[Federal Register: March 8, 2007 (Volume 72, Number 45)]
[Proposed Rules]
[Page 10454-10466]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08mr07-40]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 4
RIN 1094-AA53
Interior Board of Land Appeals Procedures
AGENCY: Office of the Secretary, Interior.
ACTION: Proposed rule.
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SUMMARY: The Office of Hearings and Appeals (OHA) is proposing to amend
several existing procedural regulations governing appeals to the
Interior Board of Land Appeals (IBLA) and to adopt new regulations
governing consolidation, extensions of time, intervention, and motions.
DATES: You should submit your comments by May 7, 2007.
ADDRESSES: You may submit comments, identified by the number 1094-AA53,
by any of the following methods:
--Federal rulemaking portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
--Fax: 703-235-9014.
--E-mail: John_Strylowski@ios.doi.gov. Include the number 1094-AA53 in
the subject line of the message.
--Mail: Director, Office of Hearings and Appeals, Department of the
Interior, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203.
--Hand delivery: Director, Office of Hearings and Appeals, Department
of the Interior, 801 N. Quincy Street, Suite 400, Arlington, Virginia
22203.
FOR FURTHER INFORMATION CONTACT: Robert S. More, Director, Office of
Hearings and Appeals, U.S. Department of the Interior, Phone 703-235-
3750. Persons who use a telecommunications device for the deaf may call
the Federal Information Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Public Comments
If you wish to comment on this proposed rule, you may submit your
comments by any of the methods listed in the ADDRESSES section above.
We will consider all comments received by the deadline stated in the
DATES section above.
Please make your comments as specific as possible and explain the
reason for any changes you recommend. Where possible, your comments
should refer to the specific section or paragraph of the regulations
you are addressing.
Our practice is to make comments, including the names of
respondents and their home addresses, phone numbers, and e-mail
addresses, available for public review during regular business hours.
To review the comments, you may contact the individual listed in the
FOR FURTHER INFORMATION CONTACT section above.
Individual respondents may request that we withhold their names and
home addresses, etc. But if you wish us to consider withholding this
information, you must state this prominently at the beginning of your
comments. In addition, you must present a rationale for withholding
this information that demonstrates that disclosure would constitute a
clearly unwarranted invasion of personal privacy. Unsupported
assertions will not meet this burden. In the absence of exceptional,
documented circumstances, this information will be released. We will
always make 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
Based on its experience in recent years, OHA has determined that
certain of its existing procedural regulations in 43 CFR part 4,
subparts E and L, need to be updated, clarified, or otherwise revised
to promote expeditious administrative review. (Subpart E contains
regulations governing public land hearings and appeals; subpart L
contains regulations governing surface coal mining hearings and
appeals.) For example, we propose to amend the existing regulations
governing service of documents, reconsideration, statements of reasons
for appeal, answers, and requests for hearings.
In addition, OHA has decided to add regulations to subpart E to
provide procedures governing motions for consolidation, extensions of
time, and intervention, and for serving and responding to any other
motions. These subjects are not currently covered in OHA's regulations,
and questions have arisen about whether and how these procedures are
conducted by IBLA. The amendments and additions are explained in the
following section-by-section analysis.
III. Section-by-Section Analysis
A. Subpart E--Special Rules Applicable to Public Land Hearings and
Appeals
Section 4.400 Definitions
We propose to define ``BLM'' to mean ``Bureau of Land Management,''
and revise the definition of ``bureau'' to include the Minerals
Management Service, because IBLA reviews some decisions of the Minerals
Management Service under subpart E, e.g., decisions concerning offshore
minerals management and royalty management. See 30 CFR Sections 290.2,
290.8, 290.108. We propose to add IBLA's address to the definition of
``Board,'' so we do not have to repeat it in other sections of the
regulations. And we would add a definition of ``last address of
record'' because this phrase appears in proposed Sections 4.401(c)(1)
and 4.422(c)(1), the regulations governing service of documents.
The regulations would specify that ``party'' includes a party's
representative(s) where the context so requires, e.g., in the service
regulations where service must be made by or upon a party. The
regulations would also specify that ``office'' or ``officer'' includes
an administrative law judge or
[[Page 10455]]
the Board where the context so requires, e.g., in Section 4.411(a)(1)
requiring that a notice of appeal be filed in the office of the officer
who made the decision being appealed.
Section 4.401 Documents
In 2003 we amended Section 4.401(c)(2) to allow a party to certify
service of a document on other parties by signing a written statement
at the end of a document that service has been or will be made, rather
than requiring the party to file proof of service in the form of a
written statement or a Postal Service return receipt. 68 FR 33794,
33803 (June 5, 2003). We did so as a step towards ``bringing IBLA's
practice into line with current rules in Federal and state courts.'' 68
FR 33801 (June 5, 2003).
Existing Section 4.401(c)(1) provides that service ``may be made by
delivering [a copy of a document] personally to [a person] or by
sending the document by registered or certified mail, return receipt
requested, to [the person's] address of record in the Bureau.'' We now
propose to revise Section 4.401(c)(1) to allow service of a document,
other than a notice of appeal that initiates a proceeding, by first-
class mail to a person's last address of record or by delivery service
to a person's last address of record if it is not a post office box.
``Last address of record'' is defined in Section 4.400 as the address
provided in a person's most recent filing in an appeal or, if there has
not been any filing, the person's address as provided in the bureau
decision under appeal.
This change would make IBLA's service regulation more consistent
with Rule 5(b)(2)(B) of the Federal Rules of Civil Procedure (FRCP).
That rule permits service of a document (other than the complaint that
commences a civil action) by mailing a copy of it to the last known
address of the person to be served.
Under the proposed rule, it will remain a party's responsibility to
assure that service is made, and to certify under Section 4.401(c)(3)
when and how it was or will be made. One who chooses a means of
delivery of a document must accept responsibility for and bear the
consequences of delay or nondelivery, National Wildlife Federation, 162
IBLA 263, 266 (2004); and the presumption of regularity that officials
have properly discharged their duties and have not lost or misplaced a
document will prevail over the presumption that a properly addressed
letter with sufficient postage will be delivered. Marathon Oil Co., 128
IBLA 168, 172 (1994); Robert J. King, 72 IBLA 72, 75 (1983). However,
it is not necessary to prescribe, except for a notice of appeal that
initiates an appeal, that service occur only by personal delivery or by
registered or certified mail. Because delivery services cannot deliver
to post office boxes, we propose that service by a delivery service may
not be made if the person's last address of record is a post office
box.
This regulation governing service would apply to any document filed
in a proceeding under subpart E. The regulation would also provide that
service must occur concurrently with filing, i.e., that copies of a
document would be delivered, mailed, or given to a delivery service for
delivery to adverse parties at the same time the document is delivered
or mailed or given to a delivery service for delivery to the Board.
These provisions are comparable to those in subpart L governing service
in proceedings under the Surface Mining Control and Reclamation Act.
See Section 4.1109.
Comparable to existing Section 4.401(c)(3), proposed Section
4.401(c)(4) states that service is complete when delivery takes place,
whether by personal service, regular mail, registered or certified
mail, or a delivery service. Service will also be complete when the
Postal Service or a delivery service returns a document undelivered. A
party should be able to rely on another party's address of record in
the bureau; and if a document sent to that address comes back
undelivered, the party has fulfilled its service obligation.
Proposed Section 4.401(c)(5) states that, in the absence of
evidence to the contrary, delivery by regular mail, registered or
certified mail, or a delivery service will be deemed to take place 3
business days after the document was sent. Contrary evidence could
include a return receipt from the Postal Service or the delivery
service, or a certification from a party's representative as to the
actual date on which the party received a document sent by regular
mail.
We propose corresponding revisions to existing Section 4.422(c).
Section 4.403 Finality of Decision; Reconsideration
The existing regulation provides that IBLA ``may reconsider a
decision in extraordinary circumstances for sufficient reason.'' This
language is not defined, and the preamble to the regulation explained
only that ``the Board does not intend to enlarge the scope of its
reconsideration practice to make it a routine feature of adjudication.
This provision reinforces the Board's expectation that parties will
make complete submissions in a timely manner during the appeal, not
afterward on reconsideration.'' 52 FR 21307 (June 5, 1987). Although
these statements are still true, IBLA has had sufficient experience
with the regulation to enable it to identify circumstances that have
frequently been found ``extraordinary,'' as well as those that have
not. Because petitions for reconsideration are often granted by order
rather than by published decision, and are therefore less available to
the public, we propose to amend the regulation to provide guidance
based on this experience.
