal.
    (a) The sanction may include, after notice and opportunity for the 
person or entity to respond, dismissal of all or part of an appeal, 
denial of a motion, refusal to consider a filing, or the exclusion of 
evidence from consideration.
    (b) Absent extenuating circumstances, the Board will dismiss an 
appeal if the appellant has failed to provide financial security when 
required by regulation or order; violated the regulations of this part 
repeatedly; or caused prejudice to another party because of a violation 
of an order or applicable regulation.


Sec.  4.412  Affirming without opinion.

    (a) Failure to file a statement of reasons. The Board may affirm 
without opinion a decision on appeal if the appellant has not filed a 
statement of reasons for the appeal within the time required in Sec.  
4.410(b) and has not otherwise included the reasons for appeal in its 
filings with the Board.
    (b) Previous level of administrative review. Where the bureau or 
office has provided a level of administrative review before the appeal 
to the Board, or the appeal is from a decision of an ALJ, the Board may 
affirm without opinion the decision on appeal if the Board determines:
    (1) The result reached was correct;
    (2) Any errors in the decision were harmless or nonmaterial; and
    (3) The issues on appeal are squarely controlled by existing Board 
or Federal court precedent and do not involve the application of 
precedent to a novel factual situation, or the factual and legal issues 
raised on appeal are not so substantial that the appeal warrants the 
issuance of a written opinion by the Board.
    (c) Order affirming without opinion. When the Board affirms without 
opinion a decision on appeal, it will issue an order citing this 
section, affirming the decision on appeal, and expressly adopting the 
decision on appeal. The Board's order will be the final decision for 
the Department.


Sec.  4.413  Scope of review, burden to show error, and standards of 
review.

    (a) Scope of review. The Board has authority to review decisions on 
appeal as fully and finally as might the Secretary, subject to any 
limitations on its authority imposed by the Secretary. The Board may at 
any time before issuance of its decision raise or consider any matter 
that it deems material, whether or not raised by the parties. The Board 
may affirm, modify, vacate, set aside, or reverse any decision properly 
brought before it for review, and may remand the matter as may be just 
under the circumstances.
    (b) Burden to show error. The party appealing a decision of a 
bureau, office, or ALJ has the burden to show that an error was made.
    (c) Standards of review. Generally, the Board will exercise its 
review authority as follows:
    (1) The Board will review the decision on appeal for error by 
applying the standards of review set forth in the Administrative 
Procedure Act, 5 U.S.C. 706(2).
    (2) The Board will review questions of law de novo.
    (3) The Board will not overturn a bureau or office decision on the 
basis of a harmless error.


Sec.  4.414  Interlocutory appeals of ALJ orders.

    (a) General procedures. Permission to file an interlocutory appeal 
is a two-step process, requiring a party to do both of the following:
    (1) File an application in accordance with Sec.  4.122(d) asking 
the ALJ to certify an ALJ order, in whole or in part, for interlocutory 
appeal; and
    (2) Within 14 days of the ALJ's ruling on the application for 
certification, petition the Board in accordance with Sec.  4.122(g) for 
permission to file an interlocutory appeal of the ALJ's order, in whole 
or in part.
    (b) Permission from the Board. The Board will grant permission to 
file an interlocutory appeal under the following circumstances:
    (1) The ALJ grants certification, and the Board agrees that the 
ALJ's interlocutory ruling involves a controlling question of law about 
which there are substantial grounds for a difference of opinion and 
that an immediate appeal will materially advance the completion of the 
proceeding; or
    (2) The ALJ denies certification, and the Board determines that the 
ALJ abused their discretion in doing so.


Sec.  4.415  Petition for reconsideration.

    (a) Procedural requirements. Any party may petition for 
reconsideration of a dispositive order or decision within 60 days after 
the date of the order or decision. The deadline to file a petition for 
reconsideration cannot be extended. The petition may include a request 
to stay the effectiveness of the order or decision. The petition may 
not exceed 15 pages. The Board will not accept a petition for 
reconsideration of a Board order affirming without opinion the decision 
on appeal under Sec.  4.412.
    (b) Substantive requirements. The Board will grant the petition 
only in extraordinary circumstances where sufficient reason exists and 
will deny a petition that merely repeats arguments made in the original 
appeal. The petitioner must establish that one of the following reasons 
exists:
    (1) The Board misstated a material fact, resulting in an erroneous 
decision. The Board's findings concerning disputed material facts do 
not constitute a misstatement warranting reconsideration.
    (2) Evidence exists that was not before the Board at the time it 
issued the final decision and that demonstrates error in the decision. 
The petitioner must submit the evidence with the petition and explain 
why the evidence was not provided to the Board during the course of the 
appeal.
    (3) The Board's decision fails to cite and address a binding 
statute, regulation, or decision that would require a different outcome 
in the decision. Disagreement with the Board's interpretation or 
application of the law cited in the decision does not warrant 
reconsideration.
    (c) Responses. Any other party to the original appeal may file a 
response to a petition for reconsideration within 21 days after service 
of the petition. The response may not exceed 15 pages.
    (d) Status of decision while petition is pending. A petition for 
reconsideration will not stay the effectiveness or affect the finality 
of the Board's order or decision unless so ordered by the Board for 
good cause. If the Board stays the effectiveness of the order or 
decision, then finality is deferred until the Board rules on the 
petition.
    (e) Petition Not Required for Exhaustion. A party does not need to 
file a petition for reconsideration to exhaust its administrative 
remedies.


Sec.  4.416  Appeals of wildfire management decisions.

    The Board must decide an appeal of a BLM decision under 43 CFR 
4190.1 and 5003.1(b) within 180 days after the notice of appeal was 
filed. The Board may issue an expedited briefing schedule to meet this 
deadline. If the Board does not rule on the appeal within 180 days 
after the notice of appeal was filed, BLM's decision will be deemed 
final for the Department.


Sec.  4.417  Coordination with judicial review.

    Upon motion or on its own initiative after notice to the parties, 
the Board may suspend consideration or dismiss an appeal when the 
decision on appeal has been challenged in Federal court.

[[Page 2419]]

Sec.  4.418  Precedential effect of decisions and orders.

    The Board may dispose of an appeal by an order or a decision. 
Dispositive orders resolve an appeal and are binding on the parties, 
but they are not precedential. Non-precedential orders may be cited, 
but the Board is not obligated to follow or distinguish them in future 
appeals except when cited for the purpose of establishing res judicata, 
estoppel, or the law of the case. Decisions are precedential. Unless 
superseded or overruled, decisions may be cited as binding precedent in 
other appeals.

0
29. Revise subpart G to read as follows:
Subpart G--Rules Applicable to Proceedings before the Director
Sec.
4.700 Scope
4.701 Who may appeal; who may request a hearing.
4.702 Appeals procedures.
4.703 Hearings procedures.
4.704 Reconsideration.
4.705 Department of the Interior employee matters.

    Authority:  5 U.S.C. 301


Sec.  4.700  Scope.

    Subpart A of this part provides the authority and jurisdiction of 
the OHA Director, including the appointment or delegation of other OHA 
officials to an Ad Hoc Board of Appeals or as a hearing official. The 
general rules contained in subpart B of this part apply to all matters 
before the OHA Director unless they are inconsistent with the rules in 
this subpart G or other procedural rules applicable to specific types 
of proceedings.


Sec.  4.701  Who may appeal; who may request a hearing.

    (a) Appeals. Any party may appeal a decision of a Departmental 
official when the applicable regulations or Departmental policy allow a 
right of appeal to the head of the Department. If the matter does not 
fall within the jurisdiction of a standing unit, the party must direct 
their appeal to the OHA Director.
    (b) Hearing requests. Any party may request a hearing to contest a 
decision of a Departmental official when the applicable regulations or 
Departmental policy allow a right to request a hearing. If the matter 
does not fall within the jurisdiction of a Hearings Division, the party 
must direct their hearing request to the OHA Director.


Sec.  4.702  Appeals procedures.

    (a) Appointment of an Ad Hoc Board of Appeals. The Director may 
appoint an Ad Hoc Board of Appeals to consider and decide a properly 
filed notice of appeal. The parties will be notified when an Ad Hoc 
Board has been appointed.
    (b) Action on appeals. The Director or appointed Ad Hoc Board will 
review the record and take one of the following actions:
    (1) Decide the appeal upon the Appeal file submitted according to 
paragraph (d) of this section or other written record before the 
Director or Ad Hoc Board;
    (2) Refer the entire matter or specified portions for a hearing 
pursuant to paragraph (g) of this section; or
    (3) Make other disposition of the case.
    (c) Notice of appeal. The appellant must file a written notice of 
appeal to the Director within 30 days after receipt of the decision 
they seek to appeal. The notice must identify the decision being 
appealed, give a concise but complete statement of the relevant facts, 
and specify the relief sought. The appellant must serve a copy of the 
notice of appeal and any written arguments or briefs on each person or 
entity whose interest is affected and on the Departmental official 
whose decision is being appealed. The appellant must otherwise follow 
the provisions of Sec.  4.32 regarding filing and service.
    (d) Transmittal of appeal file. Within 10 days after receipt of a 
copy of the notice of appeal, the Departmental official whose decision 
is being appealed must transmit the entire official file in the matter, 
including all records, documents, transcripts of testimony, and other 
information compiled during the proceedings leading to the decision 
being appealed.
    (e) Briefing. If the parties wish to file briefs, they must comply 
with the following requirements:
    (1) An appellant has 30 days from the date of filing of their 
notice of appeal within which to file an opening brief.
    (2) An opposing party will have 30 days from the date of receipt of 
an appellant's brief in which to file an answer brief.
    (3) An appellant or opposing party who wishes to file additional or 
rebuttal briefs must first obtain permission from the Director or the 
Ad Hoc Appeals Board presiding over the appeal.
    (f) Oral argument. Upon request and for good cause, the Director or 
appointed Ad Hoc Board may grant an opportunity for and conduct an oral 
argument. Oral arguments may be recorded, and parties may request the 
recording or a transcript thereof. The requesting party is responsible 
for any fees and expenses pursuant to Sec.  4.23 and any applicable 
Standing Orders available on the Department of the Interior OHA website 
at https://www.doi.gov/oha.
    (g) Referrals for hearing. The Director or appointed Ad Hoc Board 
may refer an appeal to an ALJ or other presiding officer for a hearing 
pursuant to this section.


