[Federal Register Volume 62, Number 167 (Thursday, August 28, 1997)]
[Proposed Rules]
[Pages 45606-45608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22891]


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DEPARTMENT OF THE INTERIOR

Office of Hearings and Appeals

43 CFR Part 4

RIN 1090-AA63


Department Hearings and Appeals Procedures

AGENCY: Office of Hearings and Appeals, Interior.

ACTION: Proposed rule.

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SUMMARY: The Department of the Interior's Office of Hearings and 
Appeals is proposing to amend its rules to provide that, except as 
otherwise provided by law or other regulation, a decision will be 
stayed, if it is appealed, until there is a dispositive decision on the 
appeal.


[[Page 45607]]


DATES: Comments are due on or before September 29, 1997.

ADDRESSES: Send written comments to Director, Office of Hearings and 
Appeals, U.S. Department of the Interior, 4015 Wilson Blvd., Arlington, 
VA 22203. Comments received will be available for inspection during 
regular business hours (9 a.m. to 5 p.m.) in the Office of the 
Director, Office of Hearings and Appeals, 11th Floor, 4015 Wilson 
Blvd., Arlington, VA. Persons wishing to inspect comments are requested 
to call in advance at 703-235-3810 to make an appointment.

FOR FURTHER INFORMATION CONTACT:
James L. Byrnes, Chief Administrative Judge, Interior Board of Land 
Appeals, Office of Hearings and Appeals, U.S. Department of the 
Interior, 4015 Wilson Blvd., Arlington, VA 22203. Telephone: 703-235-
3750.

SUPPLEMENTARY INFORMATION: The Department of the Interior (Department) 
proposes to amend the regulation contained at 43 CFR 4.21. The 
regulation now provides that, except as provided by law or other 
pertinent regulation, anyone who appeals a decision of an authorized 
officer may request a stay of that decision pending completion of 
administrative review by the Office of Hearings and Appeals (OHA) at 
the time the appeal is filed. If a stay is not requested, the decision 
goes into effect the day after the time in which a party adversely 
affected may file a notice of appeal. If a stay is requested, the 
decision is stayed automatically for an additional 45 days while the 
Director of OHA or an appeals board considers the request for a stay. 
If the Director or board denies the stay or fails to act on the 
petition within these 45 days, the decision goes into effect. Only if 
the stay request is granted is the effect of the decision stayed while 
the appeal is pending.
    The current regulation was adopted on January 19, 1993. 58 FR 4942 
(1993). Prior to that regulation all decisions subject to section 4.21, 
except as provided in other pertinent regulations, were stayed pending 
a decision on appeal unless placed into effect by the Director of OHA 
or an appeals board.
    Based on experience with the 1993 amendment to section 4.21, the 
Department proposes to amend the rule to provide that some decisions 
should be stayed automatically pending a decision on appeal, rather 
than requiring an appellant to file a stay request and requiring an 
appeals board to issue a decision or order on the stay petition. This 
would be particularly appropriate when it is in the interest of both 
the Government and the appellant to have the decision stayed pending 
appeal. For example, in instances where the Department takes an 
enforcement action against a party who has an asserted property 
interest of some kind, such as a lessee or mining claimant, the action 
would best be stayed while an appeal is pending if the lessee's or 
claimant's activity is not endangering health, safety, or the 
environment. Staying such as action would prevent the Department from 
taking an enforcement action which may be reversed on appeal. It also 
would permit an appellant from going directly to district court.
    This proposed regulation would automatically stay decisions when 
appealed unless otherwise provided by law or regulation. The rule would 
also provide a means for parties to petition OHA to place a decision 
stayed by this rule into effect. Finally, the rule would allow 
appellants to petition for a stay of a decision which is in effect 
under a regulation in Title 30 or Title 43 of the Code of Federal 
Regulations unless that regulation specifically provides that section 
4.21 does not apply.
    It has been the Department's experience that the 1993 amendment to 
section 4.21 has caused a significant paperwork burden on OHA. The 
amendment has led to large numbers of stay requests which have had the 
adverse effect of slowing adjudication of other appeals, and of having 
more recent appeals to OHA decided before older pending appeals where 
stays were not requested. This revision of section 4.21 would speed up 
the adjudication of appeals and reduce the paperwork burden on 
appellants and OHA.
    This proposed revision is undertaken in conjunction with an effort 
by the Bureau of Land Management (BLM) to review and consolidate 
various appeal and protest regulations contained in title 43 of the 
CFR. On October 17, 1996, the Department of the Interior published a 
proposed rule to amend 43 CFR Part 1840, 61 FR 54120 (1996), which 
deals with appeals procedures for BLM. If this proposed amendment to 
section 4.21 is published in final, the Department may consider 
amending the proposed rule for 43 CFR Part 1840 by revising section 
1844.11(a)(1) to state that, except as provided in later paragraphs of 
that section, if an adversely affected party appeals a decision, the 
decision will be stayed under the new 43 CFR 4.21. Section 1844.11(b) 
in the proposed rule for part 1840 lists specific regulations that 
would continue to be excepted from the stay-pending-appeal rule 
proposed here.