We propose revising the language in paragraph (b) to state that the
Board may reconsider a decision ``in extraordinary circumstances,''
rather than ``in extraordinary circumstances for sufficient reason,''
because ``for sufficient reason'' does not add any meaning. That is,
IBLA may grant reconsideration if it finds extraordinary circumstances;
it does not also need to determine whether the extraordinary
circumstances provide sufficient reason to do so.
Paragraph (b)(1) would clarify that a party files a motion for
reconsideration (rather than a ``petition'' for reconsideration, as in
the existing regulation) with the Board.
Proposed paragraph (b)(3) is a revision of the language of the
existing regulation, which states that ``[n]o answer to a petition is
required unless so ordered by the Board.'' The proposed regulation
would allow parties to file an answer if they wish and would provide 15
days for doing so. See June I. Degnan (On Reconsideration), 114 IBLA
373, 376 (1990).
Paragraph (b)(4) would add that the Board may stay the
effectiveness of its decision, in response to a motion for
reconsideration, ``for good cause.''
Paragraph (d) lists some of the circumstances that may warrant
IBLA's granting a motion in its discretion.
For examples of cases in which reconsideration has been granted
because of an error of fact, see Joan Chorney (On Reconsideration), 109
IBLA 96, 97 (1989); State of Alaska (Elliot R. Lind) (On
Reconsideration), 104 IBLA 12, 15 (1988); and Marathon Oil Co. (On
Reconsideration), 103 IBLA 138, 140 (1988).
For an example of IBLA's granting reconsideration based on a recent
judicial development, see Amoco Production Co., 143 IBLA 45, 54A-54E
(1998).
For examples of the kind of change in Departmental policy that
might warrant reconsideration under paragraph (d)(3), see Conoco, Inc.,
164 IBLA 237, 241 (2005); Conoco, Inc., 115 IBLA 105, 106 (1990); and
Ladd Petroleum Corp., 107 IBLA 5, 8 (1989).
[[Page 10456]]
The second sentence of paragraph (d)(4) is intended to reinforce
the expectation mentioned above that parties will make complete
submissions during the appeal. A party that relies on newly-submitted
evidence must explain why the evidence was not provided previously. If
it does not, the Board may find the motion does not show extraordinary
circumstances. See Ulf Teigen (On Reconsideration), 159 IBLA 142, 144
(2003); Dugan Production Corp., 117 IBLA 153, 157-58 (1990).
Paragraph (e) is intended to discourage a party from re-arguing its
reasons for appeal in a motion for reconsideration, in the absence of
demonstrable error. See, e.g., Dona Jeanette Ong (On Reconsideration),
166 IBLA 65 (2005). Nor should a party file a motion for
reconsideration when a statute or regulation prescribes consequences
that IBLA has no authority to alter, e.g., 43 U.S.C. 1744(c) or 30
U.S.C. 28i. See, e.g., Lee H. and Goldie Rice, 128 IBLA 137, 141
(1993).
Section 4.404 Consolidation
The Board does not have a regulation providing that it may
consolidate appeals, so we propose to add one. If the facts or legal
issues involved in two or more appeals are the same or substantially
similar, it may be more efficient to consider them together. The Board
may consolidate appeals on its own initiative or on motion of a party.
It may do so at any time before the appeals are decided; thus, it is
possible to consolidate recently-docketed appeals with those that have
been pending longer. Parties would have 15 days after service of a
motion to consolidate to file a response, in accordance with new
Section 4.407(b).
For examples of cases that IBLA has consolidated, see San Carlos
Apache Tribe, 149 IBLA 29, 30 (1999); Murphy Exploration and Production
Co., 147 IBLA 386, 387 (1999); Elaine D. Berman, 140 IBLA 173 (1997);
and Coastal Oil and Gas Corp., 108 IBLA 62, 63 (1989).
Section 4.405 Requests for Extension of Time
Several regulations require parties to file documents with the
Board within specified times, e.g., Section 4.412(a) (statement of
reasons within 30 days after filing of the notice of appeal) and
Section 4.414 (answer within 30 days after service of a notice of
appeal or statement of reasons). See also Section 4.413(a) (service of
a notice of appeal or a statement of reasons or other pleading within
15 days after filing the document). Failure to comply with Sections
4.412 and 4.413 may subject an appeal to summary dismissal. Section
4.402.
Although parties frequently request extensions of time for filing
statements of reasons or answers, the only regulation governing how
they do so is Section 4.22(f). IBLA's experience indicates a need for a
regulation that establishes a standard for when such requests may be
granted. As noted by the former Administrative Conference of the United
States:
Time extensions should be granted only upon strong, documented
justification. While procedural fairness mandates that deadlines may
be extended for good cause, presiding officers should be aware that
casual, customary extensions have serious negative effects on an
adjudicatory system, its participants, and those wishing access
thereto. Stern warnings accompanying justified extensions have had
good success in curtailing lawyers' requests for additional time.
Recommendations of the Administrative Conference Regarding
Administrative Practice and Procedure, Recommendation No. 86-7, 51 FR
46985, 46990 (Dec. 30, 1986).
Accordingly, we propose a new regulation that would require a party
to show good cause for requesting any extension. Consent of opposing
counsel, standing alone, would not constitute good cause; but
conducting settlement negotiations in good faith would constitute good
cause for a reasonable extension of time. ``Good cause'' would be more
difficult to show with additional requests or requests for longer
extensions.
A party that foresees it will need an extension is strongly
encouraged to file a motion requesting it as early as possible, in
order to give the Board time to consider the motion. Under the proposed
regulation, the deadline for filing a request for an extension is the
day before the date the document is due, absent compelling
circumstances. For example, if a document is due on a Friday, the
motion requesting an extension would be due no later than Thursday; if
it is due on Monday, the motion would be due on the previous Friday.
See Section 4.22(e). A party may file and serve such a motion by
facsimile.
Any party that objected to a motion requesting an extension would
have to file its reasons for objection with the Board within 2 business
days. A party may likewise file and serve such an objection by
facsimile.
A Board order granting or denying a motion requesting an extension
will state when the document must be filed. If the Board does not act
on a motion before the document is due, the document must be filed no
later than 15 days after the original due date, unless the Board orders
otherwise. For example, if a document were due on the 10th of the
month, a motion for extension of time is filed by the 9th, but the
Board has not issued an order by the 10th, the document would be due on
the 25th unless, after the 10th, the Board issued an order providing a
different date. See Section 4.22(e). The Board fully intends to rule on
all motions it receives for an extension of time. But since we are
proposing to allow such motions to be filed up to the close of business
on the day before a document is due and to allow objections to be filed
within 2 business days thereafter, in many cases it will not be
possible for the Board to rule on such motions before the original
document due date. We are therefore proposing this 15-day automatic
extension period, which can be either shortened or lengthened when the
Board does rule on the motion, generally within 1 or 2 business days
after the time for filing an objection has expired.
Section 4.406 Intervention; Amicus Curiae
There is currently no regulation governing intervention in appeals
to IBLA under 43 CFR part 4, subpart E, although there is such a
regulation in subpart L, Section 4.1110. As a result, there are no
established standards for when a person may intervene. As a related
matter, there is no regulation in subpart E governing when a person may
appear as an amicus curiae, although there is a general regulation in
Section 4.3(c). We are therefore proposing a regulation that would
govern these matters.
IBLA decisions state that a person who ``could independently
maintain the action in which he seeks to participate'' may intervene.
See, e.g., Sierra Club--Rocky Mountain Chapter, 75 IBLA 220, 221 n. 2
(1983); United States v. United States Pumice Co., 37 IBLA 153, 157
(1978). Similarly, IBLA has granted intervention to a person who would
be adversely affected if the agency decision were reversed or modified
on appeal, e.g., the proponent of a project approved by the agency.
See, e.g., Las Vegas Valley Action Committee, 156 IBLA 110, 112 (2001);
Bear River Land & Grazing v. BLM, 132 IBLA 110, 113-14 (1995).
When the Board has denied a petition to intervene, it has often
allowed the person to participate as an amicus curiae. See, e.g.,
Southern Utah Wilderness Alliance, 161 IBLA 15, 18 n. 4 (2004);
Sanguine Limited, 157 IBLA 277, 281 n. 4 (2001).
