Special Rules Applicable to Surface Coal Mining Hearings and Appeals

DEPARTMENT OF THE INTERIOR

Office of Hearings and Appeals

43 CFR Part 4

RIN 1094-AA43

Special Rules Applicable to Surface Coal Mining Hearings and

Appeals

AGENCY: Office of Hearings and Appeals, Interior.

ACTION: Final rule.

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SUMMARY: The Office of Hearings and Appeals (OHA) amends several

existing rules that govern procedures for hearings and appeals under

the Surface Mining Control and Reclamation Act of 1977 in order to

bring the rules up to date. Because of events that have occurred since

they were adopted, the existing rules omit references or contain

incorrect references, are inconsistent with other rules, or fail to

provide necessary information or procedures. The amendments correct

these defects. In this document OHA also updates telephone numbers of

offices of field solicitors and field offices of the Office of Surface

Mining Reclamation and Enforcement (OSM), listed in the existing rules,

to reflect changes which have been effected heretofore.

EFFECTIVE DATE: February 10, 1994.

FOR FURTHER INFORMATION CONTACT:

Will A. Irwin, Administrative Judge, Interior Board of Land Appeals,

Office of Hearings and Appeals, U.S. Department of the Interior, 4015

Wilson Boulevard, Arlington, Virginia 22203. Telephone: 703-235-3750.

SUPPLEMENTARY INFORMATION: On November 19, 1991, OHA proposed

amendments to existing procedural rules governing hearings and appeals

under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.

1201 et seq. (1988), because rules subsequently adopted or cases

decided have rendered the existing rules out of date or shown them to

be incomplete or inaccurate. See 56 FR 58330-58332 (Nov. 19, 1991). No

comments were received on the published proposed amendments. The

amendments effected by this final rulemaking are explained below under

the heading for each rule involved.

Amendment of 43 CFR 4.1100

As a result of previous amendments of 43 CFR 4.1109(a) to provide

current addresses and jurisdictions of field solicitors who are to be

served documents (see 56 FR 2139, 2142-43 (Jan. 22, 1991), 56 FR 5061

(Feb. 7, 1991)), the definition of ``field solicitor'' in 43 CFR

4.1100(d) is superfluous. It was proposed to remove that definition and

redesignate the following definitions in alphabetical order. No

comments were received on this proposal. That definition is therefore

removed and the following definitions (e) and (f) are redesignated (d)

and (e).

Amendment of 43 CFR 4.1105(a)

30 CFR 842.15(d) provides a right of appeal to the Interior Board

of Land Appeals (IBLA or the Board) under 43 CFR 4.1280 et seq. of the

written determination, after informal review by the Director of the OSM

or his or her designee, concerning the decision of an authorized

representative of the Secretary not to inspect or take enforcement

action concerning an alleged violation that is the subject of a request

for a federal inspection under 30 CFR 842.12.

Similarly, 30 CFR 843.12(i) provides that any determination by an

authorized representative of the Secretary granting or denying an

abatement period exceeding 90 days under 30 CFR 842.12(h) shall contain

a right of appeal to IBLA under 1280 et seq.

As the Board has had occasion to observe, however, 43 CFR 4.1105

does not name the permittee of the operation that is the subject of a

determination of the Director or an authorized representative, or any

person whose interests might be adversely affected by the outcome on

appeal and who participated before OSM, as a party who must be served

with a copy of the notice of appeal and statement of reasons under 43

CFR 4.1283(a) and who may participate under Secs. 4.1284 and 4.1286.

See Save Our Cumberland Mountains, Inc., 108 IBLA 70, 83 n.7, 96 I.D.

139, 146 n.7 (1989). OHA therefore proposed to amend 43 CFR 4.1105(a)

by adding subsection (5) naming such permittees and persons as parties.

After this addition to 43 CFR 4.1105(a) was proposed, however, the

Board decided Robert L. Clewell, 123 IBLA 253 (1992). In that case,

citizens who had requested their identity be kept confidential, in

accordance with 30 CFR 842.12(b), later revealed their identity to the

coal company whose operation they had requested be inspected by sending

a copy of their statement of reasons of appealing the denial of their

request for inspection to the company. Had they not done so, under the

terms of Sec. 842.12(b), their ``identity may not be revealed, even to

other parties to a case, unless and until a competent official acting

in response to a formal request filed under 5 U.S.C. 552 (1988) or

other Federal law has determined that [their] identity must be made

public because it does not fall within the scope of 5 U.S.C. 552(b)(7)

(1988) or any other exemption from disclosure provided by law. See 42

FR 62665-66 (Dec. 13, 1977).'' Robert L. Clewell, supra at 257 n.1.

As a result of this decision, OHA has added a statement to the new

Sec. 4.1105(a)(5) that a person who wishes his or her identity kept

confidential under 30 CFR 842.12(b) is responsible for maintaining that

confidentiality when serving documents in accordance with Sec. 4.1109.

