DEPARTMENT OF THE INTERIOR HEARINGS AND APPEALS PROCEDURES

• Citation: 43 CFR Part 4
• Sections: 434

§ 4.1 Scope of authority; applicable regulations.

(a) In general. The Office of Hearings and Appeals (OHA), headed by a Director, is an authorized representative of the Secretary for the purpose of hearing, considering, and deciding matters within the jurisdiction of the Department involving hearings, appeals, and other review functions of the Secretary, including those established by statute, regulations, or policy. OHA may hear, consider, and decide those matters as fully and finally as might the Secretary, subject to any limitations on its delegated authority imposed by the Secretary.

(b) OHA Units —(1) Departmental Cases Hearings Division. (i) The Departmental Cases Hearings Division (DCHD) is composed of administrative law judges (ALJs) who conduct formal hearings under the Administrative Procedure Act, 5 U.S.C. 554, as well as other evidentiary hearings in accordance with statutes and regulations or by referral from an Appeals Board or other Departmental entity.

(ii) Rules applicable to proceedings before DCHD are contained in procedures in subpart C of this part, and, for particular types of proceedings, in regulations located in other parts and subparts of title 43 as well as in other parts of the Code of Federal Regulations.

(2) Probate Hearings Division. (i) The Probate Hearings Division (PHD) is composed of ALJs and Indian probate judges (IPJs) who conduct formal hearings to determine the rightful heirs and devisees of decedents who owned trust or restricted property. ALJs, IPJs, or other presiding officers may also conduct related informal proceedings.

(ii) Rules applicable to proceedings before Ph.D. are contained in part 30 of this subtitle and in regulations in other parts of the Code of Federal Regulations. Wherever there is any conflict between part 30 of this subtitle and subpart B of this part, part 30 will govern.

(3) Interior Board of Indian Appeals. (i) The Interior Board of Indian Appeals (IBIA) is composed of administrative judges (AJs) who issue final decisions for the Department on appeals of decisions issued by Departmental officials including the following:

(A) Administrative actions of officials of the Bureau of Indian Affairs, issued under 25 CFR chapter I, except as limited in 25 CFR chapter I or § 4.330 of this part;

(B) Decisions and orders of ALJs and IPJs in Indian probate matters; and

(C) Such other matters pertaining to Indians as are referred to IBIA by the Secretary, the OHA Director, or the Assistant Secretary-Indian Affairs for exercise of review authority of the Secretary.

(ii) Rules applicable to appeals before IBIA are contained in subpart D of this part and in regulations in other parts of the Code of Federal Regulations.

(4) Interior Board of Land Appeals. (i) The Interior Board of Land Appeals (IBLA) is composed of AJs who issue final decisions for the Department on appeals of decisions issued by Departmental officials related to the following:

(A) The use and disposition of public lands and resources, including land selections arising under the Alaska Native Claims Settlement Act, as amended;

(B) The use and disposition of resources in, and authorization of activities on, the submerged lands of the Outer Continental Shelf;

(C) The collection of revenue from the development of Federal minerals and resources on the Outer Continental Shelf;

(D) In certain instances, minerals held in trust or restricted status for Indian Tribes and individual Indians, and royalties from leases of those minerals, subject to the restrictions in § 4.330 of this part; and

(E) The conduct of surface coal mining under the Surface Mining Control and Reclamation Act of 1977.

(ii) Rules applicable to appeals before IBLA are contained in subpart E of this part and, for specific types of appeals, in subparts J and L of this part, and in regulations in other parts of the Code of Federal Regulations.

(c) Director's Office and Ad Hoc Boards of Appeals. (1) Appeals to the head of the Department that do not lie within the appellate review jurisdiction of a Standing Appeals Board and that are not specifically excepted in the general delegation of authority to the Director may be considered and ruled upon by the Director or an Ad Hoc Boards of Appeals appointed by the Director to consider the appeals and issue decisions.

(2) The Director or Ad Hoc Board of Appeals may decide finally for the Department all questions of fact and law necessary to complete adjudication of the issues. Jurisdiction of the Ad Hoc Board 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.

(3) The Director may designate appropriate presiding officers and identify processes in accordance with statutes and regulations for hearings and appeals that are not specifically covered by an OHA Unit in paragraph (b) of this section. Rules applicable to hearings or appeals in the Director's office are contained in subpart G of this part, in procedures in other subparts in this part, and in other parts of the Code of Federal Regulations that address particular types of proceedings.

§ 4.2 Membership and duties.

(a) Standing Appeals Boards. The Standing Appeals Boards consist of AJs and the Director as an ex officio member.

(1) The Director may designate a chief judge for each Standing Appeals Board. A chief judge is responsible for internal management and administration of the Standing Appeals Board, including management of the case docket. A chief judge is authorized to carry out such other duties as may be necessary to conduct the routine business of the Standing Appeals Board.

(2) A chief judge of a Standing Appeals Board may assign an appeal to a panel of any two AJs of the Standing Appeals Board, but if the AJs assigned to the panel cannot agree on a decision, a chief judge may assign one or more additional AJs to consider the appeal. The concurrence of a majority of the AJs who consider an appeal is sufficient for a decision.

(3) Decisions of a Standing Appeals Board must be in writing and signed by not less than a majority of the AJs who considered the appeal. The Director, being an ex officio member of the Standing Appeals Board, may participate in the consideration of any appeal and sign the resulting decision.

(b) Hearings Divisions. The Hearings Divisions consist of ALJs and, where authorized, IPJs. The Director may designate a chief judge for each Hearings Division. A chief judge is responsible for internal management and administration of the Hearings Division, including management of case dockets. A chief judge is authorized to carry out such other duties as may be necessary to conduct the routine business of the Hearings Division.

(c) Other hearings and appeals. For hearings and appeals that are not within the jurisdiction of an OHA Unit, the Director will designate or appoint the appropriate OHA officials to an Ad Hoc Board of Appeals or as a presiding officer consistent with the applicable statute or regulation.

§ 4.3 Representation before OHA.

(a) Appearances generally. Representation of parties in proceedings before OHA is governed by part 1 of this subtitle, which regulates practice before the Department of the Interior.

(b) Representation of the Government. When the Department's Office of the Solicitor represents an agency, bureau, or office of the Department in a proceeding before OHA, it will do so in the same manner as private counsel represents a client. Government counsel for other agencies, bureaus or offices of the Federal Government involved in any proceeding before OHA will represent the Government agency in the same manner as a private counsel represents a client.

(c) Appearances as amicus curiae. Any person or entity who seeks to appear as amicus curiae in a proceeding must make a timely request within 30 days of the date the matter is docketed by OHA unless another time period is specified by regulation. The request must state the grounds for the request. OHA retains sole discretion to grant or deny each request. If OHA grants a request, it retains sole discretion to determine the scope of the amicus appearance.

§ 4.4 Public records; contact information for offices.

Part 2 of this subtitle prescribes the rules governing availability of the public records of OHA. Contact information for offices referenced in this part is available in the OHA Standing Orders on Contact Information on the Department of the Interior OHA website at https://www.doi.gov/oha.

§ 4.5 Power of the Secretary and Director.

(a) Secretary. Nothing in this part may deprive the Secretary of any power conferred upon the Secretary by law including:

(1) The authority to take jurisdiction at any stage of any case before any employee of the Department, including any judge or other presiding officer of OHA, and render the final decision in the matter after holding such hearing as may be required by law; and

(2) The authority to review any decision of any employee of the Department, including any judge or other presiding officer of OHA, or to direct any such employee or employees to reconsider a decision; and

(3) The authority to appoint judges to OHA.

(b) Director. Nothing in this part may deprive the Director of any power delegated by the Secretary or otherwise conferred upon the Director by law.

(1) The Director may assume jurisdiction of any case before any Appeals Board or review any decision of any Appeals Board or direct reconsideration of any decision by any Appeals Board.

(2) The Director has the authority to appoint an Ad Hoc Board of Appeals, designate presiding officers to conduct hearings or proceedings, identify appropriate procedures if not otherwise specified by statute or regulations, or fulfill other hearings and appeals needs of the Department.

(3) The Director is responsible for the internal management and administration of OHA and its units including managing case dockets. The Director is authorized to carry out such other duties as may be necessary to conduct the routine business of OHA and its units.

(4) The Director may issue OHA Standing Orders to convey current information to parties and the public. This includes, but is not limited to, the OHA Standing Orders on Contact Information for Department of the Interior offices referenced in this part and the OHA Standing Orders on Electronic Transmission to convey information related to electronic transmission, including filing and service. The OHA Standing Orders may be issued in the event of an emergency or other contingency. The OHA Standing Orders are available on the Department of the Interior OHA website at https://www.doi.gov/oha.

(c) Exercise of reserved power. If the Secretary or Director assumes jurisdiction of a case or reviews a decision, the parties and the appropriate Departmental personnel will be advised of such action, the administrative record will be requested, and, after the review process is completed, the Secretary or Director will issue a decision.

§ 4.6 Definitions and acronyms.

In this part:

Administrative judge or AJ means an administrative judge in the Office of Hearings and Appeals.

Administrative law judge or ALJ means an administrative law judge in the Office of Hearings and Appeals appointed under the Administrative Procedure Act, 5 U.S.C. 3105.

Appeals Board means the Interior Board of Land Appeals, the Interior Board of Indian Appeals, or an Ad Hoc Board of Appeals in the Office of Hearings and Appeals.

BIA means the Bureau of Indian Affairs in the Department of the Interior.

BIE means the Bureau of Indian Education in the Department of the Interior.

BLM means the Bureau of Land Management in the Department of the Interior.

BOEM means the Bureau of Ocean Energy Management in the Department of the Interior.

BOR means the Bureau of Reclamation in the Department of the Interior.

BSEE means the Bureau of Safety and Environmental Enforcement in the Department of the Interior.

Bureau or Office means one of the bureaus or offices within the Department of the Interior, other than OHA, and may include BIA, BIE, BLM, BOEM, BOR, BSEE, FWS, ONRR, OSMRE, or any predecessor or successor organization, as appropriate.

DCHD means the Departmental Cases Hearings Division in the Office of Hearings and Appeals.

Department means Department of the Interior.

Director means the Director of the Office of Hearings and Appeals.

FWS means the U.S. Fish and Wildlife Service in the Department of the Interior.

IBIA means the Interior Board of Indian Appeals in the Office of Hearings and Appeals.

IBLA means the Interior Board of Land Appeals in the Office of Hearings and Appeals.

Indian probate judge or IPJ means an attorney in the Office of Hearings and Appeals authorized to adjudicate Indian probate cases under 25 U.S.C. 372-2.

