2332 Federal Register / Vol. 90, No. 6 / Friday, January 10, 2025 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Office of the Secretary 

43 CFR Part 4 

[Docket No. DOI–2022–0010; 256D0102DM; 

DS6CS00000; DLSN00000.000000; 

DX6CS25] 

RIN1094–AA57 

Practices Before the Department of the 

Interior 

AGENCY: Office of Hearings and Appeals, 

Interior. 

ACTION: Interim final rule. 

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redundant language; eliminate outdated 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 DOI-PRA@

ios.doi.gov. 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: Rachel_Lukens@

oha.doi.gov. 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-ofcontact 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 factfinding 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 SelfDetermination 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 prehearing 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 realtime 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 § 4.21 stay provisions and 

§ 4.22 filing and service provisions to 

specific subparts, as well as to a 

different section in subpart B. Regarding 

§ 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 § 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 genderneutral 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-togovernment relationship with Indian 

Tribes through a commitment to 

consultation with Indian Tribes and 

recognition of their right to selfgovernance 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 § 4.730(b) that would have replaced 

and reworded the existing language of 

43 CFR 4.351(a) pertaining to the 


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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 § 4.730(b) may be too 

restrictive and advocated for returning 

to the existing language of § 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 (§ 4.170(d)) and the rules 

governing appeals to the IBLA 

(§ 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. 


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Requirement 

Annual 

number of 

respondents 

Number of 

responses 

each 

Total annual 

responses 

Completion 

time per 

response 

(hours) 

Total annual 

burden 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 DOI-PRA@ios.doi.gov. 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 


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

§ 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. 

§ 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. 

§ 4.3 Representation Before OHA 

Pursuant to 5 U.S.C. 301, § 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. 

§ 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). 

§ 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. 

§ 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 


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(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 

§ 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. 

§ 4.21 Exhaustion and Finality 

Currently, § 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 § 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 §§ 4.471 and 4.472. 

With this change, OHA will eliminate 

any conflicts between § 4.21 and stay 

provisions specifically applicable to the 

appeals or proceedings it adjudicates. 

See, e.g., §§ 4.171 (DCHD), 4.314(a) 

(IBIA). A number of regulations 

administered by bureaus and offices that 

appear before IBLA make reference to 

§ 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 § 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 

§ 4.21(a). 

After the current § 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 


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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 § 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 decisionmaking 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. 

§ 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, 

§ 4.704, so it too will have a 

reconsideration provision that is 

substantively identical to the provision 

in existing § 4.21(d). 

§ 4.22 Retention of Documents; Record 

Address; and Extensions of Time 

We will move the filing and service 

provisions from § 4.22 to § 4.407 for 

appeals before the IBLA and to a new 

§ 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 § 4.22(c) 

will become § 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 § 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 § 4.22(e) will become 

§ 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 § 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 § 4.22(f) will become 

§ 4.22(d), entitled Extensions of time, 

without any substantive changes. 

§ 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 


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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. 

§ 4.24 Basis of Decision 

In § 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 4.29 Disqualification of Presiding 

Officers and Board Members 

We will delete current § 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 

§ 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. 

§ 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. 

§ 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 


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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. 

§ 4.32 Filing; Service; Issuance 

We will move the filing and service 

provisions that apply to the Director’s 

Office and PHD from § 4.22 to a new 

§ 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 nonelectronic 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 SelfDetermination 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 

§ 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 crossreferences. 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. 

§ 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 

§ 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 §§ 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 § 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. 


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Service by publication will be complete 

as set forth in § 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. 

§ 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 textsearchable 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 

§ 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 nonexhaustive 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 § 4.121 for 

the failure to appear at a prehearing 

conference, participate in good faith, or 

comply with the terms of a postconference order. 

§ 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 § 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 

§§ 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 § 4.102 and the 

document formatting requirements of 

§ 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. 

§ 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 § 4.409(b). 

§ 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. 

§ 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). 

§ 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. 

§ 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. 

§ 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 § 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 §§ 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 §§ 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 crossmotions 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 § 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 

§ 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 § 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 (§ 4.113), 

requests for production (§ 4.114), 

requests for admission (§ 4.115), and 

depositions (§ 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. 

§ 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). 

§ 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). 

§ 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). 

§ 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 § 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). 

§ 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. 

§ 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, 


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authorizing additional discovery, or 

directing a party to make an additional 

search of its records. 

§ 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 

§ 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. 

§ 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, welldefined 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 


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on the circumstances and the nature of 

the violation. 

§ 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 twostep 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 § 4.28 (for the IBIA or the Ad Hoc 

Board) or § 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. 

§ 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 

§ 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. 

§ 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. 

§ 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 § 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. 

§ 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 crossexamination, 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. 

§ 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 


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reporter and submitted to the ALJ for 

filing. Any corrections to the transcript 

must be made in accordance with the 

procedures in paragraph (c). 

§ 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 

§ 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. 

§ 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 FactFinding 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 

§ 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 §§ 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 §§ 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 


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and is consistent with the IBLA’s rule at 

§ 4.409(g)(4). 

§ 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 

§ 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 §§ 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. 

§ 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 §§ 4.160 through 4.169 

of this subpart. 

§ 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. 

§ 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. 

§ 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 § 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.’’ 

§ 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. 

§ 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. 

§ 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 crossreferences, 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. 

§ 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 

§ 4.160–5 but will include specific 


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references to the Government contest 

complaint. 

§ 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 §§ 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) 

§ 4.168 will describe proceedings before 

the ALJ; and (2) § 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. 

§ 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 §§ 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. 

§ 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 § 4.102 (filing and 

service) and § 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 § 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 § 4.171. 

§ 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 § 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 


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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 §§ 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). 

§ 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 §§ 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. 

§ 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 §§ 4.100 through 4.131 in 

addition to the rules applicable to 

grazing proceedings at §§ 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 

§ 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). 

§ 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 


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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. 

§ 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 preaward disputes under the Indian SelfDetermination 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 

§ 4.200 How To Use This Subpart 

We will revise the table in § 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 §§ 4.200 through 4.201 for clarity 

and in (a)(5) replace ‘‘§§ 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 §§ 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. 

§ 4.201 Definitions 

We will include in § 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 §§ 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. 

§§ 4.202–4.309 [Reserved] 

We will renumber this subheading, 

from ‘‘§§ 4.202–4.308’’ to ‘‘§§ 4.202– 

4.309,’’ because it currently omits 

reference to reserved § 4.309. 

General Rules for Practice Before the 

Interior Board of Indian Appeals 

§ 4.310 Documents; Filing, Service, 

Computing Time, and Extensions 

We will revise and add new 

provisions to our existing regulation at 

§ 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 


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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 § 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). 

§ 4.311 Briefs on Appeal 

We will not change § 4.311. 

§ 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 § 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 (§ 4.1) and this paragraph 

(§ 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 


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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. 

§ 4.313 Amicus Curiae; Intervention; 

Joinder Motions 

We propose no changes to § 4.313. 

§ 4.314 Effect of Decision Pending 

Appeal and Exhaustion of 

Administrative Remedies 

We are adding a new paragraph (a) 

consistent with the revisions to § 4.21. 

Existing § 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 § 4.21 will 

make it consistent with § 4.314, we will 

add a new paragraph (a) to specify that, 

except as otherwise provided by 

applicable statute or regulation, §§ 4.21 

and 4.314 govern the effect of a decision 

pending appeal and exhaustion of 

administrative remedies. Because § 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. 

