# Practices Before the Department of the Interior

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-30358

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 10, 2025
- **Citation:** 90 FR 2332

## Text

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.

SUMMARY:

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and streamline procedures and retitle subparts to improve clarity to parties; consolidate redundant language; eliminate outdated procedures; and allow OHA to continue to modernize its practice and keep pace with technological and other advancements, including the establishment of a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

DATES:

Effective date:
These rule is effective February 10, 2025.

Comments due date:
Send comments on or before February 10, 2025.

Information collection requirements:
Interested persons are invited to submit comments on any of the information collection requirements in 43 CFR part 4, not just those related to revisions in this Interim Final Rule, to the Departmental Information Collection Clearance Officer, U.S. Department of the Interior (see “Information Collection” section below under
ADDRESSES
) by March 11, 2025. After the 60-day comment period ends, comments on the Information Collection Requirements will be addressed and an additional 30-day notice will be published.

ADDRESSES:

All Comments (with the exception of comments related to Information Collection Requirements):
You may send comments, identified by Docket No. DOI-2022-0010 by any of the following methods:

•
Federal eRulemaking Portal:
Go to the Federal eRulemaking Portal at
https://www.regulations.gov
. In the Search box, enter Docket No. DOI-2022-0010 which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the panel on the left side of the screen, under the Document Type heading, check the Interim Final Rule box to locate this document. You may submit a comment by clicking on “Comment.”

•
By U.S. mail:
Submit by U.S. mail to Attn: Public Comments, Docket No. DOI2023-0015, Office of Hearings and Appeals, 801 North Quincy Avenue, Suite 300, Arlington, VA 22203.

•
Hand/Courier Delivery:
Deliver to Attn: Public Comments, Docket No. DOI2023-0015, Office of Hearings and Appeals, 801 North Quincy Avenue, Suite 300, Arlington, VA 22203. OHA's hours of operation are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal holidays).

For more information on how we handle public comments, please see
Public Availability of Comments
discussion in Procedural Requirements below.

Comments Related to Information Collection Requirements:
Send your comments on the information collection request to the Departmental Information Collection Clearance Officer, U.S. Department of the Interior, Jeffrey Parrillo, 1849 C Street NW, Washington, DC 20240; or by email to
DOI-PRA@ios.doi.gov
. Please reference OMB Control Number 1094-New/RIN 1094-AA47” in the subject line of your comments.

FOR FURTHER INFORMATION CONTACT:

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

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

bureaus and offices who appear before OHA. A few examples of benefits include:

• A comprehensive, streamlined procedural framework that consolidates redundant language and provides information that better follows case chronology reduces time spent in pre-hearing proceedings establishing deadlines and discovery schedules and explaining rules;

• Electronic tools allow more efficient review and analysis of filings, including voluminous administrative records, an improvement over review of large paper filings; and

• Electronic processes decrease staff time dedicated to copying, printing, and mailing.

Equity:
The interim final rule aims to improve equitable access to OHA as the forum for external stakeholders to receive meaningful due process through administrative review of Department decisions. A few examples include:

• Video technology options make OHA proceedings more accessible for parties with physical limitations, limited financial resources, and limited geographic mobility; and

• Streamlined, plain language improves clarity and accessibility for pro se parties.

Security:
The interim final rule provides for greater data security and privacy protections.

A few examples include:

• Electronic processes provide options that avoid data security risks of mailing paper files, including the risks of paper files getting lost in transit; and

• Data reliability and electronic reporting capabilities will be improved with a modernized system and supporting regulatory framework.

Transparency:
The interim final rule seeks to provide greater transparency. A few examples include:

• Clear and consolidated procedures provided in user-friendly plain language are easier for parties to follow through the chronology of a case; and

• OHA Standing Orders provide real-time updates to provide accurate office contact information and guidance for electronic filing and service.

In this interim final rule, OHA will make comprehensive procedural revisions throughout 43 CFR part 4, including additional changes to establish the regulatory framework for electronic filing (including where some appeals are filed), retitling subparts for greater consistency and clarity, consolidating subparts, creating two new subparts, and making the organization of the regulations more logical and concise. Some of the changes will supersede those made in March 2023. While OHA has made language consistent across part 4 where possible, we placed greater emphasis on making the procedures more useable and understandable to those appearing before a particular OHA Unit in a particular type of proceeding.

Subparts A and B contain general regulations relating to the procedures and practices of OHA. The relationship of these general provisions to other subparts is complicated, particularly because many subparts also intersect with regulations outside part 4. This interim final rule provides clarification through a cross-reference paragraph at the start of each subpart.

Subpart A provides general information and authorities for OHA. Revisions made replace lengthy descriptions with more succinct and complete information about the OHA Units, which will make it easier for parties who appear before a particular OHA Unit to follow. Revisions to subpart A provide greater specificity about the membership and responsibilities of each of the OHA Units and regarding the powers of the Director of OHA and the Secretary. A revision is made to specify the Secretary has the authority to appoint judges at OHA, which is being added as a result of a U.S. Supreme Court case decided in 2018. Another revision adds specific descriptions of OHA's two Hearings Divisions as well as the Director's authority to designate hearing officials. This includes reference to a statute authorizing Indian Probate Judges, in addition to Administrative Law Judges, to adjudicate Indian Probate Cases. A new definitions section that applies across subparts will allow the removal of duplicative definitions from various subparts.

Subpart B provides general rules relating to procedures and practices that apply to some of the OHA Units, as specified. Revisions are made to the provisions addressing exhaustion and finality, retention and withdrawal of documents, record address information, computation of time for filing and service, hearing transcripts, hearing technology, subpoena powers for probate proceedings, interlocutory appeals, ex parte provisions, and disqualification of presiding officers and board members.

Subpart B will be further reorganized by moving § 4.21 stay provisions and § 4.22 filing and service provisions to specific subparts, as well as to a different section in subpart B. Regarding § 4.21 stay provisions, this change is necessary because the intersection with regulations administered by bureaus and offices made it confusing to provide the language in subpart B's general authorities. Regarding § 4.22 filing and service provisions, this change is necessary because some OHA Units continue to rely on general authorities in subpart B for filing and service provisions, while other OHA Units rely on unit- or procedure-specific language within the relevant subpart. For types of procedures that do not have specific filing provisions in other subparts, a filing, service, and issuance provision will be retained at the end of subpart B. We will add a section about alternative dispute resolution (ADR) to codify OHA's role in facilitating and encouraging parties to resolve disputes amicably. In addition, clarifying edits are made to the section related to limiting disclosure of confidential information.

This interim final rule adds a new subpart C, which is currently reserved and does not contain any regulatory provisions. This new subpart will create uniform and consistent general procedural rules applicable to all phases of prehearing, hearing, and post-hearing adjudication before DCHD. In addition to aiding in the efficient, fair, and timely resolution of proceedings, the new rules specifically address current and anticipated technological advancements within DCHD. Subpart C allows for electronic filing and service of documents, as well as the use of video technology for hearings and other prehearing processes. The general procedural rules set forth in subpart C are drafted to encompass all types of proceedings pending before DCHD, unless specifically exempted. These regulatory changes also relocate, modify, and update provisions contained in the pre-existing subpart E that contain the rules applicable to specific types of proceedings before DCHD. By consolidating the rules applicable to DCHD into subpart C, subpart E now contains the rules applicable only to the IBLA. Subpart C now contains the rules for the following specific types of proceedings before DCHD: (1) Referrals for Fact-Finding Hearings; (2) Contest Proceedings; and (3) Grazing Proceedings (Inside and Outside of Grazing Districts).

