Interior Board of Land Appeals Procedures, 10454-10466 [E7-3774]

Agencies

• Office of the Secretary
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 45 (Thursday, March 8, 2007)]
[Proposed Rules]
[Pages 10454-10466]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-3774]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 4

RIN 1094-AA53


Interior Board of Land Appeals Procedures

AGENCY: Office of the Secretary, Interior.

ACTION: Proposed rule.

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SUMMARY: The Office of Hearings and Appeals (OHA) is proposing to amend 
several existing procedural regulations governing appeals to the 
Interior Board of Land Appeals (IBLA) and to adopt new regulations 
governing consolidation, extensions of time, intervention, and motions.

DATES: You should submit your comments by May 7, 2007.

ADDRESSES: You may submit comments, identified by the number 1094-AA53, 
by any of the following methods:

--Federal rulemaking portal: https://www.regulations.gov. Follow the 
instructions for submitting comments.
--Fax: 703-235-9014.
--E-mail: John--Strylowski@ios.doi.gov. Include the number 1094-AA53 in 
the subject line of the message.
--Mail: Director, Office of Hearings and Appeals, Department of the 
Interior, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203.
--Hand delivery: Director, Office of Hearings and Appeals, Department 
of the Interior, 801 N. Quincy Street, Suite 400, Arlington, Virginia 
22203.

FOR FURTHER INFORMATION CONTACT: Robert S. More, Director, Office of 
Hearings and Appeals, U.S. Department of the Interior, Phone 703-235-
3750. Persons who use a telecommunications device for the deaf may call 
the Federal Information Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Public Comments

    If you wish to comment on this proposed rule, you may submit your 
comments by any of the methods listed in the ADDRESSES section above. 
We will consider all comments received by the deadline stated in the 
DATES section above.
    Please make your comments as specific as possible and explain the 
reason for any changes you recommend. Where possible, your comments 
should refer to the specific section or paragraph of the regulations 
you are addressing.
    Our practice is to make comments, including the names of 
respondents and their home addresses, phone numbers, and e-mail 
addresses, available for public review during regular business hours. 
To review the comments, you may contact the individual listed in the 
FOR FURTHER INFORMATION CONTACT section above.
    Individual respondents may request that we withhold their names and 
home addresses, etc. But if you wish us to consider withholding this 
information, you must state this prominently at the beginning of your 
comments. In addition, you must present a rationale for withholding 
this information that demonstrates that disclosure would constitute a 
clearly unwarranted invasion of personal privacy. Unsupported 
assertions will not meet this burden. In the absence of exceptional, 
documented circumstances, this information will be released. We will 
always make 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

    Based on its experience in recent years, OHA has determined that 
certain of its existing procedural regulations in 43 CFR part 4, 
subparts E and L, need to be updated, clarified, or otherwise revised 
to promote expeditious administrative review. (Subpart E contains 
regulations governing public land hearings and appeals; subpart L 
contains regulations governing surface coal mining hearings and 
appeals.) For example, we propose to amend the existing regulations 
governing service of documents, reconsideration, statements of reasons 
for appeal, answers, and requests for hearings.
    In addition, OHA has decided to add regulations to subpart E to 
provide procedures governing motions for consolidation, extensions of 
time, and intervention, and for serving and responding to any other 
motions. These subjects are not currently covered in OHA's regulations, 
and questions have arisen about whether and how these procedures are 
conducted by IBLA. The amendments and additions are explained in the 
following section-by-section analysis.

III. Section-by-Section Analysis

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

Section 4.400 Definitions

    We propose to define ``BLM'' to mean ``Bureau of Land Management,'' 
and revise the definition of ``bureau'' to include the Minerals 
Management Service, because IBLA reviews some decisions of the Minerals 
Management Service under subpart E, e.g., decisions concerning offshore 
minerals management and royalty management. See 30 CFR Sections 290.2, 
290.8, 290.108. We propose to add IBLA's address to the definition of 
``Board,'' so we do not have to repeat it in other sections of the 
regulations. And we would add a definition of ``last address of 
record'' because this phrase appears in proposed Sections 4.401(c)(1) 
and 4.422(c)(1), the regulations governing service of documents.
    The regulations would specify that ``party'' includes a party's 
representative(s) where the context so requires, e.g., in the service 
regulations where service must be made by or upon a party. The 
regulations would also specify that ``office'' or ``officer'' includes 
an administrative law judge or

[[Page 10455]]

the Board where the context so requires, e.g., in Section 4.411(a)(1) 
requiring that a notice of appeal be filed in the office of the officer 
who made the decision being appealed.

