10454 Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 

instructions on how to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Heather Hamilton at (913) 551–7039, or 

by e-mail at Hamilton.heather@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

final rules section of the Federal 

Register, EPA is approving the state’s 

SIP revision as a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

revision amendment and anticipates no 

relevant adverse comments to this 

action. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no relevant adverse comments 

are received in response to this action, 

no further activity is contemplated in 

relation to this action. If EPA receives 

relevant adverse comments, the direct 

final rule will be withdrawn and all 

public comments received will be 

addressed in a subsequent final rule 

based on this proposed action. EPA will 

not institute a second comment period 

on this action. Any parties interested in 

commenting on this action should do so 

at this time. Please note that if EPA 

receives adverse comment on part of 

this rule and if that part can be severed 

from the remainder of the rule, EPA may 

adopt as final those parts of the rule that 

are not the subject of an adverse 

comment. For additional information, 

see the direct final rule that is located 

in the rules section of this Federal 

Register. 

Dated: February 27, 2007. 

John B. Askew, 

Regional Administrator, Region 7. 

[FR Doc. E7–4178 Filed 3–7–07; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Office of the Secretary 

43 CFR Part 4 

RIN 1094–AA53 

Interior Board of Land Appeals 

Procedures 

AGENCY: Office of the Secretary, Interior. 

ACTION: Proposed rule. 

SUMMARY: The Office of Hearings and 

Appeals (OHA) is proposing to amend 

several existing procedural regulations 

governing appeals to the Interior Board 

of Land Appeals (IBLA) and to adopt 

new regulations governing 

consolidation, extensions of time, 

intervention, and motions. 

DATES: You should submit your 

comments by May 7, 2007. 

ADDRESSES: You may submit comments, 

identified by the number 1094–AA53, 

by any of the following methods: 

—Federal rulemaking portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

—Fax: 703–235–9014. 

—E-mail: John_Strylowski@ios.doi.gov. 

Include the number 1094–AA53 in 

the subject line of the message. 

—Mail: Director, Office of Hearings and 

Appeals, Department of the Interior, 

801 N. Quincy Street, Suite 300, 

Arlington, Virginia 22203. 

—Hand delivery: Director, Office of 

Hearings and Appeals, Department of 

the Interior, 801 N. Quincy Street, 

Suite 400, Arlington, Virginia 22203. 

FOR FURTHER INFORMATION CONTACT: 

Robert S. More, Director, Office of 

Hearings and Appeals, U.S. Department 

of the Interior, Phone 703–235–3750. 

Persons who use a telecommunications 

device for the deaf may call the Federal 

Information Relay Service at 800–877–

8339. 

SUPPLEMENTARY INFORMATION: 

I. Public Comments 

If you wish to comment on this 

proposed rule, you may submit your 

comments by any of the methods listed 

in the ADDRESSES section above. We will 

consider all comments received by the 

deadline stated in the DATES section 

above. 

Please make your comments as 

specific as possible and explain the 

reason for any changes you recommend. 

Where possible, your comments should 

refer to the specific section or paragraph 

of the regulations you are addressing. 

Our practice is to make comments, 

including the names of respondents and 

their home addresses, phone numbers, 

and e-mail addresses, available for 

public review during regular business 

hours. To review the comments, you 

may contact the individual listed in the 

FOR FURTHER INFORMATION CONTACT

section above. 

Individual respondents may request 

that we withhold their names and home 

addresses, etc. But if you wish us to 

consider withholding this information, 

you must state this prominently at the 

beginning of your comments. In 

addition, you must present a rationale 

for withholding this information that 

demonstrates that disclosure would 

constitute a clearly unwarranted 

invasion of personal privacy. 

Unsupported assertions will not meet 

this burden. In the absence of 

exceptional, documented 

circumstances, this information will be 

released. We will always make 

submissions from organizations or 

businesses, and from individuals 

identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

II. Background 

Based on its experience in recent 

years, OHA has determined that certain 

of its existing procedural regulations in 

43 CFR part 4, subparts E and L, need 

to be updated, clarified, or otherwise 

revised to promote expeditious 

administrative review. (Subpart E 

contains regulations governing public 

land hearings and appeals; subpart L 

contains regulations governing surface 

coal mining hearings and appeals.) For 

example, we propose to amend the 

existing regulations governing service of 

documents, reconsideration, statements 

of reasons for appeal, answers, and 

requests for hearings. 

In addition, OHA has decided to add 

regulations to subpart E to provide 

procedures governing motions for 

consolidation, extensions of time, and 

intervention, and for serving and 

responding to any other motions. These 

subjects are not currently covered in 

OHA’s regulations, and questions have 

arisen about whether and how these 

procedures are conducted by IBLA. The 

amendments and additions are 

explained in the following section-bysection analysis. 

III. Section-by-Section Analysis 

A. Subpart E—Special Rules Applicable 

to Public Land Hearings and Appeals 

Section 4.400 Definitions 

We propose to define ‘‘BLM’’ to mean 

‘‘Bureau of Land Management,’’ and 

revise the definition of ‘‘bureau’’ to 

include the Minerals Management 

Service, because IBLA reviews some 

decisions of the Minerals Management 

Service under subpart E, e.g., decisions 

concerning offshore minerals 

management and royalty management. 

See 30 CFR Sections 290.2, 290.8, 

290.108. We propose to add IBLA’s 

address to the definition of ‘‘Board,’’ so 

we do not have to repeat it in other 

sections of the regulations. And we 

would add a definition of ‘‘last address 

of record’’ because this phrase appears 

in proposed Sections 4.401(c)(1) and 

4.422(c)(1), the regulations governing 

service of documents. 

The regulations would specify that 

‘‘party’’ includes a party’s 

representative(s) where the context so 

requires, e.g., in the service regulations 

where service must be made by or upon 

a party. The regulations would also 

specify that ‘‘office’’ or ‘‘officer’’

includes an administrative law judge or 


pwalker on PROD1PC71 with PROPOSALS
Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 10455 

the Board where the context so requires, 

e.g., in Section 4.411(a)(1) requiring that 

a notice of appeal be filed in the office 

of the officer who made the decision 

being appealed. 

Section 4.401 Documents 

In 2003 we amended Section 

4.401(c)(2) to allow a party to certify 

service of a document on other parties 

by signing a written statement at the end 

of a document that service has been or 

will be made, rather than requiring the 

party to file proof of service in the form 

of a written statement or a Postal 

Service return receipt. 68 FR 33794, 

33803 (June 5, 2003). We did so as a 

step towards ‘‘bringing IBLA’s practice 

into line with current rules in Federal 

and state courts.’’ 68 FR 33801 (June 5, 

2003). 

Existing Section 4.401(c)(1) provides 

that service ‘‘may be made by delivering 

[a copy of a document] personally to [a 

person] or by sending the document by 

registered or certified mail, return 

receipt requested, to [the person’s] 

address of record in the Bureau.’’ We 

now propose to revise Section 

4.401(c)(1) to allow service of a 

document, other than a notice of appeal 

that initiates a proceeding, by first-class 

mail to a person’s last address of record 

or by delivery service to a person’s last 

address of record if it is not a post office 

box. ‘‘Last address of record’’ is defined 

in Section 4.400 as the address provided 

in a person’s most recent filing in an 

appeal or, if there has not been any 

filing, the person’s address as provided 

in the bureau decision under appeal. 

This change would make IBLA’s 

service regulation more consistent with 

Rule 5(b)(2)(B) of the Federal Rules of 

Civil Procedure (FRCP). That rule 

permits service of a document (other 

than the complaint that commences a 

civil action) by mailing a copy of it to 

the last known address of the person to 

be served. 

Under the proposed rule, it will 

remain a party’s responsibility to assure 

that service is made, and to certify 

under Section 4.401(c)(3) when and 

how it was or will be made. One who 

chooses a means of delivery of a 

document must accept responsibility for 

and bear the consequences of delay or 

nondelivery, National Wildlife 

Federation, 162 IBLA 263, 266 (2004); 

and the presumption of regularity that 

officials have properly discharged their 

duties and have not lost or misplaced a 

document will prevail over the 

presumption that a properly addressed 

letter with sufficient postage will be 

delivered. Marathon Oil Co., 128 IBLA 

168, 172 (1994); Robert J. King, 72 IBLA 

72, 75 (1983). However, it is not 

necessary to prescribe, except for a 

notice of appeal that initiates an appeal, 

that service occur only by personal 

delivery or by registered or certified 

mail. Because delivery services cannot 

deliver to post office boxes, we propose 

that service by a delivery service may 

not be made if the person’s last address 

of record is a post office box. 

This regulation governing service 

would apply to any document filed in 

a proceeding under subpart E. The 

regulation would also provide that 

service must occur concurrently with 

filing, i.e., that copies of a document 

would be delivered, mailed, or given to 

a delivery service for delivery to adverse 

parties at the same time the document 

is delivered or mailed or given to a 

delivery service for delivery to the 

Board. These provisions are comparable 

to those in subpart L governing service 

in proceedings under the Surface 

Mining Control and Reclamation Act. 

See Section 4.1109. 

Comparable to existing Section 

4.401(c)(3), proposed Section 4.401(c)(4) 

states that service is complete when 

delivery takes place, whether by 

personal service, regular mail, registered 

or certified mail, or a delivery service. 

Service will also be complete when the 

Postal Service or a delivery service 

returns a document undelivered. A 

party should be able to rely on another 

party’s address of record in the bureau; 

and if a document sent to that address 

comes back undelivered, the party has 

fulfilled its service obligation. 

Proposed Section 4.401(c)(5) states 

that, in the absence of evidence to the 

contrary, delivery by regular mail, 

registered or certified mail, or a delivery 

service will be deemed to take place 3 

business days after the document was 

sent. Contrary evidence could include a 

return receipt from the Postal Service or 

the delivery service, or a certification 

from a party’s representative as to the 

actual date on which the party received 

a document sent by regular mail. 

