[Federal Register Volume 65, Number 45 (Tuesday, March 7, 2000)]
[Proposed Rules]
[Pages 11950-11955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5494]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-149-FOR]


Indiana Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is announcing receipt of a proposed amendment to the Indiana regulatory 
program (Indiana program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). Indiana submitted revised procedural 
rules for adjudicatory proceedings. Indiana intends to revise its 
program to be consistent with the corresponding Federal regulations. 
This document gives the times and locations that the Indiana program 
and amendment to that program are available for your inspection, the 
comment period during which you may submit written comments on the 
amendment, and the procedures that we will follow for the public 
hearing, if one is requested.

DATES: We will accept written comments until 4 p.m., e.s.t., April 6, 
2000. If requested, we will hold a public hearing on the amendment on 
April 3, 2000. We will accept requests to speak at the hearing until 4 
p.m., e.s.t. on March 22, 2000.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to Andrew R. Gilmore, Director, 
Indianapolis Field Office, at the address listed below.
    You may review copies of the Indiana program, the amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Indianapolis Field Office.

Andrew R. Gilmore, Director, Indianapolis Field Office, Office of 
Surface Mining Reclamation and Enforcement, Minton-Capehart Federal 
Building, 575 North Pennsylvania Street, Room 301, Indianapolis, IN 
46204, Telephone: (317) 226-6700.
Indiana Department of Natural Resources, Bureau of Mine Reclamation, 
402 West Washington Street, Room W-295, Indianapolis, Indiana 46204, 
Telephone: (317) 232-1291.
Indiana Department of Natural Resources, Division of Reclamation, R.R. 
2, Box 129, Jasonville, Indiana 47438-9517, Telephone: (812) 665-2207.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director, 
Indianapolis Field Office. Telephone: (317) 226-6700. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana Program

    On July 29, 1982, the Secretary of the Interior conditionally 
approved the Indiana program. You can find background information on 
the Indiana program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the July 26, 
1982, Federal Register (47 FR 32107). You can find later actions on the 
Indiana program at 30 CFR 914.10, 914.15, and 914.16.

II. Description of the Proposed Amendment

    On February 4, 2000, the Indiana Department of Natural Resources 
(department), Division of Reclamation (DoR), sent us a copy of revised 
procedural rules for adjudicatory proceedings (Administrative Record 
No. IND-1685). These rules are codified in the Indiana Administrative 
Code (IAC) at 312 IAC 3-1 and provide procedures for administrative 
review proceedings held before the Natural Resources Commission 
(commission) and its administrative law judges. We previously approved 
Indiana's procedural rules at 310 IAC 0.6-1 for adjudicatory 
proceedings under its program. In 1996, Indiana repealed the procedural 
rules at 310 IAC 0.6-1 and revised and recodified their substantive 
requirements at 312 IAC 3-1. The DoR submitted the revised procedural 
rules in response to a required program amendment that we codified at 
30 CFR 914.16(ff) on October 20, 1994 (59 FR 52906). Below is a 
discussion of that portion of the revised rules that pertain to 
administrative review under the Indiana program.

1. 312 IAC 3-1-1  Administration

    Subsection (a) specifies that 312 IAC 3-1 controls proceedings 
governed by Indiana Code (IC) 4-21.5, Administrative Orders and 
Procedures, for which the commission, or an administrative law judge 
for the commission, is the ultimate authority.
    Subsection (b) allows an affected person to apply for 
administrative review under IC 4-21.5 and 312 IAC 3-1 if he or she is 
aggrieved by a determination of the director or a delegate of the 
director.
    Subsection (c) defines ``division director'' as the director of the 
division of hearings of the commission.