[[Page 10457]]
We propose that the Board may grant a motion to intervene that is
timely filed by a person who would have a right of appeal under Section
4.410 or would be adversely affected if the decision under review were
reversed, vacated, set aside, or modified by the Board on appeal.
Whether a motion to intervene is timely would depend on the potential
intervenor's relationship to the case.
Specifically, if the person would be adversely affected if the
decision under review were reversed, vacated, set aside, or modified by
the Board on appeal, a motion to intervene must be filed within 30 days
after the person knew or should have known that the decision under
review had been appealed. If, however, the person wishing to intervene
would have a right of appeal under Section 4.410, the motion must be
filed within 30 days after the person was served with the decision or,
if not served, knew or should have known of the decision. See
Independent Petroleum Association of Mountain States, 136 IBLA 279, 281
(1996) (Board will deny motion to intervene where granting it would
circumvent the requirement in Section 4.411(a) that an appeal be filed
within 30 days after service of a decision).
The burden of showing a motion to intervene is timely filed is on
the person filing the motion. The motion must state the basis for the
proposed intervention.
The Board could deny the motion if granting it would disadvantage
the rights of the existing parties or unduly delay adjudication of the
appeal, e.g., if the motion is filed after all briefs have been
submitted and the appeal is ripe for adjudication. Alternatively, the
Board could grant the motion but limit the extent of the person's
participation in the appeal.
Under the proposed regulation, any person could file a motion to
file a brief as an amicus curiae. The motion must state what interest
the person has in the appeal and how its brief would be relevant to the
issues involved. The Board could grant or deny the motion in its
discretion. The Board may also allow a person whose motion to intervene
is denied to file a brief as an amicus curiae.
Section 4.407 Motions
There is currently no regulation that deals with motions filed with
the Board, e.g., that states when the parties may file responses or
provides when the Board is to act. In order to standardize practice and
facilitate prompt rulings, we are proposing a regulation requiring a
party that files a motion with the Board to support it with reasons.
The regulation would allow other parties to respond within 15 days and
states that the Board would rule ``as expeditiously as possible.''
The 15-day response time in Section 4.407(b) would apply to any
motion filed in a proceeding under this subpart, unless another
regulation or the Board by order sets a different response deadline.
For example, Section 4.407(b) would normally apply to a motion under
Sections 4.403, 4.404, or 4.406, discussed above, or to a motion to
dismiss, to refer for hearing (Section 4.415), to suspend consideration
or expedite consideration, to file a further pleading or exceed page
limits (see amended Sections 4.412 and 4.414, discussed below), to
request a remand, etc. Section 4.407(b) would not apply to a motion
requesting an extension of time, since Section 4.405(d) sets a shorter
response time for such motions.
If a party needs more than 15 days to file a response, it may
request an extension of time under Section 4.405.
Section 4.411 Appeal; How Taken, Mandatory Time Limit
IBLA does not have jurisdiction over an appeal unless a notice of
appeal is timely filed with the office of the officer who made the
decision. Under Section 4.22(a), a document is filed when it is
received, not when it is sent. Recently, cases have arisen in which an
appellant has transmitted a notice of appeal via facsimile. Although
the appellant attempted to transmit the notice so that it would be
filed within 30 days, the office either did not receive it or did not
receive it on time. See, e.g., National Wildlife Federation, 162 IBLA
263, 264-66 (2004) (affirming dismissal of a request for State Director
review because, although the appellant submitted the log of
transmissions from its facsimile machine, there was no evidence that
the request was received by the State Director by the time it was due).
See also Underwood Livestock, Inc., 165 IBLA 128, 130-31 (2005). In
order to avoid such issues, we propose to amend existing Section
4.411(a) to clarify that transmitting a notice of appeal by facsimile
would not constitute filing. The Board generally considers any document
it receives by facsimile only a courtesy or advance copy; it does not
consider the document filed until the original is received by the
Board. (As noted above with respect to Section 4.405(b), however, we
are proposing to make an exception for motions for extension of time
and objections to such motions.)
We propose to amend Section 4.411(b) to reflect IBLA decisions that
require authorization for a person to represent more than one party,
e.g., The Friends and Residents of Log Creek, 150 IBLA 44, 48 (1999)
(``Proper application of the Department's rules of practice requires an
affirmative showing that a representative of a named appellant is
qualified and authorized to represent any other purported appellant or
appellants, if single representation for multiple parties is
intended.''); The Wilderness Society, 109 IBLA 175, 176 (1989) (``[A]
party that wishes to join in another's appeal is well advised to file
its own notice of appeal and statement of reasons, sign the appeal
documents along with the other party, or authorize the other party's
attorney, in advance, to represent it as well.'') See also Klamath
Siskiyou Wildlife Center, 155 IBLA 347, 350-51 (2001). If an attorney
or other person eligible under Section 1.3(b) to practice before the
Department wishes to represent more than one appellant, the notice of
appeal must state that he or she is authorized to do so.
Section 4.412 Statement of Reasons, Statement of Standing
Section 4.412(a) requires an appellant to file a statement of
reasons for appeal with the Board within 30 days after the notice of
appeal is filed if the notice of appeal did not include a statement of
reasons. The next sentence states: ``In any case, the Board will permit
the appellant to file additional statements of reasons and written
arguments or briefs within the 30-day period after the notice of appeal
was filed.'' This sentence, together with existing Section 4.414 (which
requires an answer be filed within 30 days after service of a statement
of reasons and then again if additional reasons are filed by the
appellant) means a party that wishes to participate in the appeal
potentially must file two answers.
We propose to allow an appellant to file a statement of reasons
within 30 days after filing the notice of appeal (as it may under the
existing regulation), but to revise Section 4.414 to state that any
party that is served with a notice of appeal and that wishes to
participate will have 60 days after service of the statement of reasons
to file a single answer. We also propose that an appellant's statement
of reasons may not exceed 30 pages (excluding exhibits, declarations,
or other attachments) unless the appellant files a motion under Section
4.407 to obtain leave of the Board by showing good cause. We propose
that an appellant must also show good cause for leave to file any
additional pleading, e.g., a reply to an answer. We propose the same
page limit on answers.
In IBLA's experience, because the agency's decision should contain
a supporting rationale (see Larry Brown &
[[Page 10458]]
Associates, 133 IBLA 202, 205 (1995)), it is sufficient for the Board's
purposes to receive a statement of reasons for appeal and an answer.
More than this becomes costly and time-consuming to the parties and
delays ripeness of the appeal for adjudication by the Board without
providing additional useful argument.
These proposals provide adequate opportunity for all parties to
state their arguments and authorize the Board to allow longer or
additional pleadings if a need for them is shown.
We expect these pleadings will generally conform to the form
requirements of Federal Rule of Appellate Procedure 32, e.g., be
double-spaced, have adequate margins, and be in a standard type style.
Section 4.413 Service of Notice of Appeal
We propose to revise Section 4.413(a) to require service of a
notice of appeal in accordance with Section 4.401(c)(2)(i), i.e., by
personal delivery or by registered mail or certified mail, return
receipt requested. Under Section 4.401(c), all other documents filed
with the Board must also be served.
Several of the addresses of the Office of the Solicitor on which a
copy of a notice of appeal and statement of reasons must be served
under existing Section 4.413(c)(2) are out of date. The regulation
would be revised to provide the current addresses.
Section 4.414 Answers
43 CFR 4.414 currently provides that a party served with a notice
of appeal that wishes to participate in an appeal must file an answer
to an appellant's statement of reasons within 30 days after service of
the statement. In its second sentence, the regulation provides, ``If
additional reasons, written arguments, or briefs are filed by the
appellant, the adverse party shall have 30 days after service thereof
on him within which to answer them.''
As discussed above under Section 4.412, we believe it is normally
sufficient for each party to file only one brief unless it can show
good cause for a further brief. We therefore propose to revise this
regulation to require filing of a single answer (or motion, if
appropriate, e.g., a motion to dismiss) within 60 days of service of
the statement of reasons for appeal. The time for answer would be
increased from 30 to 60 days to make it the same as the total length of
time that an appellant has to file a statement of reasons from the date
of service of the decision being appealed (30 days under Section
4.411(a)(3) plus 30 days under Section 4.412(a)).
