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Rule2024-30358

Practices Before the Department of the Interior

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Published

January 10, 2025

Effective

February 10, 2025

Issuing agencies

Interior Department

Abstract

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and streamline procedures and retitle subparts to improve clarity to parties; consolidate redundant language; eliminate outdated procedures; and allow OHA to continue to modernize its practice and keep pace with technological and other advancements, including the establishment of a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.

Full Text

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<title>Federal Register, Volume 90 Issue 6 (Friday, January 10, 2025)</title>
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[Federal Register Volume 90, Number 6 (Friday, January 10, 2025)]
[Rules and Regulations]
[Pages 2332-2431]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-30358]

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Vol. 90

Friday,

No. 6

January 10, 2025

Part V

Department of the Interior

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43 CFR Part 4

Practices Before the Department of the Interior; Final Rule

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

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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 4

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

Practices Before the Department of the Interior

AGENCY: Office of Hearings and Appeals, Interior.

ACTION: Interim final rule.

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consolidate redundant language; eliminate outdated procedures; and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

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

ADDRESSES:
All Comments (with the exception of comments related to Information
Collection Requirements): You may send comments, identified by Docket
No. DOI-2022-0010 by any of the following methods:
<bullet> Federal eRulemaking Portal: Go to the Federal eRulemaking
Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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.''
<bullet> 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.
<bullet> 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 <a href="/cdn-cgi/l/email-protection#df9b9096f28f8d9e9fb6b0acf1bbb0b6f1b8b0a9">[email&#160;protected]</a>. 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: <a href="/cdn-cgi/l/email-protection#5f0d3e3c373a3300132a343a312c1f30373e713b303671383029">[email&#160;protected]</a>. Individuals in the United
States who are deaf, blind, hard of hearing, or have a speech
disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. Acronyms Used in This Document

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

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

II. Background

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

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

III. Summary of Changes

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

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

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

Severability

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

IV. Procedural Requirements

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

[[Page 2336]]

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

A. Regulatory Planning and Review (E.O. 12866 and E.O. 13563)

Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) at the Office of Management
and Budget (OMB) will review all significant rules. as defined by that
E.O. OIRA determined this interim final rule is significant as defined
by E.O. 12866.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The E.O. directs agencies to consider regulatory approaches that reduce
burdens and maintain flexibility and freedom of choice for the public
where these approaches are relevant, feasible, and consistent with
regulatory objectives. E.O. 13563 further emphasizes that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas.
We have developed this rule in a manner consistent with these
requirements.

B. Regulatory Flexibility Act

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

C. Small Business Regulatory Enforcement Fairness Act

The Office of Information and Regulatory Affairs has determined
that this rule does not meet the criteria set forth in 5 U.S.C. 804(2),
subtitle E of the Small Business Regulatory Enforcement Fairness Act of
1996. It does not add to, change, or diminish any substantive rights of
any parties or the public.It provides parties to OHA proceedings the
option to file documents electronically, removes outdated information
and references, and authorizes the use of OHA Standing Orders as the
means of communicating current information on contract information,
electronic filing, and other procedural matters.This rule:
(a) Will not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of the
U.S.-based enterprises to compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act

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

E. Takings (E.O. 12630)

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

F. Federalism (E.O. 13132)

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

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

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

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

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

[[Page 2337]]

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

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

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

J. Paperwork Reduction Act

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

[[Page 2338]]

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

Send your written comments and suggestions on this information
collection by March 11, 2025 to the Departmental Information Collection
Clearance Officer, U.S. Department of the Interior, Jeffrey Parrillo,
1849 C Street NW, Washington, DC 20240; or by email to <a href="/cdn-cgi/l/email-protection#1a5e5553374a485b5a737569347e7573347d756c">[email&#160;protected]</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. However, the
comment will not be publicly viewable until we post it, which might not
be immediate.
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying

[[Page 2339]]

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

V. Subpart-by-Subpart Analysis

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

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

[[Page 2340]]

