[Federal Register Volume 59, Number 208 (Friday, October 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26553]


[Federal Register: October 28, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Hearings and Appeals

43 CFR Part 4

RIN 1094-AA42


Department Hearings and Appeals Procedures; 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 final rulemaking amends regulations of the Office of 
Hearings and Appeals (OHA) applicable to surface coal mining hearings 
and appeals by adding procedural rules for administrative review of a 
decision by the Office of Surface Mining Reclamation and Enforcement 
(OSM) to suspend or rescind permits that should not have been issued, 
and a decision by OSM in response to (a) a challenge, by an applicant 
or other person shown in the Applicant Violator System, to a finding 
that he or she is in an ownership or control link to any person or (b) 
a challenge, by an applicant or other person shown in the Applicant 
Violator System in an ownership or control link to any person cited in 
a federal violation notice, to the status of the violation in the 
notice. The final rulemaking provides for a hearing before an 
administrative law judge and for discretionary review of the 
administrative law judge's initial decision by the Interior Board of 
Land Appeals (IBLA). In addition, existing 43 CFR 4.1105(a)(2) is 
amended to include a reference to the rules added by this rulemaking.

EFFECTIVE DATE: These final regulations are effective on November 28, 
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: OHA's proposed rulemaking was published in 
the Federal Register on September 6, 1991 (56 FR 45806-11). Proposed 43 
CFR 4.1370-4.1377 set forth new OHA procedures for reviewing OSM 
decisions to suspend or rescind permits OSM finds were improvidently 
issued under 30 CFR 773.20. Proposed 43 CFR 4.1380-4.1387 set forth new 
OHA procedures for reviewing OSM decisions finding that a person is in 
an ownership or control link to a person currently in violation of the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA) or other 
applicable law. In addition, OHA proposed to amend the existing rule 
that establishes OSM's burden of proof in individual civil penalty 
proceedings, 43 CFR 3.1307(a).
    Proposed 43 CFR 4.1370-4.1377 and 4.1380-4.1387 are based on 
section 510(c) of SMCRA, 30 U.S.C. 1260(c) (1988). This section 
requires an applicant for a surface coal mining and reclamation permit 
to file with the permit application a schedule listing all notices of 
violations of SMCRA and any law, rule, or regulation of the United 
States, or of any department or agency in the United States pertaining 
to air or water environmental protection incurred by the applicant in 
connection with any surface coal mining operation during the three-year 
period prior to the date of application. Where the schedule or other 
information indicates that any surface coal mining operation owned or 
controlled by the applicant is currently in violation of the Act or 
other air or water environmental protection laws, the permit shall not 
be issued until the applicant submits proof that such violation has 
been corrected or is in the process of being corrected to the 
satisfaction of the regulatory authority, department, or agency which 
has jurisdiction over such violation.
    In order to implement section 510(c), OSM has promulgated a rule 
defining the words ``owned or controlled'' in that section, as well as 
``owns or controls.'' 30 CFR 773.5. It has adopted a rule requiring 
that an application for a permit include information about each person 
who owns or controls the applicant, within the meaning of Sec. 773.5, 
and about any surface coal mining operation owned or controlled by 
either the applicant or any person who owns or controls the applicant. 
30 CFR 778.13(c), (d). It has adopted a regulation concerning review of 
applications for permits that provides: ``[b]ased on available 
information * * *, the regulatory authority shall not issue the permit 
if any surface coal mining and reclamation operation owned or 
controlled by either the applicant or by any person who owns or 
controls the applicant is currently in violation of the Act or any 
other law, rule or regulation referred to in this paragraph.'' 30 CFR 
773.15(b)(1). This is the so-called ``permit block,'' referring to the 
language in section 510(c) that states ``the permit shall not be issued 
until the applicant submits proof'' that a violation of a surface coal 
mining operation owned or controlled by the applicant has been 
corrected or is in the process of being corrected. OSM has also 
established the Applicant/Violator System (AVS), a computerized system 
to store data regarding violations and ownership and control links to 
those violations. See Save Our Cumberland Mountains v. Lujan, 963 F.2d 
1541, 1545-46 (D.C. Cir. 1992).
    OHA's proposed rules were published on the same day as OSM proposed 
related rules defining the AVS, requiring its use in reviewing permit 
applications to determine whether there are any ownership or control 
links between applicants and persons in violation, and proposing 
procedures and standards for an applicant or other person shown in the 
AVS to challenge ownership and control links shown in the AVS and the 
status of the violation. 56 FR 45780-45804 (Sept. 6, 1991). OSM also 
proposed to amend its existing rules governing suspension and 
rescission of improvidently issued permits. OSM's proposed rules 
provided a right to review of its decisions to suspend or rescind a 
permit under the procedures set forth in OHA's proposed rulemaking of 
sections 4.1370 through 4.1377. See proposed Sec. 773.20(c)(2), 56 FR 
45799 (Sept. 6, 1991). OSM's proposed rules also provided a right to 
review of its written decisions on challenges to ownership and control 
links and the status of violations shown in the AVS under the 
procedures set forth in OHA's proposed rulemaking of sections 4.1380 
through 4.1387. See proposed 30 CFR 773.24(d)(2)(ii), 56 FR 45800 
(Sept. 6, 1991).
    OHA received comments on its proposed rules from Texas Utilities 
Services, Inc. (TU Services), the Joint National Coal Association/
American Mining Congress Committee on Surface Mining Regulations (NCA/
AMC), and the National Wildlife Federation (NWF). The NCA/AMC comments 
dealt with both OHA's and OSM's proposed rules.

Proposed Amendment of 43 CFR 4.1307(a)(3) Withdrawn

    As part of its September 6, 1991, proposed rulemaking, OHA proposed 
an amendment to 43 CFR 4.1307(a)(3) at 56 FR 45808 which set forth an 
element of OSM's prima facie case in proceedings to review the 
assessment of individual civil penalties. Proposed 43 CFR 4.1307(a)(3) 
complemented proposed rules by OSM at 56 FR 48924, 48929-30 (Sept. 26, 
1991) addressing individual civil penalties. Both TU Services' and NCA/
AMC's comments expressed reservations about the proposed amendment of 
43 CFR 4.1307(a)(3). By a notice published in the Federal Register on 
October 16, 1992, OSM withdrew its September 26, 1991, proposed 
rulemaking. 57 FR 47431 (Oct. 16, 1992). Therefore, OHA hereby 
withdraws the corresponding proposed amendment to 43 CFR 4.1307(a)(3). 
Because this proposed rule concerning an element of OSM's prima facie 
case in individual civil penalty proceedings is withdrawn, no response 
to the comments concerning it is necessary.
    As noted above, the NCA/AMC comments address both the proposed OSM 
rules and the proposed OHA rules ``[b]ecause [their] comments on the 
proposal by [OHA] are interrelated with [their] concerns about the OSM 
proposal.'' NCA/AMC's comments that relate to the procedures for 
administrative review are addressed here.