Interested person or entity means any person or entity with an interest in the agency proceeding that is greater than the interest that the public as a whole may have.

Judge means an administrative judge, an Indian probate judge, or an administrative law judge in the Office of Hearings and Appeals.

OHA means the Office of Hearings and Appeals in the Department of the Interior.

OHA Standing Order means a notice that contains information for parties and the public that is issued by the OHA Director pursuant to § 4.5(b)(4) and made available on the Department of the Interior OHA website at https://www.doi.gov/oha.

OHA Unit means the DCHD, IBIA, IBLA, or PHD

ONRR means the Office of Natural Resources Revenue in the Department of the Interior.

OSM or OSMRE means the Office of Surface Mining Reclamation and Enforcement in the Department of the Interior.

Person or entity means an individual; a corporation; partnership; trust; institution; association; organization; any other private entity; any officer, employee, agent, department, or instrumentality of the United States; any officer, employee, agent, department, or instrumentality of any Indian Tribe; or any officer, employee, agent, department, or instrumentality of any State or political subdivision.

PHD means the Probate Hearings Division in the Office of Hearings and Appeals.

Presiding officer means a judge, attorney, or other official designated by the Director to adjudicate a matter pending before the Office of Hearings and Appeals.

Secretary means the Secretary of the Interior.

Solicitor's Office means the Department of the Interior Solicitor's office.

Standing Appeals Board means the IBIA or IBLA.

WELSA means White Earth Reservation Land Settlement Act.

§ 4.20 Purpose and scope.

(a) Purpose. The purpose of this subpart is to establish general rules of practice, where appropriate.

(b) Scope. General rules applicable to proceedings before OHA are set forth in subparts A and B of this part. Rules applicable to particular units or a particular type of proceeding are set forth in other subparts of this part. Wherever there is any conflict between one of the general rules in subparts A or B of this part and a rule in another subpart of this part, the specific rule will govern. Other laws, regulations, and policies of the Department may also address and be applicable to a particular type of proceeding. In addition, part 1 of this subtitle, which regulates practice before the Department of the Interior, applies to proceedings before OHA.

§ 4.21 Exhaustion and finality.

(a) Exhaustion. An appeal must be filed with the Director or applicable Appeals Board to exhaust administrative remedies unless otherwise provided by applicable law or the decision is immediately effective.

(b) Finality —(1) Decisions not in effect. A decision that is not in effect pending completion of an appeal does not constitute final agency action for the Department.

(2) Decisions in effect. A decision that is in effect, or goes into effect, pending completion of an appeal is final agency action for the Department, subject to being superseded by a final decision of the Director or an Appeals Board.

(3) Final Department Decision. The final decision of the Director or an Appeals Board constitutes the final agency action of the Department and is effective on the date it is issued unless the decision provides otherwise.

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

(a) Retention of documents —(1) In general. All documents received in evidence in a hearing or submitted for the record in any proceeding before an OHA Unit will be retained in the official record of the proceedings.

(2) Withdrawal and substitution of original documents. The substitution of original documents may be permitted while the case is pending upon the submission of true copies. When a decision has become final for the Department, an Appeals Board in its discretion may, upon request and after notice to the other party or parties, permit the withdrawal of original documents in whole or in part. As a condition of granting permission for such withdrawal, the Appeals Board may require the substitution of true copies in its discretion and as necessary to ensure an accurate record of the proceeding.

(3) Sealed against disclosure. Transcripts of testimony and/or documents received or reviewed pursuant to § 4.31 will be sealed against disclosure to unauthorized persons and retained with the official record, subject to the withdrawal and substitution provisions.

(b) Record address information. At the time of initial filing, every person or entity who files a document in connection with any proceeding before OHA must provide their mailing address. A person or entity filing electronically must also provide the electronic mailing address that the person or entity intends to use in the proceeding.

(1) Address changes. A person or entity who has provided their address in a proceeding must promptly file and serve upon other parties to the proceeding, written notice of any change to their address information with the OHA Unit in which the matter is pending.

(2) Successors. The successors of a person or entity who has provided their address in a proceeding must promptly file notice of their own addresses.

(3) Failure to provide or update a record address. A person or entity who fails to provide or update their address information as required is not entitled to notice or service in connection with the proceeding until they have provided or updated their address information.

(c) Computation of time for filing and service. Except as otherwise provided by law, the following rules apply when computing any time period specified in a regulation, notice, order, or decision.

(1) Exclude the day of the event that triggers the time period;

(2) Count every day, including intermediate Saturdays, Sundays, and Federal holidays; and

(3) Include the last day of the period, but if the last day is a Saturday, Sunday, Federal holiday, or other nonbusiness day, the period continues to run until the end of the next day that is not a Saturday, Sunday, Federal holiday, or other nonbusiness day.

(d) Extensions of time. (1) The time for filing or serving any document may be extended by the presiding officer before whom the proceeding is pending, except for the time for filing a notice of appeal and except where such extension is contrary to law or regulation.

(2) A request for an extension of time must be filed within the time allowed for the filing or serving of the document and must be filed in the same office in which the proceeding is pending.

§ 4.23 Hearings or related proceedings.

(a) Transcripts. Hearings may be recorded, transcribed verbatim, or both. Interested parties may request a copy of the transcripts or recording of the hearing. The requesting party is responsible for fees and expenses of preparing their copy of a transcript or recording. For transcripts prepared by a contractor with a Department of the Interior bureau or office, each party is responsible for obtaining and paying for its copy of the transcript consistent with any statutory provisions governing the proceeding.

(b) Video, teleconferencing, or other suitable technology. In circumstances that the presiding officer deems appropriate, a hearing or proceeding may be conducted, in whole or in part, using video, teleconferencing, or other suitable technology.

§ 4.24 Basis of decision.

(a) Record. (1) The record of a hearing consists of the transcript of testimony or summary of testimony and exhibits together with all documents filed in conjunction with the hearing.

(2) If a hearing has been held on a referred issue of fact pursuant to § 4.337 or § 4.415, this record is the sole basis for decision on the referred issues of fact that are involved, except to the extent that official notice may be taken of a fact as provided in paragraph (b) of this section.

(3) Where a hearing has been held in other proceedings, the record made is the sole basis for decision except to the extent that official notice may be taken of a fact as provided in paragraph (b) of this section.

(4) In any case, no decision after a hearing or on appeal may be based upon any record, statement, file, or similar document that is not open to inspection by the parties to the hearing or appeal, except for documents or other evidence received or reviewed pursuant to § 4.31(d).

(b) Official notice. The presiding officer or an Appeals Board may take official notice of the public records of the Department of the Interior and of any matter of which the courts may take judicial notice.

§ 4.25 Oral argument and status conferences.

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

§ 4.26 Subpoena power and witness provisions for probate proceedings.

(a) Purpose. To the extent authorized by law, subpoenas may be issued by PHD ALJs or IPJs in a probate proceeding under part 30 of this subtitle, or by the presiding officer in a probate proceeding under subpart H of this part, to require the attendance of a person, the giving of testimony, or the production of documents or other relevant materials.

(b) Issuance. The ALJ, IPJ, or presiding officer may issue a subpoena on a form that contains the caption for the proceeding, specifies the name and address of the person or entity from whom the testimony or material is sought, and orders one or more of the following:

(1) If the subpoena requires the person to testify in person at a hearing or deposition, then the subpoena will order the person to appear at a specified date, time, and place;

(2) If the subpoena requires the person to testify at a hearing or deposition using video, teleconferencing, or other suitable technology, then the subpoena will order the person to appear at a specified date and time and will contain the information necessary to testify remotely; or

(3) If the subpoena requires the production of designated documents, electronically stored information, or other tangible materials by a nonparty, then the subpoena will order production by a specified date and will designate whether the production must occur in person, by mail, by third party commercial courier, or by electronic means.

(c) Service. A subpoena must be served by one of the following methods:

(1) In person. A subpoena may be served by any person who is not a party to the proceeding and is 18 years of age or older by hand-delivering a copy of the subpoena to the person or entity named in the subpoena; or

(2) By registered or certified mail. A subpoena may be served by registered or certified mail, with a return receipt requested, to the last known residential address or place of business of the person or entity named in the subpoena.

(d) Geographic limits. A witness may be required to attend a deposition or hearing at a place not more than 100 miles from the place of service, except that no geographic limits apply to attendance at a deposition or hearing that is conducted using video, teleconferencing, or other suitable technology that allows a witness to testify remotely.

(e) Witness fees. Witnesses subpoenaed by any party will be paid the same fees and mileage as are paid for like service in District Courts of the United States under 28 U.S.C. 1821. The witness fees and mileage will be paid by the party who requested the appearance. Any witness who appears without being subpoenaed is also entitled to the same fees and mileage to be paid by the party who requested the appearance. This paragraph does not apply to Government employees who are called as witnesses by the Government.

§ 4.27 Ex parte communication and disqualification.

(a) Definition of ex parte communication. (1) An ex parte communication is any oral or written communication related to the merits of a pending proceeding or appeal before OHA that was not on the record, not furnished to all other parties, or not made in the presence of all parties, and that takes place between:

(i) Any party to the proceeding or appeal or any person or entity interested in the proceeding or appeal; and

(ii) Any OHA personnel who is involved in, or who may reasonably be expected to become involved in, the decision-making process in that proceeding or appeal.

(2) The following types of communications are not ex parte communications:

(i) Communications concerning case status, case scheduling, or the availability of Alternative Dispute Resolution;

(ii) Communications concerning compliance with procedural requirements, unless that compliance is an area of controversy in the proceeding or appeal;

(iii) Communications between Bureau of Indian Affairs (BIA) employees and PHD employees about a probate case held pursuant to 43 CFR part 30, unless BIA has filed a petition for rehearing, reopening, or reconsideration in that case;

(iv) Communications between Interior Business Center (IBC) employees and OHA employees about an employee debt waiver request or appeal held pursuant to § 4.704 of this part; and,

(v) Communications between employees of the WELSA Project Office or the Bureau of Indian Affairs (BIA) and OHA employees about a probate case held pursuant to 43 CFR part 4, subpart H, unless the WELSA Project Office or BIA has filed a request for hearing, petition for reopening, or petition for reconsideration in that case.

(b) Prohibition. Any ex parte communication is prohibited.

(c) Procedure for addressing ex parte communication. (1) OHA personnel receiving an ex parte communication must place in the record for the pending proceeding or appeal the written communication or, if oral, a memorandum stating the substance of the oral communication.

