[Federal Register Volume 75, Number 202 (Wednesday, October 20, 2010)]
[Rules and Regulations]
[Pages 64655-64670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26200]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
30 CFR Chapter III and 43 CFR Parts 4 and 10
RIN 1094-AA53
Interior Board of Land Appeals and Other Appeals Procedures
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
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SUMMARY: The Office of the Secretary is amending several existing
procedural regulations governing appeals to the Interior Board of Land
Appeals (IBLA); adopting new regulations governing consolidation,
extensions of time, intervention, and motions in IBLA appeals; removing
regulations relating to the former Interior Board of Surface Mining and
Reclamation Appeals and Interior Board of Contract Appeals, which no
longer exist; and correcting the address of the Office of Hearings and
Appeals.
DATES: This rule is effective November 19, 2010.
FOR FURTHER INFORMATION CONTACT: Robert S. More, Director, Office of
Hearings and Appeals, U.S. Department of the Interior, Phone 703-235-
3810. Persons who use a telecommunications device for the deaf may call
the Federal Information Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
The Office of the Secretary published a proposed rule on March 8,
2007, to update regulations of the Office of Hearings and Appeals (OHA)
governing appeals to IBLA under 43 CFR part 4, subparts E and L. 72 FR
10454-10466. Subpart E contains regulations governing public land
hearings and appeals, while subpart L contains regulations governing
surface coal mining hearings and appeals. We proposed to amend the
existing regulations governing service of documents, reconsideration,
statements of reasons for appeal, answers, and requests for hearings;
and we proposed to add regulations governing motions for consolidation,
extensions of time, and intervention, and for serving and responding to
other motions.
We received comments on the proposed rule from the State of Alaska
Department of Law; Carl J.D. Bauman, Esq.; Biodiversity Conservation
Alliance; Chevron North America Exploration and Production Company;
Earthjustice; Kentucky Resources Council; Mary A. Nordale, Esq.; Oil &
Gas Accountability Project; J. P. Tangen, Esq.; Western Resource
Advocates; and Wyoming Outdoor Council. We are grateful for the
suggestions from these commenters and have made a number of changes in
the proposed rule in response to the comments, as explained in the
section-by-section analysis below.
This final rule makes changes to a number of other provisions that
were not included in the proposed rule. These changes, also explained
in the section-by-section analysis, are minor technical and conforming
amendments that do not require notice and comment under the
Administrative Procedure Act.
II. Section-by-Section Analysis
A. 30 CFR Chapter III--Board of Surface Mining and Reclamation Appeals
This chapter in Title 30 consists of a single part, 301, entitled
``Procedures under the Surface Mining Control and Reclamation Act of
1977.'' Part 301, in turn, consists of a single section, 301.1,
entitled ``Cross reference,'' which refers readers to 43 CFR part 4,
subpart L, for procedures relating to appeals to the Interior Board of
Surface Mining and Reclamation Appeals (IBSMA). IBSMA was abolished by
Secretarial Order dated April 26, 1983, and its functions were
transferred to IBLA. 48 FR 22370 (May 18, 1983). However, 30 CFR
Chapter III was never updated to reflect this change.
The fact that the outdated provisions of 30 CFR Chapter III have
been overlooked for the last 27 years suggests that few if any readers
were even aware of the cross-reference in Sec. 301.1. During the same
period, parties have had no apparent difficulty filing surface mining
appeals with IBLA under 43 CFR part 4, subpart L. Since 30 CFR Chapter
III appears unnecessary as well as outdated, this rule removes it from
the CFR.
B. 43 CFR Part 4, Subpart A--General; Office of Hearings and Appeals
This rule revises 43 CFR 4.1, entitled ``Scope of authority;
applicable regulations,'' to reflect changes to OHA's organization and
delegations since the last revision in 1996. In March 2005, the
Hearings Division referred to in Sec. 4.1(a) was divided into three
separate components: The Departmental Cases Hearings Division, the
Probate Hearings Division, and the White Earth Reservation Land
Settlements Act (WELSA) Hearings Division. This change was effected by
a revision to OHA's organization chapter in the Departmental Manual,
112 DM 13
[[Page 64656]]
(2005). No change to the regulations was made at that time.
Effective January 6, 2007, Congress abolished the Interior Board of
Contract Appeals (IBCA) referred to in Sec. 4.1(b)(1) and transferred
its functions to a new Civilian Board of Contract Appeals (CBCA) within
the General Services Administration. Public Law 109-163, sec. 847, 119
Stat. 3391 (2006); see 71 FR 65825 (Nov. 9, 2006).
For the last several years, OHA's delegation chapter in the
Departmental Manual has contained limits on OHA's authority. For
example, OHA may not overrule or modify a final legal interpretation
(M-Opinion) of the Solicitor, or review the merits of a biological
opinion issued by the Fish and Wildlife Service. 212 DM 13 (2009).
However, the introductory text to Sec. 4.1 is silent with respect to
any limitations on OHA's authority.
This rule therefore updates the description of the Hearings
Divisions in Sec. 4.1(a) and deletes the description of the IBCA in
Sec. 4.1(b)(1); the remaining paragraphs of Sec. 4.1(b) are
renumbered. The rule revises 43 CFR 4.1 to clarify that OHA's authority
to hear, consider, and decide matters ``as fully and finally as might
the Secretary'' is subject to any limitations imposed by the Secretary.
And the rule updates redesignated Sec. 4.1(b)(1)(ii) to include a
reference to Indian probate judges, whose decisions--like those of
administrative law judges--are appealable to the Interior Board of
Indian Appeals.
C. 43 CFR Part 4, Subpart B--General Rules Relating to Procedure and
Practice
The final rule makes minor formatting changes to Sec. 4.21(b). And
it revises Sec. 4.22(a) to clarify that a document received after
regular business hours at the office where it must be filed is
considered filed on the next business day.
D. 43 CFR Part 4, Subpart C--Special Rules of Practice Before the
Interior Board of Contract Appeals
Subpart C, consisting of Sec. Sec. 4.100 through 4.128, sets forth
procedures for appeals to IBCA. With the abolition of IBCA and transfer
of its functions to CBCA, those procedures are no longer needed. CBCA
has published its own procedures at 48 CFR part 6101. This rule
therefore removes the regulations in subpart C from 43 CFR part 4.
E. 43 CFR Part 4, Subpart E--Special Rules Applicable to Public Land
Hearings and Appeals
This rule finalizes the changes to subpart E set forth in the March
8, 2007, proposed rule, with a number of revisions reflecting the
comments we received. The preamble to the proposed rule at 72 FR 10454-
10460 should be consulted for additional explanation of the changes as
proposed.
Section 4.400 Definitions.
We proposed to add definitions for ``BLM,'' ``last address of
record,'' and ``party'' and to revise definitions for ``Board,''
``Bureau,'' and ``office'' or ``officer.'' No comments were received on
the proposed definitions, and they are generally adopted as proposed.
The one exception is the definition of ``Bureau,'' which has been
revised.
The existing regulations define ``Bureau'' to mean simply the
Bureau of Land Management (BLM). In the proposed rule, we proposed to
revise the definition of ``Bureau'' to include the Minerals Management
Service (MMS), ``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.'' 72 FR 10454. It was subsequently pointed out that
IBLA also reviews royalty management decisions of the Bureau of Indian
Affairs (BIA) under 30 CFR 290.108, and that BIA should also be
included in the definition of ``Bureau.'' More recent developments
affected our proposal to add MMS to the definition.
Effective June 18, 2010, Secretarial Order 3302 renamed MMS the
Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE).
Under paragraph 4(b) of that Order, all references to MMS in the
Department's regulations, e.g., 30 CFR part 290, are being changed to
BOEMRE. Under Secretarial Order 3299 (May 19, 2010), BOEMRE is being
reorganized into three separate organizations over the next year. The
first phase of the reorganization took effect October 1, 2010, when the
Minerals Revenue Management function moved from BOEMRE and became the
Office of Natural Resources Revenue (ONRR) within the Office of the
Assistant Secretary--Policy, Management and Budget (PMB), reporting to
the Deputy Assistant Secretary--Natural Resources Revenue. Both the
Director of ONRR and the Deputy Assistant Secretary--Natural Resources
Revenue may render decisions appealable to IBLA.
At some point in 2011, two other organizations will be created from
the remaining BOEMRE functions, the Bureau of Ocean Energy Management
(BOEM) and the Bureau of Safety and Environmental Enforcement (BSEE).
We expect that some decisions from these two bureaus will also be
appealable to IBLA.
