[Federal Register Volume 68, Number 99 (Thursday, May 22, 2003)]
[Proposed Rules]
[Pages 27955-27960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12504]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 4

RIN 1090-AA84


General Rules Relating to Procedures and Practice; Special Rules 
Applicable to Public Land Hearings and Appeals

AGENCY: Office of the Secretary, Interior.

ACTION: Proposed rule.

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SUMMARY: The Office of Hearings and Appeals (OHA) is proposing to 
revise its existing regulations governing petitions for stays and 
requests to put bureau decisions into immediate effect. The revisions 
would specifically authorize OHA administrative law judges to decide 
such petitions and requests, which arise most frequently in the context 
of appeals from grazing decisions that the Bureau of Land Management 
(BLM) issues. This change would expedite the administrative review 
process by eliminating an inefficient division of authority. The 
revisions would also improve the format and clarity of the regulations.

DATES: You should submit your comments by July 21, 2003.

ADDRESSES: Send comments to: Director, Office of Hearings and Appeals, 
Department of the Interior, 801 N. Quincy Street, Suite 300, Arlington, 
VA 22203.

FOR FURTHER INFORMATION CONTACT: Will A. Irwin, Administrative Judge, 
Interior Board of Land Appeals, U. S. Department of the Interior, 801 
N. Quincy Street, Suite 300, Arlington, VA 22203, Phone: 703-235-3750. 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Information Relay Service (FIRS) at (800) 877-8339, 24 
hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION: 

I. Public Comment Procedures
II. Background
III. Review Under Procedural Statutes and Executive Orders

I. Public Comment Procedures

A. How Do I Comment on the Proposed Rule?

    You may submit your comments by mailing or delivering them to 
Director, Office of Hearings and Appeals, Department of the Interior, 
801 N. Quincy Street, Suite 300, Arlington, VA 22203, Attn: RIN 1090-
AA84.
    Please make your comments on the proposed rule as specific as 
possible, confine them to issues pertinent to the proposed rule, and 
explain the reason for any changes you recommend. Where possible, your 
comments should refer to the specific section or paragraph of the 
proposal that you are addressing.
    The Department of the Interior will not necessarily consider or 
include in the Administrative Record for the final rule comments that 
we receive after the close of the comment period (see DATES) or 
comments delivered to an address other than that listed above (see 
ADDRESSES).

B. How Do I Review Comments Submitted by Others?

    Comments, including names and street addresses of respondents, will 
be available for public review at the address listed under ADDRESSES 
during regular business hours (9 a.m. to 5 p.m.), Monday through 
Friday, except holidays.
    Individual respondents may request confidentiality, which we will 
honor to the extent allowable by law. If you wish to withhold your name 
or address, except for the city or town, you must state this 
prominently at the beginning of your comment. We will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.

II. Background

    The existing regulations governing hearings and appeals of BLM 
grazing decisions allocate responsibility for deciding petitions for a 
stay of such decisions to the Interior Board of Land Appeals (IBLA) and 
the Director, OHA. Responsibility for conducting the hearing, ruling on 
other motions, and

[[Page 27956]]