2. 312 IAC 3-1-2   Ultimate Authority

    Subsection (a) designates the commission as the ultimate authority 
for the department except as provided in subsection (b).
    Subsection (b) designates an administrative law judge as the 
ultimate authority for an administrative review under: (1) An order 
under Indiana's Surface Coal Mining and Reclamation Act at IC 14-34, 
except for a proceeding concerning the approval or disapproval of a 
permit application or permit renewal under IC 14-34-4-13 or for 
suspension or revocation of a permit under IC 14-34-15-7; (2) An order 
granting or denying temporary relief under IC 14-34 or an order 
voiding, terminating, modifying, staying, or continuing an emergency or 
temporary order under IC 4-21.5-4; and (3) An order designated as a 
final order in 312 IAC 3-1-9.

3. 312 IAC 3-1-3  Initiation of a Proceeding for Administrative Review

    Subsection (a) provides that a proceeding before the commission 
under IC 4-21.5 is initiated when one of the following is filed with 
the Division of Hearings: (1) a petition for review under IC 4-21.5-3-
7; (2) a complaint under IC 4-21.5-3-8; (3) a request for temporary 
relief under IC 14-34; (4) a request to issue or for review of an 
issued emergency or other temporary order under IC 4-21.5-4; (5) an 
answer to an order to show cause under 312 IAC 3-1-5; or (6) a referral 
by the director of a petition for and challenge to litigation expenses 
under 312 IAC 3-1-13(g).
    Subsection (b) requires the division director to appoint an 
administrative law judge to conduct the proceeding as soon as 
practicable after the initiation of administrative review under 
subsection (a).

4. 312 IAC 3-1-4  Answers and Affirmative Defenses

    Subsection (a) specifies that except as provided in subsection (b) 
and in 312 IAC 3-1-5 and 13, the matters contained in a pleading 
described in 312 IAC 3-1-3(a) are considered automatically denied by 
any other party.
    Subsection (b) provides that a party wishing to assert an 
affirmative defense,

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counterclaim, or cross-claim must do so, in writing, and have the 
document filed and served no later than the initial prehearing 
conference, unless otherwise ordered by the administrative law judge.

5. 312 IAC 3-1-5  Pleadings for and Disposing of a Show Cause Order 
Issued Under the Indiana Surface Mining Control and Reclamation Act

