[Federal Register Volume 67, Number 190 (Tuesday, October 1, 2002)]
[Rules and Regulations]
[Pages 61506-61512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24417]


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DEPARTMENT OF THE INTERIOR

Office of Hearings and Appeals

43 CFR Part 4

RIN 1090-AA82


Special Rules Applicable to Surface Coal Mining Hearings and 
Appeals

AGENCY: Office of Hearings and Appeals, Interior.

ACTION: Final rule.

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SUMMARY: The Office of Hearings and Appeals is publishing final rules 
to update addresses and telephone numbers and to conform cross-
references and language in existing rules with rules of the Office of 
Surface Mining Reclamation and Enforcement.

DATES: Effective Date: October 1, 2002.

FOR FURTHER INFORMATION CONTACT: Will A. Irwin, Administrative Judge, 
Interior Board of Land Appeals, 801 N. Quincy Street, Suite 300, 
Arlington, Virginia 22203. Phone 703-235-3750.

SUPPLEMENTARY INFORMATION: 

I. Background

    The rules governing procedures for hearings and appeals under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 
1201-1328 (2000), that appear in Title 43, Part 4, Subpart L, of the 
Code of Federal Regulations (CFR) have been adopted by the Office of 
Hearings and Appeals (OHA) at various times since that statute was 
enacted. Over the years some of the addresses, phone numbers, cross 
references, and language of those rules have become out of date. For 
example, the Office of Surface Mining Reclamation and Enforcement (OSM) 
adopted final rules in December 2000, 65 FR 79582 (Dec. 19, 2000) in 
Title 30 CFR. The result is that the language and section numbers in 
OHA's existing rules in 43 CFR part 4, subpart L, that refer to OSM's 
rules do not correspond to the language and section numbers in OSM's 
recent rules. The final rules OHA adopts today are intended only to 
make technical amendments to the rules in Subpart L so that they will 
conform to the rules in 30 CFR and otherwise be up to date.

Definitions

    Some rules in 43 CFR, Part 4, Subpart L, use the abbreviation 
``OSM'' for the Office of Surface Mining Reclamation and Enforcement 
and some rules use ``OSMRE.'' As OSM's definition in 30 CFR 700.5 makes 
clear, the two abbreviations have the same meaning. The definition in 
43 CFR 4.1100(e) is revised to correspond to OSM's definition.

Jurisdiction of the Board

    The cross reference in 43 CFR 4.1101(a) to the jurisdiction of the 
Board, ``as set forth in 43 CFR 4.1(4),'' is out of date. In 1982, the 
Interior Board of Surface Mining and Reclamation Appeals (IBSMA) was 
abolished and jurisdiction over appeals under SMCRA was transferred to 
the Interior Board of Land Appeals (IBLA). See 49 FR 7564-7565 (March 
1, 1984); 48 FR 22370 (May 18, 1983). IBLA's jurisdiction is now set 
forth in 4.1(b)(3), so 4.1101(a) is amended to read ``as set forth in 
43 CFR 4.1(b)(3).''
    In addition, the reference in 4.1101(a) to 43 CFR 4.21(c) is out of 
date. When 4.1101 was adopted in 1978, 4.21(c) dealt with requests for 
reconsideration. 43 CFR 4.21 was amended in 1993, however, and 4.21(c) 
became 4.21(d). 58 FR 4939, 4941 (Jan. 19, 1993). The reference in 
4.1101(a) is revised to conform to the 1993 amendment of 4.21.
    Several rules have been added to Subpart L since that subpart was 
originally promulgated in August 1978, i.e., sections 4.1350-4.1356, 
4.1360-4.1369, 4.1370-4.1377, 4.1380-4.1387, and 4.1390-4.1394. Some 
subjects covered in the rules that have been added are not specifically 
included in the list of subjects under the Board's jurisdiction in 
4.1101(a)(1)-(7). The subjects not included by the rules that have been 
added to Subpart L are therefore added to the list in 4.1101(a) as (8)-
(11) and previous sections (8) and (9) are renumbered (12) and (13).

Service

    Some of the jurisdictions, addresses, and telephone numbers of the 
offices of the Office of the Solicitor that are to receive service of a 
document under 43 CFR 4.1109(a)(1) and (a)(3) have changed. 
4.1109(a)(2) is amended to reflect these changes.

[[Page 61507]]

Suspension or Revocation of Permits Under Section 521(a)(4) of the Act

    The rules in 4.1190-4.1196 of Subpart L, adopted in 1978, provide 
procedures to review an OSM order to show cause why a permit should not 
be suspended or revoked under the rule adopted by OSM in December 1977 
for the initial regulatory program. See 30 CFR 722.16. The rules in 
Subpart L have not been revised since OSM adopted its permanent 
regulatory program rule governing such proceedings in 1979. 30 CFR 
843.13. OSM revised that rule in 1982. The rules in 4.1190-4.1196 are 
revised to adjust the timing of the filing of an OSM Director's order 
with OHA (4.1190(a)); to delete references to the initial regulatory 
program rule (4.1192 and 4.1194); to add a requirement for notice of a 
hearing contained in 30 CFR 843.13(b) (new 4.1193); and to redesignate 
former 4.1193, 4.1194, 4.1195, and 4.1196 as 4.1194, 4.1195, 4.1196, 
and 4.1197.

