[Federal Register Volume 68, Number 54 (Thursday, March 20, 2003)]
[Proposed Rules]
[Pages 13657-13661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6555]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary of the Interior

43 CFR Part 4


Special Rules Applicable to Surface Coal Mining Hearings and 
Appeals

AGENCY: Office of the Secretary.

ACTION: Petition for rulemaking.

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SUMMARY: The Office of Hearings and Appeals is publishing for comment a 
petition for rulemaking received from the National Mining Association. 
The petition requests amendment of several existing rules relating to 
the burden of proof in proceedings under the Surface Mining Control and 
Reclamation Act of 1977.

DATES: You should submit your comments by May 19, 2003.

ADDRESSES: Send comments to: Director, Office of Hearings and Appeals, 
Department of the Interior, 801 N. Quincy Street, Suite 300, Arlington, 
Virginia 22203.

FOR FURTHER INFORMATION CONTACT: Will A. Irwin, Administrative Judge, 
Interior Board of Land Appeals, U.S. Department of the Interior, 801 N. 
Quincy Street, Suite 300, Arlington, Virginia 22203. Phone: (703) 235-
3750. Persons who use a telecommunications device for the deaf (TDD) 
may call the Federal Information Relay Service (FIRS) at (800) 877-
8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION: In January 2003, the National Mining 
Association (NMA) re-submitted a petition for rulemaking to the 
Director, Office of Hearings and Appeals, that it had originally 
submitted in January 1996. NMA summarized its January 1996 petition in 
an accompanying letter:

    The NMA requests amendments and revisions to the allocation of the 
burden of proof for proceedings under SMCRA [the Surface Mining Control 
and Reclamation Act of 1977, 30 U.S.C. 1201 et seq.] governed by Sec.  
7(c) of the Administrative Procedure Act (APA), 5 U.S.C. Sec.  556(d), 
in view of the decision of the United States Supreme Court in Director, 
Office of Workers' Compensation Programs, Department of Labor v. 
Greenwich Collieries, 114 S.Ct. 2251 (1994). In that decision, the 
Supreme Court clarified that under Sec.  7(c) of the APA, the burden of 
proof placed upon the proponent of a rule or order means not merely the 
burden of production, but also the burden of persuasion. Accordingly, 
when the Office of Surface Mining is the proponent of an order, e.g., 
notice of violation, cessation order, order to show cause, the burden 
of proof remains with the agency.

    At the time the NMA originally filed its petition, it was the 
plaintiff in a challenge to several Departmental rules, including those 
allocating the burden of proof in 43 CFR 4.1374 and 4.1384. Although 
NMA did not include those rules in its petition, the then-Director of 
OHA replied that ``it would be prudent to await the outcome of that 
litigation before considering whether to proceed with your suggested 
rulemaking.''
    That litigation was concluded in June 2001 with the decision of the 
U.S. Court of Appeals for the District of Columbia Circuit in National 
Mining Association v. United States Department of the Interior, 251 
F.3d 1007 (D.C. Cir. 2001). In that decision the Court concluded that 
OHA ``did not improperly shift the burden of proof'' in Sec. Sec.  
4.1374 and 4.1384. Id. at 1013-14.
    In its January 2003 re-submission, NMA states:

    Unlike that case, the regulations at issue in NMA's petition for 
rulemaking are governed by different sections of SMCRA that do not 
expressly allocate the burden of proof to the operator, and in some 
cases expressly allocate it to whomever is challenging the permit.

    NMA's petition argues OHA must amend its regulations to allocate 
the ultimate burden of persuasion to the Office of Surface Mining in 
proceedings to review assessment of civil penalties (Sec.  4.1155); 
proceedings to review notices of violation or orders of cessation 
(Sec.  4.1171); proceedings for suspension or revocation of permits 
(Sec.  4.1194; formerly Sec.  4.1193, see 67 FR 61506, 61507, 61510, 
Oct. 1, 2002); proceedings to review individual civil penalty

[[Page 13658]]

assessments (Sec.  4.1307); and proceedings to review permit revisions 
ordered by OSM (Sec.  4.1366(b)).
    Both the APA and SMCRA provide for petitions for rulemaking. 5 
U.S.C. 553(e); 30 U.S.C. 1211(g). The Department has implemented these 
provisions in 43 CFR part 14 and 30 CFR 700.12. 43 CFR 4.1 provides 
that OHA is the authorized representative of the Secretary for the 
purpose of hearing, considering, and determining matters within the 
jurisdiction of the Department involving hearings, appeals, and other 
review functions of the Secretary. 30 CFR 700.4(e) provides that the 
Director of OHA is responsible for the administration of administrative 
hearings and appeals required or authorized by SMCRA pursuant to the 
regulations in 43 CFR part 4.
    Accordingly, OHA requests comments on the following petition.

