Clarification of Appeal Procedures, 62047-62052 [2014-24305]
Download as PDF
<![CDATA[
Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations
2. Section 52.745 is amended by
adding paragraphs (e), (f), and (g) to read
as follows:
DEPARTMENT OF THE INTERIOR
§ 52.745 Section 110(a)(2) infrastructure
requirements.
30 CFR Part 1290
*
Office of Hearings and Appeals
rmajette on DSK2VPTVN1PROD with RULES
■
*
*
*
*
(e) Approval and Disapproval—In a
December 31, 2012, submittal, Illinois
certified that the State has satisfied the
infrastructure SIP requirements of
section 110(a)(2)(A) through (H), and (J)
through (M) for the 2008 ozone NAAQS
except for 110(a)(2)(D)(i)(I). EPA is not
taking action on the state board
requirements of (E)(ii) or 110(a)(2)(A).
Although EPA is disapproving portions
of Illinois’ submission addressing the
prevention of significant deterioration,
Illinois continues to implement the
Federally promulgated rules for this
purpose as they pertain to (C), (D)(i)(II),
(D)(ii), and the prevention of significant
deterioration (PSD) portion of (J).
(f) Approval and Disapproval—In a
December 31, 2012, submittal, Illinois
certified that the state has satisfied the
infrastructure SIP requirements of
section 110(a)(2)(A) through (H), and (J)
through (M) for the 2010 nitrogen
dioxide (NO2) NAAQS. EPA is not
taking action on the state board
requirements of (E)(ii) or 110(a)(2)(A).
Although EPA is disapproving portions
of Illinois’ submission addressing the
prevention of significant deterioration,
Illinois continues to implement the
Federally promulgated rules for this
purpose as they pertain to (C), (D)(i)(II),
(D)(ii), and the prevention of significant
deterioration (PSD) portion of (J).
(g) Approval and Disapproval—In a
December 31, 2012, submittal, Illinois
certified that the state has satisfied the
infrastructure SIP requirements of
section 110(a)(2)(A) through (H), and (J)
through (M) for the 2010 sulfur dioxide
(SO2) NAAQS except for
110(a)(2)(D)(i)(I). EPA is not taking
action on the state board requirements
of (E)(ii) or 110(a)(2)(A). Although EPA
is disapproving portions of Illinois’
submission addressing the prevention of
significant deterioration, Illinois
continues to implement the Federally
promulgated rules for this purpose as
they pertain to (C), (D)(i)(II), (D)(ii), and
the prevention of significant
deterioration (PSD) portion of (J).
[FR Doc. 2014–24353 Filed 10–15–14; 8:45 am]
BILLING CODE 6560–50–P
VerDate Sep<11>2014
14:52 Oct 15, 2014
Jkt 235001
Office of Natural Resources Revenue
43 CFR Part 4
[Docket No. ONRR–2011–0017; DS63610000
DR2PS0000.CH7000 145D0102R2]
RIN 1012–AA08
Clarification of Appeal Procedures
Office of Natural Resources
Revenue and Office of Hearings and
Appeals, Interior.
ACTION: Final rule.
AGENCY:
The Office of Natural
Resources Revenue (ONRR) and Office
of Hearing and Appeals (OHA) are
amending and clarifying regulations
concerning certain aspects of appeals of
ONRR correspondence and clarifying
the final administrative nature of ONRR
orders that are not paid or appealed.
DATES: Effective Date: November 17,
2014.
SUMMARY:
For
questions on technical issues, contact
Bonnie Robson, Office of Enforcement
and Appeals, ONRR, telephone (303)
231–3729, or email bonnie.robson@
onrr.gov. For other questions, contact
Armand Southall, Regulatory Specialist,
ONRR, telephone (303) 231–3221, or
email armand.southall@onrr.gov.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. Background
ONRR is amending its appeal
regulations. On May 13, 1999, the
Department of the Interior (Department)
published in the Federal Register (64
FR 26240) a final rule governing the
appeal of the former Minerals
Management Service’s (MMS) Minerals
Revenue Management (MRM) orders. In
this rule, ONRR clarifies the appeal
regulations by removing ambiguity
regarding the ONRR definition of an
Order, the timing of appeals of orders to
perform restructured accounting, and
the orders that have become final for the
Department that the recipient has not
paid or appealed.
II. Reorganization of Title 30 CFR
On May 19, 2010, the Secretary of the
Interior (Secretary) separated the
responsibilities previously performed by
the former MMS and reassigned those
responsibilities to three separate
organizations. As part of this
reorganization, the Secretary renamed
MMS’s MRM the Office of Natural
PO 00000
Frm 00059
Fmt 4700
Sfmt 4700
62047
Resources Revenue and directed that
ONRR transition from the Office of the
Assistant Secretary for Land and
Minerals Management to the Office of
the Assistant Secretary for Policy,
Management and Budget (PMB). This
change required the reorganization of
title 30, Code of Federal Regulations (30
CFR). In response, ONRR published a
direct final rule on October 4, 2010 (75
FR 61051), to establish a new chapter
XII in 30 CFR; to remove certain
regulations from chapter II; and to
recodify these regulations in the new
chapter XII. Therefore, all references to
ONRR in this rule include its
predecessor MRM, and all references to
30 CFR part 1290 in this rule include
former 30 CFR part 290, subpart B.
III. Comments on the Proposed
Amendments
ONRR published the proposed rule on
July 22, 2013 (78 FR 43843). We
received comments on the proposed
rule from 1 oil and gas producer, 1
Indian Tribe, and 1 trade association.
We have analyzed these comments,
which are discussed below:
A. 30 CFR Part 1290—Appeals
1. § 1290.102
Definition of ‘‘order.’’
Public Comments: Both the company
and trade association expressed concern
over the definition of an ‘‘order.’’
Specifically, they believe that paragraph
2(vi) which states that ‘‘[a]ny
correspondence that does not include
the right to appeal in writing’’ is not an
‘‘order,’’ is too broad, confusing, and
unnecessary. Their primary concern is
that correspondence that contains a
requirement to pay or other ‘‘substantive
obligation to perform,’’ but does not set
out the right to appeal, forces the
recipient to either (1) comply with the
correspondence ‘‘but have no right to
appeal’’ or (2) call ONRR to find out if
ONRR intentionally left out the appeals
language. The trade association thus
suggests that we delete paragraph 2(vi)
in the final rule or add language to
paragraph 2(vi) that correspondence
‘‘without express appeal language has
no immediate legal effect on the
recipient.’’ The company suggests that
ONRR correspondence state whether it
is appealable or not instead of stating in
the rule that correspondence is not
appealable if it does not contain appeal
rights.
ONRR Response: In the proposed rule
we explained that ‘‘the rule proposes to
amend existing appeal regulations in
titles 30 and 43 to clarify which ONRR
correspondence are appealable orders
. . . [because] ONRR has received
appeals filed in response to ‘‘Dear
E:\FR\FM\16OCR1.SGM
16OCR1
rmajette on DSK2VPTVN1PROD with RULES
62048
Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations
Payor,’’ ‘‘Dear Operator,’’ and ‘‘Dear
Reporter’’ letters. These letters contain
policy and guidance that do not contain
mandatory or ordering language, and,
thus, are not ONRR orders.’’ In addition
to clarifying that such correspondence
are not appealable ‘‘orders,’’ we also
proposed to add new language stating
that any ONRR correspondence that
does not set out the right to appeal in
writing is not an appealable ‘‘order’’
consistent with the Interior Board of
Land Appeals (IBLA) decision in
Xanadu Exploration Company, 157
IBLA 183, 186 (2002).
With respect to our proposal to add a
new paragraph 2(vi) that provides an
order does not include ‘‘[a]ny
correspondence that does not include
the right to appeal in writing’’ we
disagree with removing paragraph 2(vi)
in the final rule for a several reasons.
First, the concern that a company
could receive correspondence that
actually was an ‘‘order’’ with a
‘‘substantive obligation to perform,’’ but
would have no right to appeal is
unfounded. If you receive
correspondence from ONRR that does
not contain the right to appeal, then by
definition under paragraph 2(vi) of
§ 1290.102 it is not an ‘‘order’’ and,
thus, the company need not comply.
