Hearing Process Concerning Acknowledgment of American Indian Tribes, 48451-48467 [2015-19612]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of the Secretary

[Federal Register Volume 80, Number 156 (Thursday, August 13, 2015)]
[Rules and Regulations]
[Pages 48451-48467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19612]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 4

[156A2100DD/AAKC001030/A0A501010.999900 253G]
RIN 1094-AA54


Hearing Process Concerning Acknowledgment of American Indian 
Tribes

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.

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SUMMARY: The Office of the Secretary is publishing this final rule 
contemporaneously and in conjunction with the Bureau of Indian Affairs 
final rulemaking (the BIA final rule) revising the process and criteria 
for Federal acknowledgment of Indian tribes. This rule establishes 
procedures for a new optional, expedited hearing process for 
petitioners who receive a negative proposed finding for Federal 
acknowledgment.

DATES: This rule is effective September 14, 2015.

FOR FURTHER INFORMATION CONTACT: Karl Johnson, Senior Attorney, Office 
of Hearings and Appeals, Departmental Cases Hearings Division, (801) 
524-5344; karl_johnson@oha.doi.gov. Persons who use a 
telecommunications device for the deaf may call the Federal Information 
Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Executive Summary of Rule

    This final rule establishes procedures for the hearing process, 
including provisions governing prehearing conferences, discovery, 
motions, an evidentiary hearing, briefing, and issuance by the 
administrative law judge (ALJ) of a recommended decision on Federal 
acknowledgment of an Indian tribe for consideration by the Assistant 
Secretary--Indian Affairs (AS-IA). This final rule complements the BIA 
final rule published in the July 1, 2015 Federal Register, 80 FR 37862, 
that revises 25 CFR part 83 to improve the processing of petitions for 
Federal acknowledgment of Indian tribes. These improvements include 
affording the petitioner an opportunity to request a hearing before an 
ALJ in the Departmental Cases Hearings Division (DCHD), Office of 
Hearings and Appeals (OHA), if the petitioner receives a negative 
proposed finding on Federal acknowledgment from the Office of Federal 
Acknowledgment (OFA).

[[Page 48452]]

    Our proposed rule also contained procedures for a new re-petition 
authorization process which the BIA proposed establishing in its 
proposed rule. Because the BIA is not incorporating that process into 
the BIA final rule, our final rule does not contain procedures for that 
process.
    The other primary differences between our proposed rule and this 
final rule are:
     This final rule allows only a DCHD ALJ to preside over the 
hearing process.
     Except under extraordinary circumstances, this final rule:
    (1) Does not allow discovery;
    (2) limits the scope of evidence admissible at hearing to 
documentation in the administrative record reviewed by OFA and 
testimony clarifying or explaining information in that documentation; 
and
    (3) limits witnesses to expert witnesses and OFA staff who 
participated in preparation of the negative proposed finding.
     This final rule extends a few of the deadlines in the 
proposed rule, including allowing 15 more days to file motions to 
intervene, while streamlining the hearing process overall by the 
aforementioned limits on discovery, the scope of evidence, and 
witnesses.
     This final rule does not incorporate the proposed rule's 
provision requiring direct testimony to be submitted in writing.
     This final rule establishes procedures for obtaining 
protective orders limiting disclosure of information that is 
confidential or exempt by law from public disclosure.

II. Comments on the Proposed Rule and the Department's Responses

    The proposed rule was published on June 19, 2014. See 79 FR 35129. 
We extended the initial comment deadline of August 18, 2014, to 
September 30, 2014, see 79 FR 44150, to comport with the BIA's 
extension of the comment period for its proposed rule. As more fully 
explained in the preamble to the BIA final rule, the Department held 
public meetings, teleconferences, and separate consultation sessions 
with federally recognized Indian tribes in July and August of 2014. 
During the public comment period, we received seven written comment 
submissions on our proposed rule.
    Some comments pertain to the BIA proposals to (1) eliminate the 
process for reconsideration of the AS-IA's determination by the 
Interior Board of Indian Appeals (IBIA) found at 25 CFR 83.1, (2) 
establish the opportunity for the hearing process under proposed 25 CFR 
83.38(a) and 83.39, and (3) establish the opportunity for the re-
petition authorization process under proposed 25 CFR 83.4. We address 
only briefly the comments we received on these and any other proposals 
made in the BIA proposed rule. Those proposals, along with additional 
comments which the BIA received, are more fully addressed in the BIA 
final rule.
    We have reviewed each of the comments received by us and have made 
several changes to the proposed rule in response to these comments. The 
following is a summary of comments received and our responses.

A. Eliminating the IBIA Reconsideration Process and Adding the Hearing 
Process

    The BIA's proposed rule would eliminate the process for IBIA 
reconsideration of the AS-IA's determination found at 25 CFR 83.11, and 
would replace it with a new hearing process under proposed 25 CFR 
83.38(a) and 83.39. The new process would be governed by procedures in 
our proposed rule. One commenter stated that the IBIA reconsideration 
process should be retained because it allows interested parties other 
than the petitioner to seek independent review of acknowledgment 
determinations that is not available under the proposed hearing 
process.
    Response: The BIA final rule retains the proposal to delete the 
IBIA reconsideration process and allows for a hearing on a negative 
proposed finding. See the responses to comments in the BIA final rule.

B. Re-Petition Authorization Process

    Proposed Sec. Sec.  4.1060 through 4.1063 identify procedures for 
re-petitioning under 25 CFR 83.4(b) of the BIA proposed rule. Under 
that proposed re-petition process, an OHA judge could authorize an 
unsuccessful petitioner to re-petition for Federal acknowledgment if 
certain conditions are met. One condition, identified by some 
commenters as the ``third-party veto,'' would require written consent 
for re-petitioning from any third party that participated as a party in 
an administrative reconsideration or Federal Court appeal concerning 
the unsuccessful petition. Two commenters opposed the proposed ``third-
party veto'' and one opposed allowing for any re-petitioning.
    Response: The final rule does not include the procedures for the 
re-petition authorization process because the BIA final rule did not 
incorporate that process. See the responses to comments in the BIA 
final rule.

C. Standard of Proof

    25 CFR 83.10(a) in the BIA proposed rule attempted to clarify the 
meaning of the ``reasonable likelihood'' standard of proof found at 25 
CFR 83.6(d). Section 4.1047 in our proposed rule repeated the language 
of proposed Sec.  83.10(a). One commenter supported the ``reasonable 
likelihood'' standard of proof in proposed Sec.  4.1047, while one 
commenter stated that the proposed definition for ``reasonable 
likelihood'' comes from the criminal law context and, as such, is too 
low.
    Response: In its final rule, the BIA concludes, in light of 
commenters' concerns that its proposed rule changed the standard of 
proof, that its final rule would retain the current ``reasonable 
likelihood'' standard of proof and discard the proposed interpreting 
language. This final rule does the same. See Sec.  4.1048. The 
Department will continue to interpret ``reasonable likelihood of the 
validity of the facts'' consistent with its interpretations in prior 
decisions and the plain language of the phrase, and will strive to 
prevent a trend toward a more stringent interpretation over time.

D. Notification of Local Governments

    A few commenters requested the addition of requirements to notify 
local governments of petitions, OFA proposed findings, and elections of 
hearings.
    Response: The BIA final rule requires more notice to local 
governments by adding that the Department will notify the local, 
county-level government in writing of the receipt of the petition and 
other actions, in addition to notifying the State attorney general and 
governor. See 25 CFR 83.22, 83.34, 83.39.

E. Opportunity for Third Parties To Request a Hearing and Intervene in 
Hearing Process

    25 CFR 83.38(a) in the BIA proposed rule would allow only a 
petitioner receiving a negative proposed finding to request a hearing. 
One commenter believed, in the interest of fairness, that other 
interested parties should be able to request a hearing after a positive 
proposed finding.
    Proposed Sec.  4.1021 would allow for intervention of right by any 
entity who files a motion to intervene demonstrating that the entity 
has an interest that may be adversely affected by the final 
determination. Several commentators asserted that State or local 
governmental entities should be recognized automatically as 
intervenors.
    Response: In its final rule the BIA adopts the proposed approach of 
allowing only a petitioner receiving a

[[Page 48453]]

negative proposed finding to request a hearing. See 25 CFR 83.38(a). 
The BIA explains, in part, that

[t]he Part 83 petitioning process is similar to other administrative 
processes uniquely affecting an applicant's status in that the 
applicant may administratively challenge a negative determination, 
but third parties may not administratively challenge a positive 
determination. . . . The [25 CFR part 83] process provides third 
parties with the opportunity to submit comments and evidence.

BIA Final Rule at 78. Responses to comments in the BIA final rule 
provide the BIA's complete explanation for adopting this approach.
    Our final rule adopts the proposed rule approach of allowing for 
intervention of right by any entity who files a motion to intervene 
demonstrating that the entity has an interest that may be adversely 
affected by the final determination. See Sec.  4.1021. Conditioning 
intervention on the filing of a motion showing such an interest is not 
a heavy burden. It allows other parties the opportunity to express 
opposing viewpoints to facilitate confirmation of whether the entity 
indeed has such an interest.

F. Hearing Process Time Limits

    Proposed Sec.  4.1050 would require issuance of a recommended 
decision within 180 days after issuance of the docketing notice, unless 
the ALJ issues an order finding good cause to issue the recommended 
decision at a later date. A few commenters stated that this time limit 
is too aggressive and recommended lengthening the time period. One 
added that, at a minimum, proposed Sec.  4.1050 should allow for an 
automatic 90-day extension of the time limit upon the petitioner's 
request and that the OHA judge should liberally grant further extension 
requests, especially where the petitioner needs more time to prepare 
its case due to resource limitations.
    Proposed Sec.  4.1021 would require that a motion to intervene be 
filed within 15 days after election of the hearing. A few commenters 
asserted that this time period is too short.
    25 CFR 83.38 in the BIA proposed rule would allow the petitioner 60 
days after the end of the comment period for a negative proposed 
finding to elect a hearing and/or respond to any comments. If the 
petitioner elects a hearing, the petitioner must list in its written 
election the witnesses and exhibits it intends to present at the 
hearing. One commenter stated that the 60-day period for the petitioner 
to provide witness and exhibit information is too short.
    Response: To promote efficiency but lessen the burden of complying 
with the 180-day time limit for the hearing process, the final rule 
retains the 180-day time limit while streamlining the hearing process 
by limiting discovery, the scope of evidence, and witnesses. See 
Sec. Sec.  4.1031, 4.1042, 4.1046. We do not anticipate that a 
petitioner's limited resources will substantially impede compliance 
with the time limit for several reasons. First, the petitioner should 
have already diligently gathered all relevant evidence and submitted it 
to OFA. The purposes of the hearing process are to allow for 
clarification of information in the OFA administrative record, to focus 
on the key issues and evidence, and to produce a recommended decision 
on those issues by an independent tribunal, which will ultimately 
promote transparency in and the integrity of the process. Second, in 
keeping with these purposes, the final rule limits discovery, the 
persons who may testify, and the scope of admissible evidence to 
documentation from OFA's administrative record and testimony clarifying 
and explaining the information in that documentation. See Sec. Sec.  
4.1031, 4.1042, 4.1046. These limits will lessen resource expenditures 
for all parties. Third, the final rule retains the proposed provision 
allowing the ALJ to extend the 180-day time limit for good cause. See 
Sec.  4.1051. Allowing a petitioner an automatic 90-day extension upon 
request does not promote efficiency or diligence and hence is less 
desirable than the proposed and adopted provision allowing for 
extensions for good cause.
    Some adjustments to timeframes have been made to address the 
comments, including doubling the time period for intervention from 15 
days to 30 days. See Sec.  4.1021. The BIA final rule also allows an 
extra 60 days for the petitioner to provide witness and exhibit 
information in the election of hearing by establishing that the 
petitioner's period to respond to comments on OFA's negative proposed 
finding and period for election of a hearing run consecutively rather 
than simultaneously. See 25 CFR 83.38.