Procedural Due Process

    NCA/AMC state that although the proposed rules ``purport to 
establish a comprehensive scheme for administrative review of ownership 
and control determinations emanating from the AVS, they fall far short 
of providing the meaningful guarantees that the due process clause 
requires.'' They fall short, NCA/AMC state, because the procedures do 
not allow one to challenge the existence of the violation that forms 
the basis for a permit block under section 510(c). Further, the 
proposed rules do not provide ``any opportunity for challenging either 
the status of the violation or the validity of the AVS link prior to 
the deprivation of the operator's property interest through permit 
denial, suspension, or revocation, unless the applicant is able to meet 
the stringent requirements for seeking temporary relief'' contained in 
proposed 43 CFR 4.1386 (emphasis in original). NCA/AMC state that the 
``right to notice and a hearing prior to a governmental deprivation of 
private property is a cornerstone of American jurisprudence, and is a 
well-established principle in cases involving the constitutionality of 
SMCRA provisions'' that the proposed rules fail to recognize. NCA/AMC 
state that an appeal or challenge to AVS information ``must, of 
necessity, include the right to a full and fair determination on the 
merits of the violation in advance of any decision to prohibit mining 
through the sanctions contained within section 510(c).'' Under the 
balancing test announced in Mathews v. Eldridge, 424 U.S. 319 (1976), 
the proposed rules do not afford due process, NCA/AMC argue.
    A fundamental requirement of the Fifth Amendment to the 
Constitution of the United States that ``[n]o person shall * * * be 
deprived of life, liberty, or property, without due process of law'' is 
the opportunity to be heard at a meaningful time and in a meaningful 
manner. Armstrong v. Manzo, 380 U.S. 545, 552 (1965). In Mathews v. 
Eldridge, supra, the U.S. Supreme Court discussed ``the extent to which 
due process requires an evidentiary hearing prior to the deprivation of 
some type of property interest even if such a hearing is provided 
thereafter.'' 424 U.S. at 333. The Court quoted Morrissey v. Brewer, 
408 U.S. 471, 481 (1972), that ``due process is flexible and calls for 
such procedural protections as the particular situation demands,'' and 
then stated:

[O]ur prior decisions indicate that identification of the specific 
dictates of due process generally requires consideration of three 
distinct factors: First, the private interest that will be affected 
by the official action; second, the risk of an erroneous deprivation 
of such interest through the procedures used, and the probable 
value, if any, of additional or substitute procedural safeguards; 
and finally, the Government's interest, including the function 
involved and the fiscal and administrative burdens that the 
additional or substitute procedural requirement would entail. See, 
e.g., Goldberg v. Kelly. [397 U.S.] at 263-271.