    Dated: March 6, 2003.
Robert S. More,
Director, Office of Hearings and Appeals.

Before the Office of Hearings and Appeals United States Department of 
Interior; Petition for Rulemaking Under the Surface Mining Control and 
Reclamation Act of 1977; Submitted by: The National Mining Association

I. Introduction

    Pursuant to the Surface Mining Control and Reclamation Act of 
1977 (SMCRA, or ``the Act''), 30 U.S.C. Sec.  1211(g), its 
implementing regulations, 30 CFR 700.12, and the Administrative 
Procedure Act, 5 U.S.C. 553(e), the National Mining Association 
(NMA) petitions the Director of the Office of Hearings and Appeals 
(OHA) for certain amendments and modifications to 43 CFR 4.1155, 
4.1171, 4.1194,\1\ 4.1307, and 4.1366(b). Pursuant to 43 CFR 4.1 the 
Office of Hearings and Appeals is the authorized representative of 
the Secretary for the consideration and determination of matters 
within the jurisdiction of the Department involving hearings and 
appeals and other review functions, including the rules establishing 
the procedure governing such hearings and appeals. This petition 
involves the rules governing procedures for the hearing of appeals 
related to matters arising under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq. (1988).
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    \1\ Formerly 43 CFR 4.1193 (See 67 FR 61510 (October 1, 2002)).
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II. Petitioner

    The National Mining Association (NMA) is a trade association 
whose members include producers of most of the nation's coal, metals 
and industrial and agricultural minerals; manufacturers of mining 
and mineral processing machinery, equipment and supplies; state 
mining associations; and engineering and consulting firms and 
financial institutions that serve the mining industry. The coal-
producing members of NMA conduct surface coal mining operations 
pursuant to permits under SMCRA in almost every coal-producing state 
throughout the country, and are therefore directly impacted by these 
proposed amendments and modifications to OSM's regulations.

III. Proposed Amendments and Modifications

    Petitioner requests amendments and modifications to the burden 
of proof requirements for proceedings governed by Sec.  7(c) of the 
Administrative Procedure Act (APA), 5 U.S.C. 556(d) (1988).
    The APA establishes the framework for those proceedings required 
by statute to be determined on the record after an opportunity for a 
hearing. 5 U.S.C. 554. This procedural framework indicates that 
``[e]xcept as otherwise provided by statute, the proponent of a rule 
or order has the burden of proof.'' 5 U.S.C. 556(d). A controlling 
Supreme Court decision clarifies that the burden of proof means not 
merely the burden of production, but also the burden of persuasion. 
Director, Office of Workers' Compensation Programs, Department of 
Labor v. Greenwich Collieries, 512 U.S. 267, 276, 279 (1994).
    There are various proceedings under SMCRA which the statute 
requires to be administered on the record after an opportunity for a 
hearing. In many of these proceedings, the existing OHA rules 
improperly relieve the proponent, OSM, of the burden of persuasion 
under the APA, even though such procedure is not ``otherwise 
provided by [SMCRA].'' Accordingly, in view of the Supreme Court's 
recent pronouncement in Greenwich Collieries on the meaning of the 
``burden of proof'' in Sec.  556(d) of the APA, the Department must 
initiate a rulemaking to revise OHA's regulations as presented 
below.

A. Amend Sec.  4.1155 to Read as Follows:


Sec.  4.1155  Burden of Proof in civil penalty proceedings.

    In civil penalty proceedings, OSM shall have both the burden of 
going forward to establish a prima facie case and the ultimate 
burden of persuasion as to the fact of the violation and the amount 
of the civil penalty.

B. Amend Sec.  4.1171 to Read as Follows:


Sec.  4.1171  Burden of proof in review of section 521 notices or 
orders.