If settlement negotiations promise to extend beyond 60 days, a
person wishing to participate could file a motion requesting an
extension of time to file an answer or motion under Section 4.405. An
answer must respond to the statement of reasons for appeal and, if a
person is representing more than one party, must state that the person
is authorized to do so. Like an appellant, a party may not file a
further pleading unless the Board grants a motion showing good cause to
do so. Nor may an answer or motion exceed 30 pages (excluding exhibits,
declarations, or other attachments) unless the Board grants a motion
showing good cause.
Section 4.415 Motion for a Hearing on an Appeal Involving Questions of
Fact
Existing 43 CFR 4.415 authorizes the Board, in its discretion, to
refer a case to an administrative law judge (ALJ) for a hearing on an
issue of fact, either on its own initiative or in response to a request
from an appellant or an adverse party. The regulation provides that
such a request must be filed within 30 days after an answer is due, and
that, if the Board orders a hearing, it will specify the issues upon
which the hearing is to be held.
IBLA has found that the requirement in Section 4.415 that a request
for a hearing be filed within 30 days after an answer is due is neither
necessary nor advisable. Sometimes the need for a hearing does not
become apparent until later. Because it is not necessary that a hearing
be requested within 30 days after an answer is due, we propose to
delete this requirement.
When a party has requested a hearing without specifying the issues
of fact involved or the reasons why a hearing is necessary, IBLA has
found it helpful to issue an order requesting the party to list what
specific material issues of fact require a hearing, what evidence
concerning these issues must be presented by oral testimony, what
witnesses need to be examined, and what evidence could be presented in
documentary form, e.g., by affidavit, rather than by oral testimony.
See, e.g., W.J. and Betty Lo Wells, 122 IBLA 250, 252 (1992).
We propose to amend Section 4.415 to require a party that requests
a hearing to specify in a motion what the material issues of fact are,
what evidence must be presented, what witnesses need to be examined,
and what documentary evidence needs to be explained, if any.
Although IBLA has established standards for exercising its
discretion in favor of granting such a request, they are not set forth
in 43 CFR 4.415. The IBLA has regularly stated that a hearing is not
necessary in the absence of a material issue of fact that, if proven,
would alter the disposition of the appeal. Kim C. Evans, 82 IBLA 319,
323 (1984).
A hearing is necessary only where there is a material issue of
fact requiring resolution through the introduction of testimony and
other evidence. In the absence of such an issue, no hearing is
required. See United States v. Consolidated Mines & Smelting Co.,
455 F.2d 432, 453 (9th Cir. 1971).
Ben Cohen (On Judicial Remand), 103 IBLA 316, 321 (1988). The Board has
also said it `` `should grant a hearing when there are significant
factual or legal issues remaining to be decided and the record without
a hearing would be insufficient for resolving them.' '' Woods Petroleum
Co., 86 IBLA 46, 55 (1985), quoting Stickelman v. United States, 563
F.2d 413, 417 (9th Cir. 1977).
We propose to include the standards for referral for a hearing in
the regulation: that there is a material issue of fact which, if
proven, would alter the outcome of the appeal or that there are
significant factual or legal issues remaining to be decided and the
record without a hearing would not be sufficient for resolving them.
``Material'' means ``tending to prove or disprove a matter in issue.''
B. Garner, A Dictionary of Modern Legal Usage, (Oxford University
Press, 1987), at 354.
The existing regulation provides that the hearing will be held in
accordance with Sections 4.430 to 4.439 and the general rules in
subpart B of 43 CFR Part 4. Section 4.439 in turn states that, upon
completion of the hearing, the ALJ will send the Board the record and
proposed findings of fact on the issues presented at the hearing. Thus,
Section 4.415 does not in terms authorize IBLA to refer a case to an
ALJ either for a recommended decision or for a decision that would be
final unless appealed to IBLA, although IBLA has long done both. See,
e.g., Samedan Oil Corp., 163 IBLA 63, 71 (2004); Elizabeth B. Archer,
102 IBLA 308, 310 (1988); Hondoo River and Trails, 91 IBLA 296, 304
(1986). In recent years, IBLA's prevailing practice has been to refer
the case to an ALJ for a hearing and issuance of a decision that will
be final in the absence of an appeal.
Another of OHA's appeals boards, the Interior Board of Indian
Appeals (IBIA), also has regulations providing for the referral of a
case to an ALJ for an evidentiary hearing. Those regulations specify
that, following the hearing, the ALJ is to issue recommended findings
of fact and conclusions of law. 43 CFR 4.337, 4.338 (2004). IBIA does
not refer cases to an ALJ for a hearing and issuance of a final
decision.
[[Page 10459]]
Recently, the OHA Director issued a decision which concluded that
IBLA's regulations at Sections 4.415 and 4.430 through 4.439 provide
authority only
for the Board to refer a case for a hearing on one or more issues of
fact that the Board is required to specify, and for the ALJ to
conduct a hearing and make proposed findings of fact on the issues
so referred. The Board is not authorized to refer a case to an ALJ
for a recommended decision on the merits or for a decision that will
be final in the absence of an appeal. If considerations of judicial
economy favor expanding the authority of the Board and the ALJs to
dispose of cases that involve disputed issues of fact, the solution
is to amend the regulations.
Samedan Oil Corp., 32 OHA 61, 70 (2005)
Accordingly, we propose to make explicit the Board's authority to
refer a matter for a hearing followed by (1) proposed findings of fact
on specified issues, (2) a recommended decision, or (3) a decision that
will be final in the absence of an appeal. As discussed below, 43 CFR
Sections 4.433 and 4.439 would be revised to give ALJs the
corresponding authority. We welcome comments on the appropriateness and
relative advantages of the three options, and whether the final
regulations should include all three.
Finally, the proposed regulation would provide that the Board may
suspend the effectiveness of the decision under review pending a final
decision on the appeal if, considering factors including those set
forth in Section 4.21(b), it finds good cause to do so.
Section 4.421 Definitions
Because ``administrative law judge,'' ``Board,'' ``bureau,'' and
``Secretary'' are defined in Section 4.400, it is not necessary to
repeat them in this regulation, and we propose to remove those
definitions. We would alphabetize the remaining definitions and revise
them to reflect the revisions to the definitions in Section 4.400.
Section 4.422 Documents
As discussed above under Section 4.401, we propose to revise
existing Section 4.422(c) to allow service by first-class mail and by a
delivery service and to provide that service will be complete when a
document is delivered or returned undelivered.
Section 4.433 Authority of the Administrative Law Judge
As discussed above under Section 4.415, we propose to revise
Section 4.433 to provide authority to an administrative law judge to
issue a recommended decision or a decision that would be final for the
Department absent an appeal to the Board, in addition to proposed
findings of fact on the issues presented at the hearing. This authority
is set forth in proposed Section 4.433(a)(4).
Section 4.434 Conduct of Hearing
We propose to revise this regulation to substitute ``administrative
law judge'' for ``examiner'' and to substitute ``bureau,'' as defined
in Section 4.400, for ``Bureau of Land Management.''
Section 4.438 Summary of Evidence
We propose to remove this regulation because the procedure
described has not been used for many years and is unnecessary, since
all hearings are transcribed. We would redesignate existing Section
4.439 as Section 4.438.
Section 4.438 Action by Administrative Law Judge
As discussed above under Section 4.415, we propose to revise this
regulation to authorize an administrative law judge to issue a
recommended decision or decision that would be final for the Department
absent an appeal to the Board, in addition to proposed findings of fact
on the issues presented at the hearing. An administrative law judge's
decision that would be final for the Department absent appeal would
not, however, be precedential.
[D]ecisions of Administrative Law Judges, while certainly worthy
of respectful consideration, are not Departmental precedents and are
not binding on this Board nor are they binding upon other
Administrative Law Judges, unless they are adopted by the Board in
adjudication of an appeal.
McLean v. BLM, 133 IBLA 225, 235 n. 16 (1995); see also United States
v. Mansfield, 35 IBLA 95, 100 (1978).
We propose to delete the second sentence of the regulation, and to
require the administrative law judge to serve on the parties the
proposed findings, recommended decision, or decision that would be
final absent appeal. We also propose to add a provision that the
parties may file exceptions to proposed findings or a recommended
decision with the Board.