Simply stated, if you received a
document from ONRR that tells you to
take some action, but does not contain
appeal rights, you have no obligation to
comply with that correspondence and
may not appeal that correspondence
because under new paragraph 2(iv), it is
not an ‘‘order.’’ However, if you
received a document from ONRR that
tells you to take some action and sets
out the right to appeal, you have an
obligation to comply with that
correspondence and may appeal that
‘‘order.’’
Second, we do not believe we need to
add language to paragraph 2(vi) to state
that correspondence without appeal
rights has no legal effect. By definition,
as explained above, such
correspondence is not an ‘‘order,’’ and,
thus, has no legal effect. We also do not
agree that adding language to the final
rule that documents without express
appeal language have no legal effect
would clarify the definition of what
constitutes an ‘‘order’’. We agree that
ONRR correspondence should state
whether it is appealable or not—and
often does. For example, Preliminary
Determination Letters—so-called ‘‘Issue
Letters’’—that ONRR, States, and Tribes
send to companies prior to an order do
not state they are appealable—because
they are not. On the other hand, Dear
Payor Letters that merely provide
guidance state they are not appealable.
VerDate Sep<11>2014
14:52 Oct 15, 2014
Jkt 235001
Finally, some ONRR correspondence
such as orders to pay or report or
interest bills, do state that they are
appealable, and thus are appealable
‘‘orders.’’ Nevertheless, we decline to
codify that all ONRR correspondence
must state whether it is appealable or
not because if a company received
correspondence that was silent on the
right to appeal, it would create the same
problem this rule is remedying—the
company would be forced to appeal the
correspondence in case ONRR merely
omitted language providing a right to
appeal. Whereas, under this rule, if the
correspondence does not set out the
right to appeal, as stated above, the
recipient is not legally required to
comply with the correspondence
because, under this final rule the
correspondence is not an ‘‘order.’’
Therefore, we are retaining paragraph
2(vi) in the final rule.
Public Comments: The trade
association suggests that we also clarify
the portion of the definition of an order
that states an order ‘‘means any
document issued by the ONRR Director
or a delegated state. . . .’’ Specifically,
it recommends removing the word
‘‘Director’’ from the quoted portion of
the definition because it allows an
appeal of a Director’s Order to the
Director. The trade association believes
this language conflicts with
§ 1290.110(b)(1) which states an
appellant does not have to exhaust
administrative remedies (i.e. appeal to
the IBLA) if an order was made effective
by the Director.
ONRR Response: We agree that
inclusion of the word ‘‘Director’’ in the
definition of ‘‘order’’ is confusing and
are removing it in the final rule. An
order or decision the ONRR Director
issues is appealable to the IBLA, not the
Director. Therefore, we are making that
clear in the final rule. Also, we are
making a corresponding change to
§ 1290.110(b) which states appellants do
not have to exhaust administrative
remedies if an order was made effective
by the Director. Appellants do have to
exhaust administrative remedies if an
order is made effective by the Director.
The ONRR Director and the BIA
Director are not delegated authority to
issue orders or decisions that are final
for the Department and nonappealable.
Paragraph (b)(1) conflicts with the
requirement to appeal orders to perform
a restructured accounting the Director
issues to the IBLA under 1290.105(a)(2)
and orders and decisions the ONRR
Director issues to the IBLA under
§ 1290.108. Accordingly, we are
removing paragraph (b)(1) in this final
rule.
PO 00000
Frm 00060
Fmt 4700
Sfmt 4700
2. 1290.105(a)(1)(i)
order?
How do I appeal an
Upon reviewing revised 30 CFR
1290.105(a)(1)(i), we determined we
inadvertently omitted the phrase
‘‘Indian mineral leases’’ from the
portion of this subparagraph pertaining
to appeals of Orders to Perform
Restructured Accounting. We have
added this phrase to clarify that the 30day appeal period applies to Orders to
Perform Restructured Accounting
involving Indian mineral leases.
3. § 1290.108
IBLA?
How do I appeal to the
Public Comments: The trade
association suggests that we also clarify
proposed 30 CFR 1290.108(a) covering
appeals to the IBLA. Specifically, it
recommends removing the statement
that a party may appeal ‘‘a final decision
of the ONRR Director or the Director,
Bureau of Indian Affairs’’ to the IBLA
and instead state that a party may
appeal ‘‘an order issued or made
effective by the Director.’’ The trade
association believes that the term ‘‘final
decision’’ should be reserved for
decisions that are final for the
Department—such as IBLA and
Assistant Secretary’s decisions.
Both the company and trade
association disagree with our proposal
to extend the period for ONRR to file an
answer in an appeal to the IBLA in
proposed 1290.108(b). The trade
association believes ONRR’s stated
premise for the change ‘‘to allow ONRR
to assemble the administrative record in
royalty appeals’’ is flawed because it
believes ‘‘ONRR should have already
prepared and submitted the
administrative record in support of its
order prior to the due date for the
appellant’s Statement of Reasons.’’ It
also is concerned that allowing ONRR
more time to assemble the
administrative record could ‘‘impair’’ an
appellant’s access to the administrative
record. The company believes that
ONRR should already have all of the
information so no time is necessary to
assemble the administrative record.
ONRR Response: We agree that ONRR
and BIA Director’s decisions and orders
are not ‘‘final for the Department’’—
which, as discussed above, is why we
are removing § 1290.110(b)(1) in this
final rule. Therefore, in the final rule,
we are also revising section 1290.108(a)
to state that a party may appeal to the
IBLA ‘‘an order the ONRR Director
issues or a decision the ONRR Director
or Director, Bureau of Indian Affairs
issues under this part.’’
With respect to 1290.108(b), ONRR
will retain the extended period for it to
E:\FR\FM\16OCR1.SGM
16OCR1
Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations
rmajette on DSK2VPTVN1PROD with RULES
file its answer in the final rule for two
reasons. First, any assumption that
ONRR has all of the records already in
its possession, and the administrative
record is already assembled, is
incorrect. When a party appeals an
order to the Director, the Director’s
decision is based on the order, issue
letter, responses to the issue letter,
appellant’s statement of reasons, field
reports if requested, and additional
information either the appellant or
office that issued the order provides.
Also, the Director’s decision is limited
to only the issues the appellant raises on
appeal. However, appellants often raise
new issues or arguments on appeal to
the IBLA. In order to ensure we provide
a complete record to the IBLA and
appellant, the Office of Enforcement and
Appeal’s Litigation Support Branch
(LSB) asks the office that issued the
order to send the LSB all audit and
compliance review records, even if
portions of those audits or compliance
reviews were not at issue in the appeal
to the Director (for example, schedules
not at issue in the appeal). Because an
order may be issued by ONRR satellite
offices, a delegated State, or by ONRR
based on a delegated State or Tribal
audit, it takes time for LSB to gather all
of the documents to include in the
record. LSB then organizes, indexes,
and bates stamps the record—a service
that benefits not only ONRR, but also
the appellant and IBLA.
Second, we believe the concern that
allowing ONRR more time to assemble
the administrative record could
somehow ‘‘impair’’ an appellant’s
access to the administrative record is
unwarranted. As stated above, ONRR’s
goal is to provide the most complete,
well-organized record possible.
Moreover, the appellant should already
have most of the documents necessary
to prepare its statement of reasons. And,
to the extent the administrative record
contains information the appellant did
not have prior to filing its statement of
reasons, which is not likely, the
appellant may file a reply brief within
15 days of ONRR filing an answer. 43
CFR 4.412(d).
4. § 1290.111 What happens if I do not
pay or appeal an order?
Public Comments: The Tribe
submitted a comment in support of
proposed § 1290.111. Section 1290.111
makes clear that, if you receive an
ONRR order and you neither pay nor
appeal that order under 30 CFR part
1290, the order is the final decision of
the Department, and you may not
contest the merits of that order in any
subsequent proceeding seeking to
enforce the order under 30 CFR part
VerDate Sep<11>2014
14:52 Oct 15, 2014
Jkt 235001
1241. For example, if ONRR issued a
Notice of Noncompliance (NONC) under
30 CFR part 1241 to enforce an order
you did not pay or appeal, you may not
contest your liability under the order in
a hearing on the NONC. However, if you
did not comply with the NONC
enforcing the order, and ONRR assessed
civil penalties for your failure to comply
with the NONC, you could contest the
amount of the penalty assessment.
ONRR Response: ONRR appreciates
the Tribe’s support and will retain
§ 1290.111 in the final rule.