For the remaining provisions in subpart E pertaining to the IBLA, we revise the regulations to modernize and clarify IBLA's appeal procedures. Among other revisions, we re-order the current regulations to track the chronological progression of an appeal and to allow electronic filing and service. In addition, we revise provisions to improve efficiencies in the appeal process, including (1) requiring a person or entity to file its appeal

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

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 § 4.730(b) that would have replaced and reworded the existing language of 43 CFR 4.351(a) pertaining to the

circumstances under which the Project Director would
not
commence a determination of the heirs of a person who died entitled to receive compensation under the WELSA. The Band expressed concern that the language of § 4.730(b) may be too restrictive and advocated for returning to the existing language of § 4.351(a). OHA made this change.

OHA also held two Tribal consultation sessions, inviting all federally recognized Indian Tribes and providing advanced copies of the Interim Final Rule. Seventeen individuals attended from approximately 14 tribes, law firms, or organizations. OHA received approximately a dozen comments from six tribes: six comments involved questions just requiring clarification and three were outside the scope of OHA's Interim Final Rule. OHA received comments in support, including that the procedural changes regarding electronic filing and service are long overdue and will greatly expedite efficiencies for matters before administrative forums and that the changes would make it easier, particularly for non-represented parties, including tribal members, to understand the regulations and access justice.

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

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

J. Paperwork Reduction Act

This interim final rule contains existing information collections in use without OMB approval. All information collections require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.
). We may not conduct, or sponsor, and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

In accordance with the PRA and its implementing regulations at 5 CFR 1320.8(d)(1), we provide the general public and other Federal agencies with an opportunity to comment on our proposal to seek OMB approval of the information collections described below. This input will help us assess the impact of our information collection requirements and minimize the public's reporting burden. It will also help the public understand our information collection requirements and provide the requested data in the desired format.

As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection, including:

(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
e.g.,
permitting electronic submission of response.

Comments that you submit in response to this interim final rulemaking are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

The existing information collection requirements identified below require approval by OMB:

(1)
Appeals (43 CFR part 4)
—To initiate an appeal, an appellant is required to submit a Notice of Appeal or Request/Petition for Hearing, identifying the bureau or office decision that they are appealing to the relevant OHA unit. There are no specific forms required. In most instances, the basic contact information of the appellant and a statement that they are appealing the relevant bureau or office decision will suffice. However, some regulations will require more specificity such as the rules governing grazing appeals to DCHD (§ 4.170(d)) and the rules governing appeals to the IBLA (§ 4.403(a)). Those rules will require the appellant to provide a copy of the decision being appealed along with a statement of standing and timeliness. For grazing appeals to DCHD, an appellant will also be required to submit a statement that clearly and concisely describes the reasons why the appellant believes the grazing decision is incorrect. The appellant must also serve a copy of the Notice of Appeal on the bureau or office that issued the decision, and in some cases must also serve a copy on a specific office of the DOI Solicitor or Assistant Secretary, if required to do so by the regulations. Filing a Notice of Appeal or Request/Petition for Hearing is voluntary but is required to initiate a hearing or appeal. Once initiated, an OHA unit will open a hearing or appeal case file, and any subsequent filings will be associated with that file. Our burden estimates are broken down between hard-copy and electronic submissions.

(2)
Amendments—Appeals (43 CFR part 4)
—Amendments to appeals are extremely rare. An appellant may amend their appeal to correct a misstatement or to update basic name and contact information, for example.

Title of Collection:
Office of Hearings and Appeals Procedural Regulations (43 CFR part 4).

OMB Control Number:
1094-New.

Form Number:
None.

Type of Review:
Existing collection in use without OMB approval.

Respondents/Affected Public:
Individuals/households, private sector, and State/local/Tribal governments.

Respondent's Obligation:
Required to obtain or retain a benefit.

Frequency of Collection:
On occasion.

Total Estimated Annual Non-hour Burden Cost:
$584.

Requirement

Annual
number of
respondents

Number of
responses
each

Total annual
responses

Completion
time per
response
(hours)

Total annual
burden hours
(rounded)

Appeals 43 CFR part 4

(Hardcopy)

Individuals—Recordkeeping
47
1
47
.75
59

Individuals—Reporting

.5

Private Sector—Recordkeeping
2
1
2
.75
3

Private Sector—Reporting

.5

Government—Recordkeeping
2
1
2
.75
3

Government—Reporting

.5

Appeals 43 CFR part 4

(Electronic)

Individuals—Recordkeeping
38
1
38
.5
38

Individuals—Reporting

.5

Private Sector—Recordkeeping
324
1
324
.5
324

Private Sector—Reporting

.5

Government—Recordkeeping
24
1
24
.5
24

Government—Reporting

.5

Amendment—Appeals 43 CFR part 4

(Hardcopy)

Individuals—Recordkeeping
1
1
1
.5
1

Individuals—Reporting

.5

Private Sector—Recordkeeping
1
1
1
.5
1

Private Sector—Reporting

.5

Government—Recordkeeping
1
1
1
.5
1

Government—Reporting

.5

Amendment—Appeals 43 CFR part 4

(Electronic)

Individuals—Recordkeeping
1
1
1
.25
1

Individuals—Reporting

.5

Private Sector—Recordkeeping
1
1
1
.25
1

Private Sector—Reporting

.5

Government—Recordkeeping
1
1
1
.5
1

Government—Reporting

.5

Totals
443

443

457

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

J. National Environmental Policy Act

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

K. Clarity of This Regulation (Plain Language)

We are required by Executive Orders 12866 (sec. 1(b)(12)), and 12988 (sec. 3(b)(1)(B)), and 13563 (sec. 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the
ADDRESSES
section. To help us better determine if changes are appropriate, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you believe lists or tables would be useful, etc.

L. Public Availability of Comments

You may submit your comments and materials regarding this interim final rule by one of the methods listed in
ADDRESSES
. We will post all comments on
https://www.regulations.gov
. This generally means that we will post any personal information you include with your comment.

Comments and materials we receive will be available for public inspection on the internet at
https://www.regulations.gov
. However, the comment will not be publicly viewable until we post it, which might not be immediate.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying

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

V. Subpart-by-Subpart Analysis

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

Subpart A provides general information and authorities about OHA. It identifies the authority of the Secretary and the Director, as well as the authority, membership, and jurisdiction of appeals boards and hearings divisions.

§ 4.1 Scope of Authority; Applicable Regulations

We will subdivide this section into paragraphs and subparagraphs to provide needed organization and structure to this section. The opening paragraph will now be labeled as paragraph (a) with no substantive changes.

Paragraph (b) will describe OHA Units and will add descriptions of the two hearings divisions in OHA, including the Departmental Cases Hearings Division and the Probate Hearings Division, both referenced in this part. Descriptions for Appeals Boards will be reorganized. To provide greater clarity, references to rules in other subparts or other regulations are provided for each OHA Unit. A new paragraph (c) will describe the authority of the Director to appoint an Ad Hoc Board of Appeals for appeals that are not within the jurisdiction of one of the Standing Boards. It will also clarify the Director's authority to designate or appoint presiding officers for hearings or appeals as needed for proceedings not specifically covered by an OHA Unit.

