[Federal Register Volume 68, Number 237 (Wednesday, December 10, 2003)]
[Rules and Regulations]
[Pages 68765-68771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30631]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 4

RIN 1090-AA84


Special Rules Applicable to Public Land Hearings and Appeals

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.

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SUMMARY: The Office of Hearings and Appeals (OHA) is amending its 
existing regulations governing petitions for stays of grazing decisions 
issued by the Bureau of Land Management. The changes would specifically 
authorize OHA administrative law judges to decide such petitions, which 
would expedite the administrative review process by eliminating an 
inefficient division of authority.

EFFECTIVE DATE: January 9, 2004.

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.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Proposed Rule

    On May 22, 2003, the Office of Hearings and Appeals (OHA) proposed 
to amend its existing regulations governing petitions to stay bureau 
decisions. 68 FR 27955-27960 (May 22, 2003). As explained in that 
proposal, the existing regulations governing hearings and appeals of 
grazing decisions issued by the Bureau of Land Management (BLM) assign 
responsibility for deciding petitions for a stay of such decisions to 
the Interior Board of Land Appeals (IBLA) or the Director, OHA. 
Responsibility for conducting the hearing, ruling on other motions, and 
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 a BLM field 
office, the current OHA regulations require that office to forward the 
appeal to the BLM State Director, and the State Director to transmit it 
to the OHA Hearings Division office in Salt Lake City, Utah. 43 CFR 
4.470(d). If a petition for a stay of the decision accompanies the 
appeal, the Hearings Division must forward the petition to IBLA in 
Arlington, Virginia. Under 43 CFR 4.21(b)(4), IBLA (or the OHA 
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.
    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. 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 a petition for a stay, 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. 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.
    Therefore, OHA proposed amendments to the existing regulations in 
43 CFR 4.21 and 4.470 et seq. to provide the authority to ALJs to rule 
on petitions for a stay of BLM grazing decisions. OHA also proposed 
that any party may appeal to the IBLA an order of an ALJ granting or 
denying a petition for a stay. Any party (other than BLM) wishing to 
appeal an order of an ALJ denying a petition for a stay would be able 
to seek judicial review instead of appealing to IBLA.
    OHA also proposed 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.

B. Responses to Comments

    We received comments on the proposed rules from Nordhaus Haltom 
Taylor Taradash & Bladh, LLP, on behalf of the Jicarilla Apache Nation, 
the Pueblo of Laguna, and the Pueblo of Santa Ana; the National 
Wildlife Federation; Budd-Falen Law Offices, P.C.; the National Mining 
Association; Holme Roberts & Owen LLP, on behalf of Placer Dome 
America; Jason R. Warran, Esq.; and the American Farm Bureau 
Federation.
    Most commenters expressed agreement with the basic intent of the 
proposed rule, i.e., to authorize ALJs to decide petitions for stay of 
BLM grazing decisions. But they raised numerous questions about the 
proposed amendments to the general regulation in 43 CFR 4.21 and the 
need for such amendments, and they urged that we limit the final rule 
to the grazing-related provisions of Sec. Sec.  4.470-.478.

[[Page 68766]]

