[Federal Register: May 22, 2003 (Volume 68, Number 99)]
[Proposed Rules]
[Page 27955-27960]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22my03-37]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 4
RIN 1090-AA84
General Rules Relating to Procedures and Practice; Special Rules
Applicable to Public Land Hearings and Appeals
AGENCY: Office of the Secretary, Interior.
ACTION: Proposed rule.
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SUMMARY: The Office of Hearings and Appeals (OHA) is proposing to
revise its existing regulations governing petitions for stays and
requests to put bureau decisions into immediate effect. The revisions
would specifically authorize OHA administrative law judges to decide
such petitions and requests, which arise most frequently in the context
of appeals from grazing decisions that the Bureau of Land Management
(BLM) issues. This change would expedite the administrative review
process by eliminating an inefficient division of authority. The
revisions would also improve the format and clarity of the regulations.
DATES: You should submit your comments by July 21, 2003.
ADDRESSES: Send comments to: Director, Office of Hearings and Appeals,
Department of the Interior, 801 N. Quincy Street, Suite 300, Arlington,
VA 22203.
FOR FURTHER INFORMATION CONTACT: Will A. Irwin, Administrative Judge,
Interior Board of Land Appeals, U. S. Department of the Interior, 801
N. Quincy Street, Suite 300, Arlington, VA 22203, Phone: 703-235-3750.
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Information Relay Service (FIRS) at (800) 877-8339, 24
hours a day, 7 days a week.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Background
III. Review Under Procedural Statutes and Executive Orders
I. Public Comment Procedures
A. How Do I Comment on the Proposed Rule?
You may submit your comments by mailing or delivering them to
Director, Office of Hearings and Appeals, Department of the Interior,
801 N. Quincy Street, Suite 300, Arlington, VA 22203, Attn: RIN 1090-
AA84.
Please make your comments on the proposed rule as specific as
possible, confine them to issues pertinent to the proposed rule, and
explain the reason for any changes you recommend. Where possible, your
comments should refer to the specific section or paragraph of the
proposal that you are addressing.
The Department of the Interior will not necessarily consider or
include in the Administrative Record for the final rule comments that
we receive after the close of the comment period (see DATES) or
comments delivered to an address other than that listed above (see
ADDRESSES).
B. How Do I Review Comments Submitted by Others?
Comments, including names and street addresses of respondents, will
be available for public review at the address listed under ADDRESSES
during regular business hours (9 a.m. to 5 p.m.), Monday through
Friday, except holidays.
Individual respondents may request confidentiality, which we will
honor to the extent allowable by law. If you wish to withhold your name
or address, except for the city or town, you must state this
prominently at the beginning of your comment. We will make all
submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
II. Background
The existing regulations governing hearings and appeals of BLM
grazing decisions allocate responsibility for deciding petitions for a
stay of such decisions to the Interior Board of Land Appeals (IBLA) and
the Director, OHA. Responsibility for conducting the hearing, ruling on
other motions, and
[[Page 27956]]
making the initial decision on the appeal, however, rests with
administrative law judges (ALJs) in the Hearings Division, OHA.
When an appeal of a grazing decision is filed with BLM, BLM
currently forwards the decision and accompanying record to the Hearings
Division office in Salt Lake City, Utah. If a petition for a stay of
the decision accompanies the notice of appeal, the Hearings Division
must forward the record to IBLA in Arlington, Virginia. Under 43 CFR
4.21(b)(4), IBLA (or the Director) has 45 days to decide whether or not
to grant the petition; after IBLA decides, it returns the record to the
Hearings Division in Salt Lake City. In the meantime, the ALJ to whom
the case is assigned normally waits to schedule the hearing and to rule
on any motions concerning the appeal, such as a motion to intervene in
the appeal or a motion by BLM to dismiss the appeal. IBLA does not have
authority to rule on such motions. The same situation applies, but less
frequently, to requests to place grazing decisions into immediate
effect under 43 CFR 4.21(a)(1) if BLM has not done so under 43 CFR
4160.3(f).