§ 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 

§ 4.312(b) is not permitted. 

§ 4.316 Remands From Courts 

We propose no changes to § 4.316. 

§ 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, § 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 § 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 § 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). 

§ 4.318 Scope of Review 

We are revising and updating § 4.318 

to make it consistent with the list in 

§ 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 § 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 

§ 4.320(c), which is not limited to 

‘‘tribal’’ purchase of interests, and 

compared to existing § 4.320(d), which 

includes ‘‘modification of the inventory 

of an estate.’’ Therefore, we are revising 

§ 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 

§ 4.320 Who may appeal a probate 

judge’s order? 

In § 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 


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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 § 4.324(f)(3). 

§ 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 § 4.310(b). We will omit the 

term ‘‘personal delivery’’ in favor of 

‘‘commercial courier’’ and ‘‘hand 

delivery.’’ 

§ 4.322 What must an appeal contain? 

We propose no changes to § 4.322. 

§ 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 § 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 § 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 § 4.321(b) and § 4.323(b). 

§ 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 § 4.310(f), which 

was added in a Direct Final Rule and 

will be deleted, with reference to 

revised § 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 ‘‘§§ 30.126 or 30.127’’ with 

‘‘§ 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. 

§ 4.325 How will the appeal be 

docketed? 

Section 4.325 will be revised to 

replace ‘‘judge’’ with ‘‘probate judge’’ 

for clarity. 

§ 4.326 What happens to the record 

after disposition? 

We propose no changes to § 4.326. 

Specific Rules for Appeals From 

Administrative Actions Not Relating to 

Probate Proceedings 

§ 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. 

§ 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). 

§ 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 § 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 


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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). 

§ 4.333 Service of Notice of Appeal 

We are revising § 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 

§ 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. 

§ 4.334 Extensions of Time 

We propose no changes to § 4.334. 

§ 4.335 Preparation and Transmittal of 

Record by Official of the Bureau of 

Indian Affairs 

We propose no changes to § 4.335. 

§ 4.336 Docketing and Objections to 

the Administrative Record 

We will separate § 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 § 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 § 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). 

§ 4.337 Action by the Board 

We are not making changes to § 4.337. 

§ 4.338 Submission by Administrative 

Law Judge of Proposed Findings, 

Conclusions and Recommended 

Decision 

We are not making changes to § 4.338. 

§ 4.339 Exceptions or Comments 

Regarding Recommended Decision by 

Administrative Law Judge 

We are not making changes to § 4.339. 

§ 4.340 Disposition of the Record 

We are not making changes to § 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 §§ 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 § 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. 

§ 4.400 Scope of Rules 

We will add this section to make clear 

that the rules in subpart E, proposed 

§§ 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. 

§ 4.401 Definitions 

We will revise the definitions in 

§ 4.400 and move them to § 4.401. We 

will include in § 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 § 4.401 the definitions 

of ‘‘adversely affected’’ and ‘‘party to the 

case,’’ which are currently defined in 

§ 4.410(b) (‘‘party to a case’’) and (d) 

(‘‘adversely affected). Current § 4.410 is 

the regulation governing ‘‘who may 

appeal.’’ These terms will be used in the 

revised section by the same title, 

proposed § 4.402, ‘‘who may appeal 

(standing).’’ We will revise the 

definition of ‘‘adversely affected’’ for 

clarity, which we explain in the 

discussion of § 4.402(a). We also will 

add a definition of ‘‘appealable 

decision,’’ which is another term that 

will be used in proposed § 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 § 4.405 apply only to 

appellants, and only an appellant will 

be permitted to file a statement of 

reasons or reply brief under § 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 § 4.400 as either duplicative of 

the definitions in subpart A or 

unnecessary. 

§ 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 


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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, § 4.401. The 

definition of ‘‘party to the case’’ will 

retain the definition found in current 

§ 4.410(b). The definition of ‘‘adversely 

affected’’ will retain the language found 

in current § 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 § 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 § 4.410(a)(1)–(3). The list 

in proposed paragraph (b) will 

encompass the same decisions listed in 

current § 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 § 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.’’ 

§ 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 § 4.407. 

In paragraph (c)(4), we will retain the 

language in current § 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 


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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. 

§ 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). 

§ 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 § 4.21 to new § 4.405. The 

first two paragraphs of § 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 §§ 4.471 and 4.472. 

With this move of § 4.21(a) and (b) to 

§ 4.405, OHA will eliminate any 

conflicts between § 4.21 and individual 

unit procedures and ensure that each 

unit has stay provisions specifically 

applicable to the appeals it hears. See, 

e.g., §§ 4.171 (DCHD), 4.314(a) (IBIA). 

The current version of § 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 § 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 § 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. 

§ 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. 

§ 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. § 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. §§ 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. 

§ 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. 

§ 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 § 4.21(a), § 4.405(a) will 

address when a bureau or office 

decision is in effect during an appeal. 

The differences between current 

§ 4.21(a) and new § 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 § 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 

§ 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 

§ 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 § 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 


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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 

§ 4.21(a)(3) and (c) and revised 

§ 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, § 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, 

§ 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 § 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 § 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 § 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 


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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 § 4.21(b)(1)(ii). 

Paragraph (b)(5) will retain the 

requirement of current § 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 § 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 

§ 4.21(b)(4)), especially because 

responses are now routinely 

electronically filed. This paragraph will 

also provide, similar to current 

§ 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 

§ 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 


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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 § 4.405 of this 

rule would apply. 

§ 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 § 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 § 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 

§ 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. 

§ 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; 


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2368 Federal Register / Vol. 90, No. 6 / Friday, January 10, 2025 / Rules and Regulations 

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 § 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 § 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 (§ 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 

§ 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 


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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 § 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 § 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 nonelectronic 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 

§ 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 § 4.22(b) or, 

if not provided, the party’s last known 

mailing address. 

§ 4.408 Document Formatting 

Requirements 

In § 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 § 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 

§ 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 § 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. 

§ 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 § 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 § 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 § 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. 


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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 § 4.405, this provision in 

§ 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 

§ 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 

§ 4.405(f), which allows bureaus or 

offices one automatic extension of 30 

days to file an answer. Because we are 

changing § 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 § 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 

§ 4.402 (current § 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 § 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 

§ 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 § 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 

§ 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 

§ 4.415(d)(1) to suspend the 

effectiveness of the decision under 

review and will instead grant a stay 


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under § 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 

§ 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. 

§ 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 § 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 § 4.410, we have gathered the briefing 

requirements from existing §§ 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 § 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 § 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 § 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 § 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 § 4.410(c), in a regulation about 

who may appeal to the Board. We will 

move this provision to § 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 


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entities that may file an appeal and 

therefore fits more logically in 

§ 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 

§ 4.403(a)(2), where we will expand its 

requirements to all appellants. Please 

see the discussion of § 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 § 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 § 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 § 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 

§ 4.414(a) requires the bureau or office 

to file the answer within 30 days, the 

regulation at existing § 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 surreply, 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 § 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 

(§ 4.409), we will remove the references 

to motions from § 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 § 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 § 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 § 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 § 4.412(d). We will 

move those requirements to § 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 


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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 § 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 

§ 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 § 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 § 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). 

§ 4.411 Sanctions 

§ 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 § 4.402. Section 4.411 will provide 

more general authority and eliminate 

the need for the existing summary 

dismissal provisions in § 4.402(b)–(d). 