§ 4.2 Membership and Duties

We will add paragraphs and subparagraphs to better delineate membership of the Appeals Boards and Hearings Divisions and roles of the chief judges. Language indicating the duties of the chief judge, how panels are convened, and how decisions are issued will be carried forward with some clarifying edits.

We will add a new paragraph that describes Hearings Divisions as consisting of administrative law judges (ALJs) and, where authorized, Indian probate judges. This recognizes the authority provided by 25 U.S.C. 372-2 to Indian probate judges to adjudicate Indian probate cases, fulfilling the hearing requirements in chapter 10 of title 25. We will add language indicating the duties of the chief judges of the Hearings Divisions, which are similar to those provided for the chief judges of the Appeals Boards. A new paragraph reiterates that the Director will designate or appoint OHA officials to conduct hearings and appeals that come before OHA and that are not within the jurisdiction of an OHA Unit.

§ 4.3 Representation Before OHA

Pursuant to 5 U.S.C. 301, § 4.3(a) applies Part 1 to representation of parties, including Interior agencies. Paragraph (a) of this section will be revised to reference all OHA proceedings rather than just those before the Boards. OHA will continue its longstanding practice of enforcing the representation provisions of Part 1 by dismissing non-Governmental parties that are not properly represented by a qualified individual meeting the requirements of 43 CFR 1.3.

Paragraph (b) will be revised to clarify the applicable standard of conduct when the Department's Office of the Solicitor or other Government counsel represents an agency, bureau, or office of the Federal Government.

With regard to appearances as amicus curiae, OHA will clarify the “timely request” language in current regulations by adding a specific timeframe. Under this language, a request to appear as amicus curiae must be made within 30 days of the date the matter is docketed by OHA. It will further clarify that the granting or denying of the request is in the sole discretion of OHA.

§ 4.4 Public Records; Contact Information for Offices

This section was recently changed in March 2023 to specify that contact information for offices referenced in part 4 are available in the OHA Standing Orders on Contact Information, and no other changes are being made. Final Rule, Practices Before the Department of the Interior, 88 FR 5789 (Mar. 16, 2023).

§ 4.5 Power of the Secretary and Director

In paragraph (a) of this section, we will specify that the Secretary has the authority to appoint judges to OHA. In
Lucia
v.
Securities and Exchange Commission,
138 S. Ct. 2044 (2018), the U.S. Supreme Court held that the Securities and Exchange Commission ALJs are inferior officers for purposes of the Appointments Clause to the U.S. Constitution. The U.S. Constitution provides that Congress may vest the appointment of inferior officers “. . . in the President alone, in the courts of law, or in the heads of departments.” U.S. Const., Art. II, sec. 2, cl. 2. The Secretary has appointed or ratified the appointment of all ALJs, administrative judges, and Indian probate judges at OHA.

Paragraph (b)(1) will include language similar to that contained in current paragraph (b), indicating that the Director may assume jurisdiction of cases before Appeals Boards or direct Appeals Boards to reconsider. In addition, we will add new paragraphs (b)(2) and (b)(3) to clarify the authority of the Director to appoint an Ad Hoc Board or designate presiding officers and to provide for the internal management and administration of OHA, including managing case dockets. And finally, paragraph (b)(4) will carry forward regulatory changes to paragraph (b) that were finalized on March 16, 2023, and that specify the Director's authority to issue OHA Standing Orders.

OHA has issued two Standing Orders that are currently posted on OHA's Department of the Interior website. The OHA Standing Order on Electronic Transmission conveys procedures currently available for the electronic transmission of documents, and the OHA Standing Order on Contact Information provides a list of up-to-date office addresses referenced in part 4. Throughout part 4, references to OHA Standing Order(s) on Electronic Transmission and OHA Standing Orders on Contact Information will be added. These Standing Orders will be updated as needed, and other Standing Orders may be issued to convey current information to parties and the public. For example, OHA is developing an electronic filing system, and when it is deployed, the OHA Standing Order on Electronic Transmission will be updated to help parties navigate the system. Subpart H also will refer to an OHA Standing Order on the WELSA that will be issued when the regulatory changes go into effect.

Using Standing Orders rather than some other type of guidance aligns with how OHA communicates with interested individuals or parties in an administrative adjudicative setting. Standing Orders issued by the OHA Director apply to hearings and appeals at OHA. The Director has the authority to issue general notices pertaining to the functions assigned to OHA under 212 Departmental Manual 13.7.

§ 4.6 Definitions and Acronyms

We will add a definitions and acronyms section. We will define administrative judge or AJ as a judge in OHA and administrative law judge or ALJ as a judge appointed under the Administrative Procedure Act, 5 U.S.C. 3105. We will define Appeals Board as the Interior Board of Land Appeals

(IBLA), the Interior Board of Indian Appeals (IBIA), or an Ad Hoc Board of Appeals in OHA. The definition of Standing Appeals Board, in contrast, will include IBIA and IBLA, but not an Ad Hoc Board of Appeals. We will identify acronyms for Department of the Interior bureaus and offices that are used throughout part 4, including the Bureau of Indian Affairs (BIA), Bureau of Indian Education (BIE), Bureau of Land Management (BLM), Bureau of Ocean Energy Management (BOEM), Bureau of Reclamation (BOR), Bureau of Safety and Environmental Enforcement (BSEE), Office of Natural Resources Revenue (ONRR), and Office of Surface Mining and Reclamation (OSMRE). We provide a broad definition of “bureau or office” to be used more generally in reference to a Department of the Interior bureau or office and specify those bureaus or offices that are included in the definition. We identify acronyms within OHA, including DCHD, IBIA, IBLA, OHA, and PHD Department is defined as the Department of the Interior; Director means the Director of OHA; the Secretary means the Secretary of the Interior; and Solicitor's Office means the Department of the Interior Office of the Solicitor.

Since OHA employs a number of judges who are appointed under different authorities and pay bands, we will include a definition of “judge” as an administrative judge, an Indian probate judge, or an administrative law judge in OHA. Indian probate judges will be defined as an attorney in OHA authorized by 25 U.S.C. 372-2 to adjudicate Indian probate cases. Indian probate judges and administrative law judges in the PHD carry out identical duties within OHA. We also will change references to “presiding official” or “deciding official” in existing regulations to “presiding officer.” These terms have been used in subparts A and B to describe an official who is responsible for a hearing or an appeal or other proceeding before OHA. Presiding officer will mean a judge, attorney, or other official, depending on the type of matter before OHA, designated by the Director to adjudicate a matter pending before OHA.

Subpart B—General Rules Relating to Procedures and Practice

§ 4.20 Purpose and Scope

Subpart B contains the general rules applicable to all proceedings, as well as rules that may apply to only some of the OHA Units depending on the type of proceedings. This subpart will clarify that, when there is a conflict between the more specific rules that are found in other subparts in this part and the more general rules in subparts A and B, the specific rules will govern. In addition, the rule also indicates that other laws, regulations, and policies of the Department may be applicable to a particular type of proceeding. For example, for the Probate Hearings Division, the regulations in part 30 also apply to its proceedings.