Section 4.401 Documents

    In 2003 we amended Section 4.401(c)(2) to allow a party to certify 
service of a document on other parties by signing a written statement 
at the end of a document that service has been or will be made, rather 
than requiring the party to file proof of service in the form of a 
written statement or a Postal Service return receipt. 68 FR 33794, 
33803 (June 5, 2003). We did so as a step towards ``bringing IBLA's 
practice into line with current rules in Federal and state courts.'' 68 
FR 33801 (June 5, 2003).
    Existing Section 4.401(c)(1) provides that service ``may be made by 
delivering [a copy of a document] personally to [a person] or by 
sending the document by registered or certified mail, return receipt 
requested, to [the person's] address of record in the Bureau.'' We now 
propose to revise Section 4.401(c)(1) to allow service of a document, 
other than a notice of appeal that initiates a proceeding, by first-
class mail to a person's last address of record or by delivery service 
to a person's last address of record if it is not a post office box. 
``Last address of record'' is defined in Section 4.400 as the address 
provided in a person's most recent filing in an appeal or, if there has 
not been any filing, the person's address as provided in the bureau 
decision under appeal.
    This change would make IBLA's service regulation more consistent 
with Rule 5(b)(2)(B) of the Federal Rules of Civil Procedure (FRCP). 
That rule permits service of a document (other than the complaint that 
commences a civil action) by mailing a copy of it to the last known 
address of the person to be served.
    Under the proposed rule, it will remain a party's responsibility to 
assure that service is made, and to certify under Section 4.401(c)(3) 
when and how it was or will be made. One who chooses a means of 
delivery of a document must accept responsibility for and bear the 
consequences of delay or nondelivery, National Wildlife Federation, 162 
IBLA 263, 266 (2004); and the presumption of regularity that officials 
have properly discharged their duties and have not lost or misplaced a 
document will prevail over the presumption that a properly addressed 
letter with sufficient postage will be delivered. Marathon Oil Co., 128 
IBLA 168, 172 (1994); Robert J. King, 72 IBLA 72, 75 (1983). However, 
it is not necessary to prescribe, except for a notice of appeal that 
initiates an appeal, that service occur only by personal delivery or by 
registered or certified mail. Because delivery services cannot deliver 
to post office boxes, we propose that service by a delivery service may 
not be made if the person's last address of record is a post office 
box.
    This regulation governing service would apply to any document filed 
in a proceeding under subpart E. The regulation would also provide that 
service must occur concurrently with filing, i.e., that copies of a 
document would be delivered, mailed, or given to a delivery service for 
delivery to adverse parties at the same time the document is delivered 
or mailed or given to a delivery service for delivery to the Board. 
These provisions are comparable to those in subpart L governing service 
in proceedings under the Surface Mining Control and Reclamation Act. 
See Section 4.1109.
    Comparable to existing Section 4.401(c)(3), proposed Section 
4.401(c)(4) states that service is complete when delivery takes place, 
whether by personal service, regular mail, registered or certified 
mail, or a delivery service. Service will also be complete when the 
Postal Service or a delivery service returns a document undelivered. A 
party should be able to rely on another party's address of record in 
the bureau; and if a document sent to that address comes back 
undelivered, the party has fulfilled its service obligation.
    Proposed Section 4.401(c)(5) states that, in the absence of 
evidence to the contrary, delivery by regular mail, registered or 
certified mail, or a delivery service will be deemed to take place 3 
business days after the document was sent. Contrary evidence could 
include a return receipt from the Postal Service or the delivery 
service, or a certification from a party's representative as to the 
actual date on which the party received a document sent by regular 
mail.
    We propose corresponding revisions to existing Section 4.422(c).

Section 4.403 Finality of Decision; Reconsideration

    The existing regulation provides that IBLA ``may reconsider a 
decision in extraordinary circumstances for sufficient reason.'' This 
language is not defined, and the preamble to the regulation explained 
only that ``the Board does not intend to enlarge the scope of its 
reconsideration practice to make it a routine feature of adjudication. 
This provision reinforces the Board's expectation that parties will 
make complete submissions in a timely manner during the appeal, not 
afterward on reconsideration.'' 52 FR 21307 (June 5, 1987). Although 
these statements are still true, IBLA has had sufficient experience 
with the regulation to enable it to identify circumstances that have 
frequently been found ``extraordinary,'' as well as those that have 
not. Because petitions for reconsideration are often granted by order 
rather than by published decision, and are therefore less available to 
the public, we propose to amend the regulation to provide guidance 
based on this experience.
    We propose revising the language in paragraph (b) to state that the 
Board may reconsider a decision ``in extraordinary circumstances,'' 
rather than ``in extraordinary circumstances for sufficient reason,'' 
because ``for sufficient reason'' does not add any meaning. That is, 
IBLA may grant reconsideration if it finds extraordinary circumstances; 
it does not also need to determine whether the extraordinary 
circumstances provide sufficient reason to do so.
    Paragraph (b)(1) would clarify that a party files a motion for 
reconsideration (rather than a ``petition'' for reconsideration, as in 
the existing regulation) with the Board.
    Proposed paragraph (b)(3) is a revision of the language of the 
existing regulation, which states that ``[n]o answer to a petition is 
required unless so ordered by the Board.'' The proposed regulation 
would allow parties to file an answer if they wish and would provide 15 
days for doing so. See June I. Degnan (On Reconsideration), 114 IBLA 
373, 376 (1990).
    Paragraph (b)(4) would add that the Board may stay the 
effectiveness of its decision, in response to a motion for 
reconsideration, ``for good cause.''
    Paragraph (d) lists some of the circumstances that may warrant 
IBLA's granting a motion in its discretion.
    For examples of cases in which reconsideration has been granted 
because of an error of fact, see Joan Chorney (On Reconsideration), 109 
IBLA 96, 97 (1989); State of Alaska (Elliot R. Lind) (On 
Reconsideration), 104 IBLA 12, 15 (1988); and Marathon Oil Co. (On 
Reconsideration), 103 IBLA 138, 140 (1988).
    For an example of IBLA's granting reconsideration based on a recent 
judicial development, see Amoco Production Co., 143 IBLA 45, 54A-54E 
(1998).
    For examples of the kind of change in Departmental policy that 
might warrant reconsideration under paragraph (d)(3), see Conoco, Inc., 
164 IBLA 237, 241 (2005); Conoco, Inc., 115 IBLA 105, 106 (1990); and 
Ladd Petroleum Corp., 107 IBLA 5, 8 (1989).

[[Page 10456]]

    The second sentence of paragraph (d)(4) is intended to reinforce 
the expectation mentioned above that parties will make complete 
submissions during the appeal. A party that relies on newly-submitted 
evidence must explain why the evidence was not provided previously. If 
it does not, the Board may find the motion does not show extraordinary 
circumstances. See Ulf Teigen (On Reconsideration), 159 IBLA 142, 144 
(2003); Dugan Production Corp., 117 IBLA 153, 157-58 (1990).
    Paragraph (e) is intended to discourage a party from re-arguing its 
reasons for appeal in a motion for reconsideration, in the absence of 
demonstrable error. See, e.g., Dona Jeanette Ong (On Reconsideration), 
166 IBLA 65 (2005). Nor should a party file a motion for 
reconsideration when a statute or regulation prescribes consequences 
that IBLA has no authority to alter, e.g., 43 U.S.C. 1744(c) or 30 
U.S.C. 28i. See, e.g., Lee H. and Goldie Rice, 128 IBLA 137, 141 
(1993).