The existing summary dismissal 

provision in § 4.402(a) will be replaced 

with § 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 

§ 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. 

§ 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, § 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 § 4.411 (sanctions), replace our 

existing summary dismissal authority in 

§ 4.402(a). Existing § 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 

§ 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 § 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 § 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 § 4.312(c) and § 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 (§ 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. 

§ 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 

§ 4.1 (and new § 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 § 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 

§ 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 


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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 § 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 § 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. 

§ 4.414 Interlocutory Appeals 

In the Department’s current 

regulations, interlocutory appeals to the 

Board of an ALJ’s ruling are governed by 

§ 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, § 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 § 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, § 4.414, which 

confirms § 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 

§ 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 

§ 4.122(d) asking the ALJ to certify the 

interlocutory order and a petition to the 


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Board for permission to file an 

interlocutory appeal under § 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. 

§ 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 §§ 4.21(d) and 

4.403. Current § 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 § 4.403 

and provide additional requirements for 

reconsideration. 

We will move the detailed 

requirements for reconsideration of 

Board decisions from § 4.403 to § 4.415 

and revising those requirements in 

several ways. We will remove the 

language in current § 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 

§ 4.21(b)(3). We will rephrase and 

reorder the provisions in the remaining 

paragraphs of § 4.403—the provisions of 

paragraphs 4.403(b), (c), (d), (e), and 

(f)—so that § 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 

§ 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 § 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 

§ 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 § 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 § 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 § 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 § 4.21(d). We 

remove the language in current 

§ 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 § 4.403(f)(1) to § 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 § 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 § 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 § 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 

§ 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 § 4.403(d)(4) 

as an example of an extraordinary 

circumstance that may warrant 

reconsideration. The Board will move 

language from current § 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 § 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-andcomment 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 § 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 § 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 

§ 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 § 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. 

§ 4.416 Appeals of Wildfire 

Management Decisions 

In § 4.416, the Board will revise 

language in current § 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 § 4.416, the crossreferences to § 4.416 in 43 CFR 

4190.1(b), 5003.1(c) will remain 

accurate. 

§ 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 


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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.’’ FarrellCooper 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. 

§ 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 § 4.703 will codify procedures for 

hearings that were not previously 

provided in this part, and new §§ 4.705 

to 4.706 will provide specific guidance 

relating to other adjudications not 

covered by other subparts in this part. 

The new § 4.704 will contain rules 

regarding reconsideration that are 

currently in § 4.21(d) of this part. 

§ 4.700 Scope 

We will define in this paragraph the 

scope of subpart G and its relationship 

to subparts A and B. 

§ 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 § 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. 

§ 4.702 Appeals Procedures 

We will add a new § 4.701 that 

provides timeframes and parameters for 

appeal procedures before the Director or 

the Ad Hoc Board. The new § 4.701 

combines the existing §§ 4.701, 4.702, 

and 4.704, and portions of the existing 

§ 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. 

§ 4.703 Hearings Procedures 

We will add a new § 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. 

§ 4.704 Reconsideration 

We will move the existing § 4.21(d) to 

this new section. The IBLA, IBIA, and 

DCHD each have reconsideration 

provisions in their rules. As such, the 

existing § 4.21(d) only applies to matters 

before the Director and is more 

appropriately located here. 

§ 4.705 Department of the Interior 

Employee Matters 

We will add a new § 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, 


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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-andanswer format, divide the rules into 

more sections under several 

subheadings, and provide more detail 

and clarity. Use of the question-andanswer 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 § 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 

§§ 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 § 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 decision ....................... notice of the preliminary determination 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 

§ 4.710 What is this subpart’s authority 

and scope? 

Existing § 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—§§ 4.710, 4.712, and 4.713— 

under a new subheading: ‘‘General 

Provisions.’’ Consistent with § 4.350, 

§ 4.710 identifies the authority and 

scope of the subpart as applying to the 

heir determination process under 

WELSA. 

§ 4.711 To what extent do other 

regulations and OHA Standing Orders 

apply? 

Existing § 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 § 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 § 4.3, which 

references provisions of part 1 on 

representation of parties, applies to all 

of OHA; and (2) add § 4.6 consolidating 

into one section many definitions and 

acronyms repeated in various portions 

of part 4. 

In subpart B, §§ 4.23(b) and 4.25 will 

authorize conducting status conferences 

and hearings by video, teleconference, 

or other suitable technology. § 4.26 will 

clarify that a presiding officer may issue 

subpoenas to the extent authorized by 

law. § 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 § 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 § 4.352(c) does, will 

provide clearer guidance for the public 

and the presiding officer. 


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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. 

§ 4.712 What definitions apply to this 

subpart? 

Existing § 4.350(c) contains 

definitions applicable to the WELSA 

determination process. We will relocate 

them to § 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 §§ 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 SelfDetermination and Education 

Assistance Act, 25 U.S.C. 5321–5332, 

because this inclusion better describes 

the current Project Director. 

§ 4.713 What law governs the 

determination of heirs? 

Existing § 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, § 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. 

§ 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 § 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 

§ 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. 

§ 4.715 How may minors or other legal 

incompetents be represented? 

Existing § 4.357, which provides that 

minors and other legal incompetents 

who are parties in interest may be 

represented by guardians, has been 

relocated to § 4.715. 

Filing and Issuance 

§ 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 nonelectronically. These changes will 

accommodate the electronic filing of 

documents and maintaining of up-todate addresses. 

§ 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 § 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 § 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 § 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. 

§ 4.722 To whom will a presiding 

officer issue a notice, order, or decision? 

Existing §§ 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. 

§ 4.723 By what means may the 

presiding officer issue a notice, order, or 

decision? 

Existing §§ 4.352(b)(1), (b)(3), and (c) 

and 4.354(c) require that certain 


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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 nonelectronically under the terms specified 

in the OHA Standing Order on WELSA 

Proceedings. Non-electronic methods 

will be U.S. mail or commercial courier. 

§ 4.724 How will issuance of a 

presiding officer’s notice, order, or 

decision be documented? 

Existing § 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, § 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 

§ 4.730 How does the Project Director 

commence the determination process? 

Existing § 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 

§ 4.351(a) to state generally how the 

process will commence. 

§ 4.731 What evidence must the 

Project Director file with the presiding 

officer? 

Existing § 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 § 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 

§ 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. 

§ 4.732 What will the presiding officer 

do after receiving the evidence filed by 

the Project Director? 

Existing § 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 § 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 § 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 

§ 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 

§ 4.352(b). 

§ 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 

§ 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. 

§ 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 

§ 4.352(b)(2) for preparation and filing 

of certificates regarding the posting of 

the notice of the preliminary decision. 

§ 4.743 What are the filing 

requirements for objecting to a 

preliminary decision and requesting a 

hearing? 

Existing § 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. 


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§ 4.744 What happens if no timely 

objection to the preliminary decision is 

filed? 

Existing § 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 § 4.743(c). 

§ 4.745 What happens if an objection 

to the preliminary decision is filed? 

Existing § 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 § 4.352(c). 

Final Decision and Lodging of Record 

§ 4.750 What must the final decision 

determining decedent’s heirs contain? 

Existing § 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 § 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. 

§ 4.751 What happens to the 

determination process record and what 

must it include? 

