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REMANDS FROM COURTS
4.128 Remands from Courts.
Appendix I--Notice of Appeal.
The provisions of this Part 4 issued under authority of R.S. 2478, as amended, 43 U.S.C. sec. 1201 and 5 U.S.C. 301.
The provisions of Part 4 appear at 36 F.R. 7185,
Subpart A--General; Office of Hearings and Appeals
Sec. 4.1 Scope of authority; applicable regulations.
The Office of Hearings and Appeals, headed by a Director, is an authorized representative of the Secretary for the purpose of hearing, considering and determining, as fully and finally as might the Secretary, matters within the jurisdiction of the Department involving hearings, and appeals and other review functions of the Secretary.1/ Principal components of the Office include (a) a Hearings Division comprised of hearing examiners who are authorized to conduct hearings in cases required by law to be conducted pursuant to 5 U.S.C. sec. 554, hearings in Indian probate matters, and hearings in other cases arising under statutes and regulations of the Department, including rule making hearings, and (b) Appeals Boards, shown below, with administrative jurisdiction and special procedural rules as indicated. General rules applicable to all types of proceedings are set forth in Subpart B of this part. Therefore, for information as to applicable rules, reference should be made to the special rules in the subpart relating to the particular type of proceeding, as indicated, and to the general rules in Subpart B of this part. Wherever there is any conflict between one of the general rules in Subpart B of this part and a special rule in another subpart applicable to a particular type of proceeding, the special rule will govern.
1 The organization of the Office of Hearings and Appeals and the authority delegated by the Secretary to the Director and other principal officials of the Office are set forth in Part 111, Chapter 13, of the Departmental Manual; in Release No. 1213 of July 17, 1970 (211 DM 13), and a notice published in the FEDERAL REGISTER on July 28, 1970, 35 F.R. 12081; and, with respect to the Board of Mine Operations Appeals, also in 30 CFR Part 300, as amended, 35 F.R. 12336, Aug. 1, 1970 (now 43 CFR 4.500).
Reference should be made also to the governing laws, substantive regulations and policies of the Department relating to the proceeding. In addition, reference should be made to Part 1 of this subtitle which regulates practice before the Department of the Interior.
(1) BOARD OF CONTRACT APPEALS. The Board considers and decides finally for the Department appeals to the head of the Department from findings of fact or decisions by contracting officers of any bureau or office of the Department, wherever situated, or any field installation thereof, and orders and conducts hearings as necessary. Special regulations applicable to proceedings before the Board are contained in Subpart C of this part.
(2) BOARD OF INDIAN APPEALS.
The Board decides finally for
the Department appeals to the head of the Department from orders and decisions of hearing examiners in Indian probate matters. Jurisdiction of the Board includes, but is not limited to, authority of the Secretary relating to Indian probate proceedings other than those involving estates of the Five Civilized Tribes and Osage Indians. Special regulations applicable to proceedings before the Board are contained in Subpart D of this part.
BOARD OF LAND APPEALS. The Board decides finally for the Department appeals to the head of the Department from decisions rendered by Departmental officials relating to the use and disposition of public lands and their resources and the use and disposition of mineral resources in certain acquired lands of the United States and in the submerged lands of the Outer Continental Shelf. Special procedures for hearings, appeals and contests in public land cases are contained in Subpart E of this part.
(4) BOARD OF MINE OPERATIONS APPEALS. The Board performs finally for the Department the appellate and other review functions of the Secretary under the Federal Coal Mine Health and Safety Act of 1969 (Public Law 91-173; 83 Stat. 742 et seq.), and the review authority of the Secretary under the Federal Metal and Nonmetallic Mine Safety Act (Public Law 89-577; 80 Stat. 772 et seq., 30 U.S.C. secs. 721-740). Special regulations applicable to proceedings before the Board are contained in Subpart F of this part..
(5) AD HOC BOARDS OF APPEALS. Appeals to the head of the Department which do not lie within the appellate review jurisdiction of an established Appeals Board and which are not specifically excepted in the general delegation of authori ty to the Director may be considered and ruled upon by the Director or by Ad Hoc Boards of Appeals appointed by the Director to consider the particular appeals and to issue decisions thereon, deciding finally for the Department all questions of fact and law necessary for the complete adjudication of the issues. Jurisdiction of the Boards would include, but not be limited to, the appellate and review authority of the Secretary referred to in Parts 13, 21, and 230
of this title, and in 36 CFR Parts 8 and 20. Special regulations applicable to proceedings in such cases are contained in Subpart G of this part.
Sec. 4.2 Membership of appeals boards; decisions; functions
(a) The Appeals Boards consist of regular members, one of whom is designated as Chairman, the Director as an ex officio member, and alternate members who may serve, when necessary, in place of or in addition to regular members. The Chairman of an Appeals Board may
direct that an appeal may be decided by a panel of any two members of the Board, but if they are unable to agree upon a decision, the Chairman may assign one or more additional members of the Board to consider the appeal. The concurrence of a majority of the Board members who consider an appeal shall be sufficient for a decision.
(b) Decisions of the Board must be in writing and signed by not less than a majority of the members who considered the appeal. The Director, being an ex officio member, may participate in the consideration of any appeal and sign the resulting decision.