Section 4.404 Consolidation

    The Board does not have a regulation providing that it may 
consolidate appeals, so we propose to add one. If the facts or legal 
issues involved in two or more appeals are the same or substantially 
similar, it may be more efficient to consider them together. The Board 
may consolidate appeals on its own initiative or on motion of a party. 
It may do so at any time before the appeals are decided; thus, it is 
possible to consolidate recently-docketed appeals with those that have 
been pending longer. Parties would have 15 days after service of a 
motion to consolidate to file a response, in accordance with new 
Section 4.407(b).
    For examples of cases that IBLA has consolidated, see San Carlos 
Apache Tribe, 149 IBLA 29, 30 (1999); Murphy Exploration and Production 
Co., 147 IBLA 386, 387 (1999); Elaine D. Berman, 140 IBLA 173 (1997); 
and Coastal Oil and Gas Corp., 108 IBLA 62, 63 (1989).

Section 4.405 Requests for Extension of Time

    Several regulations require parties to file documents with the 
Board within specified times, e.g., Section 4.412(a) (statement of 
reasons within 30 days after filing of the notice of appeal) and 
Section 4.414 (answer within 30 days after service of a notice of 
appeal or statement of reasons). See also Section 4.413(a) (service of 
a notice of appeal or a statement of reasons or other pleading within 
15 days after filing the document). Failure to comply with Sections 
4.412 and 4.413 may subject an appeal to summary dismissal. Section 
4.402.
    Although parties frequently request extensions of time for filing 
statements of reasons or answers, the only regulation governing how 
they do so is Section 4.22(f). IBLA's experience indicates a need for a 
regulation that establishes a standard for when such requests may be 
granted. As noted by the former Administrative Conference of the United 
States:

    Time extensions should be granted only upon strong, documented 
justification. While procedural fairness mandates that deadlines may 
be extended for good cause, presiding officers should be aware that 
casual, customary extensions have serious negative effects on an 
adjudicatory system, its participants, and those wishing access 
thereto. Stern warnings accompanying justified extensions have had 
good success in curtailing lawyers' requests for additional time.

Recommendations of the Administrative Conference Regarding 
Administrative Practice and Procedure, Recommendation No. 86-7, 51 FR 
46985, 46990 (Dec. 30, 1986).

    Accordingly, we propose a new regulation that would require a party 
to show good cause for requesting any extension. Consent of opposing 
counsel, standing alone, would not constitute good cause; but 
conducting settlement negotiations in good faith would constitute good 
cause for a reasonable extension of time. ``Good cause'' would be more 
difficult to show with additional requests or requests for longer 
extensions.
    A party that foresees it will need an extension is strongly 
encouraged to file a motion requesting it as early as possible, in 
order to give the Board time to consider the motion. Under the proposed 
regulation, the deadline for filing a request for an extension is the 
day before the date the document is due, absent compelling 
circumstances. For example, if a document is due on a Friday, the 
motion requesting an extension would be due no later than Thursday; if 
it is due on Monday, the motion would be due on the previous Friday. 
See Section 4.22(e). A party may file and serve such a motion by 
facsimile.
    Any party that objected to a motion requesting an extension would 
have to file its reasons for objection with the Board within 2 business 
days. A party may likewise file and serve such an objection by 
facsimile.
    A Board order granting or denying a motion requesting an extension 
will state when the document must be filed. If the Board does not act 
on a motion before the document is due, the document must be filed no 
later than 15 days after the original due date, unless the Board orders 
otherwise. For example, if a document were due on the 10th of the 
month, a motion for extension of time is filed by the 9th, but the 
Board has not issued an order by the 10th, the document would be due on 
the 25th unless, after the 10th, the Board issued an order providing a 
different date. See Section 4.22(e). The Board fully intends to rule on 
all motions it receives for an extension of time. But since we are 
proposing to allow such motions to be filed up to the close of business 
on the day before a document is due and to allow objections to be filed 
within 2 business days thereafter, in many cases it will not be 
possible for the Board to rule on such motions before the original 
document due date. We are therefore proposing this 15-day automatic 
extension period, which can be either shortened or lengthened when the 
Board does rule on the motion, generally within 1 or 2 business days 
after the time for filing an objection has expired.

Section 4.406 Intervention; Amicus Curiae

    There is currently no regulation governing intervention in appeals 
to IBLA under 43 CFR part 4, subpart E, although there is such a 
regulation in subpart L, Section 4.1110. As a result, there are no 
established standards for when a person may intervene. As a related 
matter, there is no regulation in subpart E governing when a person may 
appear as an amicus curiae, although there is a general regulation in 
Section 4.3(c). We are therefore proposing a regulation that would 
govern these matters.
    IBLA decisions state that a person who ``could independently 
maintain the action in which he seeks to participate'' may intervene. 
See, e.g., Sierra Club--Rocky Mountain Chapter, 75 IBLA 220, 221 n. 2 
(1983); United States v. United States Pumice Co., 37 IBLA 153, 157 
(1978). Similarly, IBLA has granted intervention to a person who would 
be adversely affected if the agency decision were reversed or modified 
on appeal, e.g., the proponent of a project approved by the agency. 
See, e.g., Las Vegas Valley Action Committee, 156 IBLA 110, 112 (2001); 
Bear River Land & Grazing v. BLM, 132 IBLA 110, 113-14 (1995).
    When the Board has denied a petition to intervene, it has often 
allowed the person to participate as an amicus curiae. See, e.g., 
Southern Utah Wilderness Alliance, 161 IBLA 15, 18 n. 4 (2004); 
Sanguine Limited, 157 IBLA 277, 281 n. 4 (2001).

[[Page 10457]]

    We propose that the Board may grant a motion to intervene that is 
timely filed by a person who would have a right of appeal under Section 
4.410 or would be adversely affected if the decision under review were 
reversed, vacated, set aside, or modified by the Board on appeal. 
Whether a motion to intervene is timely would depend on the potential 
intervenor's relationship to the case.
    Specifically, if the person would be adversely affected if the 
decision under review were reversed, vacated, set aside, or modified by 
the Board on appeal, a motion to intervene must be filed within 30 days 
after the person knew or should have known that the decision under 
review had been appealed. If, however, the person wishing to intervene 
would have a right of appeal under Section 4.410, the motion must be 
filed within 30 days after the person was served with the decision or, 
if not served, knew or should have known of the decision. See 
Independent Petroleum Association of Mountain States, 136 IBLA 279, 281 
(1996) (Board will deny motion to intervene where granting it would 
circumvent the requirement in Section 4.411(a) that an appeal be filed 
within 30 days after service of a decision).
    The burden of showing a motion to intervene is timely filed is on 
the person filing the motion. The motion must state the basis for the 
proposed intervention.
    The Board could deny the motion if granting it would disadvantage 
the rights of the existing parties or unduly delay adjudication of the 
appeal, e.g., if the motion is filed after all briefs have been 
submitted and the appeal is ripe for adjudication. Alternatively, the 
Board could grant the motion but limit the extent of the person's 
participation in the appeal.
    Under the proposed regulation, any person could file a motion to 
file a brief as an amicus curiae. The motion must state what interest 
the person has in the appeal and how its brief would be relevant to the 
issues involved. The Board could grant or deny the motion in its 
discretion. The Board may also allow a person whose motion to intervene 
is denied to file a brief as an amicus curiae.