Applications for Review of Alleged Discriminatory Acts Under Section 
703 of the Act

    It is 30 CFR Part 865 rather than Part 830 that contains the OSM 
regulations governing review of alleged discriminatory actions. 
Therefore, the references in 4.1200 and 4.1204 to the regulations in 30 
CFR are amended.

Determination on an Application Concerning an Order of Cessation

    The telephone numbers of the OSM field offices that are to receive 
telephone notice of an application for review under 4.1266(b)(2), and 
the states served by those field offices, are updated.

Appeals to the Board From Decisions or Orders of Administrative Law 
Judges

    Since Subpart L was adopted in 1978, OSM has added Part 845 to 30 
CFR. 43 CFR 4.1270(f) is therefore amended to refer to this part as 
well as part 723.
    43 CFR 4.1276(a), which provides that a party may move for 
reconsideration of a Board decision, refers to 43 CFR 4.21(c). When 
4.21 was amended in 1993, paragraph (c) was redesignated paragraph (d). 
58 FR 4939, 4941 (Jan. 19, 1993). 4.1276(a) is therefore amended to 
refer to subsection (d).

Request for Hearing on a Preliminary Finding Concerning a Demonstrated 
Pattern of Willful Violations Under Section 510(c) of the Act

    In December 2000, OSM adopted 30 CFR 774.11, ``Post-permit issuance 
requirements for regulatory authorities and other actions based on 
ownership, control, and violation information.'' That regulation 
requires OSM to serve a ``preliminary finding of permanent permit 
ineligibility'' under section 510(c) of the Act if an applicant or 
operator controls or has controlled surface coal mining and reclamation 
operations with a demonstrated pattern of willful violations and the 
violations are of such nature and duration with such resulting 
irreparable damage to the environment as to indicate an intent not to 
comply with the Act, its implementing regulations, the regulatory 
program, or a permit. In making such a finding OSM will only consider 
control relationships and violations that would make or would have made 
the applicant or operator ineligible for a permit under 30 CFR 
773.12(a) and (b). 30 CFR 774.11(c), 65 FR 79582, 79667 (Dec. 19, 
2000). An applicant or operator may request a hearing on a preliminary 
finding of permanent permit ineligibility under 43 CFR 4.1350 through 
4.1356. 30 CFR 774.11(d).
    The OHA rules referred to in 30 CFR 774.11(d) that provide 
procedures for review of a preliminary finding under section 510(c) of 
the Act, 4.1350-4.1356, were adopted in 1987 and 1991 and their 
language does not conform to the language adopted in OSM's more recent 
rules. OHA's rules in 4.1350, 4.1351, 4.1352, and 4.1355 are therefore 
amended to do so.

Review of an OSM Notice That an Applicant Is Ineligible for a Permit

    The rules OSM adopted in December 2000 provide that OSM is to 
provide written notice of its decision that an applicant is ineligible 
for a permit under section 510(c) of the Act. The notice is to tell the 
applicant of its appeal rights under 30 CFR Part 775 and 43 CFR 4.1360 
through 4.1369. 30 CFR 773.12(e), 65 FR 79582, 79664 (Dec. 19, 2000).
    OHA's regulations in 43 CFR 4.1360-4.1369 set forth the procedures 
for administrative review of OSM decisions concerning permits. 4.1360, 
however, does not list review of an OSM decision under 30 CFR 773.12 
that an applicant is ineligible for a permit. A new subsection (e) is 
therefore added to 4.1360 to include such a decision.

Review of OSM Decisions Proposing To Suspend or Rescind or Suspending 
or Rescinding Improvidently Issued Permits

    When OSM published its regulations in December 2000, it revised 30 
CFR 773.21-773.23 concerning improvidently-issued permits. See 65 FR 
79582, 79665-79666 (Dec. 19, 2000). In doing so, OSM changed the 
subsections under which it would issue notices of proposed suspension 
or rescission and notices of suspension or rescission. Therefore, the 
cross references in 43 CFR 4.1370-4.1372 to OSM's regulations need to 
be changed to reflect the correct subsections, and 43 CFR 4.1372(a)(1), 
4.1374(a) and 4.1376(a) are amended to refer to both types of notices.