    For example, some commenters were concerned that the proposed 
amendments to Sec.  4.21 could be misinterpreted to change the current 
effective date provisions for BLM decisions involving mining operations 
under 43 CFR subpart 3809, BIA decisions appealable under 25 CFR part 
2, or other bureau decisions in unanticipated contexts. In addition, 
some commenters were concerned that proposed Sec.  4.22 did not make as 
clear as the existing Sec.  4.21(a) that some bureau decisions may be 
effective immediately, i.e., during the period when an appeal of the 
decision may be filed, pursuant to another regulation, e.g., 43 CFR 
4160.3(f) or 3809.803. Another commenter questioned whether proposed 
Sec.  4.22 was as clear as existing Sec.  4.21 that, absent another 
regulation or petition for a stay, a bureau decision would become 
effective on the day after the expiration of the time an appeal could 
be filed. Further, some commenters were concerned about the effect of 
the proposed rule on the many existing regulations that cross reference 
Sec.  4.21, prior to the Department's updating those regulations with 
references to the new sections in the proposed rule.
    In light of these questions and concerns, we have decided to defer 
action on the proposed amendments to 43 CFR 4.21 and consider further 
the questions raised about those proposed amendments. For this reason, 
we will limit our responses to comments that related to the proposed 
amendments (1) extending authority to ALJs to decide petitions for a 
stay of BLM grazing decisions and (2) providing for appeals of ALJ 
decisions on such petitions.
    One comment suggested that proposed Sec.  4.471(a) be amended to 
allow the filing of a petition for a stay any time one can satisfy the 
requirements of proposed Sec.  4.471(d), rather than limiting the time 
to the 30 days allowed for filing an appeal. The commenter observed 
that the harm from a BLM decision may not become apparent for some time 
and that, if an appeal was still pending before an ALJ, there would be 
no reason the ALJ could not consider the appropriateness of a stay if 
that time came later. If the decision had already been substantially 
implemented, that could be taken into consideration in determining the 
relative harm to the parties. The number of stay petitions might be 
reduced if the regulations did not force an appellant to decide within 
30 days whether a decision was going to cause immediate and irreparable 
harm, the commenter suggested.
    We agree that in some cases the effect of a BLM decision might not 
become apparent until after 30 days, and we do not wish to encourage 
the filing of petitions for a stay that may not be necessary. However, 
under existing IBLA decisions, petitions for a stay may be filed after 
the 30-day period for filing an appeal has expired. In Robert E. 
Oriskovich, 128 IBLA 69, 70 (1993), IBLA noted that, while the failure 
to timely file a petition for stay results in the decision being 
appealed becoming effective on the day following the expiration of the 
appeal period, nothing in the regulations precludes the filing of a 
subsequent petition for stay that the Board may, in its discretion, 
entertain. See also Western Shoshone National Council, 130 IBLA 69, 72 
(1994) (``Nothing in the regulations at 43 CFR part 4 precludes 
appellant from filing a petition or request for a stay at any time 
during a proceeding before the Board. * * * '') Because an 
administrative law judge would have general jurisdiction over an appeal 
from a BLM grazing decision, he or she could entertain a petition for a 
stay that was filed with the Hearings Division at any time the appeal 
was still pending. Therefore, it is not necessary to amend the 
regulation in order to allow the filing of a petition for a stay after 
the appeal period has expired, as the commenter suggested.
    Another comment suggested that proposed Sec.  4.478(a) be amended 
to allow a person adversely affected by the decision of an ALJ on a 
petition for a stay to appeal to IBLA even if the person was not a 
``party to the case'' as defined in Sec.  4.410(b). For example, if a 
person had not objected to a proposed BLM decision that became final 
because he or she agreed with it, the person would not have a right to 
appeal the BLM decision under Sec.  4.410 since he or she was not 
adversely affected by the decision and had not previously participated 
in the decision-making process. See 68 FR 33794, 33803 (June 5, 2003). 
However, if another party appealed the BLM decision and the ALJ granted 
a stay, the person could be adversely affected by the stay. In that 
situation, the commenter argued, the person should be allowed to appeal 
the stay to IBLA.
    The commenter is correct that, if the person was not a ``party to 
the case'' as defined in Sec.  4.410(b), he or she would not have a 
right to appeal the ALJ's stay decision to IBLA. Under that regulation, 
a ``party to the case'' is

One who has taken the action that is the subject of the decision on 
appeal, is the object of that decision, or has otherwise 
participated in the process leading to the decision under appeal, 
e.g., by filing a mining claim or an application for use of public 
lands, by commenting on an environmental document, or by filing a 
protest to a proposed action.

Other ways a person in the situation described in the comment could 
have previously participated in the decision-making process might 
include commenting on the proposed BLM decision or intervening in the 
case before the ALJ to oppose the stay petition.
    We are not persuaded that a requirement of previous participation 
in the case is unduly burdensome or should be waived in the situation 
posited by the commenter. As explained in the preamble to the June 5, 
2003, final rule amending Sec.  4.410, this is a codification of 
longstanding IBLA precedent on who has standing to appeal a decision. 
68 FR 33794. We have therefore retained the reference to Sec.  4.410 in 
final Sec.  4.478(a).
    A commenter suggested that, if an appellant sought IBLA review of 
an ALJ decision on a petition for a stay under proposed Sec.  4.478(a) 
but the Board did not ``expeditiously issue a decision on the appeal'' 
as provided in proposed Sec.  4.478(c), then the appellant should be 
allowed to abandon that appeal and instead go to federal court under 
proposed Sec.  4.478(b). The commenter expressed concern that the Board 
might not quickly decide such appeals, despite the statement in 
proposed Sec.  4.478(c).
    The commenter's concern for timely decisions must be balanced 
against the significant benefits that inure to both the Department and 
the courts from the requirement that appellants exhaust their 
administrative remedies before seeking judicial review. Given the 
commitment that OHA is making in adopting Sec.  4.478(c), we disagree 
with the commenter that there is a risk of substantial delay in IBLA's 
review process sufficient to warrant forgoing those benefits. Of 
course, if the BLM decision is in effect, one may seek judicial review 
at any time. See Darby v. Cisneros, 509 U.S. 137, 153-54, 113 S. Ct. 
2539, 2547-48 (1993).
    Other commenters thought the proposed rule was arbitrary in 
providing that a party could seek immediate judicial review of an ALJ 
order denying a stay but not of an ALJ order granting a stay; the 
latter would first have to be appealed to IBLA.
    We disagree with the commenters that this result is arbitrary. 
Under both the proposed and final rule, an appeal to IBLA is available 
in either situation. However, if a stay is denied, the BLM decision is 
operative, and judicial review is available under the APA as an 
alternative to an IBLA appeal. See 5 U.S.C. 704; Darby, supra. The rule