In light of these developments, the final rule uses an expanded
term, ``Bureau or Office'' in place of ``Bureau,'' and it defines the
new term to mean BIA, BLM, BOEMRE, ONRR, the Deputy Assistant
Secretary--Natural Resources Revenue, or any successor organization.
The phrase ``or any successor organization'' will cover BOEM and BSEE
when they come into existence.
Section 4.401 Documents
Section 4.401 governs the filing and service of documents in an
appeal. Filing refers to submitting the original of a document to the
appropriate decisionmaking authority (as specified in the regulations),
while service refers to delivering a copy of the document to every
other person who is participating in the appeal. A document is filed
when it is duly received in the office of the appropriate
decisionmaking authority (see 43 CFR 4.22(a)). A document is served
when delivery is made or attempted as specified in this rule.
We proposed to revise Sec. 4.401(c) 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. Under the existing regulation, service is limited to personal
delivery or registered or certified mail. ``Last address of record''
was defined in proposed Sec. 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 or Office
decision under appeal.
Commenters supported liberalizing the service requirements, but
some thought the proposed rule did not go far enough. Their suggestions
included (a) allowing service by electronic mail or facsimile; (b)
specifying that service on a party represented by counsel should be
made on the representative; (c) requiring service at a party's current
address, if known to be different from the last address of record; (d)
not requiring service of documents on all parties named in the decision
under appeal; and (e) increasing the number of days after which
delivery is presumed to occur.
In response to the comments, the final rule provides that service
of any document other than a notice of appeal can be made by personal
delivery, mail, delivery service, or electronic means. Mail includes
Express Mail, Priority Mail, or First-Class Mail (including
[[Page 64657]]
Registered Mail, Certified Mail, or First-Class Mail without such
additional services). Delivery service includes package or envelope
delivery by companies such as DHL, FedEx, and United Parcel Service.
Electronic means includes electronic mail or facsimile.
Electronic means can be used if the party to be served has
previously consented to that means in writing. Service by such means is
effective when the document is transmitted, unless the serving party
learns that the document did not reach the party to be served. In the
latter case, the attempted service by electronic means is not
effective, and the document must be served by another method. These
provisions are modeled on the 2007 revisions to Rule 5 of the Federal
Rules of Civil Procedure.
Under the final rule, a party must serve a notice of appeal and
statement of reasons on all other persons (individuals and entities)
named in the decision under appeal, so that those persons can decide
whether they want to participate in the appeal. But subsequent
documents have to be served only on the parties to the appeal,
including the initiating and responding parties and any persons granted
intervenor status. Thus, persons named in the decision under appeal who
wish to participate in the appeal must file a notice of appeal under
Sec. 4.411, an answer under Sec. 4.414, or a motion to intervene
under Sec. 4.406. Persons named in the decision under appeal who do
not participate in the appeal do not have to be served with documents
other than the notice of appeal and statement of reasons.
The final rule provides that service on a party known to be
represented by counsel or other designated representative must be made
on the representative. Service must be made at the last address of
record of the party (if unrepresented) or the representative, unless
the party or representative has notified the serving party of a
subsequent change of address. This provision is intended to avoid
disputes over whether the serving party sent a document to the most
recent address known to the serving party. A party should be able to
rely on a person's address of record in the Bureau or Office or a
subsequent change of address notice. However, if a document sent to
that address comes back undelivered or unclaimed, the serving party
must make other reasonable efforts to complete service. For example, if
a document sent by certified mail is returned unclaimed, the serving
party should at least re-send the document by regular mail. See Jones
v. Flowers, 547 U.S. 220, 234-35 (2006).
Also in response to comments, the rule provides that service by
mail or a delivery service--in the absence of evidence to the
contrary--will be deemed to take place 5 business days (typically 7
calendar days) after the document was sent, rather than 3 days as
stated in the proposed rule. A sentence has been added stating that a
document is considered sent when it is given to the U.S. Postal Service
(or deposited in one of its mailboxes), properly addressed and with
proper postage affixed, or when it is given to a delivery service (or
deposited in one of its receptacles), properly addressed and with the
delivery cost prepaid.
Corresponding revisions have been made to proposed Sec. 4.422(c).
The final rule also adds a new Sec. 4.401(d) specifying the format
of documents filed in a case. Sections 4.412 and 4.414 in the proposed
rule had included general formatting guidance for briefs filed with
IBLA (``double-spaced, using standard margins and font size''); but we
decided to include more specific guidance in Sec. 4.401, where it
would be applicable to all cases filed under subpart E. The language
adopted is based on 43 CFR 45.11(a), 45.12(d).
Section 4.403 Finality of Decision; Reconsideration
The proposed rule revised the language in Sec. 4.403 to clarify
the standard for a motion for reconsideration, to specify that parties
can file a response to such a motion, and to list circumstances that
may warrant IBLA's granting a motion in its discretion. No comments
were received on the proposed changes, and they are adopted as
proposed.
Section 4.404 Consolidation
We proposed to add a regulation providing that the Board may
consolidate appeals on its own initiative or on motion of a party, if
the facts or legal issues involved are the same or similar. The rule
would codify existing practice. One comment was received supporting the
proposed regulation, and it is adopted as proposed.
Section 4.405 Requests for Extension of Time
We proposed to add a regulation governing motions requesting an
extension of time to file a document with the Board. As proposed, the
rule would require a party to file such a motion no later than the day
before the document is due and to show good cause for the extension. It
would allow any other party to file an objection within 2 business days
after service of the motion. And it would provide that, 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 subsequently shortens or lengthens the time by order. We received
several comments on this proposal.
One commenter suggested that the party requesting an extension be
required to indicate in the motion whether the other parties (or their
counsel) oppose the motion; and the commenter expressed concern that a
2-day period for objecting to an extension is too short. The final rule
adopts the commenter's suggestion with respect to requiring the moving
party to ascertain whether other parties oppose the motion, and
eliminates the 2-day period for objecting to an extension. Under Sec.
4.401(c)(6), service is normally deemed to take place 5 business days
after the document was sent. Five business days is the equivalent of 7
calendar days (or 8, if the period includes a holiday). Thus, under the
rule as proposed, the Board would have to wait to rule on the motion
for at least 7 calendar days after a motion for extension of time is
filed for service to occur, plus an additional 2 days to allow for a
response from the other parties (or more, if the commenter's suggestion
of a longer response period were adopted). Meanwhile, the party seeking
the extension does not know how long it will have to file its document.
Most motions for extension of time are unopposed, and the Board is
fully capable of deciding such motions without a written response from
another party.
Another commenter suggested that, if the Board denies a motion for
extension of time, the moving party should have an automatic 15-day
extension, to run from receipt of the Board's order denying the motion.
This suggestion was not adopted, since it would grant an extension of
time in cases where the Board has already determined that good cause
has not been shown. The same commenter suggested that an exception to
the filing deadline for a motion for extension of time be provided for
compelling circumstances; the commenter pointed out that such an
exception was stated in the preamble to the proposed rule, but not in
the regulation. This suggestion has been adopted.
A third commenter stated that the regulations should provide that
extensions of reasonable duration will be freely granted. The commenter
found it ``ironic that the OHA can be proposing curtailed opportunities
to present
[[Page 64658]]
pleadings when the IBLA takes three years to produce a decision on
appeal.'' We disagree that setting a ``good cause'' standard for
extensions of time, as we have in Sec. 4.405(d), will curtail
opportunities for the parties to present their pleadings. Neither the
proposed nor final rule reduces the time allowed for the parties to
file their pleadings, and extensions of time will continue to be
available upon a proper showing. It is also worth noting that the
average age of IBLA's pending cases has been falling steadily over the
last few years, from 20 months at the start of FY 2004 to less than 5
months currently. In fact, one of the principal reasons for this
rulemaking is to further improve the efficiency of IBLA's adjudicatory
process.
A final commenter suggested that ``good cause'' be defined in the
regulations to include ``difficulty in obtaining the administrative
record or the need to fully review a lengthy record or an appeal
involving complicated legal or factual issues.'' We believe it would be
impossible to adequately capture the wide array of personal,
professional, substantive, and procedural reasons that could constitute
``good cause'' under appropriate circumstances, although the proposed
rule preamble did note that conducting settlement negotiations in good
faith would justify a reasonable extension of time.
For reasons explained below in connection with Sec. 4.414, the
final rule adds a paragraph (f) to this section, allowing for an
automatic extension, not to exceed 30 days, of the deadline for filing
an answer.