We propose corresponding revisions 

to existing Section 4.422(c). 

Section 4.403 Finality of Decision; 

Reconsideration 

The existing regulation provides that 

IBLA ‘‘may reconsider a decision in 

extraordinary circumstances for 

sufficient reason.’’ This language is not 

defined, and the preamble to the 

regulation explained only that ‘‘the 

Board does not intend to enlarge the 

scope of its reconsideration practice to 

make it a routine feature of 

adjudication. This provision reinforces 

the Board’s expectation that parties will 

make complete submissions in a timely 

manner during the appeal, not afterward 

on reconsideration.’’ 52 FR 21307 (June 

5, 1987). Although these statements are 

still true, IBLA has had sufficient 

experience with the regulation to enable 

it to identify circumstances that have 

frequently been found ‘‘extraordinary,’’

as well as those that have not. Because 

petitions for reconsideration are often 

granted by order rather than by 

published decision, and are therefore 

less available to the public, we propose 

to amend the regulation to provide 

guidance based on this experience. 

We propose revising the language in 

paragraph (b) to state that the Board may 

reconsider a decision ‘‘in extraordinary 

circumstances,’’ rather than ‘‘in 

extraordinary circumstances for 

sufficient reason,’’ because ‘‘for 

sufficient reason’’ does not add any 

meaning. That is, IBLA may grant 

reconsideration if it finds extraordinary 

circumstances; it does not also need to 

determine whether the extraordinary 

circumstances provide sufficient reason 

to do so. 

Paragraph (b)(1) would clarify that a 

party files a motion for reconsideration 

(rather than a ‘‘petition’’ for 

reconsideration, as in the existing 

regulation) with the Board. 

Proposed paragraph (b)(3) is a 

revision of the language of the existing 

regulation, which states that ‘‘[n]o 

answer to a petition is required unless 

so ordered by the Board.’’ The proposed 

regulation would allow parties to file an 

answer if they wish and would provide 

15 days for doing so. See June I. Degnan 

(On Reconsideration), 114 IBLA 373, 

376 (1990). 

Paragraph (b)(4) would add that the 

Board may stay the effectiveness of its 

decision, in response to a motion for 

reconsideration, ‘‘for good cause.’’

Paragraph (d) lists some of the 

circumstances that may warrant IBLA’s 

granting a motion in its discretion. 

For examples of cases in which 

reconsideration has been granted 

because of an error of fact, see Joan 

Chorney (On Reconsideration), 109 

IBLA 96, 97 (1989); State of Alaska 

(Elliot R. Lind) (On Reconsideration), 

104 IBLA 12, 15 (1988); and Marathon 

Oil Co. (On Reconsideration), 103 IBLA 

138, 140 (1988). 

For an example of IBLA’s granting 

reconsideration based on a recent 

judicial development, see Amoco 

Production Co., 143 IBLA 45, 54A–54E 

(1998). 

For examples of the kind of change in 

Departmental policy that might warrant 

reconsideration under paragraph (d)(3), 

see Conoco, Inc., 164 IBLA 237, 241 

(2005); Conoco, Inc., 115 IBLA 105, 106 

(1990); and Ladd Petroleum Corp., 107 

IBLA 5, 8 (1989). 


pwalker on PROD1PC71 with PROPOSALS
10456 Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 

The second sentence of paragraph 

(d)(4) is intended to reinforce the 

expectation mentioned above that 

parties will make complete submissions 

during the appeal. A party that relies on 

newly-submitted evidence must explain 

why the evidence was not provided 

previously. If it does not, the Board may 

find the motion does not show 

extraordinary circumstances. See Ulf 

Teigen (On Reconsideration), 159 IBLA 

142, 144 (2003); Dugan Production 

Corp., 117 IBLA 153, 157–58 (1990). 

Paragraph (e) is intended to 

discourage a party from re-arguing its 

reasons for appeal in a motion for 

reconsideration, in the absence of 

demonstrable error. See, e.g., Dona 

Jeanette Ong (On Reconsideration), 166 

IBLA 65 (2005). Nor should a party file 

a motion for reconsideration when a 

statute or regulation prescribes 

consequences that IBLA has no 

authority to alter, e.g., 43 U.S.C. 1744(c) 

or 30 U.S.C. 28i. See, e.g., Lee H. and 

Goldie Rice, 128 IBLA 137, 141 (1993). 

Section 4.404 Consolidation 

The Board does not have a regulation 

providing that it may consolidate 

appeals, so we propose to add one. If the 

facts or legal issues involved in two or 

more appeals are the same or 

substantially similar, it may be more 

efficient to consider them together. The 

Board may consolidate appeals on its 

own initiative or on motion of a party. 

It may do so at any time before the 

appeals are decided; thus, it is possible 

to consolidate recently-docketed 

appeals with those that have been 

pending longer. Parties would have 15 

days after service of a motion to 

consolidate to file a response, in 

accordance with new Section 4.407(b). 

For examples of cases that IBLA has 

consolidated, see San Carlos Apache 

Tribe, 149 IBLA 29, 30 (1999); Murphy 

Exploration and Production Co., 147 

IBLA 386, 387 (1999); Elaine D. Berman, 

140 IBLA 173 (1997); and Coastal Oil 

and Gas Corp., 108 IBLA 62, 63 (1989). 

Section 4.405 Requests for Extension 

of Time 

Several regulations require parties to 

file documents with the Board within 

specified times, e.g., Section 4.412(a) 

(statement of reasons within 30 days 

after filing of the notice of appeal) and 

Section 4.414 (answer within 30 days 

after service of a notice of appeal or 

statement of reasons). See also Section 

4.413(a) (service of a notice of appeal or 

a statement of reasons or other pleading 

within 15 days after filing the 

document). Failure to comply with 

Sections 4.412 and 4.413 may subject an 

appeal to summary dismissal. Section 

4.402. 

Although parties frequently request 

extensions of time for filing statements 

of reasons or answers, the only 

regulation governing how they do so is 

Section 4.22(f). IBLA’s experience 

indicates a need for a regulation that 

establishes a standard for when such 

requests may be granted. As noted by 

the former Administrative Conference of 

the United States: 

Time extensions should be granted only 

upon strong, documented justification. While 

procedural fairness mandates that deadlines 

may be extended for good cause, presiding 

officers should be aware that casual, 

customary extensions have serious negative 

effects on an adjudicatory system, its 

participants, and those wishing access 

thereto. Stern warnings accompanying 

justified extensions have had good success in 

curtailing lawyers’ requests for additional 

time. 

Recommendations of the Administrative 

Conference Regarding Administrative 

Practice and Procedure, 

Recommendation No. 86–7, 51 FR 

46985, 46990 (Dec. 30, 1986). 

Accordingly, we propose a new 

regulation that would require a party to 

show good cause for requesting any 

extension. Consent of opposing counsel, 

standing alone, would not constitute 

good cause; but conducting settlement 

negotiations in good faith would 

constitute good cause for a reasonable 

extension of time. ‘‘Good cause’’ would 

be more difficult to show with 

additional requests or requests for 

longer extensions. 

A party that foresees it will need an 

extension is strongly encouraged to file 

a motion requesting it as early as 

possible, in order to give the Board time 

to consider the motion. Under the 

proposed regulation, the deadline for 

filing a request for an extension is the 

day before the date the document is due, 

absent compelling circumstances. For 

example, if a document is due on a 

Friday, the motion requesting an 

extension would be due no later than 

Thursday; if it is due on Monday, the 

motion would be due on the previous 

Friday. See Section 4.22(e). A party may 

file and serve such a motion by 

facsimile. 

Any party that objected to a motion 

requesting an extension would have to 

file its reasons for objection with the 

Board within 2 business days. A party 

may likewise file and serve such an 

objection by facsimile. 

A Board order granting or denying a 

motion requesting an extension will 

state when the document must be filed. 

If the Board does not act on a motion 

before the document is due, the 

document must be filed no later than 15 

days after the original due date, unless 

the Board orders otherwise. For 

example, if a document were due on the 

10th of the month, a motion for 

extension of time is filed by the 9th, but 

the Board has not issued an order by the 

10th, the document would be due on the 

25th unless, after the 10th, the Board 

issued an order providing a different 

date. See Section 4.22(e). The Board 

fully intends to rule on all motions it 

receives for an extension of time. But 

since we are proposing to allow such 

motions to be filed up to the close of 

business on the day before a document 

is due and to allow objections to be filed 

within 2 business days thereafter, in 

many cases it will not be possible for 

the Board to rule on such motions 

before the original document due date. 

We are therefore proposing this 15-day 

automatic extension period, which can 

be either shortened or lengthened when 

the Board does rule on the motion, 

generally within 1 or 2 business days 

after the time for filing an objection has 

expired. 

Section 4.406 Intervention; Amicus 

Curiae 

There is currently no regulation 

governing intervention in appeals to 

IBLA under 43 CFR part 4, subpart E, 

although there is such a regulation in 

subpart L, Section 4.1110. As a result, 

there are no established standards for 

when a person may intervene. As a 

related matter, there is no regulation in 

subpart E governing when a person may 

appear as an amicus curiae, although 

there is a general regulation in Section 

4.3(c). We are therefore proposing a 

regulation that would govern these 

matters. 

IBLA decisions state that a person 

who ‘‘could independently maintain the 

action in which he seeks to participate’’

may intervene. See, e.g., Sierra Club—

Rocky Mountain Chapter, 75 IBLA 220, 

221 n. 2 (1983); United States v. United 

States Pumice Co., 37 IBLA 153, 157 

(1978). Similarly, IBLA has granted 

intervention to a person who would be 

adversely affected if the agency decision 

were reversed or modified on appeal, 

e.g., the proponent of a project approved 

by the agency. See, e.g., Las Vegas 

Valley Action Committee, 156 IBLA 110, 

112 (2001); Bear River Land & Grazing 

v. BLM, 132 IBLA 110, 113–14 (1995). 