Amendment of 43 CFR 4.1109(a)

43 CFR 4.1109(a) is amended to update field solicitor office

telephone number to reflect changes which have been effected

heretofore.

Amendment of 43 CFR 4.1151(b)

OSM amended 30 CFR 723.19(a) and 845.19(a) to provide 30 days

rather than 15 days in which a person may file a petition for review of

a proposed civil penalty with the Hearings Division of OHA after the

date of service of notice of an assessment conference officer's action.

See 56 FR 10060, 10063 (Mar. 8, 1991). OHA therefore proposed to amend

the corresponding procedural rule, 43 CFR 4.1151(b), to provide the

same time and to add a reference to 30 CFR 845.18. No comments were

received on the proposed change, so it is adopted.

Amendments of 43 CFR 4.1152, 4.1154, and 4.1157

The references to 30 CFR part 723 in 43 CFR 4.1152(a)(2); to 30 CFR

723.15 in 43 CFR 4.1154(a); and to 30 CFR 723.12 and 723.13 in 43 CFR

4.1157 (a) and (b) need to be updated by correcting the references in

43 CFR 4.1154(a) and in 43 CFR 4.1157 (a) and (b) and by adding

references to the corresponding sections in 30 CFR part 845. OHA

proposed to amend 43 CFR 4.1152, 4.1154, and 4.1157 for this purpose.

No comments on these proposed changes were received, so they are

adopted.

Amendment of 43 CFR 4.1266(b)(2)

43 CFR 4.1266(b)(2) is amended to update OSM field office telephone

numbers to reflect changes which have been effected heretofore.

Amendment of 43 CFR 4.1271(a)

When 43 CFR part 4, subpart L was originally promulgated in 1978,

43 CFR 4.1271(a) provided that an aggrieved party could file a ``notice

of appeal'' from an order or decision of an administrative law judge

disposing of a proceeding ``under this subpart, except a civil penalty

proceeding under Sec. 4.1150.'' This is still the language of the rule.

Since 1978, however, other rules have been added to subpart L that

provide for a ``petition for discretionary review,'' rather than a

notice of appeal, as the document to file with IBLA when seeking review

of the initial decision of an administrative law judge. See 43 CFR

4.1309, 4.1369 (56 FR 2139, 2144, Jan. 22, 1991; 56 FR 5061, Feb. 7,

1991). OHA has also proposed rules that provide for petitions for

discretionary review. See 43 CFR 4.1377, 4.1387 (56 FR 45806, Sept. 6,

1991). Further, special procedures for seeking IBLA review exist for

other proceedings in subpart L. See 43 CFR 4.1187, 4.1196, 4.1391.

Although it is possible for IBLA to clarify by decision which

avenue of appeal is appropriate for each proceeding, see The Hopi Tribe

v. Office of Surface Mining Reclamation & Enforcement, 107 IBLA 329

(1989), it is preferable for the procedural rules themselves to contain

this information. OHA therefore proposed to amend 43 CFR 4.1271(a) so

that the rule will specify for which proceedings a notice of appeal is

appropriate. No comments on the proposed change were received, so it is

adopted. Proceedings not covered by the procedural rules set forth in

the revised Sec. 4.1271(a) contain special provisions for seeking

review of initial decisions.

Determination of Effects

The Department has determined that these rules 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.). These

rules were not subject to OMB review under Executive Order 12866.

National Environmental Policy Act

The Department has determined that these rules will not

significantly affect the quality of the human environment on the basis

of the categorical exclusion of regulations of a procedural nature set

forth in 516 DM 2, Appendix 1, section 1.10.

Paperwork Reduction Act

These rules contain no information collection requirements

requiring Office of Management and Budget approval under 44 U.S.C. 3501

et seq.

Takings Implication Assessment

These rules do not pose any takings implications requiring

preparation of a Takings Implication Assessment under Executive Order

No. 12630 of March 18, 1988.

Drafting Information

The primary author of these regulations is Will A. Irwin,

Administrative Judge, Interior Board of Land Appeals, Office of

Hearings and Appeals, U.S. Department of the Interior.

List of Subjects in 43 CFR Part 4

Administrative practice and procedure, Mines, Public lands, Surface

mining.

For the reasons set forth in the preamble, subpart L of part 4 of

title 43 of the Code of Federal Regulations is amended as set forth

below.

Dated: December 12, 1993.

Bonnie R. Cohen,

Assistant Secretary--Policy, Management and Budget.

43 CFR part 4 is amended as follows:

PART 4--[AMENDED]

Subpart L--Special Rules Applicable to Surface Coal Mining Hearings

and Appeals

1. The authority citation for part 4, subpart L, continues to read

as follows:

Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272,

1275, 1293; 5 U.S.C. 301.