Section 4.406 Intervention; Amicus Curiae
We proposed to add a regulation governing intervention in appeals
before IBLA and appearance as an amicus curiae. Under the proposed
rule, if the person seeking to intervene would be adversely affected if
the decision under appeal were reversed, vacated, set aside, or
modified by the Board, a motion to intervene would be due within 30
days after the person knew or should have known that the decision had
been appealed. However, if the person seeking to intervene would have
an independent right to appeal the decision under Sec. 4.410, a motion
to intervene would be due within 30 days after the person was served
with the decision or, if not served, knew or should have known of the
decision. The preamble cited Independent Petroleum Association of
Mountain States, 136 IBLA 279, 281 (1996), for the proposition that the
Board will deny a motion to intervene where granting it would
circumvent the requirement in Sec. 4.411(a) that an appeal be filed
within 30 days after service of a decision.
One commenter objected to the proposal because, for a party having
a right to appeal, the time for filing a motion to intervene could
expire before the party even learns that another party has filed an
appeal. According to the commenter, a party having a right to appeal
may choose not to do so in the first instance, but may want to
intervene if another party files an appeal, especially if the parties'
interests are not aligned. The commenter recommended that, in all
cases, the deadline for filing a motion to intervene should be 30 days
after the person knew or should have known that the decision has been
appealed to the Board.
The final rule adopts the commenter's recommended approach. It
further requires the party seeking to intervene to set forth the basis
for the proposed intervention in the motion, including (1) whether the
person had a right to appeal the decision under Sec. 4.410 or would be
adversely affected if the decision under appeal were reversed, vacated,
set aside, or modified by the Board, and (2) how and when the person
learned of the appeal. The Board could then take that information into
account in deciding whether to grant the motion.
The final rule adds a paragraph (e) specifying that a person
granted full or limited intervenor status is a party to the appeal,
while an amicus curiae is not. Thus, other parties are required to
serve documents on an intervenor under Sec. 4.401, though not on an
amicus curiae. However, an amicus curiae is required to serve its brief
on the parties to the appeal.
Section 4.407 Motions
We proposed to add a regulation governing motions filed with the
Board, requiring that the motion provide a concise statement of the
reasons supporting the motion, giving any other party 15 days to
respond, and stating that the Board would rule on any motion as
expeditiously as possible. The 15-day response deadline would apply
unless another regulation or the Board by order provides otherwise.
Two commenters objected to the proposal. One argued that there is
no need for a regulation on motions and that the Board should maintain
its current practice. However, as explained in the proposed rule, the
absence of a regulation leads to uncertainty among practitioners, e.g.,
as to the length of time they have to respond to a motion. The rule
will help standardize practice and facilitate prompt rulings on
motions.
The other commenter objected to the 15-day response period as being
insufficient in most cases and likely to result in motions for
extension of time. The commenter recommended that 30 days be allowed
for responding to a motion.
The Board's experience is that most motions are routine in nature
and are often unopposed or generate only a brief response. For those
motions, a short response period facilitates disposition. Other motions
are more substantive and justify a longer response period. Fifteen days
is already a week longer than the 8 days allowed for responses to
substantive motions in Rule 27 of the Federal Rules of Appellate
Procedure. The final rule therefore retains the response deadline of 15
days after service of the motion. If additional time is needed for a
particularly substantive motion, the responding party can request an
extension of time under Sec. 4.405.
Section 4.410 Who May Appeal
As explained above, the proposed rule included a revised definition
of ``Bureau'' in Sec. 4.400 as including MMS along with BLM. But it
did not include any proposed changes to Sec. 4.410, which mentions
appeals only from decisions of BLM or an administrative law judge. The
final rule revises Sec. 4.410 to substitute the more inclusive term
``Bureau or Office'' for ``BLM'' in paragraphs (a) and (c). As
explained above, the definition of ``Bureau or Office'' in Sec. 4.400
has been further revised in the final rule to include BIA, BLM, BOEMRE,
ONRR, the Deputy Assistant Secretary--Natural Resources Revenue, and
any successor organization.
Section 4.411 Appeal; How Taken, Mandatory Time Limit
We proposed to add a provision to Sec. 4.411(a) specifying that
transmitting a notice of appeal by facsimile to the office of the
officer who made the decision would not constitute filing. This
proposal was intended to avoid the problem observed in cases in which
an appellant attempted to transmit a notice of appeal by facsimile, but
the relevant office did not receive it on time or at all. See Underwood
Livestock, Inc., 165 IBLA 128, 130-31 (2005); National Wildlife
Federation, 162 IBLA 263, 264-66 (2004).
Two commenters objected to the proposal and argued that timely
electronic transmission of a notice of appeal should be accepted. One
of the commenters suggested that the
[[Page 64659]]
regulations include an express statement that the risk of delay or
nondelivery of the notice of appeal is on the sender. BLM supported the
proposed rule, expressing a concern that the volume of paper involved
could overwhelm the facilities in some offices. They noted that one
appellant had recently filed 17 appeals totaling about 1,200 pages.
Based on the Board's recent experience, it appears that some BLM
offices already accept electronic filing of notices of appeal, while
others may not. Rather than adopt a uniform rule for BLM, we have
decided to delete proposed Sec. 4.411(a)(4) for now, leaving it up to
BLM whether to accept notices of appeal by facsimile or e-mail. We plan
to revisit the issue of electronic filing in a future rulemaking.
We also proposed to add a provision to Sec. 4.411(b) specifying
that a person representing more than one appellant must state that he
or she is authorized to do so. See, 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'').
One commenter objected that this requirement is unnecessary and
would ``create a trap for the unwary.'' The commenter pointed out that
43 CFR 1.5(a) already provides that the signature of a party's
representative on a document constitutes a certificate that he or she
is authorized and qualified to represent the party. The commenter
argued that it would be ``far simpler and more efficient'' for the
Board to issue an order to show cause, requiring a person to verify his
or her authority to represent a party, in cases where the Board has a
question about such authority.
We disagree with the commenter in part. If inclusion of a single
statement in a notice of appeal avoids a potential issue about a
representative's authority, that action would be ``far simpler and more
efficient'' than the Board's issuance of an order to show cause,
followed by responses from the parties--a process that would take at
least a few weeks. Nevertheless, we share the commenter's concern about
the new requirement creating a ``trap for the unwary.'' Moreover, it
may well be that, in many cases where this issue arises, a mere
statement by the representative that other appellants have authorized
him or her to represent them will not be sufficient to resolve the
issue. If so, the Board will still have to use an order to show cause
to satisfy itself that the requirements of 43 CFR part 1 have been met.
On balance, therefore, we have decided to omit the proposed requirement
from the final rule.
The final rule amends Sec. 4.411 to add an introductory phrase,
``[e]xcept as otherwise provided by law,'' to paragraph (a)(2), since a
statute or regulation may provide a longer or shorter period for filing
an appeal than the normal 30 days. For example, under 30 U.S.C.
1724(d)(4)(B)(ii)(V), an order to perform a restructured accounting for
oil and gas royalties must ``provide the lessee or its designee 60 days
within which to file an administrative appeal of the order to perform a
restructured accounting.''
The final rule also adds a new Sec. 4.411(d), specifying what the
office of the officer who made the decision must do after receiving a
notice of appeal. The office must forward to the Board the notice of
appeal and any accompanying documents, as well as the complete
administrative record.
Section 4.412 Statement of Reasons; Statement of Standing; Reply Briefs
We proposed to revise Sec. 4.412(a) to require a single statement
of reasons to be filed within 30 days after the notice of appeal is
filed, rather than allowing two or more statements of reasons as in the
current regulations. No comments were received on this change, and it
is adopted. We have modified the language of paragraph (a) slightly, to
say that the statement of reasons must be filed ``no later than 30 days
after the notice of appeal was filed,'' rather than ``within 30 days
after the notice of appeal was filed.'' An appellant does not have to
wait until ``after the notice of appeal was filed'' to file a statement
of reasons; the two documents can be filed at the same time.
We also proposed to limit the statement of reasons to 30 pages
(excluding exhibits, declarations, or other attachments), unless the
appellant obtains leave of the Board to file a longer statement by
showing good cause. And we proposed that an appellant would also have
to show good cause for leave to file any additional pleading, e.g., a
reply to an answer.
One commenter objected to the page limitation in the proposed rule,
saying that it was arbitrary and inadequately justified in the proposed
rule. Thirty pages is the limit for a principal brief under Rule
32(a)(7) of the Federal Rules of Appellate Procedure; and in the
Board's experience, it should be sufficient in all but the most
complicated cases. This proposed change is adopted as proposed.