G. Scope of the Hearing Record

    In the proposed rule, we invited comment on whether the hearing 
record should include all evidence in OFA's administrative record for 
the petition or be limited to testimony and exhibits specifically 
identified by the parties. A few commenters stated that the hearing 
record should encompass the whole administrative record plus any 
information submitted in the hearing.
    Response: A primary purpose of the hearing process is to inform the 
AS-IA's final determination by focusing in on the key issues and 
evidence and producing a recommended decision on those issues from an 
independent tribunal. To that end, under the final rule, the hearing 
record will not automatically include the entire administrative record 
reviewed by OFA, but only those portions which are considered 
sufficiently important to be offered by the parties as exhibits and to 
be admitted into evidence by the ALJ. While the AS-IA may consider not 
only the hearing record, but also OFA's entire administrative record, 
we believe that an independent review of the key issues and evidence 
will be invaluable to the AS-IA.
    The final rule does limit admissible evidence to documentation in 
the OFA administrative record and to testimony clarifying or explaining 
the information in that documentation. See Sec.  4.1046. The final rule 
also limits who may testify to expert witnesses and OFA staff who 
participated in preparation of the negative proposed finding. See Sec.  
4.1042. The ALJ may admit other evidence or allow other persons to 
testify only under extraordinary circumstances.
    These limits will afford the parties the opportunity to clarify the 
record, without expanding the record beyond what was before OFA. The 
limits will encourage the petitioner and all others to be diligent in 
gathering and presenting to OFA all their relevant evidence and 
discourage strategic withholding of evidence. This will ensure that 
OFA's proposed finding is based on the most complete record possible, 
allowing the ALJ to focus on discrete issues in dispute if a hearing is 
requested.

H. Disclosure of Confidential Information and Discovery

    The BIA received comments on its proposed rule expressing concern 
that petitions may contain confidential information that should be 
protected from disclosure. Those comments prompted the addition of a 
new section in this rule containing procedures for obtaining protective 
orders limiting disclosure of information which is confidential or 
exempt by law from public disclosure.
    A corresponding change has been made in one of the criteria for 
allowing discovery in Sec.  4.1031(b). Proposed Sec.  4.1031(b)(4) 
would require a showing ``[t]hat any trade secrets or proprietary 
information can be adequately safeguarded.'' The phrase ``trade secrets 
or proprietary information'' has been changed to ``confidential 
information''

[[Page 48454]]

to better reflect the type of information which may need safeguarding.
    Regarding discovery generally, proposed Sec.  4.1031 would allow 
for discovery by agreement of the parties or by order of the judge if 
certain criteria are met. Those criteria are similar to standards 
typically used by various tribunals.
    The final rule limits discovery more strictly, eliminating 
discovery by agreement of the parties, and requiring not only that 
those criteria be met, but also that extraordinary circumstances exist 
to justify the discovery. Consistent with these limitations, the final 
rule removes many provisions addressing the details of discovery, 
allowing the ALJ to exercise his or her discretion to tailor discovery 
in the rare instance where extraordinary circumstances exist.
    These changes were prompted in part by general comments that the 
proposed 180-day time limit for the hearing process is too short. Also 
influential were more specific comments that petitioners may lack 
resources to engage in prehearing procedures or to prepare their cases 
in a timely manner in light of the expedited nature of the hearing 
process.
    Discovery can be time-consuming and require large expenditures of 
resources, and thus could be burdensome for petitioners and other 
parties as well, especially given the time sensitive nature of the 
expedited hearing process. Limiting discovery will alleviate those 
burdens, leaving more time and resources for other case preparation 
activities.
    This benefit outweighs the impediment to case preparation, if any, 
that limiting discovery may pose. The need for discovery should be rare 
in light of the case preparation that occurs prior to the petitioner's 
election of a hearing, the limited scope of the hearing record, and the 
availability of OFA's administrative record to all parties. In the rare 
instances where extraordinary circumstances justify discovery, the ALJ 
may customize it to serve justice while striving to keep case 
preparation moving forward in a timely manner.

I. Presiding Judge Over Hearing

    In the proposed rule, any of several different employees of OHA 
could be assigned to preside as the judge over the hearing process: An 
administrative law judge appointed under 5 U.S.C. 3105, an 
administrative judge (AJ), or an attorney designated by the OHA 
Director. See Sec.  4.1001, definition of ``judge.'' We invited 
comments on who is an appropriate OHA judge to preside. Two commenters 
stated that an ALJ is most appropriate. One preferred an AJ. Most 
identified impartiality or independence as a desirable trait. One 
stated that regardless of what type of judge presides over the hearing, 
the judge should have some background in Indian law.
    Response: The final rule establishes that the judge presiding over 
hearings will be a DCHD ALJ (see Sec.  4.1001, definition of ALJ), 
because DCHD ALJs are experienced and skilled at presiding over 
hearings and managing procedural matters to facilitate justice. They 
also have some knowledge of Indian law and their independence is 
protected and impartiality fostered by laws which, among other things, 
exempt them from performance ratings, evaluation, and bonuses (see 5 
U.S.C. 4301(2)(D), 5 CFR 930.206); vest the Office of Personnel 
Management rather than the Department with authority over the ALJs' 
compensation and tenure (see 5 U.S.C. 5372, 5 CFR 930.201-930.211); and 
provide that most disciplinary actions against ALJs may be taken only 
for good cause established and determined by the Merit Systems 
Protection Board on the record after opportunity for a hearing (see 5 
U.S.C. 7521).

J. Conduct of the Hearing

    One commenter strongly supported the provisions recognizing a 
petitioner's right to orally cross-examine OFA staff who participated 
in preparation of the negative proposed finding, requiring submittal of 
written direct testimony prior to the hearing for efficiency, and 
allowing parties to supplement and amend testimony when absolutely 
necessary. This commenter also stated that the proposed rule would 
require only senior Department employees to be subject to subpoena or 
discovery. The commenter urged us to clarify that all OFA staff and 
consultants who participated in preparation of the proposed finding 
would be subject to discovery and subpoena under proposed Sec.  
4.1031(h)(3) and proposed Sec.  4.1037(a)(2).
    Response: These proposed sections would simply limit deposing and 
issuing subpoenas to senior Department employees to instances where 
certain conditions are met; the sections would not limit discovery and 
subpoenas for other OFA staff and consultants who participated in 
preparation of the negative proposed finding. Nevertheless, proposed 
Sec.  4.1037(a)(2), redesignated Sec.  4.1035(a)(2), has been reworded 
to clarify this with respect to subpoenas. The provisions of proposed 
Sec.  4.1031(h)(3) pertaining to depositions have not been changed but 
they have been moved to Sec.  4.1033(b)(3).
    Please note, however, with respect to all persons, the final rule 
limits discovery to situations where extraordinary circumstances exist. 
See Sec.  4.1031. Under the final rule, in the absence of extraordinary 
circumstances, OFA staff who participated in the preparation of the 
negative proposed finding still may be deposed for the preservation of 
testimony, as opposed to for discovery purposes, and may be subpoenaed. 
However, if the staff member is a senior Department employee, the 
deposition or subpoena will be allowed only if certain conditions are 
met. See Sec. Sec.  4.1033(b)(3) and 4.1035(a)(2).
    The proposed rule's requirement to submit direct testimony in 
writing prior to the hearing is not being incorporated into the final 
rule. This requirement was designed to shorten the hearing to 
facilitate compliance with the 180-day time limit for issuance of the 
recommended decision. However, the requirement is burdensome for the 
parties and the burden is no longer justified because the final rule 
adopts other measures to streamline the hearing process. Those measures 
include limiting discovery, the scope of admissible evidence, and the 
witnesses who may testify. See Sec. Sec.  4.1031, 4.1042, and 4.1046.

K. Miscellaneous Comments

1. Facilitating Petitioner Participation
    One commenter made suggestions for facilitating petitioner 
participation in the hearing process, stating that hearings should be 
held in a location near the petitioner, that telephonic conferences 
should be allowed, and that filing and service of documents by priority 
mail should be allowed as an alternative to the proposed rule's 
requirements that overnight mail or delivery services be used for both 
filing and service. See proposed Sec.  4.1012(b) and proposed Sec.  
4.1013(c). These suggestions are based in part upon the commenter's 
stated concern that a petitioner's participation may be impeded by a 
lack of resources. The commenter also observed that some petitioners 
may be in remote locations without access to overnight mail or delivery 
services.
    Response: A standard hearing procedure is for the ALJ to consider 
the convenience of all parties, their representatives, and witnesses in 
setting a place for hearing, but not to unduly favor the preferences of 
one party over another. A provision mandating that the hearing be held 
in a location near the petitioner would deviate from this fair standard 
in all cases without sufficient

[[Page 48455]]

justification. Indeed, in some cases the petitioner itself may not 
favor a hearing location near to it, such as where its witnesses are 
not located near the petitioner. The selection of a hearing location is 
best left to the discretion of the ALJ. To guide the exercise of that 
discretion, a provision has been added to the final rule incorporating 
the fair standard that the ALJ will consider the convenience of all 
parties, their representatives, and witnesses in setting a place for 
hearing.
    Regarding telephonic conferences, both the proposed and final rule 
include a provision that conferences will ordinarily be held by 
telephone. See Sec.  4.1022(d) and proposed Sec.  4.1022(c).
    The suggestion to allow for filing and service of documents by 
priority mail has not been adopted. Requiring filing and service by 
overnight delivery promotes compliance with time limits for specific 
actions as well as with the overall time limit for the hearing process 
of 180 days. The use and cost of overnight delivery can be avoided by 
filing and serving a document by facsimile transmission and regular 
mail if the document is 20 pages or less. See Sec.  4.1012(b)(iii). 
Given the limits on discovery and admissible evidence, we do not 
anticipate a large volume of exchanges of documents exceeding 20 pages. 
Nevertheless, to address the rare situation where mandating strict 
compliance with the prescribed filing and service methods would be 
unfair, the final rule adds language to both Sec. Sec.  4.1012(b) and 
4.1013(c) giving the ALJ discretion to allow deviation from those 
methods.
2. Summary Decision Procedures
    In the proposed rule we included summary decision procedures, see 
proposed Sec.  4.1023, and invited comments on whether the final rule 
should include them. A commenter stated that they will be beneficial 
but that there should be a safeguard to address situations where 
petitioners lack the resources to respond to motions for summary 
decision.
    Response: We agree that summary decision procedures should be 
included in the final rule because they will be beneficial, but we do 
not believe that such a safeguard is warranted. If a petitioner elects 
to initiate the hearing process, fairness dictates that it should be 
prepared to expend resources to defend its position. Summary decision 
procedures are designed to minimize those expenditures by avoiding 
costly hearings, where appropriate, thus conserving the resources of 
all parties. And, implementation of such a safeguard would entail 
expenditures in resolving whether petitioner's financial status merits 
bypassing the summary decision procedures.
    Further, the final rule modifies the summary decision procedures in 
the proposed rule to conform to the present version of Rule 56 of the 
Federal Rules of Civil Procedure. This includes the addition of a 
provision that allows the ALJ to issue appropriate orders other than a 
recommended summary decision where a party fails to properly address 
another party's assertion of fact. See Sec.  4.1023(e). Thus, if a 
party does not respond properly to a motion for summary decision 
because of a lack of resources or otherwise, the ALJ has discretion 
whether or not to issue a recommended summary decision. Even if the ALJ 
feels that summary decision in a given case is technically proper, 
sound judicial policy and the proper exercise of judicial discretion 
may prompt the ALJ to deny the motion and permit the case to be 
developed fully at hearing since the movant's ultimate legal rights can 
always be protected in the course of or even after hearing. See, e.g., 
Olberding v. U.S. Dept. of Defense, Dept. of the Army, 564 F.Supp. 907 
(S.D. Iowa 1982), aff'd 709 F.2d 621. Accordingly, flexible summary 
decision procedures are included in the final rule without a specific 
safeguard for petitioners lacking resources.
3. DNA Evidence
    One commenter stated that the proposed rule should allow DNA 
results to be used to determine ``Indian Blood Line'' and qualify 
people as ``Indian.''
    Response: DNA results may be admitted into evidence if they satisfy 
the generally applicable requirements for the admissibility of evidence 
found at Sec.  4.1046(a), including that evidence be probative. The ALJ 
is experienced and skilled at evaluating the admissibility of evidence 
and there is no good justification for including in the final rule a 
provision specifically addressing the admissibility of DNA results.