43 CFR Part 4 Subpart J—Special Rules
Applicable to Appeals Concerning
Federal Oil and Gas Royalties and
Related Matters
5. § 43 CFR 4.903 Definition of
‘‘order.’’
Public Comments: The trade
association and company made the
same comments to the definition of
‘‘order’’ in section 4.903 as those they
made for 30 CFR 1290.102. Definition of
‘‘order’’ discussed above.
ONRR Response: See our response to
the comments to 30 CFR 1290.102
above.
IV. Procedural Matters
1. Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 provides
that the Office of Information and
Regulatory Affairs (OIRA) of the Office
of Management and Budget (OMB) will
review all significant rules. OIRA has
determined that this rule is not
significant.
Executive Order 13563 reaffirms the
principles of E.O. 12866 while calling
for improvements in the Nation’s
regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements.
2. Regulatory Flexibility Act
The Department certifies that this rule
will not have a significant economic
effect on a substantial number of small
PO 00000
Frm 00061
Fmt 4700
Sfmt 4700
62049
entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
This rule will affect lessees under
Federal and Indian mineral leases and
other recipients of ONRR orders or other
official correspondence. Lessees of
Federal and Indian mineral leases are
generally companies classified under
the North American Industry
Classification System (NAICS) Code
211111, which includes companies that
extract crude petroleum and natural gas.
For this NAICS code classification, a
small company is one with fewer than
500 employees. Because this rule
applies to all mineral leases, even
though the NAICS classification only
applies to oil and gas leases, we are
using the same classification system for
all mineral leases. The Department
believes that a meaningful number of
businesses affected by this rule will be
small businesses.
This rule will have no economic effect
on small businesses. Businesses will not
lose any opportunity to appeal any
orders which may have an economic
effect. This rule only will serve to
clarify the proper forum for certain
appeals, conform with other regulations,
and codify previously enacted Federal
law. A Regulatory Flexibility Analysis
will not be required. Accordingly, a
Small Entity Compliance Guide will not
be required.
Your comments are important. The
Small Business and Agriculture
Regulatory Enforcement Ombudsman
and ten Regional Fairness Boards
receive comments from small businesses
about Federal agency enforcement
actions. The Ombudsman annually
evaluates the enforcement activities and
rates each agency’s responsiveness to
small business. If you wish to comment
on the actions of ONRR, call 1–888–
734–3247. You may comment to the
Small Business Administration without
fear of retaliation. Allegations of
discrimination/retaliation filed with the
Small Business Administration will be
investigated for appropriate action.
3. Small Business Regulatory
Enforcement Fairness Act
This rule is not a major rule under 5
U.S.C. 804(2) of the Small Business
Regulatory Enforcement Fairness Act (5
U.S.C. 801 et seq.). This rule:
(a) Does not have an annual effect on
the economy of $100 million or more.
(b) Will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, State, or
local government agencies, or
geographic regions.
(c) Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
E:\FR\FM\16OCR1.SGM
16OCR1
62050
Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
4. Unfunded Mandates Reform Act
This rule does not impose an
unfunded mandate on State, local, or
Tribal governments, or the private sector
of more than $100 million per year. This
rule will not have a significant or
unique effect on State, local, or Tribal
governments, or the private sector. A
statement containing the information
required by the Unfunded Mandates
Reform Act (2 U.S.C. 1501 et seq.) is not
required.
5. Takings (E.O. 12630)
Under the criteria in section 2 of E.O.
12630, this rule does not have any
significant takings implications. This
rule is not a governmental action
capable of interference with
constitutionally protected property
rights. A Takings Implication
Assessment is not required.
6. Federalism (E.O. 13132)
Under the criteria in section 1 of E.O.
13132, this rule does not have sufficient
federalism implications to warrant the
preparation of a Federalism summary
impact statement. This rule does not
substantially and directly affect the
relationship between the Federal and
State governments. To the extent that
State and local governments have a role
in Outer Continental Shelf (OCS)
activities, this rule does not affect that
role. A Federalism summary impact
statement is not required.
7. Civil Justice Reform (E.O. 12988)
This rule complies with the
requirements of E.O. 12988.
Specifically, this rule:
a. Meets the criteria of section 3(a)
requiring that all regulations be
reviewed to eliminate errors and
ambiguity and be written to minimize
litigation; and
b. Meets the criteria of section 3(b)(2)
requiring that all regulations be written
in clear language and contain clear legal
standards.
rmajette on DSK2VPTVN1PROD with RULES
8. Consultation With Indian Tribes (E.O.
13175)
The Department of the Interior strives
to strengthen its government-togovernment relationship with Indian
Tribes through a commitment to
consultation with Indian Tribes and
recognition of their right to selfgovernance and tribal sovereignty.
Under the Department’s consultation
policy and the criteria in E.O. 13175, we
evaluated this rule and determined that
it will have no substantial direct effects
on federally recognized Indian Tribes.
VerDate Sep<11>2014
14:52 Oct 15, 2014
Jkt 235001
Indian Tribes will be unaffected by
clarifications to this appeals rule
because the changes would affect the
procedures for appeal by lessees, but not
the rights of lessors, such as individual
Indian mineral owners and Tribes.
Dated: October 2, 2014.
Rhea Suh,
Assistant Secretary for Policy, Management
and Budget.
9. Paperwork Reduction Act
This rule does not contain
information collection requirements,
and a submission to OMB is not
required under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
Authority and Issuance
For the reasons stated in the
preamble, the Department of the Interior
amends 30 CFR part 1290 and 43 CFR
part 4, subpart J, as follows:
TITLE 30—MINERAL RESOURCES
10. National Environmental Policy Act
This rule does not constitute a major
Federal action significantly affecting the
quality of the human environment. We
are not required to provide a detailed
statement under the National
Environmental Policy Act of 1969
(NEPA) because this rule qualifies for
categorical exclusion under 43 CFR
46.210(c) and (i) and the DOI
Departmental Manual, part 516, section
15.4.D: ‘‘(c) Routine financial
transactions including such things as
. . . audits, fees, bonds, and royalties
. . . (i) Policies, directives, regulations,
and guidelines: That are of an
administrative, financial, legal,
technical, or procedural nature.’’ See 43
CFR 46.210(i) and the DOI Departmental
Manual, part 516, section 15.4.D (2004).
We have also determined that this rule
is not involve in any of the
extraordinary circumstances listed in 43
CFR 46.215 that requires further
analysis under NEPA. The procedural
changes resulting from these
amendments have no consequences
with respect to the physical
environment. This rule will not alter, in
any material way, natural resource
exploration, production, or
transportation.
11. Effects on the Energy Supply (E.O.
13211)
This rule is not a significant energy
action under the definition in E.O.
13211. A Statement of Energy Effects is
not required.
List of Subjects
30 CFR Part 1290
Administrative practice and
procedure.
43 CFR Part 4
Administrative practice and
procedure, Civil rights, Claim, Equal
access to justice, Estates, Government
contracts, Grazing lands, Indians,
Lawyers, Mines, Penalties, Public lands,
Surface mining, Whistleblowing.
PO 00000
Frm 00062
Fmt 4700
Sfmt 4700
CHAPTER XII—OFFICE OF NATURAL
RESOURCES REVENUE,
DEPARTMENT OF THE INTERIOR
Subchapter B—Appeals
PART 1290—APPEAL PROCEDURES
1. The authority citation for part 1290
continues to read as follows:
■
Authority: 5 U.S.C. 301 et seq.; 43 U.S.C.
1331.
2. Amend the definition of Order in
§ 1290.102 by revising the introductory
text and paragraphs (1)(i), (1)(ii), (2)(iii),
and (2)(iv) and adding paragraphs (2)(v)
and (2)(vi) to read as follows:
■
§ 1290.102
part?
What definitions apply to this
*
*
*
*
*
Order, for purposes of this part only,
means any document issued by ONRR
or a delegated State that contains
mandatory or ordering language that
requires the recipient to do any of the
following for any lease subject to this
part: Report, compute, or pay royalties
or other obligations, report production,
or provide other information.
(1) * * *
(i) An order to pay (Order to Pay) or
to compute and pay (Order to Perform
a Restructured Accounting); and
(ii) An ONRR or delegated State
decision to deny a lessee’s, designee’s,
or payor’s written request that asserts an
obligation due the lessee, designee, or
payor (Denial).