    Subsection (a) provides that 312 IAC 3-1-5 governs the suspension 
or revocation of a permit under IC 14-34-15-7.
    Subsection (b) requires the director (or a delegate of the 
director) to issue, to the permittee, an order of permit suspension or 
revocation under IC 14-34-15-7 if the director determines that a permit 
issued under to IC 13-4.1, IC 14-34, or 310 IAC 12 should be suspended 
or revoked. The order of permit suspension or revocation must state 
that: (1) a pattern of violations of IC 13-4.1, IC 14-34, 310 IAC 12, 
or any permit condition required by IC 13-4.1, IC 14-34, or 310 IAC 12 
exists; and (2) the violations are either willfully caused by the 
permittee, or caused by the permittee's unwarranted failure to comply 
with IC 13-4.1, IC 14-34, 310 IAC 12, or any permit condition required 
by IC 13-4.1, IC 14-34, or 310 IAC 12. Subsection (b) further provides 
that, for the purposes of this subsection, the unwarranted failure of 
the permittee to pay any fee required under IC 13-4.1, IC 14-34, or 310 
IAC 12 constitutes a pattern of violations and requires the issuance of 
an order of permit suspension or revocation.
    Subsection (c) requires the director to serve by certified mail or 
personal delivery an order of permit suspension or revocation. 
Subsection (c) also clarifies that an order of permit suspension or 
revocation is governed by IC 4-21.5-3-6.
    Subsection (d) requires a permittee, who wants to contest an order 
of permit suspension or revocation, to file a petition for review under 
IC 4-21.5-3-7 within thirty (30) days of his or her receipt of the 
order of permit suspension or revocation. Subsection (d) also specifies 
the kind of information that must be included in a petition for review, 
including whether the permittee wants a hearing on the order of permit 
suspension or revocation.
    Subsection (e) provides that if a petition for review is not filed 
by the permittee under subsection (d), the order of permit suspension 
or revocation will become an effective and final order of the 
commission without a proceeding under IC 14-34-15-7(c).
    Subsection (f) provides that if a petition for review is filed by 
the permittee under subsection (d) and a hearing on the order is sought 
by the permittee, the matter will be assigned to an administrative law 
judge for a proceeding under IC 4-21.5-3. Subsection (f) also sets out 
the burden of proof standards for the hearing. The director has the 
burden of going forward with evidence demonstrating that the permit in 
question should be suspended or revoked. The director satisfies the 
burden by establishing a prima facie case that a pattern of violations 
exists or has existed and the violations were willfully caused by the 
permittee or caused by the unwarranted failure of the permittee to 
comply with any requirements of IC 13-4.1, IC 14-34, 310 IAC 12, or any 
permit conditions required under IC 13-4.1, IC 14-34, or 310 IAC 12. If 
the director demonstrates that the permit should be suspended or 
revoked, the permittee has the ultimate burden of persuasion to show 
cause why the permit should not be suspended or revoked. A permittee 
may not challenge the fact of any violation that is the subject of a 
final order of the director.
    Subsection (g) provides that the administrative law judge will 
issue a nonfinal order if he or she determines that a pattern of 
violations exists or has existed. In this nonfinal order, the 
administrative law judge must consider the factors contained in 310 IAC 
12-6-6.5. The administrative law judge must find that sufficient 
violations occurred to establish a pattern. The nonfinal order must 
comply with the requirements of IC 4-21.5-3-27(a) through IC 4-21.5-3-
27(d) and IC 4-21.5-3-27(g). The administrative law judge may, at any 
time before the conclusion of the hearing, allow the parties to submit 
briefs and proposed findings.
    Subsection (h) requires the administrative law judge to submit the 
nonfinal order to the commission within ten days following the date 
that the hearing is closed or within ten days of the receipt of the 
permittee's petition for review submitted under subsection (d) if no 
hearing is requested by any party and it is determined that no hearing 
is necessary.
    Subsection (i) provides that a party must object to the findings 
and nonfinal order in writing in order to preserve for judicial review 
an objection to the nonfinal order of an administrative law judge. In 
its written objection, a party must identify the bases of the 
objection. The objection must be filed with the commission within 15 
days after the findings and nonfinal order are served on the party.
    Subsection (j) requires the commission to enter a final order 
affirming, modifying, or vacating the administrative law judge's order 
of permit suspension or revocation. The final order of the commission 
must be entered within 45 days following the issuance of the nonfinal 
order. The final order of the commission must be issued 60 days 
following the date that the hearing record is closed by the 
administrative law judge or 60 days following the administrative law 
judge's receipt of the permittee's petition for review filed under 
subsection (d) if no hearing was requested by any party and the 
administrative law judge determined that no hearing was necessary.
    Subsection (k) provides that the minimum suspension period is 3 
working days unless the commission finds that imposition of the minimum 
suspension period would result in manifest injustice and would not 
further the purposes of IC 13-4.1, IC 14-34, 310 IAC 12, or any permit 
condition required by IC 13-4.1, IC 14-34, or 310 IAC 12. The 
commission may impose preconditions that the permittee must satisfy 
before the suspension is lifted.
    Subsection (l) requires the commission to serve the parties with a 
copy of the final order. A party may then apply for judicial review 
under IC 4-21.5.

6. 312 IAC 3-1-6  Amendment of Pleadings

    Subsection (a) provides for the amendment of petitions for 
administrative review filed under IC 4-21.5-3-7. The various types of 
petitions that may to be amended are described in 312 IAC 3-1-3(a). A 
pleading may be amended once as a matter of course before a response is 
filed, but not later than the initial prehearing conference or 15 days 
before a hearing, unless otherwise allowed by the administrative law 
judge.
    Subsection (b) specifies the circumstances under which amendments 
in a pleading relate back to the date of the original pleading.