The same commenter and several others objected to the requirement
that an appellant obtain leave of the Board to file a reply brief. The
current regulations make no provision for a reply brief, and most
appellants who wish to file a reply seek leave of the Board to do so.
Thus the proposed rule is consistent with the prevailing practice.
However, it is also true that the Board routinely grants leave to file
a reply when requested, and appellants file replies in fewer than 10
percent of the cases. Thus, allowing a limited time for appellants to
file a reply brief appears unlikely to delay proceedings unduly.
In light of the Board's experience and the comments received, the
final rule expressly allows an appellant who feels the need to do so to
file a reply brief within 15 days after service of an answer under
Sec. 4.414. This is comparable to the 14 days allowed for a reply
brief in Rule 31 of the Federal Rules of Appellate Procedure. The reply
brief is limited to the issues raised in the answer and to 20 pages,
unless the appellant obtains leave of the Board to file a longer brief
by showing good cause. No further briefing by any party is permitted,
unless requested by the Board.
Section 4.413 Service of Notice of Appeal
The proposed rule included updated addresses for the Office of the
Solicitor on which a copy of a notice of appeal and statement of
reasons must be served. The Office of the Solicitor has informed us a
handful of other changes, and the final rule revises the information in
Sec. 4.413(c)(1), (d)(5), and (d)(9) to reflect those changes. No
public comments were received on the proposed changes, and they are
adopted as proposed, with minor editorial changes.
Section 4.414 Answers
We proposed to require each party that wishes to participate in an
appeal, including the Bureau, to file 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. This is twice the length of time
generally provided for filing an answer under the existing regulations
and would equal 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 Sec. 4.411(a) plus 30 days under Sec.
4.412(a)). No comments were received on the proposed change. On further
[[Page 64660]]
consideration, however, we have decided to leave the period for filing
an answer in Sec. 4.414(a) at 30 days, but to revise Sec. 4.405 to
provide for an automatic extension of time upon request, not to exceed
30 days.
In many cases currently, no party files an answer, which means that
the case is ripe for adjudication 30 days after service of the notice
of appeal or statement of reasons. Enlarging the period for filing an
answer to 60 days in all cases would mean that the Board would have to
wait an additional 30 days in every case to see whether a party filed
an answer.
Under the final rule, if a person wants to file an answer but needs
additional time to do so, the person can get up to the full 60 days
contemplated in the proposed rule simply by filing a request for an
extension of time before the end of the initial 30-day deadline. But if
no one files an answer or a request for an extension of time within the
initial 30-day period, the Board can proceed to consider the appeal,
without having to wait an additional 30 days.
For the reasons discussed above in connection with Sec. 4.411, the
final rule omits the proposed requirement that, if a person is
representing more than one party, the answer must state that the person
is authorized to do so.
Section 4.415 Motion for a Hearing on an Appeal Involving Questions of
Fact
We proposed several changes to existing Sec. 4.415: (1) Deleting
the requirement that a request for a hearing on issues of material fact
be filed within 30 days after an answer is due; (2) requiring a party
that requests a hearing to specify in its motion what the issues of
material fact are, what evidence must be presented, what witnesses need
to be examined, and what documentary evidence needs to be explained, if
any; (3) including the standards used by the Board in deciding whether
to refer a case for a hearing; (4) giving the Board the authority to
refer a matter for a hearing by an administrative law judge (ALJ), who
would issue (a) proposed findings of fact on specified issues, (b) a
recommended decision, or (c) a decision that will be final in the
absence of an appeal; and (5) authorizing the Board to suspend the
effectiveness of the decision under review pending a final decision on
the appeal if it finds good cause to do so.
One commenter objected to the proposed requirement that a party
requesting a hearing specify what evidence must be presented, what
witnesses need to be examined, and what documentary evidence needs to
be explained, if any. The commenter argued that discovery may be
necessary before a party can make these determinations, and discovery
may not be available until the case is referred to an ALJ for a
hearing. The commenter recommended that the rule require a party to
identify only the issues of material fact on which a hearing is
necessary or, at the least, clarify that a party will not be limited to
its specifications of evidence, witnesses, and documents in the request
for a hearing.
We have decided to retain the requirement that the party specify,
not only the issues of material fact to be heard, but also the
evidence, witnesses, and documents to be presented or cross-examined.
This information is needed for the Board to evaluate the hearing
request and determine, for example, whether evidence could be presented
in documentary form, rather than by oral testimony, thereby saving the
parties and the ALJ the time and expense of a hearing. However,
language has been added to Sec. 4.415(e) clarifying that, unless the
Board orders otherwise, the ALJ may consider other relevant issues and
evidence identified after referral of the case for a hearing.
The same commenter also recommended that the proposed rule be
amended to include procedures for discovery in cases handled by the
Departmental Cases Hearings Division. While this recommendation is
outside the scope of the current rulemaking, which focuses on
procedures for IBLA, we agree that discovery procedures for cases
before the Departmental Cases Hearings Division should be established.
We will propose such procedures in a separate rulemaking.
No other comments were received on the proposed changes to Sec.
4.415, and they are adopted as proposed.
Section 4.421 Definitions
We proposed to remove from this section a handful of terms that are
also defined in Sec. 4.400, to alphabetize the remaining definitions,
and to revise them to reflect revisions to the definitions in Sec.
4.400. No comments were received on the proposed changes, and they are
adopted as proposed.
In addition, in response to a comment from BLM, we have substituted
a definition of ``manager'' for the definition of ``district manager''
in the current regulation. BLM pointed out that subpart E never
actually uses ``district manager,'' except to define it in this section
as the supervising BLM officer of the grazing district. By contrast,
subpart E uses ``manager'' in several regulations. Since BLM manages
grazing both within grazing districts and on the public lands outside
grazing districts, the final regulation defines the term ``manager''
more broadly as ``the BLM official with direct supervision over the
public lands that are pertinent to the decision or contest.''
Section 4.422 Documents
The proposed rule included changes to the service requirements in
Sec. 4.422(c) corresponding to those proposed for Sec. 4.401(c). The
final rule adopts the same changes to Sec. 4.422(c) as are adopted for
Sec. 4.401(c), discussed above. In addition, language has been
included in Sec. 4.422(c)(4) and (6) to reflect service of a complaint
in a contest proceeding by publication, as provided in Sec. 4.450-5.
Section 4.433 Authority of the Administrative Law Judge
Consistent with one of the proposed changes to Sec. 4.415
mentioned above, we proposed to revise Sec. 4.433 to provide authority
to an ALJ to issue either 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. No comments were received on the proposed change, and it is
adopted as proposed.
Section 4.434 Conduct of Hearing
We proposed to revise this regulation to substitute
``administrative law judge'' for ``examiner'' and to substitute
``Bureau,'' as defined in Sec. 4.400, for ``Bureau of Land
Management.'' No comments were received on the proposed changes, and
they are adopted as proposed, except that the expanded term ``Bureau or
Office'' is used in the final rule.
Section 4.437 Copies of Transcript
This regulation refers to the parties' stipulating to a summary of
the evidence, a procedure that has not been used for many years and is
unnecessary, since all hearings are transcribed. The final rule removes
this reference in Sec. 4.437.
Section 4.438 Summary of Evidence
We proposed to remove this regulation as unnecessary, for the
reasons explained above in connection with Sec. 4.437. No comments
were received on the proposed change, and it is adopted as proposed.
Existing Sec. 4.439 is redesignated Sec. 4.438.
Section 4.438 Action by Administrative Law Judge
Consistent with the proposed changes to Sec. Sec. 4.415 and 4.433
mentioned above,
[[Page 64661]]
we proposed to revise this regulation to authorize an ALJ to issue (a)
proposed findings of fact on the issues presented at the hearing, (b) a
recommended decision that includes findings of fact and conclusions of
law, or (c) a decision that would be final for the Department absent an
appeal to the Board. No comments were received on this proposed change,
and it is adopted as proposed.
Section 4.452-8 Findings and Conclusions; Decision by Administrative
Law Judge
Paragraphs (a) and (b) of this section provide that, following a
hearing in a contest proceeding, the parties may submit proposed
findings of fact and conclusions of law, and the ALJ will consider them
and issue his or her decision, including findings, conclusions, and the
reasons for them. Paragraph (c) provides that ``[t]he Board may
require, in any designated case, that the [ALJ] make only a recommended
decision and that the decision and the record be submitted to the Board
for consideration.''
As far as we are aware, the authority in paragraph (c) has never
been used, and we are unaware of any reason to depart from the
consistent current practice of having the ALJ render an initial
decision that is then reviewable by the Board on appeal. The final
rule, therefore, deletes paragraph (c).