(2) The affected OHA unit must provide, or order the person or entity that made the ex parte communication to provide, the communication to all parties and provide them with an opportunity to respond in writing, and any response must be placed in the record for the pending proceeding or appeal.

(d) Sanctions for ex parte communication. (1) After considering the relevant circumstances and the nature of the violation, the Director, Appeals Board, or presiding officer may impose appropriate sanctions on a party who knowingly made or knowingly caused to be made a prohibited ex parte communication. Appropriate sanctions for an ex parte communication may include:

(i) Ruling adversely on the issue that was the subject of the ex parte communication; or

(ii) Requiring the party to show cause why its claim, motion, or interest should not be dismissed, denied, or otherwise adversely affected.

(2) Before imposing sanctions, the Director, Appeals Board, or presiding officer will provide notice and an opportunity to respond.

(3) The appropriate supervisor is responsible for notifying the Director and, in accordance with Department regulations and policy, disciplining OHA personnel who knowingly made or caused to be made a prohibited ex parte communication.

§ 4.28 Interlocutory appeals.

Interlocutory appeals from a ruling of an ALJ or IPJ are not permitted unless an ALJ or IPJ has certified the interlocutory ruling or abused their discretion in refusing a request to certify and an Appeals Board has granted permission for such an appeal. An Appeals Board will not grant permission for an interlocutory appeal except upon a showing that the interlocutory ruling involves a controlling question of law about which there are substantial grounds for a difference of opinion and that an immediate appeal will materially advance the completion of the proceeding. An interlocutory appeal will not operate to suspend the hearing unless otherwise ordered by the Appeals Board.

§ 4.29 Disqualification of presiding officers and board members.

(a) A presiding officer or Board member must withdraw from a case if circumstances exist that would disqualify a judge under the recognized canons of judicial ethics.

(b) A party may file a motion seeking the disqualification of a presiding officer or Board member, setting forth in detail the circumstances that the party believes require disqualification. Any supporting facts must be established by affidavit or other sufficient evidence. The moving party must also send a copy of the motion to the Director.

(c) The chief judge of the appropriate OHA unit or the Director may decide whether disqualification is required if the presiding officer or Board member does not withdraw under paragraph (a) of this section or in response to a motion under paragraph (b) of this section.

§ 4.30 Alternative dispute resolution.

While a matter is before OHA, the Director or OHA Unit may notify the parties at any time that the matter has been identified as a candidate for Alternative Dispute Resolution (ADR). The notice will describe the available options and may include an order directing the parties to participate in an assessment conference or otherwise communicate whether they are willing to participate in an ADR process. While a matter is pending before OHA, an individual party or the parties jointly may ask the Director or OHA Unit about the availability of ADR in the matter. The use of an ADR process is entirely voluntary and will only be used if all parties agree to participate.

§ 4.31 Limiting disclosure of confidential information.

(a) Confidential information. Confidential information includes information that is exempt from public disclosure under:

(1) The Freedom of Information Act (5 U.S.C. 552);

(2) The Trade Secrets Act (18 U.S.C. 1905); or

(3) Other laws that exempt the information from public disclosure.

(b) Filing a motion for a protective order. A person or entity who intends to file a document that may contain confidential information, and who wishes to prevent or limit disclosure of that confidential information, must also file and serve a motion for a protective order. The motion for a protective order must include the following.

(1) A statement specifying the factual and legal justification for nondisclosure.

(2) A copy of the document with the information exempt from disclosure redacted, or if it is not practicable to submit a copy of the document because redaction of the information would render the document unintelligible, a description of the document.

(3) A statement indicating one of the following:

(i) That the confidential information may be disclosed to other parties to the proceeding or appeal who agree in a written affidavit or declaration under penalty of perjury to the following conditions:

(A) Not to use or disclose the information except in the context of the proceeding or appeal;

(B) Not to retain the information in any format after the conclusion of the proceeding or appeal; and

(C) To return all physical copies of the information at the conclusion of the proceeding or appeal to the person or entity who submitted the information; or

(ii) That disclosure of the identified confidential information in that document to another party to the proceeding is prohibited by law, notwithstanding the conditions provided in paragraph (b)(3)(i) of this section. This paragraph (b)(3)(ii) does not apply to hearings conducted pursuant to 5 U.S.C. 554. When this paragraph (b)(3)(ii) applies, the person or entity submitting the confidential information must include the following in the motion for a protective order:

(A) A request that the presiding officer or Appeals Board consider the confidential information as a basis for its decision without disclosing it to the other party or parties.

(B) A statement explaining why disclosure is prohibited, citing pertinent statutory or regulatory authority. If the prohibition on disclosure is intended to protect the interest of a person or entity who is not a party to the proceeding, the person or entity making the request must demonstrate that such person or entity refused to consent to the disclosure of the confidential information to other parties to the proceeding.

(c) Ruling on motion for a protective order. (1) If the motion for a protective order satisfies the requirements of paragraph (b)(3)(i) of this section, the presiding officer or Appeals Board will grant the protective order. The presiding officer or Appeals Board may direct that the information be filed under seal and will require service of the information on the other parties to the proceeding or appeal upon filing of the written agreement required in paragraph (b)(3)(i) of this section. The information will be disclosed to the parties to the proceeding or appeal only under the conditions of paragraph (b)(3)(i) of this section unless the Department determines the confidential information must be released under the Freedom of Information Act or in accordance with part 2 of this title.

(2) If the motion for a protective order satisfies the requirements of paragraph (b)(3)(ii) of this section, the presiding officer or Appeals Board will grant the protective order. The presiding officer or Appeals Board may direct that the information be filed under seal and will not disclose the information unless the Department determines the confidential information must be released under the Freedom of Information Act or in accordance with part 2 of this title.

(3) If the presiding officer or Appeals Board denies a motion for a protective order seeking to prevent disclosure of confidential information to the parties to a proceeding or appeal under paragraph (b)(3)(ii) of this section, the presiding officer or Appeals Board must provide the person or entity who submitted the information an opportunity to withdraw the information before it is further considered by the presiding officer or Appeals Board unless a Freedom of Information Act request, administrative appeal from the denial of a request, or lawsuit seeking release of the information is pending.

(d) Waiver. If the person or entity submitting a document does not specify that the document contains confidential information, the presiding officer or Appeals Board may assume that the person or entity submitting the document does not object to public disclosure of any confidential information contained in that document or may allow a reasonable period of time to redact any confidential information identified after filing.

(e) Confidential information in an OHA decision. Where a decision by a presiding officer or Appeals Board is based, in whole or in part, on confidential information subject to a protective order, the presiding officer or Appeals Board must specify the nature of the confidential information and the provision of law under which disclosure was denied and must retain the confidential information under seal as part of the official record.

§ 4.32 Filing; service; issuance.

The provisions of this section do not apply to proceedings under subparts C, D, E, H, J, K and L of this part.

(a) Filing —(1) Generally. A document required or permitted to be filed in a proceeding must be delivered to the office where the filing is required as specified in this part or part 30 of this title, the OHA Standing Orders on Contact Information, and the OHA Standing Orders on Electronic Transmission.

(2) Methods of filing —(i) Electronic. A document may be filed electronically under the terms specified in the OHA Standing Orders on Electronic Transmission. Any Federal, State, or local agency, or any attorney representing a person or entity, must file electronically, unless otherwise specified in the OHA Standing Orders on Electronic Transmission or when the OHA unit where the filing is required has allowed non-electronic filing for good cause.

(ii) Non-electronic. Any document filed non-electronically must be delivered to the office where the filing is required at the address specified in the OHA Standing Orders on Contact Information.

(3) Timeliness —(i) Electronic. A document filed electronically is deemed timely if filed by 11:59 p.m. in the time zone of the office where the document is due on the date the document is due under the terms specified in the OHA Standing Orders on Electronic Transmission.

(ii) Non-electronic. A document not filed electronically is deemed timely filed if, on or before the last day for filing, it is sent by first-class United States mail, or other class of mail that is at least as expeditious, postage prepaid; or it is dispatched to a third-party commercial courier for delivery within 3 days. The date of mailing or dispatch must be documented by a postmark date, acceptance scan, receipt, or similar written acknowledgement from the company delivering the document for filing. A document not received within 7 business days of the filing deadline is presumed untimely, but the presumption may be overcome by the appropriate documentation establishing the date of mailing or dispatch.

(b) Service —(1) Generally. Any person or entity who files a document in a proceeding before OHA must also serve the document under the terms specified in this section and in the OHA Standing Orders on Electronic Transmission and the OHA Standing Orders on Contact Information.

(2) Service on represented parties. Service on a party known to be represented by counsel, or another designated representative, must be made on the representative.

(3) Manner of service —(i) Electronic. Service may be made electronically on the Office of the Solicitor and the bureau or office whose decision is being appealed under the terms specified in the OHA Standing Orders on Electronic Transmission. Service may be made electronically on all other persons or entities who have consented to electronic service under the terms specified in the OHA Standing Orders on Electronic Transmission.

(ii) Non-electronic. Service may be made non-electronically by United States mail or third-party commercial courier for delivery within 3 days.

(c) Issuance —(1) Electronic. A notice, order, or decision by an OHA Unit may be issued electronically under the terms specified in the OHA Standing Orders on Electronic Transmission, or in specific rules applicable to particular OHA Units or particular types of proceedings.

(2) Non-electronic. Unless otherwise specified, non-electronic issuance may be made by U.S. mail, personal delivery, or third-party commercial courier.

§ 4.100 Purpose and scope.

(a) Purpose. This subpart contains the general procedural rules for practice before the Departmental Cases Hearings Division (DCHD) at §§ 4.100 through 4.131, as well as the specific rules applicable to certain types of proceedings before DCHD at §§ 4.150 through 4.175.

(b) Scope. The general procedural rules for practice before DCHD at §§ 4.100 through 4.131 apply to all types of proceedings within the jurisdiction of DCHD except the following:

(1) Hydropower proceedings governed by part 45 of this title;

(2) Tribal Acknowledgement proceedings governed by subpart K of this part;

(3) Indian Self-Determination and Education Assistance Act proceedings governed by 25 CFR part 900 and 42 CFR part 137, subpart P;

(4) Administrative Remedies for Fraudulent Claims and Statements governed by 43 CFR part 35 of this title; and

(5) Debt collection proceedings governed by the Departmental Manual.

(c) Subparts A and B. The general rules contained in subparts A and B of this part are applicable to proceedings before DCHD unless they are inconsistent with the rules in this subpart. Subpart A contains the authority, jurisdiction, and membership of DCHD. Subpart B contains the general rules applicable to proceedings before DCHD and other components of the Office of Hearings and Appeals (OHA).