§ 4.21 Exhaustion and Finality

Currently, § 4.21 is entitled “General Provisions,” and paragraphs (a) and (b) set out the general OHA procedures and criteria for seeking a stay of an agency decision pending administrative appeal to the Director or an Appeals Board. We will move these provisions from this subpart to § 4.405 in subpart E, governing appeals to the IBLA. Appeals filed with IBIA are generally automatically stayed pursuant to 43 CFR. 4.314 and stays of grazing decisions pending appeal to DCHD are governed by current §§ 4.471 and 4.472. With this change, OHA will eliminate any conflicts between § 4.21 and stay provisions specifically applicable to the appeals or proceedings it adjudicates.
See, e.g.,
§§ 4.171 (DCHD), 4.314(a) (IBIA). A number of regulations administered by bureaus and offices that appear before IBLA make reference to § 4.21(a) and (b). A subsequent final rule will make conforming changes to cross references that are needed as a result of the changes.

The existing § 4.21 ends with two paragraphs, (c) and (d), which address exhaustion of administrative remedies, finality, and the circumstances under which a party may seek reconsideration of a final decision issued by the Director or an Appeals Board. 43 CFR 4.21(c) and (d). Section 4.21 will continue to address exhaustion and finality with these provisions moved to paragraphs (a) and (b). Current paragraph (d) addressing reconsideration will be removed from this general subpart, and OHA Units will address reconsideration as applicable in specific subparts.

Exhaustion of Administrative Remedies and Finality of Decision

Current paragraph 4.21(c) addresses administrative remedies and finality for purposes of judicial review, providing that a decision is not final for purposes of judicial review unless either (a) a stay has been sought and denied or (b) the decision has been put into effect pending appeal by another pertinent regulation. We will move the exhaustion provisions from existing paragraph (c) to § 4.21(a).

After the current § 4.21 was promulgated in 1993, the Supreme Court decided
Darby
v.
Cisneros,
509 U.S. 137, 152 (1993), and held that an otherwise final agency action is subject to judicial review unless a regulation requires an administrative appeal (exhaustion) and the decision on appeal is inoperative during that appeal. Relying on the exhaustion and finality requirements of the Administrative Procedure Act, 5 U.S.C. 704 (Section 10(c) of the APA), the Court concluded that courts and agencies could only require exhaustion when agencies, “first, . . . adopt[ed] a rule that an agency appeal be taken before judicial review is available, and, second, . . . provid[ed] that the initial decision would be `inoperative' pending appeal. Otherwise, the initial decision becomes final and the aggrieved party is entitled to judicial review.”
Darby,
509 U.S. at 152 (quoting sec.704).

We will make the provision consistent with
Darby
and also clarify that it addresses both exhaustion of administrative remedies and finality for purposes of judicial review by dividing these topics into separate paragraphs.

Paragraph (a) addresses exhaustion and makes explicit the requirement that an appeal must be filed with the Director or applicable Appeals Board to exhaust administrative remedies except if (i) otherwise provided by applicable law or (ii) the decision is immediately effective. In other words, if neither exception applies, a party must file an administrative appeal in order to preserve their right to later challenge an agency action in federal court. A party who fails to timely file an administrative appeal will not be considered to have exhausted its administrative remedies and, as a result, will have forfeited their right to judicial review.

The interim final rule's two exceptions reflect existing regulatory and jurisprudential requirements. Under the first exception, regulations that specifically address exhaustion requirements for certain types of decisions will still govern over this general provision to the extent of any conflict. Many of the bureaus and offices whose decisions may be appealed to the IBLA, for example, have exhaustion requirements that clearly mandate an administrative appeal, and while those regulations do not conflict with paragraph (a), their specific requirements will still govern under the revised rule.
See, e.g.,
30 CFR 1290.110 (requiring administrative appeals to exhaust administrative remedies of an order issued by the Office of Natural Resources Revenue); 30 CFR 590.8 (requiring appeals to the IBLA of orders and decisions of the Bureau of Ocean

Energy Management); 30 CFR 290.8 (requiring appeals to the IBLA of orders and decisions of the Bureau of Safety and Environmental Enforcement). In addition, because the new paragraph (a) applies to the Director and Appeals Board, but not DCHD, the exhaustion provisions that apply to grazing appeals will govern instead of this provision. See § 4.174(b).

The second exception implements the
Darby
holding by providing that a decision is subject to judicial review if it is made effective pending appeal. By including these exceptions, parties adversely affected by an agency decision will be better positioned to understand when exhaustion is required and assess their options for further review of the decision.

Paragraph (b) will more specifically address finality for purposes of judicial review under 5 U.S.C. 704. Paragraphs (b)(1) and (b)(2) will distinguish between bureau or office decisions that are not in effect pending completion of the appeal and those that are in effect pending completion of the appeal, deeming the latter category to be final agency action that is subject to judicial review regardless of how the decisions came into effect as required by the holding in
Darby
. Paragraph (b) has three subparagraphs. Subparagraph (b)(1) will address decisions that are not in effect, stating that “[a] decision that is not in effect pending completion of the appeal does not constitute final agency action for the Department.” This provision will comply not only with
Darby
but also with the Supreme Court's more general definition of APA finality set out in
Bennett
v.
Spear,
520 U.S. 154 (1997). A bureau or office decision that is not in effect during the time it may be appealed, or during the pendency of the appeal, meets none of the
Bennett
indicia of finality: the decision under appeal does not yet mark the consummation of the agency's 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.

§ 4.21 Reconsideration

Existing paragraph (d) will be removed because other than the Director's Office, each OHA Unit has its own reconsideration regulation applicable to its proceedings. The Director's Office will add a reconsideration provision to subpart G, § 4.704, so it too will have a reconsideration provision that is substantively identical to the provision in existing § 4.21(d).

§ 4.22 Retention of Documents; Record Address; and Extensions of Time

We will move the filing and service provisions from § 4.22 to § 4.407 for appeals before the IBLA and to a new § 4.32 for proceedings before the Director's Office and PHD. IBIA and DCHD also will use the filing and service provisions provided in other subparts in part 4. The current § 4.22(c) will become § 4.22(a), entitled, Retention of documents. The current language refers to “withdrawal” of original documents, but we will clarify that OHA will permit the “substitution” of original documents for true copies during the time a case is pending. We also will provide that an appeals board may require such substitution upon a request for withdrawal in order to ensure an accurate record of the proceeding.

The current § 4.22(d) will become paragraph (b), entitled Record address information. We will require every person or entity filing a document in a proceeding before OHA to provide their mailing address and those filing electronically to provide both a mailing address and an electronic mailing address. Address changes will need to be promptly filed, and any person or entity who fails to provide or update their address will not be entitled to notice or service in the proceeding until they do so.

The current § 4.22(e) will become § 4.22(c), entitled, Computation of time for filing and service. We propose revising this section to be consistent with Federal Rule of Civil Procedure 6(a)(1). Specifically, we will divide the current computation of time paragraph into three subparagraphs, which will provide three rules for computing time periods specified in the regulations, unless otherwise provided by law: (1) Exclude the day of the event that triggers the time period; (2) Count every day, including intermediate Saturdays, Sundays, and Federal holidays; and (3) Include the last day of the period, but if the last day is a Saturday, Sunday, Federal holiday, or other nonbusiness day, the period continues to run until the end of the next day that is not a Saturday, Sunday, Federal holiday, or other nonbusiness day. The only substantive change from the content of current § 4.22(e) is that time periods of seven days or less will no longer exclude any Saturday, Sunday, Federal holiday, and other nonbusiness day. As explained in the Committee Notes for Federal Rule of Civil Procedure 6(a)(1), the instruction to “count every day” (so that “day” means “calendar day”) enables parties to calculate time periods less than 7 days and greater than 7 days in the same way. Some time periods provided by the regulations in part 4 will be extended to account for this change.