making the initial decision on the appeal, however, rests with 
administrative law judges (ALJs) in the Hearings Division, OHA.
    When an appeal of a grazing decision is filed with BLM, BLM 
currently forwards the decision and accompanying record to the Hearings 
Division office in Salt Lake City, Utah. If a petition for a stay of 
the decision accompanies the notice of appeal, the Hearings Division 
must forward the record to IBLA in Arlington, Virginia. Under 43 CFR 
4.21(b)(4), IBLA (or the Director) has 45 days to decide whether or not 
to grant the petition; after IBLA decides, it returns the record to the 
Hearings Division in Salt Lake City. In the meantime, the ALJ to whom 
the case is assigned normally waits to schedule the hearing and to rule 
on any motions concerning the appeal, such as a motion to intervene in 
the appeal or a motion by BLM to dismiss the appeal. IBLA does not have 
authority to rule on such motions. The same situation applies, but less 
frequently, to requests to place grazing decisions into immediate 
effect under 43 CFR 4.21(a)(1) if BLM has not done so under 43 CFR 
4160.3(f).
    This division of responsibility results in delays and 
inefficiencies that would be alleviated if the ALJs also had authority 
to rule on petitions for a stay and requests to place grazing decisions 
into immediate effect. For example, IBLA sometimes finds during its 
consideration of a stay petition that a motion to dismiss should be 
granted. However, under the existing regulations, IBLA cannot grant the 
motion but must proceed to decide the stay petition and then refer the 
case, including the motion to dismiss, back to the Hearings Division. 
If the ALJ had authority to rule on petitions for a stay and requests 
to place decisions into immediate effect, he or she could consider any 
other pending motions at the same time and, where appropriate, grant a 
motion to dismiss without having to rule on the petition or request. 
Moreover, under the existing regulations, IBLA must thoroughly review 
the record in deciding whether to grant a stay petition, and the ALJ 
must then do the same in deciding the merits of the case. This is an 
unnecessary duplication of effort and takes time away from IBLA's 
consideration of other appeals.
    By contrast, the regulations governing hearings under the Surface 
Mining Control and Reclamation Act of 1977 authorize an ALJ to consider 
whether to grant a motion for temporary relief (which is comparable to 
a petition for a stay) and also to decide the merits. IBLA gets 
involved in temporary relief cases only if a party appeals an ALJ's 
decision. See, e.g., 43 CFR 4.1267, 4.1367(f), 4.1376(h). OHA has found 
these procedures workable and cost-effective. ALJs are also authorized 
to grant stays of decisions issued under BLM's onshore oil and gas 
operations regulations, see 43 CFR 3165.3(e), 3165.4(c), and of civil 
penalties issued by the Minerals Management Service, see 30 CFR 
241.55(b).
    Therefore, OHA proposes amendments to the existing regulations to 
provide the authority to ALJs to rule on petitions for a stay of BLM 
grazing decisions and requests to place these decisions into immediate 
effect. We also propose that any party may appeal to the IBLA an order 
of an ALJ granting or denying (1) a petition for a stay, or (2) a 
request to place a decision into immediate effect. Any party (other 
than BLM) wishing to appeal an order of an ALJ denying a petition for a 
stay or granting a request to place a decision into immediate effect 
may seek judicial review instead of appealing to IBLA.
    The proposed rule would revise both 43 CFR 4.21, which applies to 
OHA proceedings generally, and 43 CFR 4.470-4.478, which apply to 
appeals from BLM grazing decisions. Currently OHA does not encounter 
the inefficient division of responsibility described above outside the 
context of grazing appeals. However, by revising Sec.  4.21, we would 
eliminate the same inefficiency should it arise in some other context 
where the merits of the appeal were pending before the Hearings 
Division but, under current regulations, a stay petition must be 
decided by IBLA. In any case in which the ALJ has jurisdiction of the 
merits, we believe the ALJ should be authorized to decide a stay 
petition or a request to place a bureau decision in immediate effect. 
By revising Sec.  4.21 as well as Sec.  4.477, we would be keeping the 
two sets of provisions consistent.
    OHA is also proposing to revise the existing regulatory language to 
make it clearer and to conform to Departmental requirements for writing 
rules in plain language. See 318 DM 4.2. We propose to do so by 
defining terms, creating more sections, reorganizing the provisions to 
put the main ideas first, and shortening sentences. In 43 CFR part 4, 
subpart B, we propose to revise existing Sec.  4.21, to add new 
Sec. Sec.  4.22 through 4.26, and to redesignate existing Sec. Sec.  
4.22 through 4.31 as Sec. Sec.  4.27 through 4.36, respectively. 
Similarly, in 43 CFR part 4, subpart E, we would revise existing Sec.  
4.470, add new Sec. Sec.  4.471 and 4.472, and redesignate existing 
Sec. Sec.  4.471 through 4.478 as Sec. Sec.  4.473 through 4.480, 
respectively. We would add paragraph (c) to newly redesignated Sec.  
4.474, and revise newly redesignated Sec. Sec.  4.478 and 4.479. If 
this proposed rule becomes final, BLM would have to amend its 
regulations that refer to existing Sec. Sec.  4.21 through 4.31 or 
Sec. Sec.  4.470 through 4.478 to update the cross-references.