Mathews v. Eldridge, supra at 334-35. In Goldberg v. Kelly, 397 U.S. 
254 (1970), the Supreme Court decided procedural due process requires 
that a state grant an evidentiary hearing before suspending or 
terminating welfare payments to an individual who meets the statutory 
qualifications for receiving them. ``[T]he crucial factor in this 
context,'' the Court observed, ``is that termination of aid pending 
resolution of a controversy over eligibility may deprive an eligible 
recipient of the very means by which to live while he waits.'' Id. at 
264 (emphasis in original). ``[C]ountervailing governmental interests 
in conserving fiscal and administrative resources * * * are not 
overriding in the welfare context,'' the Court stated. Id. at 265-66. 
``[H]owever, * * * the pre-termination hearing need not take the form 
of a judicial or quasi-judicial trial,'' the Court commented. Id. at 
266. A complete record and a comprehensive opinion are not necessary; 
an opportunity for the welfare recipient to confront and cross-examine 
witnesses relied on by the government, and to retain an attorney, 
however, are necessary. Id. at 267-270. Also necessary is an impartial 
decisionmaker, who must ``state the reasons for his determination and 
indicate the evidence be relied on.'' Id. at 271.
    OHA believes that, when analyzed under Mathews v. Eldridge, the 
procedures proposed for OSM decisions and for OHA administrative review 
of those decisions provide adequate due process protection of the 
interests involved.
    The proposed rules recognize a distinction between a person who 
holds a permit that might be suspended or rescinded because OSM 
determines it was improvidently issued (43 CFR 4.1370-4.1377) and a 
person who has applied for a permit or might apply for one in the 
future (43 CFR 4.1380-4.1387). A person who holds a permit is entitled 
to more protection than the person who has applied for one or plans to 
do so. In recognition of this distinction, OSM's final rule 30 CFR 
773.20(b)(2) will provide, for a person who has a permit, that OSM will 
determine whether a violation, penalty or fee existed when it was cited 
and whether an ownership or control link between a permittee and the 
person responsible for the violation existed, still exists, or has been 
severed, before issuing a notice to suspend or rescind a permit. An 
applicant for a permit, however, may challenge the existence of a 
violation in a review proceeding under 43 CFR 4.1360-4.1369 after the 
application has been denied, not before. An applicant (or any other 
person shown in the AVS) may challenge an ownership or control link or 
the status of a violation before a permit application is denied, or 
even filed, under proposed 30 CFR 773.24, as discussed further below. 
(The ``status of a violation'' concerns whether the violation remains 
outstanding, has been or is in the process of being corrected, or is 
the subject of an administrative or judicial appeal. The status of a 
violation is distinct from ``the existence of a violation,'' i.e., 
whether the violation existed at the time it was cited.)
    The ``private interest that will be affected,'' i.e., a permit, is 
limited. A permit is issued for a five-year term (with a right of 
renewal unless its terms or other requirements are not being met), 30 
U.S.C. 1256(b), (d) (1988), and is conditioned on compliance with 
several performance standards, 30 U.S.C. 1265(a) (1988). It may be 
terminated, revised, reviewed, suspended, or revoked. 30 U.S.C. 
1256(c), 1261(c), 1265(c), 1271(a)(4) (1988). Thus, while valuable, a 
permit to conduct surface coal mining is not a private interest 
comparable to the welfare benefits in Goldberg v. Kelly, supra, that 
entitles the holder to an evidentiary hearing prior to suspension or 
rescission. In Mathews v. Eldridge, supra at 343, the Supreme Court 
held that termination of disability payments may be effected without a 
pretermination evidentiary hearing. Similarly, suspension or rescission 
of a surface coal mining permit does not require a prior hearing in 
addition to the other procedural safeguards provided in the OSM and OHA 
rules.
    Those rules significantly reduce ``the risk of an erroneous 
deprivation'' of a permit. If OSM finds a permit was improvidently 
issued because at the time it was issued one or more of the 
circumstances set forth in the review criteria in 30 CFR 773.20(b)(1) 
existed, it does so in accordance with the standards for challenging 
ownership or control links and the status of violations in proposed 30 
CFR 773.26, 56 FR 45801-45803 (Sept. 6, 1991). See proposed 30 CFR 
773.20(b)(2), 56 FR 45799 (Sept. 6, 1991). As mentioned above, these 
standards will apply, under OSM's final rule 30 CFR 773.20(b)(2), to a 
determination whether a violation, penalty, or fee existed at the time 
it was cited, remains unabated or delinquent, has been or is in the 
process of being corrected, or is the subject of an appeal, and whether 
an ownership or control link between the permittee and the person 
responsible for the violation, penalty, or fee existed, still exists, 
or has been severed. OSM has a choice of four remedial measures if it 
finds a permit was improvidently issued, including suspension or 
rescission of the permit. 30 CFR 773.20(c); see proposed 
Sec. 773.20(c)(1), 56 FR 45799 (Sept. 6, 1991). If it decides to 
suspend, it will give the permittee 30 days written notice and inform 
the permittee of its right to review under 43 CFR 4.1370 et seq. See 
proposed 30 CFR 773.20(c)(2), 56 FR 45799 (Sept. 6, 1991). If it 
decides to rescind, it will issue the permittee a notice of proposed 
suspension and rescission under 30 CFR 773.21 that includes the reasons 
for finding the permit was improvidently issued and will inform the 
permittee of its right to review under 43 CFR 4.1370 et seq. See 
proposed 30 CFR 773.20(c)(2), 56 FR 45799 (Sept. 6, 1991).
    Under OHA's proposed rules 43 CFR 4.1370-4.1377, the permittee may 
file a request for review with OHA that includes OSM's notice; 
documentary proof or offers of proof concerning the Sec. 773.20(b) 
review criteria (or their analogues in Sec. 773.21(a)(1)-(4)); other 
relevant information; a request for specific relief; and a request for 
an evidentiary hearing. Sec. 4.1372. The permittee may amend its 
request for review once as a matter of right before OSM files a 
response and may also do so afterwards with leave of the administrative 
law judge. The administrative law judge is to convene the hearing 
within 90 days of receiving responses to the request (unless the 
parties waive this deadline); this gives the parties an opportunity to 
conduct discovery under 43 CFR 4.1130-4.1141. Sec. 4.1373. The 
administrative law judge must issue an initial decision within 30 days 
of the date the hearing record is closed. Sec. 4.1375. OSM has the 
burden of going forward to present a prima facie case in support of its 
notice while the person requesting review has the ultimate burden of 
persuasion that the notice is in error. Sec. 4.1374. Any party may file 
a petition for discretionary review of the administrative law judge's 
initial decision with IBLA. The petition shall attach a copy of this 
decision and specify the alleged errors. Other parties have 30 days to 
file responses, after which IBLA shall issue a decision within 60 days 
denying the petition or granting it and deciding the merits. 
Sec. 4.1377.
    OSM's proposed rule provides that its decision to suspend or 
rescind will remain in effect during the time a request for review is 
pending in OHA unless temporary relief is granted in accordance with 43 
CFR 4.1376. 30 CFR 773.20(c)(2), 56 FR 45799 (Sept. 6, 1991). Proposed 
43 CFR 4.1376 provides that with a request for review--or at any time 
before the administrative law judge issues the initial decision--any 
party may petition for temporary relief from OSM's notice of suspension 
or notice of proposed suspension and rescission. Under Sec. 4.1376, the 
petition must show that the petitioner has a substantial likelihood of 
prevailing on the merits and that the relief it seeks will not 
adversely affect public health or safety or cause significant, imminent 
environmental harm. Other parties have 5 days to file responses. The 
administrative law judge must hold a hearing within 10 days of the 
filing of the responses if a hearing has been requested and must issue 
a decision granting or denying temporary relief within 5 days of the 
date of the hearing, or the filing of the responses if no hearing is 
held. If all parties have been notified of the petition and given an 
opportunity to respond (and a hearing has been held if requested), the 
administrative law judge may grant temporary relief if the petitioner 
has demonstrated a substantial likelihood of prevailing on the merits 
and the relief will not adversely affect public health or safety or 
cause significant, imminent environmental harm. These standards are 
based on those contained in 30 U.S.C. 1275(c) (1988). As noted in the 
preamble to the proposed regulations, 56 FR at 45807 (Sept. 6, 1991), 