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

Subpart B--General Rules Relating to Procedures and Practice

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

[[Page 2341]]

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

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

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

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

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

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

[[Page 2346]]

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

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

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

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

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

[[Page 2351]]

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

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

[[Page 2353]]

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

[[Page 2354]]

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

[[Page 2355]]

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

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

[[Page 2357]]

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

[[Page 2358]]

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

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

The Interior Board of Indian Appeals (Board) hears appeals from
decisions rendered by Department of the Interior officials involving
Indian matters and decides those appeals finally for the Department.
The subjects of these appeals include the use of Indian trust lands and
mineral resources; conveyances of rights-of-way on Indian lands; land
sales, exchanges, and other encumbrances; trespass; acquisitions of
land in trust; disputes over the recognition of tribal officials for
government-to-government relations; probates of trust or restricted
property; heirship under the WELSA; and pre-award disputes under the
Indian Self-Determination and Education Assistance Act. The Board also
decides other matters referred to it by the Secretary of the Interior,
the Director of OHA, or the Assistant Secretary--Indian Affairs. The
Board's mission is to provide an impartial forum within the Department
of the Interior for the fair resolution of disputes involving Indian
matters under the Department's jurisdiction.
Subpart D provides rules applicable to appeals to the Board. We
will modernize, clarify, reorganize, and otherwise revise these rules
to reflect current practice, take advantage of technological advances,
and make the rules more user friendly.
Scope of Subpart; Definitions
Sec. 4.200 How To Use This Subpart
We will revise the table in Sec. 4.200(a) that serves as a guide
to the contents of subpart D by subject matter, by changing the
following cross-references: In (a)(1) add Sec. Sec. 4.200 through
4.201 for clarity and in (a)(5) replace ``Sec. Sec. 4.350 through
4.357'' with ``subpart H of this part'' because we also will revise and
relocate to subpart H the provisions regarding WELSA appeals, currently
in Sec. Sec. 4.350 through 4.357. In addition, in (a)(2) and various
other places in subpart D, we will replace the term ``decisions'' with
``orders'' for consistency with the existing probate regulations in 43
CFR part 30 that describe the probate ``orders'' that are appealable to
the Board.
Sec. 4.201 Definitions
We will include in Sec. 4.201 only those terms used exclusively in
subpart D or that have a specialized meaning in subpart D.
Specifically, this section will include definitions of ``adversely
affected,'' ``agency,'' ``appellant,'' ``Board,'' ``day,''
``decedent,'' ``devise,'' ``devisee,'' ``estate,'' ``formal probate
proceeding,'' ``heir,'' ``Individual Indian Money (IIM) account,''
``interested party,'' ``intestate,'' ``probate judge'', ``LTRO,''
``probate,'' ``restricted property,'' ``trust personalty,'' ``trust
property,'' and ``will''. Other terms common to all subparts in part 4
will be defined in subpart A.
We will add a definition of ``adversely affected.'' The term
appears in Sec. Sec. 4.320 and 4.331 to describe who may appeal to the
Board. The definition is consistent with other Departmental regulations
and well-established Board precedent that, to have standing to appeal
to the Board, an appellant must have suffered or be likely to suffer an
injury to a legally protected interest because of the action, order, or
decision on appeal. See, e.g., Preservation of Los Olivos v. Pacific
Regional Director, 58 IBIA 278, 296-97 (2014).
We will revise the definition of ``agency'' to update the statutory
citation contained in it.
We will add a definition of ``appellant'' for clarity. We will
revise the definition of ``formal probate proceeding'' to replace the
word ``judge'' with ``probate judge'' for clarity. We will revise the
definition of ``interested party,'' which is used to describe persons
or entities who may file an appeal or are entitled to receive service
of pleadings and orders. The current definition is limited to probate
appeals and mirrors the definition in 43 CFR 30.101. Without changing
the scope of the term as applied to probate appeals, we

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