Sec.  4.703  Hearings procedures.

    (a) Appointment of hearing official. The Director may appoint a 
presiding officer to consider a hearing referral or a properly filed 
hearing request and conduct a hearing. The appointed presiding officer 
will be an ALJ for any matter where a formal hearing is required under 
the Administrative Procedure Act, 5 U.S.C. 554, or other statute. For 
all other hearings, the Director may appoint an ALJ or other presiding 
officer.
    (b) Action on hearing requests. The Director or presiding officer 
will review the record and take one of the following actions:
    (1) Conduct a hearing on the basis of the record pursuant to 
paragraph (d) of this section;
    (2) Schedule and conduct a hearing and any necessary prehearing 
procedures as appropriate and necessary to resolve the matter; or,
    (3) Make other disposition of the case.
    (c) General procedures. All hearings may be governed as appropriate 
and practicable by subpart C of this part, except where specific rules 
or other hearing procedures are provided by law or regulation.
    (d) Hearings based on the record. The Director or presiding officer 
may conduct a hearing on the basis of the written record if permitted 
by the regulation giving rise to the hearing right, and when the 
Director or presiding officer determines that the written record is 
sufficient to resolve the factual disputes raised in the hearing 
request.
    (e) Administrative Wage Garnishment Hearings. Administrative Wage 
Garnishment hearings are governed by 31 CFR 285.11, and any applicable 
OHA Standing Orders.
    (f) National Indian Gaming Commission appeals. In those matters 
where the National Indian Gaming Commission (NIGC) requests that the 
Director provide a presiding official under 25 CFR 584.6, the Director 
will appoint an OHA official to conduct a hearing and issue a 
recommended decision.


Sec.  4.704  Reconsideration.

    Unless otherwise provided by regulation, reconsideration of a 
decision may be granted only in extraordinary

[[Page 2420]]

circumstances and upon a finding of sufficient reasons by the Director 
or a presiding officer appointed by them. Requests for reconsideration 
must specify the purported error and must be filed within 15 days of 
the date of the decision, or the specific deadline provided in the 
regulations relating to the particular type of proceeding. The filing 
of a request for reconsideration will not stay the effectiveness of a 
decision unless ordered by the Director or appointed Ad Hoc Board or 
presiding officer or otherwise provided by statute or regulation. A 
request for reconsideration need not be filed to exhaust administrative 
remedies unless otherwise provided by statute or regulation.


Sec.  4.705  Department of the Interior employee matters.

    The Director may appoint an Ad Hoc Board or presiding officer to 
conduct proceedings in matters where the Departmental Manual or other 
Department policy grants a right of direct or appellate review to 
current or former Department of the Interior employees or their 
survivors. Rules on practice and procedure applying to employee matters 
may be published in OHA Standing Orders.
0
30. Add subpart H to read as follows:

Subpart H--Specific Rules Applicable to White Earth Reservation 
Land Settlement Act Proceedings

Sec.

General Provisions

4.710 What is this subpart's authority and scope?
4.711 To what extent do other regulations and OHA Standing Orders 
apply?
4.712 What definitions apply to this subpart?
4.713 What law governs the determination of heirs?
4.714 What authority does the presiding officer have during the 
determination process?
4.715 How may minors or other legal incompetents be represented?

Filing and Issuance

4.720 Where and how must documents be filed with the presiding 
officer?
4.721 When is a filing with the presiding officer timely?
4.722 To whom will a presiding officer issue a notice, order, or 
decision?
4.723 By what means may the presiding officer issue a notice, order, 
or decision?
4.724 How will issuance of a presiding officer's notice, order, or 
decision be documented?

Commencement of Determination Process

4.730 How does the Project Director commence the determination 
process?
4.731 What evidence must the Project Director file with the 
presiding officer?
4.732 What will the presiding officer do after receiving the 
evidence filed by the Project Director?

Preliminary Decision--Content, Notification, Objections

4.740 What will a preliminary decision include?
4.741 How will notification of the preliminary decision be provided?
4.742 What evidence of posting of the notice of preliminary decision 
must be filed with the presiding officer?
4.743 What are the filing requirements for objecting to a 
preliminary decision and requesting a hearing?
4.744 What happens if no timely objection to the preliminary 
decision is filed?
4.745 What happens if an objection to the preliminary decision is 
filed?

Final Decision and Lodging of Record

4.750 What must the final decision determining decedent's heirs 
contain?
4.751 What happens to the determination process and what must it 
include?

Reconsideration of Final Decision

4.760 How can a final decision be challenged?
4.761 What are the requirements for filing a petition for 
reconsideration?
4.762 Does any distribution of the estate occur while a petition for 
reconsideration is pending?
4.763 How will the presiding officer decide a petition for 
reconsideration?
4.764 What will the order upon reconsideration contain?
4.765 How can an order upon reconsideration be challenged?

Reopening of Closed Case and Correction of Errors

4.770 What are the methods and standards for reopening a closed 
case?
4.771 When must a petition for reopening be filed?
4.772 What must be included in a petition for reopening?
4.773 What is not appropriate for a petition for reopening?
4.774 How will the presiding officer decide a petition for 
reopening?
4.775 How will the presiding officer decide a case reopened on their 
own initiative?
4.776 What will the order upon reopening contain?
4.777 What happens to the record after the presiding officer issues 
an order upon reopening?
4.778 What are non-substantive errors in an order or decision and 
how may they be corrected?

Finality and Appeal of Final Decision and Orders

4.780 When will the final decision and orders upon reconsideration, 
reopening, or remand become final?
4.781 Which presiding officer decisions or orders may be appealed 
and who may appeal them?
4.782 What happens if a petition for reconsideration and a notice of 
appeal are timely filed?
4.783 When and how may a presiding officer's decision or order be 
appealed?
4.784 What are the requirements for serving the notice of appeal and 
statement of reasons?
4.785 When will the determination process record be forwarded to the 
Board?
4.786 What actions may the Board take to resolve a timely appeal?
4.787 What happens to the record after disposition?

Procedures After Board Remand

4.790 What happens if the Board remands the case to the presiding 
officer?
4.791 What will the order upon remand contain?
4.792 What happens to the record after the presiding officer issues 
an order upon remand?

    Authority:  Pub. L. 99-264 (100 Stat. 61), amended by Pub. L. 
100-153 (101 Stat. 886), Pub. L. 100-212 (101 Stat. 1443), Pub. L. 
101-301 (104 Stat. 210), and Pub. L. 103-263 (103 Stat. 707).

General Provisions


Sec.  4.710  What is this subpart's authority and scope?

    This subpart contains the rules and procedures that apply to the 
process for determining the heirs of any person who dies entitled to 
receive compensation under the White Earth Reservation Land Settlement 
Act of 1985, Public Law 99-264 (100 Stat. 61), amended by Public Law 
100-153 (101 Stat. 886), Public Law 100-212 (101 Stat. 1443), Public 
Law 101-301 (104 Stat. 210), and Public Law 103-263 (103 Stat. 707). 
See subparts A and B of this part for the authority and jurisdiction of 
presiding officers and the Board of Indian Appeals, Office of Hearings 
and Appeals, and the rules generally applicable to proceedings before 
them. See Sec. Sec.  4.310 through 4.318 for general rules applicable 
to proceedings before the Board of Indian Appeals.


Sec.  4.711  To what extent do other regulations and OHA Standing 
Orders apply?

    (a) Subparts A and B. The general rules contained in subparts A and 
B of this part apply to the determination process unless they are 
inconsistent with the rules in this subpart or the rules in those 
subparts provide otherwise.
    (b) 43 CFR part 30. Although the rules in 43 CFR part 30 do not 
apply to the determination process, the rules in subparts H and J of 43 
CFR part 30 and in 43 CFR 30.124 may serve as guidance unless they are 
inconsistent with the rules in this subpart.
    (c) 43 CFR 4.310-4.318. The general rules in Sec. Sec.  4.310 
through 4.318 of this

[[Page 2421]]

part apply to appeals to the Interior Board of Indian Appeals under 
this subpart unless they are inconsistent with the rules in this 
subpart.
    (d) OHA Standing Orders. The OHA Standing Order on WELSA 
Proceedings issued by the OHA Director applies to the determination 
process. OHA Standing Orders are available on the Department of the 
Interior OHA website, at https://www.doi.gov/oha.


Sec.  4.712  What definitions apply to this subpart?

    In addition to the definitions in subpart A of this part, the 
following definitions apply to this subpart:
    Act means the White Earth Reservation Land Settlement Act of 1985, 
as amended.
    Board means OHA's Board of Indian Appeals.
    Compensation means a monetary sum, as determined by the Project 
Director pursuant to section 8(c) of the Act.
    Decedent means a person who died entitled to receive compensation 
under the Act.
    Determination process means the legal process established in this 
subpart for determining distribution of a decedent's estate.
    Estate means the compensation due a decedent under the Act.
    Final decision means a written document issued by the presiding 
officer under Sec.  4.744 or Sec.  4.745(a) that finally determines a 
decedent's heirs and each heir's share of the estate and directs 
distribution of the estate.
    Heir means any individual eligible to receive a share of the estate 
pursuant to the Minnesota inheritance laws of intestate succession in 
effect on March 26, 1986.
    Party (parties) in interest means any potential or actual heir of a 
decedent, or of any subsequently deceased potential or actual heir of a 
decedent.
    Preliminary decision means a written non-final document issued by 
the presiding officer under Sec.  4.732(c) that preliminarily 
determines a decedent's heirs and each heir's share of the estate.
    Presiding officer means a judge, attorney advisor, or other 
appropriate official to whom the OHA Director has delegated the 
authority for making heirship determinations as provided for in this 
subpart.
    Project Director means the Superintendent of the Minnesota Agency, 
Bureau of Indian Affairs, another Bureau of Indian Affairs official 
with delegated authority to serve as the Federal officer in charge of 
the WELSA Project, or a person in charge of that project pursuant to 
authority derived from a contract executed under the Indian Self-
Determination and Education Assistance Act, 25 U.S.C. 5321-5332.