When the Board has denied a petition 

to intervene, it has often allowed the 

person to participate as an amicus 

curiae. See, e.g., Southern Utah 

Wilderness Alliance, 161 IBLA 15, 18 n. 

4 (2004); Sanguine Limited, 157 IBLA 

277, 281 n. 4 (2001). 


pwalker on PROD1PC71 with PROPOSALS
Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 10457 

We propose that the Board may grant 

a motion to intervene that is timely filed 

by a person who would have a right of 

appeal under Section 4.410 or would be 

adversely affected if the decision under 

review were reversed, vacated, set aside, 

or modified by the Board on appeal. 

Whether a motion to intervene is timely 

would depend on the potential 

intervenor’s relationship to the case. 

Specifically, if the person would be 

adversely affected if the decision under 

review were reversed, vacated, set aside, 

or modified by the Board on appeal, a 

motion to intervene must be filed within 

30 days after the person knew or should 

have known that the decision under 

review had been appealed. If, however, 

the person wishing to intervene would 

have a right of appeal under Section 

4.410, the motion must be filed within 

30 days after the person was served with 

the decision or, if not served, knew or 

should have known of the decision. See 

Independent Petroleum Association of 

Mountain States, 136 IBLA 279, 281 

(1996) (Board will deny motion to 

intervene where granting it would 

circumvent the requirement in Section 

4.411(a) that an appeal be filed within 

30 days after service of a decision). 

The burden of showing a motion to 

intervene is timely filed is on the person 

filing the motion. The motion must state 

the basis for the proposed intervention. 

The Board could deny the motion if 

granting it would disadvantage the 

rights of the existing parties or unduly 

delay adjudication of the appeal, e.g., if 

the motion is filed after all briefs have 

been submitted and the appeal is ripe 

for adjudication. Alternatively, the 

Board could grant the motion but limit 

the extent of the person’s participation 

in the appeal. 

Under the proposed regulation, any 

person could file a motion to file a brief 

as an amicus curiae. The motion must 

state what interest the person has in the 

appeal and how its brief would be 

relevant to the issues involved. The 

Board could grant or deny the motion in 

its discretion. The Board may also allow 

a person whose motion to intervene is 

denied to file a brief as an amicus 

curiae. 

Section 4.407 Motions 

There is currently no regulation that 

deals with motions filed with the Board, 

e.g., that states when the parties may file 

responses or provides when the Board is 

to act. In order to standardize practice 

and facilitate prompt rulings, we are 

proposing a regulation requiring a party 

that files a motion with the Board to 

support it with reasons. The regulation 

would allow other parties to respond 

within 15 days and states that the Board 

would rule ‘‘as expeditiously as 

possible.’’

The 15-day response time in Section 

4.407(b) would apply to any motion 

filed in a proceeding under this subpart, 

unless another regulation or the Board 

by order sets a different response 

deadline. For example, Section 4.407(b) 

would normally apply to a motion 

under Sections 4.403, 4.404, or 4.406, 

discussed above, or to a motion to 

dismiss, to refer for hearing (Section 

4.415), to suspend consideration or 

expedite consideration, to file a further 

pleading or exceed page limits (see 

amended Sections 4.412 and 4.414, 

discussed below), to request a remand, 

etc. Section 4.407(b) would not apply to 

a motion requesting an extension of 

time, since Section 4.405(d) sets a 

shorter response time for such motions. 

If a party needs more than 15 days to 

file a response, it may request an 

extension of time under Section 4.405. 

Section 4.411 Appeal; How Taken, 

Mandatory Time Limit 

IBLA does not have jurisdiction over 

an appeal unless a notice of appeal is 

timely filed with the office of the officer 

who made the decision. Under Section 

4.22(a), a document is filed when it is 

received, not when it is sent. Recently, 

cases have arisen in which an appellant 

has transmitted a notice of appeal via 

facsimile. Although the appellant 

attempted to transmit the notice so that 

it would be filed within 30 days, the 

office either did not receive it or did not 

receive it on time. See, e.g., National 

Wildlife Federation, 162 IBLA 263, 264–

66 (2004) (affirming dismissal of a 

request for State Director review 

because, although the appellant 

submitted the log of transmissions from 

its facsimile machine, there was no 

evidence that the request was received 

by the State Director by the time it was 

due). See also Underwood Livestock, 

Inc., 165 IBLA 128, 130–31 (2005). In 

order to avoid such issues, we propose 

to amend existing Section 4.411(a) to 

clarify that transmitting a notice of 

appeal by facsimile would not 

constitute filing. The Board generally 

considers any document it receives by 

facsimile only a courtesy or advance 

copy; it does not consider the document 

filed until the original is received by the 

Board. (As noted above with respect to 

Section 4.405(b), however, we are 

proposing to make an exception for 

motions for extension of time and 

objections to such motions.) 

We propose to amend Section 

4.411(b) to reflect IBLA decisions that 

require authorization for a person to 

represent more than one party, e.g., The 

Friends and Residents of Log Creek, 150 

IBLA 44, 48 (1999) (‘‘Proper application 

of the Department’s rules of practice 

requires an affirmative showing that a 

representative of a named appellant is 

qualified and authorized to represent 

any other purported appellant or 

appellants, if single representation for 

multiple parties is intended.’’); The 

Wilderness Society, 109 IBLA 175, 176 

(1989) (‘‘[A] party that wishes to join in 

another’s appeal is well advised to file 

its own notice of appeal and statement 

of reasons, sign the appeal documents 

along with the other party, or authorize 

the other party’s attorney, in advance, to 

represent it as well.’’) See also Klamath 

Siskiyou Wildlife Center, 155 IBLA 347, 

350–51 (2001). If an attorney or other 

person eligible under Section 1.3(b) to 

practice before the Department wishes 

to represent more than one appellant, 

the notice of appeal must state that he 

or she is authorized to do so. 

Section 4.412 Statement of Reasons, 

Statement of Standing 

Section 4.412(a) requires an appellant 

to file a statement of reasons for appeal 

with the Board within 30 days after the 

notice of appeal is filed if the notice of 

appeal did not include a statement of 

reasons. The next sentence states: ‘‘In 

any case, the Board will permit the 

appellant to file additional statements of 

reasons and written arguments or briefs 

within the 30-day period after the notice 

of appeal was filed.’’ This sentence, 

together with existing Section 4.414 

(which requires an answer be filed 

within 30 days after service of a 

statement of reasons and then again if 

additional reasons are filed by the 

appellant) means a party that wishes to 

participate in the appeal potentially 

must file two answers. 

We propose to allow an appellant to 

file a statement of reasons within 30 

days after filing the notice of appeal (as 

it may under the existing regulation), 

but to revise Section 4.414 to state that 

any party that is served with a notice of 

appeal and that wishes to participate 

will have 60 days after service of the 

statement of reasons to file a single 

answer. We also propose that an 

appellant’s statement of reasons may not 

exceed 30 pages (excluding exhibits, 

declarations, or other attachments) 

unless the appellant files a motion 

under Section 4.407 to obtain leave of 

the Board by showing good cause. We 

propose that an appellant must also 

show good cause for leave to file any 

additional pleading, e.g., a reply to an 

answer. We propose the same page limit 

on answers. 

In IBLA’s experience, because the 

agency’s decision should contain a 

supporting rationale (see Larry Brown & 


pwalker on PROD1PC71 with PROPOSALS
10458 Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 

Associates, 133 IBLA 202, 205 (1995)), 

it is sufficient for the Board’s purposes 

to receive a statement of reasons for 

appeal and an answer. More than this 

becomes costly and time-consuming to 

the parties and delays ripeness of the 

appeal for adjudication by the Board 

without providing additional useful 

argument. 

These proposals provide adequate 

opportunity for all parties to state their 

arguments and authorize the Board to 

allow longer or additional pleadings if 

a need for them is shown. 

We expect these pleadings will 

generally conform to the form 

requirements of Federal Rule of 

Appellate Procedure 32, e.g., be doublespaced, have adequate margins, and be 

in a standard type style. 

Section 4.413 Service of Notice of 

Appeal 

We propose to revise Section 4.413(a) 

to require service of a notice of appeal 

in accordance with Section 

4.401(c)(2)(i), i.e., by personal delivery 

or by registered mail or certified mail, 

return receipt requested. Under Section 

4.401(c), all other documents filed with 

the Board must also be served. 

Several of the addresses of the Office 

of the Solicitor on which a copy of a 

notice of appeal and statement of 

reasons must be served under existing 

Section 4.413(c)(2) are out of date. The 

regulation would be revised to provide 

the current addresses. 

Section 4.414 Answers 

43 CFR 4.414 currently provides that 

a party served with a notice of appeal 

that wishes to participate in an appeal 

must file an answer to an appellant’s 

statement of reasons within 30 days 

after service of the statement. In its 

second sentence, the regulation 

provides, ‘‘If additional reasons, written 

arguments, or briefs are filed by the 

appellant, the adverse party shall have 

30 days after service thereof on him 

within which to answer them.’’

As discussed above under Section 

4.412, we believe it is normally 

sufficient for each party to file only one 

brief unless it can show good cause for 

a further brief. We therefore propose to 

revise this regulation to require filing of 

a single answer (or motion, if 

appropriate, e.g., a motion to dismiss) 

within 60 days of service of the 

statement of reasons for appeal. The 

time for answer would be increased 

from 30 to 60 days to make it the same 

as the total length of time that an 

appellant has to file a statement of 

reasons from the date of service of the 

decision being appealed (30 days under 

Section 4.411(a)(3) plus 30 days under 

Section 4.412(a)). 

