[Federal Register Volume 61, Number 209 (Monday, October 28, 1996)]
[Proposed Rules]
[Pages 55607-55612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27506]
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DEPARTMENT OF THE INTERIOR
Minerals Management Service
30 CFR Part 290
RIN 1010-AC21
Administrative Appeals Process
AGENCY: Minerals Management Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The Minerals Management Service (MMS) proposes to amend the
regulations governing its administrative appeals process. These
amendments are in response to MMS's own initiatives to speed up the
appeals process, and are in response to statutory requirements recently
enacted which require the Department of the Interior to decide certain
administrative appeals within 33 months from the commencement of the
appeal. Under these proposed regulations, the MMS Director generally
would be required to decide an appeal within 16 months of commencement
of the appeal or the appeal would automatically be deemed denied. The
appellant then could continue its appeal before the Interior Board of
Land Appeals (IBLA). The IBLA then would have to complete its action on
the appeal before the recently enacted 33-month deadline on deciding
appeals involving Federal oil and gas leases. (The 33-month deadline
for the IBLA would not apply to appeals involving Indian leases or to
Federal leases for minerals other than oil or gas.) In addition, MMS's
proposed regulations would impose a new $100.00 filing fee on appeals
to the Director.
DATES: Comments must be received on or before December 27, 1996.
ADDRESSES: Comments should be sent to: Bettine Montgomery, Office of
Policy and Management Improvement, Minerals Management Service, 1849 C
Street, N.W., MS 4013, Washington, D.C. 20240; courier delivery to
Department of the Interior, 1849 C Street, N.W., Washington, D.C.
20240, telephone (202) 208-3976; fax (202) 208-3118, e-Mail
Elizabeth.Montgomery@smtp.mms.gov.
FOR FURTHER INFORMATION CONTACT: Hugh Hilliard, Office of Policy and
Management Improvement, U.S. Department of the Interior, Mineral
Management Service, 1849 C Street, N.W., Room 4013, Washington, D.C.
20240; telephone (202) 208-3398; fax (202) 208-4891; e-Mail
Hugh__Hilliard@smtp.mms.gov.
SUPPLEMENTARY INFORMATION: The principal author of this proposed rule
is Chris Thomson at (202) 208-7551 in Washington, D.C.
I. Background
In May 1994, MMS began a comprehensive review of its administrative
appeals process, particularly as it relates to appeals involving orders
or decisions issued by the Royalty Management Program. As part of that
review, MMS held several informal meetings with state, tribal, and
industry representatives to discuss the problems and possible solutions
within the appeals process. The principal problems identified included
the length of the appeals process, sometimes taking several years to
resolve a case, and the excessive costs of the process to both MMS and
appellants. These proposed regulations to amend 30 CFR Part 290 are
based in part on ideas developed through that review process.
Subsequent to that review, the Royalty Policy Committee (advisory
committee to the Secretary of the Interior composed of representatives
of states, Indian tribes, industry, other Federal agencies and the
general public) established a Subcommittee on Appeals and Alternative
Dispute Resolution. MMS expects the Royalty Policy Committee to
consider the work of that subcommittee during the pendency of this
proposed rule and will consider the recommendations of the Royalty
Policy Committee as part of this rulemaking process.
One of the primary ideas developed in the review was that MMS
establish both strict time limits on the appeals process and an overall
time limitation for appeals as a whole. On August 13, 1996, the Federal
Oil and Gas Royalty Simplification and Fairness Act, Pub. L. 104-185,
110 Stat. 1700, was enacted. Section 4 of the new Act amended the
Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA), 30 U.S.C.
Sec. 1701 et seq., and added a new FOGRMA section 115(h) governing the
Department's process for resolving appeals of MMS orders or decisions
involving royalties and other payments due on Federal oil and gas
leases. For appeals involving Federal oil and gas leases covered by
this new provision, the Department has 33 months from the date a
proceeding is commenced to complete all levels of administrative review
or the appeal will be deemed decided. The 33-month deadline does not
apply to appeals involving Indian leases or Federal leases for minerals
other than oil and gas.