    In review of section 521 notices of violation or orders of 
cessation or the modification, vacation, or termination thereof, 
including expedited review under Sec.  4.1180, OSM shall have both 
the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion as to the validity of the notice, 
order, or modification, vacation, or termination thereof.
    Any person other than the permittee-applicant who contests the 
modification, vacation, or termination of notices of violation or 
orders of cessation shall have both the burden of going forward to 
establish a prima facie case and the ultimate burden of persuasion.

C. Amend Sec.  4.1194 to Read as Follows:


Sec.  4.1194  Burden of proof in suspension or revocation proceedings.

    In proceedings to suspend or revoke a permit, OSM shall have 
both the burden of going forward to establish a prima facie case and 
the ultimate burden of persuasion for suspension or revocation of 
the permit.
D. Amend Sec.  4.1307 to Read as Follows:


Sec.  4.1307  Elements; burden of proof.

    (a) OSM shall have the burden of going forward with evidence to 
establish a prima facie case and the ultimate burden of persuasion 
that:

    (1) A corporate permittee either violated a condition of a 
permit or failed or refused to comply with an order issued under 
Sec.  521 of the Act or an order incorporated in a final decision by 
the Secretary under the Act (except an order incorporated in a 
decision issued under sections 518(b) or 703 of the Act or 
implementing regulations), unless the fact of violation or failure 
or refusal to comply with an order has been upheld in a final 
decision in a proceeding under Sec.  4.1150 through Sec.  4.1158, 
Sec.  4.1160 through Sec.  4.1171, or Sec.  4.1180 through Sec.  
4.1187, and Sec.  4.1270 or Sec.  4.1271 of this part, and the 
individual is one against whom the doctrine of collateral estoppel 
may be applied to preclude relitigation of fact issues;
    (2) The individual, at the time of the violation, failure or 
refusal, was a director, officer, or agent of the corporation; and
    (3) The individual willfully and knowingly authorized, ordered, 
or carried out the corporate permittee's violation or failure or 
refusal to comply.
    Delete existing paragraph ``(b),'' redesignate paragraph ``(c)'' 
as paragraph ``(b),'' and revise as follows:
    (b) OSM shall have the burden of going forward to establish a 
prima facie case and the ultimate burden of persuasion as to the 
amount of the penalty.
E. Amend Sec.  4.1366(b) to Read as Follows:


Sec.  4.1366  Burdens of proof.

* * * * *
    (b) In a proceeding to review a permit revision ordered by 
OSMRE, OSMRE shall have the burden of going forward to establish a 
prima facie case and the ultimate burden of persuasion that the 
permit should be revised.
* * * * *

IV. Statement of Facts and Law Supporting the Amendment and 
Modification of Existing Federal Enforcement Regulations

A. Background

    Since the passage of the Administrative Procedure Act (APA) in 
1946, 5 U.S.C. 551, et seq., various views emerged about the meaning 
of ``burden of proof'' as used in Sec.  7(c) of the APA. Section 
7(c) of the APA states that:
    Except as otherwise provided by statute, the proponent of a rule 
or order has the burden of proof.

[[Page 13659]]