This division of responsibility results in delays and
inefficiencies that would be alleviated if the ALJs also had authority
to rule on petitions for a stay and requests to place grazing decisions
into immediate effect. For example, IBLA sometimes finds during its
consideration of a stay petition that a motion to dismiss should be
granted. However, under the existing regulations, IBLA cannot grant the
motion but must proceed to decide the stay petition and then refer the
case, including the motion to dismiss, back to the Hearings Division.
If the ALJ had authority to rule on petitions for a stay and requests
to place decisions into immediate effect, he or she could consider any
other pending motions at the same time and, where appropriate, grant a
motion to dismiss without having to rule on the petition or request.
Moreover, under the existing regulations, IBLA must thoroughly review
the record in deciding whether to grant a stay petition, and the ALJ
must then do the same in deciding the merits of the case. This is an
unnecessary duplication of effort and takes time away from IBLA's
consideration of other appeals.
By contrast, the regulations governing hearings under the Surface
Mining Control and Reclamation Act of 1977 authorize an ALJ to consider
whether to grant a motion for temporary relief (which is comparable to
a petition for a stay) and also to decide the merits. IBLA gets
involved in temporary relief cases only if a party appeals an ALJ's
decision. See, e.g., 43 CFR 4.1267, 4.1367(f), 4.1376(h). OHA has found
these procedures workable and cost-effective. ALJs are also authorized
to grant stays of decisions issued under BLM's onshore oil and gas
operations regulations, see 43 CFR 3165.3(e), 3165.4(c), and of civil
penalties issued by the Minerals Management Service, see 30 CFR
241.55(b).
Therefore, OHA proposes amendments to the existing regulations to
provide the authority to ALJs to rule on petitions for a stay of BLM
grazing decisions and requests to place these decisions into immediate
effect. We also propose that any party may appeal to the IBLA an order
of an ALJ granting or denying (1) a petition for a stay, or (2) a
request to place a decision into immediate effect. Any party (other
than BLM) wishing to appeal an order of an ALJ denying a petition for a
stay or granting a request to place a decision into immediate effect
may seek judicial review instead of appealing to IBLA.
The proposed rule would revise both 43 CFR 4.21, which applies to
OHA proceedings generally, and 43 CFR 4.470-4.478, which apply to
appeals from BLM grazing decisions. Currently OHA does not encounter
the inefficient division of responsibility described above outside the
context of grazing appeals. However, by revising Sec. 4.21, we would
eliminate the same inefficiency should it arise in some other context
where the merits of the appeal were pending before the Hearings
Division but, under current regulations, a stay petition must be
decided by IBLA. In any case in which the ALJ has jurisdiction of the
merits, we believe the ALJ should be authorized to decide a stay
petition or a request to place a bureau decision in immediate effect.
By revising Sec. 4.21 as well as Sec. 4.477, we would be keeping the
two sets of provisions consistent.
OHA is also proposing to revise the existing regulatory language to
make it clearer and to conform to Departmental requirements for writing
rules in plain language. See 318 DM 4.2. We propose to do so by
defining terms, creating more sections, reorganizing the provisions to
put the main ideas first, and shortening sentences. In 43 CFR part 4,
subpart B, we propose to revise existing Sec. 4.21, to add new
Sec. Sec. 4.22 through 4.26, and to redesignate existing Sec. Sec.
4.22 through 4.31 as Sec. Sec. 4.27 through 4.36, respectively.
Similarly, in 43 CFR part 4, subpart E, we would revise existing Sec.
4.470, add new Sec. Sec. 4.471 and 4.472, and redesignate existing
Sec. Sec. 4.471 through 4.478 as Sec. Sec. 4.473 through 4.480,
respectively. We would add paragraph (c) to newly redesignated Sec.
4.474, and revise newly redesignated Sec. Sec. 4.478 and 4.479. If
this proposed rule becomes final, BLM would have to amend its
regulations that refer to existing Sec. Sec. 4.21 through 4.31 or
Sec. Sec. 4.470 through 4.478 to update the cross-references.