Section 4.407 Motions

    There is currently no regulation that deals with motions filed with 
the Board, e.g., that states when the parties may file responses or 
provides when the Board is to act. In order to standardize practice and 
facilitate prompt rulings, we are proposing a regulation requiring a 
party that files a motion with the Board to support it with reasons. 
The regulation would allow other parties to respond within 15 days and 
states that the Board would rule ``as expeditiously as possible.''
    The 15-day response time in Section 4.407(b) would apply to any 
motion filed in a proceeding under this subpart, unless another 
regulation or the Board by order sets a different response deadline. 
For example, Section 4.407(b) would normally apply to a motion under 
Sections 4.403, 4.404, or 4.406, discussed above, or to a motion to 
dismiss, to refer for hearing (Section 4.415), to suspend consideration 
or expedite consideration, to file a further pleading or exceed page 
limits (see amended Sections 4.412 and 4.414, discussed below), to 
request a remand, etc. Section 4.407(b) would not apply to a motion 
requesting an extension of time, since Section 4.405(d) sets a shorter 
response time for such motions.
    If a party needs more than 15 days to file a response, it may 
request an extension of time under Section 4.405.

Section 4.411 Appeal; How Taken, Mandatory Time Limit

    IBLA does not have jurisdiction over an appeal unless a notice of 
appeal is timely filed with the office of the officer who made the 
decision. Under Section 4.22(a), a document is filed when it is 
received, not when it is sent. Recently, cases have arisen in which an 
appellant has transmitted a notice of appeal via facsimile. Although 
the appellant attempted to transmit the notice so that it would be 
filed within 30 days, the office either did not receive it or did not 
receive it on time. See, e.g., National Wildlife Federation, 162 IBLA 
263, 264-66 (2004) (affirming dismissal of a request for State Director 
review because, although the appellant submitted the log of 
transmissions from its facsimile machine, there was no evidence that 
the request was received by the State Director by the time it was due). 
See also Underwood Livestock, Inc., 165 IBLA 128, 130-31 (2005). In 
order to avoid such issues, we propose to amend existing Section 
4.411(a) to clarify that transmitting a notice of appeal by facsimile 
would not constitute filing. The Board generally considers any document 
it receives by facsimile only a courtesy or advance copy; it does not 
consider the document filed until the original is received by the 
Board. (As noted above with respect to Section 4.405(b), however, we 
are proposing to make an exception for motions for extension of time 
and objections to such motions.)
    We propose to amend Section 4.411(b) to reflect IBLA decisions that 
require authorization for a person to represent more than one party, 
e.g., The Friends and Residents of Log Creek, 150 IBLA 44, 48 (1999) 
(``Proper application of the Department's rules of practice requires an 
affirmative showing that a representative of a named appellant is 
qualified and authorized to represent any other purported appellant or 
appellants, if single representation for multiple parties is 
intended.''); The Wilderness Society, 109 IBLA 175, 176 (1989) (``[A] 
party that wishes to join in another's appeal is well advised to file 
its own notice of appeal and statement of reasons, sign the appeal 
documents along with the other party, or authorize the other party's 
attorney, in advance, to represent it as well.'') See also Klamath 
Siskiyou Wildlife Center, 155 IBLA 347, 350-51 (2001). If an attorney 
or other person eligible under Section 1.3(b) to practice before the 
Department wishes to represent more than one appellant, the notice of 
appeal must state that he or she is authorized to do so.

Section 4.412 Statement of Reasons, Statement of Standing

    Section 4.412(a) requires an appellant to file a statement of 
reasons for appeal with the Board within 30 days after the notice of 
appeal is filed if the notice of appeal did not include a statement of 
reasons. The next sentence states: ``In any case, the Board will permit 
the appellant to file additional statements of reasons and written 
arguments or briefs within the 30-day period after the notice of appeal 
was filed.'' This sentence, together with existing Section 4.414 (which 
requires an answer be filed within 30 days after service of a statement 
of reasons and then again if additional reasons are filed by the 
appellant) means a party that wishes to participate in the appeal 
potentially must file two answers.
    We propose to allow an appellant to file a statement of reasons 
within 30 days after filing the notice of appeal (as it may under the 
existing regulation), but to revise Section 4.414 to state that any 
party that is served with a notice of appeal and that wishes to 
participate will have 60 days after service of the statement of reasons 
to file a single answer. We also propose that an appellant's statement 
of reasons may not exceed 30 pages (excluding exhibits, declarations, 
or other attachments) unless the appellant files a motion under Section 
4.407 to obtain leave of the Board by showing good cause. We propose 
that an appellant must also show good cause for leave to file any 
additional pleading, e.g., a reply to an answer. We propose the same 
page limit on answers.
    In IBLA's experience, because the agency's decision should contain 
a supporting rationale (see Larry Brown &

[[Page 10458]]

Associates, 133 IBLA 202, 205 (1995)), it is sufficient for the Board's 
purposes to receive a statement of reasons for appeal and an answer. 
More than this becomes costly and time-consuming to the parties and 
delays ripeness of the appeal for adjudication by the Board without 
providing additional useful argument.
    These proposals provide adequate opportunity for all parties to 
state their arguments and authorize the Board to allow longer or 
additional pleadings if a need for them is shown.
    We expect these pleadings will generally conform to the form 
requirements of Federal Rule of Appellate Procedure 32, e.g., be 
double-spaced, have adequate margins, and be in a standard type style.