Section 4.751 will contain the same 

requirements as existing § 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 

§ 4.724; and (3) each notice, order, or 

decision will be included in the record, 

whereas § 4.353 only requires that 

certain notices and orders be included. 

Reconsideration of Final Decision 

§ 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 § 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 § 4.783, but not both. 

§ 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 § 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 § 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 § 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. 

§ 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. 

§ 4.763 How will the presiding officer 

decide a petition for reconsideration? 

Like existing § 4.354, § 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 § 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 § 4.354(b). Section 4.763(c) will 

reword the same procedures for clarity, 


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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 § 4.763(a) stating that 

the presiding officer may take any 

action listed in § 4.732(b) to resolve any 

issues of fact. 

§ 4.764 What will the order upon 

reconsideration contain? 

Section 4.764, like existing § 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 § 4.764, the other 

option of denying the petition in 

accordance with § 4.763(b) will be 

effectuated in the order upon 

reconsideration, whereas § 4.354(b) 

provides for denial in a separate 

unnamed order. Second, § 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 

§ 4.354(a). Third, § 4.764, unlike § 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. 

§ 4.765 How can an order upon 

reconsideration be challenged? 

Existing § 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 

§ 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 § 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 

§ 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 § 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. 

§ 4.771 When must a petition for 

reopening be filed? 

Under § 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. 

§ 4.772 What must be included in a 

petition for reopening? 

Under § 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. 

§ 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. 

§ 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 twostage 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 § 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 § 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. 

§ 4.775 How will the presiding officer 

decide a case reopened on their own 

initiative? 

Under § 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. 

§ 4.776 What will the order upon 

reopening contain? 

Under § 4.776, the presiding officer 

will have discretion in the order upon 

reopening to deny the petition for 

reopening, if any, in accordance with 

§ 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. 


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§ 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. 

§ 4.778 What are non-substantive 

errors in an order or decision and how 

may they be corrected? 

In § 4.778, we will codify the present 

practice of a presiding officer being able 

to issue orders correcting nonsubstantive 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 

§ 4.780 When will the final decision 

and orders upon reconsideration, 

reopening, or remand become final? 

Existing §§ 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, § 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, § 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. 

§ 4.781 Which presiding officer 

decisions or orders may be appealed 

and who may appeal them? 

Existing § 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 § 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 § 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.’’ 

§ 4.782 What happens if a petition for 

reconsideration and a notice of appeal 

are timely filed? 

The content of § 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. 

§ 4.783 When and how may a 

presiding officer’s decision or order be 

appealed? 

Section 4.783(a) will reword 

§ 4.356(b) and part of § 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 § 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 § 4.310(b). 

§ 4.784 What are the requirement for 

serving the notice of appeal and 

statement of reasons? 

Section 4.784, like existing § 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 § 4.784(a) will 

require service in accordance with 

§ 4.310(d), which allows for other 

methods under certain circumstances. 

Also, § 4.784, unlike § 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. 

§ 4.785 When will the determination 

process record be forwarded to the 

Board? 

Like existing § 4.356(c), § 4.785 will 

require the Project Director to ensure 

that the determination process record is 

expeditiously forwarded to the Board. 

§ 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 § 4.356(d) and (e) that 

the Board may take to resolve a timely 

appeal. 

§ 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 

§ 4.790 What happens if the Board 

remands the case to the presiding 

officer? 

Existing § 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 § 4.315, take 

any action authorized by subpart H to 


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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. 

§ 4.791 What will the order upon 

remand contain? 

Existing § 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, § 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. 

§ 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 §§ 4.903, 4.904, 4.906, and 

4.409. We propose no changes to the 

remaining regulations in this subpart 

(§§ 4.901, 4.902, 4.905, 4.907, and 

4.908). 

§ 4.900 Scope of Rules 

We will add new § 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. 

§§ 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 §§ 4.903, 4.904, and 

4.906. First, we will add a definition of 

‘‘administrative proceeding’’ to § 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 

§§ 4.904 and 4.906 to use the term 

‘‘administrative proceeding’’ instead of 


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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 of§ 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. § 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. 

§ 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 

§ 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). 

§ 4.909 How do I request an extension 

of time? 

Existing § 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 § 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 

§ 4.1017. The revisions will provide 


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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). 

§ 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 nonelectronically. 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. 

§ 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. 

§ 4.1017 Are ex parte communications 

allowed? 

The only modification to this section 

will change the cross-reference in 

paragraph (a) from § 4.27(b) to § 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 


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rules governing practice before DCHD in 

subpart C of this part. 

General Provisions 

§ 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. 

§ 4.1101 Jurisdiction of the Board 

The revision will omit the existing 

cross-reference to § 4.21 to account for 

changes made to § 4.21 as part of this 

regulatory update. 

§ 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 

(§ 4.102) and IBLA (§ 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 

§ 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 

§ 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 § 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 

§ 4.407, and the person or entity filing 

the document will have the burden of 

establishing the filing date. 

§ 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 § 4.103 (DCHD) of this part 

and § 4.408 (IBLA) of this part. 

§ 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 § 4.102 of this part and 

for matters pending before IBLA in 

accordance with § 4.407 of this part. 

§ 4.1110 Intervention 

We propose no changes to § 4.1110. 

§ 4.111 Voluntary Dismissal 

We propose no changes to § 4.1111. 

§ 4.112 Motions 

We propose no changes to § 4.1112. 

§ 4.113 Consolidation of Proceedings 

We propose no changes to § 4.1113. 

§ 4.114 Advancement of Proceedings 

We propose no changes to § 4.1114. 

§ 4.115 Waiver of Right to Hearing 

We propose no changes to § 4.1115. 

§ 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 § 4.1116. 

§ 4.1117 Reconsideration 

The revisions to this section will add 

cross references to the reconsideration 

provisions as part of this rulemaking for 

DCHD (§ 4.130) and IBLA (§ 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 § 4.130 

of this part but will not allow petitions 

for reconsideration in proceedings 

involving an expedited review under 

§ 4.1180 or a suspension or revocation 

under § 4.1190. Paragraph (b) will 

specifically cross-reference IBLA’s 

reconsideration provision at § 4.415 of 

this part. 

Hearings and Discovery 

§ 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 §§ 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 

§ 4.104, subpoenas are discussed at 

§ 4.120, discovery authority is explained 

in rules §§ 4.112 through 4.119, 

summary judgment procedures are 

described in § 4.111, hearing scheduling 

is addressed in § 4.124, hearing 

processes are set forth in § 4.126, 

evidentiary issues are discussed at 

§ 4.127, and interlocutory review is 

addressed with more specificity in 


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§ 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. 

§ 4.1121 Initial Orders and Decisions 

This section combines the existing 

regulations set forth in §§ 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. 

§ 4.1122 Termination of Jurisdiction 

This provision is currently set forth in 

existing rule § 4.1121(c) and will be 

retained in its own section so that issues 

surrounding the termination of 

jurisdiction will be more clearly 

highlighted. 

§§ 4.1123 Through 4.1141 [Removed] 

As part of this regulatory update, the 

provisions at §§ 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 §§ 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 

§ 4.1150 Who May File 

The only modification to this section 

will replace the words ‘‘the Hearings 

Division, OHA’’ with ‘‘DCHD.’’ 

§ 4.1153 Answer 

The only modification to this section 

will replace the words ‘‘the Hearings 

Division, OHA’’ with ‘‘DCHD.’’ 