Therefore, it is necessary that MMS design its administrative
appeal process to accommodate the new limitation. Although that
limitation does not apply to Indian leases, or to Federal coal or other
solid minerals leases, or to orders or decisions signed by the MMS
Offshore Minerals Management Program, MMS proposes to apply the same
time limit on all appeals to the Director for uniformity of
administration.
These regulations propose in Sec. 290.6 that all appeals to the MMS
Director will be decided within 16 months of the date the appeal is
commenced. The regulations also specify the date on which the
Department deems an appeal to have commenced, namely, the date on which
MMS receives a notice of appeal, including a statement of the reasons
the appellant offers in support of the appeal and a one-page summary of
the issues presented in the statement of reasons, and payment of a
filing fee. MMS chose a time period shorter than 33 months in order to
accelerate the process for all appeals and to provide time for IBLA's
further review of MMS decisions. If the 16-month time limitation is
reached and a decision has not been issued, then the appeal will
automatically be deemed denied by the Director, allowing the appellant
to continue its appeal before IBLA.
In addition, the overall 16-month time limitation period for
resolving appeals to the MMS Director was derived from an overview of
the steps of the appeals process. As noted above, an appeal to the
Director of an order or decision issued by a program office of MMS
would only ``commence'' with the proper filing of a notice of appeal,
including a statement of reasons the appellant offers in support of the
appeal
[[Page 55608]]
and a one-page summary of the issues presented in the statement of
reasons, and a $100.00 filing fee where applicable. Once an appeal has
been properly ``commenced,'' i.e., when MMS has received all of the
required items, MMS will issue a letter of receipt to the filing party.
An appeal could be filed by any person adversely affected by an MMS
order or decision. This would include the person receiving the order or
decision or other persons. For example, if the person receiving an MMS
order or decision is an operating rights owner on a lease, then the
record title owner who also may be liable under the order or decision
could appeal. Or, if the person receiving an MMS order or decision is a
lessee of an Indian lease and the Indian lessor is adversely affected
by the order or decision, then that Indian lessor could appeal. The
notice of appeal, as proposed in Sec. 290.2, is a brief letter
notifying MMS that the sender is appealing the referenced order or
decision. The same MMS office that issued the original order or
decision must receive the notice of appeal within 60 days after service
of the order or decision upon the recipient.
Under existing regulations in 30 CFR 290.5(b), a notice of appeal
is deemed filed on the date it is received by the appropriate MMS
office (usually an office in the Royalty Management Program). However,
if the notice of appeal is postmarked on or before the due date, and
MMS receives it within 10 days of the due date, then it is deemed filed
on the due date. With the widespread use of overnight mail, electronic
transmissions, and other same-day delivery mechanisms, and for reasons
of simplicity and consistency, MMS proposes in Sec. 290.3(d) to
eliminate the 10-day grace period for filing the notice of appeal.
Thus, under the proposed rule, the notice of appeal would be considered
filed on the date the appropriate MMS office receives it. Simply
mailing or otherwise transmitting the document would not satisfy the
filing requirement. However, MMS is proposing to extend the period for
filing the notice of appeal from 30 days to 60 days. No extensions for
filing the notice of appeal could be granted under the proposed rule.
The 60-day time period for filing the notice of appeal is
jurisdictional, and the Director could not consider an appeal if the
notice of appeal is filed late. Therefore, the order or decision would
become final, and no further administrative appeal in the Department
would be available.
In a change from the current regulations, the appellant would be
required under Sec. 290.2(b) to file a written statement of reasons
with the notice of appeal explaining the facts and arguments the
appellant believes support the appeal. The statement of reasons could
be either part of the notice of appeal itself or submitted as a second
document within the 60-day time period for filing the notice of appeal.
The statement of reasons also would be required to include a one-page
summary of the arguments presented in the statement of reasons. In
order to encourage statements of reasons that focus clearly on the
facts and issues applicable to the appeal, MMS proposes a 20-page
limitation on these documents, plus the one-page summary. If the
particular situation is unusually complex, however, the appellant may
request from the office that issued the order or decision on appeal
permission to file a longer statement of reasons.