III. Review Under Procedural Statutes and Executive Orders
A. Regulatory Planning and Review (E.O. 12688)
In accordance with the criteria in Executive Order 12866, we find
that this document is not a significant rule. The Office of Management
and Budget has not reviewed this rule under Executive Order 12866.
1. This rule would not have an annual economic effect of $100
million or adversely affect an economic sector, productivity,
competition, jobs, the environment, public health or safety, or other
units of government. A cost-benefit and economic analysis is not
required. These amended rules would have virtually no effect on the
economy because they would only add authority for ALJs to decide
petitions for a stay of grazing decisions and to place such decisions
into immediate effect.
2. This rule would not create inconsistencies with or interfere
with other agencies' actions. The rules propose to amend existing OHA
regulations to add authority for ALJs to decide petitions for a stay of
grazing decisions and to place such decisions into immediate effect.
3. This rule would not alter the budgetary effects of entitlements,
grants, user fees, loan programs, or the rights and obligations of
their recipients. These regulations have to do only with the procedures
for hearings and appeals of BLM grazing decisions, not with
entitlements, grants, user fees, loan programs, or the rights and
obligations of their recipients. The proposed rule would only add
authority for ALJs to decide petitions for a stay of grazing decisions
and to place such decisions into immediate effect.
4. This rule does not raise novel legal or policy issues. The rule
would simply extend ALJs' existing authority to include the authority
to decide petitions for a stay of BLM grazing decisions and requests to
place such decisions into immediate effect.
B. Regulatory Flexibility Act
The Department of the Interior certifies that this rule would not
have a significant economic effect on a substantial number of small
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
et seq.). The extension of authority to ALJs to decide petitions
[[Page 27957]]
for a stay of BLM grazing decisions and to place such decisions into
immediate effect would have no effect on small entities. A Small Entity
Compliance Guide is not required.
C. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
1. Would not have an annual effect on the economy of $100 million
or more. Granting authority to ALJs to decide petitions for a stay of
BLM grazing decisions and to place such decisions into immediate effect
should have no effect on the economy.
2. Would not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. Granting ALJs authority to decide
petitions for a stay of BLM grazing decisions and to place such
decisions into immediate effect would not affect costs or prices for
citizens, individual industries, or government agencies.
3. Would not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Extending authority to ALJs to decide petitions for a stay of BLM
grazing decisions and to place such decisions into immediate effect
should have no effects, adverse or beneficial, on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
D. Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1531
et seq.), we find that:
1. This rule would not have a significant or unique effect on
state, local, or tribal governments or the private sector. Small
governments do not often appeal BLM grazing decisions. Authorizing ALJs
to decide petitions for a stay of such decisions and to place such
decisions into immediate effect would neither uniquely nor
significantly affect these governments because such authority currently
exists elsewhere. A statement containing the information required by
the Unfunded Mandates Reform Act, 2 U.S.C. 1531 et seq., is not
required.
2. This rule would not produce an unfunded Federal mandate of $100
million or more on State, local, or tribal governments or the private
sector in any year, i.e., it is not a ``significant regulatory action''
under the Unfunded Mandates Reform Act.
E. Takings (E.O. 12630)
In accordance with Executive Order 12630, we find that the rule
would not have significant takings implications. A takings implication
assessment is not required. These amendments to existing rules
authorizing ALJs to decide petitions for a stay of BLM grazing
decisions and to place such decisions into immediate effect should have
no effect on property rights.
F. Federalism (E.O. 13132)
In accordance with Executive Order 13132, we find that the rule
does not have sufficient federalism implications to warrant the
preparation of a federalism assessment. There is no foreseeable effect
on states from extending to ALJs the existing authority to decide
petitions for a stay of BLM grazing decisions and to place such
decisions into immediate effect. A federalism assessment is not
required.
G. Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and does not meet the requirements of sections 3(a) and
3(b)(2) of the Order. These regulations, because they simply extend to
ALJs already existing authority to decide petitions for a stay of BLM
grazing decisions and to place such decisions into immediate effect,
will not burden either administrative or judicial tribunals.