Sec. 4.1100 [Amended]

2. Section 4.1100 is amended by removing paragraph (d) and

redesignating paragraphs (e) and (f) as paragraphs (d) and (e)

respectively.

3. Section 4.1105 is amended by adding paragraph (a)(5) to read as

follows:

Sec. 4.1105 Parties.

(a) * * *

(5) In an appeal to the Board in accordance with 43 CFR 4.1280

through 4.1286 from a determination of the Director of OSM or his or

her designee under 30 CFR 842.15(d) or a determination of an authorized

representative under 30 CFR 843.12(i), the permittee of the operation

that is the subject of the determination and any person whose interests

may be adversely affected by the outcome on appeal and who participated

before OSM. A person who wishes his or her identity kept confidential

under 30 CFR 842.12(b) is responsible for maintaining that

confidentiality when serving documents in accordance with Sec. 4.1109.

* * * * *

4. Section 4.1109 is amended by revising the phone numbers in

paragraph (a) to read as follows:

Sec. 4.1109 Service.

(a) * * *

East of the Mississippi River--

* * * * *

Telephone: (615) 545-4292, FAX (615) 545-4314.

* * * * *

Telephone: (412) 937-4000, FAX (412) 937-4003.

West of the Mississippi River--

* * * * *

Telephone: (303) 231-5350, FAX, (303) 231-5360.

* * * * *

5. Section 4.1151 is amended by revising paragraph (b) to read as

follows:

Sec. 4.1151 Time for filing.

(a) * * *

(b) If a timely request for a conference has been made pursuant to

30 CFR 723.18 or 845.18, a petition for review must be filed within 30

days from service of notice by the conference officer that the

conference is deemed completed.

* * * * *

6. Section 4.1152 is amended by revising paragraph (a)(2) to read

as follows:

Sec. 4.1152 Contents of petition; payment required.

(a) * * *

(2) If the amount of penalty is being contested based upon a

misapplication of the civil penalty formula, a statement indicating how

the civil penalty formula contained in 30 CFR part 723 or 845 was

misapplied, along with a proposed civil penalty utilizing the civil

penalty formula;

* * * * *

7. Section 4.1154 is amended by revising paragraph (a)(2) to read

as follows:

Sec. 4.1154 Review of waiver determination.

(a) Within 10 days of the filing of a petition under this part,

petitioner may move the administrative law judge to review the granting

or denial of a waiver of the civil penalty formula pursuant to 30 CFR

723.16 or 845.16.

* * * * *

8. Section 4.1157 is amended by revising paragraphs (a) and (b)(1)

to read as follows:

Sec. 4.1157 Determination by administrative law judge.

(a) The administrative law judge shall incorporate in his decision

concerning the civil penalty, findings of fact on each of the four

criteria set forth in 30 CFR 723.13 or 845.13, and conclusions of law.

(b) If the administrative law judge finds that--

(1) A violation occurred or that the fact of violation is

uncontested, he shall establish the amount of the penalty, but in so

doing, he shall adhere to the point system and conversion table

contained in 30 CFR 723.13 and 723.14 or 845.13 and 845.14, except that

the administrative law judge may waive the use of such point system

where he determines that a waiver would further abatement of violations

of the Act. However, the administrative law judge shall not waive the

use of the point system and reduce the proposed assessment on the basis

of an argument that a reduction in the proposed assessment could be

used to abate other violations of the Act; or

* * * * *

9. Section 4.1266 is amended by revising the following phone

numbers in paragraph (b)(2):

Sec. 4.1266 Determination on application concerning an order of

cessation issued pursuant to section 521(a)(2) or section 521(a)(3) of

the act.

* * * * *

(b) * * *

(2) * * *

Alabama Field Office (also serving Georgia): 205-290-7282

Illinois Field Office: 217-492-4495

Indiana Field Office: 317-226-6700

Kentucky Field Office: 606-233-2494

Missouri Field Office (also serving Iowa, Kansas and Nebraska): 816-

374-6405

* * * * *

Oklahoma Field Office (also serving Arkansas, Louisiana and Texas):

918-581-6430

* * * * *

Tennessee Field Office: 615-545-4103

* * * * *

Wyoming Field Office (also serving Alaska, Idaho, Montana, North

Dakota, Oregon, South Dakota and Washington): 307-261-5776

* * * * *

10. Section 4.1271 is amended by revising paragraph (a) to read as

follows:

Sec. 4.1271 Notice of appeal.

(a) Any aggrieved party may file a notice of appeal from an order

or decision of an administrative law judge disposing of a proceeding

under Secs. 4.1160 through 4.1171, 4.1200 through 4.1205, 4.1260

through 4.1267, 4.1290 through 4.1296, and 4.1350 through 4.1356.

* * * * *

[FR Doc. 94-601 Filed 1-10-94; 8:45 am]

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