Review of OSM Decisions Concerning Ownership or Control

    In its December 2000 regulations, OSM eliminated 30 CFR 773.24, 
revised 30 CFR 773.25, and added 773.26-773.28 concerning challenges to 
an OSM ``ownership or control listing or finding.'' See 65 FR 79582, 
79666-79667 (Dec. 19, 2000). Any person who receives a written decision 
from OSM in response to a challenge to a listing or finding of 
ownership or control ``and who wishes to appeal that decision, must 
exhaust administrative remedies under the procedures at 43 CFR 4.1380 
through 4.1387 or, when a State is the regulatory authority, the State 
regulatory program counterparts, before seeking judicial review.'' 30 
CFR 773.28(e).
    These changes in OSM's rules require conforming changes in OHA's 
rules that provide procedures for review of such OSM decisions. 43 CFR 
4.1380 and 4.1381(a) are amended accordingly.

Review of OSM Determinations Under 30 CFR Part 761

    On December 17, 1999, OSM adopted rules redefining when a person 
has valid existing rights (VER) to conduct surface coal mining 
operations on lands listed in section 522(e) of the Act, 30 U.S.C. 
1272(e); establishing procedures for submitting requests for VER 
determinations; modifying the exception from the statutory limitations 
and prohibitions for existing operations; and revising the procedures 
for compatibility findings for surface coal mining operations on 
federal lands in national forests. 64 FR 70766 (Dec. 17, 1999).
    OHA's rules for obtaining review of OSM determinations under 
section 522(e) were adopted in 1987 and 1991. The existing 43 CFR 
4.1390 states that those rules ``set forth procedures for obtaining 
review pursuant to 30 CFR 761.12(h) of a determination by OSM that a 
person holds or does not hold a valid existing right.''
    The preamble to OSM's December 1999 rules explained that 30 CFR 
761.12 was reorganized and recodified. Former 761.12(h) is now 
761.16(f). 64 FR 70766, 70804 col. 2 (Dec. 17, 1999). 761.16(f) 
provides for administrative review of an OSM determination that a 
person does or does not have valid existing rights.

[[Page 61508]]

This rule therefore amends 4.1390 to change the reference from 30 CFR 
761.12 to 761.16.
    Existing Sec.  4.1390 also states that OHA's rules provide 
procedures for review of OSM determinations ``that surface coal mining 
operations did or did not exist on the date of enactment of the Act, on 
lands where operations are prohibited or limited by section 522(e) of 
the Act.''
    In December 1999, OSM explained that it removed ``the portion of 
former 30 CFR 761.12(h) that provided for administrative appeals of 
existing operation determinations':

    The exception for existing operations in 30 CFR 761.12 does not 
require any affirmative action or decision on the part of either the 
permittee or the regulatory authority. As explained in Part XVI of 
this preamble, the exception for existing operations merely allows 
an already permitted operation to continue operating within the 
permit boundaries in existence at the time that the land comes under 
the protection of section 522(e) and 30 CFR 761.11. Hence, there is 
no action or decision to appeal.

64 FR 70766, 70804, col. 2 (Dec. 17, 1999). OSM's explanation in Part 
XVI states:

    [W]hen lands covered by an approved permanent program permit 
come under the protection of 30 CFR 761.11 and section 522(e) after 
permit issuance, the permittee has the right to continue to operate 
on those lands under the exception for existing operations unless 
the regulatory authority orders the permittee to revise the permit 
to remove those lands from the permit area in accordance with the 
procedures and criteria of 30 CFR 774.13. A person who believes that 
a permit has been improperly issued because a protected feature came 
into existence before rather than after permit issuance has the 
option of either filing a timely challenge to approval of the permit 
application or submitting a complaint to the regulatory authority in 
accordance with the State program counterpart to 30 CFR 842.12 or to 
us under 30 CFR 842.12. If the permit is ultimately found to be 
defective, the regulatory authority must require that the permittee 
revise the permit in accordance with 30 CFR 774.13.

64 FR 70766, 70803 col. 1 (Dec. 17, 1999). This rule therefore amends 
4.1390 to remove the reference to existing operation determinations.
    Finally, existing Sec.  4.1390 states that the rules set forth the 
procedures ``for obtaining review pursuant to 30 CFR 761.12(h) of a 
determination by OSM * * * that surface coal mining operations may be 
permitted within the boundaries of a national forest in accordance with 
section 522(e)(2).'' This statement was adopted in error. The former 30 
CFR 761.12(h) did not refer to such determinations. Under section 
522(e)(2), it is the Secretary, not OSM, who makes a finding ``that 
there are no significant recreational, timber, economic, or other 
values which may be incompatible with such surface mining operations 
and * * *.'' See 30 CFR 761.11(b), 761.13. OSM's December 1999 rules 
make clear that this authority is reserved by the Secretary. 30 CFR 
740.4(a)(5), 745.13(p). The IBLA is delegated authority to decide 
appeals from decisions on behalf of the Secretary; it does not have 
authority to review decisions made by the Secretary. See Alamo Ranch 
Co., Inc., 135 IBLA 61, 67-68 (1996). This rule therefore amends 4.1390 
to remove the reference to compatibility determinations under 30 CFR 
761.11(b), 761.13.
    Section 4.1391(a) is revised to reflect the amendments to 4.1390.
    A VER determination may either be made independently or in 
conjunction with a decision on an application for a permit or a permit 
boundary revision. 30 CFR 716.16(b). It would not be made in connection 
with an application for a permit renewal or for the transfer, 
assignment, or sale of permit rights, nor does section 522(e) apply to 
coal exploration. 64 FR 70766, 70819 (Dec. 17, 1999). Therefore, 
4.1391(b)(1) and (2) are revised to delete references to those 
applications.
    Because one need not be a permit applicant to request a VER 
determination, 4.1394(a) is revised to refer to ``a person who 
requested the determination.'' 4.1394(b) is revised to reflect the 
scope of 4.1390, as amended.