Section 4.476 Conduct of Hearing; Reporter's Fees; Transcripts
Like Sec. 4.437 discussed above, Sec. 4.476(d) refers to the
parties' stipulating to a summary of the evidence, a procedure that has
not been used for many years and is unnecessary, since all hearings are
transcribed. The final rule removes this reference in Sec. 4.476.
Section 4.477 Findings and Conclusions; Decision by Administrative Law
Judge
Paragraph (a) of this section provides that, following a hearing in
a grazing proceeding and the time allowed for the parties to submit
proposed findings of fact and conclusions of law, the ALJ will consider
them and issue his or her decision, including findings, conclusions,
and the reasons for them. Paragraph (b) provides that the Board ``may
require, in any designated case, that the [ALJ] make only a recommended
decision and that such decision and the record be submitted to the
Board for consideration.'' We are not aware of the Board's ever having
used the authority in paragraph (b), and we have deleted paragraph (b)
from the final rule.
Section 4.478 Appeals to the Board of Land Appeals; Judicial Review
As noted in the proposed rule, in 2003, OHA amended its regulations
to authorize an ALJ 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 Sec. 4.478(a), but did not specify a time or
place for filing the appeal. We proposed to amend Sec. 4.478(a) to
provide that an appeal may be filed with the ALJ in accordance with
Sec. 4.411(a). No comments were received on the proposed change, and
it is adopted as proposed.
F. 43 CFR Part 4, Subpart L--Special Rules Applicable to Surface Coal
Mining Hearings and Appeals
Section 4.1108 Form of Documents
The final rule adds a new Sec. 4.1108(g) providing that documents
filed under subpart L must conform to the document formatting
requirements of Sec. 4.401(d). This provision takes the place of the
more general formatting guidance (``double-spaced, using standard
margins and font size'') included in proposed Sec. s 4.1392(a)(2),
(e)(2).
Section 4.1109 Service
The Solicitor's Office has informed us that, in 2009, the Knoxville
Field Solicitor's Office moved to a new location. We have revised Sec.
4.1109(a)(2)(ii) to update the office address.
Section 4.1117 Reconsideration
We proposed to add Sec. 4.1117 to treat motions for
reconsideration under subpart L in a manner consistent with those under
subpart E. See Sec. 4.403, discussed above. No comments were received
on the proposed addition, and it is adopted as proposed.
Section 4.1270 Petition for Discretionary Review of a Proposed Civil
Penalty
We proposed to correct the reference in Sec. 4.1270(f) from Sec.
4.1277 (which does not exist) to Sec. 4.1275. No comments were
received on the proposed change, and it is adopted as proposed.
Section 4.1276 Reconsideration
We proposed to remove this regulation because of the addition of
Sec. 4.1117, discussed above. No comments were received on the
proposed change, and it is adopted as proposed.
Section 4.1286 Motion for a Hearing
We proposed to revise Sec. 4.1286 to treat requests for a hearing
under subpart L in a manner consistent with those under subpart E. See
Sec. 4.415, discussed above. No comments were received on the proposed
changes, and they are adopted as proposed.
Section 4.1287 Action by Administrative Law Judge
The final rule adds a new Sec. 4.1287 to require action by the
ALJ, following referral of a case for a hearing under subpart L, in a
manner consistent with that under subpart E. See redesignated Sec.
4.438, discussed above.
Section 4.1392 Contents of Request; Amendment of Requests; Responses
Section 4.1392 governs the filing of requests for review, and
responses to such requests, in cases involving a determination by the
Office of Surface Mining Reclamation and Enforcement that a person does
or does not have valid existing rights under 30 CFR 761.16. One
commenter requested that the final regulations clarify a requester's
right to file a supplemental brief, which could serve to narrow the
issues in contention. Consistent with the change to Sec. 4.412
concerning reply briefs, discussed above, the final rule adds a Sec.
4.1392(e), giving a requester who wishes to file a reply a limited
opportunity to do so. The final rule also revises Sec. 4.1392(d) to
clarify the requirements for filing a response.
G. 43 CFR Part 10--Native American Graves Protection and Repatriation
Regulations
In January 2002, OHA moved its headquarters offices to a new
building and revised these regulations to update its address. 67 FR
4367, 4368 (Jan. 30, 2002). In April 2003, however, the National Park
Service revised 43 CFR 10.12 and inadvertently republished OHA's former
address. 68 FR 16354, 16363-64 (Apr. 3, 2003). This final rule
therefore revises Sec. 10.12(j) and (k) to substitute OHA's current
address.
III. Review Under Procedural Statutes and Executive Orders
A. Decision To Issue Final Rule Without Prior Notice and Comment on
Some Provisions. While prior notice and opportunity for comment were
provided for most of the provisions of this final rule, the Office of
the Secretary has included additional provisions that were not part of
the March 8, 2007, proposed rule. These provisions are 30 CFR Chapter
III and 43 CFR part 4, subpart C, which are removed; 43 CFR 4.1, 4.21,
4.22, 4.410, 4.437, 4.452-8,
[[Page 64662]]
4.476, 4.477, 4.1108, 4.1392, and 10.12, which are revised; and 43 CFR
4.401(d), 4.411(d), and 4.1287, which are added. As is clear from the
section-by-section analysis above, the changes to these regulations are
minor technical amendments or changes needed to conform to other
statutory or regulatory actions.
The Department has determined that the public notice and comment
requirements of the Administrative Procedure Act, 5 U.S.C. 553(b), do
not apply to these additional provisions because the changes being made
relate solely to matters of agency organization, procedure, and
practice. They therefore satisfy the exemption from notice and comment
rulemaking in 5 U.S.C. 553(b)(A).
B. Regulatory Planning and Review (E.O. 12866). In accordance with
the criteria in Executive Order 12866, we have determined that this
document is not a significant regulatory action. The Office of
Management and Budget has not reviewed this rule under Executive Order
12866.
1. This rule will 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 regulations
will have virtually no effect on the economy because they 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 will not create inconsistencies with or interfere with
other agencies' actions because only the Department of the Interior
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 will not materially alter the budgetary effects of
entitlements, grants, user fees, loan programs, or the rights and
obligations of their recipients. These regulations deal 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
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.
C. Regulatory Flexibility Act. The Department of the Interior
certifies that this rule will not have a significant economic effect on
a substantial number of small entities as defined in the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). Over the past 5 years, IBLA has
received between 285 and 335 appeals per year, and appeals this year
are running at an even lower rate. Not all appellants are small
entities; but even if they were, 285-335 is not a substantial number,
for purposes of the Act. Moreover, the minor procedural changes in this
rule will not have a significant economic effect on those appellants
who are small entities. A Small Entity Compliance Guide is not
required.
D. 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 will not have an annual effect on the economy of $100 million
or more. The 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 will 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
will not affect costs or prices for citizens, individual industries,
government agencies, or geographic regions.
3. It will 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.
E. 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 will not have a significant or unique effect on small
governments or significantly affect 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 will neither
uniquely nor significantly affect these governments.
2. This rule will 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.
F. Takings (E.O. 12630). In accordance with Executive Order 12630,
we find that the rule will 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.
G. 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 OHA's procedural
regulations governing appeals and adding regulations governing
consolidation of appeals, requests for extensions of time, motions, and
intervention. A federalism summary impact statement is not required.
H. Civil Justice Reform (E.O. 12988). In accordance with Executive
Order 12988, the Department has determined that this rule will not
unduly burden the judicial system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order. Because these regulations will
improve OHA's procedural regulations governing appeals and add
regulations governing consolidation of appeals, requests for extensions
of time, motions, and intervention, they will not burden either
administrative or judicial tribunals.
I. Consultation with Indian Tribes (E.O. 13175). Under the criteria
in Executive Order 13175, we have evaluated this rule and determined
that it has no potential effects on federally recognized Indian tribes.
These regulations would not have substantial direct effects on one or
more Indian tribes, on the relationship between the Federal government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal
[[Page 64663]]
government and Indian tribes. 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.
J. Paperwork Reduction Act. This rule is exempt from the
requirements of the Paperwork Reduction Act, since it applies to the
conduct of agency administrative proceedings involving specific
individuals and entities. 44 U.S.C. 3518(c); 5 CFR 1320.4(a)(2). An OMB
form 83-I is not required.