III. Section-by-Section Analysis

    The following discussion briefly describes the changes the final 
rule makes to the proposed rule, while the complete, final regulatory 
text follows this section. We do not discuss regulations that have not 
been changed or that were changed only in minor ways such as by 
correcting regulatory citations, restyling, or substituting the term 
``ALJ'' for ``judge'' or ``DCHD'' for ``OHA,'' see Sec.  4.1001 
discussed below. The reader may wish to consult the preamble of the 
proposed rule and the ``Comments on the Proposed Rule and the 
Department's Responses'' portion of this preamble for additional 
explanation of the regulations.

Sec.  4.1001 What terms are used in this subpart?

    This section in the proposed rule contained definitions for ``OHA'' 
and ``judge,'' with judge being defined to include several different 
employees of OHA who could be assigned to preside over the hearing 
process: an administrative law judge appointed under 5 U.S.C. 3105, an 
administrative judge (AJ), or an attorney designated by the OHA 
Director. The definitions of ``OHA'' and ``judge'' have been removed 
and replaced with definitions ``DCHD'' and ``ALJ,'' respectively, so 
that only a DCHD ALJ may preside over the hearing process. Those terms 
are substituted for OHA and judge in many other sections of this final 
rule.
    Because the final rule removes proposed Sec. Sec.  4.1060 through 
4.1063 containing the re-petition authorization process, the 
definitions of ``re-petition authorization process'' and ``unsuccessful 
petitioner'' in this section of the proposed rule have also been 
removed and the definition of ``representative'' has been modified.

Sec.  4.1002 What is the purpose of this subpart?

    Because the final rule removes proposed Sec. Sec.  4.1060 through 
4.1063 containing the re-petition authorization process, those portions 
of this section pertaining to that process have also been removed: 
Paragraph (b) and the reference to that process in paragraph (c). 
Accordingly, paragraph (c) has been redesignated paragraph (b).

Sec.  4.1003 Which general rules of procedure and practice apply?

    Because the final rule removes proposed Sec. Sec.  4.1060 through 
4.1063 containing the re-petition authorization process, those portions 
of this section pertaining to that process have also been removed: 
Paragraph (d) and the reference to that process in paragraphs (a), (b), 
and (c). The remaining text of Sec.  4.1003 has been rearranged but not 
altered in meaning, except for the following. Because proposed Sec.  
4.1017(a) has been modified to preclude ex parte communications in 
accordance with 43 CFR 4.27, proposed Sec.  4.1003 has been modified to 
state that the provisions of 43 CFR part 4, subpart B do not apply, 
``except as provided in Sec.  4.1017(a).''

[[Page 48456]]

Sec.  4.1010 Who may act as a party's representative, and what 
requirements apply to a representative?

    Because the final rule removes proposed Sec. Sec.  4.1060 through 
4.1063 containing the re-petition authorization process, that portion 
of this section referencing that process has also been removed.

Sec.  4.1012 Where and how must documents be filed?

    Because, under the final rule, only an ALJ employed by DCHD may 
preside over the hearing process, the place of filing has been changed 
to DCHD. In the proposed rule, this section provides that documents 
must be filed with the Office of the Director, OHA, because several 
different types of OHA employees from various OHA organizations could 
be assigned to serve as the judge presiding over the hearing process. 
This section provides relevant contact information for DCHD, and 
identifies the methods by which documents can be filed there.

Sec.  4.1014 What are the powers of the ALJ?

    Because the final rule modifies Sec.  4.1031 to limit discovery to 
situations where extraordinary circumstances exist, the ALJ's listed 
power in this section to authorize discovery has been qualified so that 
discovery may be authorized ``under extraordinary circumstances.'' The 
final rule also adds to this section's list of ALJ powers the power to 
impose non-monetary sanctions for a person's failure to comply with an 
ALJ order or provision of this subpart. This addition substitutes for 
proposed Sec.  4.1036, which pertained to the imposition of sanctions 
and which has been eliminated. See Sec.  4.1036.

Sec.  4.1017 Are ex parte communications allowed?

    Proposed Sec.  4.1017 prohibits ex parte communications in 
accordance with 5 U.S.C. 554(d), which applies only to adjudications 
required by statute to be determined on the record after opportunity 
for an agency hearing. Because the hearing process is not such an 
adjudication, Sec.  4.1017 has been reworded to prohibit ex parte 
communications in accordance with 43 CFR 4.27(b). While Sec.  4.27(b) 
does not have the section 554(d) prohibition against the presiding 
hearing officer being responsible to or subject to the supervision or 
direction of the investigating or prosecuting agency, this difference 
is immaterial because ALJs are not responsible to or subject to the 
supervision or direction of OFA or the AS-IA.

Sec.  4.1019 How may a party submit prior Departmental final decisions?

    In furtherance of the Department's policy of applying each 
criterion for Federal acknowledgment consistently with, and no more 
stringently than, its application in prior Departmental final 
decisions, Sec.  4.1019 has been added to identify how a party may 
submit prior decisions for the ALJ's consideration. The ALJ will 
consider proper submittals of relevant Departmental final decisions and 
the ALJ's recommended decision should be consistent therewith.

Sec.  4.1020 What will DCHD do upon receiving the election of hearing 
from a petitioner?

    The BIA's final companion rule changes the place for filing a 
petitioner's election of hearing from OFA, as proposed, to the DCHD 
(within OHA). See 25 CFR 83.38(a). To reflect this change, the final 
rule slightly modifies Sec.  4.1020 and revises its title to read: 
``What will DCHD do upon receiving the election of hearing from a 
petitioner?'' Also, under the final rule, OFA will not be sending the 
entire administrative record to DCHD, but instead will send only a copy 
of the proposed finding, critical documents from the administrative 
record that are central to the portions of the negative proposed 
finding at issue, and any comments and evidence and responses sent in 
response to the proposed finding. See 25 CFR 83.39(a).

Sec.  4.1021 What are the requirements for motions for intervention and 
responses?

    This section doubles the period for filing a motion to intervene 
from the proposed 15 days to 30 days after issuance of the hearing 
election notice under 25 CFR 83.39(a). Another modification pertains to 
the proposed provisions requiring that a motion to intervene include 
the movant's position with respect to the issues of material fact 
raised in the election of hearing and precluding an intervenor from 
raising issues of material fact beyond those raised in the election. 
See proposed Sec.  4.1021(b)(2) and (f)(3). Those provisions have been 
modified to apply not only to issues of material fact, but also to 
issues of law. See Sec.  4.1021(b)(2) and (f)(3).
    The final rule also eliminates proposed paragraph (e)(4), which 
states that the ALJ, in determining whether permissive intervention is 
appropriate, will consider ``[t]he effect of intervention on the 
Department's implementation of its statutory mandates.'' This language, 
like much of the proposed rule, was patterned after language in the 
hydropower hearing regulations at 43 CFR part 45. The statutory 
provisions governing those hearings imposed certain requirements, 
including that the hearing process be completed in 90 days. There are 
no similar statutory mandates applicable to the hearing process 
addressed in this rule. Therefore, paragraph (e)(4) has been 
eliminated.

Sec.  4.1022 How are prehearing conferences conducted?

    This section extends the deadline for conducting the initial 
prehearing conference from the proposed 35 days to 55 days after 
issuance of the docketing notice, because the preceding deadline for 
filing a motion to intervene is being extended under Sec.  4.1021. This 
section also removes written testimony from the list of topics for 
discussion at the initial prehearing conference under paragraph (a) and 
removes discovery from that list and the topics for discussion at the 
parties' meeting under paragraph (e). These topics have been removed 
because they will rarely be discussed, given that the final rule 
restricts the use of discovery to extraordinary circumstances and 
eliminates the requirement in proposed Sec.  4.1042 to submit direct 
testimony in writing.

Sec.  4.1023 What are the requirements for motions for recommended 
summary decision, responses, and issuance of a recommended summary 
decision?

    This section has been reorganized and reworded to conform to the 
latest version of Rule 56 of the Federal Rules of Civil Procedure. Most 
of the changes are not substantive. Paragraph (e) does afford the ALJ 
more flexibility in addressing situations where a party fails to 
properly support an assertion of fact or fails to properly address 
another party's assertion of fact, allowing the ALJ to issue any 
appropriate order. Paragraph (f) makes explicit the ALJ's authority to 
issue, after giving notice and a reasonable opportunity for the parties 
to respond, a recommended summary decision independent of a motion for 
recommended summary decision. References to forms of discovery have 
been eliminated from the list of materials used to support a parties' 
position because the final rule restricts discovery to extraordinary 
circumstances and we expect that the use of discovery will be rare.

Sec.  4.1031 Under what circumstances will the ALJ authorize a party to 
obtain discovery of information?

    Proposed Sec.  4.1031 would allow for discovery by agreement of the 
parties or by order of the judge if the certain

[[Page 48457]]

criteria in paragraph (b) are met. Those criteria are similar to 
standards typically used by various tribunals.
    This section of the final rule limits discovery more strictly, 
requiring not only that those criteria be met, but also that 
extraordinary circumstances exist to justify the discovery. Further, 
discovery by agreement of the parties has been eliminated.
    Because of these changes and the expectation that the use of 
discovery will be rare, this section has been renamed and modified as 
follows: (1) Proposed paragraphs (f) and (g), addressing discovery of 
materials prepared for hearing and facts known or opinions held by 
experts, and proposed paragraph (i), pertaining to completion of 
discovery, have been eliminated; and (2) proposed paragraph (h), which 
would limit depositions to those for the purpose of preserving 
testimony as opposed to for discovery purposes, has also been 
eliminated. However, the criteria in proposed paragraph (h) for the ALJ 
to authorize depositions for preserving testimony have been moved to a 
new Sec.  4.1033. The effect of modification (2) is that depositions 
for discovery purposes may now be allowed, but, like other discovery, 
only under extraordinary circumstances and if otherwise in accordance 
with Sec.  4.1031.
    Consistent with the final rule's extension of the deadlines for 
filing motions to intervene and conducting the initial prehearing 
conference, this section also extends the deadlines for filing 
discovery motions, if any, from the proposed 20 days to 30 days after 
issuance of the docketing notice for discovery sought between the 
petitioner and OFA and from the proposed 30 days to 50 days after 
issuance of the docketing notice for discovery sought between a full 
intervenor and another party.
    One of the criteria for allowing discovery in proposed paragraph 
(b) is ``[t]hat any trade secrets or proprietary information can be 
adequately safeguarded.'' The phrase ``trade secrets or proprietary 
information'' has been changed to ``confidential information.''

Sec.  4.1032 When must a party supplement or amend information?

