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[Federal Register: October 20, 2010 (Volume 75, Number 202)]
[Rules and Regulations]               
[Page 64655-64670]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20oc10-8]                         

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DEPARTMENT OF THE INTERIOR

Office of the Secretary

30 CFR Chapter III and 43 CFR Parts 4 and 10

RIN 1094-AA53

 
Interior Board of Land Appeals and Other Appeals Procedures

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.

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SUMMARY: The Office of the Secretary is amending several existing 
procedural regulations governing appeals to the Interior Board of Land 
Appeals (IBLA); adopting new regulations governing consolidation, 
extensions of time, intervention, and motions in IBLA appeals; removing 
regulations relating to the former Interior Board of Surface Mining and 
Reclamation Appeals and Interior Board of Contract Appeals, which no 
longer exist; and correcting the address of the Office of Hearings and 
Appeals.

DATES: This rule is effective November 19, 2010.

FOR FURTHER INFORMATION CONTACT: Robert S. More, Director, Office of 
Hearings and Appeals, U.S. Department of the Interior, Phone 703-235-
3810. Persons who use a telecommunications device for the deaf may call 
the Federal Information Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    The Office of the Secretary published a proposed rule on March 8, 
2007, to update regulations of the Office of Hearings and Appeals (OHA) 
governing appeals to IBLA under 43 CFR part 4, subparts E and L. 72 FR 
10454-10466. Subpart E contains regulations governing public land 
hearings and appeals, while subpart L contains regulations governing 
surface coal mining hearings and appeals. We proposed to amend the 
existing regulations governing service of documents, reconsideration, 
statements of reasons for appeal, answers, and requests for hearings; 
and we proposed to add regulations governing motions for consolidation, 
extensions of time, and intervention, and for serving and responding to 
other motions.
    We received comments on the proposed rule from the State of Alaska 
Department of Law; Carl J.D. Bauman, Esq.; Biodiversity Conservation 
Alliance; Chevron North America Exploration and Production Company; 
Earthjustice; Kentucky Resources Council; Mary A. Nordale, Esq.; Oil & 
Gas Accountability Project; J. P. Tangen, Esq.; Western Resource 
Advocates; and Wyoming Outdoor Council. We are grateful for the 
suggestions from these commenters and have made a number of changes in 
the proposed rule in response to the comments, as explained in the 
section-by-section analysis below.
    This final rule makes changes to a number of other provisions that 
were not included in the proposed rule. These changes, also explained 
in the section-by-section analysis, are minor technical and conforming 
amendments that do not require notice and comment under the 
Administrative Procedure Act.

II. Section-by-Section Analysis

A. 30 CFR Chapter III--Board of Surface Mining and Reclamation Appeals

    This chapter in Title 30 consists of a single part, 301, entitled 
``Procedures under the Surface Mining Control and Reclamation Act of 
1977.'' Part 301, in turn, consists of a single section, 301.1, 
entitled ``Cross reference,'' which refers readers to 43 CFR part 4, 
subpart L, for procedures relating to appeals to the Interior Board of 
Surface Mining and Reclamation Appeals (IBSMA). IBSMA was abolished by 
Secretarial Order dated April 26, 1983, and its functions were 
transferred to IBLA. 48 FR 22370 (May 18, 1983). However, 30 CFR 
Chapter III was never updated to reflect this change.
    The fact that the outdated provisions of 30 CFR Chapter III have 
been overlooked for the last 27 years suggests that few if any readers 
were even aware of the cross-reference in Sec.  301.1. During the same 
period, parties have had no apparent difficulty filing surface mining 
appeals with IBLA under 43 CFR part 4, subpart L. Since 30 CFR Chapter 
III appears unnecessary as well as outdated, this rule removes it from 
the CFR.

B. 43 CFR Part 4, Subpart A--General; Office of Hearings and Appeals

    This rule revises 43 CFR 4.1, entitled ``Scope of authority; 
applicable regulations,'' to reflect changes to OHA's organization and 
delegations since the last revision in 1996. In March 2005, the 
Hearings Division referred to in Sec.  4.1(a) was divided into three 
separate components: The Departmental Cases Hearings Division, the 
Probate Hearings Division, and the White Earth Reservation Land 
Settlements Act (WELSA) Hearings Division. This change was effected by 
a revision to OHA's organization chapter in the Departmental Manual, 
112 DM 13

[[Page 64656]]

(2005). No change to the regulations was made at that time.
    Effective January 6, 2007, Congress abolished the Interior Board of 
Contract Appeals (IBCA) referred to in Sec.  4.1(b)(1) and transferred 
its functions to a new Civilian Board of Contract Appeals (CBCA) within 
the General Services Administration. Public Law 109-163, sec. 847, 119 
Stat. 3391 (2006); see 71 FR 65825 (Nov. 9, 2006).
    For the last several years, OHA's delegation chapter in the 
Departmental Manual has contained limits on OHA's authority. For 
example, OHA may not overrule or modify a final legal interpretation 
(M-Opinion) of the Solicitor, or review the merits of a biological 
opinion issued by the Fish and Wildlife Service. 212 DM 13 (2009). 
However, the introductory text to Sec.  4.1 is silent with respect to 
any limitations on OHA's authority.
    This rule therefore updates the description of the Hearings 
Divisions in Sec.  4.1(a) and deletes the description of the IBCA in 
Sec.  4.1(b)(1); the remaining paragraphs of Sec.  4.1(b) are 
renumbered. The rule revises 43 CFR 4.1 to clarify that OHA's authority 
to hear, consider, and decide matters ``as fully and finally as might 
the Secretary'' is subject to any limitations imposed by the Secretary. 
And the rule updates redesignated Sec.  4.1(b)(1)(ii) to include a 
reference to Indian probate judges, whose decisions--like those of 
administrative law judges--are appealable to the Interior Board of 
Indian Appeals.

C. 43 CFR Part 4, Subpart B--General Rules Relating to Procedure and 
Practice

    The final rule makes minor formatting changes to Sec.  4.21(b). And 
it revises Sec.  4.22(a) to clarify that a document received after 
regular business hours at the office where it must be filed is 
considered filed on the next business day.

D. 43 CFR Part 4, Subpart C--Special Rules of Practice Before the 
Interior Board of Contract Appeals

    Subpart C, consisting of Sec. Sec.  4.100 through 4.128, sets forth 
procedures for appeals to IBCA. With the abolition of IBCA and transfer 
of its functions to CBCA, those procedures are no longer needed. CBCA 
has published its own procedures at 48 CFR part 6101. This rule 
therefore removes the regulations in subpart C from 43 CFR part 4.

E. 43 CFR Part 4, Subpart E--Special Rules Applicable to Public Land 
Hearings and Appeals

    This rule finalizes the changes to subpart E set forth in the March 
8, 2007, proposed rule, with a number of revisions reflecting the 
comments we received. The preamble to the proposed rule at 72 FR 10454-
10460 should be consulted for additional explanation of the changes as 
proposed.

Section 4.400 Definitions.

    We proposed to add definitions for ``BLM,'' ``last address of 
record,'' and ``party'' and to revise definitions for ``Board,'' 
``Bureau,'' and ``office'' or ``officer.'' No comments were received on 
the proposed definitions, and they are generally adopted as proposed. 
The one exception is the definition of ``Bureau,'' which has been 
revised.
    The existing regulations define ``Bureau'' to mean simply the 
Bureau of Land Management (BLM). In the proposed rule, we proposed to 
revise the definition of ``Bureau'' to include the Minerals Management 
Service (MMS), ``because IBLA reviews some decisions of the Minerals 
Management Service under subpart E, e.g., decisions concerning offshore 
minerals management and royalty management. See 30 CFR Sections 290.2, 
290.8, 290.108.'' 72 FR 10454. It was subsequently pointed out that 
IBLA also reviews royalty management decisions of the Bureau of Indian 
Affairs (BIA) under 30 CFR 290.108, and that BIA should also be 
included in the definition of ``Bureau.'' More recent developments 
affected our proposal to add MMS to the definition.
    Effective June 18, 2010, Secretarial Order 3302 renamed MMS the 
Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE). 
Under paragraph 4(b) of that Order, all references to MMS in the 
Department's regulations, e.g., 30 CFR part 290, are being changed to 
BOEMRE. Under Secretarial Order 3299 (May 19, 2010), BOEMRE is being 
reorganized into three separate organizations over the next year. The 
first phase of the reorganization took effect October 1, 2010, when the 
Minerals Revenue Management function moved from BOEMRE and became the 
Office of Natural Resources Revenue (ONRR) within the Office of the 
Assistant Secretary--Policy, Management and Budget (PMB), reporting to 
the Deputy Assistant Secretary--Natural Resources Revenue. Both the 
Director of ONRR and the Deputy Assistant Secretary--Natural Resources 
Revenue may render decisions appealable to IBLA.
    At some point in 2011, two other organizations will be created from 
the remaining BOEMRE functions, the Bureau of Ocean Energy Management 
(BOEM) and the Bureau of Safety and Environmental Enforcement (BSEE). 
We expect that some decisions from these two bureaus will also be 
appealable to IBLA.
    In light of these developments, the final rule uses an expanded 
term, ``Bureau or Office'' in place of ``Bureau,'' and it defines the 
new term to mean BIA, BLM, BOEMRE, ONRR, the Deputy Assistant 
Secretary--Natural Resources Revenue, or any successor organization. 
The phrase ``or any successor organization'' will cover BOEM and BSEE 
when they come into existence.

Section 4.401 Documents

    Section 4.401 governs the filing and service of documents in an 
appeal. Filing refers to submitting the original of a document to the 
appropriate decisionmaking authority (as specified in the regulations), 
while service refers to delivering a copy of the document to every 
other person who is participating in the appeal. A document is filed 
when it is duly received in the office of the appropriate 
decisionmaking authority (see 43 CFR 4.22(a)). A document is served 
when delivery is made or attempted as specified in this rule.
    We proposed to revise Sec.  4.401(c) to allow service of a 
document, other than a notice of appeal that initiates a proceeding, by 
first-class mail to a person's last address of record or by delivery 
service to a person's last address of record if it is not a post office 
box. Under the existing regulation, service is limited to personal 
delivery or registered or certified mail. ``Last address of record'' 
was defined in proposed Sec.  4.400 as the address provided in a 
person's most recent filing in an appeal or, if there has not been any 
filing, the person's address as provided in the Bureau or Office 
decision under appeal.
    Commenters supported liberalizing the service requirements, but 
some thought the proposed rule did not go far enough. Their suggestions 
included (a) allowing service by electronic mail or facsimile; (b) 
specifying that service on a party represented by counsel should be 
made on the representative; (c) requiring service at a party's current 
address, if known to be different from the last address of record; (d) 
not requiring service of documents on all parties named in the decision 
under appeal; and (e) increasing the number of days after which 
delivery is presumed to occur.
    In response to the comments, the final rule provides that service 
of any document other than a notice of appeal can be made by personal 
delivery, mail, delivery service, or electronic means. Mail includes 
Express Mail, Priority Mail, or First-Class Mail (including

[[Page 64657]]