the focus of the adverse effect inquiry would be on the permitted 
operation rather than operation allegedly in violation. Any party may 
appeal the administrative law judge's decision granting or denying 
temporary relief to IBIA, which shall decide the appeal expeditiously, 
or may seek judicial review.
    OHA believes ``the probable value, if any, of additional or 
substitute procedural safeguards''--in particular, an evidentiary 
hearing before a decision to suspend or rescind is effective--is 
minimal. As in Mathews, supra at 343-345, although the definition of 
ownership and control in 30 CFR 773.5 includes elements or judgment 
where witness credibility and veracity will sometimes play a role 
(e.g., Secs. 773.5(a)(3), 773.5(b)(6)), the determination is usually 
made on the basis of documents, such as instruments of ownership or 
voting securities, or on the basis of readily and often publicly 
documentable circumstances such as a person's status as an officer or 
director of an entity, the permittee or operator of a surface coal 
mining operation, or a general partner in a parternship (e.g., 
Secs. 773.5(a)(1)-(2), 773.5(b)(1)-(2), (4)-(5)). Further, a permittee 
receives sufficient notice of OSM's decision to suspend a permit (30 
days under proposed Sec. 773.20(c)(2)) or rescind a permit (up to 180 
days under Sec. 773.21) to enable it to request review by an 
administrative law judge before the decision becomes effective. The 
provisions in Secs. 4.1370-4.1377 imposing short time frames for each 
step of review significantly reduce delay due to ``the torpidity of 
[the] administrative review process,'' Mathews, supra at 342, 
especially if temporary relief is sought.
    The ``Government's interest'' is to effectively implement section 
510(c), specifically, to ensure that no person in violation of SMCRA or 
the other specified environmental laws obtains or retains a permit to 
conduct surface mining operations until the violation is corrected or 
in the process of being corrected. The Department's goal of achieving 
compliance with these laws would be significantly burdened if it were 
required to provide an evidentiary hearing before OSM could decide to 
suspend or rescind a permit because the person should not have received 
the permit when it was issued. It was OSM's experience in 1992-93 that 
providing informal review by OSM of the proposed entry into the AVS of 
information concerning ownership or control links became very time-and-
personnel-consuming. For 105 cases in 1993, for example, OSM spent more 
than 11,000 hours from after investigating an ownership or control link 
to issuing its final decision, a mean of 105 hours per case. It would 
be even more costly to require an evidentiary hearing before a permit 
was suspended or rescinded; meanwhile, mining would continue while 
alleged outstanding violations existed.
    In sum, as the Supreme Court stated in Mathews, supra at 343, 
``there is less reason here than in Goldberg to depart from the 
ordinary principle, established by our decisions, that something less 
than an evidentiary hearing is sufficient prior to adverse 
administrative action.'' OHA believes the procedures for OSM 
decisionmaking and OHA administrative review on the proposed rules 
provide all the due process that is due before an improvidently issued 
permit is suspended or rescinded.
    As noted above, OSM's proposed rules also provide that an applicant 
for a permit or any other person that is shown in the AVS as having an 
ownership or control link to a person may challenge the link (unless 
the applicant or other person is bound by an earlier administrative or 
judicial decision concerning the link). See proposed 30 CFR 
773.24(a)(1), 56 FR 45800 (Sept. 6, 1991). An applicant or any other 
person shown in the AVS may also challenge the status of the violation 
cited in a federal violation notice naming a person with whom the 
applicant or other person is linked (unless bound by a decision 
concerning the status of the violation). See proposed 30 CFR 
773.24(a)(2), 56 FR 45800 (Sept. 6, 1991). The applicant or other 
person may submit a written explanation and supporting evidence to OSM 
concerning the existence of the link or the status of the violation. 
See proposed Sec. 773.24(b), 56 FR 45800 (Sept. 6, 1991). Applying the 
standards for challenging ownership and control links and the status of 
violations contained in proposed Sec. 773.26, 56 FR 45801-03 (Sept. 6, 
1991), OSM will either correct the information in the AVS, if the 
applicant or other person shows the link is erroneous or the violation 
is no longer outstanding, or, if this is not shown, OSM will so notify 
the applicant or other person. See proposed Sec. 773.24(d), 56 FR 45800 
(Sept. 6, 1991). In either event, OSM will issue a written decision and 
serve it by certified mail. See proposed Secs. 773.24(d)(2)(i), 56 FR 
45800-01 (Sept. 6, 1991). The applicant or other person has a right to 
request review within 30 days of service of OSM's decision under the 
procedures proposed by OHA in 43 CFR 4.1380-4.1387. OSM's decision 
remains in effect pending a decision on review unless temporary relief 
is granted under proposed Sec. 4.1386. See proposed 
Sec. 773.24(d)(2)(ii), 56 FR 45801 (Sept. 6, 1991).
    OHA's procedures in proposed 43 CFR 4.1380-4.1387 closely parallel 
those in Secs. 4.1370-4.1377. Any person who receives a written OSM 
decision concerning a challenge to the existence of a link or the 
status of a violation may request review. Sec. 4.1381. The required 
contents of the request are set forth in proposed Sec. 4.1382; the 
request may be amended once as a matter of right before a response is 
filed by OSM and with the leave of an administrative law judge 
thereafter. Sec. 4.1382(c). The administrative law judge is to convene 
a hearing within 90 days of receipt of the responses unless the parties 
waive that deadline, and give notice at least 10 days in advance of the 
hearing. Sec. 4.1383. OSM has the burden of going forward to present a 
prima facie case in support of its decision, while the person 
requesting review has the ultimate burden of persuasion that the 
decision is in error. Sec. 4.1384. An initial decision is required 
within 30 days after the record of the hearing is closed. Sec. 4.1385. 
At any time before the initial decision is issued, any party may file a 
petition for temporary relief from OSM's decision. Temporary relief may 
be granted if all parties to the proceeding have been notified of the 
petition, have had an opportunity to respond, and a hearing has been 
held if requested; and if the petitioner has demonstrated that it has a 
substantial likelihood of prevailing on the merits and that temporary 
relief will not adversely affect public health or safety or cause 
significant, imminent environmental harm. Sec. 4.1386. Expedited review 
by IBLA or judicial review of a decision granting or denying temporary 
relief may be requested within 30 days of receipt of the decision. 
Sec. 4.1386(h). If temporary relief is not requested, any party may 
file a petiton for discretionary review of the administrative law 
judge's initial decision within 30 days of receiving it. Sec. 4.1387. 
The Board is to issue a decision denying the petition or granting it 
and ruling on the merits within 60 days of the deadline for filing 
responses to the petition section 4.1387(d).
    The nature of a person's interest in an application for a permit 
cannot be regarded as a ``legitimate claim of entitlement'' to a permit 
and therefore requires less due process protection than the interest of 
a person who holds a permit that is subject to suspension or rescission 
because it was improvidently issued. See Board of Regents v. Roth, 408 
U.S. 564, 569-71, 577 (1972). For a person who has applied for a permit 
or may apply for one, due process does not require a hearing on the 
existence of an ownership or control link or on the existence of a 
violation when it was cited before OSM issues a decision under proposed 
30 CFR 773.24. If the proposed procedures in Secs. 4.1370-4.1377 for 
administrative review of notices of permit suspension or rescission 
under proposed 30 CFR 773.20(c)(2) provide adequate due process 
protection, as OHA believes, then the parallel procedures in proposed 
Secs. 4.1380-4.1387 certainly satisfy due process requirements for 
OSM's decisions regarding ownership and control links or the status of 
a violation under proposed 30 CFR 773.24. In particular, an applicant's 
opportunity to obtain temporary relief under 43 CFR 4.1386 from an OSM 
decision provides sufficient due process at this stage. Further 
administrative review is available to an applicant for a permit in an 
appeal of the denial of the application under existing procedures in 43 
CFR 4.1360 through 4.1369, when the existence of the violation may be 
challenged. Providing an evidentiary hearing before OSM decisions under 
proposed 30 CFR 773.24 would severely impede the Department's effective 
implementation of section 510(c).