    5 U.S.C. 556(d).
    OHA interpreted the term ``burden of proof'' to mean the 
``burden of going forward to establish a prima facie case.'' In 
adopting this interpretation, OHA relied primarily on a supplemental 
opinion in a single case holding that the ``burden of proof'' in 
Sec.  7(c) of the APA is the burden of going forward with proof, and 
not the ultimate burden of persuasion. 43 FR 34381 (August 3, 1978), 
quoting Environmental Defense Fund, Inc. v. EPA, 548 F.2d 998 (D.C. 
Cir. 1976).
    However, this interpretation by OHA has proven to be incorrect 
by the U.S. Supreme Court's decision in Director, Office of Workers' 
Compensation Programs, Department of Labor v. Greenwich Collieries, 
512 U.S. 267, 276 (1994). That case involved the use of the 
Department of Labor's ``true doubt'' rule as it applied to 
adjudications under the Black Lung Benefits Act (BLBA), 83 Stat. 
792, as amended, 30 U.S.C. 901 et seq. (1988), and the Longshore and 
Harbor Workers' Compensation Act (LHWCA), 44 Stat. 1424, as amended, 
33 U.S.C. 901, et seq. (1984). The ``true doubt'' rule allowed the 
benefit claimant to prevail when the evidence was equally balanced, 
or in equipoise. Thus, the rule essentially placed the burden of 
persuasion upon the party opposing the benefits instead of the 
proponent of the rule, the benefit claimant. In determining whether 
or not the ``true doubt'' rule violates the APA, the Court 
determined first, whether the burden of proof established in Sec.  
7(c) applies to adjudications under the LHWCA and the BLBA, and 
second, the meaning of the term ``burden of proof.''
    In holding that the APA was applicable to hearings under the 
LHWCA and BLBA (and that these statutes do not ``provide 
otherwise''), the Supreme Court noted that it does not lightly 
presume exemptions from the APA. 512 U.S. at 271, citing Brownwell 
v. Tom We Shung, 352 U.S. 180, 185 (1956). And, although the LHWCA 
provides that the agency's hearings ``shall not be bound by common 
law or statutory rules of evidence, or by technical or formal rules 
of procedure * * *'', 33 U.S.C. 923(a), the Court found this 
provision insufficient to exempt the LHWCA from Sec.  7(c) of the 
APA. Id; See also Maher Terminals Inc. v. Director, Office of 
Workers' Compensation Programs, United States Department of Labor, 
992 F.2d 1277, 1281 n.3 (3rd Cir. 1993) (holding that Sec.  12 of 
the APA, 5 U.S.C. 559, allows only express statutory language to 
supersede the APA), aff'd, 512 U.S. 267 (1994).
    With regard to the meaning of the term ``burden of proof,'' the 
Court, after a lengthy discussion of the APA and its legislative 
history, held that: ``These principles lead us to conclude that the 
drafters of [Sec.  7(c) of] the APA used the term `burden of proof' 
to mean the burden of persuasion.'' Id. at 276. In other words, when 
an agency is a proponent of a rule or order, the burden of proof 
referred to in Sec.  7(c) of the APA means the burden of going 
forward to establish a prima facie case and the burden of 
persuasion. Id. at 279. This holding by the Court requires that in 
situations governed by the APA where OSM is the proponent of a rule 
or order, the agency has both the burden of going forward to 
establish a prima facie case and the ultimate burden of persuasion.
    The Senate Committee report on the APA explains that:
    Except as applicants for a license or other privilege may be 
required to come forward with a prima facie showing, no agency is 
entitled to presume that the conduct of any person or status of any 
enterprise is unlawful or improper.

S. Rep. No. 752, 79th Cong., 1st Sess. 22 (1945), reprinted in S. 
Doc. 248 at 208; Accord, H.R. Rep. 1980, 79th Cong., 2d Sess. 34 
(1946), reprinted in S. Doc. 248 at 270.

    As the Court in Greenwich Collieries held:

That Congress intended to impose a burden of production does not 
mean that Congress did not also intend to impose a burden of 
persuasion. Moreover, these passages are subject to a natural 
interpretation compatible with congressional intent to impose a 
burden of persuasion on the party seeking an order.