H. Paperwork Reduction Act
This proposed rule wold not require an information collection from
10 or more parties, and a submission under the Paperwork Reduction Act
is not required. An OMB form 83-I has not been prepared and has not
been approved by the Office of Policy Analysis. These regulations would
only extend authority to ALJs to decide petitions for stay of BLM
grazing decisions and to place such decisions into immediate effect;
they would not require the public to provide information.
I. National Environmental Policy Act
The Department has analyzed this rule in accordance with the
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq., Council on Environmental Quality (CEQ) regulations, 40 CFR part
1500, and the Department of the Interior Departmental Manual (DM). CEQ
regulations, at 40 CFR 1508.4, define a ``categorical exclusion'' as a
category of actions that the Department has determined ordinarily do
not individually or cumulatively have a significant effect on the human
environment. The regulations further direct each department to adopt
NEPA procedures, including categorical exclusions. 40 CFR 1507.3. The
Department has determined that the proposed rule is categorically
excluded from further environmental analysis under NEPA in accordance
with 516 DM 2, Appendix 1, which categorically excludes ``[p]olicies,
directives, regulations and guidelines of an administrative, financial,
legal, technical or procedural nature.'' In addition, the Department
has determined that none of the exceptions to categorical exclusions,
listed in 516 DM 2, Appendix 2, applies to the proposed rule. The
proposed rule is an administrative and procedural rule, relating to the
authority of ALJs to decide petitions for stays of BLM grazing
decisions and requests to place such decisions into immediate effect.
The rule would not change the requirement that projects must comply
with NEPA. Therefore, neither an environmental assessment nor an
environmental impact statement under NEPA is required.
J. Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, the Department
of the Interior has evaluated potential effects of these rules on
Federally recognized Indian tribes and has determined that there are no
potential effects. These rules would not affect Indian trust resources;
they would provide authority to ALJs to decide petitions for a stay of
BLM grazing decisions and to place such decisions into immediate
effect.
K. Effects on the Nation's Energy Supply
In accordance with Executive Order 13211, we find that this
regulation does not have a significant effect on the nation's energy
supply, distribution, or use. The extension of authority to ALJs to
decide petitions for a stay of BLM grazing decisions and to place such
decisions into immediate effect would not affect energy supply or
consumption.
L. Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand, including answers to the
[[Page 27958]]
following: (1) Are the requirements in the rule clearly stated? (2)
Does the rule contain technical language or jargon that interferes with
its clarity? (3) Does the format of the rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Would the rule be easier to understand if it were divided
into more (but shorter) sections? (A ``section'' appears in bold type
and is preceded by the symbol ``Sec. '' and a numbered heading; for
example, Sec. 4.21 General provisions.) (5) Is the description of the
rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful
in understanding the proposed rule? (6) What else could we do to make
the rule easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to: Office of Regulatory Affairs, Department
of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240.
You may also e-mail the comments to this address: Exsec@ios.doi.gov.
List of Subjects in 43 CFR Part 4
Administrative practice and procedure; Grazing lands; Public lands.
For the reasons set forth in the preamble, under authority
delegated to the Director, Office of Hearings and Appeals, by the
Secretary of the Interior, part 4, subparts B and E, of title 43 of the
Code of Federal Regulations are proposed to be amended as set forth
below:
Dated: May 13, 2003.
Robert S. More,
Director, Office of Hearings and Appeals.
PART 4--[AMENDED]
1. The authority for 43 CFR part 4 continues to read as follows:
Authority: R.S. 2478, as amended, 43 U.S.C. sec. 1201, unless
otherwise noted.
Subpart B--General Rules Relating to Procedures and Practice
Sec. Sec. 4.22 through 4.31 [Redesignated as Sec. Sec. 4.27 through
4.36].
2. Sections 4.22 through 4.31 are redesignated as Sec. Sec. 4.27
through 4.36.
3. Section 4.21 is revised and new Sec. Sec. 4.22 through 4.26 are
added to read as follows:
Sec. 4.21 Definitions of terms used in this subpart.