State Primacy

    NCA/AMC argue that the proposed OSM and OHA regulations ``undermine 
state primacy [under section 503 of SMCRA, 30 U.S.C. (1988)] entirely, 
by preempting state permitting authority where the ownership and 
control presumption is based on information contained within the AVS. * 
* * Additionally, OSM and OHA propose to require that any appeals from 
decisions on the ownership and control presumptions be made before the 
OHA in accordance with the proposed OHA regulations at 43 CFR 4.1380. * 
* * Moreover, OSM would create a completely federalized process for 
administrative review of the AVS linkage.''
    The regulatory authority in a state that has been delegated primacy 
under section 503 will retain its authority to issue permits. 
Information in the AVS is ``other information available to the 
regulatory authority,'' within the meaning of section 510(c), that a 
state regulatory authority must use in deciding whether or not issuance 
of a permit should be blocked. The state regulatory authority's 
decision is its own--subject, of course, to OSM oversight. See 30 
U.S.C. 1202(g), 1211(c), 1253, 1254, 1255, and 1271.
    An applicant or other person shown in the AVS in an ownership or 
control link to any person cited in a state violation notice may 
challenge the status of the violation in that notice under the state 
program equivalents to proposed 30 CFR 773.24(b)-(d) and 773.26. See 
proposed 30 CFR 773.24(a)(3), 56 FR 45800 (Sept. 6, 1991). Similarly, 
decisions by a state regulatory authority to suspend or rescind a 
permit are reviewed by the State program equivalent of proposed 43 CFR 
4.1370-4.1377. See proposed 30 CFR 773.20(c)(2), 56 FR 45799 (Sept. 6, 
1991). The fact that challenges to ownerships and control links and to 
the status of violations are made to OSM by applicants or other persons 
shown in the AVS under proposed 30 CFR 773.24(a)(1) and (a)(2), and 
that OSM's decisions are reviewed under proposed 43 CFR 4.1380-4.1387, 
is a function of OSM's maintenance of the data in AVS and its 
responsibility to keep that data accurate and up-to-date. But OSM's 
role in deciding on the accuracy of the data and OHA's role in 
reviewing those decisions do not subvert the authority of the state 
regulatory authority in a primacy state to make decisions on 
applications for permits.

Burden of Proof

    NCA/AMC object to OHA's proposed 43 CFR 4.1374(b) and 4.1384(b), 
which place the ultimate burden of persuasion on a permittee that seeks 
review of a notice of proposed suspension or rescission and on an 
applicant or other persons that seeks review of an OSM decision on a 
challenge to an ownership and control link or status of a violation 
shown in the AVS. In proposed Secs. 4.1374(a) and 4.1384(a), OSM has 
the burden of going forward to present a prima facie case of the 
validity of the notice or decision. NCA/AMC state that when OSM seeks 
to overturn a permit as improvidently issued, it should bear the 
ultimate burden of proving its case. ``All permits, once issued, should 
be accorded some presumption that they were issued in accordance and 
compliance with applicable law. * * * [I]t is the party seeking to set 
aside the permitting decision who should bear both the burden of going 
forward to establish a prima facie case and the ultimate burden of 
persuasion, ``NCA/AMC state.
    Allocation of the burdens of proof in proposed 43 CFR 4.1374 and 
4.1384 is consistent with other OHA regulations governing review of OSM 
decisions. See 43 CFR 4.1171, 4.1193, 4.1366. OSM's burden of going 
forward to support a prima facie case of the validity of its notice or 
decision means it must present ``sufficient evidence * * * to establish 
the essential facts * * * which evidence will remain sufficient if not 
contradicted. It is evidence that will justify but not compel a finding 
in favor of the one presenting it.'' James Moore, 1 IBSMA 216, 223 n.7, 
86 I.D. 369, 373 n.7 (1979). It is the permittee, applicant, or other 
person shown in the AVS who will have access to information that would 
overcome OSM's prima facie case. Harry Smith Construction Co. v. OSM, 
78 IBLA 27, 31 (1983). Under the Administrative Procedure Act, 5 U.S.C. 
556(d) (1988), OSM properly bears only the burden of going forward with 
proof, not the ultimate burden of persuasion. Environmental Defense 
Fund, Inc. v. Environmental Protection Agency, 548 F.2d 998, 1012-13 
(D.C. Cir. 1976).

Right of Appeals From OSM Decisions for Adversely Affected Persons; 
Notice of Appeals to Adversely Affected Persons

    The NWF comments criticized proposed 43 CFR 4.1371 for its failure 
to incorporate the rights of citizens to challenge decisions by OSM 
regarding improvidently issued permits under 30 CFR 773.20. As 
explained above, 30 CFR 773.20 provides that a permit has been 
improvidently issued if, under the violations review criteria at the 
time the permit was issued, the regulatory authority should not have 
issued the permit. Proposed 43 CFR 4.1371 grants a right of review to a 
``permittee that is served with a notice of suspension under 30 CFR 
773.20(c)(2) or a notice of proposed suspension and rescission under 30 
CFR 773.21.'' The rights of citizens to appeal similar decisions have 
been completely overlooked, NWF states.
    Similarly, NWF objects to proposed 43 CFR 4.1381, which authorizes 
``[a]ny person who receives a written decision from OSM'' pursuant to 
proposed 30 CFR 773.24(d)(2) or 773.25(c)(2) to file a request for 
review of OSM's finding that such person is in an ownership or control 
link to any person cited in a violation notice within the scope of 30 
CFR 773.5 and 773.15(b). No provision for citizen-initiated appeals of 
these decisions exists under the proposed rules, NWF states. 
``Decisions by OSM not to act on the information provided by citizens, 
or decisions to issue permits in the face of information that indicates 
an ownership or control link to a violation, should be subject to 
review by the Office of Hearings and Appeals,'' NWF comments.
    NWF also criticizes lack of notice to affected citizens. Although 
proposed 43 CFR 4.1372(b) provides to ``OSM and all interested 
parties'' the right to file an answer to a request for review of a 
decision to suspend or rescind a permit as improvidently issued and to 
request an evidentiary hearing even if the person requesting review 
does not, it is silent as to how interested parties other than OSM are 
to know that a request for review has been filed, NWF states. Only 
counsel for OSM would be served with a copy of a request for review 
under 43 CFR 4.1109, NWF observes. Similarly, the rules proposed in 43 
CFR 4.1380-4.1387 for review of OSM decisions concerning ownership and 
control links provide ``no notice to citizens who may be substantially 
and adversely affected by a reversal of a determination of ownership 
and control linkage,'' NWF comments. Specific provisions for notice to 
all affected persons of appeals of both kinds of OSM decisions should 
be adopted, NWF urges.
    OHA agrees that provisions for notice to citizens of appeals of OSM 
decisions concerning permit suspension and rescission and concerning 
ownership and control links and for rights of appeal of such OSM 
decisions were not included in the proposed rules. Adding such 
provisions to the final rules on the basis of NWF's comments, however, 
without providing an opportunity for notice and comment, might be 
regarded as inconsistent with the requirements of the Administrative 
Procedure Act. See American Federation of Labor v. Donovan, 757 F.2d 
330, 338-40 (D.C. Cir. 1985). After consultation with OSM, OHA may 
propose rules concerning these issues in the future. Meanwhile, no 
right of appeal by citizens from OSM decisions not to find an ownership 
or control link is available under these rules. Citizens may of course 
avail themselves of existing procedures, e.g., 30 CFR 773.13, 842.11, 
842.12, 842.15, and 843.21, and petition for leave to intervene in 
proceedings under Secs. 4.1370-4.1377 and 4.1380-4.1387 in accordance 
with 43 CFR 4.1110.