(d) Other regulations. Rules applicable to specific types of proceedings within the jurisdiction of DCHD are contained throughout title 43 and in other portions of the Code of Federal Regulations, including, but not limited to, titles 25, 30, 34, and 50. To the extent that a rule applicable to a specific type of proceeding directly conflicts with the general procedural rules for practice before DCHD in this subpart, the specific rule will apply. If a specific rule contains references to outdated or inapplicable procedures, the ALJ may direct the parties, in writing, to follow some or all of the procedures contained in the general procedural rules for practice before DCHD in this subpart.

(e) Standing Orders. Standing Orders issued by the Director of OHA may also apply to proceedings before DCHD. Standing Orders are available on the Department of the Interior OHA website at https://www.doi.gov/oha.

§ 4.101 Definitions.

In addition to the definitions in subpart A, the following definitions apply to this subpart:

Administrative law judge (ALJ) means an administrative law judge appointed to the Departmental Cases Hearings Division (DCHD).

DCHD means the Departmental Cases Hearings Division in the Office of Hearings and Appeals.

§ 4.102 Filing, service, and issuance.

(a) Filing —(1) Generally. Any document filed in a proceeding before DCHD must be delivered as specified in this subpart and in the OHA Standing Orders on Electronic Transmission and the OHA Standing Orders on Contact Information found on the Department of the Interior OHA website at https://www.doi.gov/oha.

(2) Methods of filing —(i) Electronic. A document may be filed electronically under the terms specified in the OHA Standing Orders on Electronic Transmission. Any Federal, State, or local agency and any attorney representing a person or entity must file electronically, unless otherwise specified in the OHA Standing Orders on Electronic Transmission or when the ALJ has allowed non-electronic filing for good cause.

(ii) Non-electronic. A document not filed electronically must be delivered to DCHD at the address specified in the OHA Standing Orders on Contact Information.

(3) Timeliness —(i) Electronic. A document filed electronically is deemed timely if filed by 11:59 p.m. Mountain Time on the date the document is due under the terms specified in the OHA Standing Orders on Electronic Transmission.

(ii) Non-electronic. A document not filed electronically is deemed timely filed if, on or before the last day for filing, it is sent by first-class United States mail, or other class of mail that is at least as expeditious, postage prepaid; or it is dispatched to a third-party commercial courier for delivery within 3 days. The date of mailing or dispatch must be documented by a postmark date, acceptance scan, receipt, or similar written acknowledgement from the carrier delivering the document for filing. A document not received within 7 business days of the filing deadline is presumed untimely, but the presumption may be overcome by the documentation establishing the date of mailing or dispatch.

(b) Service —(1) Generally. Any person or entity who files a document in a proceeding before DCHD must also serve the document under the terms specified in this section and in accordance with the OHA Standing Orders on Electronic Transmission and the OHA Standing Orders on Contact Information.

(2) Person or entity to serve. A person or entity that files any document with DCHD must serve a copy of the document concurrently as follows:

(i) For a notice of appeal or other document initiating a proceeding, on the bureau or office where the proceeding originated; on each person or entity named in the decision on appeal or identified in the document authorizing the initiation of the proceeding; and on the appropriate official of the Office of the Solicitor as specified in the OHA Standing Orders on Contact Information; and

(ii) For all other documents, on each party to the proceeding (including intervenors).

(3) Service on represented parties. Service on a party known to be represented by an attorney, or another designated representative, must be made on the representative. Parties must serve the appropriate office of the Office of the Solicitor as provided in the OHA Standing Orders on Contact Information until a particular attorney of the Office of the Solicitor files and serves a notice of appearance or other document in the proceeding, after which that attorney must be served. If the proceeding involves another Federal Government agency, such as a mining claim on national forest land, service must be on the appropriate office of the Government agency involved until a particular attorney serves a notice of appearance or other document in the proceeding, after which that attorney must be served.

(4) Service address. Every person or entity who files a document in connection with a proceeding before DCHD must provide the mailing or electronic address that the person or entity intends to use for service in the proceeding. A person or entity seeking to receive service electronically must consent to electronic service as required by paragraph (b)(6)(i) of this section. If a person or entity has not consented to electronic service, then anyone serving a document on that person or entity must use the mailing address in the person's or entity's most recent filing or, if there has not been any filing, the mailing address of the person or entity as provided by the bureau or office where the proceeding originated.

(5) Address changes. A party whose mailing or electronic address changes during the proceeding must promptly file and serve a written notice of the change. The notice must specify the proceedings to which the notice applies using the applicable docket number or docket numbers when available.

(6) Manner of service. A document may be served electronically or non-electronically as follows:

(i) Electronic. Service may be made electronically on the Office of the Solicitor and the bureau or office under the terms specified in the OHA Standing Orders on Electronic Transmission. Service may be made electronically on all other persons or entities who have consented to electronic service under the terms specified in the OHA Standing Orders on Electronic Transmission.

(ii) Non-electronic. Service may be made non-electronically by United States mail or third-party commercial courier for delivery within 3 days. In contest cases, service may be made by publication for complaints initiated under § 4.163.

(7) Certificate of service. At the conclusion of any document that a party must serve under the regulations in this subpart, the party or the party's representative must sign a written statement that:

(i) Certifies that service has been or will be made in accordance with the applicable rules; and

(ii) Specifies the date and manner of service.

(8) Completion of service —(i) Electronic. Service by electronic means is complete on sending or as otherwise provided under the terms specified in the OHA Standing Orders on Electronic Transmission, unless the party making service is notified that the document was not received by the party served.

(ii) Non-electronic. Service by mail or by commercial courier is complete on mailing or dispatch to the carrier. The date of mailing or dispatch must be documented by a postmark date, acceptance scan, receipt, or other similar written acknowledgement from the carrier delivering the document.

(iii) Publication. Service by publication is complete when the requirements set forth in § 4.163 have been satisfied.

(c) Issuance. An ALJ may issue notices, orders, decisions, or other documents electronically or non-electronically as follows:

(1) Electronic. A notice, order, decision, or other document will be issued electronically to the electronic service address provided by the person or entity, and service is complete on sending or as otherwise specified by the OHA Standing Orders on Electronic Transmission.

(2) Non-electronic. If an electronic service address has not been provided, then:

(i) A non-appealable notice, order, decision, or other document will be issued by first-class United States mail or third-party commercial courier to the mailing address provided by the person or entity or, if not provided, to the last known address, and service is complete on mailing or dispatch; and

(ii) An appealable order or decision will be sent by certified United States mail to the mailing address provided by the person or entity or, if not provided, to the last known mailing address, and service is complete when received. If an order or decision sent by certified mail is not claimed by the recipient or is returned as undeliverable, then service will be made by first-class United States mail, and service is deemed complete when mailed.

§ 4.103 Document formatting.

(a) Scope. The formatting requirements of this section apply to any notice, motion, brief, or other document filed under this subpart, whether filed electronically or in paper form. These formatting requirements do not apply to exhibits, attachments, or documents appended to or provided in addition to a party's notice, motion, brief, or other pleading.

(b) General requirements. All documents must:

(1) Be captioned with a docket number and a document title;

(2) Be formatted for 8.5 by 11-inch paper, and if filed in paper form, be printed on just one side of the page with a staple or other binding in the upper left-hand corner;

(3) Be typewritten, printed, or otherwise reproduced so that the document is clearly legible;

(4) Use 12-point font size or larger;

(5) Be double-spaced except for the caption, argument headings, long quotations, and footnotes which may be single-spaced;

(6) Have margins of at least 1 inch on all four sides;

(7) Have pages that are numbered sequentially;

(8) Be signed, or digitally signed, by the party or the party's representative;

(9) Include the mailing or electronic address that the person or entity intends to use for service in the proceeding; and

(10) Be in an electronic text-searchable portable document format (PDF) if filed electronically, maintaining original document formatting unless otherwise provided by the OHA Standing Orders on Electronic Transmission.

(c) Exclusions from page numbering computations. Any document subject to page limitations as set forth in this subpart or an order issued by the ALJ may exclude from the page numbering computations: any cover page, table of contents, table of authorities, signature blocks, certificates of service, indices, attachments, and exhibits.

(d) Consequences of noncompliance. The ALJ may strike and not consider any pleading or document that fails to comply with the requirements of this section.

§ 4.104 Prehearing conferences.

(a) Purpose. The ALJ may conduct one or more prehearing conferences to facilitate the efficient, fair, and timely resolution of a proceeding.

(b) Notice and timing. At the discretion of the ALJ, prehearing conferences may be scheduled at any appropriate time during the proceeding by issuing an order directing the parties, or their representatives, to appear at a specified date and time. A prehearing conference may occur by telephone, videoconference, or other appropriate means.

(c) Matters for consideration. An ALJ may conduct one or more prehearing conferences to consider scheduling, case management, and other matters including, but not limited to:

(1) Simplifying or narrowing the issues;

(2) Consolidating proceedings;

(3) Discussing the utility of settlement or alternative dispute resolution procedures;

(4) Ascertaining the appropriateness and timing of discovery, including the resolution of any discovery disputes;

(5) Determining the appropriateness and timing of any prehearing motions, including motions for summary judgment and other dispositive motions;

(6) Evaluating the possibility of obtaining agreements or stipulations related to facts or documents;

(7) Scheduling a hearing and establishing appropriate hearing procedures;

(8) Identifying witnesses and exhibits and scheduling the timing for prehearing disclosures;

(9) Addressing issues associated with the admission of evidence;

(10) Resolving specific procedural disputes and adopting procedures to manage any potentially difficult or complex issues;

(11) Establishing appropriate case-management deadlines; and

(12) Discussing any other matters that may aid in the disposition of the proceeding.

(d) Final prehearing conference. Prior to the commencement of any hearing, the ALJ may conduct a final prehearing conference to formulate a hearing plan and to facilitate the admission of evidence and the presentation of witnesses.

(e) Request to schedule prehearing conference. A party may request that the ALJ schedule a prehearing conference by filing a written motion that demonstrates a reasonable justification for the scheduling request.

(f) Post-conference orders. After a prehearing conference, the ALJ will issue an order documenting the actions agreed on and the rulings made by the ALJ during the prehearing conference. The post-conference order will control the subsequent course of the proceeding, unless modified by the ALJ in a written order.

(g) Consequences of noncompliance. In accordance with § 4.121, an ALJ may sanction a person or entity that fails to appear for a prehearing conference, fails to participate in good faith, or fails to comply with the terms of a post-conference order.

§ 4.105 Prehearing motions.