II. Procedural Requirements

A. Review Under Procedural Statutes and Executive Orders

1. Regulatory Planning and Review (E.O. 12688)
    In accordance with the criteria in Executive Order 12866, this 
document is not a significant rule. The Office of Management and Budget 
has not reviewed this rule under Executive Order 12866.
    a. This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, 
competition, jobs, the environment, public health or safety, or other 
units of government. A cost-benefit and economic analysis is not 
required. These amended rules will have virtually no effect on the 
economy because they are simply providing updated addresses and phone 
numbers and correcting references to and quotations from other 
regulations.
    b. This rule will not create inconsistencies with or interfere with 
other agencies' actions. These rules will conform the rules in 43 CFR 
part 4, subpart L, with current information about other agencies, 
thereby making the rules consistent rather than inconsistent with 
actions that have been taken by other agencies.
    c. This rule does not alter the budgetary effects of entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. These rules have to do only with the procedures for 
hearings and appeals of OSM decisions, not with entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients, and they make no substantive changes in the procedures.
    d. This rule does not raise novel legal or policy issues. Because 
these rules only make technical, conforming changes to details such as 
addresses and phone numbers applicable to procedures for hearings and 
appeals, they raise no policy or legal issues, novel or otherwise.
2. Regulatory Flexibility Act
    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). The changes in addresses, phone numbers, citations to and 
quotations from other rules will have no effect on small entities. A 
Small Entity Compliance Guide is not required.
3. Small Business Regulatory Enforcement Fairness Act
    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act.
    a. This rule does not have an annual effect on the economy of $100 
million or more. The changes in phone numbers, addresses, citations, 
etc., made by these rules should have no effect on the economy.
    b. This rule will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions. Updating and correcting the 
information in the existing rules in 43 CFR part 4, subpart L, will 
save citizens, individual industries, and government agencies resources 
that would have been wasted utilizing the outdated information, e.g., 
phone numbers and addresses.
    c. This rule does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. The housekeeping changes in these rules will have no 
effects, adverse or beneficial, on

[[Page 61509]]

competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.
4. Unfunded Mandates Reform Act
    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    a. This rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. Small governments 
rarely request hearings or appeals under the Surface Mining Act, and 
these rules would neither uniquely nor significantly affect them 
because these rules only bring existing rules up to date by correcting 
addresses, phone numbers, etc. A statement containing the information 
required by the Unfunded Mandates Reform Act, 2 U.S.C. 1531 et seq., is 
not required.
    b. This rule does not produce an unfunded Federal mandate of $100 
million or more on State, local, or tribal governments or the private 
sector in any year, i.e., it is not a ``significant regulatory action'' 
under the Unfunded Mandates Reform Act.
5. Takings (E.O. 12630)
    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. These amendments to procedural rules have no effect on 
property rights.
6. Federalism (E.O. 13132)
    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. The only potential effect on states would be 
that ``primacy'' states, i.e., those approximately two dozen states 
with approved state programs under the Surface Mining Act, may have to 
amend some of their procedural regulations to correspond to the changes 
made in these rules, and those amendments would not be significant. A 
Federalism Assessment is not required.
7. Civil Justice Reform (E.O. 12988)
    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and does not meet the requirements of sections 3(a) and 
3(b)(2) of the Order. These rules, because they bring up to date rules 
about jurisdiction, agency addresses and phone numbers, and the 
language and citation of rules, will relieve, not burden, both 
administrative and judicial tribunals.
8. Paperwork Reduction Act
    This regulation does not require an information collection from 10 
or more parties, and a submission under the Paperwork Reduction Act is 
not required. An OMB form 83-I has not been prepared and has not been 
approved by the Office of Policy Analysis. These rules provide the 
public with updated information concerning hearings and appeals under 
the Surface Mining Act; they do not require the public to provide 
information.
9. National Environmental Policy Act
    The Department has analyzed this rule in accordance with the 
criteria of the National Environmental Policy Act of 1969 (NEPA) and 
516 DM. This rule does not constitute a major Federal action 
significantly affecting the quality of the human environment. An 
environmental impact assessment or environmental impact statement under 
NEPA is not required. Because of the strictly organizational and 
procedural contents of this rule, it is categorically excluded from 
NEPA review under 516 DM.
10. Government-to-Government Relationship With Tribes
    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, the Department 
of the Interior has evaluated potential effects of these rules on 
Federally recognized Indian tribes and has determined that there are no 
potential effects. These rules do not affect Indian trust resources; 
they provide updated information about procedures for hearings and 
appeals of decisions of the Office of Surface Mining under the Surface 
Mining Act.
11. Effects on the Nation's Energy Supply
    In accordance with Executive Order 13211, this regulation does not 
have a significant effect on the nation's energy supply, distribution, 
or use. The changes of address, telephone numbers, and cross-references 
to other regulations are simply updating of information and will not 
affect energy supply or consumption.