Section 4.413 Service of Notice of Appeal

    We propose to revise Section 4.413(a) to require service of a 
notice of appeal in accordance with Section 4.401(c)(2)(i), i.e., by 
personal delivery or by registered mail or certified mail, return 
receipt requested. Under Section 4.401(c), all other documents filed 
with the Board must also be served.
    Several of the addresses of the Office of the Solicitor on which a 
copy of a notice of appeal and statement of reasons must be served 
under existing Section 4.413(c)(2) are out of date. The regulation 
would be revised to provide the current addresses.

Section 4.414 Answers

    43 CFR 4.414 currently provides that a party served with a notice 
of appeal that wishes to participate in an appeal must file an answer 
to an appellant's statement of reasons within 30 days after service of 
the statement. In its second sentence, the regulation provides, ``If 
additional reasons, written arguments, or briefs are filed by the 
appellant, the adverse party shall have 30 days after service thereof 
on him within which to answer them.''
    As discussed above under Section 4.412, we believe it is normally 
sufficient for each party to file only one brief unless it can show 
good cause for a further brief. We therefore propose to revise this 
regulation to require filing of a single answer (or motion, if 
appropriate, e.g., a motion to dismiss) within 60 days of service of 
the statement of reasons for appeal. The time for answer would be 
increased from 30 to 60 days to make it the same as the total length of 
time that an appellant has to file a statement of reasons from the date 
of service of the decision being appealed (30 days under Section 
4.411(a)(3) plus 30 days under Section 4.412(a)).
    If settlement negotiations promise to extend beyond 60 days, a 
person wishing to participate could file a motion requesting an 
extension of time to file an answer or motion under Section 4.405. An 
answer must respond to the statement of reasons for appeal and, if a 
person is representing more than one party, must state that the person 
is authorized to do so. Like an appellant, a party may not file a 
further pleading unless the Board grants a motion showing good cause to 
do so. Nor may an answer or motion exceed 30 pages (excluding exhibits, 
declarations, or other attachments) unless the Board grants a motion 
showing good cause.

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

    Existing 43 CFR 4.415 authorizes the Board, in its discretion, to 
refer a case to an administrative law judge (ALJ) for a hearing on an 
issue of fact, either on its own initiative or in response to a request 
from an appellant or an adverse party. The regulation provides that 
such a request must be filed within 30 days after an answer is due, and 
that, if the Board orders a hearing, it will specify the issues upon 
which the hearing is to be held.
    IBLA has found that the requirement in Section 4.415 that a request 
for a hearing be filed within 30 days after an answer is due is neither 
necessary nor advisable. Sometimes the need for a hearing does not 
become apparent until later. Because it is not necessary that a hearing 
be requested within 30 days after an answer is due, we propose to 
delete this requirement.
    When a party has requested a hearing without specifying the issues 
of fact involved or the reasons why a hearing is necessary, IBLA has 
found it helpful to issue an order requesting the party to list what 
specific material issues of fact require a hearing, what evidence 
concerning these issues must be presented by oral testimony, what 
witnesses need to be examined, and what evidence could be presented in 
documentary form, e.g., by affidavit, rather than by oral testimony. 
See, e.g., W.J. and Betty Lo Wells, 122 IBLA 250, 252 (1992).
    We propose to amend Section 4.415 to require a party that requests 
a hearing to specify in a motion what the material issues of fact are, 
what evidence must be presented, what witnesses need to be examined, 
and what documentary evidence needs to be explained, if any.
    Although IBLA has established standards for exercising its 
discretion in favor of granting such a request, they are not set forth 
in 43 CFR 4.415. The IBLA has regularly stated that a hearing is not 
necessary in the absence of a material issue of fact that, if proven, 
would alter the disposition of the appeal. Kim C. Evans, 82 IBLA 319, 
323 (1984).

    A hearing is necessary only where there is a material issue of 
fact requiring resolution through the introduction of testimony and 
other evidence. In the absence of such an issue, no hearing is 
required. See United States v. Consolidated Mines & Smelting Co., 
455 F.2d 432, 453 (9th Cir. 1971).

Ben Cohen (On Judicial Remand), 103 IBLA 316, 321 (1988). The Board has 
also said it `` `should grant a hearing when there are significant 
factual or legal issues remaining to be decided and the record without 
a hearing would be insufficient for resolving them.' '' Woods Petroleum 
Co., 86 IBLA 46, 55 (1985), quoting Stickelman v. United States, 563 
F.2d 413, 417 (9th Cir. 1977).
    We propose to include the standards for referral for a hearing in 
the regulation: that there is a material issue of fact which, if 
proven, would alter the outcome of the appeal or that there are 
significant factual or legal issues remaining to be decided and the 
record without a hearing would not be sufficient for resolving them. 
``Material'' means ``tending to prove or disprove a matter in issue.'' 
B. Garner, A Dictionary of Modern Legal Usage, (Oxford University 
Press, 1987), at 354.
    The existing regulation provides that the hearing will be held in 
accordance with Sections 4.430 to 4.439 and the general rules in 
subpart B of 43 CFR Part 4. Section 4.439 in turn states that, upon 
completion of the hearing, the ALJ will send the Board the record and 
proposed findings of fact on the issues presented at the hearing. Thus, 
Section 4.415 does not in terms authorize IBLA to refer a case to an 
ALJ either for a recommended decision or for a decision that would be 
final unless appealed to IBLA, although IBLA has long done both. See, 
e.g., Samedan Oil Corp., 163 IBLA 63, 71 (2004); Elizabeth B. Archer, 
102 IBLA 308, 310 (1988); Hondoo River and Trails, 91 IBLA 296, 304 
(1986). In recent years, IBLA's prevailing practice has been to refer 
the case to an ALJ for a hearing and issuance of a decision that will 
be final in the absence of an appeal.
    Another of OHA's appeals boards, the Interior Board of Indian 
Appeals (IBIA), also has regulations providing for the referral of a 
case to an ALJ for an evidentiary hearing. Those regulations specify 
that, following the hearing, the ALJ is to issue recommended findings 
of fact and conclusions of law. 43 CFR 4.337, 4.338 (2004). IBIA does 
not refer cases to an ALJ for a hearing and issuance of a final 
decision.