The current § 4.22(f) will become § 4.22(d), entitled Extensions of time, without any substantive changes.

§ 4.23 Hearings or Related Proceedings

We will modify this section based on changes in technology and increased availability of recordings and because OHA employees typically do not

prepare transcriptions. The current provision indicates that hearings will be recorded, and transcripts will be made when requested by the parties. It also specifies the rate to cover the cost of OHA employees preparing the transcripts for requesting parties. The new language will provide that hearings are recorded or transcribed or both and allows parties to have the option to request recordings. It carries forward the responsibility of the parties to pay for requested copies of the transcript or recording. For transcripts that are prepared by a contractor, the language will require the parties to obtain and pay for them. Paragraph (b) is new and will specifically provide that hearings may be conducted using video, teleconference, or other suitable technology. OHA has already begun using video hearings for the convenience of OHA and the parties.

§ 4.24 Basis of Decision

In § 4.24, we will carry forward paragraphs (a)(1), (a)(3), (a)(4), and (b) with minor edits to modernize the language. Paragraph (a)(2) will be revised to provide greater clarity without changing the requirements.

§ 4.25 Oral Argument and Status Conferences

We will revise this section to add “presiding officer” to the list along with the Director and Appeals Boards who have the authority in current regulations to grant an opportunity for oral argument. We also will specify that the Director, presiding officer, or Appeals Board may order status conferences. We also will expressly state that oral arguments or status conferences may be conducted by video, teleconference, or other suitable technology.

§ 4.26 Subpoena Power and Witness Provisions for Probate Proceedings

In paragraph (a), which currently references only ALJs, we will add that Indian probate judges or presiding officers in WELSA proceedings under subpart H also have subpoena power when carrying out their statutory duties to adjudicate Indian probate cases. We also specify that the subpoena power will apply not only to the attendance of witnesses at hearings or depositions, but also to the production of documents or other relevant materials.

Expanding this provision will help address a current need. For example, adoption or medical records may be relevant to issues arising in a probate case, but custodians of these records may provide them to OHA or a party only in response to a subpoena.

PHD has made greater use of video, teleconference, or other suitable technology to hold hearings, and paragraph (b) reflects this change by including language that specifies the contents of a subpoena requiring attendance by one of these methods.

Current regulations provide for personal service of subpoenas, but not service by other methods. Because witnesses may now appear by video, teleconference, or other suitable technology from a distant location, we will allow the use of registered or certified mail to complete service of a subpoena. Current regulations limit the distance a witness may be required to travel to attend a deposition or hearing to 100 miles from the place of service. Considering PHD's greater use of video, teleconference, or other suitable technology to hold hearings, we will specify in paragraph (d) that geographic limits do not apply when in-person attendance at a hearing is not required. We will add a new paragraph (e) on witness fees, which modernizes the language in current paragraph (c) without changing the substantive requirements. We continue to tie witness fees to those provided in the United States district courts.

§ 4.27 Ex parte Communication and Disqualification

We will reorganize and revise this existing provision, which has not been updated since 1971 (36 FR 7186; April 15, 1971), by adding a definition of ex parte communication, explicitly prohibiting ex parte communications, detailing the procedure that OHA will follow if it received an ex parte communication, and providing the sanctions for ex parte communications. We will specifically provide that the appropriate OHA Unit supervisor will notify OHA's Director in the event of a prohibited communication warranting discipline of an OHA employee, and to clarify that discipline will only be imposed on OHA employees who knowingly made ex parte communications or caused ex parte communications to be made. We will also require that a communication be knowingly made or caused by a party for sanctions on that party to be warranted. We further specify a list of allowable communications that will not be considered prohibited ex parte communications.

§ 4.28 Interlocutory Appeals

We will clarify and modernize the language but do not intend to make substantive changes except to again include Indian probate judges in recognition of the statutory authority of Indian probate judges to adjudicate Indian probate cases.

§ 4.29 Disqualification of Presiding Officers and Board Members

We will delete current § 4.29, which addresses remands from Federal courts. The current section applies only to IBIA and IBLA, but neither Appeals Board has found the procedures provided in the section necessary. Instead, IBIA and IBLA can effectively address remands from courts on a case-by-case basis.

We will move the provisions regarding Disqualification of Presiding Officers and Board Members to this section from their current location in § 4.27(c). We will use the term “presiding officer” for consistency with other changes to subparts A and B and also add language to qualify that the provision applies to members of Appeals Boards. No other substantive changes are made.

§ 4.30 Alternative Dispute Resolution

We will remove the section entitled, “Information Required by forms” as the form required for subpoenas also has been removed. In its place, we will add a new section that codifies OHA's authority to encourage the use of alternative dispute resolution (ADR) among parties who have filed an appeal or requested a hearing. The Department of the Interior has greatly expanded its use of ADR and other informal tools to resolve disputes among internal parties as well as with external groups. ADR can provide substantial benefits to parties, allowing for the flexibility to craft durable and creative solutions to disputes while also saving time and money associated with adjudication. OHA will seek opportunities to regularize and expand communications about ADR to parties with pending cases, while also allowing parties to inquire about the availability of ADR for their pending matter.

§ 4.31 Limiting Disclosure of Confidential Information

We will make significant clarifying amendments to this provision, which has been a source of challenge and confusion as currently drafted.

We will define the confidential information that is subject to this provision as information that is exempt from public disclosure by the Freedom of Information Act, Trade Secrets Act, or other laws that explicitly exempt the information from disclosure. This definition is intended to clarify that this provision will not address information protected by common law privilege.

We also will modernize and clarify the language describing the procedure

by which a party may request a protective order for information submitted to OHA that the party asserts falls within the definition of confidential information, and the procedure by which OHA will rule on the motion for protective order. We will retain language to exempt hearings conducted pursuant to 5 U.S.C. 554 from this provision, as protective orders and disputes regarding confidential information are generally handled through the discovery process in those fact-finding hearings. We also will retain language stating that notwithstanding an OHA ruling on a protective order, information will be released if the Department determines that it is subject to release under the Freedom of Information Act.

§ 4.32 Filing; Service; Issuance

We will move the filing and service provisions that apply to the Director's Office and PHD from § 4.22 to a new § 4.32 and specify that they do not apply to subparts C, D, E, H, J, K, and L.

OHA is working on an electronic filing system that is expected to be deployed to the parties and the public during FY 2024. The electronic filing system will be used for proceedings before the Director's office, IBLA, IBIA, and DCHD. However, while PHD will not be using this electronic filing system, any opportunities that become available for electronic transmission of documents will be provided for in the OHA Standing Orders on Electronic Transmission.

We will modify paragraph (a) to add subparagraphs that address electronic and non-electronic filing. Paragraph (a)(1) will add references to the OHA Standing Order on Contact Information and the OHA Standing Order on Electronic Transmission. Paragraphs (a)(2) and (a)(3) will provide for separate provisions on methods of filing and timeliness.