B. Determination of Good Cause for Immediate Effect

    The Department has determined that this rule should be effective 
immediately because it updates the Code of Federal Regulations to 
include accurate information. Delaying the effective date by 30 days as 
required by 5 U.S.C. 553(d) would mean that parties to appeals would 
not have correct information, resulting in delays and inconvenience. A 
delayed effective date would also mean that the revisions in this rule 
would not appear in the soon-to-be published annual revision of title 
43 of the Code of Federal Regulations. This would mean that for the 
next year anyone consulting title 43 Part 4 Subpart L would receive 
inaccurate information about filing appeals. For these reasons, good 
cause exists for making this rule effective immediately upon 
publication under 5 U.S.C. 553(d)(3).

C. Determination To Issue Final Rule Without Notice and Comment

    The Department has determined that the public notice and comment 
provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), do not 
apply to this rulemaking because the changes made relate solely to 
matters of agency organization, procedure, and practice. These rules 
are procedural, not substantive, and they only change addresses, phone 
numbers, cross references to other rules, and language to conform to 
language in other rules. They therefore satisfy the exemption from 
notice and comment rulemaking in 5 U.S.C. 553(b)(A).

List of Subjects in 43 CFR Part 4

    Administrative practice and procedure; Mines; Public lands; Surface 
mining.

    Dated: September 19, 2002.
P. Lynn Scarlett,
Assistant Secretary--Policy, Management and Budget.


    For the reasons set forth in the preamble, the Office of Hearings 
and Appeals amends 43 CFR part 4, subpart L, as follows:

PART 4--[AMENDED]

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

    1. The authority for 43 CFR 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. In Sec.  4.1100, revise paragraph (e) to read as follows:


Sec.  4.1100  Definitions.

* * * * *
    (e) OSM and OSMRE mean the Office of Surface Mining Reclamation and 
Enforcement, Department of the Interior.
    3. In Sec.  4.1101, revise paragraph (a) introductory text, 
redesignate

[[Page 61510]]

paragraphs (a)(8) and (a)(9) as paragraphs (a)(12) and (a)(13), and add 
paragraphs (a)(8) through (a)(11) to read as follows:


Sec.  4.1101  Jurisdiction of the Board.

    (a) The jurisdiction of the Board, as set forth in Sec.  4.1(b)(3), 
and subject to Sec. Sec.  4.21(d) and 4.5, includes the authority to 
exercise the final decisionmaking power of the Secretary under the act 
pertaining to--
* * * * *
    (8) Preliminary findings concerning a demonstrated pattern of 
willful violations under section 510(c) of the act;
    (9) Suspension or rescission of improvidently-issued permits;
    (10) Challenges to ownership or control listings or findings;
    (11) Determinations under 30 CFR part 761;
    (12) Appeals from orders or decisions of administrative law judges; 
and
    (13) All other appeals and review proceedings under the act which 
are permitted by these regulations.
* * * * *

    4. In Sec.  4.1109, revise paragraph (a)(2) to read as follows:


Sec.  4.1109  Service.

    (a)(1) * * *
    (2) The jurisdictions, addresses, and telephone numbers of the 
applicable officers of the Office of the Solicitor to be served under 
paragraph (a)(1) of this section are:
    (i) For mining operations in Alabama, Arkansas, Georgia, Illinois, 
Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, 
North Carolina, Oklahoma, Tennessee, Texas, and Virginia: Field 
Solicitor, U.S. Department of the Interior, 530 S. Gay Street, Room 
308, Knoxville, Tennessee 37902; Telephone: (865) 545-4294; FAX: (865) 
545-4314.
    (ii) For mining operations in Maryland, Massachusetts, Michigan, 
Ohio, Pennsylvania, Rhode Island, and West Virginia: Field Solicitor, 
U.S. Department of the Interior, Three Parkway Center, Suite 385, 
Pittsburgh, Pennsylvania 15220; Telephone: (412) 937-4000; FAX: (412) 
937-4003.
    (iii) For mining operations in Alaska, Colorado, Idaho, Montana, 
North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming, 
including mining operations located on Indian lands within those 
states: Regional Solicitor, Rocky Mountain Region, U.S. Department of 
the Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215; 
Telephone: (303) 231-5353; FAX: (303) 231-5363 or 231-5360.
    (iv) For mining operations in Arizona, California, and New Mexico, 
including mining operations located on Indian lands within those states 
except for the challenge of permitting decisions affecting mining 
operations located on Indian lands in those states: Regional Solicitor, 
Southwest Region, U.S. Department of the Interior, 505 Marquette 
Avenue, NW., Suite 1800, Albuquerque, NM 87102; Telephone: (505) 248-
5600; FAX: (505) 248-5623.
    (v) For the challenge of permitting decisions affecting mining 
operations located on Indian lands within Arizona, California, and New 
Mexico: Regional Solicitor, Rocky Mountain Region, U.S. Department of 
the Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215; 
Telephone: (303) 231-5353; FAX: (303) 231-5363 or 231-5360.
* * * * *