Section 4.478 Appeals to the Board of Land Appeals; Judicial Review
OHA recently published amendments to its regulations that
authorized an administrative law judge to issue an order granting or
denying a petition for stay of a BLM grazing decision. 43 CFR 4.474(c),
68 FR 68765, 68771 (Dec. 10, 2003). The amendments also provided for an
appeal to IBLA from such an order in Section 4.478(a), but did not
specify a time or place for filing the appeal. See Western Watersheds
Projects v. Bureau of Land Management, 166 IBLA 30, 37 (2005). We
propose to amend Section 4.478(a) to provide that an appeal may be
filed with the administrative law judge in accordance with Section
4.411(a).
B. Subpart L--Special Rules Applicable to Surface Coal Mining Hearings
and Appeals
Section 4.1117 Reconsideration
In subpart L, 43 CFR 4.1276(a) provides that a party may ``move for
reconsideration under Section 4.21(d); however, the motion shall be
filed with the Board within 30 days after the date of the decision''
(rather than ``filed promptly,'' as provided in Section 4.21(d)).
Because Section 4.1276 is in the part of subpart L headed ``Appeals to
the Board from Decisions or Orders of Administrative Law Judges,'' the
question has arisen whether Section 4.1276(a) governs reconsideration
of other Board decisions under subpart L, e.g., in appeals of decisions
of the Director of the Office of Surface Mining Reclamation and
Enforcement under Section 4.1280 et seq.
In order to provide a regulation governing reconsideration of any
Board decision under subpart L and to make that regulation consistent
with the revisions to Section 4.403, discussed above, we propose to add
a regulation to the general provisions of subpart L stating that a
petition for reconsideration may be filed within 60 days after the date
of the decision and that the provisions of Section 4.403 will apply.
Section 4.1270 Petition for Discretionary Review of a Proposed Civil
Penalty
When Section 4.1270(f) was amended recently, 67 FR 61506, 61511
(Oct. 1, 2002), the first sentence mistakenly referred to ``the rules
in Sections 4.1273 through 4.1277.'' There is no Section 4.1277, so we
are correcting the amendment of Section 4.1270(f) to refer to 4.1273
through 4.1275.
Section 4.1276 Reconsideration
This regulation will be removed because of the addition of Section
4.1117, discussed above.
Section 4.1286 Motion for a Hearing
Like Section 4.415, Section 4.1286 provides that a party may
request a hearing before an administrative law judge ``to present
evidence on an issue of fact,'' and that the Board, either in
[[Page 10460]]
response to a request or on its own motion, may refer a case to an
administrative law judge ``for a hearing on an issue of fact.'' Also
like Section 4.415, Section 4.1286 provides that the Board ``will
specify the issues upon which the hearing will be held.'' In Section
4.415, this language is followed by the statement that ``the hearing
will be held in accordance with Sections 4.430 to 4.439 and the general
rules in subpart B of this part.''
As discussed above in connection with the proposed amendment to
Section 4.415, Section 4.439 provides that after a hearing the
administrative law judge will send the Board the record and proposed
findings of fact; therefore, Section 4.415 has been construed as
authorizing the Board to refer a matter for a hearing only for proposed
findings of fact, not for a recommended decision or a decision that
will be final in the absence of an appeal. Samedan Oil Corp., 32 OHA
61, 70 (2005).
Unlike Section 4.415, there is no statement in Section 4.1286
referring to the authority under which a hearing will be conducted. To
ensure there is no ambiguity in the Board's authority under Section
4.1286 in light of the decision in Samedan, we are proposing an
amendment similar to that proposed for Section 4.415.
Paragraph (e) would provide that hearings under Section 4.1286 will
be conducted under the regulations of subpart L that provide specific
standards, deadlines, and procedures for other proceedings under the
Surface Mining Control and Reclamation Act, including regulations
governing discovery and the conduct of evidentiary hearings. In the
absence of such a provision, those regulations would not apply, since
hearings under Section 4.1286 are not required to be conducted under 5
U.S.C. 554 (2000).
IV. Review Under Procedural Statutes and Executive Orders
A. Regulatory Planning and Review (E.O. 12688)
In accordance with the criteria in Executive Order 12866, the
Office of Management and Budget has determined 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 more or adversely affect in a material way an economic
sector, productivity, competition, jobs, the environment, public health
or safety, or State, local, or tribal governments or communities. A
cost-benefit and economic analysis is not required. These proposed
regulations would have virtually no effect on the economy because they
would only revise existing procedural regulations governing appeals and
add new regulations governing consolidation of appeals, requests for
extensions of time, motions, and intervention.
2. This rule would not create inconsistencies with or interfere
with other agencies' actions because only OHA provides regulations that
govern procedures for appeals of decisions concerning the use and
disposition of public lands and their resources and concerning surface
coal mining.
3. This rule would not materially alter the budgetary effects of
entitlements, grants, user fees, loan programs, or the rights and
obligations of their recipients. These proposed regulations have to do
only with procedures governing appeals, not with entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
4. This rule does not raise novel legal or policy issues. The
proposed regulations would merely revise existing procedures and add
regulations governing consolidation of appeals, requests for extensions
of time, motions, and intervention, which are all familiar
administrative procedures.
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 proposed regulations only revise or add procedural
regulations governing appeals. 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:
1. It would not have an annual effect on the economy of $100
million or more. The proposed rule only revises procedural regulations
governing appeals and adds regulations governing consolidation of
appeals, requests for extensions of time, motions, and intervention.
The rule should have no effect on the economy.
2. It would not cause a major increase in costs or prices for
consumers, individual industries, Federal, state, or local government
agencies, or geographic regions. Revising OHA's procedural regulations
governing appeals and adding regulations governing consolidation of
appeals, requests for extensions of time, motions, and intervention
would not affect costs or prices for citizens, individual industries,
or government agencies.
3. It 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.
Revising OHA's procedural regulations governing appeals and adding
regulations governing consolidation of appeals, requests for extensions
of time, motions, and intervention 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. 1501
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. Revising
OHA's procedural regulations governing appeals and adding regulations
governing consolidation of appeals, requests for extensions of time,
motions, and intervention would neither uniquely nor significantly
affect these governments.
2. This rule would not produce an unfunded Federal mandate of $100
million or more on state, local, or tribal governments in the aggregate
or the private sector in any year, i.e., it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act. A statement
containing the information required by the Unfunded Mandates Reform
Act, 2 U.S.C. 1532, is not required.
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. Revising OHA's procedural regulations
governing appeals and adding regulations governing consolidation of
appeals, requests for extensions of time, motions, and intervention
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 revising
[[Page 10461]]
OHA's procedural regulations governing appeals and adding regulations
governing consolidation of appeals, requests for extensions of time,
motions, and intervention. 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 would not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. Because these regulations would improve OHA's procedural
regulations governing appeals and add regulations governing
consolidation of appeals, requests for extensions of time, motions, and
intervention, they would not burden either administrative or judicial
tribunals.
H. Paperwork Reduction Act
This proposed rule would 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. The proposed rule is an
administrative and procedural rule that revises OHA's procedural
regulations governing appeals and adds regulations governing
consolidation of appeals, requests for extensions of time, motions, and
intervention.
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 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 this 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
extraordinary circumstances listed in 516 DM 2, Appendix 2, applies to
the proposed rule.
The proposed rule is an administrative and procedural rule that
revises OHA's procedural regulations governing appeals and adds
regulations governing consolidation of appeals, requests for extensions
of time, motions, and intervention. 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 regulations on
Federally recognized Indian tribes and has determined that there are no
potential effects. These regulations would not affect Indian trust
resources; they would only revise OHA's procedural regulations
governing appeals and add regulations governing consolidation of
appeals, requests for extensions of time, motions, and intervention.
K. Effects on the Nation's Energy Supply (E.O. 13211)
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. Revising OHA's procedural regulations
governing appeals and adding regulations governing consolidation of
appeals, requests for extensions of time, motions, and intervention
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. We invite your comments on how to make
this rule easier to understand, including answers to the 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 (and shorter)
sections? (A ``section'' appears in bold type and is preceded by the
symbol ``Sec. '' and a numbered heading; for example, Sec. 4.403
Finality of decision; reconsideration.) (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; Mines; Public lands; Surface
mining.
Dated: February 16, 2007.
R. Thomas Weimer,
Assistant Secretary--Policy, Management and Budget.
For the reasons set forth in the preamble, the Office of Hearings
and Appeals proposes to amend 43 CFR part 4 as set forth below:
PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES
Subpart E--Special Rules Applicable to Public Land Hearings and
Appeals
1. Revise the authority citation for part 4, subpart E, to read as
follows:
Authority: Sections 4.470 to 4.480 are also issued under
authority of 43 U.S.C. 315a.