Registered Mail, Certified Mail, or First-Class Mail without such 
additional services). Delivery service includes package or envelope 
delivery by companies such as DHL, FedEx, and United Parcel Service. 
Electronic means includes electronic mail or facsimile.
    Electronic means can be used if the party to be served has 
previously consented to that means in writing. Service by such means is 
effective when the document is transmitted, unless the serving party 
learns that the document did not reach the party to be served. In the 
latter case, the attempted service by electronic means is not 
effective, and the document must be served by another method. These 
provisions are modeled on the 2007 revisions to Rule 5 of the Federal 
Rules of Civil Procedure.
    Under the final rule, a party must serve a notice of appeal and 
statement of reasons on all other persons (individuals and entities) 
named in the decision under appeal, so that those persons can decide 
whether they want to participate in the appeal. But subsequent 
documents have to be served only on the parties to the appeal, 
including the initiating and responding parties and any persons granted 
intervenor status. Thus, persons named in the decision under appeal who 
wish to participate in the appeal must file a notice of appeal under 
Sec.  4.411, an answer under Sec.  4.414, or a motion to intervene 
under Sec.  4.406. Persons named in the decision under appeal who do 
not participate in the appeal do not have to be served with documents 
other than the notice of appeal and statement of reasons.
    The final rule provides that service on a party known to be 
represented by counsel or other designated representative must be made 
on the representative. Service must be made at the last address of 
record of the party (if unrepresented) or the representative, unless 
the party or representative has notified the serving party of a 
subsequent change of address. This provision is intended to avoid 
disputes over whether the serving party sent a document to the most 
recent address known to the serving party. A party should be able to 
rely on a person's address of record in the Bureau or Office or a 
subsequent change of address notice. However, if a document sent to 
that address comes back undelivered or unclaimed, the serving party 
must make other reasonable efforts to complete service. For example, if 
a document sent by certified mail is returned unclaimed, the serving 
party should at least re-send the document by regular mail. See Jones 
v. Flowers, 547 U.S. 220, 234-35 (2006).
    Also in response to comments, the rule provides that service by 
mail or a delivery service--in the absence of evidence to the 
contrary--will be deemed to take place 5 business days (typically 7 
calendar days) after the document was sent, rather than 3 days as 
stated in the proposed rule. A sentence has been added stating that a 
document is considered sent when it is given to the U.S. Postal Service 
(or deposited in one of its mailboxes), properly addressed and with 
proper postage affixed, or when it is given to a delivery service (or 
deposited in one of its receptacles), properly addressed and with the 
delivery cost prepaid.
    Corresponding revisions have been made to proposed Sec.  4.422(c).
    The final rule also adds a new Sec.  4.401(d) specifying the format 
of documents filed in a case. Sections 4.412 and 4.414 in the proposed 
rule had included general formatting guidance for briefs filed with 
IBLA (``double-spaced, using standard margins and font size''); but we 
decided to include more specific guidance in Sec.  4.401, where it 
would be applicable to all cases filed under subpart E. The language 
adopted is based on 43 CFR 45.11(a), 45.12(d).

Section 4.403 Finality of Decision; Reconsideration

    The proposed rule revised the language in Sec.  4.403 to clarify 
the standard for a motion for reconsideration, to specify that parties 
can file a response to such a motion, and to list circumstances that 
may warrant IBLA's granting a motion in its discretion. No comments 
were received on the proposed changes, and they are adopted as 
proposed.

Section 4.404 Consolidation

    We proposed to add a regulation providing that the Board may 
consolidate appeals on its own initiative or on motion of a party, if 
the facts or legal issues involved are the same or similar. The rule 
would codify existing practice. One comment was received supporting the 
proposed regulation, and it is adopted as proposed.

Section 4.405 Requests for Extension of Time

    We proposed to add a regulation governing motions requesting an 
extension of time to file a document with the Board. As proposed, the 
rule would require a party to file such a motion no later than the day 
before the document is due and to show good cause for the extension. It 
would allow any other party to file an objection within 2 business days 
after service of the motion. And it would provide that, if the Board 
does not act on a motion before the document is due, the document must 
be filed no later than 15 days after the original due date, unless the 
Board subsequently shortens or lengthens the time by order. We received 
several comments on this proposal.
    One commenter suggested that the party requesting an extension be 
required to indicate in the motion whether the other parties (or their 
counsel) oppose the motion; and the commenter expressed concern that a 
2-day period for objecting to an extension is too short. The final rule 
adopts the commenter's suggestion with respect to requiring the moving 
party to ascertain whether other parties oppose the motion, and 
eliminates the 2-day period for objecting to an extension. Under Sec.  
4.401(c)(6), service is normally deemed to take place 5 business days 
after the document was sent. Five business days is the equivalent of 7 
calendar days (or 8, if the period includes a holiday). Thus, under the 
rule as proposed, the Board would have to wait to rule on the motion 
for at least 7 calendar days after a motion for extension of time is 
filed for service to occur, plus an additional 2 days to allow for a 
response from the other parties (or more, if the commenter's suggestion 
of a longer response period were adopted). Meanwhile, the party seeking 
the extension does not know how long it will have to file its document. 
Most motions for extension of time are unopposed, and the Board is 
fully capable of deciding such motions without a written response from 
another party.
    Another commenter suggested that, if the Board denies a motion for 
extension of time, the moving party should have an automatic 15-day 
extension, to run from receipt of the Board's order denying the motion. 
This suggestion was not adopted, since it would grant an extension of 
time in cases where the Board has already determined that good cause 
has not been shown. The same commenter suggested that an exception to 
the filing deadline for a motion for extension of time be provided for 
compelling circumstances; the commenter pointed out that such an 
exception was stated in the preamble to the proposed rule, but not in 
the regulation. This suggestion has been adopted.
    A third commenter stated that the regulations should provide that 
extensions of reasonable duration will be freely granted. The commenter 
found it ``ironic that the OHA can be proposing curtailed opportunities 
to present

[[Page 64658]]

pleadings when the IBLA takes three years to produce a decision on 
appeal.'' We disagree that setting a ``good cause'' standard for 
extensions of time, as we have in Sec.  4.405(d), will curtail 
opportunities for the parties to present their pleadings. Neither the 
proposed nor final rule reduces the time allowed for the parties to 
file their pleadings, and extensions of time will continue to be 
available upon a proper showing. It is also worth noting that the 
average age of IBLA's pending cases has been falling steadily over the 
last few years, from 20 months at the start of FY 2004 to less than 5 
months currently. In fact, one of the principal reasons for this 
rulemaking is to further improve the efficiency of IBLA's adjudicatory 
process.
    A final commenter suggested that ``good cause'' be defined in the 
regulations to include ``difficulty in obtaining the administrative 
record or the need to fully review a lengthy record or an appeal 
involving complicated legal or factual issues.'' We believe it would be 
impossible to adequately capture the wide array of personal, 
professional, substantive, and procedural reasons that could constitute 
``good cause'' under appropriate circumstances, although the proposed 
rule preamble did note that conducting settlement negotiations in good 
faith would justify a reasonable extension of time.
    For reasons explained below in connection with Sec.  4.414, the 
final rule adds a paragraph (f) to this section, allowing for an 
automatic extension, not to exceed 30 days, of the deadline for filing 
an answer.

Section 4.406 Intervention; Amicus Curiae

    We proposed to add a regulation governing intervention in appeals 
before IBLA and appearance as an amicus curiae. Under the proposed 
rule, if the person seeking to intervene would be adversely affected if 
the decision under appeal were reversed, vacated, set aside, or 
modified by the Board, a motion to intervene would be due within 30 
days after the person knew or should have known that the decision had 
been appealed. However, if the person seeking to intervene would have 
an independent right to appeal the decision under Sec.  4.410, a motion 
to intervene would be due within 30 days after the person was served 
with the decision or, if not served, knew or should have known of the 
decision. The preamble cited Independent Petroleum Association of 
Mountain States, 136 IBLA 279, 281 (1996), for the proposition that the 
Board will deny a motion to intervene where granting it would 
circumvent the requirement in Sec.  4.411(a) that an appeal be filed 
within 30 days after service of a decision.
    One commenter objected to the proposal because, for a party having 
a right to appeal, the time for filing a motion to intervene could 
expire before the party even learns that another party has filed an 
appeal. According to the commenter, a party having a right to appeal 
may choose not to do so in the first instance, but may want to 
intervene if another party files an appeal, especially if the parties' 
interests are not aligned. The commenter recommended that, in all 
cases, the deadline for filing a motion to intervene should be 30 days 
after the person knew or should have known that the decision has been 
appealed to the Board.
    The final rule adopts the commenter's recommended approach. It 
further requires the party seeking to intervene to set forth the basis 
for the proposed intervention in the motion, including (1) whether the 
person had a right to appeal the decision under Sec.  4.410 or would be 
adversely affected if the decision under appeal were reversed, vacated, 
set aside, or modified by the Board, and (2) how and when the person 
learned of the appeal. The Board could then take that information into 
account in deciding whether to grant the motion.
    The final rule adds a paragraph (e) specifying that a person 
granted full or limited intervenor status is a party to the appeal, 
while an amicus curiae is not. Thus, other parties are required to 
serve documents on an intervenor under Sec.  4.401, though not on an 
amicus curiae. However, an amicus curiae is required to serve its brief 
on the parties to the appeal.

Section 4.407 Motions

    We proposed to add a regulation governing motions filed with the 
Board, requiring that the motion provide a concise statement of the 
reasons supporting the motion, giving any other party 15 days to 
respond, and stating that the Board would rule on any motion as 
expeditiously as possible. The 15-day response deadline would apply 
unless another regulation or the Board by order provides otherwise.
    Two commenters objected to the proposal. One argued that there is 
no need for a regulation on motions and that the Board should maintain 
its current practice. However, as explained in the proposed rule, the 
absence of a regulation leads to uncertainty among practitioners, e.g., 
as to the length of time they have to respond to a motion. The rule 
will help standardize practice and facilitate prompt rulings on 
motions.
    The other commenter objected to the 15-day response period as being 
insufficient in most cases and likely to result in motions for 
extension of time. The commenter recommended that 30 days be allowed 
for responding to a motion.
    The Board's experience is that most motions are routine in nature 
and are often unopposed or generate only a brief response. For those 
motions, a short response period facilitates disposition. Other motions 
are more substantive and justify a longer response period. Fifteen days 
is already a week longer than the 8 days allowed for responses to 
substantive motions in Rule 27 of the Federal Rules of Appellate 
Procedure. The final rule therefore retains the response deadline of 15 
days after service of the motion. If additional time is needed for a 
particularly substantive motion, the responding party can request an 
extension of time under Sec.  4.405.

Section 4.410 Who May Appeal

    As explained above, the proposed rule included a revised definition 
of ``Bureau'' in Sec.  4.400 as including MMS along with BLM. But it 
did not include any proposed changes to Sec.  4.410, which mentions 
appeals only from decisions of BLM or an administrative law judge. The 
final rule revises Sec.  4.410 to substitute the more inclusive term 
``Bureau or Office'' for ``BLM'' in paragraphs (a) and (c). As 
explained above, the definition of ``Bureau or Office'' in Sec.  4.400 
has been further revised in the final rule to include BIA, BLM, BOEMRE, 
ONRR, the Deputy Assistant Secretary--Natural Resources Revenue, and 
any successor organization.