Paragraph (a)(2)(i) will add a requirement that any attorney representing a person or entity, and any Federal, State, or local agency must file documents electronically. This requirement will help maximize the efficiencies of an electronic system and provide benefits to OHA and the parties who appear before it.

Paragraph (a)(3)(i) will provide that the deadline for documents filed electronically will be 11:59 p.m. in the time zone of the office where the filing is required on the due date. For those who file electronically, we anticipate using the time stamp of the electronic process OHA is using at the time. For example, when the new electronic filing system is deployed, the date and time of filing will be determined by that system. For those who choose to file documents by mail, paragraph (a)(3)(ii) will specify that a document will be deemed timely if it is mailed on or before the last day for filing or if it is dispatched to a commercial courier for delivery within 3 days. This provision is consistent with Federal Rule of Appellate Procedure 25, which similarly states that a brief not filed electronically is timely filed if it is mailed on or before the filing deadline, postage prepaid, by first-class mail or other equally expeditious class of mail or dispatched to a third-party commercial carrier for delivery to the clerk within 3 days of the dispatch. Paragraph (a)(3)(ii) will also require that the mailing or dispatch date be documented by a postmark date, acceptance scan, receipt, or similar written acknowledgment from the company delivering the document for filing. The intent of this language is to put parties on notice that there must be proof of the date a document is mailed for filing. Without such proof, a document may be deemed untimely. To account for the possibility of an error by the post office or a commercial courier, paragraph (a)(3)(ii) specifies that a document not received within seven business days of the filing deadline is presumed to have not been filed, but that presumption may be rebutted by the date-of-mailing documentation.

The options we are providing for 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.

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

§ 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

Orders on Electronic Transmission convey current information about the electronic filing and service of documents, and the OHA Standing Orders on Contact Information convey current electronic and mailing address information. The OHA Standing Orders will be made available on the Department of the Interior's OHA website at
https://www.doi.gov/oha.

§ 4.101 Definitions

This section will include a definition for the term “administrative law judge” and the acronym “DCHD.” All other definitions generally applicable to proceedings under 43 CFR part 4 will be defined in subpart A.

Filing, Service, and Formatting of Documents

§ 4.102 Filing and Service Requirements

This section combines the filing and service requirements of several existing regulations, deletes unnecessary provisions, and adds new provisions to modernize practice by allowing documents to be filed and served electronically. This section will also clarify how DCHD issues notices, orders, and decisions. Paragraph (a) will set forth the filing requirements, paragraph (b) will contain the service requirements, and paragraph (c) will discuss the issuance of notices, orders, and decisions.

In response to the exigent circumstances presented by the COVID-19 pandemic, DCHD began allowing parties to file and serve documents electronically by email. Since email filing began, DCHD's experience with electronic filing has been positive and has allowed DCHD to successfully accommodate electronic filings from parties as well as the electronic issuance of notices, orders, and decisions. OHA is currently working to develop an electronic filing system that will ultimately replace the use of email. DCHD will formally codify the procedures for the electronic filing, service, and issuance of documents as part of these General Procedural Rules for Practice before DCHD. In addition, DCHD will continue to rely on Standing Orders, which are issued to update filing and service procedures, provide current contact information, and notify parties of technological developments such as the anticipated implementation of a new electronic filing system.

Paragraph (a)(1) will require that documents be filed in proceedings pending before DCHD in accordance with the rules in this section and the OHA Standing Orders on Electronic Transmission and Contact Information. The available methods for filing either electronically or non-electronically will be discussed in paragraph (a)(2). For a Federal, State, or local agency and for any attorney representing a person or entity in a proceeding before DCHD, paragraph (a)(2)(i) will require electronic filing unless otherwise specified in the OHA Standing Orders on Electronic Transmission or when the ALJ has allowed non-electronic filing for good cause.

For electronic filing, paragraph (a)(3)(i) will adopt 11:59 p.m. Mountain Time as the deadline for filing documents with DCHD. The date and time of filing will be determined by DCHD using the time stamp of the electronic process DCHD is using at the time of filing. So, for as long as the OHA Standing Orders on Electronic Transmission provide that DCHD is accepting filings by email, the date and time of filing will be the date and time that appears on the email received by DCHD. When the new electronic filing system is deployed, the date and time of filing will be the date and time established by that system.

For those who choose to file documents non-electronically by mail or commercial courier, paragraph (a)(3)(ii) will explain that a document is deemed timely if, on or before the last day for filing, it is sent using first-class mail or other class of mail that is at least as expeditious, postage prepaid, or it is dispatched to a third-party commercial courier for delivery within three days. This modification to the existing filing rules is consistent with the approach taken in §§ 4.32 and 4.407 as well as the Federal Rules of Appellate Procedure (FRAP) at Rule 25. While DCHD has historically accepted filings transmitted by facsimile, that procedure will be eliminated going forward and replaced by electronic filing.

Because these regulatory changes will simplify and streamline the filing deadlines, DCHD will no longer need the “grace period” currently found in 43 CFR 4.422(a). Paragraph (a)(3)(ii) will require proof of mailing or dispatch documented by “a postmark date, acceptance scan, receipt, or other similar written acknowledgement.” A document not received within seven business days of the filing deadline will be presumed untimely, but the presumption could be overcome by appropriate documentation establishing the date of mailing or dispatch.

Paragraph (b)(1) will provide notice of the general requirement to serve documents in accordance with the rules in this section and the OHA Standing Orders on Electronic Transmission and Contact Information. Copies of documents filed with DCHD will be required to be served concurrently on all parties to the proceeding under paragraph (b)(2). Service on a party known to be represented will be governed by paragraph (b)(3), which requires service on the representative. A person or entity will be required to serve the appropriate office of the Office of the Solicitor as provided in the OHA Standing Orders on Contact Information until a particular attorney in the Office of the Solicitor files and serves a notice of appearance or other document in the proceeding, after which that attorney must be served. To ensure timely and accurate service, paragraphs (b)(4) and (b)(5) will set forth the method for determining the service address and will require parties to promptly file and serve written notice of any address changes.

To streamline the service requirements, paragraph (b)(6) will allow service to occur electronically or non-electronically. Electronic service will be allowed under paragraph (b)(6)(i) on persons or entities who consent to electronic service under the terms specified in the OHA Standing Orders on Electronic Transmission. Paragraph (b)(6)(i) will also allow electronic service on the Office of the Solicitor and bureaus or offices of the Department of the Interior under the terms specified in the OHA Standing Orders on Electronic Transmission. Non-electronic service will be authorized by mail or third-party commercial courier, except that in contest cases, service could also be made by publication under § 4.163. The tables currently set forth in 43 CFR 4.422 will not be carried over into subpart C. Addresses for serving the Office of the Solicitor and the bureaus and offices of the Department of the Interior will be set forth in the OHA Standing Orders on Contact Information. Proof of service will be required as specified under paragraph (b)(7).

Paragraph (b)(8) of the regulations will specify when service is complete. Electronic service of a document will be deemed complete when the document is sent or as otherwise specified under the terms of the OHA Standing Orders on Electronic Transmission, unless the party making service is notified that the document was not received. For a document served by mail or commercial courier, service will be complete upon mailing or dispatch to the carrier subject to documentation showing the date of mailing or dispatch such as a postmark, acceptance scan, receipt, or other similar written acknowledgement.