If the appellant needs more than 60 days to prepare its statement
of reasons, the appellant must request an extension from MMS before the
end of the 60-day filing period. In addition, to obtain an extension
the appellant would be required to provide a written explanation of the
reasons for the extension request to the MMS office where the appellant
would otherwise file its statement of reasons. Extensions for filing
the statement of reasons, and any other extensions requested in
connection with an appeal, would be granted only for ``good cause,''
and only when accompanied by an agreement tolling any and all
applicable time periods for issuing decisions, including the 16-month
time period in this proposed rule as well as the 33-month time period
under the new FOGRMA section 115(h), for the duration of the extension
granted. If the Director denies the extension request, then the
appellant would be required to file the statement of reasons and the
summary by the end of the 60-day period for filing the original appeal.
Thus, appellants that need additional time should file their extension
requests well before the end of the period.
Under proposed Sec. 290.3(b)(4), if the statement of reasons is not
received by the due date, then the Director will dismiss the appeal
unless the Director determines that there is good cause in his or her
discretion not to dismiss the appeal. If the Director dismisses the
appeal, then the order or decision would be final and no further
administrative appeal would be available.
As with the notice of appeal, filing the statement of reasons would
mean receipt in the appropriate MMS office by the prescribed date.
Simply mailing or otherwise transmitting the document would not satisfy
the filing requirement.
Consistent with current practice, the MMS office that issued the
original order or decision would continue to prepare a field report
responding to the statement of reasons. The MMS office would send a
copy of the field report to the appellant. Current practice has been
for most appellants to prepare written replies to the field report.
Under the proposed regulations, the appellant is not required to file
any other supplemental documents in connection with an appeal,
including responses to field reports, but could file a written request
to file supplemental documents in connection with an appeal with the
MMS office that issued the order or decision. However, the Director
could set deadlines for the filing of any supplemental documents in
connection with appeals and may disregard supplemental documents that
are filed after the deadline and without an approved extension. The
appellant should submit a request for an extension to file supplemental
documents in connection with an appeal in writing with the reason for
the request. The Director would grant extension requests only for
``good cause,'' and only when accompanied by an agreement tolling any
and all applicable time periods for issuing decisions, including the
16-month time period in this proposed rule and the 33-month time period
under the new FOGRMA section 115(h), for the duration of the extension
granted. If the Director needs additional information from the
appellant, or has any questions necessary to decide the appeal, then
the appellant would be contacted.
Another change MMS is proposing to the appeals process is the
addition of cost recovery and filing fees. The Independent Offices
Appropriation Act, 31 U.S.C. Sec. 9701, provides generally for cost
recovery by Federal agencies. The Independent Offices Appropriation Act
also authorizes agency heads to ``prescribe regulations establishing
the charge for a service or thing of value provided by the agency.'' 31
U.S.C. 9701(b). In addition, Office of Management and Budget Circular
No. A-25 states that the general Federal policy on cost recovery is to
charge ``each identifiable recipient for special benefits derived from
Federal activities beyond those received by the general public.''
Furthermore, the Department of the Interior Manual requires that
agencies impose charges to recover costs for services which provide a
special benefit or privilege to an identifiable non-Federal recipient
above and beyond those which accrue to the public at large.
[[Page 55609]]
MMS must consider cost recovery options for activities which meet
the specific criteria outlined above. Because the MMS administrative
appeals process is a voluntary activity that conveys a special benefit
upon those who use it, it qualifies for cost recovery.
In 1993-94, MMS engaged in a cost recovery study to determine the
actual cost of processing an administrative appeal to the Director of
MMS. In that study, completed in August 1994, the cost recovery team
noted that the cost to MMS for processing an appeal is approximately
$2,000 for routine appeals and $8,000 for non-routine appeals. However,
as recommended by that study, it may not be feasible to attempt to
recover full actual costs. Instead, some smaller charge could be
selected. The study recommended that MMS consider the filing fees other
judicial and quasi-judicial governmental entities charge.
In determining the recommended filing fee for appeals, MMS
considered the following:
(A) the relative hardship upon potential appellants of instituting
a filing fee;
(B) the possibility that any filing fee will likely provide some
disincentive to the filing of nominal appeals;
(C) the current threshold for issuing appealable bills and orders
is $100.00 for Federal cases and $25.00 for Indian cases;
(D) the possibility of a two-tiered fee structure that might
include different fees for different types of appeals;
(E) the fact that a filing fee mechanism will result in some
increased cost to MMS for billing and collecting the filing fees
(estimated by the Department of the Interior Director of Financial
Management at $8.00 in 1991);
(F) the MMS appeals process is only the first of two levels of
appeal within the Department; and
(G) the MMS appeals process does confer some limited public benefit
by acting as a process for the specification and clarification of
Federal mineral law and policy.