Section 4.411 Appeal; How Taken, Mandatory Time Limit

    We proposed to add a provision to Sec.  4.411(a) specifying that 
transmitting a notice of appeal by facsimile to the office of the 
officer who made the decision would not constitute filing. This 
proposal was intended to avoid the problem observed in cases in which 
an appellant attempted to transmit a notice of appeal by facsimile, but 
the relevant office did not receive it on time or at all. See Underwood 
Livestock, Inc., 165 IBLA 128, 130-31 (2005); National Wildlife 
Federation, 162 IBLA 263, 264-66 (2004).
    Two commenters objected to the proposal and argued that timely 
electronic transmission of a notice of appeal should be accepted. One 
of the commenters suggested that the

[[Page 64659]]

regulations include an express statement that the risk of delay or 
nondelivery of the notice of appeal is on the sender. BLM supported the 
proposed rule, expressing a concern that the volume of paper involved 
could overwhelm the facilities in some offices. They noted that one 
appellant had recently filed 17 appeals totaling about 1,200 pages.
    Based on the Board's recent experience, it appears that some BLM 
offices already accept electronic filing of notices of appeal, while 
others may not. Rather than adopt a uniform rule for BLM, we have 
decided to delete proposed Sec.  4.411(a)(4) for now, leaving it up to 
BLM whether to accept notices of appeal by facsimile or e-mail. We plan 
to revisit the issue of electronic filing in a future rulemaking.
    We also proposed to add a provision to Sec.  4.411(b) specifying 
that a person representing more than one appellant must state that he 
or she is authorized to do so. See, e.g., The Friends and Residents of 
Log Creek, 150 IBLA 44, 48 (1999) (``Proper application of the 
Department's rules of practice requires an affirmative showing that a 
representative of a named appellant is qualified and authorized to 
represent any other purported appellant or appellants, if single 
representation for multiple parties is intended'').
    One commenter objected that this requirement is unnecessary and 
would ``create a trap for the unwary.'' The commenter pointed out that 
43 CFR 1.5(a) already provides that the signature of a party's 
representative on a document constitutes a certificate that he or she 
is authorized and qualified to represent the party. The commenter 
argued that it would be ``far simpler and more efficient'' for the 
Board to issue an order to show cause, requiring a person to verify his 
or her authority to represent a party, in cases where the Board has a 
question about such authority.
    We disagree with the commenter in part. If inclusion of a single 
statement in a notice of appeal avoids a potential issue about a 
representative's authority, that action would be ``far simpler and more 
efficient'' than the Board's issuance of an order to show cause, 
followed by responses from the parties--a process that would take at 
least a few weeks. Nevertheless, we share the commenter's concern about 
the new requirement creating a ``trap for the unwary.'' Moreover, it 
may well be that, in many cases where this issue arises, a mere 
statement by the representative that other appellants have authorized 
him or her to represent them will not be sufficient to resolve the 
issue. If so, the Board will still have to use an order to show cause 
to satisfy itself that the requirements of 43 CFR part 1 have been met. 
On balance, therefore, we have decided to omit the proposed requirement 
from the final rule.
    The final rule amends Sec.  4.411 to add an introductory phrase, 
``[e]xcept as otherwise provided by law,'' to paragraph (a)(2), since a 
statute or regulation may provide a longer or shorter period for filing 
an appeal than the normal 30 days. For example, under 30 U.S.C. 
1724(d)(4)(B)(ii)(V), an order to perform a restructured accounting for 
oil and gas royalties must ``provide the lessee or its designee 60 days 
within which to file an administrative appeal of the order to perform a 
restructured accounting.''
    The final rule also adds a new Sec.  4.411(d), specifying what the 
office of the officer who made the decision must do after receiving a 
notice of appeal. The office must forward to the Board the notice of 
appeal and any accompanying documents, as well as the complete 
administrative record.

Section 4.412 Statement of Reasons; Statement of Standing; Reply Briefs

    We proposed to revise Sec.  4.412(a) to require a single statement 
of reasons to be filed within 30 days after the notice of appeal is 
filed, rather than allowing two or more statements of reasons as in the 
current regulations. No comments were received on this change, and it 
is adopted. We have modified the language of paragraph (a) slightly, to 
say that the statement of reasons must be filed ``no later than 30 days 
after the notice of appeal was filed,'' rather than ``within 30 days 
after the notice of appeal was filed.'' An appellant does not have to 
wait until ``after the notice of appeal was filed'' to file a statement 
of reasons; the two documents can be filed at the same time.
    We also proposed to limit the statement of reasons to 30 pages 
(excluding exhibits, declarations, or other attachments), unless the 
appellant obtains leave of the Board to file a longer statement by 
showing good cause. And we proposed that an appellant would also have 
to show good cause for leave to file any additional pleading, e.g., a 
reply to an answer.
    One commenter objected to the page limitation in the proposed rule, 
saying that it was arbitrary and inadequately justified in the proposed 
rule. Thirty pages is the limit for a principal brief under Rule 
32(a)(7) of the Federal Rules of Appellate Procedure; and in the 
Board's experience, it should be sufficient in all but the most 
complicated cases. This proposed change is adopted as proposed.
    The same commenter and several others objected to the requirement 
that an appellant obtain leave of the Board to file a reply brief. The 
current regulations make no provision for a reply brief, and most 
appellants who wish to file a reply seek leave of the Board to do so. 
Thus the proposed rule is consistent with the prevailing practice. 
However, it is also true that the Board routinely grants leave to file 
a reply when requested, and appellants file replies in fewer than 10 
percent of the cases. Thus, allowing a limited time for appellants to 
file a reply brief appears unlikely to delay proceedings unduly.
    In light of the Board's experience and the comments received, the 
final rule expressly allows an appellant who feels the need to do so to 
file a reply brief within 15 days after service of an answer under 
Sec.  4.414. This is comparable to the 14 days allowed for a reply 
brief in Rule 31 of the Federal Rules of Appellate Procedure. The reply 
brief is limited to the issues raised in the answer and to 20 pages, 
unless the appellant obtains leave of the Board to file a longer brief 
by showing good cause. No further briefing by any party is permitted, 
unless requested by the Board.

Section 4.413 Service of Notice of Appeal

    The proposed rule included updated addresses for the Office of the 
Solicitor on which a copy of a notice of appeal and statement of 
reasons must be served. The Office of the Solicitor has informed us a 
handful of other changes, and the final rule revises the information in 
Sec.  4.413(c)(1), (d)(5), and (d)(9) to reflect those changes. No 
public comments were received on the proposed changes, and they are 
adopted as proposed, with minor editorial changes.

Section 4.414 Answers

    We proposed to require each party that wishes to participate in an 
appeal, including the Bureau, to file a single answer (or motion, if 
appropriate, e.g., a motion to dismiss) within 60 days of service of 
the statement of reasons for appeal. This is twice the length of time 
generally provided for filing an answer under the existing regulations 
and would equal the total length of time that an appellant has to file 
a statement of reasons from the date of service of the decision being 
appealed (30 days under Sec.  4.411(a) plus 30 days under Sec.  
4.412(a)). No comments were received on the proposed change. On further

[[Page 64660]]

consideration, however, we have decided to leave the period for filing 
an answer in Sec.  4.414(a) at 30 days, but to revise Sec.  4.405 to 
provide for an automatic extension of time upon request, not to exceed 
30 days.
    In many cases currently, no party files an answer, which means that 
the case is ripe for adjudication 30 days after service of the notice 
of appeal or statement of reasons. Enlarging the period for filing an 
answer to 60 days in all cases would mean that the Board would have to 
wait an additional 30 days in every case to see whether a party filed 
an answer.
    Under the final rule, if a person wants to file an answer but needs 
additional time to do so, the person can get up to the full 60 days 
contemplated in the proposed rule simply by filing a request for an 
extension of time before the end of the initial 30-day deadline. But if 
no one files an answer or a request for an extension of time within the 
initial 30-day period, the Board can proceed to consider the appeal, 
without having to wait an additional 30 days.
    For the reasons discussed above in connection with Sec.  4.411, the 
final rule omits the proposed requirement that, if a person is 
representing more than one party, the answer must state that the person 
is authorized to do so.

Section 4.415 Motion for a Hearing on an Appeal Involving Questions of 
Fact

    We proposed several changes to existing Sec.  4.415: (1) Deleting 
the requirement that a request for a hearing on issues of material fact 
be filed within 30 days after an answer is due; (2) requiring a party 
that requests a hearing to specify in its motion what the issues of 
material fact are, what evidence must be presented, what witnesses need 
to be examined, and what documentary evidence needs to be explained, if 
any; (3) including the standards used by the Board in deciding whether 
to refer a case for a hearing; (4) giving the Board the authority to 
refer a matter for a hearing by an administrative law judge (ALJ), who 
would issue (a) proposed findings of fact on specified issues, (b) a 
recommended decision, or (c) a decision that will be final in the 
absence of an appeal; and (5) authorizing the Board to suspend the 
effectiveness of the decision under review pending a final decision on 
the appeal if it finds good cause to do so.
    One commenter objected to the proposed requirement that a party 
requesting a hearing specify what evidence must be presented, what 
witnesses need to be examined, and what documentary evidence needs to 
be explained, if any. The commenter argued that discovery may be 
necessary before a party can make these determinations, and discovery 
may not be available until the case is referred to an ALJ for a 
hearing. The commenter recommended that the rule require a party to 
identify only the issues of material fact on which a hearing is 
necessary or, at the least, clarify that a party will not be limited to 
its specifications of evidence, witnesses, and documents in the request 
for a hearing.
    We have decided to retain the requirement that the party specify, 
not only the issues of material fact to be heard, but also the 
evidence, witnesses, and documents to be presented or cross-examined. 
This information is needed for the Board to evaluate the hearing 
request and determine, for example, whether evidence could be presented 
in documentary form, rather than by oral testimony, thereby saving the 
parties and the ALJ the time and expense of a hearing. However, 
language has been added to Sec.  4.415(e) clarifying that, unless the 
Board orders otherwise, the ALJ may consider other relevant issues and 
evidence identified after referral of the case for a hearing.
    The same commenter also recommended that the proposed rule be 
amended to include procedures for discovery in cases handled by the 
Departmental Cases Hearings Division. While this recommendation is 
outside the scope of the current rulemaking, which focuses on 
procedures for IBLA, we agree that discovery procedures for cases 
before the Departmental Cases Hearings Division should be established. 
We will propose such procedures in a separate rulemaking.
    No other comments were received on the proposed changes to Sec.  
4.415, and they are adopted as proposed.

Section 4.421 Definitions

    We proposed to remove from this section a handful of terms that are 
also defined in Sec.  4.400, to alphabetize the remaining definitions, 
and to revise them to reflect revisions to the definitions in Sec.  
4.400. No comments were received on the proposed changes, and they are 
adopted as proposed.
    In addition, in response to a comment from BLM, we have substituted 
a definition of ``manager'' for the definition of ``district manager'' 
in the current regulation. BLM pointed out that subpart E never 
actually uses ``district manager,'' except to define it in this section 
as the supervising BLM officer of the grazing district. By contrast, 
subpart E uses ``manager'' in several regulations. Since BLM manages 
grazing both within grazing districts and on the public lands outside 
grazing districts, the final regulation defines the term ``manager'' 
more broadly as ``the BLM official with direct supervision over the 
public lands that are pertinent to the decision or contest.''

Section 4.422 Documents

    The proposed rule included changes to the service requirements in 
Sec.  4.422(c) corresponding to those proposed for Sec.  4.401(c). The 
final rule adopts the same changes to Sec.  4.422(c) as are adopted for 
Sec.  4.401(c), discussed above. In addition, language has been 
included in Sec.  4.422(c)(4) and (6) to reflect service of a complaint 
in a contest proceeding by publication, as provided in Sec.  4.450-5.

Section 4.433 Authority of the Administrative Law Judge

    Consistent with one of the proposed changes to Sec.  4.415 
mentioned above, we proposed to revise Sec.  4.433 to provide authority 
to an ALJ to issue either a recommended decision or a decision that 
would be final for the Department absent an appeal to the Board, in 
addition to proposed findings of fact on the issues presented at the 
hearing. No comments were received on the proposed change, and it is 
adopted as proposed.