    5. In Sec.  4.1190, revise paragraph (a) to read as follows:


Sec.  4.1190  Initiation of proceedings.

    (a) A proceeding on a show cause order issued by the Director of 
OSM pursuant to section 521(a)(4) of the Act shall be initiated by the 
Director of OSM filing a copy of such an order with the Hearings 
Division, OHA, 801 N. Quincy Street, Suite 300, Arlington, VA 22203, 
promptly after the order is issued to the permittee.
* * * * *

    6. In Sec.  4.1192, revise paragraph (a) to read as follows:


Sec.  4.1192  Contents of answer.

    The permittee's answer to a show cause order shall contain a 
statement setting forth--
    (a) The reasons in detail why a pattern of violations does not 
exist or has not existed, including all reasons for contesting--
* * * * *


Sec. Sec.  4.1193-4.1196  [Redesignated]

    7. Redesignate Sec. Sec.  4.1193 through 4.1196 as Sec. Sec.  
4.1194 through 4.1197, respectively.

    8. Add a new Sec.  4.1193 to read as follows:


Sec.  4.1193  Notice of hearing.

    If a hearing on the show cause order is requested, or if no hearing 
is requested but the administrative law judge determines that a hearing 
is necessary, the administrative law judge shall give thirty days 
written notice of the date, time, and place of the hearing to the 
Director, the permittee, the State regulatory authority, if any, and 
any intervenor.

    9. In newly redesignated Sec.  4.1195, revise paragraph (a) to read 
as follows:


Sec.  4.1195  Determination by the administrative law judge.

    (a) Upon a determination by the administrative law judge that a 
pattern of violations exists or has existed, the administrative law 
judge shall order the permit either suspended or revoked. In making 
such a determination, the administrative law judge need not find that 
all the violations listed in the show cause order occurred, but only 
that sufficient violations occurred to establish a pattern.
* * * * *
    10. In Sec.  4.1200, revise paragraphs (a), (b)(2), (b)(3), and 
(b)(4) to read as follows:


Sec.  4.1200  Filing of the application for review with the Office of 
Hearings and Appeals.

    (a) Pursuant to 30 CFR 865.13, within 7 days of receipt of an 
application for review of alleged discriminatory acts, OSM shall file a 
copy of the application in the Hearings Division, OHA, 801 N. Quincy 
Street, Suite 300, Arlington, VA 22203. OSM shall also file in the 
Hearings Division, OHA, Arlington, VA, a copy of any answer submitted 
in response to the application for review.
    (b) * * *
    (1) * * *
    (2) A request is made by OSM for the scheduling of a hearing 
pursuant to 30 CFR 865.14(a);
    (3) A request is made by the applicant for the scheduling of a 
hearing pursuant to 30 CFR 865.14(a);
    (4) A request is made by the applicant for the scheduling of a 
hearing pursuant to 30 CFR 865.14(b);
* * * * *

    11. In Sec.  4.1204, revise the introductory text to read as 
follows:


Sec.  4.1204  Determination by administrative law judge.

    Upon a finding of a violation of section 703 of the act or 30 CFR 
865.11, the administrative law judge shall order the appropriate 
affirmative relief, including but not limited to--
* * * * *

    12. In Sec.  4.1266, revise the section heading and paragraph 
(b)(2) to read as follows:


Sec.  4.1266  Determination on application concerning an order of 
cessation.