(a) Overview. A party may apply for an order requesting relief by presenting a motion to the ALJ. A motion made prior to a hearing must be presented in writing, unless otherwise authorized by the ALJ. Motions must conform to the general requirements of this section as well as any provisions in this subpart applicable to the specific type of motion, except that motions for summary judgment are governed by § 4.111.

(b) Motion. A motion must be filed and served in accordance with §§ 4.102 and 4.103 and must comply with the following:

(1) Timing. A motion may be filed any time after the commencement of a proceeding unless a different deadline has been prescribed by a provision of this subpart or in an order issued by the ALJ.

(2) Page limits. A motion may not exceed 15 pages unless the ALJ orders otherwise.

(3) Content. A motion must clearly and concisely state:

(i) The purpose of the motion and the relief sought;

(ii) The factual basis for the relief sought; and

(iii) The legal arguments and reasons supporting the motion, including citations to any applicable legal authority.

(c) Response. A response brief must be filed and served in accordance with §§ 4.102 and 4.103 and must comply with the following:

(1) Timing. A response brief must be filed within 14 days after filing of the motion unless a different response period is prescribed by a provision in this subpart or an order issued by the ALJ.

(2) Page limits. A response may not exceed 15 pages unless the ALJ orders otherwise.

(3) Content. A response must clearly and concisely state:

(i) Whether the party opposes or supports the relief sought in the motion;

(ii) The factual basis for the response; and

(iii) The legal arguments and reasons supporting the response, including citations to any applicable legal authority.

(d) Reply. No reply or further briefing related to the motion will be accepted unless authorized by ALJ.

(e) Supporting documentary materials. Exhibits, attachments, affidavits, declarations, or other documentary materials supporting a motion or response must be directly referenced in the motion or response using pinpoint citations that identify the specific page(s) or paragraph number(s) where the supporting text is located. Supporting documentary materials must be submitted with the motion or response unless the supporting materials have already been filed with DCHD.

(f) Procedural motions. The ALJ may rule on a motion requesting procedural relief without waiting for a response. Types of motions seeking procedural relief include, but are not limited to, requests to modify a deadline, reschedule an action, allow additional briefing, or permit the filing of an overlength brief.

(g) Summary denial. An ALJ may summarily deny a motion without waiting for a response when the motion is frivolous, is repetitive, or would cause undue delay.

§ 4.106 Extension of time.

(a) Scope. A party may request an extension of time for filing a document, other than a notice of appeal or a document initiating the proceeding, by filing and serving a written motion.

(b) Timing. A motion for an extension of time must be filed no later than the day before the document is due, absent a showing of compelling circumstances.

(c) Good cause. A motion for an extension of time must demonstrate good cause.

(d) Duty to confer. Prior to filing a motion for an extension of time, the moving party must make a reasonable effort to contact each party to determine whether an agreement can be reached regarding the requested extension. In the motion, the moving party must state:

(1) Whether any other party agrees to all, or part, of the relief requested;

(2) Whether any other party objects to all, or part, of the relief requested; and

(3) Any steps taken to contact a party it was unable to reach.

(e) Inaction. If the ALJ does not act on the motion before the document is due, the document must be filed no later than 7 calendar days after the original due date, unless the ALJ orders otherwise.

§ 4.107 Consolidation and severance.

(a) Consolidation. The ALJ may consolidate two or more proceedings when they involve common factual or legal issues. Proceedings may be consolidated on the motion of a party or at the initiative of the ALJ.

(b) Severance. Once consolidated, proceedings may be severed by the ALJ on the motion of a party or at the initiative of the ALJ. When determining whether to sever, the ALJ may consider any relevant factors, including any impacts on the efficient, just, and timely resolution of the proceedings.

§ 4.108 Intervention and amicus curiae.

(a) Intervention —(1) Motion to intervene. Any person or entity that wants to participate in a proceeding as an intervenor must file a written motion and must serve a copy of the motion on all parties to the proceeding.

(2) Who may request intervention. A person or entity may seek intervention if:

(i) The person or entity had a legal right to initiate the proceeding; or

(ii) The person or entity has an interest that could be adversely affected by the outcome of the proceeding.

(3) Contents of motion. A motion to intervene must contain:

(i) The factual and legal basis supporting the motion to intervene, including citations to any applicable legal authority; and

(ii) A statement indicating when the person or entity requesting intervention learned of the proceeding.

(4) Ruling on motion. The ALJ may:

(i) Grant the motion;

(ii) Grant the motion but limit participation by the person or entity; or

(iii) Deny the motion if:

(A) The movant fails to meet the requirements of this section; or

(B) The ALJ determines that granting the motion would materially prejudice the existing parties or unduly delay adjudication of the proceeding.

(5) Party status. A person or entity granted full or limited intervenor status is a party to the proceeding. If the ALJ denies the motion to intervene, the ALJ may allow the person or entity to file a brief as amicus curiae.

(b) Amicus curiae —(1) How to request amicus curiae status. Any person or entity that wants to file a brief in the proceeding as amicus curiae must file a written motion. The motion must describe the interest of the person or entity in the proceeding and explain how an amicus brief will contribute to the resolution of the issues. The motion must be served on all parties to the proceeding.

(2) Ruling on motion. The ALJ has the discretion to grant or deny the motion and may consider any relevant factors, including whether an amicus brief would contribute to the resolution of the issues or cause undue delay.

(3) Party status. A person or entity granted amicus curiae status is not a party to the proceeding.

(4) Amicus brief. A person or entity granted amicus curiae status must serve its brief on all parties to the proceeding.

§ 4.109 Notice of appearance; substitution of attorneys; and attorney withdrawal.

(a) Notice of appearance. To ensure proper service of pleadings, notices, orders, and decisions, an attorney or other representative must file and serve a notice of appearance and promptly notify DCHD and all other parties to the proceeding of any changes to legal representation.

(b) Attorney substitution —(1) Form and content. A party may substitute attorneys by filing and serving a notice of substitution that includes the pertinent contact information for the new attorney.

(2) Effectiveness. The notice of substitution is effective upon filing.

(c) Attorney withdrawal —(1) Form and content. Except as provided in paragraph (b) of this section, an attorney may request to withdraw as the representative for a party by filing a written motion. The motion must be served on all parties to the proceeding as well as the attorney's client(s) and must contain:

(i) Pertinent contact information for the attorney's client(s);

(ii) A statement explaining why the withdrawal will not unfairly prejudice the attorney's client(s); and

(iii) A statement that the attorney has taken appropriate steps to protect the interests of the client(s) such as providing reasonable notice, allowing adequate time for the employment of another attorney, and surrendering files related to the proceeding.

(2) Effectiveness. A withdrawal is not effective until the ALJ rules on the motion, which may be conditioned or denied by the ALJ to avoid prejudice to the attorney's client(s) and other parties.

§ 4.110 Voluntary withdrawal and stipulated dismissal.

(a) Voluntary withdrawal. At any time, a party that initiated a proceeding may request a voluntary withdrawal by filing and serving a motion to dismiss that confirms the party's intention to voluntarily withdraw from the proceeding. A party's voluntary withdrawal is effective when the ALJ issues an order of dismissal.

(b) Stipulated dismissal. When all parties to a proceeding agree and stipulate to the dismissal of a proceeding, they may file and serve a joint motion to dismiss. The stipulated dismissal is effective when the ALJ issues an order dismissing the proceeding.

§ 4.111 Summary judgment.

(a) Overview. The summary judgment procedure is a method for resolving proceedings in which there is no genuine dispute as to any material fact. If the ALJ determines that no genuine dispute exists as to any material fact and the movant is entitled to a decision as a matter of law, the ALJ will issue a written order resolving the matter and will not conduct an evidentiary hearing.

(b) Guidance. Although the Federal Rules of Civil Procedure do not apply to proceedings before DCHD, corresponding provisions contained in the Federal summary judgment rule set forth at Rule 56—and Federal case law interpreting Rule 56—may serve as guidance in administrative adjudications when not in conflict with this section.

(c) Motion. A motion for summary judgment must be filed and served in accordance with §§ 4.102 and 4.103 and must comply with the following:

(1) Timing. A motion for summary judgment must be filed by the deadline established in a written order issued by the ALJ.

(2) Page limits. A motion for summary judgment may not exceed 30 pages unless the ALJ orders otherwise.

(3) Scope. A party may move for summary judgment as to all of the issues in the proceeding or may request a partial summary judgment as to some of the issues.

(4) Standard. The moving party must demonstrate that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.

(5) Content. A summary judgment motion must include:

(i) A clear and concise statement identifying each issue on which summary judgment is sought;

(ii) A statement of the material facts for which the moving party asserts there is no genuine dispute, which must be supported by documentary evidence; and

(iii) A discussion of the legal arguments and reasons supporting the motion for summary judgment, including citations to applicable legal authority.

(d) Response. A response to a motion for summary judgment must be filed and served in accordance with §§ 4.102 and 4.103 and must comply with the following:

(1) Timing. Unless the ALJ orders otherwise, any other party to the proceeding may file a response to the summary judgment motion within 28 days after the filing of the summary judgment motion. A response may be accompanied by a cross-motion for summary judgment requesting full or partial relief.

(2) Response to cross-motion. If a party files a cross-motion for summary judgment, any other party to the proceeding may file a response within 28 days after the filing of the cross-motion unless a different response period is ordered by the ALJ.

(3) Page limits. Responses may not exceed 30 pages unless the ALJ orders otherwise. If a party elects to combine a response and cross-motion in a single document, then the combined document may not exceed 50 pages unless the ALJ orders otherwise.

(4) Content. A response must include:

(i) A clear and concise statement indicating whether the party opposes or supports the motion for summary judgment with respect to each issue identified in the motion for summary judgment;

(ii) A statement of any material facts relied on in the response, which must be supported by documentary evidence, and if the party opposes summary judgment on one or more issues, the response must specifically identify any genuinely disputed material facts or the basis for any assertion that a fact cannot be established; and

(iii) A discussion of the legal arguments and reasons for opposing or supporting the summary judgment motion, including citations to applicable legal authority.

(e) Reply. No reply or further briefing related to the summary judgment motion will be accepted unless authorized by the ALJ.

(f) Declaration or affidavit. A declaration or affidavit used to support or oppose a motion for summary judgment must be made on personal knowledge, cite facts that would be admissible in evidence, and show that the declarant or affiant is competent to testify on the matters stated.

(g) Supporting materials. Any assertions of fact in a motion or response must be supported by documentary evidence and must reference any exhibits, attachments, affidavits, declarations, or other materials using pinpoint citations that identify the specific page(s) or paragraph number(s) where the supporting text is located. Documentary evidence must be submitted with the motion or response unless the supporting materials have already been filed with DCHD.