If settlement negotiations promise to 

extend beyond 60 days, a person 

wishing to participate could file a 

motion requesting an extension of time 

to file an answer or motion under 

Section 4.405. An answer must respond 

to the statement of reasons for appeal 

and, if a person is representing more 

than one party, must state that the 

person is authorized to do so. Like an 

appellant, a party may not file a further 

pleading unless the Board grants a 

motion showing good cause to do so. 

Nor may an answer or motion exceed 30 

pages (excluding exhibits, declarations, 

or other attachments) unless the Board 

grants a motion showing good cause. 

Section 4.415 Motion for a Hearing on 

an Appeal Involving Questions of Fact 

Existing 43 CFR 4.415 authorizes the 

Board, in its discretion, to refer a case 

to an administrative law judge (ALJ) for 

a hearing on an issue of fact, either on 

its own initiative or in response to a 

request from an appellant or an adverse 

party. The regulation provides that such 

a request must be filed within 30 days 

after an answer is due, and that, if the 

Board orders a hearing, it will specify 

the issues upon which the hearing is to 

be held. 

IBLA has found that the requirement 

in Section 4.415 that a request for a 

hearing be filed within 30 days after an 

answer is due is neither necessary nor 

advisable. Sometimes the need for a 

hearing does not become apparent until 

later. Because it is not necessary that a 

hearing be requested within 30 days 

after an answer is due, we propose to 

delete this requirement. 

When a party has requested a hearing 

without specifying the issues of fact 

involved or the reasons why a hearing 

is necessary, IBLA has found it helpful 

to issue an order requesting the party to 

list what specific material issues of fact 

require a hearing, what evidence 

concerning these issues must be 

presented by oral testimony, what 

witnesses need to be examined, and 

what evidence could be presented in 

documentary form, e.g., by affidavit, 

rather than by oral testimony. See, e.g., 

W.J. and Betty Lo Wells, 122 IBLA 250, 

252 (1992). 

We propose to amend Section 4.415 to 

require a party that requests a hearing to 

specify in a motion what the material 

issues of fact are, what evidence must be 

presented, what witnesses need to be 

examined, and what documentary 

evidence needs to be explained, if any. 

Although IBLA has established 

standards for exercising its discretion in 

favor of granting such a request, they are 

not set forth in 43 CFR 4.415. The IBLA 

has regularly stated that a hearing is not 

necessary in the absence of a material 

issue of fact that, if proven, would alter 

the disposition of the appeal. Kim C. 

Evans, 82 IBLA 319, 323 (1984). 

A hearing is necessary only where there is 

a material issue of fact requiring resolution 

through the introduction of testimony and 

other evidence. In the absence of such an 

issue, no hearing is required. See United 

States v. Consolidated Mines & Smelting Co., 

455 F.2d 432, 453 (9th Cir. 1971). 

Ben Cohen (On Judicial Remand), 103 

IBLA 316, 321 (1988). The Board has 

also said it ‘‘ ‘should grant a hearing 

when there are significant factual or 

legal issues remaining to be decided and 

the record without a hearing would be 

insufficient for resolving them.’ ’’ Woods 

Petroleum Co., 86 IBLA 46, 55 (1985), 

quoting Stickelman v. United States, 

563 F.2d 413, 417 (9th Cir. 1977). 

We propose to include the standards 

for referral for a hearing in the 

regulation: that there is a material issue 

of fact which, if proven, would alter the 

outcome of the appeal or that there are 

significant factual or legal issues 

remaining to be decided and the record 

without a hearing would not be 

sufficient for resolving them. ‘‘Material’’

means ‘‘tending to prove or disprove a 

matter in issue.’’ B. Garner, A Dictionary 

of Modern Legal Usage, (Oxford 

University Press, 1987), at 354. 

The existing regulation provides that 

the hearing will be held in accordance 

with Sections 4.430 to 4.439 and the 

general rules in subpart B of 43 CFR Part 

4. Section 4.439 in turn states that, upon 

completion of the hearing, the ALJ will 

send the Board the record and proposed 

findings of fact on the issues presented 

at the hearing. Thus, Section 4.415 does 

not in terms authorize IBLA to refer a 

case to an ALJ either for a recommended 

decision or for a decision that would be 

final unless appealed to IBLA, although 

IBLA has long done both. See, e.g., 

Samedan Oil Corp., 163 IBLA 63, 71 

(2004); Elizabeth B. Archer, 102 IBLA 

308, 310 (1988); Hondoo River and 

Trails, 91 IBLA 296, 304 (1986). In 

recent years, IBLA’s prevailing practice 

has been to refer the case to an ALJ for 

a hearing and issuance of a decision that 

will be final in the absence of an appeal. 

Another of OHA’s appeals boards, the 

Interior Board of Indian Appeals (IBIA), 

also has regulations providing for the 

referral of a case to an ALJ for an 

evidentiary hearing. Those regulations 

specify that, following the hearing, the 

ALJ is to issue recommended findings of 

fact and conclusions of law. 43 CFR 

4.337, 4.338 (2004). IBIA does not refer 

cases to an ALJ for a hearing and 

issuance of a final decision. 


pwalker on PROD1PC71 with PROPOSALS
Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 10459 

Recently, the OHA Director issued a 

decision which concluded that IBLA’s 

regulations at Sections 4.415 and 4.430 

through 4.439 provide authority only 

for the Board to refer a case for a hearing on 

one or more issues of fact that the Board is 

required to specify, and for the ALJ to 

conduct a hearing and make proposed 

findings of fact on the issues so referred. The 

Board is not authorized to refer a case to an 

ALJ for a recommended decision on the 

merits or for a decision that will be final in 

the absence of an appeal. If considerations of 

judicial economy favor expanding the 

authority of the Board and the ALJs to 

dispose of cases that involve disputed issues 

of fact, the solution is to amend the 

regulations. 

Samedan Oil Corp., 32 OHA 61, 70 

(2005) 

Accordingly, we propose to make 

explicit the Board’s authority to refer a 

matter for a hearing followed by (1) 

proposed findings of fact on specified 

issues, (2) a recommended decision, or 

(3) a decision that will be final in the 

absence of an appeal. As discussed 

below, 43 CFR Sections 4.433 and 4.439 

would be revised to give ALJs the 

corresponding authority. We welcome 

comments on the appropriateness and 

relative advantages of the three options, 

and whether the final regulations 

should include all three. 

Finally, the proposed regulation 

would provide that the Board may 

suspend the effectiveness of the 

decision under review pending a final 

decision on the appeal if, considering 

factors including those set forth in 

Section 4.21(b), it finds good cause to do 

so. 

Section 4.421 Definitions 

Because ‘‘administrative law judge,’’

‘‘Board,’’ ‘‘bureau,’’ and ‘‘Secretary’’ are 

defined in Section 4.400, it is not 

necessary to repeat them in this 

regulation, and we propose to remove 

those definitions. We would alphabetize 

the remaining definitions and revise 

them to reflect the revisions to the 

definitions in Section 4.400. 

Section 4.422 Documents 

As discussed above under Section 

4.401, we propose to revise existing 

Section 4.422(c) to allow service by 

first-class mail and by a delivery service 

and to provide that service will be 

complete when a document is delivered 

or returned undelivered. 

Section 4.433 Authority of the 

Administrative Law Judge 

As discussed above under Section 

4.415, we propose to revise Section 

4.433 to provide authority to an 

administrative law judge to issue a 

recommended decision or a decision 

that would be final for the Department 

absent an appeal to the Board, in 

addition to proposed findings of fact on 

the issues presented at the hearing. This 

authority is set forth in proposed 

Section 4.433(a)(4). 

Section 4.434 Conduct of Hearing 

We propose to revise this regulation 

to substitute ‘‘administrative law judge’’

for ‘‘examiner’’ and to substitute 

‘‘bureau,’’ as defined in Section 4.400, 

for ‘‘Bureau of Land Management.’’

Section 4.438 Summary of Evidence 

We propose to remove this regulation 

because the procedure described has not 

been used for many years and is 

unnecessary, since all hearings are 

transcribed. We would redesignate 

existing Section 4.439 as Section 4.438. 

Section 4.438 Action by 

Administrative Law Judge 

As discussed above under Section 

4.415, we propose to revise this 

regulation to authorize an 

administrative law judge to issue a 

recommended decision or decision that 

would be final for the Department 

absent an appeal to the Board, in 

addition to proposed findings of fact on 

the issues presented at the hearing. An 

administrative law judge’s decision that 

would be final for the Department 

absent appeal would not, however, be 

precedential. 

[D]ecisions of Administrative Law Judges, 

while certainly worthy of respectful 

consideration, are not Departmental 

precedents and are not binding on this Board 

nor are they binding upon other 

Administrative Law Judges, unless they are 

adopted by the Board in adjudication of an 

appeal. 

McLean v. BLM, 133 IBLA 225, 235 n. 

16 (1995); see also United States v. 

Mansfield, 35 IBLA 95, 100 (1978). 

We propose to delete the second 

sentence of the regulation, and to 

require the administrative law judge to 

serve on the parties the proposed 

findings, recommended decision, or 

decision that would be final absent 

appeal. We also propose to add a 

provision that the parties may file 

exceptions to proposed findings or a 

recommended decision with the Board. 

Section 4.478 Appeals to the Board of 

Land Appeals; Judicial Review 

OHA recently published amendments 

to its regulations that authorized an 

administrative law judge to issue an 

order granting or denying a petition for 

stay of a BLM grazing decision. 43 CFR 

4.474(c), 68 FR 68765, 68771 (Dec. 10, 

2003). The amendments also provided 

for an appeal to IBLA from such an 

order in Section 4.478(a), but did not 

specify a time or place for filing the 

appeal. See Western Watersheds 

Projects v. Bureau of Land Management, 

166 IBLA 30, 37 (2005). We propose to 

amend Section 4.478(a) to provide that 

an appeal may be filed with the 

administrative law judge in accordance 

with Section 4.411(a). 