2. Revise Sec. 4.400 to read as follows:
Sec. 4.400 Definitions.
As used in this subpart:
Administrative law judge means an administrative law judge in the
Office of Hearings and Appeals, Office of the Secretary, appointed
under 5 U.S.C. 3105.
BLM means the Bureau of Land Management.
Board means the Interior Board of Land Appeals in the Office of
Hearings and Appeals, Office of the Secretary. The address of the Board
is 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203.
Bureau means BLM or the Minerals Management Service, as
appropriate.
Last address of record means the address in a person's most recent
filing in an appeal or, if there has not been any filing, the person's
address as provided in the bureau decision under appeal.
Party includes a party's representative(s) where the context so
requires.
Office or officer includes ``administrative law judge'' or
``Board'' where the context so requires.
Secretary means the Secretary of the Interior, or an authorized
representative.
[[Page 10462]]
3. In Sec. 4.401, revise paragraph (c) to read as follows:
Sec. 4.401 Documents.
* * * * *
(c) Service of documents. (1) A party that files any document under
this subpart must serve a copy of it concurrently on:
(i) Each adverse party named in the decision, at the last address
of record; and
(ii) The appropriate official of the Office of the Solicitor under
Sec. 4.413(c) and (d).
(2) Service may be made as shown in the following table:
------------------------------------------------------------------------
If the document is . . . Service may be made by . . .
------------------------------------------------------------------------
(i) A notice of appeal................. (A) Personal delivery; or
(B) Registered or certified
mail, return receipt
requested.
(ii) Not a notice of appeal............ (A) Personal delivery;
(B) Registered or certified
mail, return receipt
requested;
(C) First-class mail; or
(D) Delivery service, if the
last address of record is not
a post office box.
------------------------------------------------------------------------
(3) At the conclusion of any document that a party must serve under
the regulations in this part, the party 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.
(4) Service is complete as shown in the following table:
------------------------------------------------------------------------
Service is complete when the
If service is made by . . . document is . . .
------------------------------------------------------------------------
(i) Personal delivery.................. Delivered to the party or its
agent.
(ii) Registered or certified mail, Delivered to the party or
return receipt requested. returned by the Postal Service
unclaimed.
(iii) First-class mail................. Delivered to the party or
returned by the Postal Service
undelivered.
(iv) Delivery service.................. Delivered to the party or
returned by the delivery
service undelivered.
------------------------------------------------------------------------
(5) In the absence of evidence to the contrary, delivery under
paragraphs (c)(4)(ii) through (iv) of this section is deemed to take
place 3 business days after the document was sent.
4. Revise Sec. 4.403 to read as follows:
Sec. 4.403 Finality of decision; reconsideration.
(a) The Board's decision is final agency action and is effective on
the date it is issued, unless the decision itself provides otherwise.
(b) The Board may reconsider a decision in extraordinary
circumstances.
(1) A party that wishes to request reconsideration of a Board
decision must file a motion for reconsideration with the Board within
60 days after the date of a decision.
(2) The motion may include a request that the Board stay the
effectiveness of its decision.
(3) Any other party to the original appeal may file a response to a
motion for reconsideration with the Board within 15 days after service
of the motion, unless the Board orders otherwise.
(4) A motion for reconsideration will not stay the effectiveness or
affect the finality of the Board's decision unless so ordered by the
Board for good cause.
(5) A party does not need to file a motion for reconsideration in
order to exhaust its administrative remedies.
(c) A motion for reconsideration must:
(1) Specifically describe the extraordinary circumstances that
warrant reconsideration; and
(2) Include all arguments and supporting documents.
(d) Extraordinary circumstances that may warrant granting
reconsideration include, but are not limited to:
(1) Error in the Board's interpretation of material facts;
(2) Recent judicial development;
(3) Change in Departmental policy; or
(4) Evidence that was not before the Board at the time the Board's
decision was issued and that demonstrates error in the decision.
(e) If the motion cites extraordinary circumstances under paragraph
(d)(4) of this section, it must explain why the evidence was not
provided to the Board during the course of the original appeal.
(f) The Board will not grant a motion for reconsideration that:
(1) Merely repeats arguments made in the original appeal, except in
cases of demonstrable error; or
(2) Seeks to alter legally binding consequences.
5. Add Sec. Sec. 4.404 through 4.407 to subpart E to read as
follows:
Sec. 4.404 Consolidation.
If the facts or legal issues in two or more appeals pending before
the Board are the same or similar, the Board may consolidate the
appeals, either on motion by a party or at the initiative of the Board.
Sec. 4.405 Extensions of time.
(a) If a document other than a notice of appeal is required to be
filed or served within a definite time, a party may seek additional
time by filing with the Board a motion requesting an extension of time.
(b) The deadline for filing a motion requesting an extension is the
day before the date the document is due. The motion may be filed and
served by facsimile. Section 4.401(a) does not apply to a motion
requesting an extension of time.
(c) The party must support its motion requesting an extension of
time by showing there is good cause to grant it.
(d) Any party that objects to a motion requesting an extension must
file with the Board its reasons for objection within 2 business days
after service of the motion. The objection may be filed and served by
facsimile.
(e) A Board order granting or denying a motion requesting an
extension will state when the document must be filed. If the Board does
not act on a motion before the document is due, the document must be
filed no later than 15 days after the original due date, unless the
Board orders otherwise.
Sec. 4.406 Intervention; amicus curiae.
(a) A person who wishes to intervene in an appeal must file a
motion to intervene within the time shown in the following table:
[[Page 10463]]
------------------------------------------------------------------------
The person must file the motion
If the person . . . within 30 days after the person
. . .
------------------------------------------------------------------------
(1) Would have a right to appeal under Was served with the decision.
Sec. 4.410 and was served with the
decision.
(2) Would have a right to appeal under Knew or should have known that
Sec. 4.410 and was not served with the bureau had issued the
the decision. decision.
(3) Would be adversely affected if the Knew or should have known that
Board reversed, vacated, set aside, or the decision had been appealed
modified the decision. to the Board.
------------------------------------------------------------------------
(b) A timely motion to intervene must set forth the basis under
paragraph (a) of this section for the proposed intervention.
(c) The Board may:
(1) Deny the motion to intervene if granting it would disadvantage
the rights of the existing parties or unduly delay adjudication of the
appeal; or
(2) Grant the motion to intervene but limit the person's
participation in the appeal.
(d) A person may file a motion at any time to file a brief as an
amicus curiae.
(1) The motion must state the person's interest in the appeal and
how its brief will be relevant to the issues involved.
(2) The Board may grant or deny the motion in its discretion. The
Board may also allow a person to file a brief as amicus curiae if it
denies the person's motion to intervene.
Sec. 4.407 Motions.
(a) Any motion filed with the Board must provide a concise
statement of the reasons supporting the motion.
(b) When a person or party files a motion, any other party has 15
days after service of the motion to file a written response, unless a
provision of this subpart, e.g., Sec. 4.405(d), or the Board by order
provides otherwise.
(c) The Board will rule on any motion as expeditiously as possible.
6. In Sec. 4.411, revise paragraphs (a) and (b) to read as
follows:
Sec. 4.411 Appeal; how taken, mandatory time limit.
(a) A person who wishes to appeal to the Board must file a notice
that the person wishes to appeal.
(1) The notice of appeal must be filed in the office of the officer
who made the decision (not the Board).
(2) A person served with the decision being appealed must transmit
the notice of appeal in time for it to be filed in the appropriate
office within 30 days after the date of service.
(3) If a decision is published in the Federal Register, a person
not served with the decision must transmit the notice of appeal in time
for it to be filed in the appropriate office within 30 days after the
date of publication.
(4) Transmitting a notice of appeal by facsimile does not
constitute filing.
(b) The notice of appeal must give the serial number or other
identification of the case. A person representing more than one
appellant must state that he or she is authorized to do so. The notice
of appeal may include a statement of reasons for the appeal, and a
statement of standing if required by Sec. 4.412(b).
* * * * *
7. In Sec. 4.412, revise paragraph (a) to read as follows:
Sec. 4.412 Statement of reasons, statement of standing.
(a) An appellant must file a statement of reasons for appeal with
the Board within 30 days after the notice of appeal was filed. Unless
the Board orders otherwise, upon motion for good cause shown:
(1) The text of a statement of reasons may not exceed 30 pages
(double-spaced, using standard margins and font size); and
(2) An appellant may not file any further pleading.