Section 4.434 Conduct of Hearing

    We proposed to revise this regulation to substitute 
``administrative law judge'' for ``examiner'' and to substitute 
``Bureau,'' as defined in Sec.  4.400, for ``Bureau of Land 
Management.'' No comments were received on the proposed changes, and 
they are adopted as proposed, except that the expanded term ``Bureau or 
Office'' is used in the final rule.

Section 4.437 Copies of Transcript

    This regulation refers to the parties' stipulating to a summary of 
the evidence, a procedure that has not been used for many years and is 
unnecessary, since all hearings are transcribed. The final rule removes 
this reference in Sec.  4.437.

Section 4.438 Summary of Evidence

    We proposed to remove this regulation as unnecessary, for the 
reasons explained above in connection with Sec.  4.437. No comments 
were received on the proposed change, and it is adopted as proposed. 
Existing Sec.  4.439 is redesignated Sec.  4.438.

Section 4.438 Action by Administrative Law Judge

    Consistent with the proposed changes to Sec. Sec.  4.415 and 4.433 
mentioned above,

[[Page 64661]]

we proposed to revise this regulation to authorize an ALJ to issue (a) 
proposed findings of fact on the issues presented at the hearing, (b) a 
recommended decision that includes findings of fact and conclusions of 
law, or (c) a decision that would be final for the Department absent an 
appeal to the Board. No comments were received on this proposed change, 
and it is adopted as proposed.

Section 4.452-8 Findings and Conclusions; Decision by Administrative 
Law Judge

    Paragraphs (a) and (b) of this section provide that, following a 
hearing in a contest proceeding, the parties may submit proposed 
findings of fact and conclusions of law, and the ALJ will consider them 
and issue his or her decision, including findings, conclusions, and the 
reasons for them. Paragraph (c) provides that ``[t]he Board may 
require, in any designated case, that the [ALJ] make only a recommended 
decision and that the decision and the record be submitted to the Board 
for consideration.''
    As far as we are aware, the authority in paragraph (c) has never 
been used, and we are unaware of any reason to depart from the 
consistent current practice of having the ALJ render an initial 
decision that is then reviewable by the Board on appeal. The final 
rule, therefore, deletes paragraph (c).

Section 4.476 Conduct of Hearing; Reporter's Fees; Transcripts

    Like Sec.  4.437 discussed above, Sec.  4.476(d) refers to the 
parties' stipulating to a summary of the evidence, a procedure that has 
not been used for many years and is unnecessary, since all hearings are 
transcribed. The final rule removes this reference in Sec.  4.476.

Section 4.477 Findings and Conclusions; Decision by Administrative Law 
Judge

    Paragraph (a) of this section provides that, following a hearing in 
a grazing proceeding and the time allowed for the parties to submit 
proposed findings of fact and conclusions of law, the ALJ will consider 
them and issue his or her decision, including findings, conclusions, 
and the reasons for them. Paragraph (b) provides that the Board ``may 
require, in any designated case, that the [ALJ] make only a recommended 
decision and that such decision and the record be submitted to the 
Board for consideration.'' We are not aware of the Board's ever having 
used the authority in paragraph (b), and we have deleted paragraph (b) 
from the final rule.

Section 4.478 Appeals to the Board of Land Appeals; Judicial Review

    As noted in the proposed rule, in 2003, OHA amended its regulations 
to authorize an ALJ to issue an order granting or denying a petition 
for stay of a BLM grazing decision. 43 CFR 4.474(c), 68 FR 68765, 68771 
(Dec. 10, 2003). The amendments also provided for an appeal to IBLA 
from such an order in Sec.  4.478(a), but did not specify a time or 
place for filing the appeal. We proposed to amend Sec.  4.478(a) to 
provide that an appeal may be filed with the ALJ in accordance with 
Sec.  4.411(a). No comments were received on the proposed change, and 
it is adopted as proposed.

F. 43 CFR Part 4, Subpart L--Special Rules Applicable to Surface Coal 
Mining Hearings and Appeals

Section 4.1108 Form of Documents

    The final rule adds a new Sec.  4.1108(g) providing that documents 
filed under subpart L must conform to the document formatting 
requirements of Sec.  4.401(d). This provision takes the place of the 
more general formatting guidance (``double-spaced, using standard 
margins and font size'') included in proposed Sec.  s 4.1392(a)(2), 
(e)(2).

Section 4.1109 Service

    The Solicitor's Office has informed us that, in 2009, the Knoxville 
Field Solicitor's Office moved to a new location. We have revised Sec.  
4.1109(a)(2)(ii) to update the office address.

Section 4.1117 Reconsideration

    We proposed to add Sec.  4.1117 to treat motions for 
reconsideration under subpart L in a manner consistent with those under 
subpart E. See Sec.  4.403, discussed above. No comments were received 
on the proposed addition, and it is adopted as proposed.

Section 4.1270 Petition for Discretionary Review of a Proposed Civil 
Penalty

    We proposed to correct the reference in Sec.  4.1270(f) from Sec.  
4.1277 (which does not exist) to Sec.  4.1275. No comments were 
received on the proposed change, and it is adopted as proposed.

Section 4.1276 Reconsideration

    We proposed to remove this regulation because of the addition of 
Sec.  4.1117, discussed above. No comments were received on the 
proposed change, and it is adopted as proposed.

Section 4.1286 Motion for a Hearing

    We proposed to revise Sec.  4.1286 to treat requests for a hearing 
under subpart L in a manner consistent with those under subpart E. See 
Sec.  4.415, discussed above. No comments were received on the proposed 
changes, and they are adopted as proposed.

Section 4.1287 Action by Administrative Law Judge

    The final rule adds a new Sec.  4.1287 to require action by the 
ALJ, following referral of a case for a hearing under subpart L, in a 
manner consistent with that under subpart E. See redesignated Sec.  
4.438, discussed above.

Section 4.1392 Contents of Request; Amendment of Requests; Responses

    Section 4.1392 governs the filing of requests for review, and 
responses to such requests, in cases involving a determination by the 
Office of Surface Mining Reclamation and Enforcement that a person does 
or does not have valid existing rights under 30 CFR 761.16. One 
commenter requested that the final regulations clarify a requester's 
right to file a supplemental brief, which could serve to narrow the 
issues in contention. Consistent with the change to Sec.  4.412 
concerning reply briefs, discussed above, the final rule adds a Sec.  
4.1392(e), giving a requester who wishes to file a reply a limited 
opportunity to do so. The final rule also revises Sec.  4.1392(d) to 
clarify the requirements for filing a response.

G. 43 CFR Part 10--Native American Graves Protection and Repatriation 
Regulations

    In January 2002, OHA moved its headquarters offices to a new 
building and revised these regulations to update its address. 67 FR 
4367, 4368 (Jan. 30, 2002). In April 2003, however, the National Park 
Service revised 43 CFR 10.12 and inadvertently republished OHA's former 
address. 68 FR 16354, 16363-64 (Apr. 3, 2003). This final rule 
therefore revises Sec.  10.12(j) and (k) to substitute OHA's current 
address.

III. Review Under Procedural Statutes and Executive Orders

    A. Decision To Issue Final Rule Without Prior Notice and Comment on 
Some Provisions. While prior notice and opportunity for comment were 
provided for most of the provisions of this final rule, the Office of 
the Secretary has included additional provisions that were not part of 
the March 8, 2007, proposed rule. These provisions are 30 CFR Chapter 
III and 43 CFR part 4, subpart C, which are removed; 43 CFR 4.1, 4.21, 
4.22, 4.410, 4.437, 4.452-8,

[[Page 64662]]

4.476, 4.477, 4.1108, 4.1392, and 10.12, which are revised; and 43 CFR 
4.401(d), 4.411(d), and 4.1287, which are added. As is clear from the 
section-by-section analysis above, the changes to these regulations are 
minor technical amendments or changes needed to conform to other 
statutory or regulatory actions.
    The Department has determined that the public notice and comment 
requirements of the Administrative Procedure Act, 5 U.S.C. 553(b), do 
not apply to these additional provisions because the changes being made 
relate solely to matters of agency organization, procedure, and 
practice. They therefore satisfy the exemption from notice and comment 
rulemaking in 5 U.S.C. 553(b)(A).
    B. Regulatory Planning and Review (E.O. 12866). In accordance with 
the criteria in Executive Order 12866, we have determined that this 
document is not a significant regulatory action. The Office of 
Management and Budget has not reviewed this rule under Executive Order 
12866.
    1. This rule will not have an annual economic effect of $100 
million or more or adversely affect in a material way an economic 
sector, productivity, competition, jobs, the environment, public health 
or safety, or State, local, or tribal governments or communities. A 
cost-benefit and economic analysis is not required. These regulations 
will have virtually no effect on the economy because they only revise 
existing procedural regulations governing appeals and add new 
regulations governing consolidation of appeals, requests for extensions 
of time, motions, and intervention.
    2. This rule will not create inconsistencies with or interfere with 
other agencies' actions because only the Department of the Interior 
provides regulations that govern procedures for appeals of decisions 
concerning the use and disposition of public lands and their resources 
and concerning surface coal mining.
    3. This rule will not materially alter the budgetary effects of 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients. These regulations deal only with 
procedures governing appeals, not with entitlements, grants, user fees, 
loan programs, or the rights and obligations of their recipients.
    4. This rule does not raise novel legal or policy issues. The 
regulations would merely revise existing procedures and add regulations 
governing consolidation of appeals, requests for extensions of time, 
motions, and intervention, which are all familiar administrative 
procedures.
    C. Regulatory Flexibility Act. The Department of the Interior 
certifies that this rule will not have a significant economic effect on 
a substantial number of small entities as defined in the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). Over the past 5 years, IBLA has 
received between 285 and 335 appeals per year, and appeals this year 
are running at an even lower rate. Not all appellants are small 
entities; but even if they were, 285-335 is not a substantial number, 
for purposes of the Act. Moreover, the minor procedural changes in this 
rule will not have a significant economic effect on those appellants 
who are small entities. A Small Entity Compliance Guide is not 
required.
    D. Small Business Regulatory Enforcement Fairness Act. This rule is 
not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory 
Enforcement Fairness Act:
    1. It will not have an annual effect on the economy of $100 million 
or more. The rule only revises procedural regulations governing appeals 
and adds regulations governing consolidation of appeals, requests for 
extensions of time, motions, and intervention. The rule should have no 
effect on the economy.
    2. It will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. Revising OHA's procedural regulations 
governing appeals and adding regulations governing consolidation of 
appeals, requests for extensions of time, motions, and intervention 
will not affect costs or prices for citizens, individual industries, 
government agencies, or geographic regions.
    3. It will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. 
Revising OHA's procedural regulations governing appeals and adding 
regulations governing consolidation of appeals, requests for extensions 
of time, motions, and intervention should have no effects, adverse or 
beneficial, on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises.
    E. Unfunded Mandates Reform Act. In accordance with the Unfunded 
Mandates Reform Act (2 U.S.C. 1501 et seq.), we find that:
    1. This rule will not have a significant or unique effect on small 
governments or significantly affect State, local, or tribal governments 
or the private sector. Revising OHA's procedural regulations governing 
appeals and adding regulations governing consolidation of appeals, 
requests for extensions of time, motions, and intervention will neither 
uniquely nor significantly affect these governments.
    2. This rule will not produce an unfunded Federal mandate of $100 
million or more on State, local, or tribal governments in the aggregate 
or the private sector in any year, i.e., it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. A statement 
containing the information required by the Unfunded Mandates Reform 
Act, 2 U.S.C. 1532, is not required.
    F. Takings (E.O. 12630). In accordance with Executive Order 12630, 
we find that the rule will not have significant takings implications. A 
takings implication assessment is not required. Revising OHA's 
procedural regulations governing appeals and adding regulations 
governing consolidation of appeals, requests for extensions of time, 
motions, and intervention should have no effect on property rights.
    G. Federalism (E.O. 13132). In accordance with Executive Order 
13132, we find that the rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment. 
There is no foreseeable effect on states from revising OHA's procedural 
regulations governing appeals and adding regulations governing 
consolidation of appeals, requests for extensions of time, motions, and 
intervention. A federalism summary impact statement is not required.
    H. Civil Justice Reform (E.O. 12988). In accordance with Executive 
Order 12988, the Department has determined that this rule will not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. Because these regulations will 
improve OHA's procedural regulations governing appeals and add 
regulations governing consolidation of appeals, requests for extensions 
of time, motions, and intervention, they will not burden either 
administrative or judicial tribunals.
    I. Consultation with Indian Tribes (E.O. 13175). Under the criteria 
in Executive Order 13175, we have evaluated this rule and determined 
that it has no potential effects on federally recognized Indian tribes. 
These regulations would not have substantial direct effects on one or 
more Indian tribes, on the relationship between the Federal government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal

[[Page 64663]]

government and Indian tribes. They would only revise OHA's procedural 
regulations governing appeals and add regulations governing 
consolidation of appeals, requests for extensions of time, motions, and 
intervention.
    J. Paperwork Reduction Act. This rule is exempt from the 
requirements of the Paperwork Reduction Act, since it applies to the 
conduct of agency administrative proceedings involving specific 
individuals and entities. 44 U.S.C. 3518(c); 5 CFR 1320.4(a)(2). An OMB 
form 83-I is not required.
    K. National Environmental Policy Act. The Department has determined 
that this rule is categorically excluded from environmental review 
under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 
4321 et seq., Council on Environmental Quality (CEQ) regulations, 40 
CFR 1508.4, and the Department of the Interior's regulations at 43 CFR 
46.210(i). CEQ regulations, at 40 CFR 1508.4, define a ``categorical 
exclusion'' as a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. The 
regulations further direct each department to adopt NEPA procedures, 
including categorical exclusions. 40 CFR 1507.3.
    The Department has determined that this rule is categorically 
excluded from further environmental analysis under NEPA in accordance 
with 43 CFR 46.210(i), which categorically excludes ``[p]olicies, 
directives, regulations and guidelines: that are of an administrative, 
financial, legal, technical, or procedural nature * * *'' In addition, 
the Department has determined that none of the extraordinary 
circumstances listed in 43 CFR 46.215 applies to this rule.
    The rule is an administrative and procedural rule that revises 
OHA's procedural regulations governing appeals and adds regulations 
governing consolidation of appeals, requests for extensions of time, 
motions, and intervention. Therefore, given the categorical exclusion, 
neither an environmental assessment nor an environmental impact 
statement under NEPA is required.
    L. Information Quality Act. In developing this rule, we did not 
conduct or use a study, experiment, or survey requiring peer review 
under the Information Quality Act, Pub. Law 106-554.
    M. Effects on the Energy Supply (E.O. 13211). This rule is not a 
significant energy action under the definition in Executive Order 
13211. A Statement of Energy Effects is not required. Revising OHA's 
procedural regulations governing appeals and adding regulations 
governing consolidation of appeals, requests for extensions of time, 
motions, and intervention are not likely to have a significant adverse 
effect on the supply, distribution, or use of energy.

List of Subjects

30 CFR Part 301

    Administrative practice and procedure, Mines, Surface mining.

43 CFR Part 4

    Administrative practice and procedure, Mines, Public lands, Surface 
mining.

43 CFR Part 10

    Administrative practice and procedure, Hawaiian Natives, Historic 
preservation, Indians--Claims, Museums, Reporting and recordkeeping 
requirements.

0
For the reasons set forth in the preamble, the Office of the Secretary 
amends 30 CFR Chapter III and 43 CFR parts 4 and 10 as set forth below:

Title 30--Mineral Resources

Chapter III--[REMOVED]

0
Under the authority of 30 U.S.C. 1211, 30 CFR Chapter III, consisting 
of part 301, is removed.

Title 43--Public Lands: Interior

43 CFR Subtitle A--Office of the Secretary of the Interior

PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES

0
2. The authority citation for part 4 continues to read as follows:

    Authority: 5 U.S.C. 301; 43 U.S.C. 1201.

Subpart A--General; Office of Hearings and Appeals

0
3. In Sec.  4.1, revise the introductory text and paragraph (a), remove 
paragraph (b)(1), redesignate paragraphs (b)(2) through (b)(4) as 
paragraphs (b)(1) through (b)(3), and revise the first sentence of 
newly redesignated paragraph (b)(1)(ii) to read as follows:

Sec.  4.1  Scope of authority; applicable regulations.

    The Office of Hearings and Appeals, headed by a Director, is an 
authorized representative of the Secretary for the purpose of hearing, 
considering, and deciding matters within the jurisdiction of the 
Department involving hearings, appeals, and other review functions of 
the Secretary. The Office may hear, consider, and decide those matters 
as fully and finally as might the Secretary, subject to any limitations 
on its authority imposed by the Secretary. Principal components of the 
Office include:
    (a) One or more Hearings Divisions consisting of administrative law 
judges who are authorized to conduct hearings in cases required by law 
to be conducted under 5 U.S.C. 554, and other deciding officials who 
are authorized to conduct hearings in cases arising under statutes and 
regulations of the Department; and
    (b) * * *
    (1) * * *
    (ii) Decisions and orders of administrative law judges and Indian 
probate judges in Indian probate matters, other than those involving 
estates of the Five Civilized Tribes of Indians. * * *
* * * * *

Sec.  4.21  [Amended]

0
4. In Sec.  4.21, amend paragraph (b)(3) by adding the word ``and'' 
after the semicolon at the end of the paragraph and amend paragraph 
(b)(4) by removing the semicolon at the end of the paragraph and adding 
a period in its place.

Subpart B--General Rules Relating to Practice and Procedure

0
5. Revise Sec.  4.22(a) to read as follows:

Sec.  4.22  Documents.

    (a) Filing of documents. A document is filed in the office where 
the filing is required only when the document is received in that 
office during its regular business hours and by a person authorized to 
receive it. A document received after the office's regular business 
hours is considered filed on the next business day.
* * * * *

Subpart C--[Removed and Reserved]

0
6. Subpart C, consisting of Sec. Sec.  4.100 through 4.128 and Appendix 
I, is removed and reserved.

Subpart E--Special Rules Applicable to Public Land Hearings and 
Appeals

0
7. Revise the authority citation for part 4, subpart E, to read as 
follows:

    Authority:  Sections 4.470 to 4.480 are also issued under 
authority of 43 U.S.C. 315a.

0
8. Revise Sec.  4.400 to read as follows:

Sec.  4.400  Definitions.

    As used in this subpart:
    Administrative law judge means an administrative law judge in the 
Office of Hearings and Appeals, appointed under 5 U.S.C. 3105.
    BIA means the Bureau of Indian Affairs.

[[Page 64664]]

    BLM means the Bureau of Land Management.
    Board means the Interior Board of Land Appeals in the Office of 
Hearings and Appeals. The address of the Board is 801 N. Quincy Street, 
Suite 300, Arlington, Virginia 22203. The telephone number is 703-235-
3750, and the facsimile number is 703-235-8349.
    BOEMRE means the Bureau of Ocean Energy Management, Regulation and 
Enforcement.
    Bureau or Office means BIA, BLM, BOEMRE, ONRR, the Deputy Assistant 
Secretary--Natural Resources Revenue, or any successor organization, as 
appropriate.
    Last address of record means the address in a person's most recent 
filing in an appeal or, if there has not been any filing, the person's 
address as provided in the Bureau decision under appeal.
    ONRR means the Office of Natural Resources Revenue.
    Office or officer includes ``administrative law judge'' or 
``Board'' where the context so requires.
    Party includes a party's representative(s) where the context so 
requires.
    Secretary means the Secretary of the Interior or an authorized 
representative.

0
9. In Sec.  4.401, revise paragraph (c) and add paragraph (d) to read 
as follows:

Sec.  4.401  Documents.

* * * * *
    (c) Service of documents. (1) A party that files any document under 
this subpart must serve a copy of it concurrently as follows:
    (i) On the appropriate official of the Office of the Solicitor 
under Sec.  4.413(c) and (d);
    (ii) For a notice of appeal and statement of reasons, on each 
person named in the decision under appeal; and
    (iii) For all other documents, on each party to the appeal 
(including intervenors).
    (2) Service on a person or party known to be represented by counsel 
or other designated representative must be made on the representative.
    (3) Service must be made at the last address of record of the 
person or party (if unrepresented) or the representative, unless the 
person, party, or representative has notified the serving party of a 
subsequent change of address.
    (4) Service may be made as shown in the following table:

------------------------------------------------------------------------
                                                     Service may be made
              If the document is * * *                     by * * *
------------------------------------------------------------------------
(i) A notice of appeal.............................  (A) Personal
                                                      delivery;
                                                     (B) Registered or
                                                      certified mail,
                                                      return receipt
                                                      requested;
                                                     (C) Delivery
                                                      service, delivery
                                                      receipt requested,
                                                      if the last
                                                      address of record
                                                      is not a post
                                                      office box; or
                                                     (D) Electronic
                                                      means, such as
                                                      electronic mail or
                                                      facsimile, if the
                                                      person to be
                                                      served has
                                                      previously
                                                      consented to that
                                                      means in writing.
(ii) Not a notice of appeal........................  (A) Personal
                                                      delivery;
                                                     (B) Mail;
                                                     (C) Delivery
                                                      service, if the
                                                      last address of
                                                      record is not a
                                                      post office box;
                                                      or
                                                     (D) Electronic
                                                      means, such as
                                                      electronic mail or
                                                      facsimile, if the
                                                      person to be
                                                      served has
                                                      previously
                                                      consented to that
                                                      means in writing.
------------------------------------------------------------------------

     (5) At the conclusion of any document that a party must serve 
under the regulations in this subpart, the party must sign a written 
statement that:
    (i) Certifies that service has been or will be made in accordance 
with the applicable rules; and
    (ii) Specifies the date and manner of service.
    (6) Service that complies with paragraphs (c)(2) through (4) of 
this section is complete as shown in the following table:

------------------------------------------------------------------------
                                                     Service is complete
            If service is made by * * *               when the document
                                                           is * * *
------------------------------------------------------------------------
(i) Personal delivery..............................  Delivered to the
                                                      party.
(ii) Mail or delivery service......................  Delivered to the
                                                      party.
(iii) Electronic means.............................  Transmitted to the
                                                      party, unless the
                                                      serving party
                                                      learns that it did
                                                      not reach the
                                                      party to be
                                                      served.
------------------------------------------------------------------------

     (7) In the absence of evidence to the contrary, delivery under 
paragraph (c)(6)(ii) of this section is deemed to take place 5 business 
days after the document was sent. A document is considered sent when it 
is given to the U.S. Postal Service (or deposited in one of its 
mailboxes), properly addressed and with proper postage affixed, or when 
it is given to a delivery service (or deposited in one of its 
receptacles), properly addressed and with the delivery cost prepaid.
    (d) Document format. (1) The format requirements in paragraph 
(d)(2) of this section apply to any pleading, motion, brief, or other 
document filed in a case under this subpart, other than an exhibit or 
attachment or the administrative record.
    (i) An exhibit or attachment must be 8\1/2\ by 11 inches in size 
or, if larger, folded to 8\1/2\ by 11 inches and attached to the 
document.
    (ii) Any document that does not comply with the requirements in 
this paragraph (d) may be rejected.
    (2) A document filed in a case must:
    (i) Be 8\1/2\ by 11 inches in size;
    (ii) Be printed on just one side of the page;
    (iii) Be clearly typewritten, printed, or otherwise reproduced by a 
process that yields legible and permanent copies;
    (iv) Use 11 point font size or larger;
    (v) Be double-spaced except for the case caption, argument 
headings, long quotations, and footnotes, which may be single-spaced;
    (vi) Have margins of at least 1 inch;
    (vii) Be numbered sequentially, starting on the second page; and
    (vii) Be stapled in the upper left-hand corner, if stapled, or 
bound on the left side, if bound.