[[Page 68767]]

simply reflects this statutory and decisional authority. If the stay is 
granted and the BLM decision is inoperative, resort to the courts is 
not available until the parties have exhausted their administrative 
remedies.
    One comment stated that Sec.  4.479 needs to be amended so as not 
to require exhaustion of administrative remedies when 43 CFR 4160.3(d) 
or (e) allows grazing to take place even if a stay has been granted, 
citing Idaho Watersheds Project v. Hahn, 307 F.3d 815, 824-28 (9th Cir. 
2002). Section 4160.3(d)-(e) specifies what grazing use is authorized 
when OHA stays a BLM decision pending appeal. In general,

An applicant who was granted grazing use in the preceding year may 
continue at that level of authorized use during the time the 
decision is stayed. * * * Where an applicant had no authorized 
grazing use during the previous year * * *, the authorized grazing 
use shall be consistent with the final decision pending the [OHA] 
final determination on the appeal.

    In Hahn, environmental plaintiffs challenged BLM grazing decisions 
on the grounds that they perpetuated a long-term problem of livestock 
overgrazing in the Owyhee Resource Area, allegedly in violation of 
federal statutes and regulations and BLM's own guidelines for rangeland 
management. BLM and the ranchers argued that the lawsuit should be 
dismissed because the plaintiffs had not filed an administrative appeal 
and sought a stay of the grazing decisions and had therefore failed to 
exhaust their administrative remedies. The court disagreed, holding 
that, because of Sec.  4160.3(d)-(e), BLM's grazing decisions would not 
be rendered inoperative even if a stay were granted.
    While finding that the plaintiffs were not required to exhaust 
their administrative remedies under the facts of that case, the court 
in Hahn left open the prospect that, under a different set of facts, a 
stay would render the final BLM decision inoperative for purposes of 5 
U.S.C. 704, even if it resulted in authorized use at the previous 
year's level. In that situation, exhaustion of administrative remedies 
would still be required. For example, if a BLM grazing decision 
increased a rancher's authorized use from the previous year's level and 
an environmental group challenged that increase, a stay that resulted 
in authorized use at the previous year's level under Sec.  4160.3(d)-
(e) would render the BLM decision inoperative, and exhaustion of 
administrative remedies would be required. Similarly, if a BLM grazing 
decision reduced a rancher's authorized use from the previous year's 
level and the rancher challenged that decrease, a stay that resulted in 
authorized use at the previous year's level would render the BLM 
decision inoperative, and exhaustion of administrative remedies would 
be required. We have revised Sec.  4.479(d) to reflect the court's 
decision in Hahn.
    One commenter opposed the proposed regulations on the grounds that, 
under the Taylor Grazing Act (TGA) and the APA, a BLM decision

affecting a grazing permit is a sanction and an order within the 
meaning of the APA [and] cannot become effective until the permittee 
is afforded a hearing and allowed to present testimony and other 
evidence. 5 U.S.C. 556(d) & (e). * * * The proposed rule change 
would be facially invalid. * * * [T]he proposed changes force the 
holder of a TGA grazing permit to seek a stay when the TGA and the 
APA mandate that such a stay be automatic.

We disagree that the typical BLM grazing decision is either a 
``sanction'' or an ``order'' within the meaning of the APA. In fact, in 
a number of cases, the grazing permittee has sought the BLM decision 
and wants it to take effect immediately, but another interested party 
files an appeal and a petition for a stay. In any event, this argument 
is currently under review in Wallace v. Bureau of Land Management, No. 
02-1119 (CBS) (D. Colo.). If necessary based on the outcome of that 
litigation, we will consider further amendments to our regulations at a 
future time.