    Because of the final rule's stricter limitations on discovery and 
the expectation that the use of discovery will be rare, proposed Sec.  
4.1032(a), addressing supplementation or amendment of discovery 
responses, has been deleted and the other paragraphs have been 
redesignated accordingly. For the same reason, the deadline for 
updating witness and exhibit lists has been changed from the proposed 
10 days after the date set for completion of discovery to 15 days prior 
to the hearing date, unless otherwise ordered by the ALJ.

Sec.  4.1033 What are the requirements for written interrogatories?

    Proposed Sec.  4.1033 pertains to written interrogatories. Because 
of the final rule's stricter limitations on discovery and the 
expectation that the use of discovery will be rare, proposed Sec.  
4.1033 has been eliminated and a new Sec.  4.1033, pertaining to 
depositions for the purpose of preserving testimony, has been added.

Sec.  4.1033 Under what circumstances will the ALJ authorize a party to 
depose a witness to preserve testimony?

    Proposed Sec.  4.1031(h) contains criteria for the ALJ to authorize 
depositions for the purpose of preserving testimony. Proposed Sec.  
4.1034 contained a long delineation of procedures for those 
depositions. Section 4.1033 is a new, much shorter section pertaining 
to depositions for preserving testimony, and states that depositions 
for discovery purposes are governed by Sec.  4.1031.
    This section incorporates the criteria in proposed Sec.  4.1031(h) 
and the requirements for a motion and notice for a deposition in 
proposed Sec.  4.1034(a). Both proposed Sec.  4.1031(h) and proposed 
Sec.  4.1034 have been eliminated.
    We have created a much shorter deposition section because we expect 
that depositions will be conducted rarely, given the new limits on the 
scope of the hearing record and on the persons who may testify. In the 
absence of the long delineation of procedures, the ALJ may customize 
the deposition procedures to serve justice while striving to keep case 
preparation moving forward in a timely manner.

Sec.  4.1034 What are the requirements for depositions?

    Proposed Sec.  4.1034, containing a long delineation of procedures 
for depositions for preserving testimony, has been eliminated. A new 
Sec.  4.1033 has been added, as explained in the immediately preceding 
paragraphs, to address depositions for preserving testimony.

Sec.  4.1034 What are the procedures for limiting disclosure of 
information which is confidential or exempt by law from public 
disclosure?

    This new section is being added to establish procedures for 
obtaining protective orders limiting disclosure of information which is 
confidential or exempt by law from public disclosure. Under this 
section, a party or a prospective witness or deponent may file a motion 
requesting a protective order to limit from disclosure to other parties 
or to the public a document or testimony containing information which 
is confidential or exempt by law from public disclosure. Ordinarily, 
documents and testimony introduced into the public hearing process are 
presumed to be public so this section requires the movant to describe 
the information sought to be protected and explain, among other things, 
why it should not be disclosed and how disclosure would be harmful. In 
issuing a protective order, the ALJ may make any order which justice 
requires to protect the person, consistent with the mandatory public 
disclosure requirements of the Freedom of Information Act, 5 U.S.C. 
552(b), and other applicable law.

Sec.  4.1035 How can parties request documents, tangible things, or 
entry on land?

    Proposed Sec.  4.1035 pertains to requests for the production of 
documents and other tangible things. Because of the final rule's 
stricter limitations on discovery and the expectation that the use of 
discovery will be rare, proposed Sec.  4.1035 has been eliminated.

Sec.  4.1036 What sanctions may the judge impose for failure to comply 
with discovery?

    Proposed Sec.  4.1036 delineates the circumstances under which the 
ALJ could impose sanctions and the types of sanctions imposable. The 
focus is on sanctions for failures relating to discovery. Because of 
the final rule's stricter limitations on discovery and the expectation 
that the use of discovery will be rare, proposed Sec.  4.1036 has been 
eliminated. However, a shorter provision acknowledging the ALJ's power 
to impose sanctions has been added to Sec.  4.1014.

Sec.  4.1035 What are the requirements for subpoenas and witness fees?

    Because of the elimination of proposed Sec.  4.1035 and proposed 
Sec.  4.1036, proposed Sec.  4.1037 has been redesignated Sec.  4.1035. 
Paragraph (a)(2) of this section has been reworded to clarify that a 
party may subpoena any OFA employee who participated in the preparation 
of the negative proposed finding, except if the employee is a senior 
Department employee, the party must show that certain conditions are 
met.
    A new paragraph (d)(3)(ii) has been added to this section because 
of the final rule's new limits on witnesses and

[[Page 48458]]

the scope of admissible evidence. See Sec. Sec.  4.1042 and 4.1046. 
That paragraph identifies the following as a justification for the ALJ 
to quash or modify a subpoena: The subpoena ``[r]equires evidence 
beyond the limits on witnesses and evidence found in Sec. Sec.  4.1042 
and 4.1046.'' Proposed paragraphs (d)(3)(ii) and (d)(3)(iii) have been 
redesignated as (d)(3)(iii) and (d)(3)(iv), respectively.

Sec.  4.1040 When and where will the hearing be held?

    Proposed Sec.  4.1040 provides that the hearing would generally be 
held ``within 20 days after the date for completion of discovery,'' 
which would be approximately within 90 days after issuance of the 
docketing notice. Because of the final rule's stricter limitations on 
discovery and the expectation that the use of discovery will be rare, 
the quoted language has been changed to ``within 90 days after the date 
DCHD issues the docketing notice under Sec.  4.1020(a)(3).''
    With respect to where the hearing will be held, this section states 
that the ALJ ``will consider the convenience of all parties, their 
representatives, and witnesses in setting the time and place for 
hearing.''

Sec.  4.1041 What are the parties' rights during the hearing?

    Proposed Sec.  4.1041(b) provides that the petitioner would have 
the right to cross-examine OFA staff who participated in the 
preparation of the negative proposed finding. Because this provision 
might be interpreted as precluding other parties from cross-examining 
such staff, Sec.  4.1041 has been reorganized and reworded to make 
clear that each party has the right to cross-examine such staff if 
called as a witness by another party.

Sec.  4.1042 What are the requirements for presenting testimony?

    Proposed Sec.  4.1042 has been renamed and redesignated Sec.  
4.1043.

Sec.  4.1042 Who may testify?

    The final rule adds this section which limits the persons who may 
testify, except under extraordinary circumstances, to (1) persons who 
qualify as expert witnesses, and (2) OFA staff who participated in the 
preparation of the negative proposed finding.

Sec.  4.1043 What are the methods for testifying?

    Proposed Sec.  4.1042 has been renamed and redesignated Sec.  
4.1043. The provisions in proposed Sec.  4.1042 requiring the submittal 
of direct testimony in writing and detailing the requirements for 
written testimony have been eliminated. Proposed Sec. Sec.  
4.1042(c)(1) and (c)(2) contain minutiae for telephone testimony that 
are obvious matters of standard practice which have also been 
eliminated. The remainder of proposed Sec.  4.1042 has been reorganized 
and reworded and incorporated into Sec.  4.1043 without change in 
meaning.

Sec.  4.1044 How may a party use a deposition in the hearing?

    Proposed Sec.  4.1043 has been redesignated Sec.  4.1044.

Sec.  4.1045 What are the requirements for exhibits, official notice, 
and stipulations?

    Proposed Sec.  4.1044 has been redesignated Sec.  4.1045 and 
modified by adding paragraph (b) and redesignating the following 
paragraphs accordingly. Paragraph (b) recognizes the ALJ's authority, 
on his or her own initiative, to admit into evidence any document from 
OFA's administrative record, provided the parties are notified and 
given an opportunity to comment. This modification is consistent with 
the modification to Sec.  4.1023, which explicitly recognizes the ALJ's 
authority to issue, after giving notice and a reasonable opportunity 
for the parties to respond, a recommended summary decision independent 
of a motion for recommended summary decision.
    Proposed paragraph (c), redesignated paragraph (d) in the final 
rule, would allow the ALJ, at the request of any party, to take 
official notice of certain matters, including public records of any 
Department party. The term ``any Department party'' derives from 
procedures governing hydropower hearings at 43 CFR 45.54(c), is 
confusing in its application to the hearing process under these Federal 
acknowledgment regulations, and would allow the taking of official 
notice of matters in OFA's administrative record. The better mechanism 
for admitting into evidence materials from OFA's administrative record 
is the parties offering them for admission at hearing. Therefore, the 
provision has been reworded to allow the ALJ to take official notice of 
public records of the ``Department,'' except materials in OFA's 
administrative record.

Sec.  4.1046 What evidence is admissible at the hearing?

    Proposed Sec.  4.1045 has been redesignated Sec.  4.1046 and 
modified to limit the scope of admissible evidence to documentation in 
OFA's administrative record, and testimony clarifying or explaining the 
information in that documentation, except if the party seeking to admit 
the information explains why the information was not submitted for 
inclusion in OFA's administrative record and demonstrates that 
extraordinary circumstances exist justifying admission of the 
information.

Sec.  4.1047 What are the requirements for transcription of the 
hearing?

    Proposed Sec.  4.1046 has been redesignated Sec.  4.1047 and states 
that the hearing must be transcribed verbatim. This section also states 
that transcripts will be presumed to be correct, and includes 
procedures for correcting a transcript.

Sec.  4.1048 What is the standard of proof?

    Proposed Sec.  4.1047 has been redesignated Sec.  4.1048. Proposed 
Sec.  4.1047 attempted to clarify the meaning of the ``reasonable 
likelihood'' standard of proof found at 25 CFR 83.6(d). The final rule 
retains the current ``reasonable likelihood'' standard of proof and 
eliminates the proposed interpreting language.

Sec.  4.1049 When will the hearing record close?

    Proposed Sec.  4.1048 has been redesignated Sec.  4.1049 and 
modified to allow the ALJ to admit evidence after the close of the 
hearing record in accordance with the modification at Sec.  
4.1045(b)(1), which authorizes the ALJ to admit evidence on his or her 
own initiative. See Sec.  4.1045.

Sec.  4.1050 What are the requirements for post-hearing briefs?

    Proposed Sec.  4.1049 has been redesignated Sec.  4.1050.

Sec.  4.1051 What are the requirements for the ALJ's recommended 
decision?

    Proposed Sec.  4.1050 has been redesignated Sec.  4.1051.

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866 and 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. OIRA has determined 
that this rule is not significant.
    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

[[Page 48459]]

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 emphasizes further 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 Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. It will not result in the 
expenditure by State, local, or tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year. The 
rule's requirements will not result in a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions. Nor will this rule 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 because the rule is limited 
to Federal acknowledgment of Indian tribes.

D. Unfunded Mandates Reform Act

    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)

    Under the criteria in Executive Order 12630, this rule does not 
affect individual property rights protected by the Fifth Amendment nor 
does it involves a compensable ``taking.'' A takings implication 
assessment is therefore not required.

F. Federalism (E.O. 13132)

    Under the criteria in Executive Order 13132, this rule has no 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

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

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule has been reviewed to eliminate errors and 
ambiguity and written to minimize litigation; and is written in clear 
language and contains clear legal standards.

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

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments,'' 59 FR 22951 (May 4, 1994), supplemented by Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments, 65 FR 67249 (Nov. 6, 2000), and 512 DM 2, the Department 
has assessed the impact of this rule on Tribal trust resources and has 
determined that it does not directly affect Tribal resources. The rules 
are procedural and administrative in nature. However, the Department 
has consulted with federally recognized Indian tribes regarding the 
companion proposed rule being published concurrently by the BIA. That 
rule is an outgrowth of the ``Discussion Draft'' of the Federal 
acknowledgment rule, which the Department distributed to federally 
recognized Indian tribes in June 2013, and on which the Department 
hosted five consultation sessions with federally recognized Indian 
tribes throughout the country in July and August 2013. Several 
federally recognized Indian tribes submitted written comments on that 
rule. The Department considered each tribe's comments and concerns and 
has addressed them, where possible. The Department will continue to 
consult on that rule during the public comment period and tribes are 
encouraged to provide feedback on this proposed rule during those 
sessions as well.