In considering the recommendation that MMS select a fee less than
actual costs, the following is a list of various filing fees charged by
other judicial and quasi-judicial governmental agencies:
United States District Court:
(Civil Action)............................................. $120.00
(Tax Appeal from Tax Court).................................. 100.00
United States Bankruptcy Court:
(Chapters 7 and 13)........................................ 160.00
(Chapter 11)............................................... 800.00
United States Tax Court (Petition)........................... 60.00
Board of Immigration Appeals (Appeal from INS decision)...... 110.00
Federal Energy Regulatory Commission (Review of
jurisdictional agency decision)............................. 100.00
Therefore Sec. 290.4 is proposed as a new section implementing the
cost recovery requirements under the Independent Offices Appropriation
Act and Office of Management and Budget Circular No. A-25. It would
provide for a $100.00 filing fee on most appeals to the Director of MMS
under this part. Indian tribes and Indian allottees would not be
charged a fee.
Under the proposed regulations, the Director cannot consider any
appeal for which the appellant has not properly paid the filing fee.
Because the regulations require that the appellant put the filing fee
in the form of an electronic fund transfer through a financial
institution that may operate on different business hours than MMS, MMS
would accept a filing fee that is received no later than the end of the
next business day after the notice of appeal is filed, or the end of
the 60th day after service of the order or decision upon the recipient,
whichever is later.
All new appeals commenced after the effective date of the final
regulation would be subject to the time limitation and filing
requirement changes. The amount of the filing fee would be reevaluated
periodically, and any adjustments would be published in the Federal
Register.
Section 290.4 currently provides that oral argument will be allowed
on an appellant's motion at the discretion of the Director of MMS. That
section would be replaced by proposed Sec. 290.5, which reflects that
an appellant may request a hearing before the Director or request
alternative dispute resolution (ADR). The Director retains discretion
to allow a hearing or engage in other forms of ADR. Appellants,
however, are encouraged to seek alternative resolution of their appeals
where feasible throughout the appeals process. For appeals involving
actions of the Royalty Management Program, appellants should contact
the Royalty Management Program Office of Enforcement to initiate ADR.
Proposed Sec. 290.6, which states the time limitations for an
appeal, has been addressed previously in this preamble.
Proposed Sec. 290.7, which addresses appeals involving Indian
lands, is the same as the current Sec. 290.6 with only minor technical
amendments.
Proposed Sec. 290.8, which explains how to appeal the MMS
Director's decision to the IBLA, is the same as the current Sec. 290.7
with only minor technical amendments.
Proposed Sec. 290.9 addresses the time for the IBLA to issue
decisions under the new FOGRMA Sec. 115(h) in cases involving Federal
oil and gas leases--namely, the last day of the 33rd month after the
date the appeal is commenced, as specified under section 290.2, or, if
that period has been extended under any tolling agreement between an
appellant and either the MMS or the IBLA, by the last day of the period
for which the time has been extended.
If the Board does not issue a decision within that time, then one
of two results would occur. With respect to any nonmonetary obligation,
and with respect to any monetary obligation for which the principal
amount that the appellant must pay is less than $10,000, an appeal
would be deemed to have been decided in the appellant's favor. With
respect to any monetary obligation for which the principal amount that
the appellant must pay is $10,000 or more, the appeal would be deemed
decided in MMS' favor and against the appellant. An appeal which is
deemed to have been decided against the appellant would be a judicially
reviewable final agency action under 5 U.S.C. 704.
The term ``monetary obligation'' means any requirement in any order
or decision that results in the appellant having to pay or to compute
and pay royalty, minimum royalty, rental, bonus, net profit share,
proceeds of sale, interest, penalty, or assessment. For example, if a
lessee asked for a royalty value determination from MMS' Valuation and
Standards Division (``VSD''), and if the result of that determination
is that the lessee must pay additional royalties, then a monetary
obligation would be involved. If the principal amount of a monetary
obligation is not specifically stated in an order or decision and must
be computed, the $10,000 amount means the principal amount that MMS
estimates that the appellant would be required to pay as a result of
the order or decision.
