Rule2026-10160
Practices Before the Department of the Interior
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 21, 2026
Effective
May 21, 2026
Issuing agencies
Interior Department
Abstract
The Office of Hearings and Appeals (OHA) is issuing this final rule to adopt the interim final rule (IFR) published on January 10, 2025, with a few changes made to respond to public comments, to clarify procedures, and to correct typographical errors. The IFR was originally set to go into effect February 10, 2025, but the effective date was delayed several times until July 21, 2025, to provide time for review pursuant to the memorandum of January 20, 2025, from President Donald J. Trump, entitled Regulatory Freeze Pending Review. The IFR became effective on July 21, 2025.
Full Text
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<title>Federal Register, Volume 91 Issue 98 (Thursday, May 21, 2026)</title>
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[Federal Register Volume 91, Number 98 (Thursday, May 21, 2026)]
[Rules and Regulations]
[Pages 29911-29920]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-10160]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 4
[Docket No. DOI-2022-0010; 256D0102DM; D6CS00000; DLSN00000.000000;
DX6CS25]
RIN 1094-AA57
Practices Before the Department of the Interior
AGENCY: Office of Hearings and Appeals, Interior.
ACTION: Final rule.
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SUMMARY: The Office of Hearings and Appeals (OHA) is issuing this final
rule to adopt the interim final rule (IFR) published on January 10,
2025, with a few changes made to respond to public comments, to clarify
procedures, and to correct typographical errors. The IFR was originally
set to go into effect February 10, 2025, but the effective date was
delayed several times until July 21, 2025, to provide time for review
pursuant to the memorandum of January 20, 2025, from President Donald
J. Trump, entitled Regulatory Freeze Pending Review. The IFR became
effective on July 21, 2025.
DATES: Effective May 21, 2026. Submit comments on information
collection issues under the Paperwork Reduction Act of 1995 by June 22,
2026.
ADDRESSES: Comments Related to Information Collection Requirements:
Send your comments on the information collection request to the
Departmental Information Collection Clearance Officer, U.S. Department
of the Interior, Jeffrey Parrillo, 1849 C Street NW Washington, DC
20240; or by email to <a href="/cdn-cgi/l/email-protection#9cd8d3d5b1cccedddcf5f3efb2f8f3f5b2fbf3ea"><span class="__cf_email__" data-cfemail="88ccc7c1a5d8dac9c8e1e7fba6ece7e1a6efe7fe">[email protected]</span></a>. Please reference OMB Control
Number 1094-New/RIN 1094-AA57'' in the subject line of your comments.
FOR FURTHER INFORMATION CONTACT: Paul Kienzle, 202-208-3350.
Individuals in the United States who are deaf, blind, hard of hearing,
or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to
access telecommunications relay services. Individuals outside the
United States should use the relay services offered within their
country to make international calls to the point-of-contact in the
United States.
SUPPLEMENTARY INFORMATION:
I. Background
On January 10, 2025, OHA published an IFR titled Practices Before
the Department of the Interior, with an effective date of February 10,
2025. OHA also invited the public to submit comments by February 10,
2025, indicating it would consider the comments received and consider
further revisions, if appropriate. OHA received three sets of comments.
OHA later published a Rule Correction on June 2, 2025, at 90 FR
23290. The Rule Correction corrected the IFR to address: two technical
errors in the amendatory instructions for Sec. Sec. 4.845 and 4.1301,
typographical errors in Sec. Sec. 4.1, 4.26, and 4.27(a), and
additional typographical errors in the amendatory instructions for
Sec. Sec. 4.845 and 4.1301 and the instructions provided for
submitting comments on the Information Collection Review. The Rule
Correction also removed the IFR's two references to an Executive Order
that was revoked on January 20, 2025.
On January 20, 2025, the President issued a Memorandum titled
``Regulatory Freeze Pending Review.'' The President's Memorandum
directed executive departments to ``consider postponing for 60 days
from the date of [the] memorandum the effective date for any rules that
have been published in the Federal Register, or any rules that have
been issued in any manner but have not taken effect, for the purpose of
reviewing any questions of fact, law, and policy that the rules may
raise.''
In order to conduct this review, OHA delayed the effective date of
the IFR to March 21, 2025 (90 FR 9222), again to May 5, 2025 (90 FR
12461), again to June 4, 2025 (90 FR 18927), and again to July 21, 2025
(90 FR 24231). Pursuant to the President's Memorandum, the Department
reviewed the IFR and identified a few changes to be made in response to
public comments, including restoring provisions in OHA's regulations
that the IFR had changed. The IFR went into effect on July 21, 2025.
This final rule adopts the IFR with changes that respond to public
comments, provide clarification, and correct typographical errors.
OHA is placing the final rule in immediate effect because good
cause exists under 5 U.S.C. 553(d)(3) to forgo
[[Page 29912]]
the 30-day delay of the effective date that would otherwise be
required. Because the IFR, which went into effect on July 21, 2025,
contains provisions that OHA is now removing or clarifying based on
public comments, it is necessary to make the final rule immediately
effective to limit the time the IFR remains in effect without these
changes and to reduce public confusion about which regulations govern
proceedings before OHA. Consequently, it is contrary to the public
interest to wait 30 days before the final rule becomes effective.
II. Summary of Comments and Responses
A. Compliance with Administrative Procedure Act Standards for
Rulemaking
Under the Administrative Procedure Act (APA), federal agencies must
provide the public with notice of a proposed rule and the opportunity
to submit comments on it, with a few exceptions. One of the exceptions
is for interpretive rules, general statements of policy, and rules of
organization, procedure, or practice. See 5 U.S.C. 553(b)(A). In the
IFR, OHA explained that the rule is subject to this exception because
it ``only makes changes to OHA's rules of agency organization,
procedure, or practice.'' We explained that OHA's rules describe
procedures that parties and OHA must follow during administrative
adjudication of a case and are similar to provisions of the Federal
Rules of Civil Procedure and the Federal Rules of Appellate Procedure.
90 FR 2335-36. We welcomed additional suggestions for improvements from
the public, explaining that ``OHA will consider comments received and
consider further revisions, if appropriate.'' Id. at 2336.