§ 4.1161 Who May File 

The only modification to this section 

will replace the words ‘‘the Hearings 

Division, OHA’’ with ‘‘DCHD.’’ 

§ 4.1182 Where To File 

The only modification to this section 

will replace the words ‘‘the Hearings 

Division’’ with ‘‘DCHD.’’ 

§ 4.1190 Initiation of Proceedings 

The only modification to this section 

will replace the words ‘‘the Hearings 

Division, OHA’’ with ‘‘DCHD.’’ 

§ 4.1191 Answer 

The only modification to this section 

will replace the words ‘‘the Hearings 

Division, OHA’’ with ‘‘DCHD.’’ 

§ 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.’’ 

§ 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.’’ 

§ 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.’’ 

§ 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.’’ 

§ 4.1262 Where To File 

The only modification to this section 

will replace the words ‘‘the Hearings 

Division, OHA’’ with ‘‘DCHD.’’ 

§ 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 crossreference the interlocutory appeal 

procedures created as part of this 

regulatory update for DCHD (§ 4.122) 

and IBLA (§ 4.414). Paragraph (b) will 

carry forward the existing language in 

paragraph (h). 

§ 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. 

§ 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 §§ 4.150 

through 4.151 of this part. 

§ 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.’’ 

§ 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. 

§ 4.1304 Answer, Motion, or Statement 

of OSM 

The only modification to this section 

will replace the words ‘‘the Hearings 

Division’’ with ‘‘DCHD.’’ 

§ 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.’’ 

§ 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.’’ 

§ 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.’’ 

§ 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.’’ 

§ 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.’’ 

§ 4.1381 Who May File; When To File; 

Where To File 

The only modifications to this section 

will replace the words ‘‘the Hearings 


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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.’’ 

§ 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.’’ 

§ 4.1393 Status of Decision Pending 

Administrative Review 

The existing rule contains a crossreference to § 4.21(a) that has changed 

as part of this regulatory update. The 

substance of IBLA’s rule at § 4.405(a)(1) 

will be inserted so that the crossreference to § 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 

■ 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. 

■ 2. Revise the part heading to read as 

set forth above. 

■ 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 

§ 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 § 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 § 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. 


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(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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 


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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 § 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 

§ 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. 

§ 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. 

§ 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 § 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 


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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. 

§ 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. 

§ 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 § 4.337 

or § 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 

§ 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. 

§ 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. 

§ 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. 

§ 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 


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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 § 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 


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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. 

§ 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 thirdparty 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. 

■ 4. Add subpart C to read as follows: 

Subpart C—Rules Applicable to 

Proceedings Before the Departmental 

Cases Hearings Division 

Sec. 


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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 

§ 4.100 Purpose and scope. 

(a) Purpose. This subpart contains the 

general procedural rules for practice 

before the Departmental Cases Hearings 

Division (DCHD) at §§ 4.100 through 

4.131, as well as the specific rules 

applicable to certain types of 

proceedings before DCHD at §§ 4.150 

through 4.175. 

(b) Scope. The general procedural 

rules for practice before DCHD at 

§§ 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. 

§ 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 

§ 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 


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prepaid; or it is dispatched to a thirdparty 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 nonelectronically 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 § 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 § 4.163 have 

been satisfied. 

(c) Issuance. An ALJ may issue 

notices, orders, decisions, or other 

documents electronically or nonelectronically 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. 

§ 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; 


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(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 textsearchable 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 

§ 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 casemanagement 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 § 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 postconference order. 

§ 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 

§ 4.111. 

(b) Motion. A motion must be filed 

and served in accordance with §§ 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 

§§ 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. 


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§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 §§ 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. 


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(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 §§ 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 crossmotion 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 

§ 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 (§ 4.113); 

(2) Requests for production (§ 4.114); 

(3) Requests for admission (§ 4.115); 

or 

(4) Depositions (§ 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; 


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(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 §§ 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. 

§ 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 § 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. 

§ 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 § 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. 

§ 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 § 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. 


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§ 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 § 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. 

§ 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. 

§ 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. 

§ 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 


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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 

§ 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. 

§ 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. 

§ 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. 


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(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 § 4.28 or 

§ 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. 

§ 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 

§ 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. 

§ 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. 

§ 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 crossexamination 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 § 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 § 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; 


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(5) Provide for the sequestration of 

witnesses; 

(6) Receive, rule on, exclude, or limit 

evidence; 

(7) Take official notice of a factual 

matter under § 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 § 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. 

§ 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 crossexamination 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. 

§ 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. 

§ 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. 


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Reconsideration, Appeal, and Review 

§ 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 § 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 § 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. 

§ 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 

§ 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 §§ 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 § 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. 

§ 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 

§ 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 §§ 4.160 

through 4.169. 

§ 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. 

§ 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 


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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. 

§ 4.163 Private contests; service. 

(a) Service generally. The complaint 

must be served upon every contestee in 

the manner provided in § 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 § 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. 

§ 4.164 Private contests; answer to 

complaint. 

(a) Deadline and contents of answer. 

Within 30 days after service of the 


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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. 

§ 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. 

§ 4.166 Government contests; complaint 

and service. 

(a) Complaint. The proceedings in 

Government contests are governed by 

§§ 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 

§ 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 § 4.162(f) do not 

apply. 

(b) Service—(1) Where service is by 

publication, the affidavits and 

declarations required by § 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 

§ 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 § 4.163(e)(3) need not be 

filed. 

§ 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. 

§ 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 §§ 4.100 through 4.131 govern 

practice and procedure in addition to 

the specific rules applicable to contest 

proceedings at §§ 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. 

§ 4.169 Appeal. 

Any party, including the Government, 

adversely affected by the decision of the 

ALJ may appeal to the IBLA as provided 

in § 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) 

§ 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 §§ 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 § 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 


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(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 § 4.171. 

§ 4.171 Petitions for stay. 

(a) Standards and procedures for 

obtaining a stay. An appellant under 

§ 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 §§ 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 § 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 § 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 § 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 § 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. 

§ 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 § 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 §§ 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. 

§ 4.173 Adjudication of grazing appeal. 

(a) Applicable rules. In grazing 

proceedings before the ALJ, the general 

procedural rules for practice before 

DCHD at §§ 4.100 through 4.131 of this 

subpart govern practice and procedure 

in addition to the rules applicable to 

grazing proceedings at §§ 4.170 through 

4.175 of this subpart. 


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(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 § 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. 

§ 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 § 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 

§ 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. 

§ 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 § 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 § 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 

§ 4.174(b). 

Subpart D—Rules Applicable to 

Appeals Before the Interior Board of 

Indian Appeals 

■ 5. Revise the heading of subpart D to 

read as set forth above. 

■ 6. Amend § 4.200 by revising the table 

in paragraph (a) to read as follows: 

§ 4.200 How to use this subpart. 

(a) * * * 

For provisions relating to . . . Consult . . . 

(1) Appeals to the Board of Indian Appeals generally ....................................................................... §§ 4.200, 4.201, and 4.310 through 4.318. 

(2) Appeals to the Board of Indian Appeals from orders of the Probate Hearings Division in Indian 

probate matters.

§§ 4.201 and 4.320 through 4.326. 

(3) Appeals to the Board of Indian Appeals from actions or decisions of the Bureau of Indian Affairs.§§ 4.201 and 4.330 through 4.340. 

(4) Review by the Board of Indian Appeals of other matters referred to it by the Secretary, Assistant Secretary—Indian Affairs, or Director—Office of Hearings and Appeals.§§ 4.201 and 4.330 through 4.340. 