(h) Consideration by ALJ. (1) To facilitate consideration of any summary judgment motion, the ALJ may direct the parties to confer and attempt to agree on joint stipulations of fact.

(2) The ALJ need only consider the materials cited by the parties, but the ALJ may consider other materials that are part of the record of the proceeding.

(3) The ALJ may take official notice of a factual matter under 43 CFR 4.24(b) in the same manner as a Federal district court may take judicial notice.

(4) If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, the ALJ may:

(i) Provide an opportunity to properly support or address the fact;

(ii) Consider the fact undisputed for purposes of the motion;

(iii) Grant summary judgment if the motions and supporting materials, including the facts considered undisputed, show that the moving party is entitled to a summary judgment order; or

(iv) Issue any other appropriate order.

(5) If a nonmoving party establishes by declaration or affidavit that the party cannot, for good cause shown, present facts essential to justify its opposition, the ALJ may:

(i) Defer consideration of the motion;

(ii) Deny the motion;

(iii) Allow time for the nonmoving party to obtain evidence by discovery or other methods; or

(iv) Issue any other appropriate order.

(i) Order. The ALJ will issue a written order granting or denying a motion for summary judgment, in whole or in part. A motion for summary judgment may only be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

§ 4.112 Discovery generally.

(a) Overview. Discovery is a prehearing process that allows a party to obtain relevant facts and information from another party during a proceeding.

(b) Guidance. Although the Federal Rules of Civil Procedure do not apply to proceedings before DCHD, corresponding Federal discovery provisions in portions of Rules 26 through 37—and Federal case law interpreting Rules 26 through 37—may serve as guidance in administrative adjudications when not in conflict with the discovery rules in this subpart.

(c) Scope. As authorized by an ALJ, a party may engage in discovery regarding any nonprivileged matter that is relevant to the issues in the proceeding and proportional to the needs of the case. Relevant information need not be admissible at hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(d) Methods of discovery. During a prehearing conference, or on the motion of a party, the ALJ may authorize discovery by one or more of the following methods:

(1) Written interrogatories (§ 4.113);

(2) Requests for production (§ 4.114);

(3) Requests for admission (§ 4.115); or

(4) Depositions (§ 4.116).

(e) Signatures. Discovery requests must be signed by the party's representative or the party, if unrepresented. Answers and responses to discovery requests must be signed by the person providing the answers or responses on behalf of the party. Objections must be signed by the party's representative or the party, if unrepresented. A signature certifies that to the best of that person's knowledge, information, and belief formed after a reasonable inquiry that:

(1) The answer or response is complete and accurate at the time it is signed; and

(2) The request, answer, response, or objection is:

(i) Consistent with any applicable regulations or ALJ orders;

(ii) Nonfrivolous;

(iii) Not made for any improper purpose such as delay or harassment; and

(iv) Not unreasonable or unduly burdensome.

(f) Limitations. At the discretion of the ALJ, or on the motion of a party, the ALJ may limit the frequency or extent of discovery authorized in §§ 4.113 through 4.116 by:

(1) Not allowing the requested discovery;

(2) Limiting the number of interrogatories, requests for production, or depositions or restricting the time, place, or length of any deposition;

(3) Imposing specific limits or parameters on the production of electronically stored information when not reasonably accessible because of undue burden or cost;

(4) Allowing only specific methods of discovery;

(5) Finding that certain matters may not be inquired into or that discovery will be limited in scope to certain matters; and

(6) Issuing protective orders.

(g) Protective orders. A protective order may be issued so that confidential, privileged, or sensitive information will not be revealed or only disclosed in a specified manner. The ALJ may issue a protective order based on a motion filed by one party or a joint motion by all parties to the proceeding. A motion for a protective order filed by one party must contain a certification that the movant conferred, or attempted to confer, with the other parties in good faith. Any responses to a motion for protective order must be filed within 14 days after filing of the motion, unless the ALJ specifies a different response period.

(h) Cooperation. The parties are encouraged to cooperate in good faith and reach agreements, where possible, regarding the discovery process, the exchange of information, and the resolution of any discovery disputes.

§ 4.113 Interrogatories.

(a) Generally. When authorized by the ALJ, a party may conduct discovery by serving written interrogatories on any other party. Unless the parties agree or the ALJ orders otherwise, a party may not serve more than 20 written interrogatories on each party. For purposes of the 20-interrogatory limitation, each discrete subpart of an interrogatory counts as a separate interrogatory.

(b) Answers and objections. Unless a longer or shorter time period is agreed to by the parties or ordered by the ALJ, answers and objections must be served within 28 days of service of the interrogatories. Each interrogatory must be answered separately and fully in writing, unless it is objected to, in whole or in part, in which event the reasons for the objection must be stated with specificity in place of the answer. Answers and objections must be signed in accordance with § 4.112(e). Answers must be signed by the person providing the answer, and objections must be signed by the party's representative or the party, if unrepresented.

§ 4.114 Requests for production.

(a) Generally. When authorized by the ALJ, a party may conduct discovery by serving a written request on any other party to:

(1) Produce, or permit the requesting party to arrange for the inspection and copying of, any specified documents or electronically stored information in the responding party's possession, custody, or control;

(2) Permit the requesting party, or someone acting on the requesting party's behalf, to inspect, copy, test, or sample any tangible things in the responding party's possession, custody, or control; or

(3) Permit the requesting party, or someone acting on the requesting party's behalf, to enter onto designated land or property in the possession or control of the responding party for the purpose of inspecting, measuring, surveying, photographing, examining, testing, or sampling.

(b) Content of request. As applicable, each request must set forth with particularity:

(1) The item or category of items to be produced, copied, or inspected;

(2) A reasonable time, place, and manner for any inspection and related acts; and

(3) The form in which electronically stored information is to be produced.

(c) Responses and objections. Unless a longer or shorter time period is agreed to by the parties or ordered by the ALJ, responses and objections must be served within 28 days of receipt of the request. The response must state, with respect to each item, whether the production or inspection will be permitted as requested or whether there are any objections. If the responding party makes any objections, the reasons must be stated with specificity. Responses and objections must be signed in accordance with § 4.112(e). Responses must be signed by the person providing the response, and objections must be signed by the party's representative or the party, if unrepresented.

§ 4.115 Requests for admission.

(a) Generally. When authorized by the ALJ, a party may conduct discovery by serving a written request on any other party to admit the truth of any relevant factual matters or the authenticity of any specified documents. Unless the parties agree or the ALJ orders otherwise, a party may not serve more than 20 written requests for admission. For purposes of this 20-request limitation, each discrete subpart of a request counts as a separate request.

(b) Content of request. Each matter for which an admission is requested must be set forth separately. A request to admit the authenticity of a document must be accompanied by a copy of the document unless it has been otherwise furnished or made available for inspection and copying.

(c) Answers and objections. The party to whom the request is directed must answer or object to each matter within 28 days of being served, unless a longer or shorter time period is agreed to by the parties or ordered by the ALJ. Answers and objections must be signed in accordance with § 4.112(e). Answers must be signed by the person providing the answers, and objections must be signed by the party's representative or the party, if unrepresented. A responding party must specifically answer or object to each matter as follows:

(1) Admit the matter, in whole or in part;

(2) Deny the matter, in whole or in part;

(3) State in detail why the responding party cannot truthfully admit or deny the matter, and if the denial is based on a lack of knowledge or information, demonstrate that the party has made a reasonable inquiry and that the information known, or readily obtainable, is insufficient to admit or deny; or

(4) State the grounds for any objections with specificity.

(d) Effect of not answering. A matter is deemed admitted unless a written answer or objection is served on the requesting party within 28 days of service of the request, except that a longer time period may be agreed to by the parties or ordered by the ALJ.

(e) Withdrawal. A matter admitted under this section is conclusively established unless the ALJ permits, on motion, the admission to be withdrawn or amended or determines that the admission is contrary to law.

(f) Effect of admission. An admission under this section cannot be used against the party in any other proceeding.

§ 4.116 Depositions.

(a) Generally. When authorized by the ALJ, a party may take the deposition of any person by oral examination. Parties are encouraged to schedule and conduct depositions by agreement whenever possible.

(b) Notice of deposition. The party scheduling a deposition must give reasonable notice in writing to every party to the proceeding and to the person being examined. The notice must include:

(1) The name, address, and other contact information for the person to be examined;

(2) The time and place of the deposition, and if conducted by videoconference or other suitable technology, the information necessary to access and attend the deposition remotely;

(3) The subject matter upon which the person will be examined;

(4) The name or descriptive title of the officer before whom the deposition will be taken along with the method of recording and transcribing the deposition;

(5) If a subpoena for document production is issued under § 4.120 to a nonparty deponent, the materials designated for production as set forth in the subpoena; and

(6) If the deposition is being taken for the purpose of preserving testimony for hearing, a statement to that effect.

(c) Deposition of organization, business entity, government agency, or other entity. When the deposition of an organization, business entity, government agency, or other entity is sought, the organization, business entity, government agency, or other entity must designate one or more officers, directors, or agents to testify on its behalf.

(d) Procedure for deposition. Depositions must be conducted, transcribed, and certified in accordance with the following procedures unless the ALJ authorizes an alternative procedure or imposes other requirements:

(1) The deposition must be taken before an officer authorized to administer oaths by Federal law or the law of the place where the examination is held;

(2) The party providing notification of the deposition must arrange and pay the expenses associated with securing the necessary facilities, personnel, and transcript;

(3) The deposition must be under oath or affirmation;

(4) The deponent may be examined and cross-examined and the questions and answers, together with all objections made, must be transcribed by the officer before whom the deposition is taken;

(5) Documents and other tangible things produced for inspection during a deposition must, on a party's request, be marked for identification and appended or attached to the written deposition transcript;

(6) When the testimony is fully transcribed and reduced to writing, the deposition transcript must be submitted to the deponent for examination, identification of any corrections, and signature, unless the deponent has waived the right to review and sign; and

(7) The officer must certify the deposition transcript and, if the deposition is not signed by the deponent, must certify the reasons for the failure to sign.

(e) Procedure for preservation deposition. A party may depose a witness for the purpose of preserving testimony for hearing if:

(1) The ALJ authorizes the preservation deposition based on a written motion or an oral request made during a prehearing conference;

(2) The requesting party demonstrates that one of the following criteria has been met:

(i) The witness will be unable to attend the hearing because of age, illness, or other incapacity; or

(ii) The witness is unwilling or unlikely to attend the hearing and the party is unable to compel the attendance of the witness by subpoena; and

(3) The requesting party complies with any requirements imposed by the ALJ related to transcription, recording, or other deposition procedures.

