Administrative Appeals Process

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.M[email protected].

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__H[email protected].

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