III. Review Under Procedural Statutes and Executive Orders

A. Regulatory Planning and Review (E.O. 12688)

    In accordance with the criteria in Executive Order 12866, we find 
that this document is not a significant rule. The Office of Management 
and Budget has not reviewed this rule under Executive Order 12866.
    1. This rule would not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, 
competition, jobs, the environment, public health or safety, or other 
units of government. A cost-benefit and economic analysis is not 
required. These amended rules would have virtually no effect on the 
economy because they would only add authority for ALJs to decide 
petitions for a stay of grazing decisions and to place such decisions 
into immediate effect.
    2. This rule would not create inconsistencies with or interfere 
with other agencies' actions. The rules propose to amend existing OHA 
regulations to add authority for ALJs to decide petitions for a stay of 
grazing decisions and to place such decisions into immediate effect.
    3. This rule would not alter the budgetary effects of entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. These regulations have to do only with the procedures 
for hearings and appeals of BLM grazing decisions, not with 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients. The proposed rule would only add 
authority for ALJs to decide petitions for a stay of grazing decisions 
and to place such decisions into immediate effect.
    4. This rule does not raise novel legal or policy issues. The rule 
would simply extend ALJs' existing authority to include the authority 
to decide petitions for a stay of BLM grazing decisions and requests to 
place such decisions into immediate effect.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule would not 
have a significant economic effect on a substantial number of small 
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). The extension of authority to ALJs to decide petitions

[[Page 27957]]

for a stay of BLM grazing decisions and to place such decisions into 
immediate effect would have no effect on small entities. A Small Entity 
Compliance Guide is not required.

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    1. Would not have an annual effect on the economy of $100 million 
or more. Granting authority to ALJs to decide petitions for a stay of 
BLM grazing decisions and to place such decisions into immediate effect 
should have no effect on the economy.
    2. Would not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. Granting ALJs authority to decide 
petitions for a stay of BLM grazing decisions and to place such 
decisions into immediate effect would not affect costs or prices for 
citizens, individual industries, or government agencies.
    3. Would 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. 
Extending authority to ALJs to decide petitions for a stay of BLM 
grazing decisions and to place such decisions into immediate effect 
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.

D. Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1531 
et seq.), we find that:
    1. This rule would not have a significant or unique effect on 
state, local, or tribal governments or the private sector. Small 
governments do not often appeal BLM grazing decisions. Authorizing ALJs 
to decide petitions for a stay of such decisions and to place such 
decisions into immediate effect would neither uniquely nor 
significantly affect these governments because such authority currently 
exists elsewhere. A statement containing the information required by 
the Unfunded Mandates Reform Act, 2 U.S.C. 1531 et seq., is not 
required.
    2. This rule would not produce an unfunded Federal mandate of $100 
million or more on State, local, or tribal governments or the private 
sector in any year, i.e., it is not a ``significant regulatory action'' 
under the Unfunded Mandates Reform Act.

E. Takings (E.O. 12630)

    In accordance with Executive Order 12630, we find that the rule 
would not have significant takings implications. A takings implication 
assessment is not required. These amendments to existing rules 
authorizing ALJs to decide petitions for a stay of BLM grazing 
decisions and to place such decisions into immediate effect should have 
no effect on property rights.

F. Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we find that the rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism assessment. There is no foreseeable effect 
on states from extending to ALJs the existing authority to decide 
petitions for a stay of BLM grazing decisions and to place such 
decisions into immediate effect. A federalism assessment is not 
required.

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

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and does not meet the requirements of sections 3(a) and 
3(b)(2) of the Order. These regulations, because they simply extend to 
ALJs already existing authority to decide petitions for a stay of BLM 
grazing decisions and to place such decisions into immediate effect, 
will not burden either administrative or judicial tribunals.