Service by publication will be complete as set forth in § 4.163.

Notices, orders, and decisions issued by the ALJ will generally be served electronically as indicated in paragraph (c), and service will be complete on sending or as otherwise specified by the OHA Standing Orders on Electronic Transmission. If an electronic service address has not been provided, then a non-appealable notice, order, or decision will be issued by first-class United States mail or third-party commercial courier to the mailing address provided or, if not provided, to the last known address, and service will be complete on mailing or dispatch. If an electronic service address has not been provided, an appealable order or decision will be sent by certified United States mail to the mailing address provided or, if not provided, to the last known mailing address, and service will be complete when received. If a notice, order, or decision sent by certified mail is not claimed by the recipient or is returned as undeliverable, then service will be achieved by first-class United States mail, and service will be deemed complete on mailing.

§ 4.103 Document Formatting

The document formatting requirements will standardize and clarify the requirements for documents filed with DCHD. Paragraph (a) will specify that the formatting requirements apply to any notice, motion, brief or other document filed with DCHD either electronically or in paper form. The formatting requirements will not apply to exhibits, attachments, and other appended documents. Paragraph (b) contains similar requirements to those found in the existing regulations at 43 CFR 4.410(d) but also includes new provisions to accommodate electronically filed documents. For instance, paragraph (b)(10) will specifically require that documents filed electronically “be in an electronic 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

§ 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 § 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.

§ 4.105 Prehearing Motions

Parties appearing before DCHD file a significant number of prehearing motions that encompass many of the same types of issues that typically arise in Federal district court proceedings. The motions can be wide-ranging and complex depending on the type of proceeding. Parties frequently file motions related to standing, jurisdiction, timeliness, and mootness early in the proceeding. As the proceeding progresses, parties often file motions related to discovery disputes and evidentiary issues. The lack of standard regulatory procedures governing motions practice has led to inefficiencies in case processing and inconsistent requirements. This provision will provide a framework to guide parties through the briefing process for most types of motions.

Paragraph (a) provides a general overview and will require that motions filed prior to a hearing be presented in writing unless otherwise authorized by the ALJ. This requirement is consistent with the practice of Federal districts courts at FRCP 7(b)(1)(A). Procedures applicable to specific types of motions appear in separate sections of subpart C, and summary judgment motions will be governed by § 4.111.

Paragraph (b) describes the timing, page limits, and content of motions. It also requires that motions comply with the filing, service, and document formatting requirements set forth in §§ 4.102 and 4.103. A party will be authorized to file a motion any time after the commencement of the proceeding unless a different deadline has been prescribed in subpart C or in an order issued by the ALJ. Motions will be limited to 15 pages, unless the ALJ orders otherwise. In terms of content, motions will be required to contain a clear and concise statement indicating: (1) the purpose of the motion and the relief sought; (2) the factual basis for the relief sought; and (3) the legal arguments and reasons supporting the motion, including citations to any applicable legal authority.

Responses under paragraph (c) will also be subject to the filing and service

requirements of § 4.102 and the document formatting requirements of § 4.103. A response will be due 14 days after the filing of the motion and will be limited to 15 pages unless the ALJ orders otherwise. In terms of content, a response brief will be required to contain a clear and concise statement indicating: (1) whether the party supports or opposes the motion; (2) the factual basis for the response; and (3) the legal arguments and reasons supporting the response, including citations to legal authority.

To aid in calculating due dates, this section, and most of the regulatory provisions in subpart C, will calculate deadlines in 7-day increments. To allow for the more efficient resolution of motions, paragraph (d) does not allow replies or further briefing unless authorized by the ALJ.

In addition, this proposal will require in paragraph (e) that supporting documentary materials be submitted along with the motion or response unless the supporting materials have already been filed with DCHD. Any documentary materials will need to be directly referenced in the motion or response using pinpoint citations that specify the page(s) or paragraph number(s) where the supporting text is located. Pinpoint citations enable the ALJ to more quickly and efficiently review the briefing and materials submitted by the parties.

To expedite the resolution of purely procedural motions, paragraph (f) will allow an ALJ to rule on a motion for procedural relief without waiting for a response. Examples of purely procedural motions include requests to modify a deadline, reschedule an action, allow additional briefing, or permit the filing of an overlength brief. An ALJ will also be authorized under paragraph (g) to summarily deny a motion without waiting for a response when the motion is frivolous, repetitive, or would cause undue delay.

§ 4.106 Extension of Time

Requests for extensions of time occur with some frequency in proceedings before DCHD and warrant a separate section. In general, as explained in paragraph (a), a party may request an extension of time for filing a document, other than a notice of appeal or a document initiating a proceeding, by filing a written motion. Under this rule, ALJs will retain the discretion to grant or deny extensions of time depending on the individual circumstances. Paragraph (b) will require that a motion requesting an extension be filed no later than the day before the document is due, absent a showing of compelling circumstances. To obtain an extension, paragraph (c) will require the movant to demonstrate good cause. To enable the ALJ to more expeditiously adjudicate motions for extensions of time, paragraph (d) will require the moving party to make a reasonable effort to contact each party to determine whether an agreement can be reached regarding an extension.

Occasionally, an ALJ may be at hearing or otherwise unavailable to rule on a requested extension prior to the deadline, especially when the request for an extension is made only a day or two before the deadline. To ensure consistency and certainty in the event of inaction by the ALJ, the regulation contains a default provision in paragraph (e) that allows for any document to be filed within 7 calendar days after the original due date if the ALJ does not rule on the motion before the document is due, unless the ALJ orders otherwise. This 7-day default extension period is consistent with the IBLA's approach under § 4.409(b).

§ 4.107 Consolidation and Severance

This regulation codifies current practices within DCHD. Paragraph (a) will allow for consolidation of two or more proceedings when they involve common factual or legal issues. Proceedings may be consolidated on the motion of a party or at the initiative of the ALJ. While relatively uncommon, consolidated cases occasionally need to be severed as the proceeding progresses and new information develops. Paragraph (b) will specifically allow a proceeding to be severed on the motion of a party or the initiative of the ALJ.

§ 4.108 Intervention and Amicus Curiae

DCHD does not have a uniform set of regulations governing the standards and processes for requesting intervention. But see 43 CFR 4.473 (grazing). In 2010, the IBLA developed a comprehensive intervention regulation, which it codified in the existing rules at 43 CFR 4.406 (see 75 FR 64655; October 20, 2010, and 72 FR 10454; March 8, 2007). In the absence of specific regulatory guidance, DCHD has relied on published decisions issued by the IBLA to determine when intervention may be appropriate in a particular proceeding. By adopting this regulation, DCHD intends to create certainty and consistency for persons and entities who seek intervention or amicus curiae status in proceedings pending before DCHD.