0
10. Revise Sec.  4.403 to read as follows:

Sec.  4.403  Finality of decision; reconsideration.

    (a) The Board's decision is final agency action and is effective on 
the date it is issued, unless the decision itself provides otherwise.
    (b) The Board may reconsider its decision in extraordinary 
circumstances.

[[Page 64665]]

    (1) A party that wishes to request reconsideration of a Board 
decision must file a motion for reconsideration with the Board within 
60 days after the date of the decision.
    (2) The motion may include a request that the Board stay the 
effectiveness of its decision.
    (3) Any other party to the original appeal may file a response to a 
motion for reconsideration with the Board within 21 days after service 
of the motion, unless the Board orders otherwise.
    (4) A motion for reconsideration will not stay the effectiveness or 
affect the finality of the Board's decision unless so ordered by the 
Board for good cause.
    (5) A party does not need to file a motion for reconsideration in 
order to exhaust its administrative remedies.
    (c) A motion for reconsideration must:
    (1) Specifically describe the extraordinary circumstances that 
warrant reconsideration; and
    (2) Include all arguments and supporting documents.
    (d) Extraordinary circumstances that may warrant granting 
reconsideration include, but are not limited to:
    (1) Error in the Board's interpretation of material facts;
    (2) Recent judicial development;
    (3) Change in Departmental policy; or
    (4) Evidence that was not before the Board at the time the Board's 
decision was issued and that demonstrates error in the decision.
    (e) If the motion cites extraordinary circumstances under paragraph 
(d)(4) of this section, it must explain why the evidence was not 
provided to the Board during the course of the original appeal.
    (f) The Board will not grant a motion for reconsideration that:
    (1) Merely repeats arguments made in the original appeal, except in 
cases of demonstrable error; or
    (2) Seeks relief from the legally binding consequences of a statute 
or regulation.

0
11. Add Sec. Sec.  4.404 through 4.407 to read as follows:

Sec.  4.404  Consolidation.

    If the facts or legal issues in two or more appeals pending before 
the Board are the same or similar, the Board may consolidate the 
appeals, either on motion by a party or at the initiative of the Board.

Sec.  4.405  Extensions of time.

    (a) If a document other than a notice of appeal is required to be 
filed or served within a definite time, a party may seek additional 
time by filing with the Board a motion requesting an extension of time.
    (b) A motion requesting an extension must be filed no later than 
the day before the date the document is due, absent compelling 
circumstances. The motion may be filed and served by facsimile. Section 
4.401(a) does not apply to a motion requesting an extension of time.
    (c) Except as provided in paragraph (f) of this section, before 
filing a motion requesting an extension of time, the moving party must 
make reasonable efforts to contact each other party to determine 
whether the party opposes the motion. The moving party must state in 
its motion:
    (1) Whether any party it reached opposes the motion; and
    (2) What steps it took to contact any party it was unable to reach.
    (d) Except as provided in paragraph (f) of this section, the party 
must support its motion requesting an extension of time by showing 
there is good cause to grant it.
    (e) A Board order granting or denying a motion requesting an 
extension will state when the document must be filed. Except as 
provided in paragraph (f) of this section, if the Board does not act on 
a motion before the document is due, the document must be filed no 
later than 15 days after the original due date, unless the Board orders 
otherwise.
    (f) A party seeking additional time to file an answer may have one 
automatic extension, not to exceed 30 days, of the deadline in Sec.  
4.414(a) by filing a motion for such extension under paragraphs (a) and 
(b) of this section.

Sec.  4.406  Intervention; amicus curiae.

    (a) A person who wishes to intervene in an appeal must file a 
motion to intervene within 30 days after the person knew or should have 
known that the decision had been appealed to the Board.
    (b) A motion to intervene must set forth the basis for the proposed 
intervention, including:
    (1) Whether the person had a right to appeal the decision under 
Sec.  4.410 or would be adversely affected if the Board reversed, 
vacated, set aside, or modified the decision; and
    (2) How and when the person learned of the appeal.
    (c) The Board may:
    (1) Grant the motion to intervene;
    (2) Deny the motion to intervene for good cause, e.g., where 
granting it would disadvantage the rights of the existing parties or 
unduly delay adjudication of the appeal; or
    (3) Grant the motion to intervene but limit the person's 
participation in the appeal.
    (d) A person may file a motion at any time to file a brief as an 
amicus curiae.
    (1) The motion must state the person's interest in the appeal and 
how its brief will be relevant to the issues involved.
    (2) The Board may grant or deny the motion in its discretion. The 
Board may also allow a person to file a brief as amicus curiae if it 
denies the person's motion to intervene.
    (e) A person granted full or limited intervenor status is a party 
to the appeal, while an amicus curiae is not. A person granted amicus 
curiae status must serve its brief on the parties to the appeal.

Sec.  4.407  Motions.

    (a) Any motion filed with the Board must provide a concise 
statement of the reasons supporting the motion.
    (b) When a person or party files a motion, other than a motion for 
an extension of time under Sec.  4.405, any party has 15 days after 
service of the motion to file a written response, unless a provision of 
this subpart or the Board by order provides otherwise.
    (c) The Board will rule on any motion as expeditiously as possible.
    (d) The requirements of Sec.  4.401(d) apply to a motion.

0
12. In Sec.  4.410, revise paragraphs (a) introductory text and (c) 
introductory text to read as follows:

Sec.  4.410  Who may appeal.

    (a) Any party to a case who is adversely affected by a decision of 
the Bureau or Office or an administrative law judge has the right to 
appeal to the Board, except:
* * * * *
    (c) Where the Bureau or Office provided an opportunity for 
participation in its decisionmaking process, a party to the case, as 
set forth in paragraph (a) of this section, may raise on appeal only 
those issues:
* * * * *

0
13. In Sec.  4.411, revise paragraphs (a) and (b) and add paragraph (d) 
to read as follows:

Sec.  4.411  Appeal; how taken, mandatory time limit.

    (a) A person who wishes to appeal to the Board must file a notice 
that the person wishes to appeal.
    (1) The notice of appeal must be filed in the office of the officer 
who made the decision (not the Board).
    (2) Except as otherwise provided by law:
    (i) A person served with the decision being appealed must transmit 
the notice of appeal in time for it to be received in the appropriate 
office no later than 30 days after the date of service of the decision; 
and

[[Page 64666]]

    (ii) If a decision is published in the Federal Register, a person 
not served with the decision must transmit the notice of appeal in time 
for it to be received in the appropriate office no later than 30 days 
after the date of publication.
    (b) The notice of appeal must give the serial number or other 
identification of the case. The notice of appeal may include a 
statement of reasons for the appeal, and a statement of standing if 
required by Sec.  4.412(b).
* * * * *
    (d) After receiving a timely notice of appeal, the office of the 
officer who made the decision must promptly forward to the Board:
    (1) The notice of appeal;
    (2) Any statement of reasons, statement of standing, and other 
documents included with the notice of appeal; and
    (3) The complete administrative record compiled during the 
officer's consideration of the matter leading to the decision being 
appealed.

0
14. In Sec.  4.412, revise the section heading and paragraph (a) and 
add paragraphs (d) and (e) to read as follows:

Sec.  4.412  Statement of reasons; statement of standing; reply briefs.

    (a) An appellant must file a statement of reasons for appeal with 
the Board no later than 30 days after the notice of appeal was filed. 
Unless the Board orders otherwise upon motion for good cause shown, the 
text of a statement of reasons may not exceed 30 pages, excluding 
exhibits, declarations, or other attachments.
* * * * *
    (d) The filing of a reply brief is discouraged. However, an 
appellant who wishes to file a reply brief may do so within 15 days 
after service of an answer under Sec.  4.414.
    (1) The reply brief is limited to the issues raised in the answer.
    (2) Unless the Board orders otherwise upon motion for good cause 
shown, the text of a reply brief may not exceed 20 pages, excluding 
exhibits, declarations, or other attachments.
    (e) The requirements of Sec.  4.401(d) apply to a statement of 
reasons and a reply brief.

0
15. Revise Sec. Sec.  4.413 through 4.415 to read as follows:

Sec.  4.413  Service of notice of appeal.

    (a) The appellant must serve a copy of the notice of appeal on each 
person named in the decision from which the appeal is taken and on the 
Office of the Solicitor as identified in paragraphs (c) and (d) of this 
section. Service must be accomplished and certified as prescribed in 
Sec.  4.401(c).
    (b) Failure to serve a notice of appeal will subject the appeal to 
summary dismissal as provided in Sec.  4.402.
    (c) The appellant must serve a copy of the notice of appeal on the 
Office of the Solicitor as shown in the following table.

------------------------------------------------------------------------
If the appeal is taken from a   Then the appellant must serve the notice
      decision of * * *                         on * * *
------------------------------------------------------------------------
(1) ONRR, the Deputy           Regional Solicitor, Rocky Mountain
 Assistant Secretary--Natural   Region, U.S. Department of the Interior,
 Resources Revenue, or BIA      755 Parfet Street, Suite 151, Lakewood,
 concerning royalties.          CO 80215.
(2) BOEMRE...................  Associate Solicitor, Division of Mineral
                                Resources, U.S. Department of the
                                Interior, Washington, DC 20240.
(3) The Director, BLM........  (i) If the decision concerns use and
                                disposition of public lands, including
                                land selections under the Alaska Native
                                Claims Settlement Act, as amended:
                                Associate Solicitor, Division of Land
                                and Water Resources, U.S. Department of
                                the Interior, Washington, DC 20240; or
                               (ii) If the decision concerns use and
                                disposition of mineral resources:
                                Associate Solicitor, Division of Mineral
                                Resources, U.S. Department of the
                                Interior, Washington, DC 20240.
(4) A BLM State Office         The appropriate office identified in
 (including all District,       paragraph (d) of this section.
 Field, and Area Offices
 within that State Office's
 jurisdiction).
(5) An Administrative Law      The persons identified in paragraph (e)
 Judge.                         of this section.
------------------------------------------------------------------------

    (d) This paragraph applies to any appeal taken from a decision of a 
BLM State Office, including all District, Field, and Area Offices 
within that State Office's jurisdiction. The appellant must serve 
documents on the Office of the Solicitor in accordance with the 
following table, unless the decision identifies a different official:

------------------------------------------------------------------------
       BLM state office                     Mailing address
------------------------------------------------------------------------
(1) Alaska...................  Regional Solicitor, Alaska Region, U.S.
                                Department of the Interior, 4230
                                University Drive, Suite 300, Anchorage,
                                AK 99508-4626.
(2) Arizona..................  Field Solicitor, U.S. Department of the
                                Interior, U.S. Courthouse, Suite 404,
                                401 W. Washington St. SPC 44, Phoenix,
                                AZ 85003.
(3) California...............  Regional Solicitor, Pacific Southwest
                                Region, U.S. Department of the Interior,
                                2800 Cottage Way, Room E-1712,
                                Sacramento, CA 95825-1890.
(4) Colorado.................  Regional Solicitor, Rocky Mountain
                                Region, U.S. Department of the Interior,
                                755 Parfet Street, Suite 151, Lakewood,
                                CO 80215.
(5) Eastern States...........   (i) For decisions involving Connecticut,
                                Delaware, Illinois, Indiana, Iowa,
                                Maine, Maryland, Massachusetts,
                                Michigan, Minnesota, New Hampshire, New
                                Jersey, New York, Ohio, Pennsylvania,
                                Rhode Island, Vermont, Virginia, West
                                Virginia, or Wisconsin: Regional
                                Solicitor, Northeast Region, U.S.
                                Department of the Interior, One Gateway
                                Center, Suite 612, Newton, MA 02458.
                               (ii) For decisions involving Alabama,
                                Arkansas, Florida, Georgia, Kentucky,
                                Louisiana, Mississippi, Missouri, North
                                Carolina, South Carolina, or Tennessee:
                                Regional Solicitor, Southeast Region,
                                U.S. Department of the Interior, 75
                                Spring Street, SW., Suite 304, Atlanta,
                                Georgia 30303.
(6) Idaho....................  Field Solicitor, U.S. Department of the
                                Interior, University Plaza, 960 Broadway
                                Avenue, Suite 400, Boise, ID 83706.

[[Page 64667]]

(7) Montana (covers the         (i) Deliveries by U.S. Mail: Field
 states of Montana, North       Solicitor, U.S. Department of the
 Dakota, and South Dakota).     Interior, P.O. Box 31394, Billings, MT
                                59107-1394.
                               (ii) All other deliveries: Field
                                Solicitor, U.S. Department of the
                                Interior, 316 North 26th Street, Room
                                3005, Billings, MT 59101.
(8) Nevada...................  Regional Solicitor, Pacific Southwest
                                Region, U.S. Department of the Interior,
                                2800 Cottage Way, Room E-1712,
                                Sacramento, CA 95825-1890.
(9) New Mexico (covers the     Regional Solicitor, Southwest Region,
 states of New Mexico,          U.S. Department of the Interior, 505
 Kansas, Oklahoma, and Texas).  Marquette Ave., NW., Suite 1800,
                                Albuquerque, NM 87102.
(10) Oregon (covers the        Regional Solicitor, Pacific Northwest
 states of Oregon and           Region, U.S. Department of the Interior,
 Washington).                   805 SW. Broadway, Suite 600, Portland,
                                OR 97205.
(11) Utah....................  Regional Solicitor, Intermountain Region,
                                U.S. Department of the Interior, 6201
                                Federal Building, 125 South State
                                Street, Salt Lake City, UT 84138-1180.
(12) Wyoming (covers the       Regional Solicitor, Rocky Mountain
 states of Wyoming and          Region, U.S. Department of the Interior,
 Nebraska).                     755 Parfet Street, Suite 151, Lakewood,
                                CO 80215.
------------------------------------------------------------------------

     (e) This paragraph applies to any appeal taken from a decision of 
an administrative law judge.
    (1) Except as provided in paragraph (e)(2) of this section, the 
appellant must serve either:
    (i) The attorney from the Office of the Solicitor who represented 
the Bureau or Office at the hearing; or
    (ii) If there was no hearing, the attorney who was served with a 
copy of the decision by the administrative law judge.
    (2) If the decision involved a mining claim on national forest 
land, the appellant must serve either:
    (i) The attorney from the Office of General Counsel, U.S. 
Department of Agriculture, who represented the U.S. Forest Service at 
the hearing; or
    (ii) If there was no hearing, the attorney who was served with a 
copy of the decision by the administrative law judge.
    (f) Parties must serve the Office of the Solicitor as required by 
this section until a particular attorney of the Office of the Solicitor 
files and serves a Notice of Appearance or Substitution of Counsel. 
Thereafter, parties must serve the Office of the Solicitor as indicated 
by the Notice of Appearance or Substitution of Counsel.
    (g) The appellant must certify service as provided in Sec.  
4.401(c)(5).

Sec.  4.414  Answers.

    (a) Any person served with a notice of appeal who wishes to 
participate in the appeal must file an answer or appropriate motion 
with the Board within 30 days after service of the statement of reasons 
for appeal. The answer must respond to the statement of reasons for 
appeal.
    (b) Unless the Board orders otherwise upon motion for good cause 
shown:
    (1) The text of the answer or motion may not exceed 30 pages, 
excluding exhibits, declarations, or other attachments; and
    (2) The party may not file any further pleading.
    (c) Failure to file an answer or motion will not result in a 
default. If an answer or motion is filed or served after the time 
required, the Board may disregard it in deciding the appeal, unless the 
delay in filing is waived as provided in Sec.  4.401(a).
    (d) The requirements of Sec.  4.401(d) apply to an answer or 
motion.

Sec.  4.415  Motion for a hearing on an appeal involving questions of 
fact.

    (a) Any party may file a motion that the Board refer a case to an 
administrative law judge for a hearing. The motion must state:
    (1) What specific issues of material fact require a hearing;
    (2) What evidence concerning these issues must be presented by oral 
testimony, or be subject to cross-examination;
    (3) What witnesses need to be examined; and
    (4) What documentary evidence requires explanation, if any.
    (b) In response to a motion under paragraph (a) of this section or 
on its own initiative, the Board may order a hearing if there are:
    (1) Any issues of material fact which, if proved, would alter the 
disposition of the appeal; or
    (2) Significant factual or legal issues remaining to be decided, 
and the record without a hearing would be insufficient for resolving 
them.
    (c) If the Board orders a hearing, it must:
    (1) Specify the issues of fact upon which the hearing is to be 
held; and
    (2) Request the administrative law judge to issue:
    (i) Proposed findings of fact on the issues presented at the 
hearing;
    (ii) A recommended decision that includes findings of fact and 
conclusions of law; or
    (iii) A decision that will be final for the Department unless a 
notice of appeal is filed in accordance with Sec.  4.411.
    (d) If the Board orders a hearing, it may do one or more of the 
following:
    (1) Suspend the effectiveness of the decision under review pending 
a final Departmental decision on the appeal if it finds good cause to 
do so;
    (2) Authorize the administrative law judge to specify additional 
issues; or
    (3) Authorize the parties to agree to additional issues that are 
material, with the approval of the administrative law judge.
    (e) The hearing will be conducted under Sec. Sec.  4.430 to 4.438 
and the general rules in subpart B of this part. Unless the Board 
orders otherwise, the administrative law judge may consider other 
relevant issues and evidence identified after referral of the case for 
a hearing.

0
16. Revise Sec.  4.421 to read as follows:

Sec.  4.421  Definitions.

    In addition to the definitions in Sec.  4.400, as used in this 
subpart:
    Director means the Director of BLM or a BLM Deputy Director or 
Assistant Director.
    Manager means the BLM official with direct jurisdiction over the 
public lands that are pertinent to the decision or contest.
    Person named in the decision means any of the following persons 
identified in a final BLM grazing decision: An affected applicant, 
permittee, lessee, or agent or lienholder of record, or an interested 
public as defined in Sec.  4100.0-5 of this title.
    State Director means the supervising BLM officer for the State in 
which a particular range lies, or an authorized representative.

0
17. In Sec.  4.422, revise paragraphs (c) and (d) to read as follows:

Sec.  4.422  Documents.

* * * * *

[[Page 64668]]

    (c) Service of documents. (1) A party that files any document under 
this subpart must serve a copy of it concurrently as follows:
    (i) On the appropriate official of the Office of the Solicitor 
under Sec.  4.413(c) and (d);
    (ii) For a notice of appeal and statement of reasons, on each 
person named in the decision under appeal; and
    (iii) For all other documents, on each party to the appeal.
    (2) Service on a party known to be represented by counsel or other 
designated representative must be made on the representative.
    (3) Service must be made at the last address of record of the party 
(if unrepresented) or the representative, unless the party or 
representative has notified the serving party of a subsequent change of 
address.
    (4) Service may be made as shown in the following table:

------------------------------------------------------------------------
   If the document is * * *           Service may be made by * * *
------------------------------------------------------------------------
(i) An appeal under Sec.       (A) Personal delivery;
 4.470.
                               (B) Registered or certified mail, return
                                receipt requested;
                               (C) Delivery service, delivery receipt
                                requested, if the last address of record
                                is not a post office box; or
                               (D) Electronic means, such as electronic
                                mail or facsimile, if the person to be
                                served has previously consented to that
                                means of service in writing.
(ii) A complaint under Sec.    (A) Any of the methods specified in
 4.450-4 or 4.451-2.            paragraph (c)(4)(i) of this paragraph;
                                or
                               (B) Publication as specified in Sec.
                                4.450-5.
(iii) Neither an appeal nor a  (A) Personal delivery;
 complaint.
                               (B) Mail;
                               (C) Delivery service, if the last address
                                of record is not a post office box; or
                               (D) Electronic means, such as electronic
                                mail or facsimile, if the person to be
                                served has consented to that means in
                                writing.
------------------------------------------------------------------------

     (5) At the conclusion of any document that a party must serve 
under the regulations in this subpart, the party must sign a written 
statement that:
    (i) Certifies that service has been or will be made in accordance 
with the applicable rules; and
    (ii) Specifies the date and manner of service.
    (6) Service that complies with paragraphs (c)(2) through (4) of 
this section is complete as shown in the following table:

------------------------------------------------------------------------
 If service is made by * * *         Service is complete when * * *
------------------------------------------------------------------------
(i) Personal delivery........  The document is delivered to the party.
(ii) Mail or delivery service  The document is delivered to the party.
(iii) Electronic means.......  The document is transmitted to the party,
                                unless the serving party learns that it
                                did not reach the party to be served.
(iv) Publication.............  The final notice is published under Sec.
                                 4.450-5(b)(3).
------------------------------------------------------------------------

     (7) In the absence of evidence to the contrary, delivery under 
paragraph (c)(6)(ii) of this section is deemed to take place 5 business 
days after the document was sent.
    (d) The manager or administrative law judge, as the case may be, 
may extend the time for filing or serving any document in a contest, 
other than a notice of appeal under Sec.  4.452-9.

Sec. Sec.  4.430 through 4.432  [Amended]

0
18. In Sec. Sec.  4.430 through 4.432 and 4.436, remove the reference 
``Bureau'' and add in its place the reference ``Bureau or Office'' 
wherever it appears.

0
19. Revise Sec. Sec.  4.433 and 4.434 to read as follows:

Sec.  4.433  Authority of the administrative law judge.