Sec.  4.713  What law governs the determination of heirs?

    As directed by the Act, the presiding officer will determine a 
decedent's heirs under the Minnesota inheritance laws of intestate 
succession in effect on March 26, 1986, even though the decedent may 
have died with a valid will.


Sec.  4.714  What authority does the presiding officer have during the 
determination process?

    The presiding officer has the authority to conduct the 
determination process in an orderly and judicial manner, including the 
authority to:
    (a) Determine the manner, location, and time of any hearing 
conducted under this subpart, and otherwise administer the case;
    (b) Determine whether an individual is deemed deceased by reason of 
extended unexplained absence or other pertinent circumstance;
    (c) Accept or reject any full or partial renunciation of interest;
    (d) Determine the heirs of a decedent and each heir's share of the 
estate;
    (e) Order the distribution of the estate to a decedent's heirs and 
determine and reserve the share to which any potential heir who is 
missing but not found to be deceased is entitled;
    (f) Issue subpoenas for the appearance of persons, the testimony of 
witnesses, and the production of documents at hearings or depositions 
on the judge's own initiative or if requested by the Project Director 
or a party in interest and approved by the presiding officer;
    (g) Administer oaths and affirmations;
    (h) Issue discovery orders including those:
    (1) Ordering the taking of depositions and determining the scope 
and use of deposition testimony;
    (2) Ordering the production of documents and determining the scope 
and use of the documents; or
    (3) Ruling on matters involving interrogatories and any other 
requests for discovery;
    (i) Grant or deny stays, waivers, and extensions;
    (j) Rule on motions, requests, and objections;
    (k) Rule on the admissibility of evidence;
    (l) Permit the cross-examination of witnesses;
    (m) Appoint a guardian ad litem for any party in interest who is a 
minor or found by the presiding officer not to be competent to 
represent their own interests in accordance with Sec.  4.715;
    (n) Ask the Project Director to file additional evidence;
    (o) Dismiss a case and return the case file to the Project Director 
if the presiding officer determines that the evidence provided by the 
Project Director under Sec. Sec.  4.730(a) and 4.731 is incomplete;
    (p) Regulate the course of any hearing and the conduct of 
witnesses, parties in interest, attorneys, and attendees at a hearing; 
and
    (q) Take any action necessary to preserve the estate.


Sec.  4.715  How may minors or other legal incompetents be represented?

    Minors and other legal incompetents who are parties in interest may 
be represented by legally appointed guardians, or by guardians ad litem 
appointed by the presiding officer.

Filing and Issuance


Sec.  4.720  Where and how must documents be filed with the presiding 
officer?

    (a) General. A document required or permitted to be filed with the 
presiding officer must be delivered to the presiding officer as 
specified in this subpart and the OHA Standing Order on WELSA 
Proceedings.
    (b) Methods of filing--(1) Electronic. A document may be filed 
electronically under the terms specified in the OHA Standing Order on 
WELSA Proceedings. The Project Director, or any attorney representing a 
person or entity, must file electronically, unless otherwise specified 
in the OHA Standing Order on WELSA Proceedings or when the presiding 
officer has allowed non-electronic filing for good cause.
    (2) Non-electronic. Any document filed non-electronically must be 
delivered to the presiding officer at the address specified in the OHA 
Standing Order on WELSA Proceedings.


Sec.  4.721  When is a filing with the presiding officer timely?

    (a) Electronic. A document filed electronically is deemed timely if 
filed by 11:59 p.m. Central Time on the date the document is due under 
the terms specified in the OHA Standing Order on WELSA Proceedings.
    (b) Non-electronic. A document not filed electronically is deemed 
timely if, on or before the last day for filing, it is sent by first-
class United States mail, or other class of mail that is at least as 
expeditious, postage prepaid; or it is dispatched to a commercial 
courier for delivery within 3 days. The date of mailing or dispatch 
must be documented by a postmark date, acceptance scan, receipt, or 
similar written acknowledgement from the

[[Page 2422]]

company delivering the document for filing. A document not received 
within 7 business days of the filing deadline is presumed untimely, but 
the presumption may be overcome by the documentation establishing the 
date of mailing or dispatch.


Sec.  4.722  To whom will a presiding officer issue a notice, order, or 
decision?

    The presiding officer will issue a notice, order, or decision to 
each party in interest and the Project Director.


Sec.  4.723  By what means may the presiding officer issue a notice, 
order, or decision?

    (a) Electronic. A presiding officer's notice, order, or decision 
may be issued electronically under the terms specified in the OHA 
Standing Order on WELSA Proceedings.
    (b) Non-electronic. A presiding officer's notice, order, or 
decision may be issued non-electronically by U.S. mail or commercial 
courier to the Project Director or a party in interest using their 
record address as provided under Sec.  4.22(b) or, if not provided, 
their last known mailing address.


Sec.  4.724  How will issuance of a presiding officer's notice, order, 
or decision be documented?

    A presiding officer's notice, order, or decision must include the 
date on which it is issued, the names of the persons to whom it is 
issued, and the method of issuance.

Commencement of Determination Process


Sec.  4.730  How does the Project Director commence the determination 
process?

    Unless an heirship determination which is recognized by the Act 
already exists, the Project Director will commence the process of 
determining the heirs of a decedent by filing with the presiding 
officer the evidence described in Sec.  4.731.


Sec.  4.731  What evidence must the Project Director file with the 
presiding officer?

    The Project Director must file with the presiding officer 
sufficient evidence to enable the presiding officer to determine a 
decedent's heirs under the Act. That evidence must include:
    (a)(1) A copy of the decedent's death certificate if one exists; or
    (2) If there is no death certificate, then another form of official 
written evidence of the death, such as a burial or transportation of 
remains permit, coroner's report, or church registry of death; or
    (3) If there is no death certificate and no other form of official 
written evidence, then a secondary form of evidence of death such as an 
affidavit from someone with personal knowledge concerning the fact of 
death or an obituary or death notice from a newspaper;
    (b) A document containing information for heirship finding and 
family history, including:
    (1) The facts and alleged facts of:
    (i) The decedent's marriages, separations, and divorces; and
    (ii) Whether the relationships of decedent's potential heirs and 
other known parties in interest arose by marriage, blood, or adoption;
    (2) The names and last known addresses of decedent's potential 
heirs and other known parties in interest; and
    (3) Other relevant information regarding the parties in interest, 
including dates of births and deaths;
    (c) A certification by the Project Director or their designee that 
the information required in paragraph (b)(2) of this section was filed 
after having made a reasonable and diligent search;
    (d) A copy of each document evidencing the information required in 
paragraphs (b)(1) and (3) of this section, such as marriage licenses 
and certificates, divorce and adoption decrees, birth and death 
certificates, and affidavits or adjudications of paternity;
    (e) Known and relevant determinations of heirs of relatives of the 
decedent, including those recognized as effective under section 5(a) of 
the Act and those rendered by courts of Minnesota or other States, by 
tribal courts, or by tribunals authorized by the laws of other 
countries; and
    (f) A report of the compensation due the decedent, including 
interest calculated to the date of death of the decedent and an outline 
of the derivation of the compensation containing:
    (1) Its real property origins and the succession of the 
compensation to the decedent; and
    (2) All of the intervening heirs under the Act, their fractional 
shares, and the amount of compensation attributed to each of them.


Sec.  4.732  What will the presiding officer do after receiving the 
evidence filed by the Project Director?

    (a) After the presiding officer receives and reviews the evidence 
filed by the Project Director, the presiding officer will determine 
whether there are any apparent issues of fact to be resolved.
    (b) To resolve any apparent issues of fact, the presiding officer 
may do one or more of the following:
    (1) Request information from the Project Director, parties in 
interest, or other persons or entities;
    (2) Schedule and hold a prehearing conference;
    (3) Schedule and hold a hearing; or
    (4) Take any other action authorized by this subpart.
    (c) If the presiding officer does not hold a hearing, they will 
issue a preliminary decision determining the decedent's heirs.
    (d) If the presiding officer does hold a hearing, they may issue a 
final decision determining the decedent's heirs without first issuing a 
preliminary decision.

Preliminary Decision--Content, Notification, Objections


Sec.  4.740  What will a preliminary decision include?

    If the presiding officer issues a preliminary decision, the 
decision will include each heir's name, birth date, relationship to the 
decedent, and share of the estate, or a statement that the decedent 
died without heirs.


Sec.  4.741  How will notification of the preliminary decision be 
provided?

    (a) The presiding officer will issue a notice of preliminary 
decision on the same day they issue a preliminary decision. The notice 
will inform the Project Director and parties in interest of their right 
to file with the presiding officer an objection to the preliminary 
decision, with or without a request for hearing, within 40 days of the 
date of issuance of the notice.
    (b) The Project Director:
    (1) Will ensure that the notice is posted at the following 
entities, whose addresses are specified in the OHA Standing Order on 
WELSA Proceedings:
    (i) The White Earth Band of the Minnesota Chippewa Tribe; and
    (ii) Minnesota Agency, Bureau of Indian Affairs; and
    (2) Has the discretion to identify additional appropriate locations 
where the notice will be posted and the addresses of those locations 
will be specified in the OHA Standing Order on WELSA Proceedings.
    (c) The postings of the notice must occur within 7 days of the 
Project Director's receipt of the notice.


Sec.  4.742  What evidence of posting of the notice of preliminary 
decision must be filed with the presiding officer?

    (a) The Project Director will prepare a signed certificate of 
transmission stating when the notice of the preliminary decision was 
transmitted for posting, and to which locations it will be posted.
    (b) Each person at these locations who posts the notice must:
    (1) Prepare and sign a posting certificate stating the date and 
place of posting; and
    (2) Transmit the certificate to the Project Director.

[[Page 2423]]

    (c) The Project Director must file with the presiding officer the 
Project Director's certificate and each posting certificate transmitted 
to the Project Director under paragraph (b) of this section.


Sec.  4.743  What are the filing requirements for objecting to a 
preliminary decision and requesting a hearing?