I. Paperwork Reduction Act

    The information collection requirements are subject to an exception 
under 25 CFR part 1320 and therefore are not covered by the Paperwork 
Reduction Act.

J. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment because it is of an 
administrative, technical, and procedural nature. See 43 CFR 46.210(i). 
No extraordinary circumstances exist that would require greater review 
under the National Environmental Policy Act.

K. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

List of Subjects in 43 CFR Part 4

    Administrative practice and procedure, Hearing procedures, 
Indians--tribal government.


0
For the reasons stated in the preamble, the Department of the Interior, 
Office of the Secretary, amends part 4 of subtitle A in title 43 of the 
Code of Federal Regulations by adding subpart K to read as follows:

Subpart K--Hearing Process Concerning Acknowledgment of American 
Indian Tribes

Sec.

General Provisions

4.1001 What terms are used in this subpart?
4.1002 What is the purpose of this subpart?
4.1003 Which general rules of procedure and practice apply?
4.1004 How are time periods computed?

Representatives

4.1010 Who may represent a party, and what requirements apply to a 
representative?

Document Filing and Service

4.1011 What are the form and content requirements for documents 
under this subpart?
4.1012 Where and how must documents be filed?
4.1013 How must documents be served?

ALJ's Powers, Unavailability, Disqualification, and Communications

4.1014 What are the powers of the ALJ?
4.1015 What happens if the ALJ becomes unavailable?
4.1016 When can an ALJ be disqualified?
4.1017 Are ex parte communications allowed?

Motions

4.1018 What are the requirements for motions?

Prior Decisions

4.1019 How may a party submit prior Departmental final decisions?

Hearing Process

Docketing, Intervention, Prehearing Conferences, and Summary 
Decision

4.1020 What will DCHD do upon receiving the election of hearing from 
a petitioner?
4.1021 What are the requirements for motions for intervention and 
responses?

[[Page 48460]]

4.1022 How are prehearing conferences conducted?
4.1023 What are the requirements for motions for recommended summary 
decision, responses, and issuance of a recommended summary decision?

Information Disclosure

4.1030 What are the requirements for OFA's witness and exhibit list?
4.1031 Under what circumstances will the ALJ authorize a party to 
obtain discovery of information?
4.1032 When must a party supplement or amend information?
4.1033 Under what circumstances will the ALJ authorize a party to 
depose a witness to preserve testimony?
4.1034 What are the procedures for limiting disclosure of 
information which is confidential or exempt by law from public 
disclosure?
4.1035 What are the requirements for subpoenas and witness fees?

Hearing, Briefing, and Recommended Decision

4.1040 When and where will the hearing be held?
4.1041 What are the parties' rights during the hearing?
4.1042 Who may testify?
4.1043 What are the methods for testifying?
4.1044 How may a party use a deposition in the hearing?
4.1045 What are the requirements for exhibits, official notice, and 
stipulations?
4.1046 What evidence is admissible at the hearing?
4.1047 What are the requirements for transcription of the hearing?
4.1048 What is the standard of proof?
4.1049 When will the hearing record close?
4.1050 What are the requirements for post-hearing briefs?
4.1051 What are the requirements for the ALJ's recommended decision?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 479a-1.

General Provisions


Sec.  4.1001  What terms are used in this subpart?

    As used in this subpart:
    ALJ means an administrative law judge in DCHD appointed under 5 
U.S.C. 3105 and assigned to preside over the hearing process.
    Assistant Secretary means the Assistant Secretary--Indian Affairs 
within the Department of the Interior, or that officer's authorized 
representative, but does not include representatives of OFA.
    Day means a calendar day. Computation of time periods is discussed 
in Sec.  4.1004.
    Department means the Department of the Interior, including the 
Assistant Secretary and OFA.
    DCHD means the Departmental Cases Hearings Division, Office of 
Hearings and Appeals, Department of the Interior.
    Discovery means a prehearing process for obtaining facts or 
information to assist a party in preparing or presenting its case.
    Ex parte communication means an oral or written communication to 
the ALJ that is made without providing all parties reasonable notice 
and an opportunity to participate.
    Full intervenor means a person granted leave by the ALJ to 
intervene as a full party under Sec.  4.1021.
    Hearing process means the process by which DCDH handles a case 
forwarded to DCHD by OFA pursuant to 25 CFR 83.39(a), from receipt to 
issuance of a recommended decision as to whether the petitioner should 
be acknowledged as a federally recognized Indian tribe for purposes of 
federal law.
    OFA means the Office of Federal Acknowledgment within the Office of 
the Assistant Secretary--Indian Affairs, Department of the Interior.
    Party means the petitioner, OFA, or a full intervenor.
    Person means an individual; a partnership, corporation, 
association, or other legal entity; an unincorporated organization; and 
any federal, state, tribal, county, district, territorial, or local 
government or agency.
    Petitioner means an entity that has submitted a documented petition 
to OFA requesting Federal acknowledgment as a federally recognized 
Indian tribe under 25 CFR part 83 and has elected to have a hearing 
under 25 CFR 83.38.
    Representative means a person who:
    (1) Is authorized by a party to represent the party in a hearing 
process under this subpart; and
    (2) Has filed an appearance under Sec.  4.1010.
    Secretary means the Secretary of the Interior or his or her 
designee.
    Senior Department employee has the same meaning as the term 
``senior employee'' in 5 CFR 2641.104.


Sec.  4.1002  What is the purpose of this subpart?

    (a) The purpose of this subpart is to establish rules of practice 
and procedure for the hearing process available under 25 CFR 
83.38(a)(1) and 83.39 to a petitioner for Federal acknowledgment that 
receives from OFA a negative proposed finding on Federal acknowledgment 
and elects to have a hearing before an ALJ. This subpart includes 
provisions governing prehearing conferences, discovery, motions, an 
evidentiary hearing, briefing, and issuance by the ALJ of a recommended 
decision on Federal acknowledgment for consideration by the Assistant 
Secretary--Indian Affairs (AS-IA).
    (b) This subpart will be construed and applied to each hearing 
process to achieve a just and speedy determination, consistent with 
adequate consideration of the issues involved.


Sec.  4.1003  Which rules of procedure and practice apply?

    (a) The rules which apply to the hearing process under this subpart 
are the provisions of Sec. Sec.  4.1001 through 4.1051.
    (b) Notwithstanding the provisions of Sec.  4.20, the general rules 
in subpart B of this part, do not apply to the hearing process, except 
as provided in Sec.  4.1017(a).


Sec.  4.1004  How are time periods computed?

    (a) General. Time periods are computed as follows:
    (1) The day of the act or event from which the period begins to run 
is not included.
    (2) The last day of the period is included.
    (i) If that day is a Saturday, Sunday, or other day on which the 
Federal government is closed for business, the period is extended to 
the next business day.
    (ii) The last day of the period ends at 5 p.m. at the place where 
the filing or other action is due.
    (3) If the period is less than 7 days, any Saturday, Sunday, or 
other day on which the Federal government is closed for business that 
falls within the period is not included.
    (b) Extensions of time. (1) No extension of time can be granted to 
file a motion for intervention under Sec.  4.1021.
    (2) An extension of time to file any other document under this 
subpart may be granted only upon a showing of good cause.
    (i) To request an extension of time, a party must file a motion 
under Sec.  4.1018 stating how much additional time is needed and the 
reasons for the request.
    (ii) The party must file the motion before the applicable time 
period expires, unless the party demonstrates extraordinary 
circumstances that justify a delay in filing.
    (iii) The ALJ may grant the extension only if:
    (A) It would not unduly prejudice other parties; and
    (B) It would not delay the recommended decision under Sec.  4.1051.

Representatives


Sec.  4.1010  Who may represent a party, and what requirements apply to 
a representative?

    (a) Individuals. A party who is an individual may either act as his 
or her

[[Page 48461]]

own representative in the hearing process under this subpart or 
authorize an attorney to act as his or her representative.
    (b) Organizations. A party that is an organization or other entity 
may authorize one of the following to act as its representative:
    (1) An attorney;
    (2) A partner, if the entity is a partnership;
    (3) An officer or full-time employee, if the entity is a 
corporation, association, or unincorporated organization;
    (4) A receiver, administrator, executor, or similar fiduciary, if 
the entity is a receivership, trust, or estate; or
    (5) An elected or appointed official or an employee, if the entity 
is a federal, state, tribal, county, district, territorial, or local 
government or component.
    (c) OFA. OFA's representative will be an attorney from the Office 
of the Solicitor.
    (d) Appearance. A representative must file a notice of appearance. 
The notice must:
    (1) Meet the form and content requirements for documents under 
Sec.  4.1011;
    (2) Include the name and address of the person on whose behalf the 
appearance is made;
    (3) If the representative is an attorney (except for an attorney 
with the Office of the Solicitor), include a statement that he or she 
is a member in good standing of the bar of the highest court of a 
state, the District of Columbia, or any territory or commonwealth of 
the United States (identifying which one); and
    (4) If the representative is not an attorney, include a statement 
explaining his or her authority to represent the entity.
    (e) Disqualification. The ALJ may disqualify any representative for 
misconduct or other good cause.

Document Filing and Service


Sec.  4.1011  What are the form and content requirements for documents 
under this subpart?

    (a) Form. Each document filed in a case under this subpart must:
    (1) Measure 8-1/2 by 11 inches, except that a table, chart, 
diagram, or other attachment may be larger if folded to 8-1/2 by 11 
inches and attached to the document;
    (2) Be printed on just one side of the page;
    (3) Be clearly typewritten, printed, or otherwise reproduced by a 
process that yields legible and permanent copies;
    (4) Use 12-point font size or larger;
    (5) Be double-spaced except for footnotes and long quotations, 
which may be single-spaced;
    (6) Have margins of at least 1 inch; and
    (7) Be bound on the left side, if bound.
    (b) Caption. Each document must begin with a caption that includes:
    (1) The name of the case under this subpart and the docket number, 
if one has been assigned;
    (2) The name and docket number of the proceeding to which the case 
under this subpart relates; and
    (3) A descriptive title for the document, indicating the party for 
whom it is filed and the nature of the document.
    (c) Signature. The original of each document must be signed by the 
representative of the person for whom the document is filed. The 
signature constitutes a certification by the representative that:
    (1) He or she has read the document;
    (2) The statements in the document are true to the best of his or 
her knowledge, information, and belief; and
    (3) The document is not being filed for the purpose of causing 
delay.
    (d) Contact information. Below the representative's signature, the 
document must provide the representative's name, mailing address, 
street address (if different), telephone number, facsimile number (if 
any), and electronic mail address (if any).


Sec.  4.1012  Where and how must documents be filed?

    (a) Place of filing. Any documents relating to a case under this 
subpart must be filed with DCHD. DCHD's address, telephone number, and 
facsimile number are set forth at www.doi.gov/oha/dchd/index.cfm.
    (b) Method of filing. (1) Unless otherwise ordered by the ALJ, a 
document must be filed with DCHD using one of the following methods:
    (i) By hand delivery of the original document;
    (ii) By sending the original document by express mail or courier 
service for delivery on the next business day; or
    (iii) By sending the document by facsimile if:
    (A) The document is 20 pages or less, including all attachments;
    (B) The sending facsimile machine confirms that the transmission 
was successful; and
    (C) The original of the document is sent by regular mail on the 
same day.
    (2) Parties are encouraged, but not required, to supplement any 
filing by providing the appropriate office with an electronic copy of 
the document on compact disc.
    (c) Date of filing. A document under this subpart is considered 
filed on the date it is received. However, any document received by 
DCHD after 5 p.m. is considered filed on the next regular business day.
    (d) Nonconforming documents. If any document submitted for filing 
under this subpart does not comply with the requirements of this 
subpart or any applicable order, it may be rejected. If the defect is 
minor, the filer may be notified of the defect and given a chance to 
correct it.