(2) * * *
(iii) An order to pay that ONRR issues
to a refiner or other person involved in
disposition of royalty taken in kind;
(iv) A Notice of Noncompliance or a
Notice of Civil Penalty issued under 30
U.S.C. 1719 and 30 CFR part 1241, or a
decision of an administrative law judge
or of the IBLA following a hearing on
the record on a Notice of
Noncompliance or Notice of Civil
Penalty;
(v) A ‘‘Dear Payor,’’ ‘‘Dear Operator,’’
or ‘‘Dear Reporter’’ letter unless it
explicitly includes the right to appeal in
writing; or
(vi) Any correspondence that does not
include the right to appeal in writing.
*
*
*
*
*
E:\FR\FM\16OCR1.SGM
16OCR1
Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations
3. Amend § 1290.105 by revising
paragraph (a) to read as follows:
■
§ 1290.105
How do I appeal an order?
(a)(1) You may appeal to the Director,
Office of Natural Resources Revenue
(ONRR Director), by filing a Notice of
Appeal in the office of the official
issuing the Order:
(i) Within 30 days from service of an
Order to Pay or a Denial involving
Federal or Indian mineral leases, or an
Order to Perform a Restructured
Accounting involving Indian mineral
leases or Federal solid mineral or
geothermal leases; or
(ii) Within 60 days from service of an
Order to Perform a Restructured
Accounting involving Federal oil and
gas leases if a delegated State issued the
Order to Perform a Restructured
Accounting.
(2) If the ONRR Director, or other
most senior career professional
responsible for the ONRR royalty
management program, issued the Order
to Perform a Restructured Accounting
for a Federal oil and gas lease, then you
may appeal that order to the IBLA
within 60 days under § 1290.108.
(3) For appeals to the ONRR Director
under paragraph (a)(1) of this section,
within the same 30-day or 60-day
period, whichever is applicable, you
must file in the office of the official
issuing the Order to Pay, Order to
Perform a Restructured Accounting, or
Denial, a statement of reasons, or
written arguments, or brief that includes
the arguments on the facts or law that
you believe justify reversal or
modification of the Order to Pay, Order
to Perform a Restructured Accounting,
or Denial.
(4) If you are a designee, when you
file your Notice of Appeal, you must
concurrently serve your Notice of
Appeal on the lessees for the leases in
the Order to Pay, Order to Perform a
Restructured Accounting, or Denial you
appealed.
*
*
*
*
*
■ 4. Revise § 1290.108 to read as
follows:
§ 1290.108
How do I appeal to the IBLA?
(a) Any party to a case adversely
affected by an order the ONRR Director
issues or a decision the ONRR Director
or Director, Bureau of Indian Affairs
issues under this part shall have a right
of appeal to the IBLA under the
procedures provided in 43 CFR part 4,
subpart E.
(b) Notwithstanding 43 CFR 4.414(a),
a party shall file an answer or
appropriate motion within 60 days after
service of the statement of reasons for
appeal unless an extension of time is
requested and granted.
■ 5. Amend § 1290.110 by revising
paragraphs (b)(1), (b)(2), and (b)(3) to
read as follows:
§ 1290.110 How do I exhaust
administrative remedies?
*
*
*
*
*
(b) * * *
(1) The Assistant Secretary for Policy,
Management and Budget;
(2) The Assistant Secretary for Indian
Affairs; or
(3) The Interior Board of Land
Appeals under 43 CFR part 4.
*
*
*
*
*
62051
6. Add new § 1290.111 to read as
follows:
■
§ 1290.111 What happens if I do not pay or
appeal an order?
If you neither pay nor appeal an order
under this part, that order is the final
decision of the Department, you have
failed to exhaust administrative
remedies as required under
§ 1290.110(a), and you may not contest
the validity or merits of that order in
any subsequent proceeding to enforce
that order under 30 U.S.C. 1719 and part
1241 of this chapter.
TITLE 43—PUBLIC LANDS: INTERIOR
SUBTITLE A—Office of the Secretary of
the Interior
PART 4—DEPARTMENT HEARINGS
AND APPEALS PROCEDURES
Subpart J—Special Rules Applicable to
Appeals Concerning Federal Oil and
Gas Royalties and Related Matters
7. The authority citation for subpart J
continues to read as follows:
■
Authority: 5 U.S.C. 301 et seq.; 25 U.S.C.
396 et seq., 396a et seq., 2101 et seq.; 30
U.S.C. 181 et seq., 351 et seq., 1001 et seq.,
1701 et seq.; 31 U.S.C. 9701; 43 U.S.C. 1301
et seq., 1331 et seq., and 1801 et seq.
8. Amend the sections in part 4
indicated in the left column of the table
by removing the text in the center
column and adding in its place the text
in the right column.
■
§§ 4.902, 4.903, 4.906, 4.907, and 4.908
[Amended]
AMENDMENT TABLE FOR PART 4
Amend
By removing the reference to:
And adding in its place:
30 CFR part 1290.
§ 4.902(a) ..................................................................
30 CFR part 290 in effect prior to May 13, 1999
and contained in the 30 CFR, parts 200 to 699,
edition revised as of July 1, 1998, 30 CFR part
290 subpart B.
Minerals Management Service (MMS) ...................
§ 4.903, definition of Delegated State ......................
§ 4.903, definition of Delegated State ......................
§ 4.903, definition of Designee .................................
§ 4.903, definition of Monetary obligation .................
§ 4.903, definition of Notice of Order (two times) ....
§ 4.903, definition of Party ........................................
§ 4.903, definition of Party (two times) .....................
§ 4.906(b)(1) .............................................................
§ 4.906(b)(2) .............................................................
§ 4.906(d) (three times) ............................................
§ 4.907 (table of contents and section heading) ......
§ 4.907(a) (two times) ...............................................
§ 4.907(b) ..................................................................
§ 4.907(c) ..................................................................
§ 4.908(a) ..................................................................
§ 4.908(b) ..................................................................
§ 4.908(c) ..................................................................
MMS ........................................................................
30 CFR part 227 .....................................................
30 CFR 218.52 ........................................................
MMS ........................................................................
MMS ........................................................................
MMS ........................................................................
30 CFR part 290 subpart B ....................................
MMS ........................................................................
MMS ........................................................................
MMS ........................................................................
MMS ........................................................................
MMS ........................................................................
MMS ........................................................................
MMS’s .....................................................................
MMS ........................................................................
MMS ........................................................................
MMS ........................................................................
rmajette on DSK2VPTVN1PROD with RULES
§ 4.902(a) ..................................................................
VerDate Sep<11>2014
14:52 Oct 15, 2014
Jkt 235001
PO 00000
Frm 00063
Fmt 4700
Sfmt 4700
E:\FR\FM\16OCR1.SGM
Office of Natural Resources Revenue
(ONRR).
ONRR.
30 CFR part 1227.
30 CFR 1218.52.
ONRR.
ONRR.
ONRR.
30 CFR part 1290.
ONRR.
ONRR.
ONRR.
ONRR.
ONRR.
ONRR.
ONRR’s.
ONRR.
ONRR.
ONRR.
16OCR1
62052
Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations
9. Revise the definitions of Order and
Payor in § 4.903 to read as follows:
■
§ 4.903 What definitions apply to this
subpart?
*
*
*
*
*
Order means any document or portion
of a document issued by ONRR or a
delegated State that contains mandatory
or ordering language regarding any
monetary or nonmonetary obligation
under any Federal oil and gas lease or
leases.
(1) Order includes:
(i) An order to pay (Order to Pay) or
to compute and pay (Order to Perform
a Restructured Accounting); and
(ii) An ONRR or delegated State
decision to deny a lessee’s, designee’s,
or payor’s written request that asserts an
obligation due the lessee, designee, or
payor.
(2) Order does not include:
(i) A non-binding request,
information, or guidance, such as:
(A) Advice or guidance on how to
report or pay, including valuation
determination, unless it contains
mandatory or ordering language; and
(B) A policy determination;
(ii) A subpoena;
(iii) An order to pay that ONRR issues
to a refiner or other person involved in
disposition of royalty taken in kind; or
(iv) A Notice of Noncompliance or a
Notice of Civil Penalty issued under 30
U.S.C. 1719 and 30 CFR part 1241, or a
decision of an administrative law judge
or of the IBLA following a hearing on
the record on a Notice of
Noncompliance or Notice of Civil
Penalty.