II. Procedural Matters
The Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. Sec. 601 et
seq.). The effect of this rule will be to shorten the MMS'
administrative appeals process.
Executive Order 12630
The Department of the Interior certifies that the rule does not
represent a governmental action capable of interference with
constitutionally protected property rights. Thus, a
[[Page 55610]]
Takings Implications Assessment need not be prepared under Executive
Order 12630, ``Governmental Actions and Interference with
Constitutionally Protected Property Rights.''
Executive Order 12988
The Department of the Interior has certified to the Office of
Management and Budget that these regulations meet the applicable reform
standards provided in sections 3(a) and 3(b)(2) of Executive Order
12988.
Executive Order 12866
This document has been reviewed under Executive Order 12866 and is
not a significant regulatory action.
Unfunded Mandates Reform Act of 1995
The Department of the Interior has determined and certifies
according to the Unfunded Mandates Reform Act, 2 U.S.C. Sec. 1502 et
seq., that this rule will not impose a cost of $100 million or more in
any given year on local, tribal, state governments, or the private
sector.
Paperwork Reduction Act
This rule does not contain information collection requirements
which require approval by the Office of Management and Budget under 44
U.S.C. Sec. 3501 et seq.
National Environmental Policy Act of 1969
The Department of the Interior has determined that this rulemaking
is not a major Federal action significantly affecting the quality of
the human environment, and a detailed statement under section 102(2)(C)
of the National Environmental Policy Act of 1969 (42 U.S.C.
Sec. 4332(2)(C)) is not required.
List of Subjects in 30 CFR Part 290
Administrative practice and procedure, Mineral royalties--appeals;
Penalties; Public lands--Mineral resources.
Dated: October 21, 1996.
Sylvia V. Baca,
Deputy Assistant Secretary--Land and Minerals Management.
For the reasons set out in the preamble, MMS proposes to revise 30
CFR part 290 as follows:
PART 290--APPEALS PROCEDURES
Sec.
290.1 What appeals does this part apply to?
290.2 How do I appeal an order or decision to the MMS Director?
290.3 When do I file the items required for an appeal?
290.4 How do I pay the filing fee?
290.5 Is oral argument or alternative dispute resolution (ADR)
allowed?
290.6 When can I expect a decision from the MMS Director?
290.7 Are there different appeal procedures for Indian lands?
290.8 How do I appeal to the Interior Board of Land Appeals?
290.9 When can I expect a decision from the Interior Board of Land
Appeals?
Authority: 25 U.S.C. 2, 9; 30 U.S.C. 189, 285, 359, 1023, 1701
et seq.; 31 U.S.C. 9701; 43 U.S.C. 1334, 1335.
Sec. 290.1 What appeals does this part apply to?
The rules in this part apply to appeals to the Director, Minerals
Management Service (MMS) (and the Deputy Commissioner of Indian Affairs
when Indian lands are involved), from orders or decisions of MMS
officers. This part also provides for the further right of appeal to
the Board of Land Appeals in the Office of Hearings and Appeals, Office
of the Secretary, from adverse decisions of the Director (and the
Deputy Commissioner of Indian Affairs when Indian lands are involved)
rendered under this part. This part also provides for how to determine
time deadlines that apply to these appeals.
Sec. 290.2 How do I appeal an order or decision to the MMS Director?
If you are adversely affected by an MMS order or decision, you may
appeal to the Director, MMS, unless the Director, Assistant Secretary,
or the Secretary approved the order or decision before it was issued.
You must file the appeal in the MMS office issuing the order or
decision. Your appeal does not commence for purposes of the time
periods provided in Secs. 290.6 and 290.9 and section 115(h) of the
Federal Oil and Gas Royalty Management Act, 30 U.S.C. 1725(h), as
applicable, until MMS receives all of the following items as further
provided in Sec. 290.3:
(a) A written notice of appeal that clearly indicates the order or
decision being appealed;
(b) A written statement of reasons, either as part of the notice of
appeal or as a separate document, explaining the facts and law you
believe justify reversal or modification of the order or decision,
including a one-page summary of the arguments presented in the
statement of reasons; and
(c) Where applicable, a $100.00 filing fee.