[[Page 10459]]

    Recently, the OHA Director issued a decision which concluded that 
IBLA's regulations at Sections 4.415 and 4.430 through 4.439 provide 
authority only

for the Board to refer a case for a hearing on one or more issues of 
fact that the Board is required to specify, and for the ALJ to 
conduct a hearing and make proposed findings of fact on the issues 
so referred. The Board is not authorized to refer a case to an ALJ 
for a recommended decision on the merits or for a decision that will 
be final in the absence of an appeal. If considerations of judicial 
economy favor expanding the authority of the Board and the ALJs to 
dispose of cases that involve disputed issues of fact, the solution 
is to amend the regulations.

Samedan Oil Corp., 32 OHA 61, 70 (2005)

    Accordingly, we propose to make explicit the Board's authority to 
refer a matter for a hearing followed by (1) proposed findings of fact 
on specified issues, (2) a recommended decision, or (3) a decision that 
will be final in the absence of an appeal. As discussed below, 43 CFR 
Sections 4.433 and 4.439 would be revised to give ALJs the 
corresponding authority. We welcome comments on the appropriateness and 
relative advantages of the three options, and whether the final 
regulations should include all three.
    Finally, the proposed regulation would provide that the Board may 
suspend the effectiveness of the decision under review pending a final 
decision on the appeal if, considering factors including those set 
forth in Section 4.21(b), it finds good cause to do so.

Section 4.421 Definitions

    Because ``administrative law judge,'' ``Board,'' ``bureau,'' and 
``Secretary'' are defined in Section 4.400, it is not necessary to 
repeat them in this regulation, and we propose to remove those 
definitions. We would alphabetize the remaining definitions and revise 
them to reflect the revisions to the definitions in Section 4.400.

Section 4.422 Documents

    As discussed above under Section 4.401, we propose to revise 
existing Section 4.422(c) to allow service by first-class mail and by a 
delivery service and to provide that service will be complete when a 
document is delivered or returned undelivered.

Section 4.433 Authority of the Administrative Law Judge

    As discussed above under Section 4.415, we propose to revise 
Section 4.433 to provide authority to an administrative law judge to 
issue a recommended decision or a decision that would be final for the 
Department absent an appeal to the Board, in addition to proposed 
findings of fact on the issues presented at the hearing. This authority 
is set forth in proposed Section 4.433(a)(4).

Section 4.434 Conduct of Hearing

    We propose to revise this regulation to substitute ``administrative 
law judge'' for ``examiner'' and to substitute ``bureau,'' as defined 
in Section 4.400, for ``Bureau of Land Management.''

Section 4.438 Summary of Evidence

    We propose to remove this regulation because the procedure 
described has not been used for many years and is unnecessary, since 
all hearings are transcribed. We would redesignate existing Section 
4.439 as Section 4.438.

Section 4.438 Action by Administrative Law Judge

    As discussed above under Section 4.415, we propose to revise this 
regulation to authorize an administrative law judge to issue a 
recommended decision or decision that would be final for the Department 
absent an appeal to the Board, in addition to proposed findings of fact 
on the issues presented at the hearing. An administrative law judge's 
decision that would be final for the Department absent appeal would 
not, however, be precedential.
    [D]ecisions of Administrative Law Judges, while certainly worthy 
of respectful consideration, are not Departmental precedents and are 
not binding on this Board nor are they binding upon other 
Administrative Law Judges, unless they are adopted by the Board in 
adjudication of an appeal.

McLean v. BLM, 133 IBLA 225, 235 n. 16 (1995); see also United States 
v. Mansfield, 35 IBLA 95, 100 (1978).
    We propose to delete the second sentence of the regulation, and to 
require the administrative law judge to serve on the parties the 
proposed findings, recommended decision, or decision that would be 
final absent appeal. We also propose to add a provision that the 
parties may file exceptions to proposed findings or a recommended 
decision with the Board.

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

    OHA recently published amendments to its regulations that 
authorized an administrative law judge to issue an order granting or 
denying a petition for stay of a BLM grazing decision. 43 CFR 4.474(c), 
68 FR 68765, 68771 (Dec. 10, 2003). The amendments also provided for an 
appeal to IBLA from such an order in Section 4.478(a), but did not 
specify a time or place for filing the appeal. See Western Watersheds 
Projects v. Bureau of Land Management, 166 IBLA 30, 37 (2005). We 
propose to amend Section 4.478(a) to provide that an appeal may be 
filed with the administrative law judge in accordance with Section 
4.411(a).

B. Subpart L--Special Rules Applicable to Surface Coal Mining Hearings 
and Appeals

Section 4.1117 Reconsideration

    In subpart L, 43 CFR 4.1276(a) provides that a party may ``move for 
reconsideration under Section 4.21(d); however, the motion shall be 
filed with the Board within 30 days after the date of the decision'' 
(rather than ``filed promptly,'' as provided in Section 4.21(d)). 
Because Section 4.1276 is in the part of subpart L headed ``Appeals to 
the Board from Decisions or Orders of Administrative Law Judges,'' the 
question has arisen whether Section 4.1276(a) governs reconsideration 
of other Board decisions under subpart L, e.g., in appeals of decisions 
of the Director of the Office of Surface Mining Reclamation and 
Enforcement under Section 4.1280 et seq.
    In order to provide a regulation governing reconsideration of any 
Board decision under subpart L and to make that regulation consistent 
with the revisions to Section 4.403, discussed above, we propose to add 
a regulation to the general provisions of subpart L stating that a 
petition for reconsideration may be filed within 60 days after the date 
of the decision and that the provisions of Section 4.403 will apply.

Section 4.1270 Petition for Discretionary Review of a Proposed Civil 
Penalty

    When Section 4.1270(f) was amended recently, 67 FR 61506, 61511 
(Oct. 1, 2002), the first sentence mistakenly referred to ``the rules 
in Sections 4.1273 through 4.1277.'' There is no Section 4.1277, so we 
are correcting the amendment of Section 4.1270(f) to refer to 4.1273 
through 4.1275.

Section 4.1276 Reconsideration

    This regulation will be removed because of the addition of Section 
4.1117, discussed above.