Executive Order 12866

    This proposed rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866 and, accordingly, is not subject 
to review by the Office of Management and Budget.

National Environmental Policy Act

    The Department has determined that this proposed rule will have no 
significant effect on the quality of the human environment and will not 
involve unresolved conflicts concerning alternative uses of resources.
    This rule is categorically excluded from environmental review under 
section 102(2)(c) of the National Environmental Policy Act on the basis 
of the categorical exclusion of regulations of a procedural nature set 
forth in 516 DM 2, Appendix 1, section 1.10.

Paperwork Reduction Act

    This proposed rule contains no information collection requirements 
subject to OMB approval under 44 U.S.C. 3501 et seq.

Takings Implication Assessment

    This proposed rule does not pose any takings implications requiring 
preparation of a Takings Implication Assessment under Executive Order 
No. 12630 of March 15, 1988.

The Regulatory Flexibility Act

    This proposed rule does not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act because the rule relates to agency procedure. 5 U.S.C. 601 et seq.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not impose an unfunded mandate of $100 
million or more in any given year on local, tribal, and State 
governments in the aggregate, or on the private sector in accordance 
with the Unfunded Mandates Reform Act. 2 U.S.C. 1501 et seq.

Drafting Information

    The primary author of this proposed rule is James L. Byrnes, Chief 
Administrative Judge, Interior Board of Land Appeals, Office of 
Hearings and Appeals, U.S. Department of the Interior.

List of Subjects in 43 CFR Part 4

    Administrative practice and procedure and public lands.

    For the reasons set forth in the preamble, the Department of the 
Interior proposes to amend 43 CFR 4.21 as described below.

[[Page 45608]]

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

    Authority: R.S. 2478, as amended, 43 U.S.C. sec. 1201, unless 
otherwise noted.

    2. Section 4.21 is amended by revising paragraphs (a) and (c) to 
read as follows:


Sec. 4.21  General provisions.

    (a) Effect of decision pending appeal. Except as otherwise provided 
by law or regulation:
    (1) A decision will not be effective during the time in which a 
party adversely affected may file a notice of appeal, and the timely 
filing of a notice of appeal will suspend the effect of the decision 
appealed from pending a decision on the appeal. However, any party or 
agency official may request, in writing, that the Director or an 
Appeals Board place the decision, or any part of it, into effect 
immediately when the public interest requires.
    (2) An appellant may petition for a stay of a decision which is in 
effect under a regulation in this title or Title 30. The stay request 
may be filed during the time in which a notice of appeal may be filed. 
The stay request must be filed with the Director or an Appeals Board in 
accordance with the standards in paragraph (b)(1) and (b)(2) of this 
section.
* * * * *
    (c) Exhaustion of administrative remedies No decision that at the 
time of its issuance is subject to appeal to the Director or an Appeals 
Board will be considered final so as to be agency action subject to 
judicial review under 5 U.S.C. 704, unless it has been made effective 
pending a decision on appeal under paragraph (a)(1) of this section or 
other applicable regulations.

    Dated: August 19, 1997.
Robert J. Lamb,
Acting Assistant Secretary--Policy, Management and Budget.
[FR Doc. 97-22891 Filed 8-27-97; 8:45 am]
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