    (a) The Project Director or any party in interest may file with the 
presiding officer a written objection to a preliminary decision within 
40 days after the date of issuance of the notice of preliminary 
decision.
    (b) The objection must allege an error of fact or law in the 
preliminary decision and state specifically and concisely the grounds 
on which the objection is based.
    (c) The objection may include a request for hearing, which must set 
forth any disputed issues of fact.


Sec.  4.744  What happens if no timely objection to the preliminary 
decision is filed?

    If no written objection to a preliminary decision is timely filed 
in accordance with Sec.  4.743(a), the presiding officer will issue a 
final decision.


Sec.  4.745  What happens if an objection to the preliminary decision 
is filed?

    (a) General. If a written objection to a preliminary decision is 
filed with the presiding officer before the final decision is issued, 
they may take any action listed in Sec.  4.732(b) to resolve any issues 
of fact and will issue a final decision that includes a resolution of 
the objection.
    (b) Denial without opportunity to respond. The presiding officer 
may deny the objection without providing the Project Director and the 
parties in interest with an opportunity to respond to the objection, if 
the objection:
    (1) Is not timely filed;
    (2) Alleges mere disagreement with the preliminary decision; or
    (3) Otherwise fails to assert proper grounds for objecting, as 
determined by the presiding officer.
    (c) Consideration after opportunity to respond. If the presiding 
officer does not deny the objection under paragraph (b) of this 
section, the presiding officer will:
    (1) Issue a notice allowing the Project Director and the parties in 
interest a reasonable, specified time in which to file a written 
response to the objection;
    (2) Issue with the notice, a copy of the objection and all papers 
filed by the objector; and
    (3) Consider, with or without a hearing, the issues raised in the 
objection, including any request for hearing, and in any written 
responses to the objection.

Final Decision and Lodging of Record


Sec.  4.750  What must the final decision determining decedent's heirs 
contain?

    (a) The final decision must contain:
    (1) Each heir's name, birth date, relationship to the decedent, and 
share of the estate, or a statement that the decedent died without 
heirs, and this information may be incorporated into the final decision 
from the preliminary decision if no timely objection to the preliminary 
decision was filed or if otherwise appropriate; and
    (2) A notice that any party in interest who is adversely affected 
by the final decision, as well as the Project Director, have a right to 
file a petition for reconsideration with the presiding officer or an 
appeal with the Board within 30 days of the date of issuance of the 
final decision.
    (b) If an objection to the preliminary decision is filed before the 
final decision is issued, the final decision must also resolve the 
objection and set forth the reasons for the resolution.


Sec.  4.751  What happens to the determination process record and what 
must it include?

    (a) After issuance of the final decision and any order upon 
reconsideration, the presiding officer must lodge the original record 
of the determination process with the Project Director.
    (b) The record must contain, where applicable, the following 
materials:
    (1) A copy of the posted notice of preliminary decision, the 
Project Director's certificate of transmission of the notice for 
posting, and the posting certificates;
    (2) A copy of each notice, order, or decision issued to the parties 
in interest or Project Director;
    (3) The record of evidence received, including any transcript made 
of testimony;
    (4) Information for heirship finding and family history, and 
information supplementary thereto; and
    (5) Any other material or documents deemed relevant by the 
presiding officer.

Reconsideration of Final Decision


Sec.  4.760  How can a final decision be challenged?

    A party in interest adversely affected by a final decision, or the 
Project Director, may file either a petition for reconsideration with 
the presiding officer or an appeal with the Board under Sec.  4.783, 
but not both.


Sec.  4.761  What are the requirements for filing a petition for 
reconsideration?

    (a) Deadline to file. A petition for reconsideration must be filed 
with the presiding officer within 30 days after the date of issuance of 
the final decision.
    (b) Petition content. (1) A petition for reconsideration must 
allege a substantive error of fact or law in the final decision and 
must state specifically and concisely the grounds on which the petition 
is based.
    (2) If the petition is based on evidence newly discovered after, or 
evidence that was unavailable before, issuance of the final decision, 
the petition must:
    (i) Be accompanied by documentation of that evidence, including, 
but not limited to, one or more affidavits of a witness stating fully 
the content of the new evidence; and
    (ii) State the reasons for failure to discover and present that 
evidence before that date.


Sec.  4.762  Does any distribution of the estate occur while a petition 
for reconsideration is pending?

    The Project Director must not initiate distribution of any portion 
of the estate while the petition for reconsideration is pending. If the 
petition is filed by a party in interest and not the Project Director, 
the presiding officer will issue a notice of receipt of the petition to 
the Project Director as soon as practicable.


Sec.  4.763  How will the presiding officer decide a petition for 
reconsideration?

    (a) General. The presiding officer may take any action listed in 
Sec.  4.732(b) to resolve any issues of fact and will issue an order 
upon reconsideration resolving the petition.
    (b) Denial without opportunity to respond. The presiding officer 
may deny the petition without providing the Project Director and the 
parties in interest with an opportunity to respond to the petition, if 
the petition:
    (1) Is not timely filed;
    (2) Is based on newly discovered evidence and fails to meet the 
requirements of Sec.  4.761(b)(2);
    (3) Is based solely on issues raised for the first time on 
reconsideration;
    (4) Alleges mere disagreement with the final decision; or
    (5) Otherwise fails to assert proper grounds for reconsideration, 
as determined by the presiding officer.
    (c) Consideration after opportunity to respond. If the presiding 
officer does not deny the petition under paragraph (b) of this section, 
the presiding officer will:
    (1) Issue a notice allowing the Project Director and the parties in 
interest a reasonable, specified time in which to file a written 
response to the petition;

[[Page 2424]]

    (2) Issue with the notice, a copy of the petition and all papers 
filed by the petitioner; and
    (3) Consider, with or without a hearing, the issues raised in the 
petition and in any written responses to the petition.


Sec.  4.764  What will the order upon reconsideration contain?

    In the order upon reconsideration, the presiding officer may deny 
the petition in accordance with Sec.  4.763(b) or affirm, modify, or 
vacate the final decision; and must:
    (a) Set forth the reasons for doing so; and
    (b) Include a notice stating that any party in interest who is 
adversely affected by the order upon reconsideration, as well as the 
Project Director, have the right to appeal the order to the Board 
within 30 days of the date of issuance of the order.


Sec.  4.765  How can an order upon reconsideration be challenged?

    (a) An order upon reconsideration may be appealed to the Board as 
provided in Sec.  4.783 of this subpart.
    (b) No person or entity may file successive petitions for 
reconsideration in the same case.

Reopening of Closed Case and Correction of Errors


Sec.  4.770  What are the methods and standards for reopening a closed 
case?

    (a) General. The presiding officer may reopen a closed case to 
correct an error of fact or law in a final decision, including any 
modification of the final decision.
    (b) Methods. (1) A party in interest adversely affected by a final 
decision, or the Project Director, may seek correction of an error of 
fact or law by filing a petition for reopening with the presiding 
officer.
    (2) The presiding officer may reopen a case on their own initiative 
if they become aware of sufficient evidence to justify correction of an 
error.
    (c) Standards. The presiding officer may reopen a closed case:
    (1) If the error is discovered more than 30 days after the date of 
issuance of the final decision; and
    (2) If the petition for reopening is filed or the presiding officer 
reopens the case on their own initiative:
    (i) Within 3 years or less of the date of issuance of the final 
decision; or
    (ii) More than 3 years after the date of issuance of the final 
decision if the presiding officer finds that the need to correct the 
error outweighs the interests of the public and heirs in the finality 
of the final decision.


Sec.  4.771  When must a petition for reopening be filed?

    (a) The Project Director may file a petition at any time. All other 
petitioners must file their petition within one year after the 
petitioner discovers the alleged error.
    (b) If the petitioner files their petition for reopening before the 
deadline for filing a petition for reconsideration under Sec.  
4.761(a), it will be treated as a petition for reconsideration.


Sec.  4.772  What must be included in a petition for reopening?

    (a) A petition for reopening must:
    (1) State specifically and concisely the grounds on which the 
petition is based and the relief requested; and
    (2) Append all relevant documentary evidence, including any sworn 
affidavits, supporting the allegations and relief requested in the 
petition.
    (b) A petition filed by a party in interest must also:
    (1) State in the petition the date the petitioner discovered the 
alleged error; and
    (2) Append all relevant documentary evidence, including any sworn 
affidavits, concerning when and how the petitioner discovered the 
alleged error.
    (c) A petition filed more than 3 years after the date of issuance 
of the final decision must also show that the need to correct the error 
outweighs the interests of the public and heirs in the finality of the 
final decision, which may be shown by addressing the following factors 
in the petition, as applicable:
    (1) The nature of the error;
    (2) The passage of time;
    (3) Whether the petitioner exercised due diligence in pursuing 
their rights;
    (4) Whether the petitioner's ancestor exercised due diligence in 
pursuing their rights and whether a failure to exercise should be 
imputed to the petitioner;
    (5) The availability of witnesses and documents;
    (6) The general interest in administrative finality;
    (7) The number of other estates that would be affected by the 
reopening, if known; and
    (8) Whether the property that was in the estate is still available 
for redistribution if the case is reopened, if known.


Sec.  4.773  What is not appropriate for a petition for reopening?

    In a petition for reopening, the petitioner may not:
    (a) Raise issues or objections that were previously addressed in an 
order issued in the case;
    (b) Submit evidence that was available or discoverable at the time 
the final decision was issued, or available during any period of 
reconsideration of the final decision. The requirements at Sec.  
4.761(b)(2) concerning presentation of new evidence upon 
reconsideration also apply to the presentation of new evidence on 
reopening; or
    (c) Raise issues or objections when the petitioner had the 
opportunity to raise them earlier because the petitioner received 
proper notice of the preliminary decision or hearing, if any. This 
paragraph does not apply to the Project Director.


Sec.  4.774  How will the presiding officer decide a petition for 
reopening?