C. Section-by-Section Analysis

Section 4.421

    We have added a definition for the term ``person named in the 
decision,'' and that term is then used in Sec. Sec.  4.470-.472 to 
identify everyone who must be served with an appeal, petition for a 
stay, and a response. The term is defined as ``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.'' BLM is required to 
serve its proposed decision on these persons under Sec.  4160.1, and 
will list their names and addresses at the conclusion of its final 
grazing decision. This will help to ensure that anyone whose interest 
may be adversely affected by the final BLM decision, or by an appeal of 
that decision, has an opportunity to participate in the appeal process 
and will be bound by the outcome.

Section 4.470

    This section is based on the existing Sec.  4.470(a)-(b). We have 
added the phrase, ``or within 30 days after a proposed decision becomes 
final as provided in Sec.  4160.3(a),'' to be consistent with Sec.  
4160.4. We have also added the phrase, ``and serve a copy of the appeal 
on any other person named in the decision,'' at the end of Sec.  
4.470(a). This language is based on the service requirements in 43 CFR 
4.22(b), 4.413(a).
    Throughout this preamble and rule, references to a ``final BLM 
grazing decision'' or ``the decision'' should be construed to include 
any relevant portion of such a decision. Thus an adversely affected 
party may appeal only a portion of a BLM decision, may petition for or 
be granted a stay of only a portion of a BLM decision, and so on. 
Adding a phrase like ``or relevant portion thereof'' wherever the term 
``final BLM grazing decision'' appears would make the rule cumbersome 
and would merely state what most readers would take for granted anyway.
    Paragraphs (b), (c), and (d) are based on similar language in the 
existing Sec.  4.470. Paragraphs (b) and (c) are adopted as proposed, 
and paragraph (d) is modified to refer to the appeal period provided in 
paragraph (a). We have moved proposed paragraph (e) to redesignated 
Sec.  4.474 because that section deals with the authority of an ALJ; as 
a result, proposed paragraph (f) has become paragraph (e).

Section 4.471

    Section 4.471 is new; existing Sec.  4.471 has been redesignated as 
Sec.  4.473. As proposed, new Sec.  4.471 would have referred to the 
standards and procedures in existing Sec.  4.21 (proposed Sec. Sec.  
4.22-.24) regarding petitions for a stay and requests to make a BLM 
decision immediately effective. Since we have decided not to amend 
Sec.  4.21 in this final rule, we have revised Sec.  4.471 so that it 
fully incorporates the relevant standards and procedures from Sec.  
4.21.
    In new Sec.  4.471, paragraph (a) specifies where a petition for a 
stay must be filed, and paragraph (b) specifies where copies must be 
served.
    Proposed paragraph (b), dealing with requests to make a BLM 
decision effective immediately--and related provisions in proposed 
Sec. Sec.  4.474(c)(2) and 4.478(a)(2)--have been deleted. These 
provisions were intended to extend to the ALJ the authority given to 
the OHA Director and the Board in Sec.  4.21(a)(1) to make a decision 
effective immediately when the public interest so requires, 
notwithstanding the automatic stay provisions of Sec.  4.21(a)(1)-(3). 
Instead of the several deleted provisions, we have added Sec.  4.479(c) 
to state the same authority more simply.
    Proposed paragraph (c), redesignated as paragraph (b), has been 
revised to require service of copies of the appeal

[[Page 68768]]

and of any petition for a stay on (1) any other person named in the 
decision from which the appeal is taken, and (2) the appropriate office 
of the Office of the Solicitor, as provided in Sec.  4.413(a) and (c). 
We have deleted the requirement to send a copy to the Hearings 
Division, OHA, in Arlington.
    Because we are not amending the general rules in subpart B as 
proposed, we have revised proposed paragraph (d), redesignated as 
paragraphs (c) and (d), to incorporate the standards for granting a 
stay and the burden of proof that are currently found in section 
4.21(b)(1)-(2).