B. Subpart L—Special Rules Applicable 

to Surface Coal Mining Hearings and 

Appeals 

Section 4.1117 Reconsideration 

In subpart L, 43 CFR 4.1276(a) 

provides that a party may ‘‘move for 

reconsideration under Section 4.21(d); 

however, the motion shall be filed with 

the Board within 30 days after the date 

of the decision’’ (rather than ‘‘filed 

promptly,’’ as provided in Section 

4.21(d)). Because Section 4.1276 is in 

the part of subpart L headed ‘‘Appeals 

to the Board from Decisions or Orders 

of Administrative Law Judges,’’ the 

question has arisen whether Section 

4.1276(a) governs reconsideration of 

other Board decisions under subpart L, 

e.g., in appeals of decisions of the 

Director of the Office of Surface Mining 

Reclamation and Enforcement under 

Section 4.1280 et seq. 

In order to provide a regulation 

governing reconsideration of any Board 

decision under subpart L and to make 

that regulation consistent with the 

revisions to Section 4.403, discussed 

above, we propose to add a regulation 

to the general provisions of subpart L 

stating that a petition for 

reconsideration may be filed within 60 

days after the date of the decision and 

that the provisions of Section 4.403 will 

apply. 

Section 4.1270 Petition for 

Discretionary Review of a Proposed Civil 

Penalty 

When Section 4.1270(f) was amended 

recently, 67 FR 61506, 61511 (Oct. 1, 

2002), the first sentence mistakenly 

referred to ‘‘the rules in Sections 4.1273 

through 4.1277.’’ There is no Section 

4.1277, so we are correcting the 

amendment of Section 4.1270(f) to refer 

to 4.1273 through 4.1275. 

Section 4.1276 Reconsideration 

This regulation will be removed 

because of the addition of Section 

4.1117, discussed above. 

Section 4.1286 Motion for a Hearing 

Like Section 4.415, Section 4.1286 

provides that a party may request a 

hearing before an administrative law 

judge ‘‘to present evidence on an issue 

of fact,’’ and that the Board, either in 


pwalker on PROD1PC71 with PROPOSALS
10460 Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 

response to a request or on its own 

motion, may refer a case to an 

administrative law judge ‘‘for a hearing 

on an issue of fact.’’ Also like Section 

4.415, Section 4.1286 provides that the 

Board ‘‘will specify the issues upon 

which the hearing will be held.’’ In 

Section 4.415, this language is followed 

by the statement that ‘‘the hearing will 

be held in accordance with Sections 

4.430 to 4.439 and the general rules in 

subpart B of this part.’’

As discussed above in connection 

with the proposed amendment to 

Section 4.415, Section 4.439 provides 

that after a hearing the administrative 

law judge will send the Board the record 

and proposed findings of fact; therefore, 

Section 4.415 has been construed as 

authorizing the Board to refer a matter 

for a hearing only for proposed findings 

of fact, not for a recommended decision 

or a decision that will be final in the 

absence of an appeal. Samedan Oil 

Corp., 32 OHA 61, 70 (2005). 

Unlike Section 4.415, there is no 

statement in Section 4.1286 referring to 

the authority under which a hearing 

will be conducted. To ensure there is no 

ambiguity in the Board’s authority 

under Section 4.1286 in light of the 

decision in Samedan, we are proposing 

an amendment similar to that proposed 

for Section 4.415. 

Paragraph (e) would provide that 

hearings under Section 4.1286 will be 

conducted under the regulations of 

subpart L that provide specific 

standards, deadlines, and procedures for 

other proceedings under the Surface 

Mining Control and Reclamation Act, 

including regulations governing 

discovery and the conduct of 

evidentiary hearings. In the absence of 

such a provision, those regulations 

would not apply, since hearings under 

Section 4.1286 are not required to be 

conducted under 5 U.S.C. 554 (2000). 

IV. Review Under Procedural Statutes 

and Executive Orders 

A. Regulatory Planning and Review 

(E.O. 12688) 

In accordance with the criteria in 

Executive Order 12866, the Office of 

Management and Budget has 

determined that this document is not a 

significant rule. The Office of 

Management and Budget has not 

reviewed this rule under Executive 

Order 12866. 

1. This rule would not have an annual 

economic effect of $100 million or more 

or adversely affect in a material way an 

economic sector, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities. A 

cost-benefit and economic analysis is 

not required. These proposed 

regulations would have virtually no 

effect on the economy because they 

would only revise existing procedural 

regulations governing appeals and add 

new regulations governing 

consolidation of appeals, requests for 

extensions of time, motions, and 

intervention. 

2. This rule would not create 

inconsistencies with or interfere with 

other agencies’ actions because only 

OHA provides regulations that govern 

procedures for appeals of decisions 

concerning the use and disposition of 

public lands and their resources and 

concerning surface coal mining. 

3. This rule would not materially alter 

the budgetary effects of entitlements, 

grants, user fees, loan programs, or the 

rights and obligations of their recipients. 

These proposed regulations have to do 

only with procedures governing 

appeals, not with entitlements, grants, 

user fees, loan programs, or the rights 

and obligations of their recipients. 

4. This rule does not raise novel legal 

or policy issues. The proposed 

regulations would merely revise existing 

procedures and add regulations 

governing consolidation of appeals, 

requests for extensions of time, motions, 

and intervention, which are all familiar 

administrative procedures. 

B. Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule would not have a 

significant economic effect on a 

substantial number of small entities as 

defined under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). The proposed 

regulations only revise or add 

procedural regulations governing 

appeals. A Small Entity Compliance 

Guide is not required. 

C. Small Business Regulatory 

Enforcement Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act: 

1. It would not have an annual effect 

on the economy of $100 million or 

more. The proposed rule only revises 

procedural regulations governing 

appeals and adds regulations governing 

consolidation of appeals, requests for 

extensions of time, motions, and 

intervention. The rule should have no 

effect on the economy. 

2. It would not cause a major increase 

in costs or prices for consumers, 

individual industries, Federal, state, or 

local government agencies, or 

geographic regions. Revising OHA’s 

procedural regulations governing 

appeals and adding regulations 

governing consolidation of appeals, 

requests for extensions of time, motions, 

and intervention would not affect costs 

or prices for citizens, individual 

industries, or government agencies. 

3. It would not have significant 

adverse effects on competition, 

employment, investment, productivity, 

innovation, or the ability of U.S.-based 

enterprises to compete with foreignbased 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 foreignbased enterprises. 

D. Unfunded Mandates Reform Act 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we find that: 

1. This rule would not have a 

significant or unique effect on state, 

local, or tribal governments or the 

private sector. Revising OHA’s 

procedural regulations governing 

appeals and adding regulations 

governing consolidation of appeals, 

requests for extensions of time, motions, 

and intervention would neither 

uniquely nor significantly affect these 

governments. 

2. This rule would not produce an 

unfunded Federal mandate of $100 

million or more on state, local, or tribal 

governments in the aggregate or the 

private sector in any year, i.e., it is not 

a ‘‘significant regulatory action’’ under 

the Unfunded Mandates Reform Act. A 

statement containing the information 

required by the Unfunded Mandates 

Reform Act, 2 U.S.C. 1532, is not 

required. 

E. Takings (E.O. 12630) 

In accordance with Executive Order 

12630, we find that the rule would not 

have significant takings implications. A 

takings implication assessment is not 

required. Revising OHA’s procedural 

regulations governing appeals and 

adding regulations governing 

consolidation of appeals, requests for 

extensions of time, motions, and 

intervention should have no effect on 

property rights. 

F. Federalism (E.O. 13132) 

In accordance with Executive Order 

13132, we find that the rule does not 

have sufficient federalism implications 

to warrant the preparation of a 

Federalism Assessment. There is no 

foreseeable effect on states from revising 


pwalker on PROD1PC71 with PROPOSALS
Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 10461 

OHA’s procedural regulations governing 

appeals and adding regulations 

governing consolidation of appeals, 

requests for extensions of time, motions, 

and intervention. A Federalism 

Assessment is not required. 

G. Civil Justice Reform (E.O. 12988) 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that this rule would not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. Because these 

regulations would improve OHA’s 

procedural regulations governing 

appeals and add regulations governing 

consolidation of appeals, requests for 

extensions of time, motions, and 

intervention, they would not burden 

either administrative or judicial 

tribunals. 

H. Paperwork Reduction Act 

This proposed rule would not require 

an information collection from 10 or 

more parties, and a submission under 

the Paperwork Reduction Act is not 

required. An OMB form 83–I has not 

been prepared and has not been 

approved by the Office of Policy 

Analysis. The proposed rule is an 

administrative and procedural rule that 

revises OHA’s procedural regulations 

governing appeals and adds regulations 

governing consolidation of appeals, 

requests for extensions of time, motions, 

and intervention. 

I. National Environmental Policy Act 

The Department has analyzed this 

rule in accordance with the National 

Environmental Policy Act of 1969 

(NEPA), 42 U.S.C. 4321 et seq., Council 

on Environmental Quality (CEQ) 

regulations, 40 CFR part 1500, and the 

Department of the Interior Departmental 

Manual (DM). CEQ regulations, at 40 

CFR 1508.4, define a ‘‘categorical 

exclusion’’ as a category of actions that 

do not individually or cumulatively 

have a significant effect on the human 

environment. The regulations further 

direct each department to adopt NEPA 

procedures, including categorical 

exclusions. 40 CFR 1507.3. 

The Department has determined that 

this proposed rule is categorically 

excluded from further environmental 

analysis under NEPA in accordance 

with 516 DM 2, Appendix 1, which 

categorically excludes ‘‘[p]olicies, 

directives, regulations and guidelines of 

an administrative, financial, legal, 

technical or procedural nature . . . .’’ In 

addition, the Department has 

determined that none of the 

extraordinary circumstances listed in 

516 DM 2, Appendix 2, applies to the 

proposed rule. 