Changes in the Final Rules From the Proposed Rules

    OHA believes no revisions to proposed 43 CFR 4.1370-4.1377 and 
4.1380-4.1387 are required in response to the comments. However, OHA 
has made the following changes to the proposed rules to improve their 
clarity and to remove references to section numbers of the rules 
proposed by OSM:
    1. 43 CFR 4.1373(a): The phrase ``If a hearing is requested'' has 
been added at the beginning of the first sentence, and the remainder of 
the sentence revised, to account for the possibility that a hearing 
might not be requested.
    2. 43 CFR 4.1373(b): ``of the date of the hearing'' has been added 
at the end of the sentence to make clear that notice shall be given at 
least 10 days in advance of the hearing.
    3. 43 CFR 4.1375: An alternative deadline is provided for issuance 
of an initial decision when no hearing is held.
    4. 43 CFR 4.1380: The language concerning the kind of OSM decisions 
from which a request for review may be filed has been revised to 
replace references to 30 CFR 773.5 and 773.15(b) with a more general 
description, i.e., decisions on challenges by an applicant or other 
person shown in the AVS to an ownership or control link or the status 
of a violation.
    5. 43 CFR 4.1381(a): The specific references to proposed 30 CFR 
773.24(d)(2) and 773.25(c)(2) and to 30 CFR 773.5 and 773.15(b) have 
been replaced with language describing the kind of OSM decision from 
which a request for review may be filed, i.e., a written decision by 
OSM, in response to a challenge from an applicant or other person shown 
in the AVS, on whether or not the ownership or control link has been 
shown to be erroneous or has been rebutted and/or whether the violation 
covered by the notice remains outstanding, has been corrected, or is 
the subject of a good faith appeal.
    6. 43 CFR 4.1383(a): The phrase ``If a hearing is requested'' has 
been added at the beginning of the first sentence, and the remainder of 
the sentence revised, to account for the possibility that a hearing 
might not be requested.
    7. 43 CFR 4.1383(b): ``of the date of the hearing'' has been added 
at the end of the sentence to make clear that notice shall be given at 
least 10 days in advance of the hearing.
    8. 43 CFR 4.1385: An alternative deadline is provided for issuance 
of an initial decision when no hearing is held.
    In addition, in order to implement the Administrative Dispute 
Resolution Act, OHA has added rules (Secs. 4.1371(c), 4.1381(c)) 
providing the parties an opportunity to employ alternatives means of 
dispute resolution, as defined in 5 U.S.C. 571(3) (1988), before the 
hearing and appeals procedures set forth in the following rules. Any 
party could decline this opportunity, in its discretion, at any time. 
Because no new obligations are imposed and this voluntary procedure 
does not affect substantive rights, its adoption does not require 
separate notice under the Administrative Procedure Act.

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.

Executive Order 12866

    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 requirement 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: August 18, 1994.
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.

    2. Section 4.1105 is amended by revising paragraph (a)(2) 
introductory text to read:


Sec. 4.1105  Parties.

    (a) * * *
    (2) In a review proceeding under Secs. 4.1160 through 4.1171, 
4.1180 through 4.1187, 4.1300 through 4.1309, 4.1350 through 4.1356, 
4.1360 through 4.1369, 4.1370 through 4.1377, 4.1380 through 4.1387 or 
4.1390 through 4.1394 of this part, OSM, as represented by the Office 
of the Solicitor, Department of the Interior, and--
* * * * *
    3. New Secs. 4.1370 through 4.1377 and a new undesignated heading 
preceding them are added to read:

Review of Decisions of the Office of Surface Mining Suspending or 
Rescinding Improvidently Issued Permits

Sec.
4.1370  Scope.
4.1371  Who may file, where to file, when to file.
4.1372  Contents of request for review, response to request, 
amendment of request.
4.1373  Hearing.
4.1374  Burdens of proof.
4.1375  Time for initial decision.
4.1376  Petition for temporary relief from notice of suspension or 
notice of proposed suspension and rescission; appeals from decisions 
granting or denying temporary relief.
4.1377  Petition for discretionary review of initial decisions.

Review of Decisions of the Office of Surface Mining Suspending or 
Rescinding Improvidently Issued Permits


Sec. 4.1370  Scope.

    Sections 4.1370 through 4.1377 govern the procedures for review of 
notices from OSM of suspension of improvidently issued permits issued 
under 30 CFR 773.20(c) or of notices of proposed suspension and 
rescission of improvidently issued permits issued under 30 CFR 773.21.


Sec. 4.1371  Who may file, where to file, when to file.

    (a) A permittee that is served with a notice of suspension under 30 
CFR 773.20(c)(2) or a notice of proposed suspension and rescission 
under 30 CFR 773.21 may file a request for review with the Hearings 
Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203 (Telephone 
703-235-3800) within 30 days of service of the notice.
    (b) Failure to file a request for review within 30 days of service 
of the notice shall constitute a waiver of review of the notice. An 
untimely request for review shall be dismissed.
    (c) Where appropriate under the Administrative Dispute Resolution 
Act, 5 U.S.C. Secs. 571-583, the Hearings Division may use a dispute 
resolution proceeding, if the parties agree to such proceeding, before 
the procedures set forth in Secs. 4.1373 through 4.1377.