(v) A ‘‘Dear Payor,’’ ‘‘Dear Operator,’’
or ‘‘Dear Reporter’’ letter unless it
explicitly includes the right to appeal in
writing; or
(vi) Any correspondence that does not
include the right to appeal in writing.
*
*
*
*
*
Payor means any person responsible
for reporting and paying royalties for
Federal oil and gas leases.
■ 10. Revise § 4.904 to read as follows:
rmajette on DSK2VPTVN1PROD with RULES
§ 4.904 When does my appeal commence
and end?
For purposes of the period in which
the Department must issue a final
decision in your appeal under § 4.906:
(a) Your appeal commences on the
date ONRR receives your Notice of
Appeal.
(b) Your appeal ends on the same day
of the 33rd calendar month after your
appeal commenced under paragraph (a)
of this section, plus the number of days
of any applicable time extensions under
§ 4.909 or 30 CFR 1290.109. If the 33rd
calendar month after your appeal
VerDate Sep<11>2014
14:52 Oct 15, 2014
Jkt 235001
commenced does not have the same day
of the month as the day of the month
your appeal commenced, then the initial
33-month period ends on the last day of
the 33rd calendar month.
■ 11. Amend § 4.906 by revising
paragraph (b)(3) to read as follows:
§ 4.906 What if the Department does not
issue a decision by the date my appeal
ends?
*
*
*
*
*
(b) * * *
(3) If the ONRR Director issues an
order or a decision in your appeal, and
if you do not appeal the Director’s order
or decision to IBLA within the time
required under 30 CFR part 1290, then
the ONRR Director’s order or decision is
the final decision of the Department and
30 U.S.C. 1724(h)(2) has no application.
*
*
*
*
*
[FR Doc. 2014–24305 Filed 10–15–14; 8:45 am]
BILLING CODE 4310–T2–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 131021878–4158–02]
RIN 0648–XD557
Fisheries of the Exclusive Economic
Zone Off Alaska; Greenland Turbot in
the Bering Sea Subarea of the Bering
Sea and Aleutian Islands Management
Area
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary Rule; Closure.
AGENCY:
NMFS is prohibiting directed
fishing for non-CDQ Greenland turbot in
the Bering Sea subarea of the Bering Sea
and Aleutian Islands management area
(BSAI). This action is necessary to
prevent exceeding the 2014 Greenland
turbot initial total allowable catch
(ITAC) in the Bering Sea subarea of the
BSAI.
DATES: Effective 1200 hrs, Alaska local
time (A.l.t.), October 12, 2014, through
2400 hrs, A.l.t., December 31, 2014.
FOR FURTHER INFORMATION CONTACT: Josh
Keaton, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
BSAI according to the Fishery
Management Plan for Groundfish of the
Bering Sea and Aleutian Islands
Management Area (FMP) prepared by
the North Pacific Fishery Management
SUMMARY:
PO 00000
Frm 00064
Fmt 4700
Sfmt 4700
Council under authority of the
Magnuson-Stevens Fishery
Conservation and Management Act.
Regulations governing fishing by U.S.
vessels in accordance with the FMP
appear at subpart H of 50 CFR part 600
and 50 CFR part 679.
The 2014 Greenland turbot ITAC in
the Bering Sea subarea of the BSAI is
1,410 metric tons (mt) as established by
the final 2014 and 2015 harvest
specifications for groundfish in the
BSAI (79 FR 12108, March 4, 2014). In
accordance with § 679.20(d)(1)(i) and
(ii)(B), the Administrator, Alaska
Region, NMFS, has determined that the
2014 Greenland turbot ITAC in the
Bering Sea subarea of the BSAI will be
needed as incidental catch to support
other groundfish fisheries. Therefore,
the Regional Administrator is
establishing a directed fishing
allowance of 0 mt, and is setting aside
the remaining 1,410 mt as incidental
catch. In accordance with
§ 679.20(d)(1)(iii), the Regional
Administrator finds that this directed
fishing allowance has been reached.
Consequently, NMFS is prohibiting
directed fishing for Greenland turbot in
the Bering Sea subarea of the BSAI.
After the effective date of this closure
the maximum retainable amounts at
§ 679.20(e) and (f) apply at any time
during a trip.
Classification
This action responds to the best
available information recently obtained
from the fishery. The Assistant
Administrator for Fisheries, NOAA
(AA), finds good cause to waive the
requirement to provide prior notice and
opportunity for public comment
pursuant to the authority set forth at 5
U.S.C. 553(b)(B) as such requirement is
impracticable and contrary to the public
interest. This requirement is
impracticable and contrary to the public
interest as it would prevent NMFS from
responding to the most recent fisheries
data in a timely fashion and would
delay the directed fishing closure of
Greenland turbot in the Bering Sea
subarea of the BSAI. NMFS was unable
to publish a notice providing time for
public comment because the most
recent, relevant data only became
available as of October 9, 2014.
The AA also finds good cause to
waive the 30-day delay in the effective
date of this action under 5 U.S.C.
553(d)(3). This finding is based upon
the reasons provided above for waiver of
prior notice and opportunity for public
comment.
This action is required by § 679.20
and is exempt from review under
Executive Order 12866.
E:\FR\FM\16OCR1.SGM
16OCR1
]]>Agencies
[Federal Register Volume 79, Number 200 (Thursday, October 16, 2014)]
[Rules and Regulations]
[Pages 62047-62052]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-24305]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Natural Resources Revenue
30 CFR Part 1290
Office of Hearings and Appeals
43 CFR Part 4
[Docket No. ONRR-2011-0017; DS63610000 DR2PS0000.CH7000 145D0102R2]
RIN 1012-AA08
Clarification of Appeal Procedures
AGENCY: Office of Natural Resources Revenue and Office of Hearings and
Appeals, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Natural Resources Revenue (ONRR) and Office of
Hearing and Appeals (OHA) are amending and clarifying regulations
concerning certain aspects of appeals of ONRR correspondence and
clarifying the final administrative nature of ONRR orders that are not
paid or appealed.
DATES: Effective Date: November 17, 2014.
FOR FURTHER INFORMATION CONTACT: For questions on technical issues,
contact Bonnie Robson, Office of Enforcement and Appeals, ONRR,
telephone (303) 231-3729, or email bonnie.robson@onrr.gov. For other
questions, contact Armand Southall, Regulatory Specialist, ONRR,
telephone (303) 231-3221, or email armand.southall@onrr.gov.
SUPPLEMENTARY INFORMATION:
I. Background
ONRR is amending its appeal regulations. On May 13, 1999, the
Department of the Interior (Department) published in the Federal
Register (64 FR 26240) a final rule governing the appeal of the former
Minerals Management Service's (MMS) Minerals Revenue Management (MRM)
orders. In this rule, ONRR clarifies the appeal regulations by removing
ambiguity regarding the ONRR definition of an Order, the timing of
appeals of orders to perform restructured accounting, and the orders
that have become final for the Department that the recipient has not
paid or appealed.
II. Reorganization of Title 30 CFR
On May 19, 2010, the Secretary of the Interior (Secretary)
separated the responsibilities previously performed by the former MMS
and reassigned those responsibilities to three separate organizations.
As part of this reorganization, the Secretary renamed MMS's MRM the
Office of Natural Resources Revenue and directed that ONRR transition
from the Office of the Assistant Secretary for Land and Minerals
Management to the Office of the Assistant Secretary for Policy,
Management and Budget (PMB). This change required the reorganization of
title 30, Code of Federal Regulations (30 CFR). In response, ONRR
published a direct final rule on October 4, 2010 (75 FR 61051), to
establish a new chapter XII in 30 CFR; to remove certain regulations
from chapter II; and to recodify these regulations in the new chapter
XII. Therefore, all references to ONRR in this rule include its
predecessor MRM, and all references to 30 CFR part 1290 in this rule
include former 30 CFR part 290, subpart B.