The proposed rule is an 

administrative and procedural rule that 

revises OHA’s procedural regulations 

governing appeals and adds regulations 

governing consolidation of appeals, 

requests for extensions of time, motions, 

and intervention. Therefore, neither an 

environmental assessment nor an 

environmental impact statement under 

NEPA is required. 

J. Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), E.O. 

13175, and 512 DM 2, the Department 

of the Interior has evaluated potential 

effects of these regulations on Federally 

recognized Indian tribes and has 

determined that there are no potential 

effects. These regulations would not 

affect Indian trust resources; they would 

only revise OHA’s procedural 

regulations governing appeals and add 

regulations governing consolidation of 

appeals, requests for extensions of time, 

motions, and intervention. 

K. Effects on the Nation’s Energy Supply 

(E.O. 13211) 

In accordance with Executive Order 

13211, we find that this regulation does 

not have a significant effect on the 

nation’s energy supply, distribution, or 

use. Revising OHA’s procedural 

regulations governing appeals and 

adding regulations governing 

consolidation of appeals, requests for 

extensions of time, motions, and 

intervention would not affect energy 

supply or consumption. 

L. Clarity of This Regulation 

Executive Order 12866 requires each 

agency to write regulations that are easy 

to understand. We invite your 

comments on how to make this rule 

easier to understand, including answers 

to the following: (1) Are the 

requirements in the rule clearly stated? 

(2) Does the rule contain technical 

language or jargon that interferes with 

its clarity? (3) Does the format of the 

rule (grouping and order of sections, use 

of headings, paragraphing, etc.) aid or 

reduce its clarity? (4) Would the rule be 

easier to understand if it were divided 

into more (and shorter) sections? (A 

‘‘section’’ appears in bold type and is 

preceded by the symbol ‘‘§ ’’ and a 

numbered heading; for example, § 4.403 

Finality of decision; reconsideration.) 

(5) Is the description of the rule in the 

‘‘Supplementary Information’’ section of 

the preamble helpful in understanding 

the proposed rule? (6) What else could 

we do to make the rule easier to 

understand? 

Send a copy of any comments that 

concern how we could make this rule 

easier to understand to: Office of 

Regulatory Affairs, Department of the 

Interior, Room 7229, 1849 C Street, 

NW., Washington, DC 20240. You may 

also e-mail the comments to this 

address: Exsec@ios.doi.gov. 

List of Subjects in 43 CFR Part 4 

Administrative practice and 

procedure; Mines; Public lands; Surface 

mining. 

Dated: February 16, 2007. 

R. Thomas Weimer, 

Assistant Secretary—Policy, Management 

and Budget. 

For the reasons set forth in the 

preamble, the Office of Hearings and 

Appeals proposes to amend 43 CFR part 

4 as set forth below: 

PART 4—DEPARTMENT HEARINGS 

AND APPEALS PROCEDURES 

Subpart E—Special Rules Applicable 

to Public Land Hearings and Appeals 

1. Revise the authority citation for 

part 4, subpart E, to read as follows: 

Authority: Sections 4.470 to 4.480 are also 

issued under authority of 43 U.S.C. 315a. 

2. Revise § 4.400 to read as follows: 

§ 4.400 Definitions. 

As used in this subpart: 

Administrative law judge means an 

administrative law judge in the Office of 

Hearings and Appeals, Office of the 

Secretary, appointed under 5 U.S.C. 

3105. 

BLM means the Bureau of Land 

Management. 

Board means the Interior Board of 

Land Appeals in the Office of Hearings 

and Appeals, Office of the Secretary. 

The address of the Board is 801 N. 

Quincy Street, Suite 300, Arlington, 

Virginia 22203. 

Bureau means BLM or the Minerals 

Management Service, as appropriate. 

Last address of record means the 

address in a person’s most recent filing 

in an appeal or, if there has not been 

any filing, the person’s address as 

provided in the bureau decision under 

appeal. 

Party includes a party’s 

representative(s) where the context so 

requires. 

Office or officer includes 

‘‘administrative law judge’’ or ‘‘Board’’

where the context so requires. 

Secretary means the Secretary of the 

Interior, or an authorized representative. 


pwalker on PROD1PC71 with PROPOSALS
10462 Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 

3. In § 4.401, revise paragraph (c) to 

read as follows: 

§ 4.401 Documents. 

* * * * * 

(c) Service of documents. (1) A party 

that files any document under this 

subpart must serve a copy of it 

concurrently on: 

(i) Each adverse party named in the 

decision, at the last address of record; 

and 

(ii) The appropriate official of the 

Office of the Solicitor under § 4.413(c) 

and (d). 

(2) Service may be made as shown in 

the following table: 

If the document is . . . Service may be made by . . . 

(i) A notice of appeal ................................................................................ (A) Personal delivery; or

(B) Registered or certified mail, return receipt requested. 

(ii) Not a notice of appeal ......................................................................... (A) Personal delivery; 

(B) Registered or certified mail, return receipt requested; 

(C) First-class mail; or 

(D) Delivery service, if the last address of record is not a post office 

box. 

(3) At the conclusion of any document 

that a party must serve under the 

regulations in this part, the party must 

sign a written statement that: 

(i) Certifies that service has been or 

will be made in accordance with the 

applicable rules; and 

(ii) Specifies the date and manner of 

service. 

(4) Service is complete as shown in 

the following table: 

If service is made by . . . Service is complete when the document is . . . 

(i) Personal delivery .................................................................................. Delivered to the party or its agent. 

(ii) Registered or certified mail, return receipt requested ........................ Delivered to the party or returned by the Postal Service unclaimed. 

(iii) First-class mail .................................................................................... Delivered to the party or returned by the Postal Service undelivered. 

(iv) Delivery service .................................................................................. Delivered to the party or returned by the delivery service undelivered. 

(5) In the absence of evidence to the 

contrary, delivery under paragraphs 

(c)(4)(ii) through (iv) of this section is 

deemed to take place 3 business days 

after the document was sent. 

4. Revise § 4.403 to read as follows: 

§ 4.403 Finality of decision; 

reconsideration. 

(a) The Board’s decision is final 

agency action and is effective on the 

date it is issued, unless the decision 

itself provides otherwise. 

(b) The Board may reconsider a 

decision in extraordinary 

circumstances. 

(1) A party that wishes to request 

reconsideration of a Board decision 

must file a motion for reconsideration 

with the Board within 60 days after the 

date of a decision. 

(2) The motion may include a request 

that the Board stay the effectiveness of 

its decision. 

(3) Any other party to the original 

appeal may file a response to a motion 

for reconsideration with the Board 

within 15 days after service of the 

motion, unless the Board orders 

otherwise. 

(4) A motion for reconsideration will 

not stay the effectiveness or affect the 

finality of the Board’s decision unless so 

ordered by the Board for good cause. 

(5) A party does not need to file a 

motion for reconsideration in order to 

exhaust its administrative remedies. 

(c) A motion for reconsideration must: 

(1) Specifically describe the 

extraordinary circumstances that 

warrant reconsideration; and 

(2) Include all arguments and 

supporting documents. 

(d) Extraordinary circumstances that 

may warrant granting reconsideration 

include, but are not limited to: 

(1) Error in the Board’s interpretation 

of material facts; 

(2) Recent judicial development; 

(3) Change in Departmental policy; or 

(4) Evidence that was not before the 

Board at the time the Board’s decision 

was issued and that demonstrates error 

in the decision. 

(e) If the motion cites extraordinary 

circumstances under paragraph (d)(4) of 

this section, it must explain why the 

evidence was not provided to the Board 

during the course of the original appeal. 

(f) The Board will not grant a motion 

for reconsideration that: 

(1) Merely repeats arguments made in 

the original appeal, except in cases of 

demonstrable error; or 

(2) Seeks to alter legally binding 

consequences. 

5. Add §§ 4.404 through 4.407 to 

subpart E to read as follows: 

§ 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. 

§ 4.405 Extensions of time. 

(a) If a document other than a notice 

of appeal is required to be filed or 

served within a definite time, a party 

may seek additional time by filing with 

the Board a motion requesting an 

extension of time. 

(b) The deadline for filing a motion 

requesting an extension is the day 

before the date the document is due. 

The motion may be filed and served by 

facsimile. Section 4.401(a) does not 

apply to a motion requesting an 

extension of time. 

(c) The party must support its motion 

requesting an extension of time by 

showing there is good cause to grant it. 

(d) Any party that objects to a motion 

requesting an extension must file with 

the Board its reasons for objection 

within 2 business days after service of 

the motion. The objection may be filed 

and served by facsimile. 

(e) A Board order granting or denying 

a motion requesting an extension will 

state when the document must be filed. 

If the Board does not act on a motion 

before the document is due, the 

document must be filed no later than 15 

days after the original due date, unless 

the Board orders otherwise. 

§ 4.406 Intervention; amicus curiae. 

(a) A person who wishes to intervene 

in an appeal must file a motion to 

intervene within the time shown in the 

following table: 


pwalker on PROD1PC71 with PROPOSALS
Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 10463 

If the person . . . The person must file the motion within 30 days after the person . . . 

(1) Would have a right to appeal under § 4.410 and was served with 

the decision.

Was served with the decision. 

(2) Would have a right to appeal under § 4.410 and was not served 

with the decision.

Knew or should have known that the bureau had issued the decision. 

(3) Would be adversely affected if the Board reversed, vacated, set 

aside, or modified the decision.

Knew or should have known that the decision had been appealed to 

the Board. 

(b) A timely motion to intervene must 

set forth the basis under paragraph (a) 

of this section for the proposed 

intervention. 

(c) The Board may: 

(1) Deny the motion to intervene if 

granting it would disadvantage the 

rights of the existing parties or unduly 

delay adjudication of the appeal; or 

(2) Grant the motion to intervene but 

limit the person’s participation in the 

appeal. 