Two entities commented that portions of the IFR should have been
subject to notice and comment because they are not appropriate changes
to make in an IFR. One of these commenters focused on changes to the
standards for petitions for stays in Sec. 4.171 (DCHD provision) and
Sec. 4.405 (IBLA provision), specifically, removal of the public
interest criterion and the requirement that the petitioner's harm be
immediate. The commenter asserted that the revised criteria ``impose[ ]
substantive burdens, encode[ ] a substantive value judgment, encroach[
] on substantial private rights and interests, and materially alter[ ]
the rights and interests of the parties.'' The commenter stated that,
under these situations, the Court of Appeals for the D.C. Circuit has
held that the exception to the requirement for notice-and-comment
rulemaking for ``rules of agency organization, procedure, or practice''
does not apply, citing, among other cases, James V. Hurson Assocs. v.
Glickman, 229 F.3d 277, 280 (D.C. Cir. 2000). The commenter concluded
that the portions of the IFR adjusting the stay criteria do ``not fall
under the APA's procedural exception to notice and comment rulemaking
and should be removed from the revisions to OHA's otherwise procedural
amendments.''
The second commenter asserted more generally that the IFR ``negates
the notice and comment provisions for rulemaking as prescribed by the
Administrative Procedure Act'' because it ``very much implicates
`substantive rights or interests' '' and is therefore not a rule of
agency procedure or practice under 5 U.S.C. 553(b)(A).
The process OHA has used for this rulemaking fully complies with
the APA, not only satisfying the procedural rule exception but also the
requirements for notice-and-comment rulemaking. As emphasized by the
D.C. Circuit, the procedural rule exception ``covers agency actions
that do not themselves alter the rights or interest of parties,
although it may alter the manner in which the parties present
themselves or their viewpoints to the agency.'' James V. Hurson
Assocs., 229 F.3d at 280. The IFR falls within these parameters because
it does not change existing rights but instead updates the adjudication
processes used by OHA and codifies pre-existing precedent. For example,
with respect to stays of decisions pending appeal, eliminating the
process for obtaining a stay (akin to the elimination of an entire type
of approval process as presented in Hurson) would constitute an
alteration of a substantive right. But the IFR only modifies the
procedure for asserting a stay and codifies pre-existing precedent
governing the stay criteria. Nevertheless, as explained in more detail
in the section of this final rule addressing the stay criteria, OHA has
decided to remove the changes to the stay criteria in sections Sec.
4.171 and Sec. 4.405 in the final rule.
In addition, the process used by OHA to develop this final rule
satisfies the notice-and-comment requirements of the APA. By addressing
comments received on the IFR in this final rule, OHA also meets all the
APA-required elements for notice-and-comment rulemaking. The IFR and
its preamble provided the public with all the information required by
the APA: a reference to legal authority, as required by 5 U.S.C.
553(b)(2) (Section V); a description of the terms and substance of the
rule, as required by 5 U.S.C. 553(b)(3) (Section V); and a request for
public comment, as required by 5 U.S.C. 553(c) (Section IV).
B. Hearings (Sec. Sec. 4.5, 4.126, 4.150, 4.151, 4.703)
While the commenters did not take specific exception to the hearing
rules, one commenter raised concerns about how recent legal
developments might impact the statutory hearing requirements. With
respect to the comments pertaining to the Supreme Court's opinion in
Securities and Exchange Commission v. Jarkesy, 603 U.S. 109 (2024), it
would be premature and outside the scope of this rulemaking to render
an advisory opinion about how that holding might affect specific types
of proceedings adjudicated by the Departmental Cases Hearings Division
(DCHD). Any motions raising Jarkesy-related arguments will be addressed
and decided on a case-by-case basis.
The other concerns raised by the commenter relate to apparent
``omissions,'' and more specifically, the implications of an opinion
issued by an Acting Deputy Secretary. Again, it would be outside the
scope of this rulemaking to render an advisory opinion about how
similar issues might be resolved in the future. Any cases raising
similar issues will be addressed and decided on a case-by-case basis.
C. Definitions and Acronyms (Sec. 4.6)
One commenter took exception to the definition of an administrative
law judge (ALJ) as it relates to being ``appointed.'' While we
appreciate the commenter's observations, the process for appointing
ALJs after Lucia v. Securities and Exchange Commission, 585 U.S. 237
(2018), is outside the scope of this rulemaking.
D. Service (Sec. Sec. 4.32, 4.102, 4.109, 4.170, and 4.407)
Although OHA received favorable feedback about the new electronic
filing and service rules, one commenter raised concerns about the
availability of current mailing and email addresses for permittees,
applicants, and others that hold authorizations from the Department.
The commenter suggested that the Bureau of Land Management (BLM) be
required to annually update its lists to include applicable email
addresses so that appellants can email ``each person or entity'' rather
than being required to mail documents. Alternatively, the commenter
suggested that BLM expand its eplanning submission options so that
appeals can be uploaded to BLM's website for access by ``each person or
entity.'' Because these suggestions relate to BLM's
[[Page 29913]]
procedures, they are beyond the scope of this final rule.
In addition, one commenter advocated for adding a provision to
create consequences for appellants who neglect to serve ``each person
or entity named in the decision'' to ensure that potential intervenors
are aware of appeals that could affect them. Both DCHD and IBLA have
authority to address any failure to comply with service requirements.
This authority is inherent in each unit's authority to manage its
docket and enforce its regulations.
Finally, one commenter noted that appeals typically include
supporting exhibits that exceed 20 megabytes and that OHA should
``account for this challenge'' by identifying a method to file and
serve those supporting exhibits. For documents filed electronically
with OHA, parties will have the option of dividing filings into
multiple subparts that will facilitate the filing and service of large
submissions.
E. Pleading Form (Sec. 4.103)
One commenter asked that the provision authorizing an ALJ to strike
and not consider any pleading or document that fails to comply with
Sec. 4.103 be removed. As noted by the commentor, the rule includes
the word ``may.'' Consequently, an ALJ retains the discretion to
determine the appropriate remedy, which could include allowing an
amendment to a pleading or striking a pleading when a party
consistently fails to conform to the standards. This provision has been
included to encourage compliance with formatting standards because
proper filings enable an ALJ to rule on motions and other requests for
relief more expeditiously.
F. Page Limits (Sec. Sec. 4.105, 4.111, 4.130, 4.410)
We received comments urging OHA to remove default page limits for
briefs. Those default page limits have been included in the rules to
expedite adjudication. Although the commenter argues that these page
limits are arbitrary and unreasonable, the page limits serve as useful
starting points. An ALJ or the IBLA has discretion to modify the limits
in appropriate circumstances. This may include allowing longer page
limits (or no limits) in more complex cases. Parties may also request
permission to file overlength briefs when a more detailed analysis is
warranted. Given this built-in flexibility, it is unnecessary to remove
the default page limits. ALJs and the IBLA can address individual
circumstances on a case-by-case basis.