As used in this subpart:
Appropriate official means the Director of the Office of Hearings
and Appeals, an Appeals Board, or an administrative law judge, as
applicable in a particular situation.
Bureau means a bureau or office of the Department of the Interior.
Days means calendar days unless otherwise stated.
Decision means a written determination or, if applicable, a portion
of a written determination.
Sec. 4.22 Effect of a decision pending appeal.
(a) The provisions of this section apply to any decision by a
bureau that includes a right of appeal to the Office of Hearings and
Appeals, unless a law or other applicable regulation provides
otherwise.
(b) No such bureau decision is effective during the period of time
allowed for filing an appeal, unless it is made immediately effective
under paragraph (c)(2) of this section.
(c) A bureau decision becomes effective as shown in the following
table:
----------------------------------------------------------------------------------------------------------------
If . . . And . . . Then . . .
----------------------------------------------------------------------------------------------------------------
(1) A statute or other regulation a person who has a right of appeal the bureau decision will become
provides that the bureau decision files a notice of appeal, effective if and when it is
will not take effect pending a affirmed by the Office of Hearings
decision on an appeal, and Appeals or the appeal is
dismissed.
(2) A person who has a right of a party to the appeal demonstrates the appropriate official (see Sec.
appeal under Sec. 4.410 or other that the public interest requires 4.21) may provide that the bureau
applicable regulation files a making the bureau decision decision becomes effective
timely notice of appeal, effective immediately, immediately.
(3) A person who has a right of the appellant satisfies the the appropriation official may stay
appeal under Sec. 4.410 or other requirements of Sec. 4.23, the effect of the bureau decision
applicable regulation files a under Sec. 4.24, and the bureau
timely notice of appeal and a decision will become effective if
petition for a stay, and when it is affirmed by the
Office of Hearings and Appeals or
the appeal is dismissed.
(4) A person who has a right of the appellant does not satisfy the the bureau decision becomes
appeal under Sec. 4.410 or other requirements of Sec. 4.23, effective when the appropriate
applicable regulation files a official denies the petition.
timely notice of appeal and a
petition for a stay,
(5) A person who has a right of the appropriate official does not the decision becomes effective on
appeal under Sec. 4.410 or other act on petition within 45 days of the 46th day after the end of the
applicable regulation files a the end of the appeal period, appeal period.
timely notice of appeal and a
petition for a stay,
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Sec. 4.23 How to petition for a stay of the effective date of a
decision.
(a) To request a stay of a bureau decision, an appellant must file
a notice of appeal and a petition for a stay as required under
paragraphs (b) and (c) of this section. The appellant must file these
documents before the end of the appeal period specified in the bureau
decision. The provisions of this section apply unless a law or other
applicable regulation provides otherwise.
(b) To obtain a stay under this section, an appellant must:
(1) Be a person who has a right of appeal under Sec. 4.410 or
other applicable regulation; and
(2) Demonstrate that the appropriate official should grant a stay
based on the following standards:
(i) The relative harm to the parties if the stay is granted or
denied;
(ii) The likelihood of the appellant's success on the merits;
(iii) The likelihood of immediate and irreparable harm if the
appropriate official does not grant the stay; and
(iv) Whether the public interest favors granting the stay.
(c) The appellant must serve a copy of the notice of appeal and
petition for a stay on each of the following simultaneously:
(1) The appropriate official before whom the appeal is pending;
(2) The bureau official who made the decision being appealed; and
(3) Each party, if any, named in the bureau decision that is being
appealed.
[[Page 27959]]
Sec. 4.24 Action on a petition for a stay.
(a) Any party who is served with a copy of a stay petition under
Sec. 4.23(c) may file a response but must do so within 10 days after
service. This includes the bureau official who made the decision being
appealed.
(1) The responding party must serve the response on the persons
listed in Sec. 4.23(c) either by delivering it personally or by
registered or certified mail, return receipt requested.
(2) The appropriate official will not grant a stay by default
merely because no response to a petition has been filed.
(b) Within 45 days after the end of the time for filing an appeal,
the appropriate official must grant or deny any petition for a stay.