Sec. 4.1372  Contents of requests for review, response to request, 
amendment of request.

    (a) The request for review shall include:
    (1) A copy of the notice of suspension or the notice of proposed 
suspension and rescission;
    (2) Documentary proof, or, where appropriate, offers of proof, 
concerning the matters set forth in 30 CFR 773.20(b) or 773.21(a)(1) 
through (4) showing that the person requesting review is entitled to 
administrative relief;
    (3) A statement whether the person requesting review wishes an 
evidentiary hearing or waives the opportunity for such a hearing;
    (4) A request for specific relief; and
    (5) Any other relevant information.
    (b) Within 20 days of service of the request for review by the 
permittee in accordance with 43 CFR 4.1109, OSM and all interested 
parties shall file an answer to the request for review or a motion in 
response to the request or a statement that no answer or motion will be 
filed. OSM or any interested party may request an evidentiary hearing 
even if the person requesting review has waived the opportunity for 
such a hearing.
    (c) The permittee may amend the request for review once as a matter 
of right before a response in accordance with paragraph (b) of this 
section is required to be filed. After the period for filing such a 
response, the permittee may file a motion for leave to amend the 
request for review with the administrative law judge. If the 
administrative law judge grants a motion for leave to amend, he shall 
provide OSM and any other party that filed a response in accordance 
with paragraph (b) not less than 10 days to file an amended response.


Sec. 4.1373  Hearing.

    (a) If a hearing is requested, the administrative law judge shall 
convene the hearing within 90 days of receipt of the responses under 
Sec. 4.1372(a). The 90-day deadline for convening the hearing may be 
waived for a definite time by the written agreement of all parties, 
filed with the administrative law judge, or may be extended by the 
administrative law judge, in response to a motion setting forth good 
cause to do so, if no other party is prejudiced by the extension.
    (b) The administrative law judge shall give notice of the hearing 
at least 10 days in advance of the date of the hearing.


Sec. 4.1374  Burdens of proof.

    (a) OSM shall have the burden of going forward to present a prima 
facie case of the validity of the notice of suspension or the notice of 
proposed suspension and rescission.
    (b) The permittee shall have the ultimate burden of persuasion by a 
preponderance of the evidence that the notice is invalid.


Sec. 4.1375  Time for initial decision.

    The administrative law judge shall issue an initial decision within 
30 days of the date the record of the hearing is closed, or, if no 
hearing is held, within 30 days of the deadline for filing responses 
under Sec. 4.1372(b).


Sec. 4.1376  Petition for temporary relief from notice of suspension or 
notice of proposed suspension and rescission: appeals from decisions 
granting or denying temporary relief.

    (a) Any party may file a petition for temporary relief from the 
notice of suspension or the notice of proposed suspension and 
rescission in conjunction with the filing of the request for review or 
at any time before an initial decision is issued by the administrative 
law judge.
    (b) The petition for temporary relief shall be filed with the 
administrative law judge to whom the request for review has been 
assigned. If none has been assigned, the petition shall be filed with 
the Hearings Division, Office of Hearings and Appeals, U.S. Department 
of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203 
(Telephone 703-235-3800).
    (c) The petition for temporary relief shall include:
    (1) A statement of the specific relief requested;
    (2) A detailed statement of why temporary relief should be granted, 
including--
    (i) A showing that there is a substantial likelihood that 
petitioner will prevail on the merits, and
    (ii) A showing that the relief sought will not adversely affect the 
public health or safety or cause significant, imminent environmental 
harm to land, air or water resources;
    (3) A statement whether the petitioner requests an evidentiary 
hearing.
    (d) Any party may file a response to the petition no later than 5 
days after it was served and may request a hearing even if the 
petitioner has not done so.
    (e) The administrative law judge may hold a hearing on any issue 
raised by the petition within 10 days of the filing of responses to the 
petition, and shall do so if a hearing is requested by any party.
    (f) The administrative law judge shall issue an order or decision 
granting or denying the petition for temporary relief within 5 days of 
the date of a hearing on the petition or, if no hearing is held, of 
service of the responses to the petition on all parties.
    (g) The administrative law judge may only grant temporary relief 
if:
    (1) All parties to the proceeding have been notified of the 
petition and have had an opportunity to respond and a hearing has been 
held if requested;
    (2) The petitioner has demonstrated a substantial likelihood of 
prevailing on the merits; and
    (3) Temporary relief will not adversely affect public health or 
safety or cause significant, imminent harm to land, air or water 
resources.
    (h) Any party may file an appeal of an order or decision granting 
or denying temporary relief with the Board within 30 days of receipt of 
the order or decision or, in the alternative, may seek judicial review 
within 30 days in accordance with section 526(a) of the Act, 30 U.S.C. 
1276(a). If an appeal is filed with the Board, the Board shall issue an 
expedited briefing schedule and shall decide the appeal expeditiously.


Sec. 4.1377  Petition for discretionary review of initial decision.

    (a) Any party may file a petition for discretionary review of an 
initial decision of an administrative law judge issued under 
Sec. 4.1375 with the Board within 30 days of receipt of the decision. 
An untimely petition shall be dismissed.
    (b) The petition for discretionary review shall set forth 
specifically the alleged errors in the initial decision, with 
supporting argument, and shall attach a copy of the decision.
    (c) Any party may file a response to the petition for discretionary 
review within 30 days of its service.
    (d) The Board shall issue a decision denying the petition or 
granting the petition and deciding the merits within 60 days of the 
deadline for filing responses.
    4. New Secs. 4.1380 through 4.1387 and a new undesignated heading 
preceding them are added to read:

Review of Office of Surface Mining Written Decisions Concerning 
Ownership and Control

Sec.
4.1380  Scope.
4.1381  Who may file; when to file; where to file.
4.1382  Contents of request for review; response to request; 
amendment of request.
4.1383  Hearing.
4.1384  Burdens of proof.
4.1385  Time for initial decision.
4.1386  Petition for temporary relief from decision; appeals from 
decisions granting or denying relief.
4.1387  Petition for discretionary review of initial decisions.

Review of Office of Surface Mining Written Decisions Concerning 
Ownership and Control


Sec. 4.1380  Scope.