G. Reply Briefs (Sec. Sec. 4.105, 4.111)
OHA received comments urging DCHD to authorize reply briefs.
Although the rules do not allow automatic replies, the rules also do
not prohibit reply briefs. Instead, the rules authorize ALJs to use
their discretion to allow replies in appropriate circumstances on a
case-by-case basis. In the past, routinely allowing replies has led to
unnecessary delays in case processing and has resulted in tight
scheduling deadlines when the requested relief is time sensitive. DCHD
has also found that some parties wait to raise key arguments until they
file their reply briefs, which has led to additional rounds of time-
consuming briefing. By setting the expectation that replies must be
requested, we have found that parties tend to submit more complete
briefing during the initial stages so that replies often become
unnecessary.
H. Stipulated Dismissal (Sec. 4.110)
One commenter stated that, while it does not take exception with
the stipulated dismissal provision, the section should also provide as
follows: ``If BLM or another agency of the U.S. Department of the
Interior requests DCHD or any Board via a stipulation to approve a
stipulated settlement, including one that may modify the underlying
appealed decision, then DCHD or the applicable Board should do so to
ensure finality of agency decision-making.'' As the commenter notes,
the IBLA recently held in Petan Company of Nevada, Inc., IBLA 2024-
0079, a non-precedential order dated January 16, 2025, that ``[t]he
Board encourages settlement and will grant a motion to dismiss an
appeal without ruling on the merits when the parties have resolved
their dispute and there is no longer any controversy between them.''
However, ``absent an exceptional circumstance, the Board will not
itself order modification of an appealed decision, particularly when
the Board is asked to do so without independently confirming the
legality of the modification.'' The principle that OHA will not
typically modify a decision absent review of the merits reflects the
fact that OHA exists to ensure the legality and finality of agency
decisions, and OHA's authority, like that of the Attorney General,
``does not include license to agree to settlement terms that would
violate the civil laws governing the agency.'' Exec. Bus. Media v. U.S.
Dep't of Defense, 3 F.3d 759, 762 (4th Cir. 1993). The language of
Sec. 4.110 allows the ALJ to consider the facts of any stipulated
dismissal and issue an appropriate order in response. We decline to add
language requiring an ALJ to approve stipulated settlements.
I. Summary Judgment (Sec. 4.111)
One commenter explained that while it does not take exception with
DCHD's use of the Federal Rules of Civil Procedure (FRCP) as guidance
when adjudicating summary judgments, the rule needed to ``go a
significant step further.'' By way of example, the commenter pointed to
the standard for review in grazing cases. While OHA appreciates the
commenter's focus on grazing cases, this summary judgment provision
establishes a rule of general applicability. As written, this rule
broadly encompasses all the various types of cases adjudicated by
DCHD's ALJs. This rule does not attempt to address specific standards
that may apply in certain types of cases, such as grazing appeals.
Instead, this rule adopts the same summary judgment standard used in
Federal District Court proceedings and explicitly relies on FRCP 56 as
guidance. It is outside the scope of this summary judgment rule to
address long-standing case law and precedent surrounding the specific
standards for reviewing different types of cases and issues.
J. Discovery (Sec. 4.112 Through Sec. 4.119)
We received one comment about the discovery provisions in subpart
C. The general procedural rules in subpart C are designed to function
like the FRCP but have been simplified and tailored to administrative
proceedings. As such, the discovery rules mirror the methods of
discovery allowed in the FRCP with an important qualification--
discovery must be authorized by the ALJ. Some cases before DCHD require
discovery and others require little, or no, discovery. Because the
discovery procedures have been drafted to be generally applicable to
all case types adjudicated by DCHD, it remains the responsibility of
the parties and the ALJ to assess the discovery needs of each
individual case.
For this reason, an ALJ would not authorize discovery in cases
where it would not aid in the resolution of the proceeding. And even
when the ALJ does authorize discovery, the ALJ could limit the scope of
authorized discovery to ensure that the requests are ``proportional to
the needs of the case.'' While the commenter specifically objects to
depositions, that form of discovery is more appropriate in certain
types of proceedings and less appropriate in others. By maintaining
rules modeled after the FRCP, ALJs will have the flexibility to respond
to the discovery needs of each individual case.
[[Page 29914]]
K. Sanctions (Sec. 4.121 and Sec. 4.411)
One commenter asked that the sanctions provisions in Sec. 4.121
(for DCHD proceedings) and Sec. 4.411 (for IBLA appeals) be deleted or
revised because they are not needed and could be viewed as ``ominous
and draconian.'' As we explained in the preamble to the IFR, these
provisions merely codified the long-standing authority of ALJs and
administrative judges to regulate the conduct of parties in hearings
and appeals so that the administrative process proceeds in a fair and
efficient manner that complies with applicable laws and orders.
Nonetheless, because Sec. Sec. 4.121 and 4.411 merely codify existing
authority, they are not necessary additions to these procedural rules.
We therefore have eliminated both sanctions provisions.
OHA has replaced the sanctions provisions with sections codifying
DCHD's and IBLA's general authority to manage the proceedings and
appeals before them. These sections use language similar to the
language describing the authority and duty given to ALJs to conduct
hearings in an orderly and judicial manner in Sec. 4.126(b). The IBLA
has the same general authority for appeals, but that fact is not
reflected in the existing rules. To ensure regulatory consistency, we
have replaced Sec. 4.121 and Sec. 4.411 in the IFR with Sec. 4.121,
titled ``Case Management,'' and Sec. 4.411, titled ``Management of
Appeals.'' These sections codify OHA's general authority to regulate
the course of proceedings and appeals to ensure they are resolved in a
fair and orderly manner. Consistent with the change to Sec. 4.121, we
have eliminated Sec. Sec. 4.104(g) and 4.126(b)(12) as unnecessary.
L. Transcripts (Sec. 4.128)
One commenter raised concerns about transcript costs and the time
period for proposing corrections to the official transcript prepared by
a court reporter. While OHA appreciates the concerns about the cost of
a written transcript, OHA's budget is insufficient to provide parties
with a verbatim copy of written transcripts for hearings and other
proceedings. OHA makes every effort to contract for a favorable rate,
but we were unaware that court reporting companies did not always
charge the same per page rate to parties. Going forward, OHA will
endeavor to contract in advance to ensure the same per page transcript
costs apply to the Department as well as the parties and will disclose
that contract amount in advance of any hearing for transparency.