Section 4.472

    This section is also new; existing Sec.  4.472 has been 
redesignated as Sec.  4.474. New Sec.  4.472 sets forth procedures and 
time frames for the filing of various documents by BLM and other 
persons following receipt of the appeal and petition for a stay. It 
also sets forth a deadline for a decision by the ALJ on such a 
petition.
    Paragraph (a) is based on existing Sec.  4.470(d). As revised, BLM 
must transmit an appeal to the Hearings Division, Office of Hearings 
and Appeals, in Salt Lake City, Utah, within 10 days after receiving 
the appeal. If a petition for a stay has been received, BLM's 
transmittal must also include any response BLM wishes to file to the 
petition and the following documents from the case file: the 
application, permit, lease, or notice of unauthorized use underlying 
the final BLM grazing decision; the proposed BLM grazing decision; any 
protest filed by the appellant under Sec.  4160.2; the final BLM 
grazing decision; and any other documents that BLM wishes the 
administrative law judge to consider in deciding the petition for a 
stay, such as BLM's environmental assessment. If necessary, an ALJ 
could grant an extension of the 10-day period under Sec.  4.22(f). If 
BLM files a response, it must serve a copy on the appellant and any 
other person named in the decision from which the appeal is taken.
    Under paragraph (b), any person named in the decision from which 
the appeal is taken (other than the appellant) who wishes to file a 
response to the petition for a stay may file a motion to intervene in 
the appeal together with the response with the Hearings Division within 
10 days after receiving the petition. The person must serve a copy of 
the motion to intervene and response on the appellant, the appropriate 
office of the Office of the Solicitor, and any other person named in 
the decision.
    Under existing Sec.  4.471, redesignated as Sec.  4.473 by this 
final rule, BLM is to notify any person it believes may be directly 
affected by the decision on appeal. Such a person may appear at the 
hearing and, ``upon a proper showing of interest, may be recognized by 
the administrative law judge as an intervenor in the appeal.'' For 
guidance on what interest is sufficient for intervenor status, see Bear 
River Land and Grazing v. BLM, 132 IBLA 110, 113-14 (1995). As existing 
Sec.  4.471 shows, a motion to intervene is not limited to the 10-day 
period for filing a response to a petition for a stay; but if a person 
who is not yet a party to the appeal wishes to respond to the petition 
for a stay, he or she must submit a motion to intervene along with his 
or her response, within the 10 days allowed for a response to a 
petition for a stay.
    Under paragraph (c), if a petition for a stay has not been filed, 
BLM must promptly transmit the pertinent documents from the case file 
to the administrative law judge assigned to the appeal, once the appeal 
has been docketed by the Hearings Division.
    Under paragraph (d), an ALJ must rule on a petition for a stay that 
is filed with an appeal, and any motion to intervene filed under 
paragraph (b), within 45 days after the expiration of the appeal 
period. This deadline is based on existing Sec.  4.21(b)(4).
    Paragraph (e), dealing with the effective date of a BLM decision 
for which a petition for a stay has been filed, is based on Sec.  
4.21(a)(3). It provides that any BLM grazing decision that is not 
already in effect and for which a stay is not granted will become 
effective immediately after the ALJ denies the petition or fails to act 
on the petition within the 45-day deadline set forth in paragraph (d).
    Paragraph (f) authorizes any party to file a motion to dismiss the 
appeal or any other appropriate motion with the Hearings Division at 
any appropriate time and provides for a response to such a motion. This 
paragraph is also based on language in existing Sec.  4.470(d). The 
existing regulation provides that the BLM State Director may file a 
motion to dismiss within 30 days of his or her receipt of the appeal, 
for any of six specified reasons. In fact, however, under existing 
Hearings Division and IBLA practice, BLM or any other party may file 
any appropriate motion at any appropriate time for any appropriate 
reason. Therefore, new Sec.  4.472(f) is worded more broadly than 
existing Sec.  4.470(d) to allow for other movants, motions, times for 
filing, and reasons.
    Paragraph (g) requires service of a motion or response on the other 
parties to the appeal.

Section 4.474

    Existing Sec.  4.472 dealing with the authority of an ALJ has been 
redesignated as new Sec.  4.474(a)-(b). Paragraph (c) has been added to 
authorize the ALJ to rule on any petition for a stay of a BLM decision 
or any motion. As noted above, the authority of an ALJ to consolidate 
appeals, found in existing Sec.  4.470(c) and proposed as Sec.  
4.470(e), has been added to this section as paragraph (d).

Section 4.478

    Existing Sec.  4.476 dealing with appeals to IBLA has been 
redesignated as new Sec.  4.478. Because we are not amending the 
general rules in subpart B as proposed, we have revised proposed 
paragraph (a) by removing the reference to proposed Sec.  4.24(c) and 
have incorporated proposed Sec.  4.24(d) through (f) as Sec.  4.478(b) 
through (d). Proposed Sec.  4.478(b), which was based on existing Sec.  
4.476, has become paragraph (e).