7. 312 IAC 3-1-7  Filing and Service of Documents

    Subsection (a) requires documents to be filed with the 
administrative law judge and served on all other parties.
    Subsection (b) allows the filing of a document to be performed by 
personal delivery, first class mail, certified mail, interoffice mail, 
fax, or electronic mail.
    Subsection (c) requires service of a document to be made upon the 
attorney or other authorized representative when a party is represented 
by an attorney or another authorized representative. If a

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party is not represented by others, service must be made upon the 
individual.
    Subsection (d) provides that filing or service by properly 
addressed, prepaid first class or certified mail is complete upon 
deposit in the United States mail. Filing or service by another method 
is complete upon receipt.
    Subsection (e) specifies that 312 IAC 3-1-7 does not modify the 
time in which a party may file objections under IC 4-21.5-3-29 or a 
petition for judicial review under IC 4-21.5-5.

8. 312 IAC 3-1-8  Administrative Law Judge; Automatic Change

    Subsection (a) provides that an automatic change of administrative 
law judge may be obtained under 312 IAC 3-1-8.
    Subsection (b) provides that a party may file a written motion for 
change of the administrative law judge without specifically stating the 
ground for the request. A party must file the motion within ten days 
after the appointment of an administrative law judge.
    Subsection (c) requires the administrative law judge to grant the 
motion filed under subsection (b) and to notify the division director. 
The division director must inform the parties of the names of two other 
individuals from whom a substitute administrative law judge may be 
selected. A party who is opposed to the party who filed the motion 
under subsection (b) may, within five days, select one of the 
individuals named by the division director to serve as the substitute 
administrative law judge. The division director must select a new 
administrative law judge if the opposing party does not make a timely 
selection.
    Subsection (d) specifies under what circumstances an automatic 
change of administrative law judges under this section does not apply. 
This section does not apply where a previous change of administrative 
law judge has been requested under this section. It does not apply to a 
proceeding under IC 4-21.5-4 or to temporary relief under IC 13-4.1. It 
does not apply if an administrative law judge has issued a stay or 
entered an order for disposition of all or a portion of the proceeding. 
Finally it does not apply if the commission orders a suspension of the 
section because of inadequate staffing.

9. 312 IAC 3-1-9  Defaults, Dismissals, and Agreed Orders

    Subsection (a) allows an administrative law judge to enter a final 
order of dismissal if the party who initiated administrative review 
requests the proceeding be dismissed.
    Subsection (b) allows an administrative law judge, on the motion of 
the administrative law judge or the motion of a party, to enter a 
proposed order of default or proposed order of dismissal under IC 4-
21.5-3-24, if at least one of the following applies: (1) A party fails 
to attend or participate in a prehearing conference, hearing, or other 
stage of the proceeding; (2) The party responsible for taking action 
does not take action on a matter for a period of at least 60 days; (3) 
The person seeking administrative review does not qualify for review 
under IC 4-21.5-3-7; or (4) A default or dismissal could be entered in 
a civil action.
    Subsection (c) allows a party to file a written motion requesting 
the order not be imposed. The party must file the motion within seven 
days after service of a proposed order of default or dismissal, or 
within a longer period allowed by the proposed order. The 
administrative law judge may adjourn the proceedings or conduct them 
without participation of the party against whom a proposed default 
order was issued within the same time period. The administrative law 
judge must consider the interest of justice and the orderly and prompt 
conduct of the proceeding before taking either action.
    Subsection (d) requires the administrative law judge to issue an 
order of default or dismissal if the party fails to file a written 
motion under subsection (c). If the party has filed a written motion 
under subsection (c), the administrative law judge may either enter or 
refuse to enter an order of default or dismissal.
    Subsection (e) requires the administrative law judge, after issuing 
an order of default, but before issuing a final order or disposition, 
to conduct any action necessary to complete the proceeding without the 
participation of the party in default and determine all issues in the 
adjudication, including those affecting the defaulting party. The 
administrative law judge may conduct proceedings under IC 4-21.5-3-23 
to resolve any issue of fact.
    Subsection (f) requires an administrative law judge to approve an 
agreed order entered into by the parties if it is clear and concise and 
lawful.
    Subsection (g) allows the secretary of the commission to affirm the 
entry of an agreed order approved by the administrative law judge under 
subsection (f).
    Subsection (h) provides that a final order entered under this 
section is made with prejudice unless otherwise specified in the order. 
A person may seek judicial review of the order under IC 4-21.5-5.