    (a) The administrative law judge has general authority to conduct 
the hearing in an orderly and judicial manner, including authority to:
    (1) Administer oaths;
    (2) Call and question witnesses;
    (3) Subpoena witnesses as specified in paragraph (b) of this 
section;
    (4) Issue findings and decisions as specified in paragraph (c) of 
this section; and
    (5) Take any other actions that the Board may prescribe in 
referring the case for hearing.
    (b) The administrative law judge has authority to subpoena 
witnesses and to take and cause depositions to be taken for the purpose 
of taking testimony but not for discovery. This authority must be 
exercised in accordance with the Act of January 31, 1903 (32 Stat. 790; 
43 U.S.C. 102 through 106).
    (c) The administrative law judge has authority to issue any of the 
following, as specified by the Board under Sec.  4.415(c)(2):
    (1) Proposed findings of fact on the issues presented at the 
hearing;
    (2) A recommended decision that includes findings of fact and 
conclusions of law; or
    (3) A decision that will be final for the Department unless a 
notice of appeal is filed in accordance with Sec.  4.411 within 30 days 
of receipt of the decision.
    (d) The issuance of subpoenas, the attendance of witnesses, and the 
taking of depositions are governed by Sec. Sec.  4.423 and 4.26.

Sec.  4.434  Conduct of hearing.

    (a) The administrative law judge may seek to obtain stipulations as 
to material facts.
    (b) Unless the administrative law judge directs otherwise:
    (1) The appellant will first present its evidence on the facts at 
issue; and
    (2) The other parties and the Bureau or Office will then present 
their evidence on such issues.

Sec.  4.436  [Amended]

0
20. In Sec.  4.436, remove the reference ``Bureau'' and add in its 
place the reference ``Bureau or Office'' wherever it appears.

0
21. Revise Sec.  4.437 to read as follows:

Sec.  4.437  Copies of transcript.

    Each party must pay for any copies of the transcript that the party 
requests.

[[Page 64669]]

The Bureau or Office will file the original transcript with the case 
record.

Sec.  4.438  [Removed]

0
22. Remove Sec.  4.438.

Sec.  4.439  [Redesignated as Sec.  4.438]

0
23. Redesignate Sec.  4.439 as Sec.  4.438 and revise it to read as 
follows:

Sec.  4.438  Action by administrative law judge.

    (a) Upon completion of the hearing and the incorporation of the 
transcript in the record, the administrative law judge will issue and 
serve on the parties, as specified by the Board under Sec.  
4.415(c)(2):
    (1) Proposed findings of fact on the issues presented at the 
hearing;
    (2) A recommended decision that includes findings of fact and 
conclusions of law and that advises the parties of their right to file 
exceptions under paragraph (c) of this section; or
    (3) A decision that will be final for the Department unless a 
notice of appeal is filed in accordance with Sec.  4.411.
    (b) The administrative law judge will promptly send to the Board 
the record and:
    (1) The proposed findings;
    (2) The recommended decision; or
    (3) The final decision if a timely notice of appeal is filed.
    (c) The parties will have 30 days from service of proposed findings 
or a recommended decision to file exceptions with the Board.

0
24. In Sec.  4.452-8, revise the section heading and remove paragraph 
(c).
    The revision reads as follows:

Sec.  4.452-8  Findings and conclusions; decision by administrative law 
judge.

* * * * *

0
25. Revise Sec.  4.476(d) to read as follows:

Sec.  4.476  Conduct of hearings; reporter's fees; transcript.

* * * * *
    (d) The reporter's fees will be borne by the Government. Each party 
must pay for any copies of the transcript that the party requests. The 
Government will file the original transcript with the case record.

0
26. Revise Sec.  4.477 to read as follows:

Sec.  4.477  Findings and conclusions; decision by administrative law 
judge.

    As promptly as possible after the time allowed for presenting 
proposed findings and conclusions, the administrative law judge will 
make findings of fact and conclusions of law, unless waiver has been 
stipulated, and will render a decision upon all issues of material fact 
and law presented on the record. In doing so, he or she may adopt the 
findings of fact and conclusions of law proposed by one or more of the 
parties if they are correct. The reasons for the findings, conclusions, 
and decision made will be stated, and along with the findings, 
conclusions, and decision, will become a part of the record in any 
further appeal. A copy of the decision must be sent by certified mail 
to all the parties.

0
27. Revise Sec.  4.478(a) to read as follows:

Sec.  4.478  Appeals to the Board of Land Appeals; judicial review.

    (a) Any person who has a right of appeal under Sec.  4.410 or other 
applicable regulation may appeal to the Board from an order of an 
administrative law judge granting or denying a petition for a stay in 
accordance with Sec.  4.411.
* * * * *

0
28. The authority citation for part 4, subpart L, continues to read as 
follows:

    Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 
1275, 1293; 5 U.S.C. 301.

0
29. Add Sec.  4.1108(g) to read as follows:

Sec.  4.1108  Form of documents.

* * * * *
    (g) Documents filed under this subpart must conform to the 
requirements of Sec.  4.401(d).

0
30. Revise Sec.  4.1109(a)(2)(i) to read as follows:

Sec.  4.1109  Service.

    (a) * * *
    (2) * * *
    (i) For mining operations in Alabama, Arkansas, Georgia, Illinois, 
Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, 
North Carolina, Oklahoma, Tennessee, Texas, and Virginia: Field 
Solicitor, U.S. Department of the Interior, 800 S. Gay Street, Suite 
800, Knoxville, Tennessee 37929; Telephone: (865) 545-4294; FAX: (865) 
545-4314.
* * * * *

0
31. Add Sec.  4.1117 to read as follows:

Sec.  4.1117  Reconsideration.

    A party may file a motion for reconsideration of any decision of 
the Board under this subpart within 60 days after the date of the 
decision. The provisions of Sec.  4.403 apply to a motion filed under 
this paragraph.

0
32. Revise Sec.  4.1270(f) to read as follows:

Sec.  4.1270  Petition for discretionary review of a proposed civil 
penalty.

* * * * *
    (f) If the petition is granted, the rules in Sec. Sec.  4.1273 
through 4.1275 are applicable, and the Board must use the point system 
and conversion table contained in 30 CFR part 723 or 845 in 
recalculating assessments. However, the Board has the same authority to 
waive the civil penalty formula as that granted to administrative law 
judges in Sec.  4.1157(b)(1). If the petition is denied, the decision 
of the administrative law judge is final for the Department, subject to 
Sec.  4.5.

Sec.  4.1276  [Removed]

0
33. Remove Sec.  4.1276.

0
34. Revise Sec.  4.1286 to read as follows:

Sec.  4.1286  Motion for a hearing on an appeal involving issues of 
fact.

    (a) Any party may file a motion that the Board refer a case to an 
administrative law judge for a hearing. The motion must state:
    (1) What specific issues of material fact require a hearing;
    (2) What evidence concerning these issues must be presented by oral 
testimony, or be subject to cross-examination;
    (3) What witnesses need to be examined; and
    (4) What documentary evidence requires explanation, if any.
    (b) In response to a motion under paragraph (a) of this section or 
on its own initiative, the Board may order a hearing if there are:
    (1) Any issues of material fact which, if proved, would alter the 
disposition of the appeal; or
    (2) Significant factual or legal issues remaining to be decided and 
the record without a hearing would be insufficient for resolving them.
    (c) If the Board orders a hearing, it must:
    (1) Specify the issues of fact upon which the hearing is to be 
held; and
    (2) Request the administrative law judge to issue:
    (i) Proposed findings of fact on the issues presented at the 
hearing;
    (ii) A recommended decision that includes findings of fact and 
conclusions of law; or
    (iii) A decision that will be final for the Department unless a 
notice of appeal is filed in accordance with Sec.  4.411.
    (d) If the Board orders a hearing, it may do one or more of the 
following:
    (1) Suspend the effectiveness of the decision under review pending 
a final Departmental decision on the appeal if it finds good cause to 
do so;

[[Page 64670]]

    (2) Authorize the administrative law judge to specify additional 
issues; or
    (3) Authorize the parties to agree to additional issues that are 
material, with the approval of the administrative law judge.
    (e) The hearing will be conducted under Sec. Sec.  4.1100, 4.1102 
through 4.1115, 4.1121 through 4.1127, and 4.1130 through 4.1141. 
Unless the Board orders otherwise, the administrative law judge may 
consider other relevant issues and evidence identified after referral 
of the case for a hearing.

0
35. Add Sec.  4.1287 to read as follows:

Sec.  4.1287  Action by administrative law judge.

    (a) Upon completion of the hearing and the incorporation of the 
transcript in the record, the administrative law judge will issue and 
serve on the parties, as specified by the Board under Sec.  
4.415(c)(2):
    (1) Proposed findings of fact on the issues presented at the 
hearing;
    (2) A recommended decision that includes findings of fact and 
conclusions of law and that advises the parties of their right to file 
exceptions under paragraph (c) of this section; or
    (3) A decision that will be final for the Department unless a 
notice of appeal is filed in accordance with Sec.  4.411.
    (b) The administrative law judge will promptly send to the Board 
the record and:
    (1) The proposed findings;
    (2) The recommended decision; or
    (3) The final decision if a timely notice of appeal is filed.
    (c) The parties will have 30 days from service of the recommended 
decision to file exceptions with the Board.

0
36. In Sec.  4.1392, revise paragraphs (a) and (d) and add paragraph 
(e) to read as follows:

Sec.  4.1392  Contents of request; amendment of requests; responses.

    (a) The request for review:
    (1) Must include:
    (i) A clear statement of the reasons for appeal;
    (ii) A request for specific relief;
    (iii) A copy of the decision appealed from; and
    (iv) Any other relevant information; and
    (2) May not exceed 30 pages, excluding exhibits, declarations, and 
other attachments, unless the Board orders otherwise upon motion for 
good cause shown.
* * * * *
    (d) An interested party may file an answer, motion, or statement as 
described in paragraph (b) of this section in response to an amended 
request for review as follows:
    (1) If the request for review is amended as a matter of right, the 
answer, motion, or statement must be filed within the longer of the 
following periods:
    (i) The time remaining for response to the original request for 
review; or
    (ii) Ten days after receipt of the amended request for review; and
    (2) If the Board grants a motion to amend a request for review, the 
answer, motion, or statement must be filed within the time set by the 
Board in its order granting the motion.
    (e) The filing of a reply is discouraged. However, a person who 
filed a request for review may file a reply that:
    (1) Is limited to the issues raised in an answer or motion;
    (2) Does not exceed 20 pages, excluding exhibits, declarations, and 
other attachments, unless the Board orders otherwise upon motion for 
good cause shown; and
    (3) Is filed within:
    (i) Fifteen days after service of the answer or motion under 
paragraph (b) or (d)(1) of this section; or
    (ii) The time set by the Board in its order under paragraph (d)(2) 
of this section.

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION 
REGULATIONS

0
37. The authority citation for part 10 is revised to read as follows:

    Authority:  16 U.S.C. 470dd; 25 U.S.C. 9, 3001 et seq.

Subpart C--Human Remains, Funerary Objects, Sacred Objects, or 
Objects of Cultural Patrimony in Museums and Federal Collections

Sec.  10.12  [Amended]

0
38. In Sec.  10.12:
0
a. In paragraph (j) introductory text, remove the address ``4015 Wilson 
Boulevard, Arlington, VA 22203-1923'' and add in its place the address 
``801 North Quincy Street, Arlington, VA 22203''; and
0
b. In paragraphs (k)(1) and (3), remove the address ``4015 Wilson 
Boulevard, Arlington, VA 22203-1954'' and add in its place the address 
``801 North Quincy Street, Arlington, VA 22203''.

    Dated: October 4, 2010.
Rhea S. Suh,
Assistant Secretary--Policy, Management and Budget.
[FR Doc. 2010-26200 Filed 10-19-10; 8:45 am]
BILLING CODE 4310-79-P
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