[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR4.21]

[Page 49-50]
 
                    TITLE 43--PUBLIC LANDS: INTERIOR
 
PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES--Table of Contents
 
      Subpart B--General Rules Relating to Procedures and Practice
 
Sec. 4.21  General provisions.

    (a) Effect of decision pending appeal. Except as otherwise provided 
by law or other pertinent regulation:
    (1) A decision will not be effective during the time in which a 
person adversely affected may file a notice of appeal; when the public 
interest requires, however, the Director or an Appeals Board may provide 
that a decision, or any part of a decision, shall be in full force and 
effective immediately;
    (2) A decision will become effective on the day after the expiration 
of the time during which a person adversely

[[Page 50]]

affected may file a notice of appeal unless a petition for a stay 
pending appeal is filed together with a timely notice of appeal; a 
petition for a stay may be filed only by a party who may properly 
maintain an appeal;
    (3) A decision, or that portion of a decision, for which a stay is 
not granted will become effective immediately after the Director or an 
Appeals Board denies or partially denies the petition for a stay, or 
fails to act on the petition within the time specified in paragraph 
(b)(4) of this section.
    (b) Standards and procedures for obtaining a stay. Except as 
otherwise provided by law or other pertinent regulation:
    (1) A petition for a stay of a decision pending appeal shall show 
sufficient justification based on the following standards:
    (i) The relative harm to the parties if the stay is granted or 
denied,
    (ii) The likelihood of the appellant's success on the merits,
    (iii) The likelihood of immediate and irreparable harm if the stay 
is not granted, and
    (iv) Whether the public interest favors granting the stay;
    (2) The appellant requesting the stay bears the burden of proof to 
demonstrate that a stay should be granted;
    (3) The appellant shall serve a copy of its notice of appeal and 
petition for a stay on each party named in the decision from which the 
appeal is taken, and on the Director or the Appeals Board to which the 
appeal is taken, at the same time such documents are served on the 
appropriate officer of the Department; any party, including the officer 
who made the decision being appealed, may file a response to the stay 
petition within 10 days after service; failure to file a response shall 
not result in a default on the question of whether a stay should be 
granted; service shall be made by delivering copies personally or by 
sending them by registered or certified mail, return receipt requested;
    (4) The Director or an Appeals Board shall grant or deny a petition 
for a stay pending appeal, either in whole or in part, on the basis of 
the factors listed in paragraph (b)(1) of this section, within 45 
calendar days of the expiration of the time for filing a notice of 
appeal;
    (c) Exhaustion of administrative remedies. No decision which at the 
time of its rendition is subject to appeal to the Director or an Appeals 
Board shall be considered final so as to be agency action subject to 
judicial review under 5 U.S.C. 704, unless a petition for a stay of 
decision has been timely filed and the decision being appealed has been 
made effective in the manner provided in paragraphs (a)(3) or (b)(4) of 
this section or a decision has been made effective pending appeal 
pursuant to paragraph (a)(1) of this section or pursuant to other 
pertinent regulation.
    (d) Finality of decision. No further appeal will lie in the 
Department from a decision of the Director or an Appeals Board of the 
Office of Hearings and Appeals. Unless otherwise provided by regulation, 
reconsideration of a decision may be granted only in extraordinary 
circumstances where, in the judgment of the Director or an Appeals 
Board, sufficient reason appears therefor. Requests for reconsideration 
must be filed promptly, or within the time required by the regulations 
relating to the particular type of proceeding concerned, and must state 
with particularity the error claimed. The filing and pendency of a 
request for reconsideration shall not operate to stay the effectiveness 
of the decision involved unless so ordered by the Director or an Appeals 
Board. A request for reconsideration need not be filed to exhaust 
administrative remedies.

[36 FR 7186, Apr. 15, 1971, as amended at 58 FR 4942, Jan. 19, 1993]