§ 4.117 Supplementation or correction.

(a) Requirement. A party who responded to an interrogatory, request for production, or request for admission with an answer or response that was complete when made must supplement or correct a prior response in a timely manner if the party learns that the answer or response is materially incomplete or incorrect and if the additional or corrective information has not been otherwise made known to the other parties during the discovery process or in writing.

(b) Order. At any time, an ALJ may issue an order directing the supplementation of an answer or response.

§ 4.118 Motion to compel.

(a) Motion. Any party may file a motion with the ALJ requesting an order compelling disclosure or discovery. A motion must include:

(1) A copy of the discovery request;

(2) A copy of the response or objection or, if a copy is unavailable, a description of the response or objection;

(3) A concise statement of the facts and law supporting the motion to compel, including citations to any applicable legal authority; and

(4) A statement that the moving party has, prior to the filing of the motion, in good faith conferred or attempted to confer with the person, entity, or representative failing to make a disclosure or allow discovery.

(b) Response. A response to a motion to compel must be filed within 14 days of the filing of the motion unless a longer or shorter time period is ordered by the ALJ and must contain a concise statement of the facts and law supporting the response, including citations to any applicable legal authority.

(c) Order. The ALJ may issue an order granting or denying the motion, in whole or in part, and may issue any other appropriate order, including, but not limited to, a protective order or an order imposing curative measures. Curative measures include, but are not limited to, orders extending the discovery period, authorizing additional discovery, or directing a party to conduct an additional search of its records.

§ 4.119 Sanctions for failure to comply with a discovery order.

(a) Failure to comply. If a party fails to comply with an order compelling discovery, the ALJ may issue such orders as are just, including but not limited to, an order imposing appropriate sanctions under this section.

(b) Notice. Appropriate sanctions may be imposed after notice and an opportunity to respond. The notice and opportunity to respond may be in any form directed by the ALJ and may be limited to an oral response during a prehearing conference or hearing.

(c) Types of sanctions. After considering the relevant circumstances and the nature of the violation, the ALJ may impose appropriate sanctions, including but not limited to, the following:

(1) Inferring that the admission, testimony, or other evidence would have been adverse to the party;

(2) Directing that designated facts be taken as established or admitted for purposes of the proceeding in accordance with the claim of the party obtaining the order;

(3) Prohibiting the party withholding discovery from supporting or opposing a designated claim or defense or from introducing designated matters into evidence;

(4) Striking pleadings in whole or in part;

(5) Ordering that the party withholding discovery has waived any objection to the introduction and use of secondary evidence to show what the withheld discovery would have shown; and

(6) Entering a decision or order adjudicating the proceeding, in whole or in part, against the party withholding discovery in violation of a discovery order.

§ 4.120 Subpoenas.

(a) Purpose. Subpoenas may be issued to the extent authorized by law to require the attendance of a person, the giving of testimony, or the production of documents or other relevant materials.

(b) Contents of application. A party may request the issuance of a subpoena by written application. The application must:

(1) Describe the testimony sought or the materials to be produced with specificity;

(2) Identify the name, address, and contact information for the person or entity to be subpoenaed;

(3) Specify the time, date, location, and method for obtaining the testimony or other material sought; and

(4) Demonstrate that the requested subpoena is reasonable in scope and relevant to the proceeding.

(c) Issuance. The ALJ may issue a subpoena on a form that contains the caption for the proceeding, specifies the name and address of the person or entity from whom the testimony or material is sought, and orders one or more of the following:

(1) If the subpoena requires the person to testify in person at a hearing or deposition, then the subpoena will order the person to appear at a specified date, time, and place;

(2) If the subpoena requires the person to testify at a hearing or deposition using videoconferencing or other suitable technology, then the subpoena will order the person to appear at a specified date and time and will contain the information necessary to testify remotely; or

(3) If the subpoena requires the production of designated documents, electronically stored information, or other tangible materials by a nonparty, then the subpoena will order production by a specified date and will designate whether the production must occur in person, by mail, delivery service, or other electronic means.

(d) Service. A party must serve a copy of the subpoena as follows:

(1) In person. A subpoena may be served by any person who is not a party to the proceeding and is 18 years of age or older by hand-delivering a copy of the subpoena to the person named in the subpoena; or

(2) By registered or certified mail. A subpoena may be served by registered or certified mail, with a return receipt requested, to the last known residential address or place of business of the person or entity named in the subpoena.

(e) Certificate of service. The person serving the subpoena must:

(1) Prepare a certificate of service setting forth the date, time, and manner of service, or the reasons for any failure of service; and

(2) 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. That party will then be responsible for filing the certificate of service with the ALJ and serving it on all other parties to the proceeding.

(f) Witness fees. Witnesses subpoenaed by any party must be paid the same fees and mileage expenses that are paid to witnesses in the United States district courts under 28 U.S.C. 1821. The witness fee will be paid by the party who requested the appearance. Any witness who appears without being subpoenaed is entitled to the same fees and mileage expenses as if that person had been subpoenaed, except that witness fees do not apply to Government employees who are called as witnesses by the Government.

(g) Geographic limits. A witness may be required to attend a hearing or deposition at a place not more than 100 miles from where the person resides, is employed, or regularly transacts business in person unless another geographic limit applies by statute to the proceeding. No geographic limit applies to testimony conducted using videoconferencing or other suitable technology that is available to all participants in the proceeding and that allows a witness to testify remotely.

(h) Motion to quash or modify. A party or person to whom a subpoena is directed may file a written motion to quash or modify the subpoena within 10 days of service. A motion to quash or modify the subpoena will stay the effect of the subpoena pending the ALJ's decision on the motion.

(i) Enforcement. If a person fails or refuses to comply with a subpoena, the ALJ may apply to the U.S. Department of Justice to initiate a judicial enforcement proceeding or may authorize the party to seek judicial enforcement in the appropriate United States district court.

§ 4.121 Sanctions.

(a) Authority of ALJ. The ALJ is vested with the general authority to regulate the course of the proceedings. The ALJ may impose appropriate sanctions on a person or entity for:

(1) Noncompliance with an ALJ order;

(2) Violation of the regulations in this subpart;

(3) A failure to prosecute or defend in a timely manner; or

(4) Other misconduct that prejudices another party or interferes with the efficient, orderly, and fair conduct of the proceeding.

(b) Notice. Appropriate sanctions may be imposed after notice and an opportunity to respond. The notice and opportunity to respond may be in any form directed by the ALJ and may be limited to an oral response during a prehearing conference or hearing.

(c) Types of sanctions. After considering the relevant circumstances and the nature of the violation, failure, or misconduct, the ALJ may impose appropriate sanctions, including the following:

(1) Deeming a party's objection waived;

(2) Striking all, or part, of a pleading;

(3) Precluding a party from making a late filing or conditioning a late filing on terms that the ALJ deems fair and equitable;

(4) Denying a motion;

(5) Excluding evidence or witnesses;

(6) Expelling a person or entity from the hearing;

(7) Issuing an order or decision against a party;

(8) Dismissing a claim or defense;

(9) Dismissing a proceeding; and

(10) Taking any other action authorized by law.

§ 4.122 Interlocutory appeal.

(a) Overview. An interlocutory appeal is a challenge brought before an Appeals Board of a non-final order issued by an ALJ prior to the conclusion of the proceeding. Permission must be obtained before an interlocutory appeal can be filed with an Appeals Board and will only be authorized in limited circumstances.

(b) General procedures. Permission to file an interlocutory appeal is a two-step process, requiring a party to:

(1) File an application requesting the ALJ to certify an ALJ order, in whole or in part, for interlocutory appeal; and

(2) Petitioning the Appeals Board for permission to file an interlocutory appeal of the ALJ's order, in whole or in part.

(c) Standards for ALJ certification. The ALJ will certify an order for interlocutory appeal only when the ALJ determines that:

(1) The order involves a controlling question of law about which there are substantial grounds for difference of opinion; and

(2) An immediate appeal will materially advance the completion of the proceeding.

(d) Timing and content of application. An application requesting certification must be filed and served within 14 days of the date of the ALJ's order. The application must:

(1) Identify the order, or portion of the order, for which review is sought;

(2) Clearly and concisely state the grounds for appeal; and

(3) Demonstrate that the standards for certification in paragraph (c) of this section are met.

(e) Responses. Any party that opposes the application for certification may file and serve a response within 14 days of the filing of the application.

(f) ALJ certification. Based on a review of the application and any responses filed, the ALJ may:

(1) Certify the order, or portion of the order, for interlocutory appeal; or

(2) Deny the application.

(g) Petition to Appeals Board. Within 14 days of the ALJ's ruling on the application for certification, the requesting party may petition the Appeals Board for permission to file an interlocutory appeal. The petition must include:

(1) A copy of the ALJ's order for which review is sought;

(2) Copies of all filings made in support of or in opposition to the application for certification before the ALJ;

(3) A copy of the ALJ's certification for interlocutory appeal or the order denying the application for certification; and

(4) If the ALJ denied the application for certification, a clear and concise statement of reasons explaining why the ALJ's denial was an abuse of discretion.

(h) Permission from Appeals Board. The Appeals Board will grant or deny permission to file an interlocutory appeal in accordance with § 4.28 or § 4.414 of this part.

(i) Suspension of proceeding. Neither the certification of an order for interlocutory appeal nor an interlocutory appeal will operate to suspend the proceeding before the ALJ unless so ordered by the ALJ or Appeals Board.

§ 4.123 Alternative dispute resolution.

(a) Purpose. Alternative dispute resolution (ADR) refers to the various processes and techniques used for resolving disputes without the necessity of further litigation or a hearing.

(b) Process. Participation in an ADR process is entirely voluntary. A party cannot be forced to agree to a resolution of the dispute by participating in an ADR process, and if the parties do not agree to participate or cannot reach agreement through the ADR process, the proceeding will be adjudicated by the ALJ.

(c) Availability. At any time during the pendency of a proceeding, a party may file a request to use an ADR process or the ALJ may notify the parties that the matter has been identified as a candidate for ADR. The ALJ may also issue a notice describing the ADR processes used by DCHD and directing the parties to communicate in writing, or verbally during a prehearing status conference, whether they are willing to participate in an ADR process. The written ADR procedures used by DCHD can be made available to the parties on request.

§ 4.124 Hearing scheduling.