* * * * *
8. Revise Sec. Sec. 4.413 through 4.415 to read as follows:
Sec. 4.413 Service of notice of appeal.
(a) The appellant must serve a copy of the notice of appeal on each
adverse party named in the decision from which the appeal is taken and
on the Office of the Solicitor as identified in paragraphs (c) and (d)
of this section. Service must be accomplished and certified as
prescribed in Sec. 4.401(c)(2)(i).
(b) Failure to serve a notice of appeal will subject the appeal to
summary dismissal as provided in Sec. 4.402.
(c) The appellant must serve a copy of the notice of appeal as
shown in the following table.
------------------------------------------------------------------------
If the appeal is taken from a decision Then the appellant must serve
of. . . the notice on. . .
------------------------------------------------------------------------
(1) The Director, Minerals Management Associate Solicitor, Division
Service. of Mineral Resources, U.S.
Department of the Interior,
Washington, DC 20240.
(2) The Director, BLM.................. (i) If the decision concerns
use and disposition of public
lands, including land
selections under the Alaska
Native Claims Settlement Act,
as amended: Associate
Solicitor, Division of Land
and Water Resources, U.S.
Department of the Interior,
Washington, DC 20240; or
(ii) If the decision concerns
use and disposition of mineral
resources: Associate
Solicitor, Division of Mineral
Resources, U.S. Department of
the Interior, Washington, DC
20240.
(3) A BLM State Office (including all the appropriate office
District, Field, and Area Offices identified in paragraph (d) of
within that State Office's this section.
jurisdiction).
(4) An Administrative Law Judge........ the persons identified in
paragraph (e) of this section.
------------------------------------------------------------------------
(d) This paragraph applies to any appeal taken from a decision of a
BLM State Office, including all District, Field, and Area Offices
within that State Office's jurisdiction. The appellant must serve
documents in accordance with the following table, unless the decision
identifies a different official:
------------------------------------------------------------------------
BLM state office Mailing address
------------------------------------------------------------------------
(1) Alaska................... Regional Solicitor, Alaska Region, U.S.
Department of the Interior, 4230
University Drive, Suite 300, Anchorage,
AK 99508-4626.
[[Page 10464]]
(2) Arizona.................. Field Solicitor, U.S. Department of the
Interior, U.S. Courthouse, Suite 404,
401 W. Washington St. SP 44, Phoenix, AZ
85003.
(3) California............... Regional Solicitor, Pacific Southwest
Region, U.S. Department of the Interior,
2800 Cottage Way, Room E-1712,
Sacramento, CA 95825-1890.
(4) Colorado................. Regional Solicitor, Rocky Mountain
Region, U.S. Department of the Interior,
755 Parfet Street, Suite 151, Lakewood,
CO 80215.
(5) Eastern States........... (i) If the decision concerns the use and
disposition of public lands: Associate
Solicitor, Division of Land and Water
Resources, Office of the Solicitor, U.S.
Department of the Interior, Washington,
DC 20240.
(ii) If the decision concerns the use and
disposition of mineral resources:
Associate Solicitor, Division of Mineral
Resources, Office of the Solicitor, U.S.
Department of the Interior, Washington,
DC 20240.
(6) Idaho.................... Field Solicitor, U.S. Department of the
Interior, University Plaza, 960 Broadway
Avenue, Suite 400, Boise, ID 83706.
(7) Montana.................. (i) Deliveries by U.S. Mail: Field
Solicitor, U.S. Department of the
Interior, P.O. Box 31394, Billings, MT
59107-1394.
(ii) All other deliveries: Field
Solicitor, U.S. Department of the
Interior, 316 North 26th Street, Room
3005, Billings, MT 59101.
(8) Nevada................... Regional Solicitor, Pacific Southwest
Region, U.S. Department of the Interior,
2800 Cottage Way, Room E-1712,
Sacramento, CA 95825-1890.
(9) New Mexico............... (i) Deliveries by U.S. Mail: Field
Solicitor, U.S. Department of the
Interior, P. O. Box 1042, Santa Fe, NM
87504-1042.
(ii) All other deliveries: Field
Solicitor, U.S. Department of the
Interior, Paisano Building, 2968 Rodeo
Plaza Drive West, Room 2070, Santa Fe,
NM 87505.
(10) Oregon.................. Regional Solicitor, Pacific Northwest
Region, U.S. Department of the Interior,
Lloyd 500 Building, Suite 607, 500 NE
Multnomah Street, Portland, OR 97232.
(11) Utah.................... Regional Solicitor, Intermountain Region,
U.S. Department of the Interior, 6201
Federal Building, 125 South State
Street, Salt Lake City, UT 84138-1180.
(12) Wyoming................. Regional Solicitor, Rocky Mountain
Region, U.S. Department of the Interior,
755 Parfet Street, Suite 151, Lakewood,
CO 80215.
------------------------------------------------------------------------
(e) This paragraph applies to any appeal taken from a decision of
an administrative law judge.
(1) The appellant must serve either:
(i) The attorney from the Office of the Solicitor who represented
the bureau at the hearing; or
(ii) If there was no hearing, the attorney who was served with a
copy of the decision by the administrative law judge.
(2) If the decision involved a mining claim on national forest
land, the appellant must serve either:
(i) The attorney from the Office of General Counsel, U.S.
Department of Agriculture, who represented the U.S. Forest Service at
the hearing; or
(ii) If there was no hearing, the attorney who was served with a
copy of the decision by the administrative law judge.
(f) Parties must serve the Office of the Solicitor as required by
this section until a particular attorney of the Office of the Solicitor
files and serves a Notice of Appearance or Substitution of Counsel.
Thereafter, parties must serve the Office of the Solicitor as indicated
by the Notice of Appearance or Substitution of Counsel.
(g) The appellant must certify service as provided in Sec.
4.401(c)(3).
Sec. 4.414 Answers.
Any person or party served with a notice of appeal that wishes to
participate in the appeal must file an answer or appropriate motion
with the Board within 60 days after service of the statement of reasons
for appeal.
(a) The answer must respond to the statement of reasons for appeal
and, if a person is representing more than one party, must state that
he or she is authorized to do so.
(b) Unless the Board orders otherwise, upon motion for good cause
shown:
(1) The text of the answer or motion may not exceed 30 pages
(double-spaced, using standard margins and font size); and
(2) The party may not file any further pleading.
(c) Failure to file an answer or motion will not result in a
default. If an answer or motion is filed or served after the time
required, the Board may disregard it in deciding the appeal, unless the
delay in filing is waived as provided in Sec. 4.401(a).
Sec. 4.415 Motion for a hearing on an appeal involving questions of
fact.
(a) Any party may file a motion that the Board refer a case to an
administrative law judge for a hearing. The motion must state:
(1) What specific material issues of fact require a hearing;
(2) What evidence concerning these issues must be presented by oral
testimony, or be subject to cross-examination;
(3) What witnesses need to be examined; and
(4) What documentary evidence requires explanation, if any.
(b) In response to a motion under paragraph (a) of this section or
on its own initiative, the Board may order a hearing if:
(1) There are any material issues of fact which, if proven, would
alter the disposition of the appeal; or
(2) There are significant factual or legal issues remaining to be
decided and the record without a hearing would be insufficient for
resolving them.
(c) If the Board orders a hearing, it must:
(1) Specify the issues of fact upon which the hearing is to be
held; and
(2) Request the administrative law judge to issue:
(i) Proposed findings of fact on the issues presented at the
hearing;
(ii) A recommended decision that includes findings of fact and
conclusions of law; or
(iii) A decision that will be final for the Department unless a
notice of appeal is filed in accordance with Sec. 4.411.
(d) If the Board orders a hearing, it may:
(1) Suspend the effectiveness of the decision under review pending
a final Departmental decision on the appeal if it finds good cause to
do so;
(2) Authorize the administrative law judge to specify additional
issues; or
(3) Authorize the parties to agree to additional issues that are
material, with the approval of the administrative law judge.
[[Page 10465]]
(e) The hearing will be conducted under Sec. Sec. 4.430 to 4.439
and the general rules in subpart B of this part.
9. Revise Sec. 4.421 to read as follows:
Sec. 4.421 Definitions.