(c) The Chairman of an Appeals Board shall be responsible for the internal management and administration of the Board, and the Chairman is authorized to act on behalf of the Board in conducting correspondence and in carrying out such other duties as may be necessary in the conduct of routine business of the Board.
Sec. 4.3 Representation before appeals boards.
(a) Appearances generally. Representation of parties in proceedings before Appeals Boards of the Office of Hearings and Appeals is governed by Part 1 of this subtitle, which regulates practice before the Department of the Interior.
(b) Representation of the Government. Department counsel designated by the Solicitor of the Department to represent agencies, bureaus, and offices of the Department of the Interior in proceedings before the Office of Hearings and Appeals, and Government counsel for other agencies, bureaus of offices of the Federal Government involved in any proceeding before the Office of Hearings and Appeals, shall represent the Government agency in the same manner as a private advocate represents a client.
(c) Appearances as amicus curiae. Any person desiring to appear as amicus curiae in any proceeding shall make timely request stating the grounds for such request. Permission to appear, if granted, will be for such purposes as established by the Director or the Appeals Board in the proceeding.
Sec. 4.4 Public records; locations of field offices.
Part 2 of this subtitle prescribes the rules governing availability of the public records of the Office of Hearings and Appeals. It includes a list of the field offices of the Office of Hearings and Appeals and their locations.
Sec. 4.5 Power of Secretary.
Nothing in this part shall be construed to deprive the Secretary of any power conferred upon him by law. The Secretary reserves under his supervisory powers the right to take original jurisdiction of any case and render the final decision in the matter, after holding such hearing as may be required by law. The same authority, except with respect to the conduct of hearings pursuant to 5 U.S.C. sec. 554, may be exercised by the Director pursuant to his delegated supervisory authority from the Secretary.
Subpart B--General Rules Relating to Procedures and Practice
Sec. 4.20 Purpose.
In the interest of establishing and maintaining uniformity to the extent feasible, this subpart sets forth general rules applicable to all types of proceedings before the Hearings Division and the several Appeals Boards of the Office of Hearings and Appeals.
Sec: 4.21 General provisions.
(a) Effect of decision pending appeal. Except as otherwise provided by law or other pertinent regulation, a decision will not be, effective during the time in which a person adversely affected may file a notice of appeal, and the timely filing of a notice of appeal will suspend the effect of the decision appealed from pending the decision on appeal. However, when the public interest requires, the Director or an Appeals Board may provide that a decision or any part of it shall be in full force and effect immediately.
(b) Exhaustion of administrative remedies. No decision which at the time of its rendition is subject to appeal to the Director or an Appeals Board shall be considered final so as to be agency action subject to judicial review under 5 U.S.C. sec. 704, unless it has been made effective pending a decision on appeal in the manner provided in paragraph (a) of this section.
(c) Finality of decision. No further appeal will lie in the Department from a decision of the Director or an Appeals Board of the Office of Hearings and Appeals. Unless otherwise provided by regulation, reconsideration of a decision may be granted only in extraordinary circumstances where, in the judgment of the Director or an Appeals Board,
sufficient reason appears therefor. Requests for reconsideration must be filed promptly, or within the time required by the regulations relating to the particular type of proceeding concerned, and must state with particularity the error claimed. The filing and pendency of a request for reconsideration shall not operate to stay the effectiveness of the decision involved unless so ordered by the Director or an Appeals Board. A request for reconsideration need not be filed to exhaust administrative remedies.
Sec. 4.22 Documents.
(a) Filing of documents. A document is filed in the Office where the filing is required only when the document is received in that office during the office hours when filing is permitted and the document is received by a person authorized to receive it.
(b) Service generally. A copy of each document filed in a proceeding before the Office of Hearings and Appeals must be served by the filing party on the other party or parties in the case. In all cases where a party is represented by an attorney, such attorney will be recognized as fully controlling the case on behalf of his client, and service of any document relating to the proceeding shall be made upon such attorney in addition to any other service specifically required by law or by rule, order, or regulation of an Appeals Board. Where a party is represented by more than one attorney, service upon one of the attorneys shall be sufficient.
(c) Retention of documents. All documents, books, records, papers, etc., received in evidence in a hearing or submitted for the record in any proceeding before the Office of Hearings and Appeals will be retained with the official record of the proceeding. However, the withdrawal of original documents may be permitted while the case is pending upon the submission of true copies in lieu thereof. When a decision has become final, an Appeals Board may, upon request and after notice to the other party, in its discretion permit the withdrawal of original exhibits or any part thereof, by the party entitled thereto. The substitution of true copies of exhibits or any part thereof may be required by the Board in its discretion as a condition of granting permission for such withdrawal.
(a) Record address. Every person who files a document for the record in connection with any proceeding before the Office of Hearings and Appeals shall at the time of his initial filing in the matter state his address. Thereafter he must promptly inform the office in which the matter is pending of any change in address, giving the docket or other appropriate numbers of all matters in which he has made such filing. The successors of such person shall likewise promptly inform such office of their interest in the matters and state their addresses. If a person fails to furnish a record address as required herein, he will not be entitled to notice in connection with the proceedings.
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