(5) Determinations under the White Earth Reservation Land Settlement Act of 1985, as amended. Subpart H of this part. 

* * * * * 

■ 7. Amend § 4.201 by: 

■ a. Adding introductory text; 

■ b. Removing the definition of 

‘‘Administrative law judge (ALJ);’’ 

■ c. Adding, in alphabetical order, a 

definition for ‘‘Adversely affected;’’ 

■ d. Revising paragraph (2) of the 

definition of ‘‘Agency;’’ 

■ e. Adding, in alphabetical order, 

definition for ‘‘Appellant;’’ 

■ f. Removing the definitions of ‘‘BIA’’, 

and ‘‘Decision or order (or decision and 

order)’’; 

■ g. Revising the definitions of ‘‘Formal 

probate proceeding’’ and ‘‘Interested 

party;’’ 

■ h. Removing the definitions of 

‘‘Indian probate judge (IPJ)’’ and 

‘‘Judge;’’ 

■ i. Adding, in alphabetical order, a 

definition for ‘‘Probate judge;’’ and 

■ j. Removing the definition of 

‘‘Secretary.’’ 

The revisions read as follows: 

§ 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 


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(5) Any co-owner exercising a 

purchase option. 

* * * * * 

‘‘Probate judge’’ means an ALJ or IPJ 

in the Probate Hearings Division. 

* * * * * 

■ 8. Revise the undesignated center 

heading before § 4.310 to read, ‘‘General 

Rules for Practice Before the Interior 

Board of Indian Appeals’’. 

■ 9. Amend § 4.310 by: 

■ a. Revising the section heading; 

■ b. Removing paragraph (f); 

■ c. Redesignating paragraphs (a) 

through (e) as paragraphs (c) through (g); 

■ d. Adding new paragraphs (a) and (b); 

and 

■ e. Revising newly redesignated 

paragraphs (c) and (d). 

The additions and revisions read as 

follows: 

§ 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. 

* * * * * 

■ 10. Revise § 4.312 to read as follows: 

§ 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. 


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■ 11. Revise and republish § 4.314 to 

read as follows: 

§ 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. 

■ 12. Amend § 4.315 by adding 

paragraph (d) to read as follows: 

§ 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 § 4.312(b) is not 

permitted. 

■ 13. Amend § 4.317 by revising 

paragraph (a) to read as follows: 

§ 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. 

* * * * * 

■ 14. Amend § 4.318 by revising the first 

sentence to read as follows: 

§ 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. * * * 

■ 15. Revise the undesignated center 

heading before § 4.320 to read, ‘‘Specific 

Rules for Appeals in Probate Matters’’. 

■ 16. Amend § 4.320 by: 

■ a. Revising the section heading; 

■ b. Revising the introductory text and 

paragraph (d); and 

■ c. Adding paragraph (e). 

The revisions and addition read as 

follows: 

§ 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. 

■ 17. Revise § 4.321 to read as follows: 

§ 4.321 How do I appeal a probate judge’s 

order? 

(a) A person wishing to appeal an 

order within the scope of § 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 

§ 4.310(b). 

■ 18. Amend § 4.323 by: 

■ a. Revising paragraphs (a) and (b); and 

■ b. Removing paragraph (d). 

The revisions read as follows: 

§ 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 § 4.310(d). 

* * * * * 

■ 19. Amend § 4.324 by: 

■ a. Revising paragraph (a) introductory 

text and paragraph (b); 

■ b. In paragraph (c)(4), removing 

‘‘§ 4.310(f)’’ and adding in its place 

‘‘§ 4.310(b)’’; and 

■ c. Revising paragraph (f) introductory 

text and paragraphs (f)(2) and (3). 

The revisions read as follows: 

§ 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. 

§ 4.325 How will the appeal be docketed? 

■ 20. Amend § 4.325, by adding the 

word ‘‘probate’’ before the word ‘‘judge’’ 

in the first sentence. 

■ 21. Revise the undesignated center 

heading before § 4.330 to read, ‘‘Specific 

Rules for Appeals from Administrative 

Actions Not Relating to Probate 

Proceedings’’. 

■ 22. Amend § 4.330 by revising 

paragraphs (a) and (b)(3) to read as 

follows: 

§ 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). 


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■ 23. Amend § 4.331 by revising the 

introductory text to read as follows: 

§ 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— 

* * * * * 

■ 24. Amend § 4.332 by revising 

paragraph (a) introductory text and 

paragraph (b) to read as follows: 

§ 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 § 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 § 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. 

* * * * * 

■ 25. Revise § 4.333 to read as follows: 

§ 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. 

■ 26. Revise § 4.336 to read as follows: 

§ 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. 

§§ 4.350–4.357 [Removed] 

■ 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 §§ 4.350 

through 4.357. 

■ 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. 

§ 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. 

§ 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 

§ 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 


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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. 

§ 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. 

§ 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 § 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 § 4.407(a); 

and 

(2) The notice of appeal must be 

concurrently served as specified at 

§ 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 § 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. 

§ 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. 

§ 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 

§ 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 


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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. 

§ 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. 

§ 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 nonelectronically 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 


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(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 

§ 4.22(b) or, if not provided, the party’s 

last known mailing address. 

§ 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 singlespaced; 

(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 81⁄2 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. 

§ 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 


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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 crossexamination; 

(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 

§ 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. 

§ 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. 


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§ 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. 

§ 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 § 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. 

§ 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. 

§ 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 § 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 

§ 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. 

§ 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 § 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. 

§ 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. 

§ 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. 


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§ 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. 

■ 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 

§ 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. 

§ 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. 

§ 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 § 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 § 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. 

§ 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. 

§ 4.704 Reconsideration. 

Unless otherwise provided by 

regulation, reconsideration of a decision 

may be granted only in extraordinary 


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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. 

§ 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. 

■ 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 

§ 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 §§ 4.310 through 4.318 for general 

rules applicable to proceedings before 

the Board of Indian Appeals. 

§ 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 §§ 4.310 through 4.318 of this 


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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. 

§ 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 § 4.744 or § 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 § 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. 

§ 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. 

§ 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 § 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 §§ 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. 

§ 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 

§ 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 nonelectronic 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. 

§ 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 


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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. 

§ 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. 

§ 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 § 4.22(b) or, if not provided, their 

last known mailing address. 

§ 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 

§ 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 § 4.731. 

§ 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. 

§ 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 

§ 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. 

§ 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. 

§ 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. 


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(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. 

§ 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. 

§ 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 § 4.743(a), the 

presiding officer will issue a final 

decision. 

§ 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 § 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 

§ 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. 

§ 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 

§ 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 § 4.783, but not both. 

§ 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. 

§ 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. 

§ 4.763 How will the presiding officer 

decide a petition for reconsideration? 

(a) General. The presiding officer may 

take any action listed in § 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 § 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; 


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(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. 

§ 4.764 What will the order upon 

reconsideration contain? 

In the order upon reconsideration, the 

presiding officer may deny the petition 

in accordance with § 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. 

§ 4.765 How can an order upon 

reconsideration be challenged? 

(a) An order upon reconsideration 

may be appealed to the Board as 

provided in § 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 

§ 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. 

§ 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 § 4.761(a), it will be treated as a 

petition for reconsideration. 

§ 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. 

§ 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 

§ 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. 