10. 312 IAC 3-1-10  Applicability of Rules of Trial Procedure and Rules 
of Evidence

    Section 10 allows the administrative law judge to apply the Indiana 
Rules of Trial Procedure or the Indiana Rules of Evidence as long as 
they are not inconsistent with IC 4-21.5 or 312 IAC 3-1.

11. 312 IAC 3-1-11  Conduct of Hearing; Separation of Witnesses

    Subsection (a) requires an administrative law judge to govern the 
conduct of a hearing and the order of proof.
    Subsection (b) requires the administrative law judge to provide for 
a separation of witnesses on a motion by a party before the 
commencement of testimony.

12. 312 IAC 3-1-12  Nonfinal Order of the Administrative Law Judge; 
Oral Argument Before the Commission; Participation by Nonparties 
(Amicus Curiae); Disposition by the Secretary of State If No Objection 
Filed

    Subsection (a) provides that 312 IAC 3-1-12 governs the disposition 
of objections under IC 4-21.5-3-29.
    Subsection (b) requires a party who wishes to contest whether 
objections provide reasonable particularity, to move, in writing, for a 
more definite statement. The administrative law judge may rule upon a 
motion filed under this subsection, and any other motion filed 
subsequent to the entry of the nonfinal order, and enter an appropriate 
order (including removal of an item from the commission agenda).
    Subsection (c) requires that parties schedule objections for 
argument before the commission simultaneously with the presentation by 
the administrative law judge of findings, conclusions, and a nonfinal 
order. Unless otherwise ordered by the commission, argument must not 
exceed 10 minutes for each party and 20 minutes for each side.
    Subsection (d) allows a nonparty to file a brief with the 
commission ten days before oral argument is scheduled on objections 
filed under subsection (c). A copy of the brief must be served upon 
each party. The brief must not be more than five pages long and cannot 
include evidentiary matters outside the record. Unless otherwise 
ordered by the commission, a nonparty may also present oral argument 
for not more than five minutes in support of the brief. If more than 
one nonparty files a brief, the administrative law judge must order the 
consolidation of briefs if reasonably necessary to avoid injustice to a 
party. A nonparty who has not filed a brief at

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least ten days before oral argument is first scheduled on objections 
may participate in the argument upon the stipulation of the parties.
    Subsection (e) requires the commission to provide the services of a 
stenographer or court reporter to record the argument upon the written 
request of a party. This request must be filed at least 48 hours before 
an oral argument to consider objections.
    Subsection (f) allows the secretary of the commission, as its 
designee under IC 4-21.5-3-28(b), to affirm the findings and nonfinal 
order. The secretary has exclusive jurisdiction to affirm, remand, or 
submit to the commission for final action, any findings and nonfinal 
order subject to this subsection. No oral argument will be conducted 
under this subsection unless ordered by the secretary.
    Subsection (g) allows a party to move to strike all or any part of 
objections, a brief by a nonparty, or another pleading under 312 IAC 3-
1-12. The administrative law judge must act upon a motion filed under 
this subsection by providing relief which is consistent with IC 4-21.5 
and 312 IAC 3-1.

