[Federal Register Volume 59, Number 7 (Tuesday, January 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-601]
[[Page Unknown]]
[Federal Register: January 11, 1994]
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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decided have rendered the existing rules out of date or shown them to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]
BILLING CODE 4310-79-M