Sec. 290.3 When do I file the items required for an appeal?
(a) Notice of appeal. You must file the notice of appeal in the MMS
office that issued the order or decision within 60 days after the order
or decision was served upon the recipient. The 60-day time limit for
filing the notice of appeal cannot be extended. See paragraph (d) of
this section for additional information on timely filing. If you file
the notice of appeal late, the Director cannot consider the appeal, and
the order or decision appealed from is final. No further administrative
appeal is available.
(b) Statement of reasons. (1) You must file a statement of reasons
in support of your appeal in the MMS office that issued the order or
decision at the same time you file your notice of appeal, or as a
separate document, within 60 days after the order or decision was
served upon the recipient. See paragraph (d) of this section for
additional information on timely filing. The statement of reasons may
not be longer than 20 pages plus the one-page summary, unless the MMS
office that issued the order or decision gives you permission to file a
statement of reasons longer than 20 pages.
(2) You may request in writing an extension of time to file the
statement of reasons from the MMS office that issued the order or
decision within 60 days after the order or decision was served upon the
recipient. Your extension request must explain the reason for your
request. Your extension request also must include an agreement tolling
the running of any applicable time periods, including the time periods
for deciding appeals in Secs. 290.6 and 290.9 and section 115(h) of the
Federal Oil and Gas Royalty Management Act, 30 U.S.C. 1725(h), for the
length of the extension granted.
(3) The Director will grant your extension request only for good
cause and at the discretion of the Director. If the Director approves
your extension request, you must provide written documentation of the
extension, including the tolling agreement, by the end of the 60-day
period for filing the appeal. If the Director denies your extension
request, then you must file the statement of reasons by the end of the
60-day period for filing the appeal.
(4) If you do not file your statement of reasons by the required
due date and your notice of appeal does not include a statement of
reasons for the appeal, then the Director will dismiss your appeal
unless the Director determines that there is good cause in his or her
discretion not to dismiss your appeal. If the Director dismisses your
appeal, then the order or decision appealed from is final and no
further administrative appeal is available.
(c) Supplemental documents. (1) You may file a written request to
file supplemental documents in connection with an appeal with the MMS
office that issued the order or decision. The
[[Page 55611]]
Director may establish reasonable due dates for filing supplemental
documents in connection with an appeal. See paragraph (d) of this
section for additional information on timely filing.
(2) If you file a supplemental document with MMS after the due date
for that document, the Director may disregard that document in issuing
a decision on the appeal.
(3) You may request in writing an extension of time to file a
supplemental document from the MMS office that issued the order or
decision if that MMS office receives the request before the document is
due. Your extension request:
(i) Must explain the reason for your request;
(ii) Must include an agreement tolling the running of any
applicable time periods, including the time periods in Secs. 290.6 and
290.9 and section 115(h) of the Federal Oil and Gas Royalty Management
Act, 30 U.S.C. 1725(h), for the length of the requested extension
granted;
(iii) Will be granted only for good cause and at the discretion of
the Director.
(d) Timely filing. Your notice of appeal, statement of reasons, or
supplemental document is considered filed only when it is received in
the MMS office where the appeal is due. Simply mailing or otherwise
transmitting the notice of appeal, statement of reasons or supplemental
document does not satisfy the filing requirement.
Sec. 290.4 How do I pay the filing fee?
(a) Unless you are an Indian tribe or allottee, you must pay a
$100.00 filing fee for each notice of appeal. Indian tribes or
allottees do not have to pay a filing fee.
(b) You must pay the filing fee by electronic funds transfer made
payable to ``Minerals Management Service.'' Include with the payment
your payor identification number and the number of the order or
decision being appealed, where applicable.
(c) If MMS does not receive your filing fee by the end of the next
business day after MMS receives your notice of appeal or by the end of
the 60th day after service of the order or decision upon the recipient
whichever is later, then the Director cannot consider your appeal, and
the order or decision appealed from is final. No further administrative
appeal is available.
Sec. 290.5 Is oral argument or alternative dispute resolution (ADR)
allowed?