Section 4.479

    Existing Sec.  4.477 dealing with the effectiveness of a BLM 
decision pending appeal has been redesignated as Sec.  4.479. Final 
Sec.  4.479 has been expanded from its proposed version to explain more 
fully the effectiveness of a BLM grazing decision pending appeal. 
Paragraph (a) has been added to incorporate the limited automatic stay 
provisions of existing Sec.  4.21(a) and proposed Sec.  4.22. These 
automatic stay provisions do not apply if BLM has made its decision 
immediately effective under Sec.  4160.3, as set forth in proposed 
Sec.  4.479(a), which is final Sec.  4.479(b), or under Sec.  4190.1, 
which was added by the June 5, 2003, rulemaking 68 FR 33794, 33804.
    As noted previously, final Sec.  4.479(c) has been added to extend 
to the ALJ the authority given to the OHA Director and the Board in 
Sec.  4.21(a)(1) to make a decision effective immediately when the 
public interest so requires, notwithstanding the automatic stay 
provisions of Sec.  4.21(a)(1)-(3). Proposed Sec.  4.479(b) has been 
retained as final Sec.  4.479(d). Final Sec.  4.479(e) and (f) modify 
proposed Sec.  4.479(c) to clarify the requirement for exhaustion of 
administrative remedies and to reflect the decision in the Hahn case, 
discussed above.

[[Page 68769]]

II. Review Under Procedural Statutes and Executive Orders

A. Regulatory Planning and Review (E.O. 12866)

    In accordance with the criteria in Executive Order 12866, the 
Department finds 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 will 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 will have virtually no effect on the 
economy because they will only add authority for ALJs to decide 
petitions for a stay of BLM grazing decisions, and provide for appeals 
of ALJ decisions on such petitions.
    2. This rule will not create inconsistencies with or interfere with 
other agencies' actions. The rules amend existing OHA regulations to 
add authority for ALJs to decide petitions for a stay of BLM grazing 
decisions, and provide for appeals of ALJ decisions on such petitions.
    3. This rule will 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 rule will only add authority for 
ALJs to decide petitions for a stay of BLM grazing decisions, and 
provide for appeals of ALJ decisions on such petitions.
    4. This rule does not raise novel legal or policy issues. The rule 
simply extends ALJs' existing authority to include the authority to 
decide petitions for a stay of BLM grazing decisions, and provides for 
appeals of ALJ decisions on such petitions.

B. 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 under the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). The extension of authority to ALJs to decide petitions for a 
stay of BLM grazing decisions, and providing for appeals of ALJ 
decisions on such petitions, will 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.
    1. This rule will 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 providing for appeals of ALJ 
decisions on such petitions, will have no effect on the economy.
    2. This rule will 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 providing for 
appeals of ALJ decisions on such petitions, will not affect costs or 
prices for citizens, individual industries, or government agencies.
    3. This rule 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. Extending authority to ALJs to decide petitions for a stay 
of BLM grazing decisions, and providing for appeals of ALJ decisions on 
such petitions, will 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.), the Department finds as follows:
    1. This rule will 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 providing for appeals of 
ALJ decisions on such petitions, will 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 will 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, the Department finds that 
the rule will 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 providing for appeals of ALJ decisions on such 
petitions, will have no effect on property rights.

F. Federalism (E.O. 13132)

    In accordance with Executive Order 13132, the Department finds 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 providing for 
appeals of ALJ decisions on such petitions. 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 meets 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 provide for appeals of ALJ decisions on such 
petitions, will not burden either administrative or judicial tribunals.

H. Paperwork Reduction Act

    This rule will 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 will only 
extend authority to ALJs to decide petitions for stay of BLM grazing 
decisions, and provide for appeals of ALJ decisions on such petitions; 
they will 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

[[Page 68770]]

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 this 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 this rule. This rule is an administrative and 
procedural rule, relating to the authority of ALJs to decide petitions 
for stays of BLM grazing decisions, and providing for appeals of ALJ 
decisions on such petitions. 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 this rule on 
federally recognized Indian tribes and has determined that there are no 
potential effects. These rules will not affect Indian trust resources; 
they will provide authority to ALJs to decide petitions for a stay of 
BLM grazing decisions, and provide for appeals of ALJ decisions on such 
petitions.

K. Effects on the Nation's Energy Supply

    In accordance with Executive Order 13211, the Department finds that 
this regulation does not have a significant effect on the nation's 
energy supply, distribution, or use. Extending authority to ALJs to 
decide petitions for a stay of BLM grazing decisions, and providing for 
appeals of ALJ decisions on such petitions, will not affect energy 
supply or consumption.

List of Subjects in 43 CFR Part 4

    Administrative practice and procedure, Grazing lands, Public lands.