H. Paperwork Reduction Act

    This proposed rule wold not require an information collection from 
10 or more parties, and a submission under the Paperwork Reduction Act 
is not required. An OMB form 83-I has not been prepared and has not 
been approved by the Office of Policy Analysis. These regulations would 
only extend authority to ALJs to decide petitions for stay of BLM 
grazing decisions and to place such decisions into immediate effect; 
they would not require the public to provide information.

I. National Environmental Policy Act

    The Department has analyzed this rule in accordance with the 
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et 
seq., Council on Environmental Quality (CEQ) regulations, 40 CFR part 
1500, and the Department of the Interior Departmental Manual (DM). CEQ 
regulations, at 40 CFR 1508.4, define a ``categorical exclusion'' as a 
category of actions that the Department has determined ordinarily 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 the proposed rule is categorically 
excluded from further environmental analysis under NEPA in accordance 
with 516 DM 2, Appendix 1, which categorically excludes ``[p]olicies, 
directives, regulations and guidelines of an administrative, financial, 
legal, technical or procedural nature.'' In addition, the Department 
has determined that none of the exceptions to categorical exclusions, 
listed in 516 DM 2, Appendix 2, applies to the proposed rule. The 
proposed rule is an administrative and procedural rule, relating to the 
authority of ALJs to decide petitions for stays of BLM grazing 
decisions and requests to place such decisions into immediate effect. 
The rule would not change the requirement that projects must comply 
with NEPA. Therefore, neither an environmental assessment nor an 
environmental impact statement under NEPA is required.

J. Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, the Department 
of the Interior has evaluated potential effects of these rules on 
Federally recognized Indian tribes and has determined that there are no 
potential effects. These rules would not affect Indian trust resources; 
they would provide authority to ALJs to decide petitions for a stay of 
BLM grazing decisions and to place such decisions into immediate 
effect.

K. Effects on the Nation's Energy Supply

    In accordance with Executive Order 13211, we find that this 
regulation does not have a significant effect on the nation's energy 
supply, distribution, or use. The extension of authority to ALJs to 
decide petitions for a stay of BLM grazing decisions and to place such 
decisions into immediate effect would not affect energy supply or 
consumption.

L. Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand, including answers to the

[[Page 27958]]

following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (A ``section'' appears in bold type 
and is preceded by the symbol ``Sec.  '' and a numbered heading; for 
example, Sec.  4.21 General provisions.) (5) Is the description of the 
rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful 
in understanding the proposed rule? (6) What else could we do to make 
the rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. 
You may also e-mail the comments to this address: [email protected].

List of Subjects in 43 CFR Part 4

    Administrative practice and procedure; Grazing lands; Public lands.

    For the reasons set forth in the preamble, under authority 
delegated to the Director, Office of Hearings and Appeals, by the 
Secretary of the Interior, part 4, subparts B and E, of title 43 of the 
Code of Federal Regulations are proposed to be amended as set forth 
below:

    Dated: May 13, 2003.
Robert S. More,
Director, Office of Hearings and Appeals.

PART 4--[AMENDED]

    1. The authority for 43 CFR part 4 continues to read as follows:

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

Subpart B--General Rules Relating to Procedures and Practice


Sec. Sec.  4.22 through 4.31  [Redesignated as Sec. Sec.  4.27 through 
4.36].

    2. Sections 4.22 through 4.31 are redesignated as Sec. Sec.  4.27 
through 4.36.
    3. Section 4.21 is revised and new Sec. Sec.  4.22 through 4.26 are 
added to read as follows:


Sec.  4.21  Definitions of terms used in this subpart.

    As used in this subpart:
    Appropriate official means the Director of the Office of Hearings 
and Appeals, an Appeals Board, or an administrative law judge, as 
applicable in a particular situation.
    Bureau means a bureau or office of the Department of the Interior.
    Days means calendar days unless otherwise stated.
    Decision means a written determination or, if applicable, a portion 
of a written determination.


Sec.  4.22  Effect of a decision pending appeal.