13. 312 IAC 3-1-13  Awards of Litigation Expenses for Specified 
Proceedings

    Subsection (a) provides that 312 IAC 3-1-13 governs an award of 
costs and expenses reasonably incurred, including attorney fees, under 
IC 14-34-15-10.
    Subsections (b) and (c) do not pertain to the Indiana program.
    Subsection (d) provides that appropriate costs and expenses, 
including attorney fees, may be awarded under IC 14-34-15-10 in five 
instances. First, litigation expenses may be awarded to any person from 
the permittee. However, the person must initiate or participate in an 
administrative proceeding reviewing enforcement and a finding must be 
made by the administrative law judge or commission that a violation of 
IC 14-34, a rule adopted under IC 14-34, or a permit issued under IC 
14-34 has occurred or that an imminent hazard existed and the person 
made a substantial contribution to the full and fair determination of 
the issues. However, a contribution of a person who did not initiate a 
proceeding must be separate and distinct from the contribution made by 
a person initiating the proceeding. Second, litigation expenses may be 
awarded to a person from the department, other than to a permittee or 
the permittee's authorized representative, who initiates or 
participates in a proceeding. The person must prevail in whole or in 
part, achieving at least some degree of success on the merits. A 
finding must also be made indicating that the person made a substantial 
contribution to a full and fair determination of the issues. Third, 
litigation expenses may be awarded to a permittee from the department 
if the permittee demonstrates that the department issued a cessation 
order, a notice of violation, or an order to show cause why a permit 
should not be suspended or revoked in bad faith and for the purpose of 
harassing or embarrassing the permittee. Fourth, litigation expenses 
may be awarded to a permittee from a person, where the permittee 
demonstrates that the person initiated a proceeding under IC 14-34-15 
or participated in the proceeding in bad faith for the purpose of 
harassing or embarrassing the permittee. Finally, litigation expenses 
may be awarded to the department from a person, where the department 
demonstrates that the person sought administrative review or 
participated in a proceeding in bad faith and for the purpose of 
harassing or embarrassing the department.
    Subsection (e) allows the commission to order a person requesting a 
hearing to pay the cost of the court reporter if the person requesting 
the hearing fails, after proper notice, to appear at the hearing.
    Subsection (f) specifies the factors that the commission must 
consider in determining what is a reasonable amount of attorney fees. 
The factors include: (1) The nature and difficulty of the proceeding; 
(2) The time, skill, and effort involved; (3) The fee customarily 
charged for similar legal services; (4) The amount involved in the 
proceeding; and (5) The time limitations imposed by the circumstances. 
For a party whose attorney is a full-time, salaried employee of the 
party, consideration also must be given to the prorated cost of the 
salary of the attorney and of the clerical or paralegal employees of 
the party who assisted the attorney. The employees' benefits 
attributable to the time devoted to representation must also be 
considered.
    Subsection (g) requires a party who wishes to seek litigation 
expenses to petition the director within 30 days after the party 
receives notice of the final agency action. A party wishing to 
challenge the petition for an award must deliver a written response to 
the director within 15 days of service of the petition for an award. If 
a petition for seeking litigation expenses and challenge of the 
petition for award are delivered to the director under this subsection, 
the director must refer the matter to the division of hearings of the 
commission for the conduct of a proceeding under IC 4-21.5.

14. 312 IAC 3-1-14  Court reporter; Transcripts

    Subsection (a) requires the commission to employ and engage the 
services of a stenographer or court reporter, either on a full-time or 
a part-time basis, to record evidence taken during a hearing.
    Subsection (b) allows a party to obtain a transcript of the 
evidence by submitting a written request to the administrative law 
judge.
    Subsection (c) requires the party who requests a transcript under 
subsection (b) to pay the cost of the transcript.
    Subsection (d) provides that, upon a written request by a party 
filed at least 48 hours before a hearing, a court reporter who is not 
an employee of the commission will be engaged to record a hearing.