    (a) General. The presiding officer may take any action listed in 
Sec.  4.732(b) to resolve any issues of fact and will issue an order 
upon reopening resolving the petition.
    (b) Denial without opportunity to respond. The presiding officer 
may deny the petition without providing the Project Director and the 
parties in interest with an opportunity to respond to the petition, if 
the petition:
    (1) Does not meet the standards set forth at Sec.  4.770(c);
    (2) Alleges mere disagreement with a final decision;
    (3) Raises issues that were previously addressed in an order issued 
in the case;
    (4) Raises only issues or objections for the first time on 
reopening and the petitioner is a party in interest who received proper 
notice of the preliminary decision or of any hearing;
    (5) Is based on newly discovered evidence and fails to meet the 
requirements of Sec.  4.761(b)(2); or
    (6) Otherwise fails to assert proper grounds for reopening, as 
determined by the presiding officer.
    (c) Consideration after opportunity to respond. If the presiding 
officer does not deny the petition under paragraph (b) of this section, 
the presiding officer will:
    (1) Issue a notice allowing the Project Director and the parties in 
interest a reasonable, specified time in which to file a written 
response to the petition;
    (2) Issue with the notice, a copy of the petition and all papers 
filed by the petitioner;
    (3) Suspend further distribution of the estate during the reopening 
proceedings, if appropriate, by order to the Project Director; and
    (4) Consider, with or without a hearing, the issues raised in the 
petition.

[[Page 2425]]

Sec.  4.775  How will the presiding officer decide a case reopened on 
their own initiative?

    When a presiding officer reopens a case on their own initiative to 
correct an error in a final decision, they will:
    (a) Issue a notice which must:
    (1) Identify the error and explain how the presiding officer 
intends to modify the final decision to correct the error; and
    (2) Allow the Project Director and the parties in interest a 
reasonable, specified time in which to file a written response to the 
notice;
    (b) Suspend further distribution of the estate during the reopening 
proceedings, if appropriate, by order to the Project Director; and
    (c) Consider, with or without a hearing, the issues raised by any 
timely written response to the notice and issue an order upon 
reopening.


Sec.  4.776  What will the order upon reopening contain?

    In the order upon reopening, the presiding officer may deny the 
petition for reopening, if any, in accordance with Sec.  4.774(b) or 
affirm, modify, or vacate the final decision; and must:
    (a) Set forth the reasons for doing so; and
    (b) Include a notice stating that any party in interest who is 
adversely affected by the order upon reopening, as well as the Project 
Director, have the right to appeal the order to the Board within 30 
days of the date of issuance of the order.


Sec.  4.777  What happens to the record after the presiding officer 
issues an order upon reopening?

    After the presiding officer issues an order upon reopening, they 
must submit the record made on reopening to the Project Director.


Sec.  4.778  What are non-substantive errors in an order or decision 
and how may they be corrected?

    (a) Errors are non-substantive if they are merely typographical, 
clerical, or their correction would not change the distribution of a 
decedent's property.
    (b) If, after issuance of an order or decision, it appears that the 
order or decision contains non-substantive errors, the presiding 
officer may issue a correction order to the Project Director and the 
parties in interest correcting them.
    (c) The presiding officer may issue a correction order on their own 
initiative. The Project Director and the parties in interest may also 
file a request for a correction order at any time.
    (d) The correction order is not subject to appeal to the Board.

Finality and Appeal of Final Decision and Orders


Sec.  4.780  When will the final decision and orders upon 
reconsideration, reopening, or remand become final?

    (a) A final decision will become final on the expiration of the 30 
days allowed for filing a notice of appeal with the Board under Sec.  
4.783(a) or a petition for reconsideration with the presiding officer 
under Sec.  4.761(a) unless a notice of appeal or a petition for 
reconsideration is timely filed.
    (b) Each of the following orders will become final on the 
expiration of the 30 days allowed for filing a notice of appeal with 
the Board under Sec.  4.783(a) unless a notice of appeal is timely 
filed:
    (1) An order upon reconsideration issued under Sec.  4.763(a);
    (2) An order upon reopening issued under Sec.  4.774(a) or Sec.  
4.775(c); and
    (3) An order upon remand issued under Sec.  4.790(b).


Sec.  4.781  Which presiding officer decisions or orders may be 
appealed and who may appeal them?

    Any of the following decisions or orders of the presiding officer 
may be appealed to the Board by the Project Director and by any party 
in interest who is adversely affected by that decision or order:
    (a) A final decision;
    (b) An order upon reconsideration issued under Sec.  4.763(a);
    (c) An order upon reopening issued under Sec.  4.774(a) or Sec.  
4.775(c); or
    (d) An order upon remand issued under Sec.  4.790(b).


Sec.  4.782  What happens if a petition for reconsideration and a 
notice of appeal are timely filed?

    If a petition for reconsideration is timely filed with the 
presiding officer and a notice of appeal is timely filed with the 
Board, the Board will dismiss the appeal without prejudice and the 
presiding officer will issue an order upon reconsideration.


Sec.  4.783  When and how may a presiding officer's decision or order 
be appealed?

    (a) When. (1) A person wishing to appeal a presiding officer's 
decision or order listed in Sec.  4.781 must file a written notice of 
appeal with the Board in accordance with Sec.  4.310 within 30 days of 
the date of issuance of the decision or order. The Board will dismiss 
any appeal not filed by this deadline.
    (2) Within 30 days after filing the notice of appeal, the appellant 
must also file with the Board, in accordance with Sec.  4.310, a 
statement of reasons why the presiding officer's decision or order is 
in error.
    (b) How. Both the notice of appeal and statement of reasons must be 
signed by the appellant, the appellant's attorney, or other qualified 
representative as provided in 43 CFR 1.3 of this subtitle, and must be 
filed with the Board by electronic transmission, mail, commercial 
courier, or hand delivery, in accordance with Sec.  4.310(b).


Sec.  4.784  What are the requirements for serving the notice of appeal 
and statement of reasons?

    (a) The appellant must serve a copy of the notice of appeal and the 
statement of reasons on the Project Director and on the presiding 
officer whose decision or order is being appealed in accordance with 
the methods identified in Sec.  4.310(d).
    (b) The notice of appeal and the statement of reasons filed with 
the Board must include a certification that service was made as 
required by this section.


Sec.  4.785  When will the determination process record be forwarded to 
the Board?

    The Project Director will ensure that the determination process 
record is expeditiously forwarded to the Board.


Sec.  4.786  What actions may the Board take to resolve a timely 
appeal?

    (a) If the Board finds that the appellant has set forth sufficient 
reasons for questioning the presiding officer's decision or order, the 
Board will issue an order giving all parties in interest an opportunity 
to respond, following which a decision will be issued.
    (b) If the Board finds that the appellant has not set forth 
sufficient reasons for questioning the presiding officer's decision or 
order, the Board may issue a decision on the appeal without further 
briefing.
    (c) The Board may issue a decision affirming, reversing, modifying, 
or vacating the presiding officer's decision or order. If the Board 
vacates the presiding officer's decision or order, the case will be 
remanded to the appropriate presiding officer for reconsideration, 
hearing, or both.


Sec.  4.787  What happens to the record after disposition?

    The record filed with the Board under Sec.  4.785 and all documents 
added during the appeal proceeding, including the Board's decision, 
must be forwarded to:
    (a) The presiding officer after the Board makes a decision 
remanding the case to the presiding officer, or
    (b) The Project Director if the Board makes a decision other than a 
remand.

[[Page 2426]]

Procedures After Board Remand


Sec.  4.790  What happens if the Board remands the case to the 
presiding officer?

    If the Board issues a decision remanding a case to the presiding 
officer, the presiding officer:
    (a) May, subject to any directions or restrictions in the Board's 
decision and Sec.  4.315, do one or more of the following to resolve 
any issues of fact or law:
    (1) Request information from the Project Director and the parties 
in interest or other persons or entities;
    (2) Schedule and hold a prehearing conference;
    (3) Schedule and hold a hearing; or
    (4) Take any other action authorized by this subpart; and
    (b) Will issue an order upon remand determining the issues of fact 
or law.


Sec.  4.791  What will the order upon remand contain?

    In the order upon remand, the presiding officer will resolve the 
issues of fact or law and must:
    (a) Set forth the reasons for doing so; and
    (b) Include a notice stating that any party in interest who is 
adversely affected by the order upon remand, as well as the Project 
Director have the right to appeal the order to the Board within 30 days 
of the date of issuance of the order.


Sec.  4.792  What happens to the record after the presiding officer 
issues an order upon remand?

    After the presiding officer issues an order upon remand, they must 
submit the record made upon remand to the Project Director.

Subpart I--Specific Rules Applicable to Proceedings Under

PART 17--NONDISCRIMINATION OF FEDERALLY ASSISTED PROGRAMS

0
31. Revise the heading of subpart I to read as set forth above.


Sec.  4.801  [Amended]

0
32. Amend Sec.  4.801 by removing the word ``him'' and adding in its 
place the word ``them'', and by removing the word ``his'' and adding in 
its place the word ``their''.


Sec.  4.804  [Amended]

0
33. Amend Sec.  4.804, the first sentence, by removing the word ``him'' 
and adding in its place the word ``them''.


Sec.  4.805  [Amended]

0
34. Amend Sec.  4.805, the first sentence, by removing the word ``him'' 
and adding in its place the word ``them''.


Sec.  4.807  [Amended]

0
35. Amend Sec.  4.807 by:
0
a. In the introductory text, at the beginning of the second sentence, 
by removing the word ``His'' and adding in its place the words ``The 
administrative law judge's'';
0
b. In paragraph (d), by removing the word ``him'' and adding in its 
place the word ``them'';
0
c. In paragraph (f), by removing the word ``his'' and adding in its 
place the words ``the administrative law judge's''; and
0
d. In paragraph (h), by removing the word ``him'' and adding in its 
place the words ``the administrative law judge''.


Sec.  4.809  [Amended]

0
36. Amend Sec.  4.809 by:
0
a. In paragraph (c)(2), removing the word ``his'' and adding in its 
place the word ``petitioner's'';
0
b. In paragraph (d):
0
i. In the second sentence, removing the word ``He'' and adding in its 
place the words ``The administrative law judge'';
0
ii. In the third sentence, removing the word ``he'' and adding in its 
place the words ``the administrative law judge'';
0
iii. In the fourth sentence, removing the word ``his'' and adding in 
its place the word ``their''; and
0
iv. In the fifth sentence, removing the word ``he'' and adding in its 
place the words ``the administrative law judge''.