In accordance with existing practice, paragraph (a)(1) will allow intervention by written motion. Paragraph (a)(2) will authorize intervention consistent with existing case law if: (1) the person or entity had a legal right to initiate the proceeding, or (2) the person or entity has an interest that could be adversely affected by the outcome of the proceeding. See,
e.g., Las Vegas Valley Action Comm.,
156 IBLA 110, 112 (2001);
Nev. Div. of Wildlife
v.
BLM & Tuledad Grazing Assoc.,
138 IBLA 382, 390-391 (1997);
Bear River Land & Grazing
v.
BLM,
132 IBLA 110, 113 (1995);
San Juan Citizens Alliance,
129 IBLA 1, 2 n.1 (1994). Paragraph (a)(3) will discuss the required contents of a motion to intervene. Paragraph (a)(4) will enable an ALJ to grant intervention but limit participation. It will also allow an ALJ to deny a motion to intervene if the requirements of this section are not met or if the ALJ determines that granting the motion to intervene will materially prejudice existing parties or unduly delay adjudication of the proceeding. A party who is granted full or limited intervenor status will be a party to the proceeding as explained in paragraph (a)(5).

Under paragraph (b), a person or entity may also seek amicus curiae status. While requests for amicus curiae status occur infrequently, additional briefing submitted by interested persons and entities can provide a useful analysis of the issues. To request amicus curiae status, a person or entity will be required to file a written motion under paragraph (b)(1) that explains how the amicus brief will contribute to a resolution of the issues. The ALJ will have the discretion to grant or deny the motion under paragraph (b)(2). A person or entity granted amicus curiae status will not be a party to the proceeding under paragraph (b)(3) but will be allowed to file a written amicus brief that must be served on all other parties to the proceeding in accordance with paragraph (b)(4).

§ 4.109 Notice of Appearance, Substitution of Attorneys, and Attorney Withdrawal

DCHD does not currently have a regulation governing notices of appearance, the substitution of attorneys, or the withdrawal of an attorney from the proceeding. This regulation will ensure that all parties and the ALJ have a clear understanding about which parties are represented and who is providing that representation. It will also ensure proper service of pleadings, notices, orders, and decisions.

Paragraph (a) will require that an attorney or other representative file and serve a notice of appearance and provide prompt notice of any changes in

legal representation. Paragraph (b) will allow parties to substitute attorneys by filing a notice of substitution that contains the contact information for the new attorney. The substitution will be effective upon filing.

Paragraph (c) will allow an attorney to withdraw from a proceeding by filing a written motion. The attorney filing the motion will be required to serve the motion on all parties to the proceeding and the attorney's client(s). To ensure that a withdrawing attorney's client(s) will not be unfairly prejudiced by the withdrawal, the motion will be required to contain: (1) pertinent contact information for the attorney's client(s); (2) a statement explaining why the withdrawal will not unfairly prejudice the attorney's client(s); and (3) a statement that the attorney has taken appropriate steps to protect the interests of the client(s) such as providing reasonable notice, allowing adequate time for the employment of another attorney, and surrendering files related to the proceeding. Under paragraph (c)(2), a motion to withdraw will not be effective until the ALJ rules on the motion, which could be conditioned or denied by the ALJ to avoid prejudice to the attorney's client(s) and other parties.

§ 4.110 Voluntary Withdrawal and Stipulated Dismissal

It is not uncommon for individual parties to seek a voluntary withdrawal and dismissal of a proceeding or for all parties to jointly stipulate to a dismissal of a proceeding. This provision explains the procedures for requesting a voluntary withdrawal or stipulated dismissal and states when a dismissal becomes effective. For a voluntary withdrawal, paragraph (a) will require that the party initiating the proceeding file and serve a motion to dismiss that confirms the party's intention to voluntarily withdraw from the proceeding. The voluntary withdrawal will become effective when the ALJ issues the order of dismissal. When all parties to a proceeding agree and stipulate to the dismissal of a proceeding, paragraph (b) will allow the parties to file and serve a joint motion to dismiss that becomes effective when the ALJ issues an order dismissing the proceeding.

§ 4.111 Summary Judgment

This summary judgment provision codifies DCHD's current practices for resolving proceedings when there is no genuine dispute as to any material fact. At present, ALJs in DCHD generally allow litigants to file motions for summary judgment seeking full or partial relief, and the IBLA has long recognized this procedure as an appropriate means of resolving issues without a hearing. See,
e.g., 06 Livestock Company,
192 IBLA 323, 33435 (2018);
Larson
v.
BLM (On Reconsideration),
129 IBLA 250, 252 (1994). Although ALJs are not bound by the FRCP, this rule roughly parallels the procedures and standards set forth in FRCP 56. However, this rule has been tailored for administrative proceedings before DCHD and modified to provide additional instructions about formatting, deadlines, and content requirements for motions and responses.

Paragraph (a) provides a brief overview of the summary judgment process and standards to better serve pro se litigants and others who may be less familiar with the process. It also explains an ALJ's authority to resolve a proceeding through summary judgment when no genuine dispute exists as to any material fact and the movant is entitled to a decision as a matter of law. When an ALJ grants a summary judgment motion that completely resolves a matter, an evidentiary hearing is unnecessary and will not be conducted. See,
e.g., Wroten Land & Cattle Co.,
197 IBLA 13, 29-31 (2021) (grazing case).

Consistent with IBLA case law, paragraph (b) expressly acknowledges that while FRCP 56 does not apply to proceedings before DCHD, corresponding provisions in the federal summary judgment rule at FRCP 56—and Federal case law interpreting FRCP 56—may serve as useful guidance in administrative proceedings. See
Dannelle and Chad Hensley,
195 IBLA 345, 354-55 (2020). Thus, litigants and ALJs may continue to cite and rely on the extensive body of existing federal case law interpreting and analyzing the relevant standards applicable to summary judgments so long as that federal law does not conflict with the provisions of § 4.111. See,
e.g., Anderson
v.
Liberty Lobby, Inc.,
477 U.S. 242, 248-50 (1986);
Celotex Corp.
v.
Catrett,
477 U.S. 317, 322-23 (1986).

Under paragraph (c), parties will receive explicit instructions regarding the formatting and required content for summary judgment motions filed before DCHD. This includes compliance with the filing, service, and document formatting provisions at §§ 4.102 and 4.103. As explained in paragraph (c)(1), the timing of the summary judgment process must comply with any deadlines or scheduling orders established by the ALJ. This allows the ALJ to manage the process to ensure fair scheduling for all parties while also preventing unexpected or last-minute filings that disrupt discovery or hearing preparations. Under paragraph (c)(2), standard page limits will apply to summary judgment motions unless the ALJ orders otherwise. To aid in the efficient and timely resolution of motions, paragraph (c)(4) expressly identifies the summary judgment standard, and paragraph (c)(5) lists the expected contents of a summary judgment motion.

Paragraph (d) addresses the requirements for responses, which includes compliance with the filing, service, and document formatting provisions at §§ 4.102 and 4.103. Paragraphs (d)(1), (d)(2), and (d)(3) specify the deadlines for filing responses and the applicable page limits. This rule also recognizes and authorizes the filing of cross-motions for summary judgment. Parties before DCHD frequently file cross-motions for summary judgment, and the process has proven to be an effective method for resolving proceedings. See 2 Moore's Manual—Federal Practice and Procedure sec. 17 (noting that 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

may take official notice of a factual matter in the same manner as a Federal district court may take judicial notice. Official notice is described in subpart B of 43 CFR part 4 at rule § 4.24(b) (describing types of records and matters subject to official notice), in the Federal Rules of Evidence (FR

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-30358. Public record. Not legal advice.