(c) Any person who has a right of appeal under Sec. 4.410 or other
applicable regulation may appeal to the appropriate Appeals Board from
an order of an administrative law judge to:
(1) Grant or deny a petition for a stay; or
(2) Make a bureau decision effective immediately.
(d) As an alternative to paragraph (c) of this section, any party
other than the bureau may seek judicial review under 5 U.S.C. 704 of an
order of an administrative law judge to:
(1) Deny a petition for a stay (either directly or by failing to
meet the deadline in paragraph (b) of this section); or
(2) Make a bureau decision effective immediately.
(e) If a party appeals under paragraph (c) of this section, the
Appeals Board must issue an expedited briefing schedule and
expeditiously issue a decision on the appeal.
(f) Unless the Appeals Board or the court orders otherwise, an
appeal under paragraph (c) of this section does not:
(1) Suspend the effectiveness of the decision of the administrative
law judge; or
(2) Suspend further proceedings before the administrative law
judge.
Sec. 4.25 Decisions subject to judicial review.
This section applies to any bureau decision that can be appealed to
the Office of Hearings and Appeals. The bureau decision is not final
agency action subject to judicial review under 5 U.S.C. 704 unless it
has become effective under Sec. 4.22 or other applicable regulation.
Sec. 4.26 Finality and reconsideration of decisions.
(a) A decision by the Director or an Appeals Board is final for the
Department and cannot be appealed. However, the Director or an Appeals
Board may reconsider a decision if either:
(1) In the judgment of the Director or the Appeals Board there
exist extraordinary circumstances and sufficient reason for
reconsideration; or
(2) Other regulations allow for reconsideration under standards
other than those set forth in paragraph (a)(1) of this section.
(b) To request reconsideration under paragraph (a) of this section,
an appellant must:
(1) File the request promptly, or within the time required by the
regulations relating to the type of proceeding concerned; and
(2) State clearly and completely the nature of the error prompting
the request for reconsideration.
(c) Filing a request for reconsideration does not stay the
effectiveness of the decision unless the Director or the Appeals Board
so orders.
(d) An appellant does not have to file a request for
reconsideration in order to exhaust administrative remedies.
Subpart E--Special Rules Applicable to Public Land Hearings and
Appeals
4. The authority for 43 CFR part 4, subpart E is revised to read as
follows:
Authority: 43 U.S.C. 1201 and 315a.
5. In Sec. 4.421, revise paragraph (c) to read as follows:
Sec. 4.421 Definitions.
* * * * *
(c) Bureau or BLM means the Bureau of Land Management.
* * * * *
Sec. Sec. 4.471 through 4.478 [Redesignated as Sec. Sec. 4.473
through 4.480].
6. Sections 4.471 through 4.478 are redesignated as Sec. Sec.
4.473 through 4.480, respectively.
7. Section 4.470 is revised and Sec. Sec. 4.471 and 4.472 are
added to read as follows:
Sec. 4.470 How to appeal a BLM decision to an administrative law
judge.
(a) Any person who has a right of appeal under Sec. 4.410 or other
applicable regulation may appeal a final bureau decision within 30 days
after receiving it. To do this, the person must file a notice of appeal
with the BLM field office that issued the decision.
(b) The notice of appeal must state clearly and concisely the
reasons why the appellant thinks the BLM decision is wrong.
(c) Any ground for appeal not included in the notice of appeal is
considered waived. The appellant may not present a waived ground for
appeal at the hearing unless permitted to do so by the administrative
law judge.
(d) Any person who, after proper notification, does not appeal a
final BLM decision within the period allowed in the decision may not
later challenge the matters adjudicated in the final decision.
(e) An administrative law judge may consolidate appeals for
purposes of hearing and decision when:
(1) Appellants file separate appeals; and
(2) The issues involved are common to two or more appeals.
(f) Filing a notice of appeal does not by itself change the
effective date of the decision. To request a change in the effective
date, see Sec. 4.471.
Sec. 4.471 How to request a change in the effective date of a final
BLM decision.