0
37. Amend Sec.  4.811 by:
0
a. In paragraph (b):
0
i. In the first sentence, removing the word ``he'' and adding in its 
place the words ``the administrative law judge''; and
0
ii. In the second sentence, removing the word ``his'' and adding in its 
place the word ``the'';
0
b. Revising the second and third sentences of paragraph (d) and the 
second sentence of paragraph (e), to read as follows:


Sec.  4.811  Determination and participation of amici.

* * * * *
    (d) * * * An amicus curiae may also file a brief or written 
statement on each occasion a decision is to be made or a prior decision 
is subject to review. The amicus curiae's brief or written statement 
must be filed and served on each party within the time limits 
applicable to the party whose position the amicus curiae supports; or 
if the amicus curiae does not support the position of any party, within 
the longest time limit applicable to any party at that particular stage 
of the proceedings.
    (e) * * * The administrative law judge has discretion to grant any 
such request if the administrative law judge believes the proposed 
additional testimony may assist materially in elucidating factual 
matters at issue between the parties without expanding the issues.


Sec.  4.813  [Amended]

0
38. In Sec.  4.813, amend paragraph (b), the first sentence, by 
removing the word ``his'' and adding in its place the word ``their''.


Sec.  4.814  [Amended]

0
39. Amend Sec.  4.814 by removing the word ``his'' and adding in its 
place the word ``their''.


Sec.  4.816  [Amended]

0
40. Amend Sec.  4.816, the second sentence, by removing the word ``he'' 
and adding in its place the words ``the applicant recipient''.

0
41. Amend Sec.  4.819 by revising the first sentence to read as 
follows:


Sec.  4.819  Amendment of notice or answer.

    The Director may amend the notice of hearing or opportunity for 
hearing once as a matter of course before an answer is filed, and each 
respondent may amend their answer once as a matter of course not later 
than 10 days before the date fixed for hearing but in no event later 
than 20 days from the date of service of the respondent's original 
answer. * * *

0
42. Revise Sec.  4.821 to read as follows:


Sec.  4.821  Motions.

    (a) Motions and petitions must state the relief sought, the basis 
for relief and the authority relied upon. If made before or after the 
hearing itself, these matters must be in writing. If made at the 
hearing, they may be stated orally; but the administrative law judge 
may require that they be reduced to writing and filed and served on all 
parties.
    (b) Within 8 days after a written motion or petition is served, any 
party may file a response to a motion or petition. An immediate oral 
response may be made to an oral motion. Oral argument on motions will 
be at the discretion of the administrative law judge.


Sec.  4.823  [Amended]

0
43. In Sec.  4.823, amend the first sentence, by removing the word 
``his'' and adding in its place the word ``their''.


Sec.  4.825  [Amended]

0
44. In Sec.  4.825, amend paragraph (b) by removing the word ``he'' and 
adding in its place the words ``the party to whom the request is 
directed''.

[[Page 2427]]

Sec.  4.827  [Amended]

0
45. Amend Sec.  4.827 by:
0
a. In paragraph (b)(1), removing the word ``him'' and adding in its 
place the words ``the party'', and removing the words ``he belongs'' 
and adding in its place the words ``they belong''; and
0
b. In paragraph (d), the third sentence, removing the word ``his'' and 
adding in its place the word ``their''.


Sec.  4.828  [Amended]

0
46. In Sec.  4.828, amend paragraph (a)(3) by removing the word ``he'' 
and adding in its place the words ``the witness''.


Sec.  4.830  [Amended]

0
47. Amend Sec.  4.830, in paragraph (a), the first sentence, by 
removing the word ``his'' and adding in its place the word ``their''.


Sec.  4.831  [Amended]

0
48. Amend Sec.  4.831 by:
0
a. In paragraph (b)(2), removing the word ``him'' and adding in its 
place the words ``the administrative law judge''; and
0
b. In paragraph (c)(1), removing the word ``his'' and adding in its 
place the word ``their''.


Sec.  4.832  [Amended]

0
49. In Sec.  4.832, amend paragraph (a) by removing the word ``him'' 
and adding in its place the words ``the disobedient party''.


Sec.  4.833  [Amended]

0
50. Amend Sec.  4.833, in paragraph (b)(6), by removing the word 
``his'' and adding in its place the words ``the administrative law 
judge's''.


Sec.  4.834  [Amended]

0
51. Amend Sec.  4.834, in paragraph (c), by removing the word ``his'' 
in both places it occurs and adding in its place the word ``their''.

0
52. Revise and republish Sec.  4.839 to read as follows:


Sec.  4.839  Exceptions.

    Exceptions to rulings of the administrative law judge are 
unnecessary. It is sufficient that a party, at the time the ruling of 
the administrative law judge is sought, makes known the action which 
the party desires the administrative law judge to take, or the party's 
objection to an action taken, and the party's ground therefor.


Sec.  4.843  [Amended]

0
53. Amend Sec.  4.843, the first sentence, by removing the word ``his'' 
and adding in its place the word ``their'' and by removing the word 
``him'' and adding in its place the words ``the administrative law 
judge''.

0
54. Revise and republish Sec.  4.844 to read as follows:


Sec.  4.844  Notification of right to file exceptions.

    The provisions of Sec.  17.9 of this title govern the making of 
decisions by administrative law judges, the Director, Office of 
Hearings and Appeals, and the Secretary. An administrative law judge 
will, in any initial decision, specifically inform the applicant or 
recipient of the right under Sec.  17.9 of this title to file 
exceptions with the Director, Office of Hearings and Appeals. In 
instances in which the record is certified to the Director, Office of 
Hearings and Appeals, or the Director reviews the decision of an 
administrative law judge, the Director will give the applicant or 
recipient a notice of certification or notice of review that 
specifically informs the applicant or recipient that, within a stated 
period, which will not be less than 30 days after service of the 
notice, the applicant or recipient may file briefs or other written 
statements of contentions.


Sec.  4.845  [Amended]

0
55. Amend Sec.  4.845, the first sentence, by removing the words ``upon 
him''.

Subpart J--Specific Rules Applicable to Appeals Concerning Federal 
Oil and Gas Royalties

0
56. Revise the heading of subpart J to read as set forth above.

0
57. Add Sec.  4.900 to read as follows:


Sec.  4.900  Scope of rules.

    The regulations in this subpart set forth specific rules applicable 
to appeals before the Interior Board of Land Appeals concerning Federal 
oil and gas royalties. See subpart A for the authority, jurisdiction, 
and membership of the Interior Board of Land Appeals. For general rules 
applicable to appeals before the Board of Land Appeals as well as the 
other components of OHA, see subpart B. For rules applicable only to 
appeals before the Board of Land Appeals, see subpart E. Rules in 
subpart E are applicable to these appeals unless the rules in subpart E 
of this part are inconsistent with the rules in this subpart J. For 
purposes of appeals concerning Federal oil and gas royalties, wherever 
there is any conflict between the rules in subpart E and the rules in 
this subpart, the rules in this subpart will govern.

0
58. Amend Sec.  4.903 by adding, in alphabetical order, a definition 
for Administrative proceeding to read as follows:


Sec.  4.903  What definitions apply to this subpart?

* * * * *
    Administrative proceeding means any process in which an order is 
issued by ONRR or a delegated State and is subject to appeal or has 
been appealed either to the ONRR Director or IBLA under 30 CFR 
1290.105.
* * * * *

0
59. Revise Sec.  4.904 to read as follows:


Sec.  4.904  When does my administrative proceeding commence and end?

    For purposes of the period in which the Department must issue a 
final decision in your administrative proceeding under Sec.  4.906:
    (a) Your administrative proceeding commences on the date you 
receive ONRR's order.
    (b) Your administrative proceeding ends on the same day of the 33rd 
calendar month after your administrative proceeding commenced under 
paragraph (a) of this section, plus the number of days of any 
applicable time extensions under Sec.  4.909 or 30 CFR 1290.109. If the 
33rd calendar month after your administrative proceeding commenced does 
not have the same day of the month as the day of the month your 
administrative proceeding commenced, then the initial 33-month period 
ends on the last day of the 33rd calendar month.

0
60. Revise Sec.  4.905 to read as follows:


Sec.  4.905  What if a due date falls on a day the Department or 
relevant office is not open for business?

    If a due date under this subpart falls on a day the relevant office 
is not open for business (such as a weekend, holiday, or shutdown), the 
due date is the next day the relevant office is open for business.

0
61. Revise Sec.  4.906 to read as follows:


Sec.  4.906  What if the Department does not issue a decision by the 
date my administrative proceeding ends?

    (a) If the IBLA or an Assistant Secretary (or the Secretary or the 
Director of OHA) does not issue a final decision by the date an 
administrative proceeding ends under Sec.  4.904(b), then the Secretary 
will be deemed to have decided the appeal in accordance with 30 U.S.C. 
1724(h)(2).
    (b)(1) If your administrative proceeding ends before the ONRR 
Director issues a decision in your appeal, then the Secretary will be 
deemed to have decided the appeal in accordance with 30 U.S.C. 
1724(h)(2).
    (2) If the ONRR Director issues an order or a decision in your 
appeal, and if you do not appeal the Director's order or decision to 
IBLA within the time

[[Page 2428]]

required under 30 CFR part 1290, then the ONRR Director's order or 
decision is the final decision of the Department and 30 U.S.C. 
1724(h)(2) has no application.
    (c) If the IBLA issues a decision before the date your 
administrative proceeding ends, that decision is the final decision of 
the Department and 30 U.S.C. 1724(h)(2) has no application. A petition 
for reconsideration does not extend or renew the 33-month period.
    (d) If your administrative proceeding ends while your appeal is 
pending before the IBLA, the IBLA loses jurisdiction as of the date 
determined under Sec.  4.904(b), and the appeal will be dismissed. The 
dismissal will be reflected in an IBLA order, and your receipt of this 
order serves as the notice that begins the period in which a judicial 
proceeding challenging the final agency action must be brought under 30 
U.S.C. 1724(j).
    (e) If any part of the principal amount of any monetary obligation 
is not specifically stated in an order or ONRR Director's decision and 
must be computed to comply with the order or ONRR Director's decision, 
then the principal amount referred to in paragraph (a) of this section 
means the principal amount ONRR estimates you would be required to pay 
as a result of the computation required under the order, plus any 
amount due stated in the order.