    (a) The provisions of this section apply to any decision by a 
bureau that includes a right of appeal to the Office of Hearings and 
Appeals, unless a law or other applicable regulation provides 
otherwise.
    (b) No such bureau decision is effective during the period of time 
allowed for filing an appeal, unless it is made immediately effective 
under paragraph (c)(2) of this section.
    (c) A bureau decision becomes effective as shown in the following 
table:

----------------------------------------------------------------------------------------------------------------
              If . . .                              And . . .                            Then . . .
----------------------------------------------------------------------------------------------------------------
(1) A statute or other regulation     a person who has a right of appeal    the bureau decision will become
 provides that the bureau decision     files a notice of appeal,             effective if and when it is
 will not take effect pending a                                              affirmed by the Office of Hearings
 decision on an appeal,                                                      and Appeals or the appeal is
                                                                             dismissed.
(2) A person who has a right of       a party to the appeal demonstrates    the appropriate official (see Sec.
 appeal under Sec.   4.410 or other    that the public interest requires     4.21) may provide that the bureau
 applicable regulation files a         making the bureau decision            decision becomes effective
 timely notice of appeal,              effective immediately,                immediately.
(3) A person who has a right of       the appellant satisfies the           the appropriation official may stay
 appeal under Sec.   4.410 or other    requirements of Sec.   4.23,          the effect of the bureau decision
 applicable regulation files a                                               under Sec.   4.24, and the bureau
 timely notice of appeal and a                                               decision will become effective if
 petition for a stay,                                                        and when it is affirmed by the
                                                                             Office of Hearings and Appeals or
                                                                             the appeal is dismissed.
(4) A person who has a right of       the appellant does not satisfy the    the bureau decision becomes
 appeal under Sec.   4.410 or other    requirements of Sec.   4.23,          effective when the appropriate
 applicable regulation files a                                               official denies the petition.
 timely notice of appeal and a
 petition for a stay,
(5) A person who has a right of       the appropriate official does not     the decision becomes effective on
 appeal under Sec.   4.410 or other    act on petition within 45 days of     the 46th day after the end of the
 applicable regulation files a         the end of the appeal period,         appeal period.
 timely notice of appeal and a
 petition for a stay,
----------------------------------------------------------------------------------------------------------------

Sec.  4.23  How to petition for a stay of the effective date of a 
decision.

    (a) To request a stay of a bureau decision, an appellant must file 
a notice of appeal and a petition for a stay as required under 
paragraphs (b) and (c) of this section. The appellant must file these 
documents before the end of the appeal period specified in the bureau 
decision. The provisions of this section apply unless a law or other 
applicable regulation provides otherwise.
    (b) To obtain a stay under this section, an appellant must:
    (1) Be a person who has a right of appeal under Sec.  4.410 or 
other applicable regulation; and
    (2) Demonstrate that the appropriate official should grant a stay 
based on the following standards:
    (i) The relative harm to the parties if the stay is granted or 
denied;
    (ii) The likelihood of the appellant's success on the merits;
    (iii) The likelihood of immediate and irreparable harm if the 
appropriate official does not grant the stay; and
    (iv) Whether the public interest favors granting the stay.
    (c) The appellant must serve a copy of the notice of appeal and 
petition for a stay on each of the following simultaneously:
    (1) The appropriate official before whom the appeal is pending;
    (2) The bureau official who made the decision being appealed; and
    (3) Each party, if any, named in the bureau decision that is being 
appealed.

[[Page 27959]]

Sec.  4.24  Action on a petition for a stay.

    (a) Any party who is served with a copy of a stay petition under 
Sec.  4.23(c) may file a response but must do so within 10 days after 
service. This includes the bureau official who made the decision being 
appealed.
    (1) The responding party must serve the response on the persons 
listed in Sec.  4.23(c) either by delivering it personally or by 
registered or certified mail, return receipt requested.
    (2) The appropriate official will not grant a stay by default 
merely because no response to a petition has been filed.
    (b) Within 45 days after the end of the time for filing an appeal, 
the appropriate official must grant or deny any petition for a stay.
    (c) Any person who has a right of appeal under Sec.  4.410 or other 
applicable regulation may appeal to the appropriate Appeals Board from 
an order of an administrative law judge to:
    (1) Grant or deny a petition for a stay; or
    (2) Make a bureau decision effective immediately.
    (d) As an alternative to paragraph (c) of this section, any party 
other than the bureau may seek judicial review under 5 U.S.C. 704 of an 
order of an administrative law judge to:
    (1) Deny a petition for a stay (either directly or by failing to 
meet the deadline in paragraph (b) of this section); or
    (2) Make a bureau decision effective immediately.
    (e) If a party appeals under paragraph (c) of this section, the 
Appeals Board must issue an expedited briefing schedule and 
expeditiously issue a decision on the appeal.
    (f) Unless the Appeals Board or the court orders otherwise, an 
appeal under paragraph (c) of this section does not:
    (1) Suspend the effectiveness of the decision of the administrative 
law judge; or
    (2) Suspend further proceedings before the administrative law 
judge.