K. National Environmental Policy Act. The Department has determined
that this rule is categorically excluded from environmental review
under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
4321 et seq., Council on Environmental Quality (CEQ) regulations, 40
CFR 1508.4, and the Department of the Interior's regulations at 43 CFR
46.210(i). 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 rule is categorically
excluded from further environmental analysis under NEPA in accordance
with 43 CFR 46.210(i), which categorically excludes ``[p]olicies,
directives, regulations and guidelines: that are of an administrative,
financial, legal, technical, or procedural nature * * *'' In addition,
the Department has determined that none of the extraordinary
circumstances listed in 43 CFR 46.215 applies to this rule.
The 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, given the categorical exclusion,
neither an environmental assessment nor an environmental impact
statement under NEPA is required.
L. Information Quality Act. In developing this rule, we did not
conduct or use a study, experiment, or survey requiring peer review
under the Information Quality Act, Pub. Law 106-554.
M. Effects on the Energy Supply (E.O. 13211). This rule is not a
significant energy action under the definition in Executive Order
13211. A Statement of Energy Effects 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 are not likely to have a significant adverse
effect on the supply, distribution, or use of energy.
List of Subjects
30 CFR Part 301
Administrative practice and procedure, Mines, Surface mining.
43 CFR Part 4
Administrative practice and procedure, Mines, Public lands, Surface
mining.
43 CFR Part 10
Administrative practice and procedure, Hawaiian Natives, Historic
preservation, Indians--Claims, Museums, Reporting and recordkeeping
requirements.
0
For the reasons set forth in the preamble, the Office of the Secretary
amends 30 CFR Chapter III and 43 CFR parts 4 and 10 as set forth below:
Title 30--Mineral Resources
Chapter III--[REMOVED]
0
Under the authority of 30 U.S.C. 1211, 30 CFR Chapter III, consisting
of part 301, is removed.
Title 43--Public Lands: Interior
43 CFR Subtitle A--Office of the Secretary of the Interior
PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES
0
2. The authority citation for part 4 continues to read as follows:
Authority: 5 U.S.C. 301; 43 U.S.C. 1201.
Subpart A--General; Office of Hearings and Appeals
0
3. In Sec. 4.1, revise the introductory text and paragraph (a), remove
paragraph (b)(1), redesignate paragraphs (b)(2) through (b)(4) as
paragraphs (b)(1) through (b)(3), and revise the first sentence of
newly redesignated paragraph (b)(1)(ii) to read as follows:
Sec. 4.1 Scope of authority; applicable regulations.
The Office of Hearings and Appeals, headed by a Director, is an
authorized representative of the Secretary for the purpose of hearing,
considering, and deciding matters within the jurisdiction of the
Department involving hearings, appeals, and other review functions of
the Secretary. The Office may hear, consider, and decide those matters
as fully and finally as might the Secretary, subject to any limitations
on its authority imposed by the Secretary. Principal components of the
Office include:
(a) One or more Hearings Divisions consisting of administrative law
judges who are authorized to conduct hearings in cases required by law
to be conducted under 5 U.S.C. 554, and other deciding officials who
are authorized to conduct hearings in cases arising under statutes and
regulations of the Department; and
(b) * * *
(1) * * *
(ii) Decisions and orders of administrative law judges and Indian
probate judges in Indian probate matters, other than those involving
estates of the Five Civilized Tribes of Indians. * * *
* * * * *
Sec. 4.21 [Amended]
0
4. In Sec. 4.21, amend paragraph (b)(3) by adding the word ``and''
after the semicolon at the end of the paragraph and amend paragraph
(b)(4) by removing the semicolon at the end of the paragraph and adding
a period in its place.
Subpart B--General Rules Relating to Practice and Procedure
0
5. Revise Sec. 4.22(a) to read as follows:
Sec. 4.22 Documents.
(a) Filing of documents. A document is filed in the office where
the filing is required only when the document is received in that
office during its regular business hours and by a person authorized to
receive it. A document received after the office's regular business
hours is considered filed on the next business day.
* * * * *
Subpart C--[Removed and Reserved]
0
6. Subpart C, consisting of Sec. Sec. 4.100 through 4.128 and Appendix
I, is removed and reserved.
Subpart E--Special Rules Applicable to Public Land Hearings and
Appeals
0
7. 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.
0
8. 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, appointed under 5 U.S.C. 3105.
BIA means the Bureau of Indian Affairs.
[[Page 64664]]
BLM means the Bureau of Land Management.
Board means the Interior Board of Land Appeals in the Office of
Hearings and Appeals. The address of the Board is 801 N. Quincy Street,
Suite 300, Arlington, Virginia 22203. The telephone number is 703-235-
3750, and the facsimile number is 703-235-8349.
BOEMRE means the Bureau of Ocean Energy Management, Regulation and
Enforcement.
Bureau or Office means BIA, BLM, BOEMRE, ONRR, the Deputy Assistant
Secretary--Natural Resources Revenue, or any successor organization, 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.
ONRR means the Office of Natural Resources Revenue.
Office or officer includes ``administrative law judge'' or
``Board'' where the context so requires.
Party includes a party's representative(s) where the context so
requires.
Secretary means the Secretary of the Interior or an authorized
representative.
0
9. In Sec. 4.401, revise paragraph (c) and add paragraph (d) 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 as follows:
(i) On the appropriate official of the Office of the Solicitor
under Sec. 4.413(c) and (d);
(ii) For a notice of appeal and statement of reasons, on each
person named in the decision under appeal; and
(iii) For all other documents, on each party to the appeal
(including intervenors).
(2) Service on a person or party known to be represented by counsel
or other designated representative must be made on the representative.
(3) Service must be made at the last address of record of the
person or party (if unrepresented) or the representative, unless the
person, party, or representative has notified the serving party of a
subsequent change of address.
(4) Service may be made as shown in the following table:
------------------------------------------------------------------------
Service may be made
If the document is * * * by * * *
------------------------------------------------------------------------
(i) A notice of appeal............................. (A) Personal
delivery;
(B) Registered or
certified mail,
return receipt
requested;
(C) Delivery
service, delivery
receipt requested,
if the last
address of record
is not a post
office box; or
(D) Electronic
means, such as
electronic mail or
facsimile, if the
person to be
served has
previously
consented to that
means in writing.
(ii) Not a notice of appeal........................ (A) Personal
delivery;
(B) Mail;
(C) Delivery
service, if the
last address of
record is not a
post office box;
or
(D) Electronic
means, such as
electronic mail or
facsimile, if the
person to be
served has
previously
consented to that
means in writing.
------------------------------------------------------------------------
(5) At the conclusion of any document that a party must serve
under the regulations in this subpart, 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.
(6) Service that complies with paragraphs (c)(2) through (4) of
this section is complete as shown in the following table:
------------------------------------------------------------------------
Service is complete
If service is made by * * * when the document
is * * *
------------------------------------------------------------------------
(i) Personal delivery.............................. Delivered to the
party.
(ii) Mail or delivery service...................... Delivered to the
party.
(iii) Electronic means............................. Transmitted to the
party, unless the
serving party
learns that it did
not reach the
party to be
served.
------------------------------------------------------------------------
(7) In the absence of evidence to the contrary, delivery under
paragraph (c)(6)(ii) of this section is deemed to take place 5 business
days after the document was sent. A document is considered sent when it
is given to the U.S. Postal Service (or deposited in one of its
mailboxes), properly addressed and with proper postage affixed, or when
it is given to a delivery service (or deposited in one of its
receptacles), properly addressed and with the delivery cost prepaid.
(d) Document format. (1) The format requirements in paragraph
(d)(2) of this section apply to any pleading, motion, brief, or other
document filed in a case under this subpart, other than an exhibit or
attachment or the administrative record.
(i) An exhibit or attachment must be 8\1/2\ by 11 inches in size
or, if larger, folded to 8\1/2\ by 11 inches and attached to the
document.
(ii) Any document that does not comply with the requirements in
this paragraph (d) may be rejected.
(2) A document filed in a case must:
(i) Be 8\1/2\ by 11 inches in size;
(ii) Be printed on just one side of the page;
(iii) Be clearly typewritten, printed, or otherwise reproduced by a
process that yields legible and permanent copies;
(iv) Use 11 point font size or larger;
(v) Be double-spaced except for the case caption, argument
headings, long quotations, and footnotes, which may be single-spaced;
(vi) Have margins of at least 1 inch;
(vii) Be numbered sequentially, starting on the second page; and
(vii) Be stapled in the upper left-hand corner, if stapled, or
bound on the left side, if bound.
0
10. 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 its decision in extraordinary
circumstances.
[[Page 64665]]
(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 the 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 21 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 relief from the legally binding consequences of a statute
or regulation.