Section 4.1286 Motion for a Hearing

    Like Section 4.415, Section 4.1286 provides that a party may 
request a hearing before an administrative law judge ``to present 
evidence on an issue of fact,'' and that the Board, either in

[[Page 10460]]

response to a request or on its own motion, may refer a case to an 
administrative law judge ``for a hearing on an issue of fact.'' Also 
like Section 4.415, Section 4.1286 provides that the Board ``will 
specify the issues upon which the hearing will be held.'' In Section 
4.415, this language is followed by the statement that ``the hearing 
will be held in accordance with Sections 4.430 to 4.439 and the general 
rules in subpart B of this part.''
    As discussed above in connection with the proposed amendment to 
Section 4.415, Section 4.439 provides that after a hearing the 
administrative law judge will send the Board the record and proposed 
findings of fact; therefore, Section 4.415 has been construed as 
authorizing the Board to refer a matter for a hearing only for proposed 
findings of fact, not for a recommended decision or a decision that 
will be final in the absence of an appeal. Samedan Oil Corp., 32 OHA 
61, 70 (2005).
    Unlike Section 4.415, there is no statement in Section 4.1286 
referring to the authority under which a hearing will be conducted. To 
ensure there is no ambiguity in the Board's authority under Section 
4.1286 in light of the decision in Samedan, we are proposing an 
amendment similar to that proposed for Section 4.415.
    Paragraph (e) would provide that hearings under Section 4.1286 will 
be conducted under the regulations of subpart L that provide specific 
standards, deadlines, and procedures for other proceedings under the 
Surface Mining Control and Reclamation Act, including regulations 
governing discovery and the conduct of evidentiary hearings. In the 
absence of such a provision, those regulations would not apply, since 
hearings under Section 4.1286 are not required to be conducted under 5 
U.S.C. 554 (2000).

IV. Review Under Procedural Statutes and Executive Orders

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

    In accordance with the criteria in Executive Order 12866, the 
Office of Management and Budget has determined 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 more or adversely affect in a material way an economic 
sector, productivity, competition, jobs, the environment, public health 
or safety, or State, local, or tribal governments or communities. A 
cost-benefit and economic analysis is not required. These proposed 
regulations would have virtually no effect on the economy because they 
would only revise existing procedural regulations governing appeals and 
add new regulations governing consolidation of appeals, requests for 
extensions of time, motions, and intervention.
    2. This rule would not create inconsistencies with or interfere 
with other agencies' actions because only OHA provides regulations that 
govern procedures for appeals of decisions concerning the use and 
disposition of public lands and their resources and concerning surface 
coal mining.
    3. This rule would not materially alter the budgetary effects of 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients. These proposed regulations have to do 
only with procedures governing appeals, not with entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    4. This rule does not raise novel legal or policy issues. The 
proposed regulations would merely revise existing procedures and add 
regulations governing consolidation of appeals, requests for extensions 
of time, motions, and intervention, which are all familiar 
administrative procedures.

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 proposed regulations only revise or add procedural 
regulations governing appeals. 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. It would not have an annual effect on the economy of $100 
million or more. The proposed rule only revises procedural regulations 
governing appeals and adds regulations governing consolidation of 
appeals, requests for extensions of time, motions, and intervention. 
The rule should have no effect on the economy.
    2. It would not cause a major increase in costs or prices for 
consumers, individual industries, Federal, state, or local government 
agencies, or geographic regions. Revising OHA's procedural regulations 
governing appeals and adding regulations governing consolidation of 
appeals, requests for extensions of time, motions, and intervention 
would not affect costs or prices for citizens, individual industries, 
or government agencies.
    3. It 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. 
Revising OHA's procedural regulations governing appeals and adding 
regulations governing consolidation of appeals, requests for extensions 
of time, motions, and intervention should have no effects, adverse or 
beneficial, on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises.

D. Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we find that:
    1. This rule would not have a significant or unique effect on 
state, local, or tribal governments or the private sector. Revising 
OHA's procedural regulations governing appeals and adding regulations 
governing consolidation of appeals, requests for extensions of time, 
motions, and intervention would neither uniquely nor significantly 
affect these governments.
    2. This rule would not produce an unfunded Federal mandate of $100 
million or more on state, local, or tribal governments in the aggregate 
or the private sector in any year, i.e., it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. A statement 
containing the information required by the Unfunded Mandates Reform 
Act, 2 U.S.C. 1532, is not required.

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. Revising OHA's procedural regulations 
governing appeals and adding regulations governing consolidation of 
appeals, requests for extensions of time, motions, and intervention 
should have no effect on property rights.

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 revising

[[Page 10461]]

OHA's procedural regulations governing appeals and adding regulations 
governing consolidation of appeals, requests for extensions of time, 
motions, and intervention. 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 would not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. Because these regulations would improve OHA's procedural 
regulations governing appeals and add regulations governing 
consolidation of appeals, requests for extensions of time, motions, and 
intervention, they would not burden either administrative or judicial 
tribunals.

H. Paperwork Reduction Act

    This proposed rule would 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. The proposed rule is an 
administrative and procedural rule that revises OHA's procedural 
regulations governing appeals and adds regulations governing 
consolidation of appeals, requests for extensions of time, motions, and 
intervention.

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 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 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 
extraordinary circumstances listed in 516 DM 2, Appendix 2, applies to 
the proposed rule.
    The proposed rule is an administrative and procedural rule that 
revises OHA's procedural regulations governing appeals and adds 
regulations governing consolidation of appeals, requests for extensions 
of time, motions, and intervention. Therefore, 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 regulations on 
Federally recognized Indian tribes and has determined that there are no 
potential effects. These regulations would not affect Indian trust 
resources; they would only revise OHA's procedural regulations 
governing appeals and add regulations governing consolidation of 
appeals, requests for extensions of time, motions, and intervention.

K. Effects on the Nation's Energy Supply (E.O. 13211)

    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. Revising OHA's procedural regulations 
governing appeals and adding regulations governing consolidation of 
appeals, requests for extensions of time, motions, and intervention 
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. We invite your comments on how to make 
this rule easier to understand, including answers to the 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 (and shorter) 
sections? (A ``section'' appears in bold type and is preceded by the 
symbol ``Sec.  '' and a numbered heading; for example, Sec.  4.403 
Finality of decision; reconsideration.) (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: Exsec@ios.doi.gov.

List of Subjects in 43 CFR Part 4

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

    Dated: February 16, 2007.
R. Thomas Weimer,
Assistant Secretary--Policy, Management and Budget.