§ 4.774 How will the presiding officer 

decide a petition for reopening? 

(a) General. The presiding officer may 

take any action listed in § 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 § 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 § 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. 


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§ 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. 

§ 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 

§ 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. 

§ 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. 

§ 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 

§ 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 § 4.783(a) or a petition for 

reconsideration with the presiding 

officer under § 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 § 4.783(a) 

unless a notice of appeal is timely filed: 

(1) An order upon reconsideration 

issued under § 4.763(a); 

(2) An order upon reopening issued 

under § 4.774(a) or § 4.775(c); and 

(3) An order upon remand issued 

under § 4.790(b). 

§ 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 § 4.763(a); 

(c) An order upon reopening issued 

under § 4.774(a) or § 4.775(c); or 

(d) An order upon remand issued 

under § 4.790(b). 

§ 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. 

§ 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 § 4.781 must file a 

written notice of appeal with the Board 

in accordance with § 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 

§ 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 § 4.310(b). 

§ 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 

§ 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. 

§ 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. 

§ 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. 

§ 4.787 What happens to the record after 

disposition? 

The record filed with the Board under 

§ 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. 


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Procedures After Board Remand 

§ 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 

§ 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. 

§ 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. 

§ 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 

■ 31. Revise the heading of subpart I to 

read as set forth above. 

§ 4.801 [Amended] 

■ 32. Amend § 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’’. 

§ 4.804 [Amended] 

■ 33. Amend § 4.804, the first sentence, 

by removing the word ‘‘him’’ and 

adding in its place the word ‘‘them’’. 

§ 4.805 [Amended] 

■ 34. Amend § 4.805, the first sentence, 

by removing the word ‘‘him’’ and 

adding in its place the word ‘‘them’’. 

§ 4.807 [Amended] 

■ 35. Amend § 4.807 by: 

■ 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’’; 

■ b. In paragraph (d), by removing the 

word ‘‘him’’ and adding in its place the 

word ‘‘them’’; 

■ c. In paragraph (f), by removing the 

word ‘‘his’’ and adding in its place the 

words ‘‘the administrative law judge’s’’; 

and 

■ d. In paragraph (h), by removing the 

word ‘‘him’’ and adding in its place the 

words ‘‘the administrative law judge’’. 

§ 4.809 [Amended] 

■ 36. Amend § 4.809 by: 

■ a. In paragraph (c)(2), removing the 

word ‘‘his’’ and adding in its place the 

word ‘‘petitioner’s’’; 

■ b. In paragraph (d): 

■ i. In the second sentence, removing 

the word ‘‘He’’ and adding in its place 

the words ‘‘The administrative law 

judge’’; 

■ ii. In the third sentence, removing the 

word ‘‘he’’ and adding in its place the 

words ‘‘the administrative law judge’’; 

■ iii. In the fourth sentence, removing 

the word ‘‘his’’ and adding in its place 

the word ‘‘their’’; and 

■ iv. In the fifth sentence, removing the 

word ‘‘he’’ and adding in its place the 

words ‘‘the administrative law judge’’. 

■ 37. Amend § 4.811 by: 

■ a. In paragraph (b): 

■ i. In the first sentence, removing the 

word ‘‘he’’ and adding in its place the 

words ‘‘the administrative law judge’’; 

and 

■ ii. In the second sentence, removing 

the word ‘‘his’’ and adding in its place 

the word ‘‘the’’; 

■ b. Revising the second and third 

sentences of paragraph (d) and the 

second sentence of paragraph (e), to 

read as follows: 

§ 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. 

§ 4.813 [Amended] 

■ 38. In § 4.813, amend paragraph (b), 

the first sentence, by removing the word 

‘‘his’’ and adding in its place the word 

‘‘their’’. 

§ 4.814 [Amended] 

■ 39. Amend § 4.814 by removing the 

word ‘‘his’’ and adding in its place the 

word ‘‘their’’. 

§ 4.816 [Amended] 

■ 40. Amend § 4.816, the second 

sentence, by removing the word ‘‘he’’ 

and adding in its place the words ‘‘the 

applicant recipient’’. 

■ 41. Amend § 4.819 by revising the first 

sentence to read as follows: 

§ 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. * * * 

■ 42. Revise § 4.821 to read as follows: 

§ 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. 

§ 4.823 [Amended] 

■ 43. In § 4.823, amend the first 

sentence, by removing the word ‘‘his’’ 

and adding in its place the word 

‘‘their’’. 

§ 4.825 [Amended] 

■ 44. In § 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’’. 


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§ 4.827 [Amended] 

■ 45. Amend § 4.827 by: 

■ 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 

■ b. In paragraph (d), the third sentence, 

removing the word ‘‘his’’ and adding in 

its place the word ‘‘their’’. 

§ 4.828 [Amended] 

■ 46. In § 4.828, amend paragraph (a)(3) 

by removing the word ‘‘he’’ and adding 

in its place the words ‘‘the witness’’. 

§ 4.830 [Amended] 

■ 47. Amend § 4.830, in paragraph (a), 

the first sentence, by removing the word 

‘‘his’’ and adding in its place the word 

‘‘their’’. 

§ 4.831 [Amended] 

■ 48. Amend § 4.831 by: 

■ a. In paragraph (b)(2), removing the 

word ‘‘him’’ and adding in its place the 

words ‘‘the administrative law judge’’; 

and 

■ b. In paragraph (c)(1), removing the 

word ‘‘his’’ and adding in its place the 

word ‘‘their’’. 

§ 4.832 [Amended] 

■ 49. In § 4.832, amend paragraph (a) by 

removing the word ‘‘him’’ and adding in 

its place the words ‘‘the disobedient 

party’’. 

§ 4.833 [Amended] 

■ 50. Amend § 4.833, in paragraph 

(b)(6), by removing the word ‘‘his’’ and 

adding in its place the words ‘‘the 

administrative law judge’s’’. 

§ 4.834 [Amended] 

■ 51. Amend § 4.834, in paragraph (c), 

by removing the word ‘‘his’’ in both 

places it occurs and adding in its place 

the word ‘‘their’’. 

■ 52. Revise and republish § 4.839 to 

read as follows: 

§ 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. 

§ 4.843 [Amended] 

■ 53. Amend § 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’’. 

■ 54. Revise and republish § 4.844 to 

read as follows: 

§ 4.844 Notification of right to file 

exceptions. 

The provisions of § 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 § 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. 

§ 4.845 [Amended] 

■ 55. Amend § 4.845, the first sentence, 

by removing the words ‘‘upon him’’. 

Subpart J—Specific Rules Applicable 

to Appeals Concerning Federal Oil and 

Gas Royalties 

■ 56. Revise the heading of subpart J to 

read as set forth above. 

■ 57. Add § 4.900 to read as follows: 

§ 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. 

■ 58. Amend § 4.903 by adding, in 

alphabetical order, a definition for 

Administrative proceeding to read as 

follows: 

§ 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. 

* * * * * 

■ 59. Revise § 4.904 to read as follows: 

§ 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 § 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 § 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. 

■ 60. Revise § 4.905 to read as follows: 

§ 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. 

■ 61. Revise § 4.906 to read as follows: 

§ 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 § 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 


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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 § 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. 

■ 62. Revise § 4.909 to read as follows: 

§ 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 

§ 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 § 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 § 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 

§ 4.407. 