* * * * *
    (b) * * *
    (2) The application shall include an affidavit stating that 
telephone notice has been given to the field office of OSM serving the 
state in which the minesite subject to the order is located. The 
telephone notice shall identify the mine, the mine operator, the date 
and number of the order from which relief is

[[Page 61511]]

requested, the name of the OSM inspector involved, and the name and 
telephone number of the applicant. OSM's field offices and their 
numbers follow:

Albuquerque Field Office (serving Arizona, California, and New Mexico) 
(505) 248-5070.
Big Stone Gap Field Office (serving Virginia) (276) 523-4303.
Birmingham Field Office (serving Alabama and Mississippi) (205) 290-
7282 (ext. 16).
Casper Field Office (serving Idaho, Montana, North Dakota, South 
Dakota, and Wyoming) (307) 261-6550.
Charleston Field Office (serving West Virginia) (304) 347-7158.
Columbus Team Office (serving Maryland, Michigan, and Ohio) (412) 937-
2153.
Harrisburg Field Office (serving Massachusetts, Pennsylvania, and Rhode 
Island) (717) 782-4036.
Knoxville Field Office (serving Georgia, Tennessee, and North Carolina) 
(865) 545-4103 (ext. 186).
Lexington Field Office (serving Kentucky) (859) 260-8402.
Mid-Continent Regional Coordinating Center (serving Iowa, Kansas, and 
Missouri) (618) 463-6460.
Olympia Office (serving Washington) (360) 753-9538.
Tulsa Field Office (serving Arkansas, Louisiana, Oklahoma, and Texas) 
(918) 581-6431 (ext. 23).
Western Regional Coordinating Center (serving Alaska, Colorado, Oregon, 
and Utah) (303) 844-1400 (ext. 1424).
* * * * *

    13. In Sec.  4.1270, revise paragraph (f) to read as follows:


Sec.  4.1270  Petition for discretionary review of a proposed civil 
penalty.

* * * * *
    (f) If the petition is granted, the rules in Sec. Sec.  4.1273 
through 4.1277 are applicable and the Board shall use the point system 
and conversion table contained in 30 CFR part 723 or 845 in 
recalculating assessments; however, the Board shall have the same 
authority to waive the civil penalty formula as that granted to 
administrative law judges in Sec.  4.1157(b)(1). If the petition is 
denied, the decision of the administrative law judge shall be final for 
the Department, subject to Sec.  4.5.

    14. In Sec.  4.1276, revise paragraph (a) to read as follows:


Sec.  4.1276  Reconsideration.

    (a) A party may move for reconsideration under Sec.  4.21(d); 
however, the motion shall be filed with the Board within 30 days of the 
date of the decision.
* * * * *

    15. Revise Sec.  4.1350 to read as follows:


Sec.  4.1350  Scope.

    These rules set forth the procedures for obtaining review of a 
preliminary finding by OSM under section 510(c) of the Act and 30 CFR 
774.11(c) of an applicant's or operator's permanent permit 
ineligibility.

    16. Revise Sec.  4.1351 to read as follows:


Sec.  4.1351  Preliminary finding by OSM.

    (a) If OSM determines that an applicant or operator controls or has 
controlled surface coal mining and reclamation operations with a 
demonstrated pattern of willful violations and the violations are of 
such nature and duration with such resulting irreparable damage to the 
environment as to indicate an intent not to comply with the Act, its 
implementing regulations, the regulatory program, or the permit, OSM 
must serve a preliminary finding of permanent permit ineligibility on 
the applicant or operator.
    (b) OSM must serve the preliminary finding by certified mail, or by 
overnight delivery service if the applicant or operator has agreed to 
bear the expense for this service. The preliminary finding must 
specifically state the violations upon which it is based.

    17. Revise Sec.  4.1352 to read as follows:


Sec.  4.1352  Who may file; where to file; when to file.

    (a) The applicant or operator may file a request for hearing on 
OSM's preliminary finding of permanent permit ineligibility.
    (b) The request for hearing must be filed with the Hearings 
Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203 
(telephone 703-235-3800), within 30 days of receipt of the preliminary 
finding by the applicant or operator.
    (c) Failure to file a timely request constitutes a waiver of the 
opportunity for a hearing before OSM makes its final finding concerning 
permanent permit ineligibility. Any untimely request will be denied.

    18. Revise Sec.  4.1355 to read as follows:


Sec.  4.1355  Burden of proof.

    OSM shall have the burden of going forward to establish a prima 
facie case and the ultimate burden of persuasion as to the existence of 
a demonstrated pattern of willful violations of such nature and 
duration with such resulting irreparable damage to the environment as 
to indicate an intent not to comply with the Act, its implementing 
regulations, the regulatory program, or the permit.

    19. In Sec.  4.1360, in paragraph (c), remove the word ``and'', 
revise paragraph (d), and add a new paragraph (e) to read as follows:


Sec.  4.1360  Scope.

* * * * *

    (d) Applications for coal exploration permits; and
    (e) Ineligibility for a permit under section 510(c) of the Act and 
30 CFR 773.12.

    20. Revise the heading for 43 CFR 4.1370-4.1377 to read:

Review of OSM Decisions Proposing To Suspend or Rescind or Suspending 
or Rescinding Improvidently Issued Permits

    21. Revise Sec.  4.1370 to read as follows:


Sec.  4.1370  Scope.