    For the reasons set forth in the preamble, the Office of Hearings 
and Appeals proposes to amend 43 CFR part 4 as set forth below:

PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES

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

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

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

    2. Revise Sec.  4.400 to read as follows:


Sec.  4.400  Definitions.

    As used in this subpart:
    Administrative law judge means an administrative law judge in the 
Office of Hearings and Appeals, Office of the Secretary, appointed 
under 5 U.S.C. 3105.
    BLM means the Bureau of Land Management.
    Board means the Interior Board of Land Appeals in the Office of 
Hearings and Appeals, Office of the Secretary. The address of the Board 
is 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203.
    Bureau means BLM or the Minerals Management Service, as 
appropriate.
    Last address of record means the address in a person's most recent 
filing in an appeal or, if there has not been any filing, the person's 
address as provided in the bureau decision under appeal.
    Party includes a party's representative(s) where the context so 
requires.
    Office or officer includes ``administrative law judge'' or 
``Board'' where the context so requires.
    Secretary means the Secretary of the Interior, or an authorized 
representative.

[[Page 10462]]

    3. In Sec.  4.401, revise paragraph (c) to read as follows:


Sec.  4.401  Documents.

* * * * *
    (c) Service of documents. (1) A party that files any document under 
this subpart must serve a copy of it concurrently on:
    (i) Each adverse party named in the decision, at the last address 
of record; and
    (ii) The appropriate official of the Office of the Solicitor under 
Sec.  4.413(c) and (d).
    (2) Service may be made as shown in the following table:

------------------------------------------------------------------------
        If the document is . . .           Service may be made by . . .
------------------------------------------------------------------------
(i) A notice of appeal.................  (A) Personal delivery; or
                                         (B) Registered or certified
                                          mail, return receipt
                                          requested.
(ii) Not a notice of appeal............  (A) Personal delivery;
                                         (B) Registered or certified
                                          mail, return receipt
                                          requested;
                                         (C) First-class mail; or
                                         (D) Delivery service, if the
                                          last address of record is not
                                          a post office box.
------------------------------------------------------------------------

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

------------------------------------------------------------------------
                                           Service is complete when the
      If service is made by . . .               document is . . .
------------------------------------------------------------------------
(i) Personal delivery..................  Delivered to the party or its
                                          agent.
(ii) Registered or certified mail,       Delivered to the party or
 return receipt requested.                returned by the Postal Service
                                          unclaimed.
(iii) First-class mail.................  Delivered to the party or
                                          returned by the Postal Service
                                          undelivered.
(iv) Delivery service..................  Delivered to the party or
                                          returned by the delivery
                                          service undelivered.
------------------------------------------------------------------------

    (5) In the absence of evidence to the contrary, delivery under 
paragraphs (c)(4)(ii) through (iv) of this section is deemed to take 
place 3 business days after the document was sent.
    4. Revise Sec.  4.403 to read as follows:


Sec.  4.403  Finality of decision; reconsideration.

    (a) The Board's decision is final agency action and is effective on 
the date it is issued, unless the decision itself provides otherwise.
    (b) The Board may reconsider a decision in extraordinary 
circumstances.
    (1) A party that wishes to request reconsideration of a Board 
decision must file a motion for reconsideration with the Board within 
60 days after the date of a decision.
    (2) The motion may include a request that the Board stay the 
effectiveness of its decision.
    (3) Any other party to the original appeal may file a response to a 
motion for reconsideration with the Board within 15 days after service 
of the motion, unless the Board orders otherwise.
    (4) A motion for reconsideration will not stay the effectiveness or 
affect the finality of the Board's decision unless so ordered by the 
Board for good cause.
    (5) A party does not need to file a motion for reconsideration in 
order to exhaust its administrative remedies.
    (c) A motion for reconsideration must:
    (1) Specifically describe the extraordinary circumstances that 
warrant reconsideration; and
    (2) Include all arguments and supporting documents.
    (d) Extraordinary circumstances that may warrant granting 
reconsideration include, but are not limited to:
    (1) Error in the Board's interpretation of material facts;
    (2) Recent judicial development;
    (3) Change in Departmental policy; or
    (4) Evidence that was not before the Board at the time the Board's 
decision was issued and that demonstrates error in the decision.
    (e) If the motion cites extraordinary circumstances under paragraph 
(d)(4) of this section, it must explain why the evidence was not 
provided to the Board during the course of the original appeal.
    (f) The Board will not grant a motion for reconsideration that:
    (1) Merely repeats arguments made in the original appeal, except in 
cases of demonstrable error; or
    (2) Seeks to alter legally binding consequences.
    5. Add Sec. Sec.  4.404 through 4.407 to subpart E to read as 
follows:


Sec.  4.404  Consolidation.

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


Sec.  4.405  Extensions of time.

    (a) If a document other than a notice of appeal is required to be 
filed or served within a definite time, a party may seek additional 
time by filing with the Board a motion requesting an extension of time.
    (b) The deadline for filing a motion requesting an extension is the 
day before the date the document is due. The motion may be filed and 
served by facsimile. Section 4.401(a) does not apply to a motion 
requesting an extension of time.
    (c) The party must support its motion requesting an extension of 
time by showing there is good cause to grant it.
    (d) Any party that objects to a motion requesting an extension must 
file with the Board its reasons for objection within 2 business days 
after service of the motion. The objection may be filed and served by 
facsimile.
    (e) A Board order granting or denying a motion requesting an 
extension will state when the document must be filed. If the Board does 
not act on a motion before the document is due, the document must be 
filed no later than 15 days after the original due date, unless the 
Board orders otherwise.


Sec.  4.406  Intervention; amicus curiae.

    (a) A person who wishes to intervene in an appeal must file a 
motion to intervene within the time shown in the following table:

[[Page 10463]]



------------------------------------------------------------------------
                                         The person must file the motion
          If the person . . .            within 30 days after the person
                                                      . . .
------------------------------------------------------------------------
(1) Would have a right to appeal under   Was served with the decision.
 Sec.   4.410 and was served with the
 decision.
(2) Would have a right to appeal under   Knew or should have known that
 Sec.   4.410 and was not served with     the bureau had issued the
 the decision.                            decision.
(3) Would be adversely affected if the   Knew or should have known that
 Board reversed, vacated, set aside, or   the decision had been appealed