15. 312 IAC 3-1-15  Quasi-Declaratory Judgments

    Subsection (a) allows a person to request the department to 
interpret a statute or rule administered by the department as 
applicable to a specific factual circumstance. The request must be in 
writing and must describe with reasonable particularity all relevant 
facts. The request must cite with specificity the statutory or rule 
sections in issue. The request must identify any other person who may 
be affected by a determination of the request. Finally the request must 
describe the relief sought.
    Subsection (b) allows the director or the director's delegate to 
provide a written response to the request. The written response must be 
provided within 45 days of the request. The response may include an 
interpretation based upon the information provided in the request or 
may specify additional information needed to respond to the request. If 
the department needs additional information, it has an additional 45 
days in which to respond.
    Subsection (c) provides that if the department does not respond 
within the periods described in subsection (b), a general denial of the 
request is deemed to have resulted.
    Subsection (d) allows the person who is seeking the request under 
subsection (a) to file a petition for administrative review under IC 4-
21.5-3 if he or she is aggrieved by the response of the department 
under subsection (b) or a general denial under subsection (c). The 
department's response constitutes a determination of status under IC 4-
21.5-3-5(a)(5).
    Subsection (e) provides that 312 IAC 3-1-15 does not excuse a 
person from

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a requirement to exhaust another administrative remedy provided by 
statute or rule. A person may not void or modify a final order entered 
by the department in another proceeding. A request does not extend any 
time limitation imposed on the availability of another administrative 
remedy. A final order of the department under this section, which 
follows a contested proceeding under IC 4-21.5-3, provides the same 
precedent as a final order following any other contested proceeding 
under IC 4-21.5-3.

16. 312 IAC 3-1-16  Continuances

    Subsection (a) provides that upon the motion of a party, a hearing 
may be continued by the administrative law judge and shall be continued 
upon a showing of good cause.
    Subsection (b) requires a motion to continue a hearing because of 
the absence of evidence to be made by affidavit. The affidavit must 
show the materiality of the evidence expected to be obtained; that due 
diligence has been used to obtain the evidence; and where the evidence 
may be. If the motion is based on the absence of a witness, the party's 
affidavit must show: the name and residence of the witness, if known; 
the probability of procuring the testimony in a reasonable time; that 
absence of the witness was not procured by the party nor by others at 
the request, knowledge, or consent of the party; what facts the party 
believes to be true; and that the party is unable to prove the facts by 
another witness whose testimony can be readily procured.
    Subsection (c) provides that if, upon the receipt of a continuance 
motion under subsection (b), the adverse party stipulates to the truth 
of the facts which the party seeking the continuance indicated could 
not be presented, the hearing shall not be continued.

17. 312 IAC 3-1-17  Record of Proceedings; Adjudicative Hearings 
Generally; Record of the Director for Surface Coal Mining Permits

    Subsection (a) provides that the record required to be kept by an 
administrative law judge under IC 4-21.5-3-14 commences when a 
proceeding is initiated under 312 IAC 3-1-3(a) and includes the items 
described in IC 4-21.5-3-33.
    Subsection (b) provides that in addition to subsection (a), this 
subsection applies to a proceeding concerning the approval or 
disapproval of a permit application, permit revision application, or 
permit renewal under IC 14-34-4-13. However, nothing in this subsection 
precludes the admission of testimony or exhibits that are limited to 
the explanation or analysis of materials included in the record before 
the director. Neither does it preclude the manner in which the 
materials were applied, used, or relied upon in evaluating the 
application. Upon a timely objection made before or during a hearing, 
the administrative law judge shall exclude testimony or exhibits that 
are offered but that identify or otherwise address matters that are not 
part of the record before the director under IC 14-34-4-13. The record 
before the director includes: the permit; the permit application as 
defined at 310 IAC 12-0.5-10; documentation tendered or referenced, in 
writing, by the applicant or an interested person for the purposes of 
evaluating, or documentation used by the department to evaluate, the 
application; the analyses of the department in considering the 
application, including the expertise of the department's employees and 
references used to evaluate the application; documentation received 
under IC 14-34-4, including the conduct and results of any informal 
conference or public hearing under IC 14-34-4-6; and correspondence 
received or generated by the department relative to the application, 
including letters of notification, proofs of filing newspaper 
advertisements, and timely written comments from an interested person.