In addition to the definitions in Sec. 4.400, as used in this
subpart:
Director means the Director of BLM, the Associate Director, or an
Assistant Director.
District manager means the supervising BLM officer of the grazing
district in which a particular range lies, or an authorized
representative.
Person named in the decision means any of the following persons
identified in a final BLM grazing decision: an affected applicant,
permittee, lessee, or agent or lienholder of record, or an interested
public as defined in Sec. 4100.0-5 of this title.
State Director means the supervising BLM officer for the State in
which a particular range lies, or an authorized representative.
10. In Sec. 4.422, revise paragraphs (c) and (d) and add new
paragraphs (e) through (g) to read as follows:
Sec. 4.422 Documents.
* * * * *
(c) Service of documents. A party filing a document under this
subpart must serve a copy of it concurrently on:
(1) Each adverse party named in the decision, at the last address
of record; and
(2) The appropriate official of the Office of the Solicitor under
Sec. 4.413(c) through (e).
(d) Acceptable methods of service. Service may be made in any of
the following ways:
------------------------------------------------------------------------
If the document is . . . Service may be made by . . .
------------------------------------------------------------------------
(1) A notice of appeal................. (i) Personal delivery; or
(ii) Registered or certified
mail, return receipt
requested.
(2) Not a notice of appeal............. (i) Personal delivery;
(ii) Registered or certified
mail, return receipt
requested;
(iii) First-class mail; or
(iv) Delivery service, if the
last address of record is not
a post office box.
------------------------------------------------------------------------
(e) Required statement. At the conclusion of any document that a
party must serve under this subpart, the party must sign a written
statement that:
(1) Certifies that service has been or will be made in accordance
with the applicable rules; and
(2) Specifies the date and manner of service.
(f) Completion of Service. (1) Service is complete as shown in the
following table:
------------------------------------------------------------------------
Service is complete when the
If service is made by . . . document is . . .
------------------------------------------------------------------------
(i) Personal delivery.................. Delivered to the party or its
agent.
(ii) Registered or certified mail, Delivered to the party or
return receipt requested. returned by the Postal Service
unclaimed.
(iii) First-class mail................. Delivered to the party or
returned by the Postal Service
undelivered.
(iv) Delivery service.................. Delivered to the party or
returned by the delivery
service undelivered.
------------------------------------------------------------------------
(2) In the absence of evidence to the contrary, delivery under
paragraphs (f)(1)(ii) through (iv) of this section is deemed to take
place 3 business days after the document was sent.
(g) Extensions of time. The Manager or the administrative law
judge, as the case may be, may extend the time for filing or serving
any document in a contest.
11. Revise Sec. Sec. 4.433 and 4.434 to read as follows:
Sec. 4.433 Authority of the administrative law judge.
(a) The administrative law judge has general authority to conduct
the hearing in an orderly and judicial manner, including authority to:
(1) Administer oaths;
(2) Call and question witnesses;
(3) Subpoena witnesses as specified in paragraph (b) of this
section;
(4) Issue findings and decisions as specified in paragraph (c) of
this section; and
(5) Take any other actions that the Board may prescribe in
referring the case for hearing.
(b) The administrative law judge has authority to subpoena
witnesses and to take and cause depositions to be taken for the purpose
of taking testimony but not for discovery. This authority must be
exercised in accordance with the Act of January 31, 1903 (32 Stat. 790;
43 U.S.C. 102 through 106).
(c) The administrative law judge has authority to issue any of the
following, as specified by the Board under Sec. 4.415(c)(2):
(1) Proposed findings of fact on the issues presented at the
hearing;
(2) A recommended decision that includes findings of fact and
conclusions of law; or
(3) A decision that will be final for the Department unless a
notice of appeal is filed in accordance with Sec. 4.411 within 30 days
of receipt of the decision.
(d) The issuance of subpoenas, the attendance of witnesses, and the
taking of depositions are governed by Sec. Sec. 4.423 and 4.26.
Sec. 4.434 Conduct of hearing.
(a) The administrative law judge may seek to obtain stipulations as
to material facts.
(b) Unless the administrative law judge directs otherwise:
(1) The appellant will first present its evidence on the facts at
issue; and
(2) The other parties and the bureau will then present their
evidence on such issues.
Sec. 4.438 [Removed]
12. Sec. 4.438 is removed.
13. Redesignate Sec. 4.439 as Sec. 4.438 and revise it to read as
follows:
Sec. 4.438 Action by administrative law judge.
(a) Upon completion of the hearing and the incorporation of the
transcript in the record, the administrative law judge will issue and
serve on the parties, as specified by the Board under Sec.
4.415(c)(2):
(1) Proposed findings of fact on the issues presented at the
hearing;
(2) A recommended decision that includes findings of fact and
conclusions of law; or
[[Page 10466]]
(3) A decision that will be final for the Department unless a
notice of appeal is filed in accordance with Sec. 4.411.
(b) The administrative law judge will promptly send to the Board
the record and:
(1) The proposed findings;
(2) The recommended decision; or
(3) The final decision if a timely notice of appeal is filed.
(c) The parties will have 30 days from service of proposed findings
or a recommended decision to file exceptions with the Board.
14. Revise Sec. 4.478(a) to read as follows:
Sec. 4.478 Appeals to the Board of Land Appeals; judicial review.
(a) Any person who has a right of appeal under Sec. 4.410 or other
applicable regulation may appeal to the Board from an order of an
administrative law judge granting or denying a petition for a stay in
accordance with Sec. 4.411.
* * * * *
Subpart L--Special Rules Applicable to Surface Mining Hearings and
Appeals
15. The authority citation for Part 4, Subpart L, continues to read
as follows:
Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272,
1275, 1293; 5 U.S.C. 301
16. Add Sec. 4.1117 to subpart L to read as follows:
Sec. 4.1117 Reconsideration.
A party may file a petition for reconsideration of any decision of
the Board under this subpart within 60 days after the date of the
decision. The provisions of Sec. 4.403 apply to a petition filed under
this paragraph.
17. Revise Sec. 4.1270(f) to read as follows:
Sec. 4.1270 Petition for discretionary review of a proposed civil
penalty.
* * * * *
(f) If the petition is granted, the rules in Sec. Sec. 4.1273
through 4.1275 are applicable, and the Board must use the point system
and conversion table contained in 30 CFR part 723 or 845 in
recalculating assessments. However, the Board has the same authority to
waive the civil penalty formula as that granted to administrative law
judges in Sec. 4.1157(b)(1). If the petition is denied, the decision
of the administrative law judge is final for the Department, subject to
Sec. 4.5.
Sec. 4.1276 [Removed]
18. Remove Sec. 4.1276.
19. Revise Sec. 4.1286 to read as follows:
Sec. 4.1286 Motion for a hearing on an appeal involving issues of
fact.
(a) Any party may file a motion that the Board refer a case to an
administrative law judge for a hearing. The motion must state:
(1) What specific material issues of fact require a hearing;
(2) What evidence concerning these issues must be presented by oral
testimony, or be subject to cross-examination;
(3) What witnesses need to be examined; and
(4) What documentary evidence requires explanation, if any.
(b) In response to a motion under paragraph (a) of this section or
on its own initiative, the Board may order a hearing if:
(1) There are any material issues of fact which, if proven, would
alter the disposition of the appeal; or
(2) There are significant factual or legal issues remaining to be
decided and the record without a hearing would be insufficient for
resolving them.
(c) If the Board orders a hearing, it must:
(1) Specify the issues of fact upon which the hearing is to be
held; and
(2) Request the administrative law judge to issue:
(i) Proposed findings of fact on the issues presented at the
hearing;
(ii) A recommended decision that includes findings of fact and
conclusions of law; or
(iii) A decision that will be final for the Department unless a
notice of appeal is filed in accordance with Sec. 4.411 within 30 days
of the date of receipt of the decision.
(d) If the Board orders a hearing, it may:
(1) Suspend the effectiveness of the decision under review pending
a final Departmental decision on the appeal if it finds good cause to
do so;
(2) Authorize the administrative law judge to specify additional
issues; or
(3) Authorize the parties to agree to additional issues that are
material, with the approval of the administrative law judge.
(e) The hearing will be conducted under Sec. Sec. 4.1100, 4.1102
through 4.1115, 4.1121 through 4.1127, and 4.1130 through 4.1141.
[FR Doc. E7-3774 Filed 3-7-07; 8:45 am]
BILLING CODE 4310-79-P