(a) Hearing location and date. The ALJ, in coordination with the parties and consistent with any applicable statutory requirements, will schedule the hearing and determine the hearing location and dates. In making this determination, the ALJ may consider other relevant factors such as the convenience of the parties and witnesses, the availability of suitable hearing space, and the need for any special accommodations.

(b) Videoconferencing and other technology. In appropriate circumstances as determined by the ALJ, a hearing may be conducted, in whole or in part, using videoconferencing or other suitable technology.

(c) Notice of hearing. In advance of the hearing, a written notice containing the hearing location and hearing dates will be issued to all parties to the proceeding. If a hearing will be conducted, in whole or in part, using videoconferencing or other technology, the hearing notice will contain instructions and guidance for participating in the hearing.

§ 4.125 Hearing postponements.

(a) Good cause required. Postponement of a scheduled hearing generally will not be approved, except upon a showing of good cause and reasonable diligence in preparing for the hearing.

(b) Timing of motion. A party must file a request for a postponement at least 21 days prior to the date of the hearing absent compelling circumstances. The ALJ will not grant a request for postponement made less than 10 days in advance of the hearing unless all parties agree to the postponement or the party requesting a postponement demonstrates that an emergency occurred which could not have been anticipated and which justifies the granting of a postponement.

(c) Form and content of motion. The motion for a postponement must state in detail the reasons why a postponement is necessary. The moving party must also make a reasonable effort to contact each party to determine whether an agreement can be reached regarding the requested postponement. In the motion, the moving party must state:

(1) Whether any other party agrees to the postponement;

(2) Whether any other party objects to the postponement; and

(3) Any steps taken to contact a party it was unable to reach.

(d) Limitation on postponements. A party generally will not be granted more than one hearing postponement, unless that party can show compelling circumstances that are beyond the party's control. In determining whether to grant more than one postponement to a party, the ALJ may consider the interests of justice and the relative prejudice to the parties.

§ 4.126 Hearing procedures generally.

(a) Overview. A hearing is an opportunity for a party to present its case or defense by any reasonable method. Parties may submit oral, documentary, or demonstrative evidence as well as rebuttal evidence and may conduct such cross-examination as may be required for a full and true disclosure of the facts. During the hearing, a verbatim transcript will be prepared in accordance with § 4.128 that includes the oral arguments, testimony, and exhibits received into evidence. The hearing record, together with any motions, documents filed, and rulings made by the ALJ during the hearing and prehearing process, may inform the ALJ's decision in the matter.

(b) Hearing procedures. The ALJ has the authority to conduct the hearing in an orderly and judicial manner, including the authority to:

(1) Subpoena witnesses for hearing pursuant to § 4.120;

(2) Administer oaths and affirmations;

(3) Regulate the course of the hearing and the conduct of representatives, parties, and witnesses;

(4) Call and examine witnesses;

(5) Provide for the sequestration of witnesses;

(6) Receive, rule on, exclude, or limit evidence;

(7) Take official notice of a factual matter under § 4.24(b) in the same manner as a Federal district court may take judicial notice;

(8) Issue protective orders and impose other measures to protect information or documents that are confidential, privileged, or otherwise sensitive;

(9) Continue or recess the hearing, in whole or in part, for a reasonable period of time;

(10) Direct that written motions or briefs be provided addressing issues raised during the hearing;

(11) Rule on any oral or written motions;

(12) Impose appropriate sanctions; and

(13) Exercise any other authority necessary to conduct the hearing in an orderly and judicial manner.

(c) Presentation at hearing. The ALJ will determine the order of presentation for witnesses and evidence at hearing based on the applicable legal standards as well as considerations of fairness and judicial efficiency. Each party is responsible for presenting its case or defense at the hearing to ensure the adequacy of the hearing record, subject to any limitations imposed by law, regulation, or order.

(d) Post-hearing briefs. The ALJ may prescribe the format, timing, and content of any post-hearing briefs at the conclusion of the hearing or in a subsequent written order.

(e) Conclusion of hearing. Once the hearing concludes, errors in the transcript may be corrected in accordance with § 4.128, but no additional evidence will be received unless the ALJ directs otherwise. If the ALJ finds good cause to reopen the hearing and allow additional evidence to be received, all parties will have an opportunity to offer responsive evidence and, if necessary, a new hearing may be scheduled.

(f) Waiver of hearing. The ALJ may determine that a party has waived its right to a hearing if, after notice, the party fails to appear at the hearing without good cause. Waiver of a right to a hearing does not mean that the ALJ will rule against the party failing to appear, but it does mean that the party's opportunity to present evidence and examine witnesses has been waived.

§ 4.127 Evidence.

(a) Admissibility and exclusion of evidence. The ALJ has the authority to admit or exclude evidence. The Federal Rules of Evidence, while not directly applicable to hearings conducted under this subpart, may be used as guidance by the ALJ. The ALJ will exclude evidence that is irrelevant, immaterial, or unduly repetitious.

(b) Oral testimony. All oral testimony must be under oath or affirmation. Witnesses will be subject to cross-examination by any other party, and the ALJ may question any witness during the hearing.

(c) Objections. Any objections to the admission of evidence or testimony must concisely state the grounds for the objection. Oral rulings on objections will be made on the record and included in the transcript of the hearing. When the ALJ sustains an objection to the admission of evidence, the affected party may preserve the issue for appeal by making an offer of proof on the record showing what the party expected to establish by the testimony or evidence. Any adverse party may then make an offer of proof in rebuttal on the record.

(d) Stipulations. The parties may stipulate to any relevant factual matters. When received into evidence, stipulations will be binding on the parties with respect to the matters stipulated. Oral stipulations may be made on the record at hearing and written stipulations may be received into evidence as exhibits. The parties are encouraged to agree to stipulations of fact whenever possible.

(e) Depositions. A deposition will not become part of the hearing record unless it has been received into evidence, in whole or in part, as an exhibit by the ALJ.

(1) Requirements. A party may only use a deposition against a party who:

(i) Was present or represented at the taking of the deposition; or

(ii) Had reasonable notice of the taking of the deposition.

(2) Exclusion. The ALJ 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 the hearing.

(3) Completeness. If a party offers only part of a deposition in evidence, another party to the proceeding may request that the party be required to include any other part of the deposition that ought in fairness be considered with the part introduced.

(4) Written and video depositions. A deposition admitted into evidence, in whole or in part, must include a certified written transcript, but the ALJ may, in appropriate circumstances, permit relevant portions of a video deposition to be played at hearing and transcribed into the hearing record by the reporter.

§ 4.128 Transcripts and reporting.

(a) Transcript and reporter's fees. A hearing conducted pursuant to this subpart will be transcribed verbatim. The procedures for obtaining a transcript and paying the associated fees are as follows:

(1) DCHD will secure the services of a reporter to prepare a transcript and will pay the reporter's fees to provide an original transcript to DCHD.

(2) Each party is responsible for obtaining and paying for its copy of the transcript consistent with any statutory or regulatory provisions governing the proceeding.

(3) The government agency, bureau, or office participating in the hearing as a party will be responsible for reimbursing DCHD for reporting fees.

(b) Official transcript. The official transcript, along with any exhibits, must be duly certified by the reporter and submitted to the ALJ for filing as part of the proceeding along with any corrections made pursuant to paragraph (c) of this section.

(c) Corrections. (1) Any party may file a motion proposing corrections to the transcript. The motion must be filed within 10 days of receipt of the transcript unless the ALJ orders otherwise.

(2) If no party files a timely motion, the ALJ will presume that the transcript is correct and complete, except for obvious typographical errors.

(3) As soon as feasible after the conclusion of the hearing and after consideration of any motions proposing correction, the ALJ will issue an order making any corrections to the transcript that the ALJ finds are warranted.

§ 4.129 Decision.

(a) Basis for decision. Following a hearing, the ALJ will issue a written decision that identifies and describes the basis for the decision unless the applicable statute or regulation allows for an oral ruling.

(b) Decision. The decision issued by the ALJ will be final for the Department, unless a notice of appeal, petition for review, or petition for reconsideration is timely filed or the applicable statute, regulation, or order of referral requires the ALJ to issue:

(1) Proposed findings of fact on the issues presented at hearing; or

(2) A recommended decision that includes findings of fact and conclusions of law.

§ 4.130 Reconsideration.

(a) Procedural requirements. Any party may petition for reconsideration of a dispositive order or decision within 14 days after the date of issuance. A petition for reconsideration must be made in writing and served on all parties to the proceeding in accordance with § 4.102. A petition for reconsideration may not exceed 15 pages unless otherwise authorized by the ALJ.

(b) Standards. A petition for reconsideration must state with specificity the relief sought and must demonstrate that extraordinary circumstances warrant reconsideration. Extraordinary circumstances may include:

(1) An error or misstatement of material fact or law that resulted in an erroneous order or decision or that would require a different outcome;

(2) A failure to cite and address a binding statute, regulation, or decision, including a recent judicial decision, that would require a different outcome; or

(3) The existence of evidence not available to the ALJ when the order or decision issued that would require a different outcome. To satisfy this requirement, the petitioner must:

(i) Proffer the evidence along with the petition for reconsideration, and

(ii) Provide a detailed explanation showing why the petitioner, in the exercise of reasonable diligence, did not submit the evidence prior to issuance of the order or decision.

(c) Responses. No responses may be filed to a petition for reconsideration, unless authorized by the ALJ.

(d) Review by ALJ. The ALJ will review the petition for reconsideration and notify the parties within 10 days whether the petition for reconsideration will be accepted for further analysis. If the ALJ does not take any action on the petition for reconsideration within 10 days, then the petition for reconsideration is deemed denied.

(e) Status while a petition is pending. Filing a petition for reconsideration will not stay the effectiveness of the dispositive order or decision and will not toll any deadlines to seek appeal or review of the order or decision, unless the ALJ accepts the petition for reconsideration for further analysis. If the ALJ accepts the petition for reconsideration for further analysis, then the effectiveness of the dispositive order or decision will automatically be stayed and all applicable deadlines tolled until the ALJ issues a decision on reconsideration.

(f) Appeal or review. A decision on reconsideration issued by the ALJ will be final for purposes of appeal and review under § 4.131. A notice issued by the ALJ declining to accept the petition for further analysis, or a failure by the ALJ to take action on the petition within 10 days, is not subject to appeal or review. If a party files a notice of appeal or requests review of the dispositive order or decision before the petition for reconsideration is resolved, then the ALJ will no longer have jurisdiction over the petition for reconsideration and the matter will be forwarded to the appropriate appellate or reviewing authority.

(g) Petition not required for exhaustion. Filing a petition for reconsideration is not required to exhaust administrative remedies.