Sec.  4.1013  How must documents be served?

    (a) Filed documents. Any document related to a case under this 
subpart must be served at the same time the document is delivered or 
sent for filing. Copies must be served on each party, using one of the 
methods of service in paragraph (c) of this section.
    (b) Documents issued by DCHD or the ALJ. A complete copy of any 
notice, order, recommended decision, or other document issued by DCHD 
or the ALJ under this subpart must be served on each party, using one 
of the methods of service in paragraph (c) of this section.
    (c) Method of service. Unless otherwise ordered by the ALJ, service 
must be accomplished by one of the following methods:
    (1) By hand delivery of the document;
    (2) By sending the document by express mail or courier service for 
delivery on the next business day; or
    (3) By sending the document by facsimile if:
    (i) The document is 20 pages or less, including all attachments;
    (ii) The sending facsimile machine confirms that the transmission 
was successful; and
    (iii) The document is sent by regular mail on the same day.
    (d) Certificate of service. A certificate of service must be 
attached to each document filed under this subpart. The certificate 
must be signed by the serving party's representative and include the 
following information:
    (1) The name, address, and other contact information of each 
party's representative on whom the document was served;
    (2) The means of service, including information indicating 
compliance with paragraph (c)(3) or (4) of this section, if applicable; 
and
    (3) The date of service.

ALJ's Powers, Unavailability, Disqualification, and Communications


Sec.  4.1014  What are the powers of the ALJ?

    The ALJ has all powers necessary to conduct the hearing process in 
a fair,

[[Page 48462]]

orderly, expeditious, and impartial manner, including the powers to:
    (a) Administer oaths and affirmations;
    (b) Issue subpoenas to the extent authorized by law;
    (c) Rule on motions;
    (d) Authorize discovery under exceptional circumstances as provided 
in this subpart;
    (e) Hold hearings and conferences;
    (f) Regulate the course of hearings;
    (g) Call and question witnesses;
    (h) Exclude any person from a hearing or conference for misconduct 
or other good cause;
    (i) Impose non-monetary sanctions for a person's failure to comply 
with an ALJ order or provision of this subpart;
    (j) Issue a recommended decision; and
    (k) Take any other action authorized by law.


Sec.  4.1015  What happens if the ALJ becomes unavailable?

    (a) If the ALJ becomes unavailable or otherwise unable to perform 
the duties described in Sec.  4.1014, DCHD will designate a successor.
    (b) If a hearing has commenced and the ALJ cannot proceed with it, 
a successor ALJ may do so. At the request of a party, the successor ALJ 
may recall any witness whose testimony is material and disputed, and 
who is available to testify again without undue burden. The successor 
ALJ may, within his or her discretion, recall any other witness.


Sec.  4.1016  When can an ALJ be disqualified?

    (a) The ALJ may withdraw from a case at any time the ALJ deems 
himself or herself disqualified.
    (b) At any time before issuance of the ALJ's recommended decision, 
any party may move that the ALJ disqualify himself or herself for 
personal bias or other valid cause.
    (1) The party must file the motion promptly after discovering facts 
or other reasons allegedly constituting cause for disqualification.
    (2) The party must file with the motion an affidavit or declaration 
setting forth the facts or other reasons in detail.
    (c) The ALJ must rule upon the motion, stating the grounds for the 
ruling.
    (1) If the ALJ concludes that the motion is timely and meritorious, 
he or she must disqualify himself or herself and withdraw from the 
case.
    (2) If the ALJ does not disqualify himself or herself and withdraw 
from the case, the ALJ must continue with the hearing process and issue 
a recommended decision.


Sec.  4.1017  Are ex parte communications allowed?

    (a) Ex parte communications with the ALJ or his or her staff are 
prohibited in accordance with Sec.  4.27(b).
    (b) This section does not prohibit ex parte inquiries concerning 
case status or procedural requirements, unless the inquiry involves an 
area of controversy in the hearing process.

Motions


Sec.  4.1018  What are the requirements for motions?

    (a) General. Any party may apply for an order or ruling on any 
matter related to the hearing process by presenting a motion to the 
ALJ. A motion may be presented any time after DCHD issues the docketing 
notice.
    (1) A motion made at a hearing may be stated orally on the record, 
unless the ALJ directs that it be written.
    (2) Any other motion must:
    (i) Be in writing;
    (ii) Comply with the requirements of this subpart with respect to 
form, content, filing, and service; and
    (iii) Not exceed 10 pages, unless the ALJ orders otherwise.
    (b) Content. (1) Each motion must state clearly and concisely:
    (i) Its purpose and the relief sought;
    (ii) The facts constituting the grounds for the relief sought; and
    (iii) Any applicable statutory or regulatory authority.
    (2) A proposed order must accompany the motion.
    (c) Response. Except as otherwise required by this subpart or by 
order of the ALJ, any other party may file a response to a written 
motion within 14 days after service of the motion. When a party 
presents a motion at a hearing, any other party may present a response 
orally on the record.
    (d) Reply. Unless the ALJ orders otherwise, no reply to a response 
may be filed.
    (e) Effect of filing. Unless the ALJ orders otherwise, the filing 
of a motion does not stay the hearing process.
    (f) Ruling. The ALJ will rule on the motion as soon as feasible, 
either orally on the record or in writing. The ALJ may summarily deny 
any dilatory, repetitive, or frivolous motion.

Prior Decisions


Sec.  4.1019  How may a party submit prior Departmental final 
decisions?

    A party may submit as an appendix to a motion, brief, or other 
filing a prior Departmental final decision in support of a finding that 
the evidence or methodology is sufficient to satisfy one or more 
criteria for Federal acknowledgment of the petitioner because the 
Department found that evidence or methodology sufficient to satisfy the 
same criteria in the prior decision.

Hearing Process

Docketing, Intervention, Prehearing Conferences, and Summary Decision


Sec.  4.1020  What will DCHD do upon receiving the election of hearing 
from a petitioner?

    Within 5 days after petitioner files its election of hearing under 
25 CFR 83.38(a), the actions required by this section must be taken.
    (a) DCHD must:
    (1) Docket the case;
    (2) Assign an ALJ to preside over the hearing process and issue a 
recommended decision; and
    (3) Issue a docketing notice that informs the parties of the docket 
number and the ALJ assigned to the case.
    (b) The ALJ assigned under paragraph (a)(2) of this section must 
issue a notice setting the time, place, and method for conducting an 
initial prehearing conference under Sec.  4.1022(a). This notice may be 
combined with the docketing notice under paragraph (a)(3) of this 
section.


Sec.  4.1021  What are the requirements for motions for intervention 
and responses?

    (a) General. A person may file a motion for intervention within 30 
days after OFA issues the notice of the election of hearing under 25 
CFR 83.39(a)(1).
    (b) Content of the motion. The motion for intervention must contain 
the following:
    (1) A statement setting forth the interest of the person and, if 
the person seeks intervention under paragraph (d) of this section, a 
showing of why that interest may be adversely affected by the final 
determination of the Assistant Secretary under 25 CFR 83.43;
    (2) An explanation of the person's position with respect to the 
issues of law and issues of material fact raised in the election of 
hearing in no more than five pages; and
    (3) A list of the witnesses and exhibits the person intends to 
present at the hearing, other than solely for impeachment purposes, 
including:
    (i) For each witness listed, his or her name, address, telephone 
number, and qualifications and a brief narrative summary of his or her 
expected testimony; and
    (ii) For each exhibit listed, a statement specifying where the 
exhibit is located in the administrative record reviewed by OFA.

[[Page 48463]]

    (c) Timing of response to a motion. Any response to a motion for 
intervention must be filed by a party within 7 days after service of 
the motion.
    (d) Intervention of right. The ALJ will grant intervention where 
the person has an interest that may be adversely affected by the 
Assistant Secretary's final determination under 25 CFR 83.43.
    (e) Permissive intervention. If paragraph (d) of this section does 
not apply, the ALJ will consider the following in determining whether 
intervention is appropriate:
    (1) The nature of the issues;
    (2) The adequacy of representation of the person's interest which 
is provided by the existing parties to the proceeding; and
    (3) The ability of the person to present relevant evidence and 
argument.
    (f) How an intervenor may participate. (1) A person granted leave 
to intervene under paragraph (d) of this section may participate as a 
full party or in a capacity less than that of a full party.
    (2) If the intervenor wishes to participate in a limited capacity 
or if the intervenor is granted leave to intervene under paragraph (e) 
of this section, the extent and the terms of the participation will be 
determined by the ALJ.
    (3) An intervenor may not raise issues of law or issues of material 
fact beyond those raised in the election of hearing under 25 CFR 
83.38(a)(1).


Sec.  4.1022  How are prehearing conferences conducted?

    (a) Initial prehearing conference. The ALJ will conduct an initial 
prehearing conference with the parties at the time specified in the 
docketing notice under Sec.  4.1020, within 55 days after issuance of 
the docketing notice.
    (1) The initial prehearing conference will be used:
    (i) To identify, narrow, and clarify the disputed issues of 
material fact and exclude issues that do not qualify for review as 
factual, material, and disputed;
    (ii) To discuss the evidence on which each party intends to rely at 
the hearing; and
    (iii) To set the date, time, and place of the hearing.
    (2) The initial prehearing conference may also be used:
    (i) To discuss limiting and grouping witnesses to avoid 
duplication;
    (ii) To discuss stipulations of fact and of the content and 
authenticity of documents;
    (iii) To consider requests that the ALJ take official notice of 
public records or other matters;
    (iv) To discuss pending or anticipated motions, if any; and
    (v) To consider any other matters that may aid in the disposition 
of the case.
    (b) Other conferences. The ALJ may direct the parties to attend one 
or more other prehearing conferences, if consistent with the need to 
complete the hearing process within 180 days. Any party may by motion 
request a conference.
    (c) Notice. The ALJ must give the parties reasonable notice of the 
time and place of any conference.
    (d) Method. A conference will ordinarily be held by telephone, 
unless the ALJ orders otherwise.
    (e) Representatives' preparation and authority. Each party's 
representative must be fully prepared during the prehearing conference 
for a discussion of all procedural and substantive issues properly 
raised. The representative must be authorized to commit the party that 
he or she represents respecting those issues.
    (f) Parties' meeting. Before the initial prehearing conference, the 
parties' representatives must make a good faith effort:
    (1) To meet in person, by telephone, or by other appropriate means; 
and
    (2) To reach agreement on the schedule of remaining steps in the 
hearing process.
    (g) Failure to attend. Unless the ALJ orders otherwise, a party 
that fails to attend or participate in a conference, after being served 
with reasonable notice of its time and place, waives all objections to 
any agreements reached in the conference and to any consequent orders 
or rulings.
    (h) Scope. During a conference, the ALJ may dispose of any 
procedural matters related to the case.
    (i) Order. Within 3 days after the conclusion of each conference, 
the ALJ must issue an order that recites any agreements reached at the 
conference and any rulings made by the ALJ during or as a result of the 
conference.


Sec.  4.1023  What are the requirements for motions for recommended 
summary decision, responses, and issuance of a recommended summary 
decision?

