[Code of Federal Regulations]
[Title 43, Volume 2]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR3165.4]

[Page 437-438]
 
                    TITLE 43--PUBLIC LANDS: INTERIOR
 
    CHAPTER II--BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR
 
PART 3160--ONSHORE OIL AND GAS OPERATIONS--Table of Contents
 
              Subpart 3165--Relief, Conflicts, and Appeals
 
Sec. 3165.4  Appeals.

    (a) Appeal of decision of State Director. Any party adversely 
affected by the decision of the State Director after State Director 
review, under Sec. 3165.3(b) of this title, of a notice of violation or 
assessment or of an instruction, order, or decision may appeal that 
decision to the Interior Board of Land Appeals pursuant to the 
regulations set out in part 4 of this title.
    (b) Appeal from decision on a proposed penalty after a hearing on 
the record. (1) Any party adversely affected by the decision of an 
Administrative Law Judge on a proposed penalty after a hearing on the 
record under Sec. 3165.3(c) of this title may appeal that decision to 
the Interior Board of Land Appeals pursuant to the regulations in part 4 
of this title.
    (2) In lieu of a hearing on the record under Sec. 3165.3(c) of this 
title, any party adversely affected by the decision of the State 
Director on a proposed penalty may waive the opportunity for such a 
hearing on the record by appealing directly to the Interior Board of 
Land Appeals under part 4 of this title. However, if the right to a 
hearing on the record is waived, further appeal to the District Court 
under section 109(j) of the Federal Oil and Gas Royalty Management Act 
is precluded.
    (c) Effect of an appeal on an approval/decision by a State Director 
or Administrative Law Judge. All decisions and approvals of a State 
Director or Administrator Law Judge under this part shall remain 
effective pending appeal unless the Interior Board of Land Appeals 
determines otherwise upon consideration of the standards stated in this 
paragraph. The provisions of 43 CFR 4.21(a) shall not apply to any 
decision or approval of a State Director or Administrative Law Judge 
under this part. A petition for a stay of a decision or approval of a 
State Director or Administrative Law Judge shall be filed with the 
Interior Board of Land Appeals, Office of Hearings and Appeals, 
Department of the Interior, and shall show sufficient justification 
based on the following standards:
    (1) The relative harm to the parties if the stay is granted or 
denied,
    (2) The likelihood of the appellant's success on the merits,
    (3) The likelihood of irreparable harm to the appellant or resources 
if the stay is not granted, and
    (4) Whether the public interest favors granting the stay.

Nothing in this paragraph shall diminish the discretionary authority of 
a State Director or Administrative Law Judge to stay the effectiveness 
of a decision subject to appeal pursuant to paragraph (a) or (b) of this 
section upon a request by an adversely affected party or on the State 
Director's or Administrative Law Judge's own initiative. If a State 
Director or Administrative Law Judge denies such a request, the 
requester can petition for a stay of the denial decision by filing a 
petition with the Interior Board of Land Appeals that addresses the 
standards described above in this paragraph.
    (d) Effect of appeal on compliance requirements. Except as provided 
in paragraph (d) of this section, any appeal filed pursuant to 
paragraphs (a) and (b) of this section shall not result in a suspension 
of the requirement for compliance with the order or decision from which 
the appeal is taken unless the Interior Board of Land Appeals determines 
that suspension of the requirements of the order or decision will not be 
detrimental to the interests of the lessor or upon submission and 
acceptance of a bond deemed adequate to indemnify the lessor from loss 
or damage.
    (e) Effect of appeal on assessments and penalties. (1) Except as 
provided in paragraph (d)(3) of this section, an appeal filed pursuant 
to paragraph (a) of this section shall suspend the accumulation of 
additional daily assessments. However, the pendency of an appeal shall 
not bar the authorized officer from assessing civil penalties under 
Sec. 3163.2 of this title in the event the operator has failed to abate 
the violation which resulted in the assessment. The Board of Land 
Appeals may issue appropriate orders to coordinate the pending appeal 
and the pending civil penalty proceeding.
    (2) Except as provided in paragraph (d)(3) of this section, an 
appeal filed pursuant to paragraph (b) of this section shall suspend the 
accumulation of additional daily civil penalties.

[[Page 438]]

    (3) When an appeal is filed under paragraph (a) or (b) of this 
section, the State Director may, within 10 days of receipt of the notice 
of appeal, recommend that the Director reinstate the accumulation of 
assessments and daily civil penalties until such time as a final 
decision is rendered or until the violation is abated. The Director may, 
if he/she determines that the public interest requires it, reinstate 
such accumulation(s) upon a finding that the violation is causing or 
threatening immediate substantial and adverse impacts on public health 
and safety, the environment, production accountability, or royalty 
income. If the Director does not act on the recommendation to reinstate 
the accumulation(s) within 45 days of the filing of the notice of 
appeal, the suspension shall continue.
    (4) When an appeal is filed under paragraph (a) of this section from 
a decision to require drainage protection, BLM's drainage determination 
will remain in effect during the appeal, notwithstanding the provisions 
of 43 CFR 4.21. Compensatory royalty and interest determined under 30 
CFR Part 218 will continue to accrue throughout the appeal.
    (f) Judicial review. Any person who is aggrieved by a final order of 
the Secretary under this section may seek review of such order in the 
United States District Court for the judicial district in which the 
alleged violation occurred. Because section 109 of the Federal Oil and 
Gas Royalty Management Act provides for judicial review of civil penalty 
determinations only where a person has requested a hearing on the 
record, a waiver of such hearing precludes further review by the 
district court. Review by the district court shall be on the 
administrative record only and not de novo. Such an action shall be 
barred unless filed within 90 days after issuance of final decision as 
provided in Sec. 4.21 of this title.

[52 FR 5395, Feb. 20, 1987; 52 FR 10225, Mar. 31, 1987, as amended at 53 
FR 17365, May 16, 1988; 57 FR 9013, Mar. 13, 1992; 66 FR 1894, Jan. 10, 
2001]