0
62. Revise Sec.  4.909 to read as follows:


Sec.  4.909  How do I request an extension of time?

    (a) If you are a party to an appeal subject to this subpart before 
the IBLA, and you need additional time after an appeal commences for 
any purpose, you may obtain an extension of time under this section.
    (b) You must file a written motion for an extension of time as 
specified in Sec.  4.407 of this part before the required filing date.
    (c) If you are an appellant, in addition to meeting the 
requirements of paragraph (b) of this section, you must agree in 
writing in your motion to extend the period in which the Department 
must issue a final decision in your appeal under Sec.  4.906 by the 
amount of time for which you are requesting an extension.
    (d) If you are any other party, the IBLA may require you to submit 
a written agreement signed by the appellant to extend the period in 
which the Department must issue a final decision in the appeal under 
Sec.  4.906 by the amount of time for which you are requesting an 
extension.
    (e) The IBLA has the discretion to decline any motion for an 
extension of time.
    (f) You must serve your motion on all parties to the appeal as 
specified at Sec.  4.407.

Subpart K--Specific Rules Applicable to Hearings Concerning the 
Acknowledgment of American Indian Tribes

0
63. Revise the heading of subpart K to read as set forth above.
0
64. Revise Sec.  4.1012 to read as follows:


Sec.  4.1012  Where and how must documents be filed?

    (a) Generally. Any documents relating to a case under this subpart 
must be delivered for filing to DCHD under the terms specified in the 
OHA Standing Orders on Electronic Transmission and the OHA Standing 
Orders on Contact Information found on the Department of the Interior 
OHA website, at https://www.doi.gov/oha.
    (b) Methods of filing--(1) Electronic. A document may be filed 
electronically under the terms specified in the OHA Standing Orders on 
Electronic Transmission. A person or entity represented by an attorney 
must file electronically, unless otherwise specified in the OHA 
Standing Orders on Electronic Transmission or when the ALJ has allowed 
non-electronic filing for good cause.
    (2) Non-electronic. A document not filed electronically must be 
delivered for filing to DCHD at the address specified in the OHA 
Standing Orders on Contact Information.
    (c) Timeliness--(1) Electronic. A document filed electronically is 
deemed timely if filed by 11:59 p.m. Mountain Time on the date the 
document is due under the terms specified in the OHA Standing Orders on 
Electronic Transmission.
    (2) Non-electronic. A document not filed electronically is deemed 
timely if, on or before the last day for filing, it is sent by express 
mail or dispatched to a third-party commercial courier for delivery on 
the next business day. The date of mailing or dispatch must be 
documented by a postmark date, acceptance scan, receipt, or similar 
written acknowledgement from the carrier delivering the document for 
filing. A document not received within 2 business days of the filing 
deadline is presumed untimely, but the presumption may be overcome by 
the documentation establishing the date of mailing or dispatch.
    (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 an opportunity 
to correct.

0
65. Revise Sec.  4.1013 to read as follows:


Sec.  4.1013  How must documents be served?

    (a) Generally. Any document filed in a case under this subpart must 
be served concurrently on each party to the proceeding under the terms 
specified in this section and in accordance with the OHA Standing 
Orders on Electronic Transmission and the OHA Standing Orders on 
Contact Information.
    (b) Service on represented parties. Service on a party known to be 
represented by an attorney, or another designated representative, must 
be made on the representative. Parties must serve the appropriate 
office of the Office of the Solicitor as provided in the OHA Standing 
Orders on Contact Information until a particular attorney of the Office 
of the Solicitor files and serves a notice of appearance in the 
proceeding, after which that attorney must be served.
    (c) Service address. Every person or entity who files a document in 
connection with the proceeding must provide the mailing or electronic 
address that the person or entity intends to use for service in the 
proceeding. A person or entity seeking to receive service 
electronically must consent to electronic service as required by 
paragraph (e)(1) of this section. If a person or entity has not 
consented to electronic service, then anyone serving a document on that 
person or entity must use the mailing address in the person's or 
entity's most recent filing or, if there has not been any filing, the 
mailing address of the person or entity as provided by OFA.
    (d) Address changes. A party whose mailing or electronic address 
changes during the proceeding must promptly file and serve a written 
notice of the change and must specify the applicable docket number or 
docket numbers when available.
    (e) Manner of service. A document must be served electronically or 
non-electronically as follows:
    (1) Electronic. Service may be made electronically on the Office of 
the Solicitor as specified in the OHA Standing Orders on Electronic 
Transmission. Service may be made electronically on all other persons 
or entities who have consented to electronic service under the terms 
specified in the OHA Standing Orders on Electronic Transmission.
    (2) Non-electronic. Service may be made non-electronically by 
personal delivery, express mail, or third-party

[[Page 2429]]

commercial courier for delivery on the next business day.
    (f) Certificate of service. At the conclusion of any document that 
a party must serve under this subpart, the party or the party's 
representative must sign a written statement that:
    (1) Certifies that service has been or will be made in accordance 
with the applicable rules; and
    (2) Specifies the date and manner of service.
    (g) Completion of service--(1) Electronic. Service by electronic 
means is complete on sending or as otherwise provided by the OHA 
Standing Orders on Electronic Transmission, unless the party making 
service is notified that the document was not received by the party 
served.
    (2) Non-electronic. Service by express mail or by commercial 
courier for delivery on the next business day is complete on mailing or 
dispatch to the carrier. The date of mailing or dispatch must be 
documented by a postmark date, acceptance scan, receipt, or other 
similar written acknowledgement from the carrier delivering the 
document.
    (h) Issuance. An ALJ may issue notices, orders, recommended 
decisions, or other documents electronically or non-electronically as 
follows:
    (1) Electronic. A notice, order, recommended decision, or other 
document will be issued electronically to the electronic service 
address provided by the person or entity, and service is complete on 
sending or as otherwise specified by the OHA Standing Orders on 
Electronic Transmission.
    (2) Non-electronic. If an electronic service address has not been 
provided, then
    (i) A notice, order, or other document will be issued by first-
class United States mail or third-party commercial courier to the 
mailing address provided by the person or entity or, if not provided, 
to the last known address, and service is complete on mailing or 
dispatch; and
    (ii) A recommended decision will be sent by certified United States 
mail to the mailing address provided by the person or entity or, if not 
provided, to the last known mailing address, and service is complete 
when received. If a recommended decision sent by certified mail is not 
claimed by the recipient or is returned as undeliverable, then service 
will be made by first-class United States mail, and service is deemed 
complete when mailed.


Sec.  4.1017  [Amended]

0
66. In Sec.  4.1017, amend paragraph (a) by removing the citation 
``Sec.  4.27(b)'' and adding in its place the citation ``Sec.  4.27''.

Subpart L--Specific Rules Applicable to Hearings and Appeals 
Concerning Surface Coal Mining

0
67. Revise the heading of subpart L to read as set forth above.

0
68. Revise Sec.  4.1100 to read as follows:


Sec.  4.1100  Scope and Definitions.

    (a) Scope. This subpart contains the rules applicable to hearings 
and appeals concerning surface coal mining. Subpart A contains the 
authority, jurisdiction, and membership of the Departmental Cases 
Hearings Division (DCHD) and the Interior Board of Land Appeals (Board) 
within the Office of Hearings and Appeals (OHA). Subpart B contains the 
general rules applicable to proceedings before DCHD and the Board as 
well as other components of OHA. For additional rules specific to 
proceedings before DCHD and the Board, see subparts C and E 
respectively.
    (b) Definitions. In addition to the definitions in subpart A, the 
following definitions apply to this subpart:
    (1) Act means the Surface Mining Control and Reclamation Act of 
1977, 91 Stat. 445 et seq., 30 U.S.C. 1201 et seq.
    (2) Administrative law judge or ALJ means an administrative law 
judge appointed to the Departmental Cases Hearings Division (DCHD) in 
the Office of Hearings and Appeals.
    (3) Board means the Interior Board of Land Appeals in the Office of 
Hearings and Appeals.

0
69. Amend Sec.  4.1101 by revising paragraph (a) introductory text to 
read as follows:


Sec.  4.1101  Jurisdiction of the Board.

    (a) The jurisdiction of the Board includes the authority to 
exercise the final decision-making power of the Secretary under the act 
pertaining to--
* * * * *

0
70. Revise Sec.  4.1107 to read as follows:


Sec.  4.1107  Filing of documents.

    (a) Proceedings before an administrative law judge (ALJ). (1) Any 
initial pleadings or other documents in a proceeding to be conducted or 
being conducted by an ALJ under these rules must be filed with DCHD as 
specified in Sec.  4.102 of this part as well as the OHA Standing 
Orders on Electronic Transmission and the OHA Standing Orders on 
Contact Information available on the Department of the Interior OHA 
website at https://www.doi.gov/oha.
    (2) The effective filing date for documents filed with DCHD will be 
determined as specified in Sec.  4.102(a). The person or entity filing 
the document has the burden of establishing the filing date.
    (b) Proceedings before the Board. (1) Any notice of appeal, 
petition for review, or other documents in a proceeding to be conducted 
or being conducted by the Board must be filed as specified in Sec.  
4.407 of this part, the OHA Standing Orders on Electronic Transmission, 
and the OHA Standing Orders on Contact Information.
    (2) The effective filing date for documents filed with the Board 
will be determined as specified in Sec.  4.407(a) of this part. The 
person or entity filing the document has the burden of establishing the 
filing date.

0
71. Revise Sec.  4.1108 to read as follows:


Sec.  4.1108  Form of documents.

    (a) Any document filed with OHA in any proceeding brought under the 
act must be captioned with--
    (1) The names of the parties;
    (2) The name of the mine to which the document relates; and
    (3) If review is being sought under section 525 of the Act, 
identification by number of any notice or order sought to be reviewed.
    (b) After a docket number has been assigned to the proceeding by 
OHA, the caption must contain the assigned docket number.
    (c) The caption may include other information appropriate for 
identification of the proceeding, including the permit number or OSMRE 
identification number.
    (d) Each document must contain a title that identifies the contents 
of the document following the caption.
    (e) The original of any document filed with OHA must be signed, or 
digitally signed, by the person or entity submitting the document or by 
the representative of the person or entity.
    (f) The mailing address, email address, telephone number, and other 
contact information for the person or entity filing the document or the 
attorney representing the person or entity must appear beneath the 
signature.
    (g) Documents filed under this subpart with DCHD must also conform 
to the requirements of Sec.  4.103 of this part, and documents filed 
under this subpart with the Board must also conform to Sec.  4.408 of 
this part.