(d) A person may file a motion at any 

time to file a brief as an amicus curiae. 

(1) The motion must state the person’s 

interest in the appeal and how its brief 

will be relevant to the issues involved. 

(2) The Board may grant or deny the 

motion in its discretion. The Board may 

also allow a person to file a brief as 

amicus curiae if it denies the person’s 

motion to intervene. 

§ 4.407 Motions. 

(a) Any motion filed with the Board 

must provide a concise statement of the 

reasons supporting the motion. 

(b) When a person or party files a 

motion, any other party has 15 days 

after service of the motion to file a 

written response, unless a provision of 

this subpart, e.g., § 4.405(d), or the 

Board by order provides otherwise. 

(c) The Board will rule on any motion 

as expeditiously as possible. 

6. In § 4.411, revise paragraphs (a) and 

(b) to read as follows: 

§ 4.411 Appeal; how taken, mandatory 

time limit. 

(a) A person who wishes to appeal to 

the Board must file a notice that the 

person wishes to appeal. 

(1) The notice of appeal must be filed 

in the office of the officer who made the 

decision (not the Board). 

(2) A person served with the decision 

being appealed must transmit the notice 

of appeal in time for it to be filed in the 

appropriate office within 30 days after 

the date of service. 

(3) If a decision is published in the 

Federal Register, a person not served 

with the decision must transmit the 

notice of appeal in time for it to be filed 

in the appropriate office within 30 days 

after the date of publication. 

(4) Transmitting a notice of appeal by 

facsimile does not constitute filing. 

(b) The notice of appeal must give the 

serial number or other identification of 

the case. A person representing more 

than one appellant must state that he or 

she is authorized to do so. The notice 

of appeal may include a statement of 

reasons for the appeal, and a statement 

of standing if required by § 4.412(b). 

* * * * * 

7. In § 4.412, revise paragraph (a) to 

read as follows: 

§ 4.412 Statement of reasons, statement of 

standing. 

(a) An appellant must file a statement 

of reasons for appeal with the Board 

within 30 days after the notice of appeal 

was filed. Unless the Board orders 

otherwise, upon motion for good cause 

shown: 

(1) The text of a statement of reasons 

may not exceed 30 pages (doublespaced, using standard margins and font 

size); and 

(2) An appellant may not file any 

further pleading. 

* * * * * 

8. Revise §§ 4.413 through 4.415 to 

read as follows: 

§ 4.413 Service of notice of appeal. 

(a) The appellant must serve a copy of 

the notice of appeal on each adverse 

party named in the decision from which 

the appeal is taken and on the Office of 

the Solicitor as identified in paragraphs 

(c) and (d) of this section. Service must 

be accomplished and certified as 

prescribed in § 4.401(c)(2)(i). 

(b) Failure to serve a notice of appeal 

will subject the appeal to summary 

dismissal as provided in § 4.402. 

(c) The appellant must serve a copy of 

the notice of appeal as shown in the 

following table. 

If the appeal is taken from a decision of. . . Then the appellant must serve the notice on. . . 

(1) The Director, Minerals Management Service ..................................... Associate Solicitor, Division of Mineral Resources, U.S. Department of 

the Interior, Washington, DC 20240. 

(2) The Director, BLM ............................................................................... (i) If the decision concerns use and disposition of public lands, including land selections under the Alaska Native Claims Settlement Act, 

as amended: Associate Solicitor, Division of Land and Water Resources, U.S. Department of the Interior, Washington, DC 20240; or 

(ii) If the decision concerns use and disposition of mineral resources: 

Associate Solicitor, Division of Mineral Resources, U.S. Department 

of the Interior, Washington, DC 20240. 

(3) A BLM State Office (including all District, Field, and Area Offices 

within that State Office’s jurisdiction).

the appropriate office identified in paragraph (d) of this section. 

(4) An Administrative Law Judge ............................................................. the persons identified in paragraph (e) of this section. 

(d) This paragraph applies to any 

appeal taken from a decision of a BLM 

State Office, including all District, Field, 

and Area Offices within that State 

Office’s jurisdiction. The appellant must 

serve documents in accordance with the 

following table, unless the decision 

identifies a different official: 

BLM state office Mailing address 

(1) Alaska .................................... Regional Solicitor, Alaska Region, U.S. Department of the Interior, 4230 University Drive, Suite 300, Anchorage, AK 99508–4626. 


pwalker on PROD1PC71 with PROPOSALS
10464 Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 

BLM state office Mailing address 

(2) Arizona ................................... Field Solicitor, U.S. Department of the Interior, U.S. Courthouse, Suite 404, 401 W. Washington St. SP 44, 

Phoenix, AZ 85003. 

(3) California ................................ Regional Solicitor, Pacific Southwest Region, U.S. Department of the Interior, 2800 Cottage Way, Room E–

1712, Sacramento, CA 95825–1890. 

(4) Colorado ................................ Regional Solicitor, Rocky Mountain Region, U.S. Department of the Interior, 755 Parfet Street, Suite 151, 

Lakewood, CO 80215. 

(5) Eastern States ....................... (i) If the decision concerns the use and disposition of public lands: Associate Solicitor, Division of Land and 

Water Resources, Office of the Solicitor, U.S. Department of the Interior, Washington, DC 20240. 

(ii) If the decision concerns the use and disposition of mineral resources: Associate Solicitor, Division of Mineral Resources, Office of the Solicitor, U.S. Department of the Interior, Washington, DC 20240. 

(6) Idaho ...................................... Field Solicitor, U.S. Department of the Interior, University Plaza, 960 Broadway Avenue, Suite 400, Boise, ID 

83706. 

(7) Montana ................................. (i) Deliveries by U.S. Mail: Field Solicitor, U.S. Department of the Interior, P.O. Box 31394, Billings, MT 

59107–1394. 

(ii) All other deliveries: Field Solicitor, U.S. Department of the Interior, 316 North 26th Street, Room 3005, Billings, MT 59101. 

(8) Nevada ................................... Regional Solicitor, Pacific Southwest Region, U.S. Department of the Interior, 2800 Cottage Way, Room E–

1712, Sacramento, CA 95825–1890. 

(9) New Mexico ........................... (i) Deliveries by U.S. Mail: Field Solicitor, U.S. Department of the Interior, P. O. Box 1042, Santa Fe, NM 

87504–1042. 

(ii) All other deliveries: Field Solicitor, U.S. Department of the Interior, Paisano Building, 2968 Rodeo Plaza 

Drive West, Room 2070, Santa Fe, NM 87505. 

(10) Oregon ................................. Regional Solicitor, Pacific Northwest Region, U.S. Department of the Interior, Lloyd 500 Building, Suite 607, 

500 NE Multnomah Street, Portland, OR 97232. 

(11) Utah ..................................... Regional Solicitor, Intermountain Region, U.S. Department of the Interior, 6201 Federal Building, 125 South 

State Street, Salt Lake City, UT 84138–1180. 

(12) Wyoming .............................. Regional Solicitor, Rocky Mountain Region, U.S. Department of the Interior, 755 Parfet Street, Suite 151, 

Lakewood, CO 80215. 

(e) This paragraph applies to any 

appeal taken from a decision of an 

administrative law judge. 

(1) The appellant must serve either: 

(i) The attorney from the Office of the 

Solicitor who represented the bureau at 

the hearing; or 

(ii) If there was no hearing, the 

attorney who was served with a copy of 

the decision by the administrative law 

judge. 

(2) If the decision involved a mining 

claim on national forest land, the 

appellant must serve either: 

(i) The attorney from the Office of 

General Counsel, U.S. Department of 

Agriculture, who represented the U.S. 

Forest Service at the hearing; or 

(ii) If there was no hearing, the 

attorney who was served with a copy of 

the decision by the administrative law 

judge. 

(f) Parties must serve the Office of the 

Solicitor as required by this section 

until a particular attorney of the Office 

of the Solicitor files and serves a Notice 

of Appearance or Substitution of 

Counsel. Thereafter, parties must serve 

the Office of the Solicitor as indicated 

by the Notice of Appearance or 

Substitution of Counsel. 

(g) The appellant must certify service 

as provided in § 4.401(c)(3). 

§ 4.414 Answers. 

Any person or party served with a 

notice of appeal that wishes to 

participate in the appeal must file an 

answer or appropriate motion with the 

Board within 60 days after service of the 

statement of reasons for appeal. 

(a) The answer must respond to the 

statement of reasons for appeal and, if 

a person is representing more than one 

party, must state that he or she is 

authorized to do so. 

(b) Unless the Board orders otherwise, 

upon motion for good cause shown: 

(1) The text of the answer or motion 

may not exceed 30 pages (doublespaced, using standard margins and font 

size); and 

(2) The party may not file any further 

pleading. 

(c) Failure to file an answer or motion 

will not result in a default. If an answer 

or motion is filed or served after the 

time required, the Board may disregard 

it in deciding the appeal, unless the 

delay in filing is waived as provided in 

§ 4.401(a). 

§ 4.415 Motion for a hearing on an appeal 

involving questions of fact. 

(a) Any party may file a motion that 

the Board refer a case to an 

administrative law judge for a hearing. 

The motion must state: 

(1) What specific material issues of 

fact require a hearing; 

(2) What evidence concerning these 

issues must be presented by oral 

testimony, or be subject to crossexamination; 

(3) What witnesses need to be 

examined; and 

(4) What documentary evidence 

requires explanation, if any. 

(b) In response to a motion under 

paragraph (a) of this section or on its 

own initiative, the Board may order a 

hearing if: 

(1) There are any material issues of 

fact which, if proven, would alter the 

disposition of the appeal; or 

(2) There are significant factual or 

legal issues remaining to be decided and 

the record without a hearing would be 

insufficient for resolving them. 