    (a) Motion for recommended summary decision or partial recommended 
summary decision. A party may move for a recommended summary decision, 
identifying each issue on which summary decision is sought. The ALJ may 
issue a recommended summary decision if the movant shows that there is 
no genuine dispute as to any material fact and the movant is entitled 
to a recommended decision as a matter of law. The ALJ should state on 
the record the reasons for granting or denying the motion.
    (b) Time to file a motion. Except as otherwise ordered by the ALJ, 
a party may file a motion for recommended summary decision on all or 
part of the proceeding at any time after DCHD issues a docketing notice 
under Sec.  4.1020.
    (c) Procedures--(1) Supporting factual positions. A party asserting 
that a fact cannot be or is genuinely disputed must support the 
assertion by:
    (i) Citing to particular parts of materials in the hearing process 
record, including affidavits or declarations, stipulations (including 
those made for purposes of the motion only), or other materials; or
    (ii) Showing that the materials cited do not establish the absence 
or presence of a genuine dispute, or that an adverse party cannot 
produce admissible evidence to support the fact.
    (2) Objection that a fact is not supported by admissible evidence. 
A party may object that the material cited to support or dispute a fact 
cannot be presented in a form that would be admissible in evidence.
    (3) Materials not cited. The ALJ need consider only the cited 
materials, but the ALJ may consider other materials in the hearing 
process record.
    (4) Affidavits or declarations. An affidavit or declaration used to 
support or oppose a motion must be made on personal knowledge, set out 
facts that would be admissible in evidence, and show that the affiant 
or declarant is competent to testify on the matters stated.
    (d) When facts are unavailable to the nonmovant. If a nonmovant 
shows by affidavit or declaration that, for specified reasons, it 
cannot present facts essential to justify its opposition, the ALJ may:
    (1) Defer considering the motion or deny it;
    (2) Allow time to obtain affidavits or declarations or, under 
extraordinary circumstances, to take discovery; or
    (3) Issue any other appropriate order.
    (e) Failing to properly support or address a fact. If a party fails 
to properly support an assertion of fact or fails to properly address 
another party's assertion of fact as required by paragraph (c) of this 
section, the ALJ may:
    (1) Give an opportunity to properly support or address the fact;
    (2) Consider the fact undisputed for purposes of the motion;
    (3) Issue a recommended summary decision if the motion and 
supporting materials--including the facts considered undisputed--show 
that the movant is entitled to it; or
    (4) Issue any other appropriate order.

[[Page 48464]]

    (f) Issuing a recommended summary decision independent of the 
motion. After giving notice and a reasonable time to respond, the ALJ 
may:
    (1) Issue a recommended summary decision for a nonmovant;
    (2) Grant a motion for recommended summary decision on grounds not 
raised by a party; or
    (3) Consider issuing a recommended summary decision on his or her 
own after identifying for the parties material facts that may not be 
genuinely in dispute.
    (g) Failing to grant all the requested relief. If the ALJ does not 
grant all the relief requested by the motion, the ALJ may enter an 
order stating any material fact that is not genuinely in dispute and 
treating the fact as established in the case.

Information Disclosure


Sec.  4.1030  What are the requirements for OFA's witness and exhibit 
list?

    Within 14 days after OFA issues the notice of the election of 
hearing under 25 CFR 83.39(a)(1), OFA must file a list of the witnesses 
and exhibits it intends to present at the hearing, other than solely 
for impeachment purposes, including:
    (a) For each witness listed, his or her name, address, telephone 
number, qualifications, and a brief narrative summary of his or her 
expected testimony; and
    (b) For each exhibit listed, a statement specifying where the 
exhibit is in the administrative record reviewed by OFA.


Sec.  4.1031  Under what circumstances will the ALJ authorize a party 
to obtain discovery of information?

    (a) General. A party may obtain discovery of information to assist 
in preparing or presenting its case only if the ALJ determines that the 
party has met the criteria set forth in paragraph (b) of this section 
and authorizes the discovery in a written order or during a prehearing 
conference. Available methods of discovery are:
    (1) Written interrogatories;
    (2) Depositions; and
    (3) Requests for production of designated documents or tangible 
things or for entry on designated land for inspection or other 
purposes.
    (b) Criteria. The ALJ may authorize discovery only under 
extraordinary circumstances and if the party requesting discovery 
demonstrates:
    (1) That the discovery will not unreasonably delay the hearing 
process;
    (2) That the scope of the discovery is not unduly burdensome;
    (3) That the method to be used is the least burdensome method 
available;
    (4) That any confidential information can be adequately 
safeguarded; and
    (5) That the information sought:
    (i) Will be admissible at the hearing or appears reasonably 
calculated to lead to the discovery of admissible evidence;
    (ii) Is not otherwise obtainable by the party;
    (iii) Is not cumulative or repetitious; and
    (iv) Is not privileged or protected from disclosure by applicable 
law.
    (c) Motions. A party seeking the ALJ's authorization for discovery 
must file a motion that:
    (1) Briefly describes the proposed methodology, purpose, and scope 
of the discovery;
    (2) Explains how the discovery meets the criteria in paragraph (b) 
of this section; and
    (3) Attaches a copy of any proposed discovery request (written 
interrogatories, notice of deposition, or request for production of 
designated documents or tangible things or for entry on designated 
land).
    (d) Timing of motions. Any discovery motion under paragraph (c) of 
this section must be filed:
    (1) Within 30 days after issuance of the docketing notice under 
Sec.  4.1020 if the discovery sought is between the petitioner and OFA; 
and
    (2) Within 50 days after issuance of the docketing notice under 
Sec.  4.1020 if the discovery sought is between a full intervenor and 
another party.
    (e) Objections. (1) A party must file any objections to a discovery 
motion or to specific portions of a proposed discovery request within 
10 days after service of the motion.
    (2) An objection must explain how, in the objecting party's view, 
the discovery sought does not meet the criteria in paragraph (b) of 
this section.


Sec.  4.1032  When must a party supplement or amend information?

    (a) Witnesses and exhibits. (1) Each party must file an updated 
version of the list of witnesses and exhibits required under 25 CFR 
83.38(a)(2), Sec.  4.1021(b)(3), or Sec.  4.1030 by no later than 15 
days prior to the hearing date, unless otherwise ordered by the ALJ.
    (2) If a party wishes to include any new witness or exhibit on its 
updated list, it must provide an explanation of why it was not feasible 
for the party to include the witness or exhibit on its list under 25 
CFR 83.38(a)(2), Sec.  4.1021(b)(3), or Sec.  4.1030.
    (b) Failure to disclose. (1) A party that fails to disclose 
information required under 25 CFR 83.38(a)(2), Sec.  4.1021(b)(3), 
Sec.  4.1030, or paragraph (a)(1) of this section will not be permitted 
to introduce as evidence at the hearing testimony from a witness or 
other information that it failed to disclose.
    (2) Paragraph (b)(1) of this section does not apply if the failure 
to disclose was substantially justified or is harmless.
    (3) Before or during the hearing, a party may object under 
paragraph (b)(1) of this section to the admission of evidence.
    (4) The ALJ will consider the following in determining whether to 
exclude evidence under paragraphs (b)(1) through (3) of this section:
    (i) The prejudice to the objecting party;
    (ii) The ability of the objecting party to cure any prejudice;
    (iii) The extent to which presentation of the evidence would 
disrupt the orderly and efficient hearing of the case;
    (iv) The importance of the evidence; and
    (v) The reason for the failure to disclose, including any bad faith 
or willfulness regarding the failure.


Sec.  4.1033  Under what circumstances will the ALJ authorize a party 
to depose a witness to preserve testimony?

    (a) General. A party may depose a witness to preserve testimony 
only if the ALJ determines that the party has met the criteria set 
forth in paragraph (b) of this section and authorizes the deposition in 
a written order or during a prehearing conference. Authorization of 
depositions for discovery purposes is governed by Sec.  4.1031.
    (b) Criteria. (1) The ALJ may authorize a deposition to preserve 
testimony only if the party shows that the witness:
    (i) Will be unable to attend the hearing because of age, illness, 
or other incapacity; or
    (ii) Is unwilling to attend the hearing voluntarily, and the party 
is unable to compel the witness's attendance at the hearing by 
subpoena.
    (2) Paragraph (b)(1)(ii) of this section does not apply to any 
person employed by or under contract with the party seeking the 
deposition.
    (3) A party may depose a senior Department employee of OFA only if 
the party shows:
    (i) That the employee's testimony is necessary in order to provide 
significant, unprivileged information that is not available from any 
other source or by less burdensome means; and
    (ii) That the deposition would not significantly interfere with the 
employee's ability to perform his or her official duties.
    (c) Motion and notice. A party seeking the ALJ's authorization to 
take a

[[Page 48465]]

deposition to preserve testimony must file a motion which explains how 
the criteria in paragraph (b) of this section have been met and states:
    (1) The time and place that the deposition is to be taken;
    (2) The name and address of the person before whom the deposition 
is to be taken;
    (3) The name and address of the witness whose deposition is to be 
taken; and
    (4) Any documents or materials that the witness is to produce.


Sec.  4.1034  What are the procedures for limiting disclosure of 
information which is confidential or exempt by law from public 
disclosure?

    (a) A party or a prospective witness or deponent may file a motion 
requesting a protective order to limit from disclosure to other parties 
or to the public a document or testimony containing information which 
is confidential or exempt by law from public disclosure.
    (b) In the motion the person must describe the information sought 
to be protected from disclosure and explain in detail:
    (1) Why the information is confidential or exempt by law from 
public disclosure;
    (2) Why disclosure of the information would adversely affect the 
person; and
    (3) Why disclosure is not required in the public interest.
    (c) If the person seeks non-disclosure of information in a 
document:
    (1) The motion must include a copy of the document with the 
confidential information deleted. If it is not practicable to submit 
such a copy of the document because deletion of the information would 
render the document unintelligible, a description of the document may 
be substituted.
    (2) The ALJ may require the person to file a sealed copy of the 
document for in camera inspection.
    (d) Ordinarily, documents and testimony introduced into the public 
hearing process are presumed to be public. In issuing a protective 
order, the ALJ may make any order which justice requires to protect the 
person, consistent with the mandatory public disclosure requirements of 
the Freedom of Information Act, 5 U.S.C. 552(b), and other applicable 
law.


Sec.  4.1035  What are the requirements for subpoenas and witness fees?

    (a) Request for subpoena. (1) Except as provided in paragraph 
(a)(2) of this section, any party may file a motion requesting the ALJ 
to issue a subpoena to the extent authorized by law for the attendance 
of a person, the giving of testimony, or the production of documents or 
other relevant evidence during discovery or for the hearing.
    (2) A party may subpoena an OFA employee if the employee 
participated in the preparation of the negative proposed finding, 
except that if the OFA employee is a senior Department employee, the 
party must show:
    (i) That the employee's testimony is necessary in order to provide 
significant, unprivileged information that is not available from any 
other source or by less burdensome means; and
    (ii) That the employee's attendance would not significantly 
interfere with the ability to perform his or her government duties.
    (b) Service. (1) A subpoena may be served by any person who is not 
a party and is 18 years of age or older.
    (2) Service must be made by hand delivering a copy of the subpoena 
to the person named therein.
    (3) The person serving the subpoena must:
    (i) Prepare a certificate of service setting forth the date, time, 
and manner of service or the reason for any failure of service; and
    (ii) Swear to or affirm the certificate, attach it to a copy of the 
subpoena, and return it to the party on whose behalf the subpoena was 
served.
    (c) Witness fees. (1) A party who subpoenas a witness who is not a 
party must pay him or her the same fees and mileage expenses that are 
paid witnesses in the district courts of the United States.
    (2) A witness who is not a party and who attends a deposition or 
hearing at the request of any party without having been subpoenaed to 
do so is entitled to the same fees and mileage expenses as if he or she 
had been subpoenaed. However, this paragraph does not apply to federal 
employees who are called as witnesses by OFA.
    (d) Motion to quash. (1) A person to whom a subpoena is directed 
may request by motion that the ALJ quash or modify the subpoena.
    (2) The motion must be filed:
    (i) Within 5 days after service of the subpoena; or
    (ii) At or before the time specified in the subpoena for 
compliance, if that is less than 5 days after service of the subpoena.
    (3) The ALJ may quash or modify the subpoena if it:
    (i) Is unreasonable;
    (ii) Requires evidence beyond the limits on witnesses and evidence 
found in Sec. Sec.  4.1042 and 4.1046;
    (iii) Requires evidence during discovery that is not discoverable; 
or
    (iv) Requires evidence during a hearing that is privileged or 
irrelevant.
    (e) Enforcement. For good cause shown, the ALJ may apply to the 
appropriate United States District Court for the issuance of an order 
compelling the appearance and testimony of a witness or the production 
of evidence as set forth in a subpoena that has been duly issued and 
served.