0
72. Revise Sec.  4.1109 to read as follows:


Sec.  4.1109  Service.

    (a) Any party initiating a proceeding under the act must 
concurrently serve copies of the initiating documents on the 
appropriate office of the Office of

[[Page 2430]]

the Solicitor representing OSMRE in the State or on the Indian lands in 
which the mining operation at issue is located and on any other 
statutory parties as specified under Sec.  4.1105.
    (b) The jurisdiction and contact information for the appropriate 
office of the Office of the Solicitor to be served under paragraph (a) 
of this section are set forth in the OHA Standing Orders on Contact 
Information.
    (c) All other documents filed with DCHD must be served as specified 
in Sec.  4.102.
    (d) All other documents filed with the Board must be served as 
specified in Sec.  4.407.

0
73. Revise Sec.  4.1117 to read as follows:


Sec.  4.1117  Reconsideration.

    A party may file a petition for reconsideration from an order or 
decision of an ALJ or the Board as follows:
    (a) A petition for reconsideration from an order or decision of an 
ALJ may only be filed in accordance with the provisions of Sec.  4.130 
of this part, except that a petition for reconsideration may not be 
filed in an expedited review proceeding under Sec.  4.1180 or in a 
suspension or revocation proceeding under Sec.  4.1190.
    (b) A petition for reconsideration from an order or decision of the 
Board may only be filed in accordance with the provisions of Sec.  
4.415 of this part.

0
74. Revise the undesignated center heading before Sec.  4.1120 to read 
``Hearings and Discovery''.

0
75. Revise Sec.  4.1120 to read as follows:


Sec.  4.1120  Proceedings before administrative law judge (ALJ).

    (a) General rules. The general procedural rules for practice before 
DCHD at Sec. Sec.  4.100 through 4.131 of this part govern practice and 
procedure in addition to the specific rules set forth in subpart L.
    (b) Presiding officer. An ALJ will preside over any hearings 
required by the act to be conducted pursuant to 5 U.S.C. 554. The ALJ 
has the authority to conduct the proceeding in an orderly and judicial 
manner and may take any action authorized by the act, subpart C of this 
part, subpart L of this part, or 5 U.S.C. 554-57.

0
76. Revise Sec.  4.1121 to read as follows:


Sec.  4.1121  Initial orders and decisions.

    (a) An initial order or decision disposing of a case must contain:
    (1) Findings of fact and conclusions of law as well as the reasons 
for those findings and conclusions as they relate to all material 
issues of fact, law, and discretion presented on the record; and
    (2) An order granting or denying the relief.
    (b) An initial order or decision will become final if that order or 
decision is not timely appealed to the Board under Sec.  4.1270 or 
Sec.  4.1271, unless the ALJ accepts a petition for reconsideration for 
further analysis under Sec.  4.1117 and Sec.  4.130 of this part.

0
77. Revise Sec.  4.1122 to read as follows:


Sec.  4.1122  Termination of jurisdiction.

    Except as otherwise provided in these regulations, the jurisdiction 
of an ALJ will terminate upon:
    (a) The filing of a notice of appeal from an initial decision or 
other order dispositive of the proceeding;
    (b) The issuance of an order by the Board granting a petition for 
review; or
    (c) The expiration of the time period within which a petition for 
review or an appeal to the Board may be filed.


Sec. Sec.  4.1123 through 4.1141  [Removed]

0
78. Remove the undesignated center heading ``Discovery'' and Sec. Sec.  
4.1123 through 4.1141.


Sec.  4.1150  [Amended]

0
79. Amend Sec.  4.1150 by removing the words ``the Hearings Division, 
OHA'' and adding in their place the word ``DCHD''.


Sec.  4.1153  [Amended]

0
80. Amend Sec.  4.1153 by removing the words ``the Hearings Division, 
OHA'' and adding in their place the word ``DCHD''.


Sec.  4.1161  [Amended]

0
81. Amend Sec.  4.1161 by removing the words ``the Hearings Division, 
OHA'' and adding in their place ``DCHD''.


Sec.  4.1182  [Amended]

0
82. Amend Sec.  4.1182 by removing the words ``the Hearings Division'' 
and adding in their place ``DCHD''.


Sec.  4.1190  [Amended]

0
83. In Sec.  4.1190, amend paragraph (a) by removing the words ``the 
Hearings Division, OHA'' and adding in their place the word ``DCHD''.


Sec.  4.1191  [Amended]

0
84. Amend Sec.  4.1191 by removing the words ``the Hearings Division, 
OHA'' and adding in their place ``DCHD''.


Sec.  4.1200  [Amended]

0
85. In Sec.  4.1200, amend paragraphs (a) and (b) by removing the words 
``the Hearings Division, OHA'' in the three places they appear and 
adding in their place ``DCHD''.


Sec.  4.1201  [Amended]

0
86. Amend Sec.  4.1201 by:
0
a. In paragraphs (a) and (b), removing the words ``the Hearings 
Division, OHA'' in both places they appear and adding ``DCHD''; and
0
b. In paragraph (c), removing the words ``the main office of OHA'' and 
adding in their place the word ``DCHD''.


Sec.  4.1202  [Amended]

0
87. In Sec.  4.1202, amend paragraph (a) by removing the words ``the 
Hearings Division, OHA'' and adding in their place the word ``DCHD''.


Sec.  4.1203  [Amended]

0
88. In Sec.  4.1203, amend paragraph (b) by removing the words ``the 
Hearings Division, OHA'' and adding in their place the word ``DCHD''.


Sec.  4.1262  [Amended]

0
89. Amend Sec.  4.1262 by removing the words ``the Hearings Division, 
OHA'' and adding in their place the word ``DCHD''.

0
90. Revise Sec.  4.1272 to read as follows:


Sec.  4.1272  Interlocutory appeals.

    (a) A party seeking permission to file an interlocutory appeal must 
comply with the requirements of Sec. Sec.  4.122 and 4.414 of this 
part.
    (b) Upon affirmance, reversal, or modification of the 
administrative law judge's interlocutory ruling or order, the 
jurisdiction of the Board will terminate, and the case will be remanded 
promptly to the administrative law judge for further proceedings.

0
91. Amend Sec.  4.1286 by:
0
a. In paragraph (c)(2)(iii), removing the words ``in accordance with 
Sec.  4.411''; and
0
b. Revising the first sentence of paragraph (e) to read as follows:


Sec.  4.1286  Motion for a hearing on an appeal involving issues of 
fact.

* * * * *
    (e) The hearing will be conducted under Sec. Sec.  4.1100, 4.1102 
through 4.1115, and 4.1120 through 4.1122.* * *

0
92. Revise Sec.  4.1287 to read as follows:


Sec.  4.1287  Action by administrative law judge.

    The administrative law judge will adjudicate the referral in 
accordance with Sec. Sec.  4.150 through 4.151.


Sec.  4.1301  [Amended]

0
93. In Sec.  4.1301, amend paragraph (a) by removing the words ``the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior'' and adding in their place the word ``DCHD.''


Sec.  4.1303  [Amended]

0
94. In Sec.  4.1303, amend paragraph (b) by removing the words ``Sec.  
4.1109 (a) and

[[Page 2431]]

(b) of this part'' and adding in their place the words ``Sec.  4.1109 
of this part''.


Sec.  4.1304  [Amended]

0
95. Amend Sec.  4.1304 by removing the words ``the Hearings Division'' 
and adding in their place the word ``DCHD.''


Sec.  4.1352  [Amended]

0
96. In Sec.  4.1352, amend paragraph (b) by removing the words ``the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior,'' and adding in their place the word ``DCHD.''


Sec.  4.1362  [Amended]

0
97. In Sec.  4.1362, amend paragraph (a) by removing the words ``the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior,'' and adding in their place the word ``DCHD''.


Sec.  4.1367  [Amended]

0
98. In Sec.  4.1367, amend paragraph (b) by removing the words ``the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior'' and adding in their place the word ``DCHD''.


Sec.  4.1371  [Amended]

0
99. Amend Sec.  4.1371 by:
0
a. In paragraph (a), removing the words ``the Hearings Division, Office 
of Hearings and Appeals, U.S. Department of the Interior'' and adding 
in their place the word ``DCHD''; and
0
b. In paragraph (c), removing the words ``the Hearings Division'' and 
adding in their place the word ``DCHD''.


Sec.  4.1376  [Amended]

0
100. In Sec.  4.1376, amend paragraph (b) by removing the words ``the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior'' and adding in their place the word ``DCHD''.


Sec.  4.1381  [Amended]

0
101. Amend Sec.  4.1381 by:
0
a. In paragraph (a), removing the words ``the Hearings Division, Office 
of Hearings and Appeals, U.S. Department of the Interior'' and adding 
in their place the word ``DCHD''; and
0
b. In paragraph (c), removing the words ``the Hearings Division'' and 
adding in their place the word ``DCHD''.


Sec.  4.1386  [Amended]

0
102. In Sec.  4.1386, amend paragraph (b) by removing the words ``the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior'' and adding in their place the word ''DCHD''.

0
103. Revise Sec.  4.1393 to read as follows:


Sec.  4.1393  Status of decision pending administrative review.

    Determinations of the Office of Surface Mining under 30 U.S.C. 
1272(e) will not be effective during the time in which a person or 
entity adversely affected may file a notice of appeal. When the public 
interest requires or to protect trust resources, however, the Board may 
provide that a decision, or any part of a decision, will be effective 
immediately.
    This action is taken pursuant to delegated authority.

Joan M. Mooney,
Principal Deputy Assistant Secretary, Exercising the Delegated 
Authority of the Assistant Secretary--Policy, Management and Budget.
[FR Doc. 2024-30358 Filed 1-6-25; 8:45 am]
BILLING CODE 4334-39-P`