With respect to the regulatory time frame for making corrections,
this rule merely establishes a default deadline that serves as a guide
for proposing corrections. For lengthy, more complex proceedings, the
ALJ retains discretion to establish an appropriate deadline on a case-
by-case basis and can allow more time to identify and propose
corrections to the official transcript as needed. Given this built-in
flexibility, OHA declines to modify the default time period contained
in Sec. 4.128(c).
M. Petitions for Stay (Sec. 4.171 and Sec. 4.405)
The IFR included two changes to the standards for stay petitions.
First, the IFR removed the ``public interest'' criterion from the four
criteria in the previous versions of Sec. 4.21(b)(1) and Sec.
4.471(c). DCHD and IBLA explained that removing this criterion is
consistent with Federal court opinions holding that when the Federal
Government is the party opposing the stay, the balance of harms and
public interest ``merge.'' See Nken v. Holder, 556 U.S. 418, 435 (2009)
(holding that, in the context of a stay, assessing the harm to the
opposing party and weighing the public interest ``merge when the
Government is the opposing party.''). The merged test has been applied
in challenges to natural resources permitting decisions, see, e.g.,
Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014),
and it is based on the principle that when the government is the
defendant, the public interest and the balance of harms are best
analyzed in tandem. A separate element is unnecessary because balancing
the harm to the government includes assessing whether there is harm to
the public interest.
Second, in Sec. 4.171(a)(1)(i) and Sec. 4.405(b)(4)(i), the IFR
eliminated the word ``immediate'' from the criterion requiring an
appellant to show ``[t]he likelihood of immediate and irreparable harm
if the stay is not granted.'' Instead, the IFR required a showing that
the irreparable harm will likely occur ``pending resolution of the
appeal.'' This modification was intended to promote the purpose of a
stay, which is to prevent or minimize irreparable harm at any time
while an appeal is being considered. The IBLA made corresponding
changes in Sec. 4.405(b)(2) and (b)(8) to require any stay petition to
be filed at the same time the appellant files its notice of appeal,
eliminating the option to file a stay petition later, while the appeal
is pending. With the expectation that a petition for a stay, filed at
the beginning of an appeal, would seek to address harm that could occur
at any time while the appeal was pending, OHA removed the immediacy
requirement from the stay criterion in both Sec. 4.171(a)(1)(i) and
Sec. 4.405(b)(4)(i).
One commenter stated that the removal of the public interest
criterion is substantive and does not fall under the APA's procedural
exception. The commenter stated that this rationale ignores the cases
where a bureau or office has granted a permit or authorization, and an
outside party challenges the permit or authorization. In that
situation, the person or entity holding the permit or authorization
that is the subject of the appeal usually participates as an
intervenor. The commenter explained that ``permits or authorizations
may generate significant `public interest' that is separate and apart
from the permitting agency's interest.'' For example, where a bureau or
office issues a permit or other authorization for construction and
operation of a mine, a power line, or a pipeline, some public interest
is related to local or state economic impacts, which can total millions
of dollars. The commenter asserted that intervenors are in the best
position to calculate these impacts and present these impacts to OHA
for adjudication of a stay petition.
The merged test would not have the negative effects feared by the
commenter, but after our required review of this regulatory action, we
nonetheless believe it best to retain the four-criteria test in the
final rule to avoid confusion and eliminate any unnecessary concern.
Whether using a four-factor or three-factor test, an intervenor-
defendant's harm--as well as related harm to parties not before OHA--
may be presented by the intervenor and considered as part of the
balance of harms. As recently stated by the Court of Federal Claims,
``When the Government is the opposing party in a case, concerns over
injury to the defendant, defendant-intervenor, and the public interest
merge.'' Sci. and Tech. Corp. v. United States, 2025 U.S. Claims LEXIS
174 at *32 (Feb. 20, 2025) (citing Nken). Nonetheless, we have returned
to the four-criteria test in the final rule so that it remains explicit
that a stay may be granted only when it is in the public interest to do
so.
The same commenter stated that removal of the immediacy requirement
in the ``immediate and irreparable harm'' criterion will cause
substantive harm to the holder of a permit or authorization given the
typical duration of appeals at the IBLA. The commenter explained that
granting a stay for harm that can occur any time during an appeal
``could potentially have a project stayed at the outset and then hear
nothing for years,'' impacting
[[Page 29915]]
``investment, economic viability, and jobs.'' The commenter stated that
``OHA provides no mechanism for the holder of a stayed permit or
authorization to move the merits consideration along,'' and therefore,
``this aspect of the Interim Rule is also substantive and consideration
of it under the procedural exception violates the APA.''
OHA appreciates the commenter's perspective as an intervenor in OHA
proceedings. We note that, although the IBLA does not have a specific
procedural rule about motions to expedite, parties use the IBLA's
general motions rule to file such motions, and the IBLA has expedited
appeals when a party requested expedited review and showed compelling
circumstances for advancing an appeal ahead of other pending cases.
See, e.g., Simpson, 199 IBLA 32, 36 (2024). We also observe that
another commenter stated that ``The proposed rule correctly refines the
standards of stay to irreparable harm, balance of harms, and likelihood
of success.''
Although the impact of removing the ``immediacy'' requirement might
not be as impactful as the commenter predicts, and despite the
different views of the commenters, upon review OHA nevertheless has
eliminated the changes we made to the stay petition criteria in Sec.
4.405(b)(4) and Sec. 4.171(a)(1). Specifically, we withdraw the
changes that removed the public interest criterion and the requirement
that the petitioner's harm be immediate.
With the reintroduction of ``immediate'' in the stay criterion for
``immediate and irreparable harm,'' OHA has made two other conforming
changes to Sec. 4.405: (1) We have omitted Sec. 4.405(b)(2), ``When
to file a petition for stay,'' and renumbered the remaining paragraphs
accordingly; and (2) In Sec. 4.405(b)(8), we have omitted the sentence
that reads, ``The Board will deny any petition for a stay that is not
filed at the same time the appellant filed its notice of appeal.'' We
have also clarified in Sec. 4.405(b)(8) that the 45-day time frame for
resolving petitions for stay applies only to petitions that are filed
at the same time as a notice of appeal.