III. Comments on the Proposed Amendments
ONRR published the proposed rule on July 22, 2013 (78 FR 43843). We
received comments on the proposed rule from 1 oil and gas producer, 1
Indian Tribe, and 1 trade association. We have analyzed these comments,
which are discussed below:
A. 30 CFR Part 1290--Appeals
1. Sec. 1290.102 Definition of ``order.''
Public Comments: Both the company and trade association expressed
concern over the definition of an ``order.'' Specifically, they believe
that paragraph 2(vi) which states that ``[a]ny correspondence that does
not include the right to appeal in writing'' is not an ``order,'' is
too broad, confusing, and unnecessary. Their primary concern is that
correspondence that contains a requirement to pay or other
``substantive obligation to perform,'' but does not set out the right
to appeal, forces the recipient to either (1) comply with the
correspondence ``but have no right to appeal'' or (2) call ONRR to find
out if ONRR intentionally left out the appeals language. The trade
association thus suggests that we delete paragraph 2(vi) in the final
rule or add language to paragraph 2(vi) that correspondence ``without
express appeal language has no immediate legal effect on the
recipient.'' The company suggests that ONRR correspondence state
whether it is appealable or not instead of stating in the rule that
correspondence is not appealable if it does not contain appeal rights.
ONRR Response: In the proposed rule we explained that ``the rule
proposes to amend existing appeal regulations in titles 30 and 43 to
clarify which ONRR correspondence are appealable orders . . . [because]
ONRR has received appeals filed in response to ``Dear
[[Page 62048]]
Payor,'' ``Dear Operator,'' and ``Dear Reporter'' letters. These
letters contain policy and guidance that do not contain mandatory or
ordering language, and, thus, are not ONRR orders.'' In addition to
clarifying that such correspondence are not appealable ``orders,'' we
also proposed to add new language stating that any ONRR correspondence
that does not set out the right to appeal in writing is not an
appealable ``order'' consistent with the Interior Board of Land Appeals
(IBLA) decision in Xanadu Exploration Company, 157 IBLA 183, 186
(2002).
With respect to our proposal to add a new paragraph 2(vi) that
provides an order does not include ``[a]ny correspondence that does not
include the right to appeal in writing'' we disagree with removing
paragraph 2(vi) in the final rule for a several reasons.
First, the concern that a company could receive correspondence that
actually was an ``order'' with a ``substantive obligation to perform,''
but would have no right to appeal is unfounded. If you receive
correspondence from ONRR that does not contain the right to appeal,
then by definition under paragraph 2(vi) of Sec. 1290.102 it is not an
``order'' and, thus, the company need not comply. Simply stated, if you
received a document from ONRR that tells you to take some action, but
does not contain appeal rights, you have no obligation to comply with
that correspondence and may not appeal that correspondence because
under new paragraph 2(iv), it is not an ``order.'' However, if you
received a document from ONRR that tells you to take some action and
sets out the right to appeal, you have an obligation to comply with
that correspondence and may appeal that ``order.''
Second, we do not believe we need to add language to paragraph
2(vi) to state that correspondence without appeal rights has no legal
effect. By definition, as explained above, such correspondence is not
an ``order,'' and, thus, has no legal effect. We also do not agree that
adding language to the final rule that documents without express appeal
language have no legal effect would clarify the definition of what
constitutes an ``order''. We agree that ONRR correspondence should
state whether it is appealable or not--and often does. For example,
Preliminary Determination Letters--so-called ``Issue Letters''--that
ONRR, States, and Tribes send to companies prior to an order do not
state they are appealable--because they are not. On the other hand,
Dear Payor Letters that merely provide guidance state they are not
appealable. Finally, some ONRR correspondence such as orders to pay or
report or interest bills, do state that they are appealable, and thus
are appealable ``orders.'' Nevertheless, we decline to codify that all
ONRR correspondence must state whether it is appealable or not because
if a company received correspondence that was silent on the right to
appeal, it would create the same problem this rule is remedying--the
company would be forced to appeal the correspondence in case ONRR
merely omitted language providing a right to appeal. Whereas, under
this rule, if the correspondence does not set out the right to appeal,
as stated above, the recipient is not legally required to comply with
the correspondence because, under this final rule the correspondence is
not an ``order.'' Therefore, we are retaining paragraph 2(vi) in the
final rule.
Public Comments: The trade association suggests that we also
clarify the portion of the definition of an order that states an order
``means any document issued by the ONRR Director or a delegated state.
. . .'' Specifically, it recommends removing the word ``Director'' from
the quoted portion of the definition because it allows an appeal of a
Director's Order to the Director. The trade association believes this
language conflicts with Sec. 1290.110(b)(1) which states an appellant
does not have to exhaust administrative remedies (i.e. appeal to the
IBLA) if an order was made effective by the Director.
ONRR Response: We agree that inclusion of the word ``Director'' in
the definition of ``order'' is confusing and are removing it in the
final rule. An order or decision the ONRR Director issues is appealable
to the IBLA, not the Director. Therefore, we are making that clear in
the final rule. Also, we are making a corresponding change to Sec.
1290.110(b) which states appellants do not have to exhaust
administrative remedies if an order was made effective by the Director.
Appellants do have to exhaust administrative remedies if an order is
made effective by the Director. The ONRR Director and the BIA Director
are not delegated authority to issue orders or decisions that are final
for the Department and nonappealable. Paragraph (b)(1) conflicts with
the requirement to appeal orders to perform a restructured accounting
the Director issues to the IBLA under 1290.105(a)(2) and orders and
decisions the ONRR Director issues to the IBLA under Sec. 1290.108.
Accordingly, we are removing paragraph (b)(1) in this final rule.
2. 1290.105(a)(1)(i) How do I appeal an order?
Upon reviewing revised 30 CFR 1290.105(a)(1)(i), we determined we
inadvertently omitted the phrase ``Indian mineral leases'' from the
portion of this subparagraph pertaining to appeals of Orders to Perform
Restructured Accounting. We have added this phrase to clarify that the
30-day appeal period applies to Orders to Perform Restructured
Accounting involving Indian mineral leases.
3. Sec. 1290.108 How do I appeal to the IBLA?
Public Comments: The trade association suggests that we also
clarify proposed 30 CFR 1290.108(a) covering appeals to the IBLA.
Specifically, it recommends removing the statement that a party may
appeal ``a final decision of the ONRR Director or the Director, Bureau
of Indian Affairs'' to the IBLA and instead state that a party may
appeal ``an order issued or made effective by the Director.'' The trade
association believes that the term ``final decision'' should be
reserved for decisions that are final for the Department--such as IBLA
and Assistant Secretary's decisions.
Both the company and trade association disagree with our proposal
to extend the period for ONRR to file an answer in an appeal to the
IBLA in proposed 1290.108(b). The trade association believes ONRR's
stated premise for the change ``to allow ONRR to assemble the
administrative record in royalty appeals'' is flawed because it
believes ``ONRR should have already prepared and submitted the
administrative record in support of its order prior to the due date for
the appellant's Statement of Reasons.'' It also is concerned that
allowing ONRR more time to assemble the administrative record could
``impair'' an appellant's access to the administrative record. The
company believes that ONRR should already have all of the information
so no time is necessary to assemble the administrative record.
ONRR Response: We agree that ONRR and BIA Director's decisions and
orders are not ``final for the Department''--which, as discussed above,
is why we are removing Sec. 1290.110(b)(1) in this final rule.
Therefore, in the final rule, we are also revising section 1290.108(a)
to state that a party may appeal to the IBLA ``an order the ONRR
Director issues or a decision the ONRR Director or Director, Bureau of
Indian Affairs issues under this part.''
With respect to 1290.108(b), ONRR will retain the extended period
for it to
[[Page 62049]]
file its answer in the final rule for two reasons. First, any
assumption that ONRR has all of the records already in its possession,
and the administrative record is already assembled, is incorrect. When
a party appeals an order to the Director, the Director's decision is
based on the order, issue letter, responses to the issue letter,
appellant's statement of reasons, field reports if requested, and
additional information either the appellant or office that issued the
order provides. Also, the Director's decision is limited to only the
issues the appellant raises on appeal. However, appellants often raise
new issues or arguments on appeal to the IBLA. In order to ensure we
provide a complete record to the IBLA and appellant, the Office of
Enforcement and Appeal's Litigation Support Branch (LSB) asks the
office that issued the order to send the LSB all audit and compliance
review records, even if portions of those audits or compliance reviews
were not at issue in the appeal to the Director (for example, schedules
not at issue in the appeal). Because an order may be issued by ONRR
satellite offices, a delegated State, or by ONRR based on a delegated
State or Tribal audit, it takes time for LSB to gather all of the
documents to include in the record. LSB then organizes, indexes, and
bates stamps the record--a service that benefits not only ONRR, but
also the appellant and IBLA.