0
11. Add Sec. Sec. 4.404 through 4.407 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) A motion requesting an extension must be filed no later than
the day before the date the document is due, absent compelling
circumstances. 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) Except as provided in paragraph (f) of this section, before
filing a motion requesting an extension of time, the moving party must
make reasonable efforts to contact each other party to determine
whether the party opposes the motion. The moving party must state in
its motion:
(1) Whether any party it reached opposes the motion; and
(2) What steps it took to contact any party it was unable to reach.
(d) Except as provided in paragraph (f) of this section, the party
must support its motion requesting an extension of time by showing
there is good cause to grant it.
(e) A Board order granting or denying a motion requesting an
extension will state when the document must be filed. Except as
provided in paragraph (f) of this section, 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.
(f) A party seeking additional time to file an answer may have one
automatic extension, not to exceed 30 days, of the deadline in Sec.
4.414(a) by filing a motion for such extension under paragraphs (a) and
(b) of this section.
Sec. 4.406 Intervention; amicus curiae.
(a) A person who wishes to intervene in an appeal must file a
motion to intervene within 30 days after the person knew or should have
known that the decision had been appealed to the Board.
(b) A motion to intervene must set forth the basis for the proposed
intervention, including:
(1) Whether the person had a right to appeal the decision under
Sec. 4.410 or would be adversely affected if the Board reversed,
vacated, set aside, or modified the decision; and
(2) How and when the person learned of the appeal.
(c) The Board may:
(1) Grant the motion to intervene;
(2) Deny the motion to intervene for good cause, e.g., where
granting it would disadvantage the rights of the existing parties or
unduly delay adjudication of the appeal; or
(3) 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.
(e) A person granted full or limited intervenor status is a party
to the appeal, while an amicus curiae is not. A person granted amicus
curiae status must serve its brief on the parties to the appeal.
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, other than a motion for
an extension of time under Sec. 4.405, any party has 15 days after
service of the motion to file a written response, unless a provision of
this subpart or the Board by order provides otherwise.
(c) The Board will rule on any motion as expeditiously as possible.
(d) The requirements of Sec. 4.401(d) apply to a motion.
0
12. In Sec. 4.410, revise paragraphs (a) introductory text and (c)
introductory text to read as follows:
Sec. 4.410 Who may appeal.
(a) Any party to a case who is adversely affected by a decision of
the Bureau or Office or an administrative law judge has the right to
appeal to the Board, except:
* * * * *
(c) Where the Bureau or Office provided an opportunity for
participation in its decisionmaking process, a party to the case, as
set forth in paragraph (a) of this section, may raise on appeal only
those issues:
* * * * *
0
13. In Sec. 4.411, revise paragraphs (a) and (b) and add paragraph (d)
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) Except as otherwise provided by law:
(i) A person served with the decision being appealed must transmit
the notice of appeal in time for it to be received in the appropriate
office no later than 30 days after the date of service of the decision;
and
[[Page 64666]]
(ii) 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 received in the appropriate office no later than 30 days
after the date of publication.
(b) The notice of appeal must give the serial number or other
identification of the case. 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).
* * * * *
(d) After receiving a timely notice of appeal, the office of the
officer who made the decision must promptly forward to the Board:
(1) The notice of appeal;
(2) Any statement of reasons, statement of standing, and other
documents included with the notice of appeal; and
(3) The complete administrative record compiled during the
officer's consideration of the matter leading to the decision being
appealed.
0
14. In Sec. 4.412, revise the section heading and paragraph (a) and
add paragraphs (d) and (e) to read as follows:
Sec. 4.412 Statement of reasons; statement of standing; reply briefs.
(a) An appellant must file a statement of reasons for appeal with
the Board no later than 30 days after the notice of appeal was filed.
Unless the Board orders otherwise upon motion for good cause shown, the
text of a statement of reasons may not exceed 30 pages, excluding
exhibits, declarations, or other attachments.
* * * * *
(d) The filing of a reply brief is discouraged. However, an
appellant who wishes to file a reply brief may do so within 15 days
after service of an answer under Sec. 4.414.
(1) The reply brief is limited to the issues raised in the answer.
(2) Unless the Board orders otherwise upon motion for good cause
shown, the text of a reply brief may not exceed 20 pages, excluding
exhibits, declarations, or other attachments.
(e) The requirements of Sec. 4.401(d) apply to a statement of
reasons and a reply brief.
0
15. 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
person 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).
(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 on the
Office of the Solicitor as shown in the following table.
------------------------------------------------------------------------
If the appeal is taken from a Then the appellant must serve the notice
decision of * * * on * * *
------------------------------------------------------------------------
(1) ONRR, the Deputy Regional Solicitor, Rocky Mountain
Assistant Secretary--Natural Region, U.S. Department of the Interior,
Resources Revenue, or BIA 755 Parfet Street, Suite 151, Lakewood,
concerning royalties. CO 80215.
(2) BOEMRE................... Associate Solicitor, Division of Mineral
Resources, U.S. Department of the
Interior, Washington, DC 20240.
(3) 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.
(4) A BLM State Office The appropriate office identified in
(including all District, paragraph (d) of this section.
Field, and Area Offices
within that State Office's
jurisdiction).
(5) An Administrative Law The persons identified in paragraph (e)
Judge. 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 on the Office of the Solicitor 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.
(2) Arizona.................. Field Solicitor, U.S. Department of the
Interior, U.S. Courthouse, Suite 404,
401 W. Washington St. SPC 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) For decisions involving Connecticut,
Delaware, Illinois, Indiana, Iowa,
Maine, Maryland, Massachusetts,
Michigan, Minnesota, New Hampshire, New
Jersey, New York, Ohio, Pennsylvania,
Rhode Island, Vermont, Virginia, West
Virginia, or Wisconsin: Regional
Solicitor, Northeast Region, U.S.
Department of the Interior, One Gateway
Center, Suite 612, Newton, MA 02458.
(ii) For decisions involving Alabama,
Arkansas, Florida, Georgia, Kentucky,
Louisiana, Mississippi, Missouri, North
Carolina, South Carolina, or Tennessee:
Regional Solicitor, Southeast Region,
U.S. Department of the Interior, 75
Spring Street, SW., Suite 304, Atlanta,
Georgia 30303.
(6) Idaho.................... Field Solicitor, U.S. Department of the
Interior, University Plaza, 960 Broadway
Avenue, Suite 400, Boise, ID 83706.
[[Page 64667]]
(7) Montana (covers the (i) Deliveries by U.S. Mail: Field
states of Montana, North Solicitor, U.S. Department of the
Dakota, and South Dakota). 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 (covers the Regional Solicitor, Southwest Region,
states of New Mexico, U.S. Department of the Interior, 505
Kansas, Oklahoma, and Texas). Marquette Ave., NW., Suite 1800,
Albuquerque, NM 87102.
(10) Oregon (covers the Regional Solicitor, Pacific Northwest
states of Oregon and Region, U.S. Department of the Interior,
Washington). 805 SW. Broadway, Suite 600, Portland,
OR 97205.
(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 (covers the Regional Solicitor, Rocky Mountain
states of Wyoming and Region, U.S. Department of the Interior,
Nebraska). 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) Except as provided in paragraph (e)(2) of this section, the
appellant must serve either:
(i) The attorney from the Office of the Solicitor who represented
the Bureau or Office 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)(5).
Sec. 4.414 Answers.
(a) Any person served with a notice of appeal who wishes to
participate in the appeal must file an answer or appropriate motion
with the Board within 30 days after service of the statement of reasons
for appeal. The answer must respond to the statement of reasons for
appeal.
(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,
excluding exhibits, declarations, or other attachments; 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).
(d) The requirements of Sec. 4.401(d) apply to an answer or
motion.
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 issues of material 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 there are:
(1) Any issues of material fact which, if proved, would alter the
disposition of the appeal; or
(2) 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 do one or more of the
following:
(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. 4.430 to 4.438
and the general rules in subpart B of this part. Unless the Board
orders otherwise, the administrative law judge may consider other
relevant issues and evidence identified after referral of the case for
a hearing.
0
16. 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 or a BLM Deputy Director or
Assistant Director.
Manager means the BLM official with direct jurisdiction over the
public lands that are pertinent to the decision or contest.
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.
0
17. In Sec. 4.422, revise paragraphs (c) and (d) to read as follows:
Sec. 4.422 Documents.