    Dated: December 3, 2003.
P. Lynn Scarlett,
Assistant Secretary--Policy, Management and Budget.

0
For the reasons set forth in the preamble, part 4, subpart E, of title 
43 of the Code of Federal Regulations is amended as set forth below:

PART 4--[AMENDED]

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

0
1. The authority for 43 CFR part 4, subpart E, is revised to read as 
follows:

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


0
2. The cross reference for 43 CFR part 4, subpart E, continues to read 
as follows:
    Cross Reference: See subpart A for the authority, jurisdiction, and 
membership of the Board of Land Appeals within the Office of Hearings 
and Appeals. For general rules applicable to proceedings before the 
Board of Land Appeals as well as the other Appeals Boards of the Office 
of Hearings and Appeals, see subpart B.

0
3. In Sec.  4.421, revise paragraph (c) and add paragraph (h) to read 
as follows:


Sec.  4.421  Definitions

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


Sec. Sec.  4.471-4.478  [Redesignated]

0
4. Redesignate Sec. Sec.  4.471 through 4.478 as Sec. Sec.  4.473 
through 4.480, respectively.
0
5. Revise Sec.  4.470 and add new Sec. Sec.  4.471 and 4.472 to read as 
follows:


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

    (a) Any applicant, permittee, lessee, or other person whose 
interest is adversely affected by a final BLM grazing decision may 
appeal the decision to an administrative law judge within 30 days after 
receiving it or within 30 days after a proposed decision becomes final 
as provided in Sec.  4160.3(a) of this title. To do so, the person must 
file an appeal with the BLM field office that issued the decision and 
serve a copy of the appeal on any person named in the decision.
    (b) The appeal must state clearly and concisely the reasons why the 
appellant thinks the BLM grazing decision is wrong.
    (c) Any ground for appeal not included in the appeal is waived. The 
appellant may not present a waived ground for appeal at the hearing 
unless permitted or ordered to do so by the administrative law judge.
    (d) Any person who, after proper notification, does not appeal a 
final BLM grazing decision within the period provided in paragraph (a) 
of this section may not later challenge the matters adjudicated in the 
final BLM decision.
    (e) Filing an appeal does not by itself stay the effectiveness of 
the final BLM decision. To request a stay of the final BLM decision 
pending appeal, see Sec.  4.471.


Sec.  4.471  How to petition for a stay of a final BLM grazing 
decision.

    (a) An appellant under Sec.  4.470 may petition for a stay of the 
final BLM grazing decision pending appeal by filing a petition for a 
stay together with the appeal under Sec.  4.470 with the BLM field 
office that issued the decision.
    (b) Within 15 days after filing the appeal and petition for a stay, 
the appellant must serve copies on--
    (1) Any other person named in the decision from which the appeal is 
taken; and
    (2) The appropriate office of the Office of the Solicitor, in 
accordance with Sec.  4.413(a) and (c).
    (c) A petition for a stay of a final BLM grazing decision pending 
appeal under paragraph (a) of this section must show sufficient 
justification based on the following standards:
    (1) The relative harm to the parties if the stay is granted or 
denied;
    (2) The likelihood of the appellant's success on the merits;
    (3) The likelihood of immediate and irreparable harm if the stay is 
not granted; and
    (4) Whether the public interest favors granting the stay.
    (d) The appellant requesting a stay bears the burden of proof to 
demonstrate that a stay should be granted.


Sec.  4.472  Action on an appeal and petition for a stay.

    (a) BLM must transmit any documents received under Sec. Sec.  4.470 
and 4.471, within 10 days after receipt, to the Hearings Division, 
Office of Hearings and Appeals, Salt Lake City, Utah. If a petition for 
a stay has been filed, the transmittal must also include any response 
BLM wishes to file to a petition for a stay and the following documents 
from the case file: the application, permit, lease, or notice of 
unauthorized use underlying the final

[[Page 68771]]