(a) While your appeal is pending, you may:
(1) Meet with the office that issued the order or decision under
appeal to resolve the issues you have raised in your appeal (for
appeals involving actions of the Royalty Management Program, you may
ask the Royalty Management Program's Office of Enforcement to engage in
settlement negotiations, mediation, or other ADR); or
(2) Request a hearing before the Director regarding your appeal.
The Director has the discretion to decide whether or not to grant the
hearing request.
(b) Any hearing by the Director, settlement negotiation, or other
ADR will not extend any applicable time period in Secs. 290.6, 290.9,
or section 115(h) of the Federal Oil and Gas Royalty Management Act, 30
U.S.C. 1725(h), for deciding the appeal unless you and MMS sign a
tolling agreement.
Sec. 290.6 When can I expect a decision from the MMS Director?
(a) For all appeals filed after this rule becomes effective, the
Director will issue a decision by the last day of the 16th month after
the date the appeal is commenced, as specified under Sec. 290.2, or, if
the 16-month period had been extended under any tolling agreement
between you and MMS, by the last day of the period for which the time
has been extended.
(b) If the Director does not issue a decision on your appeal within
the period specified in paragraph (a) of this section, your appeal is
deemed denied by the Director, and you may appeal such denials further
under Sec. 290.8 of this part. MMS will send you a timely notice that
your appeal is denied.
Sec. 290.7 Are there different appeal procedures for Indian lands?
No. The appeal procedures in this part apply to orders or decisions
affecting Indian lands, except that the Deputy Commissioner of Indian
Affairs will issue the decision on your appeal.
Sec. 290.8 How do I appeal to the Interior Board of Land Appeals?
If you are a party to a case, or an Indian tribe or Indian
allottee, adversely affected by a decision of the MMS Director or the
Deputy Commissioner of Indian Affairs under this part, you may appeal
to the Interior Board of Land Appeals (IBLA) in the Office of Hearings
and Appeals, Office of the Secretary, in accordance with 43 CFR part 4,
``Department Hearings and Appeals Procedures.'' If your appeal is
deemed denied under Sec. 290.6(b) of this part, the date of the
Director's decision, for purposes of calculating the due date for
filing any appeal to the Interior Board of Land Appeals, is the earlier
of:
(a) The date you receive written notice that your appeal was
considered denied by the Director; or
(b) 30 days after the last day for the Director to decide the
appeal under Sec. 290.6.
Sec. 290.9 When can I expect a decision from the Interior Board of
Land Appeals?
(a) For all appeals from Director's decisions involving royalties
or other payments due under Federal oil and gas leases commenced after
[the effective date of the final rule], the IBLA will issue a decision
by the last day of the 33rd month after the date the appeal is
commenced, as specified under Sec. 290.2, or, if that period has been
extended under any tolling agreement between you and MMS or you and
IBLA, by the last day of the period for which the time has been
extended.
(b) If the IBLA does not issue a decision on your appeal within the
period stated in paragraph (a), then your appeal will be--
(1) Deemed to have been decided in your favor with respect to any
nonmonetary obligation and with respect to any monetary obligation for
which the principal amount that you would be required to pay is less
than $10,000; or
(2) Deemed to have been decided against you with respect to any
monetary obligation for which the principal amount that you would be
required to pay is $10,000 or more. An appeal which is deemed to have
been decided against you under this paragraph constitutes judicially
reviewable final agency action under 5 U.S.C. 704.
(c)(1) As used in this section, the term ``monetary obligation''
means any requirement in any order or decision that results in your
having to pay or to compute and pay royalty, minimum royalty, rental,
bonus, net profit share, proceeds of sale, interest, penalty, or
assessment.
(2) In the case of any monetary obligation for which the principal
amount is not specifically stated in an order or decision and which
must be computed to comply with the order or decision, the $10,000
amount in paragraph (b) means the principal amount that MMS estimates
that you would be required to pay as a result of the order or decision.
(d) The time limitations in this section for the IBLA to issue a
decision do not apply to appeals involving royalties due under Indian
tribal or
[[Page 55612]]
allotted leases or under Federal leases for minerals other than oil and
gas.
[FR Doc. 96-27506 Filed 10-25-96; 8:45 am]
BILLING CODE 4310-MR-P