Sec.  4.25  Decisions subject to judicial review.

    This section applies to any bureau decision that can be appealed to 
the Office of Hearings and Appeals. The bureau decision is not final 
agency action subject to judicial review under 5 U.S.C. 704 unless it 
has become effective under Sec.  4.22 or other applicable regulation.


Sec.  4.26  Finality and reconsideration of decisions.

    (a) A decision by the Director or an Appeals Board is final for the 
Department and cannot be appealed. However, the Director or an Appeals 
Board may reconsider a decision if either:
    (1) In the judgment of the Director or the Appeals Board there 
exist extraordinary circumstances and sufficient reason for 
reconsideration; or
    (2) Other regulations allow for reconsideration under standards 
other than those set forth in paragraph (a)(1) of this section.
    (b) To request reconsideration under paragraph (a) of this section, 
an appellant must:
    (1) File the request promptly, or within the time required by the 
regulations relating to the type of proceeding concerned; and
    (2) State clearly and completely the nature of the error prompting 
the request for reconsideration.
    (c) Filing a request for reconsideration does not stay the 
effectiveness of the decision unless the Director or the Appeals Board 
so orders.
    (d) An appellant does not have to file a request for 
reconsideration in order to exhaust administrative remedies.

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

    4. The authority for 43 CFR part 4, subpart E is revised to read as 
follows:

    Authority: 43 U.S.C. 1201 and 315a.

    5. In Sec.  4.421, revise paragraph (c) to read as follows:


Sec.  4.421  Definitions.

* * * * *
    (c) Bureau or BLM means the Bureau of Land Management.
* * * * *


Sec. Sec.  4.471 through 4.478  [Redesignated as Sec. Sec.  4.473 
through 4.480].

    6. Sections 4.471 through 4.478 are redesignated as Sec. Sec.  
4.473 through 4.480, respectively.
    7. Section 4.470 is revised and Sec. Sec.  4.471 and 4.472 are 
added to read as follows:


Sec.  4.470  How to appeal a BLM decision to an administrative law 
judge.

    (a) Any person who has a right of appeal under Sec.  4.410 or other 
applicable regulation may appeal a final bureau decision within 30 days 
after receiving it. To do this, the person must file a notice of appeal 
with the BLM field office that issued the decision.
    (b) The notice of appeal must state clearly and concisely the 
reasons why the appellant thinks the BLM decision is wrong.
    (c) Any ground for appeal not included in the notice of appeal is 
considered waived. The appellant may not present a waived ground for 
appeal at the hearing unless permitted to do so by the administrative 
law judge.
    (d) Any person who, after proper notification, does not appeal a 
final BLM decision within the period allowed in the decision may not 
later challenge the matters adjudicated in the final decision.
    (e) An administrative law judge may consolidate appeals for 
purposes of hearing and decision when:
    (1) Appellants file separate appeals; and
    (2) The issues involved are common to two or more appeals.
    (f) Filing a notice of appeal does not by itself change the 
effective date of the decision. To request a change in the effective 
date, see Sec.  4.471.


Sec.  4.471  How to request a change in the effective date of a final 
BLM decision.