Second, we believe the concern that allowing ONRR more time to
assemble the administrative record could somehow ``impair'' an
appellant's access to the administrative record is unwarranted. As
stated above, ONRR's goal is to provide the most complete, well-
organized record possible. Moreover, the appellant should already have
most of the documents necessary to prepare its statement of reasons.
And, to the extent the administrative record contains information the
appellant did not have prior to filing its statement of reasons, which
is not likely, the appellant may file a reply brief within 15 days of
ONRR filing an answer. 43 CFR 4.412(d).
4. Sec. 1290.111 What happens if I do not pay or appeal an order?
Public Comments: The Tribe submitted a comment in support of
proposed Sec. 1290.111. Section 1290.111 makes clear that, if you
receive an ONRR order and you neither pay nor appeal that order under
30 CFR part 1290, the order is the final decision of the Department,
and you may not contest the merits of that order in any subsequent
proceeding seeking to enforce the order under 30 CFR part 1241. For
example, if ONRR issued a Notice of Noncompliance (NONC) under 30 CFR
part 1241 to enforce an order you did not pay or appeal, you may not
contest your liability under the order in a hearing on the NONC.
However, if you did not comply with the NONC enforcing the order, and
ONRR assessed civil penalties for your failure to comply with the NONC,
you could contest the amount of the penalty assessment.
ONRR Response: ONRR appreciates the Tribe's support and will retain
Sec. 1290.111 in the final rule.
43 CFR Part 4 Subpart J--Special Rules Applicable to Appeals Concerning
Federal Oil and Gas Royalties and Related Matters
5. Sec. 43 CFR 4.903 Definition of ``order.''
Public Comments: The trade association and company made the same
comments to the definition of ``order'' in section 4.903 as those they
made for 30 CFR 1290.102. Definition of ``order'' discussed above.
ONRR Response: See our response to the comments to 30 CFR 1290.102
above.
IV. Procedural Matters
1. Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) of the Office of Management
and Budget (OMB) will review all significant rules. OIRA has determined
that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
2. Regulatory Flexibility Act
The Department certifies that this rule will not have a significant
economic effect on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
This rule will affect lessees under Federal and Indian mineral
leases and other recipients of ONRR orders or other official
correspondence. Lessees of Federal and Indian mineral leases are
generally companies classified under the North American Industry
Classification System (NAICS) Code 211111, which includes companies
that extract crude petroleum and natural gas. For this NAICS code
classification, a small company is one with fewer than 500 employees.
Because this rule applies to all mineral leases, even though the NAICS
classification only applies to oil and gas leases, we are using the
same classification system for all mineral leases. The Department
believes that a meaningful number of businesses affected by this rule
will be small businesses.
This rule will have no economic effect on small businesses.
Businesses will not lose any opportunity to appeal any orders which may
have an economic effect. This rule only will serve to clarify the
proper forum for certain appeals, conform with other regulations, and
codify previously enacted Federal law. A Regulatory Flexibility
Analysis will not be required. Accordingly, a Small Entity Compliance
Guide will not be required.
Your comments are important. The Small Business and Agriculture
Regulatory Enforcement Ombudsman and ten Regional Fairness Boards
receive comments from small businesses about Federal agency enforcement
actions. The Ombudsman annually evaluates the enforcement activities
and rates each agency's responsiveness to small business. If you wish
to comment on the actions of ONRR, call 1-888-734-3247. You may comment
to the Small Business Administration without fear of retaliation.
Allegations of discrimination/retaliation filed with the Small Business
Administration will be investigated for appropriate action.
3. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2) of the Small
Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.).
This rule:
(a) Does not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or
[[Page 62050]]
the ability of U.S.-based enterprises to compete with foreign-based
enterprises.
4. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector of more than $100 million per
year. This rule will not have a significant or unique effect on State,
local, or Tribal governments, or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1501 et seq.) is not required.
5. Takings (E.O. 12630)
Under the criteria in section 2 of E.O. 12630, this rule does not
have any significant takings implications. This rule is not a
governmental action capable of interference with constitutionally
protected property rights. A Takings Implication Assessment is not
required.
6. Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132, this rule does not
have sufficient federalism implications to warrant the preparation of a
Federalism summary impact statement. This rule does not substantially
and directly affect the relationship between the Federal and State
governments. To the extent that State and local governments have a role
in Outer Continental Shelf (OCS) activities, this rule does not affect
that role. A Federalism summary impact statement is not required.
7. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule:
a. Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
b. Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
8. Consultation With Indian Tribes (E.O. 13175)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and tribal sovereignty. Under the Department's
consultation policy and the criteria in E.O. 13175, we evaluated this
rule and determined that it will have no substantial direct effects on
federally recognized Indian Tribes. Indian Tribes will be unaffected by
clarifications to this appeals rule because the changes would affect
the procedures for appeal by lessees, but not the rights of lessors,
such as individual Indian mineral owners and Tribes.
9. Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to OMB is not required under the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).
10. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. We are not required to
provide a detailed statement under the National Environmental Policy
Act of 1969 (NEPA) because this rule qualifies for categorical
exclusion under 43 CFR 46.210(c) and (i) and the DOI Departmental
Manual, part 516, section 15.4.D: ``(c) Routine financial transactions
including such things as . . . audits, fees, bonds, and royalties . . .
(i) Policies, directives, regulations, and guidelines: That are of an
administrative, financial, legal, technical, or procedural nature.''
See 43 CFR 46.210(i) and the DOI Departmental Manual, part 516, section
15.4.D (2004). We have also determined that this rule is not involve in
any of the extraordinary circumstances listed in 43 CFR 46.215 that
requires further analysis under NEPA. The procedural changes resulting
from these amendments have no consequences with respect to the physical
environment. This rule will not alter, in any material way, natural
resource exploration, production, or transportation.
11. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in E.O. 13211. A Statement of Energy Effects is not required.
List of Subjects
30 CFR Part 1290
Administrative practice and procedure.
43 CFR Part 4
Administrative practice and procedure, Civil rights, Claim, Equal
access to justice, Estates, Government contracts, Grazing lands,
Indians, Lawyers, Mines, Penalties, Public lands, Surface mining,
Whistleblowing.
Dated: October 2, 2014.
Rhea Suh,
Assistant Secretary for Policy, Management and Budget.
Authority and Issuance
For the reasons stated in the preamble, the Department of the
Interior amends 30 CFR part 1290 and 43 CFR part 4, subpart J, as
follows:
TITLE 30--MINERAL RESOURCES
CHAPTER XII--OFFICE OF NATURAL RESOURCES REVENUE, DEPARTMENT OF THE
INTERIOR
Subchapter B--Appeals
PART 1290--APPEAL PROCEDURES
0
1. The authority citation for part 1290 continues to read as follows:
Authority: 5 U.S.C. 301 et seq.; 43 U.S.C. 1331.
0
2. Amend the definition of Order in Sec. 1290.102 by revising the
introductory text and paragraphs (1)(i), (1)(ii), (2)(iii), and (2)(iv)
and adding paragraphs (2)(v) and (2)(vi) to read as follows:
Sec. 1290.102 What definitions apply to this part?
* * * * *
Order, for purposes of this part only, means any document issued by
ONRR or a delegated State that contains mandatory or ordering language
that requires the recipient to do any of the following for any lease
subject to this part: Report, compute, or pay royalties or other
obligations, report production, or provide other information.
(1) * * *
(i) An order to pay (Order to Pay) or to compute and pay (Order to
Perform a Restructured Accounting); and
(ii) An ONRR or delegated State decision to deny a lessee's,
designee's, or payor's written request that asserts an obligation due
the lessee, designee, or payor (Denial).
(2) * * *
(iii) An order to pay that ONRR issues to a refiner or other person
involved in disposition of royalty taken in kind;
(iv) A Notice of Noncompliance or a Notice of Civil Penalty issued
under 30 U.S.C. 1719 and 30 CFR part 1241, or a decision of an
administrative law judge or of the IBLA following a hearing on the
record on a Notice of Noncompliance or Notice of Civil Penalty;
(v) A ``Dear Payor,'' ``Dear Operator,'' or ``Dear Reporter''
letter unless it explicitly includes the right to appeal in writing; or
(vi) Any correspondence that does not include the right to appeal
in writing.
* * * * *
[[Page 62051]]
0
3. Amend Sec. 1290.105 by revising paragraph (a) to read as follows:
Sec. 1290.105 How do I appeal an order?