(c) If the Board orders a hearing, it 

must: 

(1) Specify the issues of fact upon 

which the hearing is to be held; and 

(2) Request the administrative law 

judge to issue: 

(i) Proposed findings of fact on the 

issues presented at the hearing; 

(ii) A recommended decision that 

includes findings of fact and 

conclusions of law; or 

(iii) A decision that will be final for 

the Department unless a notice of 

appeal is filed in accordance with 

§ 4.411. 

(d) If the Board orders a hearing, it 

may: 

(1) Suspend the effectiveness of the 

decision under review pending a final 

Departmental decision on the appeal if 

it finds good cause to do so; 

(2) Authorize the administrative law 

judge to specify additional issues; or 

(3) Authorize the parties to agree to 

additional issues that are material, with 

the approval of the administrative law 

judge. 


pwalker on PROD1PC71 with PROPOSALS
Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 10465 

(e) The hearing will be conducted 

under §§ 4.430 to 4.439 and the general 

rules in subpart B of this part. 

9. Revise § 4.421 to read as follows: 

§ 4.421 Definitions. 

In addition to the definitions in 

§ 4.400, as used in this subpart: 

Director means the Director of BLM, 

the Associate Director, or an Assistant 

Director. 

District manager means the 

supervising BLM officer of the grazing 

district in which a particular range lies, 

or an authorized representative. 

Person named in the decision means 

any of the following persons identified 

in a final BLM grazing decision: an 

affected applicant, permittee, lessee, or 

agent or lienholder of record, or an 

interested public as defined in § 4100.0–

5 of this title. 

State Director means the supervising 

BLM officer for the State in which a 

particular range lies, or an authorized 

representative. 

10. In § 4.422, revise paragraphs (c) 

and (d) and add new paragraphs (e) 

through (g) to read as follows: 

§ 4.422 Documents. 

* * * * * 

(c) Service of documents. A party 

filing a document under this subpart 

must serve a copy of it concurrently on: 

(1) Each adverse party named in the 

decision, at the last address of record; 

and 

(2) The appropriate official of the 

Office of the Solicitor under § 4.413(c) 

through (e). 

(d) Acceptable methods of service. 

Service may be made in any of the 

following ways: 

If the document is . . . Service may be made by . . . 

(1) A notice of appeal ............................................................................... (i) Personal delivery; or 

(ii) Registered or certified mail, return receipt requested. 

(2) Not a notice of appeal ........................................................................ (i) Personal delivery; 

(ii) Registered or certified mail, return receipt requested; 

(iii) First-class mail; or 

(iv) Delivery service, if the last address of record is not a post office 

box. 

(e) Required statement. At the 

conclusion of any document that a party 

must serve under this subpart, the party 

must sign a written statement that: 

(1) Certifies that service has been or 

will be made in accordance with the 

applicable rules; and 

(2) Specifies the date and manner of 

service. 

(f) Completion of Service. (1) Service 

is complete as shown in the following 

table: 

If service is made by . . . Service is complete when the document is . . . 

(i) Personal delivery .................................................................................. Delivered to the party or its agent. 

(ii) Registered or certified mail, return receipt requested ........................ Delivered to the party or returned by the Postal Service unclaimed. 

(iii) First-class mail .................................................................................... Delivered to the party or returned by the Postal Service undelivered. 

(iv) Delivery service .................................................................................. Delivered to the party or returned by the delivery service undelivered. 

(2) In the absence of evidence to the 

contrary, delivery under paragraphs 

(f)(1)(ii) through (iv) of this section is 

deemed to take place 3 business days 

after the document was sent. 

(g) Extensions of time. The Manager or 

the administrative law judge, as the case 

may be, may extend the time for filing 

or serving any document in a contest. 

11. Revise §§ 4.433 and 4.434 to read 

as follows: 

§ 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 

§ 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 § 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 §§ 4.423 

and 4.26. 

§ 4.434 Conduct of hearing. 

(a) The administrative law judge may 

seek to obtain stipulations as to material 

facts. 

(b) Unless the administrative law 

judge directs otherwise: 

(1) The appellant will first present its 

evidence on the facts at issue; and 

(2) The other parties and the bureau 

will then present their evidence on such 

issues. 

§ 4.438 [Removed] 

12. § 4.438 is removed. 

13. Redesignate § 4.439 as § 4.438 and 

revise it to read as follows: 

§ 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 

§ 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 


pwalker on PROD1PC71 with PROPOSALS
10466 Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 

(3) A decision that will be final for the 

Department unless a notice of appeal is 

filed in accordance with § 4.411. 

(b) The administrative law judge will 

promptly send to the Board the record 

and: 

(1) The proposed findings; 

(2) The recommended decision; or 

(3) The final decision if a timely 

notice of appeal is filed. 

(c) The parties will have 30 days from 

service of proposed findings or a 

recommended decision to file 

exceptions with the Board. 

14. Revise § 4.478(a) to read as 

follows: 

§ 4.478 Appeals to the Board of Land 

Appeals; judicial review. 

(a) Any person who has a right of 

appeal under § 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 § 4.411. 

* * * * * 

Subpart L—Special Rules Applicable 

to Surface Mining Hearings and 

Appeals 

15. The authority citation for Part 4, 

Subpart L, continues to read as follows: 

Authority: 30 U.S.C. 1256, 1260, 1261, 

1264, 1268, 1271, 1272, 1275, 1293; 5 U.S.C. 

301 

16. Add § 4.1117 to subpart L to read 

as follows: 

§ 4.1117 Reconsideration. 

A party may file a petition for 

reconsideration of any decision of the 

Board under this subpart within 60 days 

after the date of the decision. The 

provisions of § 4.403 apply to a petition 

filed under this paragraph. 

17. Revise § 4.1270(f) to read as 

follows: 

§ 4.1270 Petition for discretionary review 

of a proposed civil penalty. 

* * * * * 

(f) If the petition is granted, the rules 

in §§ 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 

§ 4.1157(b)(1). If the petition is denied, 

the decision of the administrative law 

judge is final for the Department, subject 

to § 4.5. 

§ 4.1276 [Removed] 

18. Remove § 4.1276. 

19. Revise § 4.1286 to read as follows: 

§ 4.1286 Motion for a hearing on an appeal 

involving issues of fact. 

(a) Any party may file a motion that 

the Board refer a case to an 

administrative law judge for a hearing. 

The motion must state: 

(1) What specific material issues of 

fact require a hearing; 

(2) What evidence concerning these 

issues must be presented by oral 

testimony, or be subject to crossexamination; 

(3) What witnesses need to be 

examined; and 

(4) What documentary evidence 

requires explanation, if any. 

(b) In response to a motion under 

paragraph (a) of this section or on its 

own initiative, the Board may order a 

hearing if: 

(1) There are any material issues of 

fact which, if proven, would alter the 

disposition of the appeal; or 

(2) There are significant factual or 

legal issues remaining to be decided and 

the record without a hearing would be 

insufficient for resolving them. 

(c) If the Board orders a hearing, it 

must: 

(1) Specify the issues of fact upon 

which the hearing is to be held; and 

(2) Request the administrative law 

judge to issue: 

(i) Proposed findings of fact on the 

issues presented at the hearing; 

(ii) A recommended decision that 

includes findings of fact and 

conclusions of law; or 

(iii) A decision that will be final for 

the Department unless a notice of 

appeal is filed in accordance with 

§ 4.411 within 30 days of the date of 

receipt of the decision. 

(d) If the Board orders a hearing, it 

may: 

(1) Suspend the effectiveness of the 

decision under review pending a final 

Departmental decision on the appeal if 

it finds good cause to do so; 

(2) Authorize the administrative law 

judge to specify additional issues; or 

(3) Authorize the parties to agree to 

additional issues that are material, with 

the approval of the administrative law 

judge. 

(e) The hearing will be conducted 

under §§ 4.1100, 4.1102 through 4.1115, 

4.1121 through 4.1127, and 4.1130 

through 4.1141. 

[FR Doc. E7–3774 Filed 3–7–07; 8:45 am] 

BILLING CODE 4310–79–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 67 

[Docket No. FEMA–B–7710] 

Proposed Flood Elevation 

Determinations 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Proposed rule. 

SUMMARY: Technical information or 

comments are requested on the 

proposed Base (1% annual chance) 

Flood Elevations (BFEs) and proposed 

BFEs modifications for the communities 

listed below. The BFEs are the basis for 

the floodplain management measures 

that the community is required either to 

adopt or to show evidence of being 

already in effect in order to qualify or 

remain qualified for participation in the 

National Flood Insurance Program 

(NFIP). 

DATES: The comment period is ninety 

(90) days following the second 

publication of this proposed rule in a 

newspaper of local circulation in each 

community. 

ADDRESSES: The proposed BFEs for each 

community are available for inspection 

at the office of the Chief Executive 

Officer of each community. The 

respective addresses are listed in the 

table below. 

FOR FURTHER INFORMATION CONTACT: 

William R. Blanton, Jr., Engineering 

Management Section, Mitigation 

Division, Federal Emergency 

Management Agency, 500 C Street, SW., 

Washington, DC 20472, (202) 646–3151. 

SUPPLEMENTARY INFORMATION: The 

Federal Emergency Management Agency 

(FEMA) proposes to make 

determinations of BFEs and modified 

BFEs for each community listed below, 

in accordance with section 110 of the 

Flood Disaster Protection Act of 1973, 

42 U.S.C. 4104, and 44 CFR 67.4(a). 

These proposed BFEs and modified 

BFEs, together with the floodplain 

management criteria required by 44 CFR 

60.3, are the minimum that are required. 

They should not be construed to mean 

that the community must change any 

existing ordinances that are more 

stringent in their floodplain 

management requirements. The 

community may at any time enact 

stricter requirements of its own, or 

pursuant to policies established by other 

Federal, State or regional entities. These 

proposed elevations are used to meet 


pwalker on PROD1PC71 with PROPOSALS