[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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