One commenter objected to the wording of the ``balance of harms''
criterion in Sec. 4.171(a)(1)(ii) and Sec. 4.405(b)(4)(ii), which
references the irreparable harm ``to the United States or other parties
from a stay being granted.'' The commenter questioned who the other
parties are: ``Sometimes they are known, but most of the time they are
not known. Neither BLM nor any Appellant nor any Intervenor should be
saddled with such type of obligation to have to argue for/against some
unknown or unstated harm to `other parties.''' In both the original
text of Sec. 4.21(b)(1)(i)--``relative harm to the parties''--and the
text of Sec. 4.171(a)(1)(ii) and Sec. 4.405(b)(4)(ii), ``parties''
refers to the named parties to an appeal, not to unknown persons or
entities. Because the commenter did not otherwise object to the revised
wording of this criterion, we will retain the descriptions in Sec.
4.171(a)(1)(ii) and Sec. 4.405(b)(4)(ii) consistent with the IFR. With
the changes to the ``balance of harms'' criterion, the reordering of
the criteria, and the addition of a label for each, the stay criteria
in Sec. 4.405(b)(4) and Sec. 4.171(a)(1) are substantively the same
as those in previous Sec. 4.21(b)(1).
The same commenter urged OHA to make an additional change to Sec.
4.171 and Sec. 4.405 to incorporate a ``sliding scale'' because the
burden on the person seeking a stay to show all stay criteria are met
``raises the bar too high to get a stay and is unlawful according to
some commentary.'' Instead, the commenter asserted that OHA should
adopt a ``sliding scale'' among the irreparable harm, balance of harms,
and likelihood of success criteria ``to ensure a fair and equitable
opportunity to stay (in whole or in part) decisions which commonly have
significant, immediate, and irreparable harm to an appellant.'' We
appreciate the commenter's suggestion that DCHD and IBLA adopt a
``sliding scale'' when adjudicating stay petitions, where a stronger
likelihood of harm may compensate for uncertainty about the merits of
an appeal. OHA considered adopting this practice during development of
the final rule and determined that it was beyond the scope of this
rulemaking.
Finally, we appreciate the comment we received in response to the
request for comments on an alternative procedure for how the IBLA would
adjudicate petitions for stay. See 90 FR at 2366. Under this
alternative procedure, decisions that are placed into immediate effect
pursuant to a statute or regulation would remain in effect pending
resolution of the appeal unless both the appellant and bureau or office
that issued the decision on appeal filed a joint petition for stay. Id.
The commenter ``is generally supportive of this alternative procedure''
but states that an operator or permit holder should be required to
concur with the petition for the stay to be implemented. We appreciate
the commenter's views on the alternative procedure we proposed for
adjudicating stays, and we will consider this change and others if OHA
proposes further revisions to subpart E in a future rulemaking.
N. Burden of Proof and Standard of Review (Sec. 4.413)
We received one comment addressing Sec. 4.413, which set forth the
scope of the IBLA's review (Sec. 4.413(a)), the appellant's burden to
show error in the decision on appeal (Sec. 4.413(b)), and the IBLA's
standard of review (Sec. 4.413(c)). The commenter expressed concern
with Sec. 4.413(b), stating that it is contrary to the APA, 5 U.S.C.
556(d), which provides that the proponent of a rule or order has the
burden of proof. The commenter also expressed concern with Sec.
4.413(c), stating that it ``elevated'' OHA and imposed a new standard
of review by conforming to the APA review standards found in 5 U.S.C.
706(2).
We explained in the IFR that the provisions in Sec. 4.413 codified
IBLA case law and historical practice to provide clarity and
consistency for those bringing and responding to appeals. Section
4.413(b) provided that in appeals before the IBLA, the appellant has
the burden to show error in the decision on appeal. The IBLA has
imposed this burden on appellants since its creation, and we have long
held that the APA's language specifying that the proponent of a rule or
order bears the burden of proof applies only to formal hearings on the
record; it does not apply to appeals before the IBLA. See, e.g., Stone
Energy Corp., 185 IBLA 342, 351 n.12 (2015) (explaining that section
556(d) of the APA ``is only applicable in the case of administrative
hearings''); see also United States Steel Corp. v. Train, 556 F.2d 822,
834 (7th Cir. 1977) (noting that the applicant for a permit under the
Clean Water Act, rather than the agency issuing the permit, is the
``proponent'' who bears the burden of proof). Nevertheless, to account
for any law that imposes a different burden of proof in a specific type
of appeal, we have inserted the phrase ``Except as otherwise provided
by law'' at the beginning of Sec. 4.413(b).
In addition, Sec. 4.413(c) reflected the IBLA's long-standing
practice of reviewing decisions under a standard that reflects 5 U.S.C.
706(2) as interpreted by Federal courts. See, e.g., Larry Marker, 194
IBLA 283, 290 (2019) (``[T]he Board will uphold [a decision] which has
a rational basis that is stated in the decision and supported by facts
of record demonstrating that the decision is not arbitrary, capricious,
or an abuse of discretion.''); Desert Sportsman's Rifle and Pistol
Club, Inc., 188 IBLA 339, 346 (2016) (``The Board will therefore set
aside a BLM decision if we conclude it is arbitrary, capricious, an
abuse of discretion, or lacks a
[[Page 29916]]
rational basis supported in the record.''); David L. Antley, 178 IBLA
194, 197 (2009) (``BLM's exercise of its discretionary authority . . .
must have a rational basis and be supported by facts of record
demonstrating that an action is not arbitrary, capricious, or an abuse
of discretion.''). It is unclear what the commenter meant by suggesting
either that application of APA standards would be new or somehow
inappropriately ``elevate'' the IBLA.
The comment reflects potential confusion about the differences
between adjudicatory hearings under the APA and appellate review.
Nevertheless, because the provisions in Sec. 4.413(c) codify long-
standing IBLA practice and precedent, they are not necessary additions
to these procedural rules. We therefore have eliminated paragraph (c)
from the rule.
O. What happens if no timely objection to the preliminary decision is
filed? (Sec. 4.744)
Section 4.744 states: ``If no written objection to a preliminary
decision is timely filed in accordance with Sec. 4.743(a) the
presiding officer will issue a final decision.'' The commenter argued
that the term ``timely filed'' could be interpreted differently by
different parties. The commenter suggested instead: ``If no written
objection to a preliminary decision is filed within the 40-day period
specified in Sec. 4.743(a) the presiding officer will issue a final
decision.'' We appreciate the commenter's suggestion to clarify, and we
will consider this change if OHA proposes further revisions to this
section. For now, the provision contains an adequate cross-reference
for parties appearing in White Earth Reservation Land Settlement Act
(WELSA) proceedings.