18. 312 IAC 3-1-18  Petitions for Judicial Review

    Subsection (a) requires a person, who wishes to take judicial 
review of a final agency action entered under 312 IAC 3-1, to serve 
copies of a petition for judicial review upon the persons described in 
IC 4-21.5-5-8.
    Subsections (b), (c), and (d) list the names and addresses that a 
copy of the petition required under IC 4-21.5-5-8 must be served.
    Subsection (e) provides that the commission and its administrative 
law judge provide the forum for administrative review under this rule. 
Neither the commission nor the administrative law judge is a party.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are requesting 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Indiana program.

Written Comments

    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the administrative record, which we will honor 
to the extent allowable by law. There also may be circumstances in 
which we would withhold from the administrative record a respondent's 
identity, as allowable by law. If you wish us to withhold your name 
and/or address, you must state this prominently at the beginning of 
your comment. However, we will not consider anonymous comments. We will 
make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
entirety.
    Your written comments should be specific and pertain only to the 
issues proposed in this rulemaking. You should explain the reason for 
any recommended change. In the final rulemaking, we will not 
necessarily consider or include in the Administrative Record any 
comments received after the time indicated under ``DATES'' or at 
locations other than the Indianapolis Field Office.
    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: SPATS No. IN-149-FOR'' and your name and return address in your 
Internet message. If you do not receive a confirmation that we have 
received your Internet message, contact the Indianapolis Field Office 
at (317) 226-6700.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on March 
22, 2000. We will arrange the location and time of the hearing with 
those persons requesting the hearing. If you are disabled and need 
special accommodations to attend a public hearing, contact the 
individual listed under FOR FURTHER INFORMATION CONTACT. The hearing 
will not be held if no one requests an opportunity to speak at the 
public hearing.
    To assist the transcriber and ensure an accurate record, we request 
that you provide us with a written copy of your testimony. The public 
hearing will continue on the specified date until all persons scheduled 
to speak have been heard. If you are in the audience and have not been 
scheduled to speak and wish to do so, you will be allowed to speak 
after those who have been scheduled. We will end the hearing after all 
persons scheduled to speak and

[[Page 11955]]

persons present in the audience who wish to speak have been heard.

Public Meeting

    If only one person requests an opportunity to speak at a hearing, a 
public meeting, rather than a public hearing, may be held. If you wish 
to meet with us to discuss the amendment, request a meeting by 
contacting the person listed under FOR FURTHER INFORMATION CONTACT. All 
such meetings are open to the public and, if possible, we will post 
notices of meetings at the locations listed under ADDRESSES. We also 
make a written summary of each meeting a part of the Administrative 
Record.

IV. Procedural Determinations

Executive Order 12866

    The Office of Management and Budget (OMB) exempts this rule from 
review under Executive Order 12866 (Regulatory Planning and Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each program is 
drafted and promulgated by a specific State, not by OSM. Under sections 
503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 
732.15, and 732.17(h)(10), decisions on State regulatory programs and 
program amendments must be based solely on a determination of whether 
the submittal is consistent with SMCRA and its implementing Federal 
regulations and whether the other requirements of 30 CFR Parts 730, 
731, and 732 have been met.

National Environmental Policy Act

    This rule does not require an environmental impact statement since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on State regulatory program provisions do not constitute 
major Federal actions within the meaning of section 102(2)(C) of the 
National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
corresponding Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Therefore, this rule will ensure that existing requirements 
previously published by OSM will be implemented by the State. In making 
the determination as to whether this rule would have a significant 
economic impact, the Department relied upon the data and assumptions 
for the corresponding Federal regulations.

Unfunded Mandates

    OSM has determined and certifies under the Unfunded Mandates Reform 
Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of 
$100 million or more in any given year on local, state, or tribal 
governments or private entities.

List of Subjects in 30 CFR Part 914

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 29, 2000.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 00-5494 Filed 3-6-00; 8:45 am]
BILLING CODE 4310-05-P