(a)(1) You may appeal to the Director, Office of Natural Resources
Revenue (ONRR Director), by filing a Notice of Appeal in the office of
the official issuing the Order:
(i) Within 30 days from service of an Order to Pay or a Denial
involving Federal or Indian mineral leases, or an Order to Perform a
Restructured Accounting involving Indian mineral leases or Federal
solid mineral or geothermal leases; or
(ii) Within 60 days from service of an Order to Perform a
Restructured Accounting involving Federal oil and gas leases if a
delegated State issued the Order to Perform a Restructured Accounting.
(2) If the ONRR Director, or other most senior career professional
responsible for the ONRR royalty management program, issued the Order
to Perform a Restructured Accounting for a Federal oil and gas lease,
then you may appeal that order to the IBLA within 60 days under Sec.
1290.108.
(3) For appeals to the ONRR Director under paragraph (a)(1) of this
section, within the same 30-day or 60-day period, whichever is
applicable, you must file in the office of the official issuing the
Order to Pay, Order to Perform a Restructured Accounting, or Denial, a
statement of reasons, or written arguments, or brief that includes the
arguments on the facts or law that you believe justify reversal or
modification of the Order to Pay, Order to Perform a Restructured
Accounting, or Denial.
(4) If you are a designee, when you file your Notice of Appeal, you
must concurrently serve your Notice of Appeal on the lessees for the
leases in the Order to Pay, Order to Perform a Restructured Accounting,
or Denial you appealed.
* * * * *
0
4. Revise Sec. 1290.108 to read as follows:
Sec. 1290.108 How do I appeal to the IBLA?
(a) Any party to a case adversely affected by an order the ONRR
Director issues or a decision the ONRR Director or Director, Bureau of
Indian Affairs issues under this part shall have a right of appeal to
the IBLA under the procedures provided in 43 CFR part 4, subpart E.
(b) Notwithstanding 43 CFR 4.414(a), a party shall file an answer
or appropriate motion within 60 days after service of the statement of
reasons for appeal unless an extension of time is requested and
granted.
0
5. Amend Sec. 1290.110 by revising paragraphs (b)(1), (b)(2), and
(b)(3) to read as follows:
Sec. 1290.110 How do I exhaust administrative remedies?
* * * * *
(b) * * *
(1) The Assistant Secretary for Policy, Management and Budget;
(2) The Assistant Secretary for Indian Affairs; or
(3) The Interior Board of Land Appeals under 43 CFR part 4.
* * * * *
0
6. Add new Sec. 1290.111 to read as follows:
Sec. 1290.111 What happens if I do not pay or appeal an order?
If you neither pay nor appeal an order under this part, that order
is the final decision of the Department, you have failed to exhaust
administrative remedies as required under Sec. 1290.110(a), and you
may not contest the validity or merits of that order in any subsequent
proceeding to enforce that order under 30 U.S.C. 1719 and part 1241 of
this chapter.
TITLE 43--PUBLIC LANDS: INTERIOR
SUBTITLE A--Office of the Secretary of the Interior
PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES
Subpart J--Special Rules Applicable to Appeals Concerning Federal
Oil and Gas Royalties and Related Matters
0
7. The authority citation for subpart J continues to read as follows:
Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396 et seq., 396a et
seq., 2101 et seq.; 30 U.S.C. 181 et seq., 351 et seq., 1001 et
seq., 1701 et seq.; 31 U.S.C. 9701; 43 U.S.C. 1301 et seq., 1331 et
seq., and 1801 et seq.
0
8. Amend the sections in part 4 indicated in the left column of the
table by removing the text in the center column and adding in its place
the text in the right column.
Sec. Sec. 4.902, 4.903, 4.906, 4.907, and 4.908 [Amended]
Amendment Table for Part 4
------------------------------------------------------------------------
By removing the And adding in
Amend reference to: its place:
------------------------------------------------------------------------
Sec. 4.902(a)............... 30 CFR part 290 in 30 CFR part
effect prior to May 1290.
13, 1999 and
contained in the 30
CFR, parts 200 to
699, edition revised
as of July 1, 1998,
30 CFR part 290
subpart B.
Sec. 4.902(a)............... Minerals Management Office of
Service (MMS). Natural
Resources
Revenue (ONRR).
Sec. 4.903, definition of MMS................... ONRR.
Delegated State.
Sec. 4.903, definition of 30 CFR part 227....... 30 CFR part
Delegated State. 1227.
Sec. 4.903, definition of 30 CFR 218.52......... 30 CFR 1218.52.
Designee.
Sec. 4.903, definition of MMS................... ONRR.
Monetary obligation.
Sec. 4.903, definition of MMS................... ONRR.
Notice of Order (two times).
Sec. 4.903, definition of MMS................... ONRR.
Party.
Sec. 4.903, definition of 30 CFR part 290 30 CFR part
Party (two times). subpart B. 1290.
Sec. 4.906(b)(1)............ MMS................... ONRR.
Sec. 4.906(b)(2)............ MMS................... ONRR.
Sec. 4.906(d) (three times). MMS................... ONRR.
Sec. 4.907 (table of MMS................... ONRR.
contents and section heading).
Sec. 4.907(a) (two times)... MMS................... ONRR.
Sec. 4.907(b)............... MMS................... ONRR.
Sec. 4.907(c)............... MMS's................. ONRR's.
Sec. 4.908(a)............... MMS................... ONRR.
Sec. 4.908(b)............... MMS................... ONRR.
Sec. 4.908(c)............... MMS................... ONRR.
------------------------------------------------------------------------
[[Page 62052]]
0
9. Revise the definitions of Order and Payor in Sec. 4.903 to read as
follows:
Sec. 4.903 What definitions apply to this subpart?
* * * * *
Order means any document or portion of a document issued by ONRR or
a delegated State that contains mandatory or ordering language
regarding any monetary or nonmonetary obligation under any Federal oil
and gas lease or leases.
(1) Order includes:
(i) An order to pay (Order to Pay) or to compute and pay (Order to
Perform a Restructured Accounting); and
(ii) An ONRR or delegated State decision to deny a lessee's,
designee's, or payor's written request that asserts an obligation due
the lessee, designee, or payor.
(2) Order does not include:
(i) A non-binding request, information, or guidance, such as:
(A) Advice or guidance on how to report or pay, including valuation
determination, unless it contains mandatory or ordering language; and
(B) A policy determination;
(ii) A subpoena;
(iii) An order to pay that ONRR issues to a refiner or other person
involved in disposition of royalty taken in kind; or
(iv) A Notice of Noncompliance or a Notice of Civil Penalty issued
under 30 U.S.C. 1719 and 30 CFR part 1241, or a decision of an
administrative law judge or of the IBLA following a hearing on the
record on a Notice of Noncompliance or Notice of Civil Penalty.
(v) A ``Dear Payor,'' ``Dear Operator,'' or ``Dear Reporter''
letter unless it explicitly includes the right to appeal in writing; or
(vi) Any correspondence that does not include the right to appeal
in writing.
* * * * *
Payor means any person responsible for reporting and paying
royalties for Federal oil and gas leases.
0
10. Revise Sec. 4.904 to read as follows:
Sec. 4.904 When does my appeal commence and end?
For purposes of the period in which the Department must issue a
final decision in your appeal under Sec. 4.906:
(a) Your appeal commences on the date ONRR receives your Notice of
Appeal.
(b) Your appeal ends on the same day of the 33rd calendar month
after your appeal commenced under paragraph (a) of this section, plus
the number of days of any applicable time extensions under Sec. 4.909
or 30 CFR 1290.109. If the 33rd calendar month after your appeal
commenced does not have the same day of the month as the day of the
month your appeal commenced, then the initial 33-month period ends on
the last day of the 33rd calendar month.
0
11. Amend Sec. 4.906 by revising paragraph (b)(3) to read as follows:
Sec. 4.906 What if the Department does not issue a decision by the
date my appeal ends?
* * * * *
(b) * * *
(3) If the ONRR Director issues an order or a decision in your
appeal, and if you do not appeal the Director's order or decision to
IBLA within the time required under 30 CFR part 1290, then the ONRR
Director's order or decision is the final decision of the Department
and 30 U.S.C. 1724(h)(2) has no application.
* * * * *
[FR Doc. 2014-24305 Filed 10-15-14; 8:45 am]
BILLING CODE 4310-T2-P