P. How will the presiding officer decide a petition for
reconsideration? (Sec. 4.763)
Section 4.763 states: ``The presiding officer may take any action
listed in Sec. 4.732(b) to resolve any issues of fact and will issue
an order upon reconsideration resolving the petition.'' The commenter
noted that the reference to actions in Sec. 4.732(b) might not be
immediately clear without consulting that section and suggested
instead: ``The presiding officer may take any of the actions listed in
Sec. 4.732(b) such as requesting additional information or scheduling
a hearing to resolve any issues of fact and will issue an order upon
reconsideration resolving the petition.'' We appreciate the commenter's
suggestion to clarify, and we will consider this change if OHA proposes
further revisions to this section. For now, the provision contains an
adequate cross-reference for parties appearing in WELSA proceedings.
Q. How do I request an extension of time? (Sec. 4.909)
A commenter recommended revising Sec. 4.909, which states, ``The
IBLA has the discretion to decline any motion for an extension of
time,'' by adding at the end, ``if it finds that the extension is
unwarranted or would unduly delay the proceedings.'' The commenter
stated that, without this addition, ``[i]t's not clear under what
circumstances the IBLA might decline a motion.''
We appreciate the commenter's suggestion to clarify this paragraph,
but the proposed addition is too narrow. The IBLA may deny an extension
for reasons not encompassed by the commenter's proposal, such as
untimeliness or prejudice to other parties. Rather than try to describe
all reasons an extension may be denied, we believe it is preferable to
retain this longstanding and noncontroversial provision. The only
change OHA made to this paragraph of Sec. 4.909 in the IFR was to
replace the word ``request'' with the word ``motion.''
III. Additional Clarifying Changes to the IFR
A. Grazing Procedures (Sec. Sec. 4.172, 4.174, and 4.175)
Although we did not receive comments suggesting modifications to
the grazing procedures at Sec. 4.172 and Sec. 4.175, we are making
clarifying changes. For Sec. 4.172, we are adding language to
paragraph (b), directing that the BLM shall produce its entire record
for the grazing decision within 45 days of receiving the notice of
appeal, automatically without further order or request. This addition
will provide clarity to parties who anticipate seeking judicial review
by notifying those parties that they will obtain a copy of BLM's
underlying record more expeditiously without filing a motion. We are
also making a clarifying change to Sec. 4.174(b) and Sec. 4.175(a)(1)
to remind parties that they are not required to appeal an ALJ's stay
petition order to the IBLA to exhaust administrative remedies.
B. Correction of Typographical Errors. (Sec. Sec. 4.403, 4.409)
We correct two typographical errors in the IFR. First, we delete an
extra comma in Sec. 4.403(b)(2)(ii). Second, we delete duplicative
words at the end of Sec. 4.409(b)(4).
IV. Procedural Requirements
Regulatory Planning and Review (E.O. 12866 and E.O. 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) at the Office of Management
and Budget (OMB) will review all significant rules as defined by the
E.O. OIRA determined this final rule is not significant as defined by
E.O. 12866.
E.O. 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 E.O. 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 further emphasizes 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.
Regulatory Flexibility Act
The Department of the Interior certifies that this document 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.).
It does not change current funding requirements and will not impose any
economic effects on small business, small governmental entities, and
small organizations.
Small Business Regulatory Enforcement Fairness Act
The Office of Information and Regulatory Affairs has determined
that this rule does not meet the criteria set forth in 5 U.S.C. 804(2),
subtitle E of the Small Business Regulatory Enforcement Fairness Act of
1996. It does not add to, change, or diminish any substantive rights of
any parties or the public.It provides parties to OHA proceedings the
option to file documents electronically, removes outdated information
and references, and authorizes the use of OHA Standing Orders as the
means of communicating current information on contract information,
electronic filing, and other procedural matters.This rule:
(a) Will not have an annual effect on the economy of $100 million
or more.
[[Page 29917]]
(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) Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of the
U.S.-based enterprises to compete with foreign-based enterprises.
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.The rule does 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. 1531 et seq.) is not required.
Takings (E.O. 12630)
This rule does not affect a taking of private property or otherwise
have taking implications under E.O. 12630.Therefore, a takings
implication assessment is not required.
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. A federalism summary impact
statement is not required.
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.
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.We evaluated this rule
under the Department's consultation policy and under the criteria in
E.O. 13175 and held three Tribal consultation sessions with federally
recognized Indian Tribes, including with the White Earth Nation.
Paperwork Reduction Act
This final rule contains existing information collections in use
without OMB approval. All information collections require approval
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We
may not conduct, or sponsor, and you are not required to respond to a
collection of information unless it displays a currently valid OMB
control number.
In accordance with the PRA and its implementing regulations at 5
CFR 1320.8(d)(1), we provide the general public and other Federal
agencies with an opportunity to comment on our proposal to seek OMB
approval of the information collections described below. This input
will help us assess the impact of our information collection
requirements and minimize the public's reporting burden. It will also
help the public understand our information collection requirements and
provide the requested data in the desired format.
We solicited comments in an interim final rule published on January
10, 2025, and no comments were received on the information collection
requirements aspects of the rule.
As part of our continuing effort to reduce paperwork and respondent
burdens, we invite the public and other Federal agencies to comment on
any aspect of this information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of response.
Comments that you submit in response to this final rule are a
matter of public record. Before including your address, phone number,
email address, or other personal identifying information in your
comment, you should be aware that your entire comment--including your
personal identifying information--may be made publicly available at any
time. While you can ask us in your comment to withhold your personal
identifying information from public review, we cannot guarantee that we
will be able to do so.
The existing information collection requirements identified below
require approval by OMB:
(1) Appeals (43 CFR part 4)--To initiate an appeal, an appellant is
required to submit a Notice of Appeal or Request/Petition for Hearing,
identifying the bureau or office decision that they are appealing to
the relevant OHA unit. There are no specific forms required. In most
instances, the basic contact information of the appellant and a
statement that they are appealing the relevant bureau or office
decision will suffice. However, some regulations will require more
specificity such as the rules governing grazing appeals to DCHD (Sec.
4.170(d)) and the rules governing appeals to the IBLA (Sec. 4.403(a)).
Those rules will require the appellant to provide a copy of the
decision being appealed along with a statement of standing and
timeliness. For grazing appeals to DCHD, an appellant will also be
required to submit a statement that clearly and concisely describes the
reasons why the appellant believes the grazing decision is incorrect.
