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Notes

43 C.F.R. §§ 4.22–4.27

6 sections in range

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

43 C.F.R. § 4.22

(a)
Retention of documents—
(1)
In general. All documents received in evidence in a hearing or submitted for the record in any proceeding before an OHA Unit will be retained in the official record of the proceedings.
(2)
Withdrawal and substitution of original documents. The substitution of original documents may be permitted while the case is pending upon the submission of true copies. When a decision has become final for the Department, an Appeals Board in its discretion may, upon request and after notice to the other party or parties, permit the withdrawal of original documents in whole or in part. As a condition of granting permission for such withdrawal, the Appeals Board may require the substitution of true copies in its discretion and as necessary to ensure an accurate record of the proceeding.
(3)
Sealed against disclosure. Transcripts of testimony and/or documents received or reviewed pursuant to § 4.31 will be sealed against disclosure to unauthorized persons and retained with the official record, subject to the withdrawal and substitution provisions.
(b)
Record address information. At the time of initial filing, every person or entity who files a document in connection with any proceeding before OHA must provide their mailing address. A person or entity filing electronically must also provide the electronic mailing address that the person or entity intends to use in the proceeding.
(1)
Address changes. A person or entity who has provided their address in a proceeding must promptly file and serve upon other parties to the proceeding, written notice of any change to their address information with the OHA Unit in which the matter is pending.
(2)
Successors. The successors of a person or entity who has provided their address in a proceeding must promptly file notice of their own addresses.
(3)
Failure to provide or update a record address. A person or entity who fails to provide or update their address information as required is not entitled to notice or service in connection with the proceeding until they have provided or updated their address information.
(c)
Computation of time for filing and service. Except as otherwise provided by law, the following rules apply when computing any time period specified in a regulation, notice, order, or decision.
(1)
Exclude the day of the event that triggers the time period;
(2)
Count every day, including intermediate Saturdays, Sundays, and Federal holidays; and
(3)
Include the last day of the period, but if the last day is a Saturday, Sunday, Federal holiday, or other nonbusiness day, the period continues to run until the end of the next day that is not a Saturday, Sunday, Federal holiday, or other nonbusiness day.
(d)
Extensions of time.
(1)
The time for filing or serving any document may be extended by the presiding officer before whom the proceeding is pending, except for the time for filing a notice of appeal and except where such extension is contrary to law or regulation.
(2)
A request for an extension of time must be filed within the time allowed for the filing or serving of the document and must be filed in the same office in which the proceeding is pending.
Notes, amendments, and revision history

Source

Source: 90 FR 2390, Jan. 10, 2025, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

§4.23. Hearings or related proceedings.

43 C.F.R. § 4.23

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

Source

Source: 90 FR 2390, Jan. 10, 2025, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

§4.24. Basis of decision.

43 C.F.R. § 4.24

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

Source

Source: 90 FR 2390, Jan. 10, 2025, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

§4.25. Oral argument and status conferences.

43 C.F.R. § 4.25

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

Source

Source: 90 FR 2390, Jan. 10, 2025, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

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

43 C.F.R. § 4.26

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

Amendments

[90 FR 2390, Jan. 10, 2025; 90 FR 23291, June 2, 2025]

Source

Source: 90 FR 2390, Jan. 10, 2025, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

Amendments

[90 FR 2390, Jan. 10, 2025; 90 FR 23291, June 2, 2025]

§4.27. Ex parte communication and disqualification.

43 C.F.R. § 4.27

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

Amendments

[90 FR 2390, Jan. 10, 2025; 90 FR 23291, June 2, 2025]

Source

Source: 90 FR 2390, Jan. 10, 2025, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

Amendments

[90 FR 2390, Jan. 10, 2025; 90 FR 23291, June 2, 2025]