    (a) An appellant under Sec.  4.470 may petition for a stay of the 
BLM decision pending appeal. The appellant must do this within 30 days 
after receiving the BLM decision by filing a petition for stay together 
with the notice of appeal required by Sec.  4.470.
    (b) An appellant under Sec.  4.470 may request that a BLM decision 
become effective immediately. The appellant must do this within 30 days 
after receiving the BLM decision by filing a request for an immediate 
effective date together with the notice of appeal required by Sec.  
4.470.
    (c) The appellant must file documents required by this section with 
both:
    (1) The BLM office that issued the decision; and
    (2) The Hearings Division, Office of Hearings and Appeals, 801 
North Quincy Street, Suite 300, Arlington, VA 22203.
    (d) The standards and procedures for obtaining a stay or requesting 
an immediate effective date are those set forth in Sec. Sec.  4.22 
through 4.24.


Sec.  4.472  Action on appeals and requests for effective date changes.

    (a) The BLM field office must promptly forward to the State 
Director any documents received under Sec. Sec.  4.470 and 4.471. If 
the State Director does not file a motion to dismiss under paragraph 
(b) of this section:
    (1) The State Director must promptly forward all documents and the 
administrative record to the Office of Hearings and Appeals; and
    (2) An administrative law judge will rule on the appeal and any 
motion or request.
    (b) Within 30 days after receiving documents submitted under 
paragraph (a) of this section, the State Director may file a motion to 
dismiss the appeal for one or more of the following reasons:

[[Page 27960]]

    (1) The appeal is frivolous;
    (2) The appeal was filed late;
    (3) The errors are not clearly and concisely stated;
    (4) The issues are immaterial; or
    (5) The issues have been previously adjudicated in an appeal 
involving the same grazing preference, the same parties, or their 
predecessors in interest.
    (c) The State Director must send a copy of the motion to the 
appellant.
    (d) The appellant may file a written answer with the State Director 
within 30 days after receiving the motion to dismiss.
    (e) The State Director will transmit the appeal, any petition or 
request, motion to dismiss, and answer, along with the administrative 
record, to the Hearings Division, Office of Hearings and Appeals, 801 
North Quincy Street, Suite 300, Arlington, VA 22203.
    (f) An administrative law judge will rule on the motion to dismiss 
and, if the motion is sustained, dismiss the appeal by written order.
    8. In newly redesignated Sec.  4.474, add paragraph (c) to read as 
follows:


Sec.  4.474  Authority of administrative law judge.

* * * * *
    (c) The administrative law judge may consider and rule on all 
motions and petitions, including:
    (1) A petition for a stay of a final grazing decision of the BLM 
field office; and
    (2) A request that a final grazing decision of the BLM field office 
become effective immediately.
    9. Revise newly redesignated Sec.  4.478 to read as follows:


Sec.  4.478  Appeals to the Board of Land Appeals.

    (a) A person who has a right of appeal under Sec.  4.410 or other 
applicable regulation may appeal under Sec.  4.24(c) an order of an 
administrative law judge to:
    (1) Grant or deny a petition for a stay; or
    (2) Make a final grazing decision effective immediately.
    (b) Any party affected by the administrative law judge's decision 
on the merits, including the State Director, has the right to appeal to 
the Board of Land Appeals under the procedures in this part.
    10. Revise newly redesignated Sec.  4.479 to read as follows:


Sec.  4.479  Effect of decision during appeal.

    (a) A BLM decision may provide that the decision will be effective 
immediately pending decision on an appeal from the BLM decision. This 
paragraph applies:
    (1) Notwithstanding the provisions of Sec.  4.22(b) pertaining to 
the period during which a final decision will not be in effect; and
    (2) Consistent with the provisions of Sec.  4160.3.
    (b) An administrative law judge or the Board may change or revoke 
any action that BLM takes pursuant to a BLM decision on appeal.
    (c) This paragraph applies to any BLM decision that, at the time it 
is made, is subject to appeal before a superior authority in the 
Department. In order to ensure the exhaustion of administrative 
remedies before resort to court action, the BLM decision is not final 
agency action subject to judicial review under 5 U.S.C. 704 unless the 
BLM decision has become effective under this section or Sec.  4.22.

[FR Doc. 03-12504 Filed 5-21-03; 8:45 am]
BILLING CODE 4310-79-P