Subpart K—Specific Rules Applicable 

to Hearings Concerning the 

Acknowledgment of American Indian 

Tribes 

■ 63. Revise the heading of subpart K to 

read as set forth above. 

■ 64. Revise § 4.1012 to read as follows: 

§ 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. 

■ 65. Revise § 4.1013 to read as follows: 

§ 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 nonelectronically 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 


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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. 

§ 4.1017 [Amended] 

■ 66. In § 4.1017, amend paragraph (a) 

by removing the citation ‘‘§ 4.27(b)’’ and 

adding in its place the citation ‘‘§ 4.27’’. 

Subpart L—Specific Rules Applicable 

to Hearings and Appeals Concerning 

Surface Coal Mining 

■ 67. Revise the heading of subpart L to 

read as set forth above. 

■ 68. Revise § 4.1100 to read as follows: 

§ 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. 

■ 69. Amend § 4.1101 by revising 

paragraph (a) introductory text to read 

as follows: 

§ 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— 

* * * * * 

■ 70. Revise § 4.1107 to read as follows: 

§ 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 

§ 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 § 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 § 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 § 4.407(a) of 

this part. The person or entity filing the 

document has the burden of establishing 

the filing date. 

■ 71. Revise § 4.1108 to read as follows: 

§ 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 § 4.103 of this 

part, and documents filed under this 

subpart with the Board must also 

conform to § 4.408 of this part. 

■ 72. Revise § 4.1109 to read as follows: 

§ 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 


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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 § 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 

§ 4.102. 

(d) All other documents filed with the 

Board must be served as specified in 

§ 4.407. 

■ 73. Revise § 4.1117 to read as follows: 

§ 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 § 4.130 of this part, except 

that a petition for reconsideration may 

not be filed in an expedited review 

proceeding under § 4.1180 or in a 

suspension or revocation proceeding 

under § 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 § 4.415 of this part. 

■ 74. Revise the undesignated center 

heading before § 4.1120 to read 

‘‘Hearings and Discovery’’. 

■ 75. Revise § 4.1120 to read as follows: 

§ 4.1120 Proceedings before 

administrative law judge (ALJ). 

(a) General rules. The general 

procedural rules for practice before 

DCHD at §§ 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. 

■ 76. Revise § 4.1121 to read as follows: 

§ 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 

§ 4.1270 or § 4.1271, unless the ALJ 

accepts a petition for reconsideration for 

further analysis under § 4.1117 and 

§ 4.130 of this part. 

■ 77. Revise § 4.1122 to read as follows: 

§ 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. 

§§ 4.1123 through 4.1141 [Removed] 

■ 78. Remove the undesignated center 

heading ‘‘Discovery’’ and §§ 4.1123 

through 4.1141. 

§ 4.1150 [Amended] 

■ 79. Amend § 4.1150 by removing the 

words ‘‘the Hearings Division, OHA’’ 

and adding in their place the word 

‘‘DCHD’’. 

§ 4.1153 [Amended] 

■ 80. Amend § 4.1153 by removing the 

words ‘‘the Hearings Division, OHA’’ 

and adding in their place the word 

‘‘DCHD’’. 

§ 4.1161 [Amended] 

■ 81. Amend § 4.1161 by removing the 

words ‘‘the Hearings Division, OHA’’ 

and adding in their place ‘‘DCHD’’. 

§ 4.1182 [Amended] 

■ 82. Amend § 4.1182 by removing the 

words ‘‘the Hearings Division’’ and 

adding in their place ‘‘DCHD’’. 

§ 4.1190 [Amended] 

■ 83. In § 4.1190, amend paragraph (a) 

by removing the words ‘‘the Hearings 

Division, OHA’’ and adding in their 

place the word ‘‘DCHD’’. 

§ 4.1191 [Amended] 

■ 84. Amend § 4.1191 by removing the 

words ‘‘the Hearings Division, OHA’’ 

and adding in their place ‘‘DCHD’’. 

§ 4.1200 [Amended] 

■ 85. In § 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’’. 

§ 4.1201 [Amended] 

■ 86. Amend § 4.1201 by: 

■ a. In paragraphs (a) and (b), removing 

the words ‘‘the Hearings Division, 

OHA’’ in both places they appear and 

adding ‘‘DCHD’’; and 

■ b. In paragraph (c), removing the 

words ‘‘the main office of OHA’’ and 

adding in their place the word ‘‘DCHD’’. 

§ 4.1202 [Amended] 

■ 87. In § 4.1202, amend paragraph (a) 

by removing the words ‘‘the Hearings 

Division, OHA’’ and adding in their 

place the word ‘‘DCHD’’. 

§ 4.1203 [Amended] 

■ 88. In § 4.1203, amend paragraph (b) 

by removing the words ‘‘the Hearings 

Division, OHA’’ and adding in their 

place the word ‘‘DCHD’’. 

§ 4.1262 [Amended] 

■ 89. Amend § 4.1262 by removing the 

words ‘‘the Hearings Division, OHA’’ 

and adding in their place the word 

‘‘DCHD’’. 

■ 90. Revise § 4.1272 to read as follows: 

§ 4.1272 Interlocutory appeals. 

(a) A party seeking permission to file 

an interlocutory appeal must comply 

with the requirements of §§ 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. 

■ 91. Amend § 4.1286 by: 

■ a. In paragraph (c)(2)(iii), removing 

the words ‘‘in accordance with § 4.411’’; 

and 

■ b. Revising the first sentence of 

paragraph (e) to read as follows: 

§ 4.1286 Motion for a hearing on an appeal 

involving issues of fact. 

* * * * * 

(e) The hearing will be conducted 

under §§ 4.1100, 4.1102 through 4.1115, 

and 4.1120 through 4.1122.* * * 

■ 92. Revise § 4.1287 to read as follows: 

§ 4.1287 Action by administrative law 

judge. 

The administrative law judge will 

adjudicate the referral in accordance 

with §§ 4.150 through 4.151. 

§ 4.1301 [Amended] 

■ 93. In § 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.’’ 

§ 4.1303 [Amended] 

■ 94. In § 4.1303, amend paragraph (b) 

by removing the words ‘‘§ 4.1109 (a) and 


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Federal Register / Vol. 90, No. 6 / Friday, January 10, 2025 / Rules and Regulations 2431 

(b) of this part’’ and adding in their 

place the words ‘‘§ 4.1109 of this part’’. 

§ 4.1304 [Amended] 

■ 95. Amend § 4.1304 by removing the 

words ‘‘the Hearings Division’’ and 

adding in their place the word ‘‘DCHD.’’ 

§ 4.1352 [Amended] 

■ 96. In § 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.’’ 

§ 4.1362 [Amended] 

■ 97. In § 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’’. 

§ 4.1367 [Amended] 

■ 98. In § 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’’. 

§ 4.1371 [Amended] 

■ 99. Amend § 4.1371 by: 

■ 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 

■ b. In paragraph (c), removing the 

words ‘‘the Hearings Division’’ and 

adding in their place the word ‘‘DCHD’’. 

§ 4.1376 [Amended] 

■ 100. In § 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’’. 

§ 4.1381 [Amended] 

■ 101. Amend § 4.1381 by: 

■ 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 

■ b. In paragraph (c), removing the 

words ‘‘the Hearings Division’’ and 

adding in their place the word ‘‘DCHD’’. 

§ 4.1386 [Amended] 

■ 102. In § 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’’. 

■ 103. Revise § 4.1393 to read as 

follows: 

§ 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 


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