* * * * *
[[Page 64668]]
(c) Service of documents. (1) A party that files any document under
this subpart must serve a copy of it concurrently as follows:
(i) On the appropriate official of the Office of the Solicitor
under Sec. 4.413(c) and (d);
(ii) For a notice of appeal and statement of reasons, on each
person named in the decision under appeal; and
(iii) For all other documents, on each party to the appeal.
(2) Service on a party known to be represented by counsel or other
designated representative must be made on the representative.
(3) Service must be made at the last address of record of the party
(if unrepresented) or the representative, unless the party or
representative has notified the serving party of a subsequent change of
address.
(4) Service may be made as shown in the following table:
------------------------------------------------------------------------
If the document is * * * Service may be made by * * *
------------------------------------------------------------------------
(i) An appeal under Sec. (A) Personal delivery;
4.470.
(B) Registered or certified mail, return
receipt requested;
(C) Delivery service, delivery receipt
requested, if the last address of record
is not a post office box; or
(D) Electronic means, such as electronic
mail or facsimile, if the person to be
served has previously consented to that
means of service in writing.
(ii) A complaint under Sec. (A) Any of the methods specified in
4.450-4 or 4.451-2. paragraph (c)(4)(i) of this paragraph;
or
(B) Publication as specified in Sec.
4.450-5.
(iii) Neither an appeal nor a (A) Personal delivery;
complaint.
(B) Mail;
(C) Delivery service, if the last address
of record is not a post office box; or
(D) Electronic means, such as electronic
mail or facsimile, if the person to be
served has consented to that means in
writing.
------------------------------------------------------------------------
(5) At the conclusion of any document that a party must serve
under the regulations in this subpart, 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.
(6) Service that complies with paragraphs (c)(2) through (4) of
this section is complete as shown in the following table:
------------------------------------------------------------------------
If service is made by * * * Service is complete when * * *
------------------------------------------------------------------------
(i) Personal delivery........ The document is delivered to the party.
(ii) Mail or delivery service The document is delivered to the party.
(iii) Electronic means....... The document is transmitted to the party,
unless the serving party learns that it
did not reach the party to be served.
(iv) Publication............. The final notice is published under Sec.
4.450-5(b)(3).
------------------------------------------------------------------------
(7) In the absence of evidence to the contrary, delivery under
paragraph (c)(6)(ii) of this section is deemed to take place 5 business
days after the document was sent.
(d) The manager or administrative law judge, as the case may be,
may extend the time for filing or serving any document in a contest,
other than a notice of appeal under Sec. 4.452-9.
Sec. Sec. 4.430 through 4.432 [Amended]
0
18. In Sec. Sec. 4.430 through 4.432 and 4.436, remove the reference
``Bureau'' and add in its place the reference ``Bureau or Office''
wherever it appears.
0
19. 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 or Office will then present
their evidence on such issues.
Sec. 4.436 [Amended]
0
20. In Sec. 4.436, remove the reference ``Bureau'' and add in its
place the reference ``Bureau or Office'' wherever it appears.
0
21. Revise Sec. 4.437 to read as follows:
Sec. 4.437 Copies of transcript.
Each party must pay for any copies of the transcript that the party
requests.
[[Page 64669]]
The Bureau or Office will file the original transcript with the case
record.
Sec. 4.438 [Removed]
0
22. Remove Sec. 4.438.
Sec. 4.439 [Redesignated as Sec. 4.438]
0
23. 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 and that advises the parties of their right to file
exceptions under paragraph (c) of this section; or
(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.
0
24. In Sec. 4.452-8, revise the section heading and remove paragraph
(c).
The revision reads as follows:
Sec. 4.452-8 Findings and conclusions; decision by administrative law
judge.
* * * * *
0
25. Revise Sec. 4.476(d) to read as follows:
Sec. 4.476 Conduct of hearings; reporter's fees; transcript.
* * * * *
(d) The reporter's fees will be borne by the Government. Each party
must pay for any copies of the transcript that the party requests. The
Government will file the original transcript with the case record.
0
26. Revise Sec. 4.477 to read as follows:
Sec. 4.477 Findings and conclusions; decision by administrative law
judge.
As promptly as possible after the time allowed for presenting
proposed findings and conclusions, the administrative law judge will
make findings of fact and conclusions of law, unless waiver has been
stipulated, and will render a decision upon all issues of material fact
and law presented on the record. In doing so, he or she may adopt the
findings of fact and conclusions of law proposed by one or more of the
parties if they are correct. The reasons for the findings, conclusions,
and decision made will be stated, and along with the findings,
conclusions, and decision, will become a part of the record in any
further appeal. A copy of the decision must be sent by certified mail
to all the parties.
0
27. 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.
* * * * *
0
28. 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.
0
29. Add Sec. 4.1108(g) to read as follows:
Sec. 4.1108 Form of documents.
* * * * *
(g) Documents filed under this subpart must conform to the
requirements of Sec. 4.401(d).
0
30. Revise Sec. 4.1109(a)(2)(i) to read as follows:
Sec. 4.1109 Service.
(a) * * *
(2) * * *
(i) For mining operations in Alabama, Arkansas, Georgia, Illinois,
Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri,
North Carolina, Oklahoma, Tennessee, Texas, and Virginia: Field
Solicitor, U.S. Department of the Interior, 800 S. Gay Street, Suite
800, Knoxville, Tennessee 37929; Telephone: (865) 545-4294; FAX: (865)
545-4314.
* * * * *
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31. Add Sec. 4.1117 to read as follows:
Sec. 4.1117 Reconsideration.
A party may file a motion 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 motion filed under
this paragraph.
0
32. 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]
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33. Remove Sec. 4.1276.
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34. 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 issues of material 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 there are:
(1) Any issues of material fact which, if proved, would alter the
disposition of the appeal; or
(2) 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 do one or more of the
following:
(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;
[[Page 64670]]
(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.
Unless the Board orders otherwise, the administrative law judge may
consider other relevant issues and evidence identified after referral
of the case for a hearing.
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35. Add Sec. 4.1287 to read as follows:
Sec. 4.1287 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 and that advises the parties of their right to file
exceptions under paragraph (c) of this section; or
(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 the recommended
decision to file exceptions with the Board.
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36. In Sec. 4.1392, revise paragraphs (a) and (d) and add paragraph
(e) to read as follows:
Sec. 4.1392 Contents of request; amendment of requests; responses.
(a) The request for review:
(1) Must include:
(i) A clear statement of the reasons for appeal;
(ii) A request for specific relief;
(iii) A copy of the decision appealed from; and
(iv) Any other relevant information; and
(2) May not exceed 30 pages, excluding exhibits, declarations, and
other attachments, unless the Board orders otherwise upon motion for
good cause shown.
* * * * *
(d) An interested party may file an answer, motion, or statement as
described in paragraph (b) of this section in response to an amended
request for review as follows:
(1) If the request for review is amended as a matter of right, the
answer, motion, or statement must be filed within the longer of the
following periods:
(i) The time remaining for response to the original request for
review; or
(ii) Ten days after receipt of the amended request for review; and
(2) If the Board grants a motion to amend a request for review, the
answer, motion, or statement must be filed within the time set by the
Board in its order granting the motion.
(e) The filing of a reply is discouraged. However, a person who
filed a request for review may file a reply that:
(1) Is limited to the issues raised in an answer or motion;
(2) Does not exceed 20 pages, excluding exhibits, declarations, and
other attachments, unless the Board orders otherwise upon motion for
good cause shown; and
(3) Is filed within:
(i) Fifteen days after service of the answer or motion under
paragraph (b) or (d)(1) of this section; or
(ii) The time set by the Board in its order under paragraph (d)(2)
of this section.
PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REGULATIONS
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37. The authority citation for part 10 is revised to read as follows:
Authority: 16 U.S.C. 470dd; 25 U.S.C. 9, 3001 et seq.
Subpart C--Human Remains, Funerary Objects, Sacred Objects, or
Objects of Cultural Patrimony in Museums and Federal Collections
Sec. 10.12 [Amended]
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38. In Sec. 10.12:
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a. In paragraph (j) introductory text, remove the address ``4015 Wilson
Boulevard, Arlington, VA 22203-1923'' and add in its place the address
``801 North Quincy Street, Arlington, VA 22203''; and
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b. In paragraphs (k)(1) and (3), remove the address ``4015 Wilson
Boulevard, Arlington, VA 22203-1954'' and add in its place the address
``801 North Quincy Street, Arlington, VA 22203''.
Dated: October 4, 2010.
Rhea S. Suh,
Assistant Secretary--Policy, Management and Budget.
[FR Doc. 2010-26200 Filed 10-19-10; 8:45 am]
BILLING CODE 4310-79-P