Hearing, Briefing, and Recommended Decision


Sec.  4.1040  When and where will the hearing be held?

    (a) Time and place. (1) Except as provided in paragraph (b) of this 
section, the hearing will be held at the time and place set at the 
initial prehearing conference under Sec.  4.1022(a)(1)(iii), generally 
within 90 days after the date DCHD issues the docketing notice under 
Sec.  4.1020(a)(3).
    (2) The ALJ will consider the convenience of all parties, their 
representatives, and witnesses in setting the time and place for 
hearing.
    (b) Change. On motion by a party or on the ALJ's initiative, the 
ALJ may change the date, time, or place of the hearing if he or she 
finds:
    (1) That there is good cause for the change; and
    (2) That the change will not unduly prejudice the parties and 
witnesses.


Sec.  4.1041  What are the parties' rights during the hearing?

    Consistent with the provisions of this subpart, and as necessary to 
ensure full and accurate disclosure of the facts, each party may 
exercise the following rights during the hearing:
    (a) Present direct and rebuttal evidence;
    (b) Make objections, motions, and arguments; and
    (c) Cross-examine witnesses, including OFA staff, and conduct re-
direct and re-cross examination as permitted by the ALJ.


Sec.  4.1042  Who may testify?

    (a) Except as provided in paragraph (b) of this section, each party 
may present as witnesses the following persons only:
    (1) Persons who qualify as expert witnesses; and
    (2) OFA staff who participated in the preparation of the negative 
proposed finding, except that if the OFA employee is a senior 
Department employee, any party other than OFA must first obtain a 
subpoena for that employee under Sec.  4.1035.
    (b) The ALJ may authorize testimony from witnesses in addition to 
those identified in paragraph (a) of this

[[Page 48466]]

section only under extraordinary circumstances.


Sec.  4.1043  What are the methods for testifying?

    Oral examination of a witness in a hearing, including on cross-
examination or redirect, must be conducted under oath with an 
opportunity for all parties to question the witness. The witness must 
testify in the presence of the ALJ unless the ALJ authorizes the 
witness to testify by telephonic conference call. The ALJ may issue a 
subpoena under Sec.  4.1035 directing a witness to testify by 
telephonic conference call.


Sec.  4.1044  How may a party use a deposition in the hearing?

    (a) In general. Subject to the provisions of this section, a party 
may use in the hearing any part or all of a deposition taken against 
any party who:
    (1) Was present or represented at the taking of the deposition; or
    (2) Had reasonable notice of the taking of the deposition.
    (b) Admissibility. (1) No part of a deposition will be included in 
the hearing record, unless received in evidence by the judge.
    (2) The judge will exclude from evidence any question and response 
to which an objection:
    (i) Was noted at the taking of the deposition; and
    (ii) Would have been sustained if the witness had been personally 
present and testifying at a hearing.
    (3) If a party offers only part of a deposition in evidence:
    (i) An adverse party may require the party to introduce any other 
part that ought in fairness to be considered with the part introduced; 
and
    (ii) Any other party may introduce any other parts.
    (c) Video-recorded deposition. If the deposition was video recorded 
and is admitted into evidence, relevant portions will be played during 
the hearing and transcribed into the record by the reporter.


Sec.  4.1045  What are the requirements for exhibits, official notice, 
and stipulations?

    (a) General. (1) Except as provided in paragraphs (d) and (e) of 
this section, any material offered in evidence, other than oral 
testimony, must be offered in the form of an exhibit.
    (2) Each exhibit offered by a party must be marked for 
identification.
    (3) Any party who seeks to have an exhibit admitted into evidence 
must provide:
    (i) The original of the exhibit to the reporter, unless the ALJ 
permits the substitution of a copy; and
    (ii) A copy of the exhibit to the ALJ.
    (b) ALJ exhibits. (1) At any time prior to issuance of the 
recommended decision, the ALJ, on his or her own initiative, may admit 
into evidence as an exhibit any document from the administrative record 
reviewed by OFA.
    (2) If the ALJ admits a document under paragraph (b)(1) of this 
section, the ALJ must notify the parties and give them a brief 
opportunity to submit comments on the document.
    (c) Material not offered. If a document offered as an exhibit 
contains material not offered as evidence:
    (1) The party offering the exhibit must:
    (i) Designate the matter offered as evidence;
    (ii) Segregate and exclude the material not offered in evidence, to 
the extent feasible; and
    (iii) Provide copies of the entire document to the other parties 
appearing at the hearing.
    (2) The ALJ must give the other parties an opportunity to inspect 
the entire document and offer in evidence any other portions of the 
document.
    (d) Official notice. (1) At the request of any party at the 
hearing, the ALJ may take official notice of any matter of which the 
courts of the United States may take judicial notice, including the 
public records of the Department, except materials in the 
administrative record reviewed by OFA.
    (2) The ALJ must give the other parties appearing at the hearing an 
opportunity to show the contrary of an officially noticed fact.
    (3) Any party requesting official notice of a fact after the 
conclusion of the hearing must show good cause for its failure to 
request official notice during the hearing.
    (e) Stipulations. (1) The parties may stipulate to any relevant 
facts or to the authenticity of any relevant documents.
    (2) If received in evidence at the hearing, a stipulation is 
binding on the stipulating parties.
    (3) A stipulation may be written or made orally at the hearing.


Sec.  4.1046  What evidence is admissible at the hearing?

    (a) Scope of evidence. (1) The ALJ may admit as evidence only 
documentation in the administrative record reviewed by OFA, including 
comments on OFA's proposed finding and petitioner's responses to those 
comments, and testimony clarifying or explaining the information in 
that documentation, except as provided in paragraph (a)(2) of this 
section.
    (2) The ALJ may admit information outside the scope of paragraph 
(a)(1) of this section only if the party seeking to admit the 
information explains why the information was not submitted for 
inclusion in the administrative record reviewed by OFA and demonstrates 
that extraordinary circumstances exist justifying admission of the 
information.
    (3) Subject to the provisions of Sec.  4.1032(b) and paragraphs 
(a)(1) and (2) of this section, the ALJ may admit any written, oral, 
documentary, or demonstrative evidence that is:
    (i) Relevant, reliable, and probative; and
    (ii) Not privileged or unduly repetitious or cumulative.
    (b) General. (1) The ALJ may exclude evidence if its probative 
value is substantially outweighed by the risk of undue prejudice, 
confusion of the issues, or delay.
    (2) Hearsay evidence is admissible. The ALJ may consider the fact 
that evidence is hearsay when determining its probative value.
    (3) The Federal Rules of Evidence do not directly apply to the 
hearing, but may be used as guidance by the ALJ and the parties in 
interpreting and applying the provisions of this section.
    (c) Objections. Any party objecting to the admission or exclusion 
of evidence shall concisely state the grounds. A ruling on every 
objection must appear in the record.


Sec.  4.1047  What are the requirements for transcription of the 
hearing?

    (a) Transcript and reporter's fees. The hearing must be transcribed 
verbatim.
    (1) DCHD will secure the services of a reporter and pay the 
reporter's fees to provide an original transcript to DCHD on an 
expedited basis.
    (2) Each party must pay the reporter for any copies of the 
transcript obtained by that party.
    (b) Transcript corrections. (1) Any party may file a motion 
proposing corrections to the transcript. The motion must be filed 
within 5 days after receipt of the transcript, unless the ALJ sets a 
different deadline.
    (2) Unless a party files a timely motion under paragraph (b)(1) of 
this section, the transcript will be presumed to be correct and 
complete, except for obvious typographical errors.
    (3) As soon as feasible after the close of the hearing and after 
consideration of any motions filed under paragraph (b)(1) of this 
section, the ALJ will issue an order making any corrections to the 
transcript that the ALJ finds are warranted.


Sec.  4.1048  What is the standard of proof?

    The ALJ will consider a criterion to be met if the evidence 
establishes a reasonable likelihood of the validity of

[[Page 48467]]

the facts related to the criteria. Conclusive proof of the facts 
relating to a criterion shall not be required in order for the 
criterion to be considered met.


Sec.  4.1049  When will the hearing record close?

    (a) The hearing record will close when the ALJ closes the hearing, 
unless he or she directs otherwise.
    (b) Except as provided in Sec.  4.1045(b)(1), evidence may not be 
added after the hearing record is closed, but the transcript may be 
corrected under Sec.  4.1047(b).


Sec.  4.1050  What are the requirements for post-hearing briefs?

    (a) General. (1) Each party may file a post-hearing brief within 20 
days after the close of the hearing, unless the ALJ sets a different 
deadline.
    (2) A party may file a reply brief only if requested by the ALJ. 
The deadline for filing a reply brief, if any, will be set by the ALJ.
    (3) The ALJ may limit the length of the briefs to be filed under 
this section.
    (b) Content. (1) An initial brief must include:
    (i) A concise statement of the case;
    (ii) A separate section containing proposed findings regarding the 
issues of material fact, with supporting citations to the hearing 
record;
    (iii) Arguments in support of the party's position; and
    (iv) Any other matter required by the ALJ.
    (2) A reply brief, if requested by the ALJ, must be limited to any 
issues identified by the ALJ.
    (c) Form. (1) An exhibit admitted into evidence or marked for 
identification in the record may not be reproduced in the brief.
    (i) Such an exhibit may be reproduced, within reasonable limits, in 
an appendix to the brief.
    (ii) Any pertinent analysis of an exhibit may be included in a 
brief.
    (2) If a brief exceeds 30 pages, it must contain:
    (i) A table of contents and of points made, with page references; 
and
    (ii) An alphabetical list of citations to legal authority, with 
page references.


Sec.  4.1051  What are the requirements for the ALJ's recommended 
decision?

    (a) Timing. The ALJ must issue a recommended decision within 180 
days after issuance of the docketing notice under Sec.  4.1020(a)(3), 
unless the ALJ issues an order finding good cause to issue the 
recommended decision at a later date.
    (b) Content. (1) The recommended decision must contain all of the 
following:
    (i) Recommended findings of fact on all disputed issues of material 
fact;
    (ii) Recommended conclusions of law:
    (A) Necessary to make the findings of fact (such as rulings on 
materiality and on the admissibility of evidence); and
    (B) As to whether the applicable criteria for Federal 
acknowledgment have been met; and
    (iii) Reasons for the findings and conclusions.
    (2) The ALJ may adopt any of the findings of fact proposed by one 
or more of the parties.
    (c) Service. Promptly after issuing a recommended decision, the ALJ 
must:
    (1) Serve the recommended decision on each party to the hearing 
process; and
    (2) Forward the complete hearing record to the Assistant 
Secretary--Indian Affairs, including the recommended decision.

    Dated: August 3, 2015.
Kristen J. Sarri,
Principal Deputy Assistant Secretary for Policy Management & Budget.
[FR Doc. 2015-19612 Filed 8-12-15; 8:45 am]
 BILLING CODE 4337-15-P