BLM grazing decision; the proposed BLM grazing decision; any protest 
filed by the appellant under Sec.  4160.2; the final BLM grazing 
decision; and any other documents that BLM wishes the administrative 
law judge to consider in deciding the petition for a stay. BLM must 
serve a copy of any such response on the appellant and any other person 
named in the decision from which the appeal is taken.
    (b) Any person named in the decision from which an appeal is taken 
(other than the appellant) who wishes to file a response to the 
petition for a stay may file with the Hearings Division a motion to 
intervene in the appeal, together with the response, within 10 days 
after receiving the petition. Within 15 days after filing the motion to 
intervene and response, the person must serve copies on the appellant, 
the appropriate office of the Office of the Solicitor in accordance 
with Sec.  4.413(a) and (c), and any other person named in the 
decision.
    (c) If a petition for a stay has not been filed, BLM must promptly 
transmit the following documents from the case file to the 
administrative law judge assigned to the appeal, once the appeal has 
been docketed by the Hearings Division: the application, permit, lease, 
or notice of unauthorized use underlying the final BLM grazing 
decision; the proposed BLM grazing decision; any protest filed by the 
appellant under Sec.  4160.2; and the final BLM grazing decision.
    (d) Within 45 days after the expiration of the time for filing a 
notice of appeal, an administrative law judge must grant or deny--
    (1) A petition for a stay filed under Sec.  4.471(a), in whole or 
in part; and
    (2) A motion to intervene filed with a response to the petition 
under paragraph (b) of this section.
    (e) Any final BLM grazing decision that is not already in effect 
and for which a stay is not granted will become effective immediately 
after the administrative law judge denies a petition for a stay or 
fails to act on the petition within the time set forth in paragraph (d) 
of this section.
    (f) At any appropriate time, any party may file with the Hearings 
Division a motion to dismiss the appeal or other appropriate motion. 
The appellant and any other party may file a response to the motion 
within 30 days after receiving a copy.
    (g) Within 15 days after filing a motion or response under 
paragraph (f) of this section, any moving or responding party must 
serve a copy on every other party. Service on BLM must be made on the 
appropriate office of the Office of the Solicitor in accordance with 
Sec.  4.413(a) and (c).

0
6. In newly redesignated Sec.  4.474, add paragraphs (c) and (d) 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 a petition for a stay of a final BLM 
grazing decision.
    (d) An administrative law judge may consolidate two or more appeals 
for purposes of hearing and decision when they involve a common issue 
or issues.

0
7. Revise newly redesignated Sec.  4.478 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.
    (b) As an alternative to paragraph (a) of this section, any party 
other than BLM may seek judicial review under 5 U.S.C. 704 of a final 
BLM grazing decision if the administrative law judge denies a petition 
for a stay, either directly or by failing to meet the deadline in Sec.  
4.472(d).
    (c) If a party appeals under paragraph (a) of this section, the 
Board must issue an expedited briefing schedule and decide the appeal 
promptly.
    (d) Unless the Board or a court orders otherwise, an appeal under 
paragraph (a) 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.
    (e) Any party adversely affected by the administrative law judge's 
decision on the merits has the right to appeal to the Board under the 
procedures in this part.

0
8. Revise newly redesignated Sec.  4.479 to read as follows:


Sec.  4.479  Effectiveness of decision during appeal.

    (a) Consistent with the provisions of Sec. Sec.  4.21(a) and 
4.472(e) and except as provided in paragraphs (b) and (c) of this 
section or other applicable regulation, a final BLM grazing decision 
will not be effective--
    (1) Until the expiration of the time for filing an appeal under 
Sec.  4.470(a); and
    (2) If a petition for a stay is filed under Sec.  4.471(a), until 
the administrative law judge denies the petition for a stay or fails to 
act on the petition within the time set forth in Sec.  4.472(d).
    (b) Consistent with the provisions of Sec. Sec.  4160.3 and 4190.1 
of this title and notwithstanding the provisions of Sec.  4.21(a), a 
final BLM grazing decision may provide that the decision will be 
effective immediately. Such a decision will remain effective pending a 
decision on an appeal, unless a stay is granted by an administrative 
law judge under Sec.  4.472 or by the Board under Sec.  4.478(a).
    (c) Notwithstanding the provisions of Sec.  4.21(a), when the 
public interest requires, an administrative law judge may provide that 
the final BLM grazing decision will be effective immediately.
    (d) An administrative law judge or the Board may change or revoke 
any action that BLM takes under a final BLM grazing decision on appeal.
    (e) In order to ensure exhaustion of administrative remedies before 
resort to court action, a BLM grazing decision is not final agency 
action subject to judicial review under 5 U.S.C. 704 unless--
    (1) A petition for a stay of the BLM decision has been timely filed 
and the BLM decision has been made effective under Sec.  4.472(e), or
    (2) The BLM decision has been made effective under paragraphs (b) 
or (c) of this section or other applicable regulation, and a stay has 
not been granted.
    (f) Exhaustion of administrative remedies is not required if a stay 
would not render the challenged portion of the BLM decision inoperative 
under subpart 4160 of this title.

[FR Doc. 03-30631 Filed 12-9-03; 8:45 am]
BILLING CODE 4310-79-P