Response to comments from Tribal Consultation

RESPONSE TO COMMENTS
Tribal Consultation on OHA’s Interim Final Rule, 43 CFR Part 4

COMMENT	OHA’S RESPONSE
In § 4.730(b), the rule replaces and rewords the existing language of 43 C.F.R. § 4.351(a) pertaining to the circumstances under which the Project Director will not commence a determination of the heirs of a person who died entitled to receive compensation under the White Earth Reservation Land Settlement Act. The Band expressed concern that the language of § 4.730(b) may be too restrictive and advocated for returning to the existing language of § 4.351(a).	OHA agrees with the Band that the revised language of § 4.730(b) may be too restrictive and will continue to use the language in § 4.351(a) of OHA’s current regulations as indicated. Therefore, OHA will not include a revision of the language in § 4.351(a) but will move it to § 4.730 as part of the reorganization to create a separate subpart H for WELSA.
A Tribe recommends that the IBIA use existing 43 C.F.R. § 4.21 to require a petitioner for a stay of a land-into-trust decision made by a BIA official under 25 C.F.R. Part 151 to satisfy the standard for obtaining a preliminary injunction in Federal court.	Under 25 C.F.R. Part 151, decisions by BIA officials to acquire land in trust do not become final agency actions until administrative remedies, including any appeals to the IBIA, are exhausted. In effect, such decisions are automatically stayed by an appeal to the Board. As such, appellants are not required to seek a stay of those decisions, and there is no basis to apply the factors set out in existing § 4.21. Changing the existing regulations to require appellants to seek a stay of such decisions (and to allow such a stay to be granted only if the factors set out in § 4.21 are met) would require revisions to 25 C.F.R. Part 151 that are outside the scope of this rulemaking. As part of the reorganization of 43 C.F.R. Part 4, the § 4.21 stay provisions are being moved to specific subparts because the intersection with regulations administered by bureaus and offices made providing language in subpart B’s general authorities confusing.
In regard to the 36-month rule, § 4.312(d), is it anticipated that there would be any effect on appeals that are currently pending before the IBIA?	The provision is anticipated to apply to pending appeals. Thus, if a case has been pending for at least 36 months from the date the last notice of appeal in that case was filed, then the appellants could request that the Board dismiss it so that they could proceed to Federal court.
For the appellants’ option to proceed to Federal Court under § 4.312(d), how was the 36-month timeframe established?	The timeframe of 36 months has tended to be the outer limit for the age of the Board’s oldest pending cases. Therefore, we determined that would be an appropriate time period after which appellants could proceed to Federal court if they wished to do so.
Allowing appeals to reach 36 months in age presents due process concerns.	We would like to resolve all appeals sooner, but each appeal presents a unique set of circumstances and various factors other than a backlog may result in an appeal reaching 36 months, e.g., stays of the proceedings due to settlement negotiations or related litigation, extreme motions practice by the parties, etc. Overall, we determined that 36 months is an appropriate time period after which appellants could elect to proceed to Federal court, if the underlying decision is not already effective.
A Tribe looks forward to reviewing the definitions of “adversely affected” and “interested party.”	Copies of the preamble and rule text, which included definitions, were enclosed with the Dear Tribal Leader Letter. § 4.201 Definitions. Adversely affected means that a person or entity has a legally protected interest that was or is likely to be injured by the action, decision, or order on appeal. Interested party means a person or entity adversely affected by the action, decision, or order on appeal, or whose interest would be adversely affected if that action, decision, or order were modified, reversed, or set aside. In an appeal from an order of a probate judge, the term “interested party” is limited to: Any potential or actual heir; Any devisee under a will; Any person or entity asserting a claim against a decedent’s estate; Any tribe having a statutory option to purchase the trust or restricted property interest of a decedent; or Any co-owner exercising a purchase option.
A Tribe appreciates the effort to address IBIA’s backlog through § 4.321(b) but is concerned that the provision has no criteria regarding the use of IBIA’s discretionary authority to affirm without opinion and could unintentionally result in impartial decision making.	The subject provision, § 4.312(b), includes criteria like those in an existing regulation of the Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals. An affirmance without opinion does not reflect an abbreviated review of a case. Instead, it reflects the use of an abbreviated order to describe the Board’s review where the criteria are met, allowing the Board to affirm the underlying decision faster than if the Board were to craft a written opinion that reached the same conclusion.
A Tribe recommends that § 4.321(c) include criteria outlining the IBIA’s authority and under what circumstances it can be exercised.	The subject provision, § 4.312(c), is intended to make clear that the new affirmance without opinion option in § 4.312(b) does not affect the Board’s existing authority to issue summary dispositions. The Board is not proposing to change its use of summary dispositions as they have long been used by the Board in a variety of contexts to efficiently manage its docket and dispose of appeals.
Inquiries by Congressional staff regarding a matter pending before the Board should not be directed to the Chief Administrative Judge under § 4.317(a) due to potential conflicts of interest.	OHA is not proposing a change to the standards of conduct but clarifying in § 4.317(a) that communications by parties and other ex parte communications that are prohibited by § 4.27 are not to be directed to the Board’s judges. Congressional offices are not parties to appeals before the Board.
The Tribe requests clarification whether § 4.409 applies to the IBIA, and if not recommends that it be made applicable, and requests that we add a time requirement for ruling on motions.	The provision applies to the IBLA, not the IBIA, as the two boards have different sets of regulations and motions practices. Given the varying levels of complexity among cases and motions, and unforeseen issues that may arise in new or existing appeals that must be addressed, as a matter of practice the Board is not proposing a revision on timeframes regarding motions.

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