    Sections 4.1380 through 4.1387 govern the procedures for review of 
written decisions of OSM on challenges by an applicant or other person 
shown in the Applicant Violator System to an ownership or control link 
or the status of a violation.


Sec. 4.1381  Who may file; when to file; where to file.

    (a) An applicant or any other person shown in the Applicant 
Violator System who receives a written decision by OSM, in response to 
a challenge to an ownership or control link or the status of a 
violation, on whether or not the ownership or control link has been 
shown to be erroneous or has been rebutted and/or whether the violation 
covered by a federal violation notice remains outstanding, has been 
corrected, or is the subject of a good faith appeal may file a request 
for review with the Hearings Division, Office of Hearings and Appeals, 
U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, 
Virginia 22203 (Telephone 703-235-3800) within 30 days of service of 
the decision.
    (b) Failure to file a request for review within 30 days of service 
of the decision constitutes a waiver of review of the decision. An 
untimely request for review shall be dismissed.
    (c) Where appropriate under the Administrative Dispute Resolution 
Act, 5 U.S.C. Secs. 571-583, the Hearings Division may use a dispute 
resolution proceeding, if the parties agree to such proceeding, before 
the procedures set forth in Secs. 4.1383 through 4.1387.


Sec. 4.1382  Contents of request for review; response to request; 
amendment of request.

    (a) The request for review shall include:
    (1) A copy of the decision of OSM;
    (2) A statement of the alleged errors in the decision and the facts 
that entitle the person requesting review to administrative relief;
    (3) A statement whether the person requesting review wishes an 
evidentiary hearing or waives the opportunity for such a hearing;
    (4) A request for specific relief; and
    (5) Any other relevant information.
    (b) Within 20 days of service of the request for review in 
accordance with 43 CFR 4.1109, OSM and all interested parties shall 
file an answer to the request for review or a motion in response to the 
request or a statement that no answer or motion will be filed. OSM or 
any interested party may request an evidentiary hearing even if the 
person requesting review has waived the opportunity for a hearing.
    (c) The person filing the request for review may amend it once as a 
matter of right before the response in accordance with paragraph (b) of 
this section is required to be filed. After the period for filing such 
a response, the person may file a motion for leave to amend the request 
with the administrative law judge. If the administrative law judge 
grants a motion for leave to amend, he shall provide OSM and any other 
party that filed a response in accordance with paragraph (b) not less 
than 10 days to file an amended response.


Sec. 4.1383  Hearing.

    (a) If a hearing is requested, the administrative law judge shall 
convene the hearing within 90 days of receipt of responses under 
Sec. 4.1382(b). The 90-day deadline for convening the hearing may be 
waived for a definite time by the written agreement of all parties, 
filed with the administrative law judge, or may be extended by the 
administrative law judge, in response to a motion setting forth good 
cause to do so, if no other party is prejudiced by the extension.
    (b) The administrative law judge shall give notice of the hearing 
at least 10 days in advance of the date of the hearing.


Sec. 4.1384  Burdens of proof.

    (a) OSM shall have the burden of going forward to present a prima 
facie case of the validity of the decision.
    (b) The person filing the request for review shall have the 
ultimate burden of persuasion by a preponderance of the evidence that 
the decision is in error.


Sec. 4.1385  Time for initial decision.

    The administrative law judge shall issue an initial decision within 
30 days of the date the record of the hearing is closed, or, if no 
hearing is held, within 30 days of the deadline for filing responses 
under Sec. 4.1382(b).


Sec. 4.1386  Petition for temporary relief from decision; appeals from 
decisions granting or denying temporary relief.

    (a) Any party may file a petition for temporary relief from the 
decision of OSM in conjunction with the filing of the request for 
review or at any time before an initial decision is issued by the 
administrative law judge.
    (b) The petition for temporary relief shall be filed with the 
administrative law judge to whom the request for review has been 
assigned. If none has been assigned, the petition shall be filed with 
the Hearings Division, Office of Hearings and Appeals, U.S. Department 
of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203 
(Telephone 703-235-3800).
    (c) The petition for temporary relief shall include:
    (1) A statement of the specific relief requested:
    (2) A detailed statement of why temporary relief should be granted, 
including:
    (i) A showing that there is a substantial likelihood that 
petitioner will prevail on the merits, and
    (ii) A showing that granting the relief requested will not 
adversely affect the public health or safety or cause significant, 
imminent environmental harm to land, air or water resources;
    (3) A statement whether the petitioner requests an evidentiary 
hearing.
    (d) Any party may file a response to the petition no later than 5 
days after it was served and may request a hearing even if the 
petitioner has not done so.
    (e) The administrative law judge may hold a hearing on any issue 
raised by the petition within 10 days of the filing of responses to the 
petition, and shall do so if a hearing is requested by any party.
    (f) The administrative law judge shall issue an order or decision 
granting or denying the petition for temporary relief within 5 days of 
the date of a hearing on the petition or, if no hearing is held, of 
service of the responses to the petition on all parties.
    (g) The administrative law judge may only grant temporary relief 
if:
    (1) All parties to the proceeding have been notified of the 
petition and have had an opportunity to respond and a hearing has been 
held if requested;
    (2) The petitioner has demonstrated a substantial likelihood of 
prevailing on the merits; and
    (3) Temporary relief will not adversely affect public health or 
safety or cause significant, imminent environmental harm to land, air 
or water resources.
    (h) Any party may file an appeal of an order or decision granting 
or denying temporary relief with the Board within 30 days of receipt of 
the order or decision or, in the alternative, may seek judicial review 
within 30 days in accordance with section 526(a) of the Act, 30 U.S.C. 
1276(a). If an appeal is filed with the Board, the Board shall issue an 
expedited briefing schedule and shall decide the appeal expeditiously.


Sec. 4.1387  Petition for discretionary review of initial decisions.

    (a) Any party may file a petition for discretionary review of an 
initial decision of an administrative law judge issued under 
Sec. 4.1385 with the Board within 30 days of receipt of the decision. 
An untimely petition shall be dismissed.
    (b) The petition for discretionary review shall set forth 
specifically the alleged errors in the initial decision, with 
supporting argument, and shall attach a copy of the decision.
    (c) Any party may file a response to the petition for discretionary 
review within 30 days of its service.
    (d) The Board shall issue a decision denying the petition or 
granting the petition and deciding the merits within 60 days of the 
deadline for filing responses.
[FR Doc. 94-26553 Filed 10-27-94; 8:45 am]
BILLING CODE 4310-79-M