(a) An appellant under Sec. 4.470 may petition for a stay of the
BLM decision pending appeal. The appellant must do this within 30 days
after receiving the BLM decision by filing a petition for stay together
with the notice of appeal required by Sec. 4.470.
(b) An appellant under Sec. 4.470 may request that a BLM decision
become effective immediately. The appellant must do this within 30 days
after receiving the BLM decision by filing a request for an immediate
effective date together with the notice of appeal required by Sec.
4.470.
(c) The appellant must file documents required by this section with
both:
(1) The BLM office that issued the decision; and
(2) The Hearings Division, Office of Hearings and Appeals, 801
North Quincy Street, Suite 300, Arlington, VA 22203.
(d) The standards and procedures for obtaining a stay or requesting
an immediate effective date are those set forth in Sec. Sec. 4.22
through 4.24.
Sec. 4.472 Action on appeals and requests for effective date changes.
(a) The BLM field office must promptly forward to the State
Director any documents received under Sec. Sec. 4.470 and 4.471. If
the State Director does not file a motion to dismiss under paragraph
(b) of this section:
(1) The State Director must promptly forward all documents and the
administrative record to the Office of Hearings and Appeals; and
(2) An administrative law judge will rule on the appeal and any
motion or request.
(b) Within 30 days after receiving documents submitted under
paragraph (a) of this section, the State Director may file a motion to
dismiss the appeal for one or more of the following reasons:
[[Page 27960]]
(1) The appeal is frivolous;
(2) The appeal was filed late;
(3) The errors are not clearly and concisely stated;
(4) The issues are immaterial; or
(5) The issues have been previously adjudicated in an appeal
involving the same grazing preference, the same parties, or their
predecessors in interest.
(c) The State Director must send a copy of the motion to the
appellant.
(d) The appellant may file a written answer with the State Director
within 30 days after receiving the motion to dismiss.
(e) The State Director will transmit the appeal, any petition or
request, motion to dismiss, and answer, along with the administrative
record, to the Hearings Division, Office of Hearings and Appeals, 801
North Quincy Street, Suite 300, Arlington, VA 22203.
(f) An administrative law judge will rule on the motion to dismiss
and, if the motion is sustained, dismiss the appeal by written order.
8. In newly redesignated Sec. 4.474, add paragraph (c) to read as
follows:
Sec. 4.474 Authority of administrative law judge.
* * * * *
(c) The administrative law judge may consider and rule on all
motions and petitions, including:
(1) A petition for a stay of a final grazing decision of the BLM
field office; and
(2) A request that a final grazing decision of the BLM field office
become effective immediately.
9. Revise newly redesignated Sec. 4.478 to read as follows:
Sec. 4.478 Appeals to the Board of Land Appeals.
(a) A person who has a right of appeal under Sec. 4.410 or other
applicable regulation may appeal under Sec. 4.24(c) an order of an
administrative law judge to:
(1) Grant or deny a petition for a stay; or
(2) Make a final grazing decision effective immediately.
(b) Any party affected by the administrative law judge's decision
on the merits, including the State Director, has the right to appeal to
the Board of Land Appeals under the procedures in this part.
10. Revise newly redesignated Sec. 4.479 to read as follows:
Sec. 4.479 Effect of decision during appeal.
(a) A BLM decision may provide that the decision will be effective
immediately pending decision on an appeal from the BLM decision. This
paragraph applies:
(1) Notwithstanding the provisions of Sec. 4.22(b) pertaining to
the period during which a final decision will not be in effect; and
(2) Consistent with the provisions of Sec. 4160.3.
(b) An administrative law judge or the Board may change or revoke
any action that BLM takes pursuant to a BLM decision on appeal.
(c) This paragraph applies to any BLM decision that, at the time it
is made, is subject to appeal before a superior authority in the
Department. In order to ensure the exhaustion of administrative
remedies before resort to court action, the BLM decision is not final
agency action subject to judicial review under 5 U.S.C. 704 unless the
BLM decision has become effective under this section or Sec. 4.22.
[FR Doc. 03-12504 Filed 5-21-03; 8:45 am]
BILLING CODE 4310-79-P