The appellant must also serve a copy of the Notice of Appeal on the
bureau or office that issued the decision, and in some cases must also
serve a copy on a specific office of the DOI Solicitor or Assistant
Secretary, if required to do so by the regulations. Filing a Notice of
Appeal or Request/Petition for Hearing is voluntary but is required to
initiate a hearing or appeal. Once initiated, an OHA unit will open a
hearing or appeal case file, and any subsequent filings will be
associated with that file. Our burden estimates are broken down between
hard-copy and electronic submissions.
(2) Amendments--Appeals (43 CFR part 4)--Amendments to appeals are
extremely rare. An appellant may amend their appeal to correct a
misstatement or to update basic name and contact information, for
example.
Title of Collection: Office of Hearings and Appeals Procedural
Regulations (43 CFR part 4).
OMB Control Number: 1094-New.
Form Number: None.
Type of Review: Existing collection in use without OMB approval.
Respondents/Affected Public: Individuals/households, private
sector, and State/local/Tribal governments.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion.
Total Estimated Annual Non-hour Burden Cost: $584.
[[Page 29918]]
----------------------------------------------------------------------------------------------------------------
Completion
Annual number Number of Total annual time per Total annual
Requirement of respondents responses each responses response burden hours
(hours) (rounded)
----------------------------------------------------------------------------------------------------------------
Appeals 43 CFR part 4 (Hardcopy)
----------------------------------------------------------------------------------------------------------------
Individuals--Recordkeeping...... 47 1 47 .75 59
Individuals--Reporting.......... .............. .............. .............. .5 ..............
Private Sector--Recordkeeping... 2 1 2 .75 3
Private Sector--Reporting....... .............. .............. .............. .5 ..............
Government--Recordkeeping....... 2 1 2 .75 3
Government--Reporting........... .............. .............. .............. .5 ..............
----------------------------------------------------------------------------------------------------------------
Appeals 43 CFR part 4 (Electronic)
----------------------------------------------------------------------------------------------------------------
Individuals--Recordkeeping...... 38 1 38 .5 38
Individuals--Reporting.......... .............. .............. .............. .5 ..............
Private Sector--Recordkeeping... 324 1 324 .5 324
Private Sector--Reporting....... .............. .............. .............. .5 ..............
Government--Recordkeeping....... 24 1 24 .5 24
Government--Reporting........... .............. .............. .............. .5 ..............
----------------------------------------------------------------------------------------------------------------
Amendment--Appeals 43 CFR part 4 (Hardcopy)
----------------------------------------------------------------------------------------------------------------
Individuals--Recordkeeping...... 1 1 1 .5 1
Individuals--Reporting.......... .............. .............. .............. .5 ..............
Private Sector--Recordkeeping... 1 1 1 .5 1
Private Sector--Reporting....... .............. .............. .............. .5 ..............
Government--Recordkeeping....... 1 1 1 .5 1
Government--Reporting........... .............. .............. .............. .5 ..............
----------------------------------------------------------------------------------------------------------------
Amendment--Appeals 43 CFR part 4 (Electronic)
----------------------------------------------------------------------------------------------------------------
Individuals--Recordkeeping...... 1 1 1 .25 1
Individuals--Reporting.......... .............. .............. .............. .5 ..............
Private Sector--Recordkeeping... 1 1 1 .25 1
Private Sector--Reporting....... .............. .............. .............. .5 ..............
Government--Recordkeeping....... 1 1 1 .5 1
Government--Reporting........... .............. .............. .............. .5 ..............
-------------------------------------------------------------------------------
Totals...................... 443 .............. 443 .............. 457
----------------------------------------------------------------------------------------------------------------
Send your written comments and suggestions on this information
collection by June 22, 2026 to the Departmental Information Collection
Clearance Officer, U.S. Department of the Interior, Jeffrey Parrillo,
1849 C Street NW, Washington, DC 20240; or by email to <a href="/cdn-cgi/l/email-protection#eca8a3a5c1bcbeadac85839fc2888385c28b839a"><span class="__cf_email__" data-cfemail="f6b2b9bfdba6a4b7b69f9985d892999fd8919980">[email protected]</span></a>. Please reference: ``OMB Control Number 1094-New/RIN
1094-AA57'' in the subject line of your comments.
National Environmental Policy Act
This rule meets the criteria set forth at 43 CFR 46.210(i) for a
Departmental categorical exclusion because it is an administrative and
procedural regulation that does not involve any of the extraordinary
circumstances listed in 43 CFR 46.215. Therefore, it is categorically
excluded from the requirements to prepare an environmental impact
statement or environmental assessment under the National Environmental
Policy Act of 1969 (NEPA).
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.
Clarity of This Regulation (Plain Language)
We are required by Executive Orders 12866 (sec. 1(b)(12)), and
12988 (sec. 3(b)(1)(B)), and 13563 (sec. 1(a)), and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
List of Subjects in 43 CFR Part 4
Administrative practice and procedure, Claims.
Regulation Promulgation
Accordingly, the interim rule amending 43 CFR part 4, which was
published at 90 FR 2332 on January 10, 2025, is adopted as final with
the following changes:
PART 4--DEPARTMENT OF THE INTERIOR HEARINGS AND APPEALS PROCEDURES
0
1. The authority citation for part 4 continues to read as follows:
Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201
et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as
amended.
Sec. 4.104 [Amended]
0
2. Amend Sec. 4.104 by removing paragraph (g).
0
3. Revise Sec. 4.121 to read as follows:
Sec. 4.121 Case Management.
An ALJ is vested with the general authority to regulate the course
of the proceedings and the conduct of parties to ensure that cases are
resolved fairly,
[[Page 29919]]
efficiently, and in compliance with applicable laws and orders.
Sec. 4.126 [Amended]
0
4. Amend Sec. 4.126 by removing paragraph (b)(12) and redesignating
paragraph (b)(13) as (b)(12).
0
5. Amend Sec. 4.171 by revising paragraphs (a)(1) and (2) to read as
follows:
Sec. 4.171 Petitions for stay.
(a) * * *
(1) Stay criteria. The appellant must demonstrate that issuance of
a stay is warranted based on the following four criteria:
(i) Immediate and irreparable harm. The likelihood of immediate and
irreparable harm if the stay is not granted;
(ii) Balance of harms. Whether the harm to the appellant absent a
stay exceeds the harm to the United States or other parties from a stay
being granted;
(iii) Likelihood of success. The likelihood of the appellant's
success on the merits; and
(iv) Public interest. Whether the public interest favors granting
the stay.
(2) Burden of proof. The person or entity seeking a stay bears the
burden of demonstrating that a stay should be granted, in whole or in
part, under all four criteria set forth in paragraph (a)(1) of this
section.