    Sections 4.1370 through 4.1377 govern the procedures for review of 
a written notice of proposed suspension or rescission of an 
improvidently issued permit issued by OSM under 30 CFR 773.22 and of a 
written notice of suspension or rescission of an improvidently issued 
permit issued by OSM under 30 CFR 773.23.

    22. In Sec.  4.1371, revise paragraph (a) to read as follows:


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

    (a) A permittee that is served with a notice of proposed suspension 
or rescission under 30 CFR 773.22 or a notice of suspension or 
rescission under 30 CFR 773.23 may file a request for review with the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior, 801 N. Quincy Street, Suite 300, Arlington, Virginia 
22203 (telephone 703-235-3800) within 30 days of service of the notice.
* * * * *

    23. In Sec.  4.1372, revise paragraphs (a)(1) and (a)(2) to read as 
follows:


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

    (a) * * *
    (1) A copy of the notice of proposed suspension or rescission or 
the notice of suspension or rescission;
    (2) Documentary proof, or, where appropriate, offers of proof, 
concerning the matters in 30 CFR 773.21(a) and (b) or 30 CFR 773.14(c) 
for a notice of proposed suspension or rescission, or 30

[[Page 61512]]

CFR 773.23(a)(1) through (a)(6) for a notice of suspension or 
rescission, showing that the person requesting review is entitled to 
administrative relief;
* * * * *

    24. In Sec.  4.1374, revise paragraph (a) to read as follows:


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 proposed suspension or 
rescission or the notice of suspension or rescission.
* * * * *

    25. In Sec.  4.1376, revise the section heading and paragraph (a) 
to read as follows:


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

    (a) Any party may file a petition for temporary relief from the 
notice of proposed suspension or rescission or the notice of suspension 
or 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.
* * * * *

    26. Revise the heading for 43 CFR 4.1380-4.1387 to read as follows:

Review of Office of Surface Mining Written Decisions Concerning 
Ownership or Control Challenges

    27. Revise Sec.  4.1380 to read as follows:


Sec.  4.1380  Scope.

    Sections 4.1380 through 4.1387 govern the procedures for review of 
a written decision issued by OSM under 30 CFR 773.28 on a challenge to 
a listing or finding of ownership or control.

    28. In Sec.  4.1381, revise paragraph (a) to read as follows:


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

    (a) Any person who receives a written decision issued by OSM under 
30 CFR 773.28 on a challenge to an ownership or control listing or 
finding may file a request for review with the Hearings Division, 
Office of Hearings and Appeals, U.S. Department of the Interior, 801 N. 
Quincy Street, Suite 300, Arlington, Virginia 22203 (telephone 703-235-
3800) within 30 days of service of the decision.
* * * * *

    29. Revise Sec.  4.1390 to read as follows:


Sec.  4.1390  Scope.

    Sections 4.1391 through 4.1394 set forth the procedures for 
obtaining review of an OSM determination under 30 CFR 761.16 that a 
person does or does not have valid existing rights.

    30. In Sec.  4.1391, revise paragraphs (a) and (b) to read as 
follows:


Sec.  4.1391  Who may file; where to file; when to file; filing of 
administrative record.

    (a) The person who requested a determination under 30 CFR 761.16 or 
any person with an interest that is or may be adversely affected by a 
determination that a person does or does not have valid existing rights 
may file a request for review of the determination with the office of 
the OSM official whose determination is being reviewed and at the same 
time shall send a copy of the request to the Interior Board of Land 
Appeals, U.S. Department of the Interior, 801 N. Quincy Street, Suite 
300, Arlington, VA 22203 (telephone 703-235-3750). OSM shall file the 
complete administrative record of the determination under review with 
the Board as soon as practicable.
    (b) OSM must provide notice of the valid existing rights 
determination to the person who requested that determination by 
certified mail, or by overnight delivery service if the person has 
agreed to bear the expense of this service.
    (1) When the determination is made independently of a decision on 
an application for a permit or for a permit boundary revision, a 
request for review shall be filed within 30 days of receipt of the 
determination by a person who has received a copy of it by certified 
mail or overnight delivery service. The request for review shall be 
filed within 30 days of the date of publication of the determination in 
a newspaper of general circulation or in the Federal Register, 
whichever is later, by any person who has not received a copy of it by 
certified mail or overnight delivery service.
    (2) When the determination is made in conjunction with a decision 
on an application for a permit or for a permit boundary revision, the 
request for review must be filed in accordance with Sec.  4.1362.
* * * * *

    31. Revise Sec.  4.1394 to read as follows:


Sec.  4.1394  Burden of proof.

    (a) If the person who requested the determination is seeking 
review, OSM shall have the burden of going forward to establish a prima 
facie case and the person who requested the determination shall have 
the ultimate burden of persuasion.
    (b) If any other person is seeking review, that person shall have 
the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion that the person who requested the 
determination does or does not have valid existing rights.

[FR Doc. 02-24417 Filed 9-30-02; 8:45 am]
BILLING CODE 4310-79-P