* * * * *
0
6. Amend Sec. 4.172 by revising paragraph (b) introductory text and
paragraph (b)(1) to read as follows:
Sec. 4.172 BLM document filing requirements and initial disclosures.
* * * * *
(b) BLM initial disclosures. BLM shall serve a copy of its entire
record for the grazing decision on all parties to the proceeding within
45 days of receiving the notice of appeal. Failure of BLM to comply
with the substance of and/or time limits set forth in paragraphs (a)
and/or (b) of this section shall constitute, if proven by a
preponderance of the evidence, good grounds for sanctions under Sec.
4.121. The foregoing shall not deprive any party of the discovery
procedures set forth in the general procedural rules for practice
before DCHD at Sec. Sec. 4.112 through 4.119 of this subpart.
(1) BLM's entire record for the grazing decision shall contain a
copy of any nonprivileged, discoverable materials that the deciding
official considered when taking the action at issue in the proceeding.
* * * * *
0
7. Amend Sec. 4.174 by revising paragraph (b) to read as follows:
Sec. 4.174 Effect of decision pending appeal; exhaustion and
finality.
* * * * *
(b) Exhaustion and finality of grazing decision. To exhaust
administrative remedies, a petition for a stay must be filed
concurrently with a timely notice of appeal of the BLM grazing decision
unless BLM has made the decision immediately effective. The BLM grazing
decision will not be considered final and subject to judicial review
unless it has been made effective pending a resolution of the appeal in
the manner provided by paragraphs (a)(2) or (a)(4) of this section.
Exhaustion does not require an appeal of a denial of a petition for a
stay.
0
8. Amend Sec. 4.175 by revising paragraph (a)(1) introductory text to
read as follows:
Sec. 4.175 Appeal and review.
(a) * * *
(1) Appeal of stay petition order. Although not required for the
exhaustion of administrative remedies, any person or entity adversely
affected by the ALJ's order granting or denying a petition for a stay
may file an appeal with the IBLA in accordance with Sec. 4.403. Unless
the IBLA orders otherwise, an appeal of the stay petition order under
this section:
* * * * *
Sec. 4.403 [Amended]
0
9. In Sec. 4.403, amend paragraph (c)(2)(ii) by removing the second
comma after the word ``decision''.
0
10. Revise Sec. 4.405 to read as follows:
Sec. 4.405 Effect of decision pending appeal; petitions for stay.
(a) Effect of decision pending appeal. Except as otherwise provided
by law:
(1) A decision will not be effective during the time in which a
person or entity adversely affected may file a notice of appeal;
however, when the public interest requires or to protect trust
resources, the Board may provide that a decision, or any part of a
decision, will be effective immediately.
(2) A decision will become effective on the day after the
expiration of the time during which a person or entity adversely
affected may file a notice of appeal unless a petition for a stay
pending appeal is filed at the same time as a timely notice of appeal.
(3) A decision, or that portion of a decision, for which a stay is
sought but not granted will become effective immediately after the
Board denies or partially denies the petition for a stay or fails to
act on the petition within the time specified in paragraph (b)(7) of
this section.
(b) Petitions for Stay--(1) Who may file a petition for a stay.
Only an appellant who properly files an appeal may petition to stay the
effect of a decision during an appeal.
(2) Filing and service. An appellant seeking a stay must file a
petition for a stay with the Board and serve the petition on the bureau
or office that made the decision being appealed, the proper Office of
the Solicitor, and each party named in the decision. Filing and service
must be made as specified in Sec. 4.407 of this subpart.
(3) Stay criteria. Except as otherwise provided by law, an
appellant seeking a stay must demonstrate that issuance of a stay is
warranted based upon the following criteria:
(i) Immediate and irreparable harm. The likelihood of immediate and
irreparable harm if the stay is not granted;
(ii) Balance of harms. Whether the harm to the appellant absent a
stay exceeds the harm to the United States or other parties from a stay
being granted;
(iii) Likelihood of success. The likelihood of the appellant's
success on the merits; and
(iv) Public interest. Whether the public interest favors granting
the stay.
(4) Burden of proof. An appellant seeking a stay has the burden to
demonstrate that a stay should be granted in whole or in part, under
all four criteria set forth at paragraph (b)(3) of this section.
(5) Responses to a petition for a stay. Any party may file a
response to a petition for a stay within 14 days after service; failure
to file a response will not be construed as an admission that the Board
should grant the petition.
(6) Replies. No replies to a response will be accepted.
(7) Ruling on a petition for stay. The Board will grant or deny a
petition for a stay that is filed at the same time as a notice of
appeal, in whole or in part, within 45 days of the expiration of the
time for filing a notice of appeal. If the Board fails to act on a
petition for a stay within 45 days of the expiration of the time for
filing a notice of appeal, the petition will be deemed denied.
(8) Effect of consent or lack of opposition. The Board may
summarily grant a petition for a stay, in whole or in part, without
considering the criteria listed in paragraph (b)(3) of this section if
all parties to the appeal consent to the stay or file responses to the
petition affirmatively stating no opposition to the petition.
[[Page 29920]]
Sec. 4.409 [Amended]
0
11. In Sec. 4.409, amend paragraph (b)(4) by removing the words ``to
file a response''.
0
12. Revise Sec. 4.411 to read as follows:
Sec. 4.411 Management of appeals.
The Board is vested with the general authority to regulate the
course of appeals and the conduct of parties to ensure that appeals are
resolved fairly, efficiently, and in compliance with applicable laws
and orders.
0
13. Revise Sec. 4.413 to read as follows:
Sec. 4.413 Scope of review and burden to show error.
(a) Scope of review. The Board has authority to review decisions on
appeal as fully and finally as might the Secretary, subject to any
limitations on its authority imposed by the Secretary. The Board may at
any time before issuance of its decision raise or consider any matter
that it deems material, whether or not raised by the parties. The Board
may affirm, modify, vacate, set aside, or reverse any decision properly
brought before it for review, and may remand the matter as may be just
under the circumstances.
(b) Burden to show error. Except as otherwise provided by law, the
party appealing a decision of a bureau, office, or ALJ has the burden
to show that an error was made.
Troy W. Finnegan,
Deputy Assistant Secretary, Exercising the Delegated Authority of the
Assistant Secretary--Policy, Management and Budget.
[FR Doc. 2026-10160 Filed 5-20-26; 8:45 am]
BILLING CODE 4334-63-P
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