512 U.S. 267, 279 (1994).

    The Court in Greenwich Collieries was not oblivious to the 
repercussions of their holding, nor were they unaware of their 
previous statements on this issue. The Court noted that ``We 
recognize that we have previously asserted the contrary conclusion 
as to the meaning of burden of proof in Sec.  7(c) of the APA.'' Id. 
at 276. However, the Court also noted that the APA was a statute 
designed ``to introduce greater uniformity of procedure and 
standardization of administrative practice among the diverse 
agencies whose customs had departed widely from each other.'' Id. at 
280-281, (quoting Wong Yang Sung v. McGrath, 339 U.S. 33, 41 
(1950)). The Court's opinion manifests an appreciation for the 
situation that many administrative agencies, including OHA, find 
themselves in today. That is, when the burden of proof was thought 
to mean only the burden of going forward to establish a prima facie 
case, it left each agency free to decide who shall bear the ultimate 
burden of persuasion. Greenwich Collieries at 281. Such a chaotic 
and arbitrary system is exactly what Congress was trying to prevent 
in establishing the uniform procedures under the APA. That is why, 
in the words of the Supreme Court, ``[Agencies] cannot allocate the 
burden of persuasion in a manner that conflicts with the APA.'' Id.
    Moreover, the Court expressly rejected the analysis of EDF v. 
EPA regarding the legislative history of Sec.  7(c) of the APA, 
which OHA has relied upon in shifting the burden of persuasion to 
the regulated party in several of its regulations. After noting the 
Department of Labor's reliance on NLRB v. Transportation Management, 
462 U.S. 393 (1983), and on Judge Leventhal's analysis in the EDF v. 
EPA case, the Court held that ``We find this legislative history 
unavailing.'' Greenwich Collieries at 278.
    In those proceedings where SMCRA does not expressly \2\ provide 
a burden of proof distinct from that set forth in the APA, OHA has 
improperly relieved OSM of the burden of persuasion when OSM is the 
proponent of a rule or order. This is in direct conflict with 
Greenwich Collieries, which states that ``The Department cannot 
allocate the burden of persuasion in a manner that conflicts with 
the APA.'' 512 U.S. at 281. Since the ultimate burden of persuasion 
under Sec.  7(c) of the APA requires the agency as a proponent of a 
rule or order to prove its case by a preponderance of the evidence, 
Steadman v. SEC, 450 U.S. 91 (1981), OHA must revise its regulations 
concerning the burden of proof to require OSM, as the proponent of a 
rule or order, to prove its case by a preponderance of the evidence.
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    \2\ See Maher Terminals, 992 F.2d 1277, 1281 n.3 (3rd Cir. 
1993), aff'd, 512 U.S. 267.
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B. Administrative History

1. Office of Hearings and Appeals

    Commenters have recommended changes in the burdens of proof 
assigned in OHA regulations since the first rules were published in 
1978. These early comments objected to inconsistencies between the 
burden of proof allocation in Sec.  7(c) of the APA, 5 U.S.C. 
556(d), and 43 CFR 4.1171 and 4.1194 which assign the ultimate 
burden of persuasion to the applicant seeking review of enforcement 
actions. OHA, however, refused to place the ultimate burden of 
persuasion in these regulations on the agency. In response to 
recommended changes in Sec.  4.1171, OHA stated that:

    * * * The comment was rejected. Section 556(d) of the APA * * * 
was analyzed by Judge Leventhal in his supplemental opinion on 
petition for rehearing in Environmental Defense Fund v. EPA, 548 
F.2d 998, 1012 (D.C. Cir. 1976). He concluded at 1013 that the 
burden of proof referred to in section 556 ``is the burden of going 
forward with proof, and not the ultimate burden of persuasion.'' In 
addition, the legislative history clearly states that an applicant 
for review has the ultimate burden of proof in proceedings to review 
notices and orders. S. Rep. No. 128, 95th Cong. 1st Sess. 93 (1977).

43 FR 34381 (August 3, 1978).

    The Supreme Court decision in Greenwich Collieries now provides 
a clear statement of law which requires OHA to revisit and revise 
these regulations. The two primary justifications that OHA has used 
in the past to shift the burden of persuasion from the agency to the 
permittee has been the EDF v. EPA case, quoted supra, and the 
argument that SMCRA's legislative history supports this result. 
However, the central holding of the EDF v. EPA case, that the burden 
of proof in Sec.  7(c) of the APA means only the burden of going 
forward with a prima facie case, was expressly rejected in Greenwich 
Collieries. 512 U.S. at 279. This rationale, therefore, can no 
longer be accepted.
    The second rationale, OHA's reliance on SMCRA's ``legislative 
history,'' is also unavailing. First, the isolated passage OHA 
relied upon conflicts with the language of SMCRA. In this case, 
SMCRA requires compliance with Sec.  7(c) of the APA because it does 
not provide for a distinct burden of proof. Moreover, in many 
instances the statute expressly cross-references the APA. As the 
Supreme Court has made very clear, legislative history may not be 
used to override the plain language of a statute. Ratzlaf v. United 
States, 114 S.Ct. 655, 662 (1994) (One does not resort to 
legislative

[[Page 13660]]

history to cloud a statutory text that is clear); Davis v. Michigan 
Dept. of Treasury, 489 U.S. 803, 809 (1989) (legislative history is 
irrelevant to the interpretation of an unambiguous statute); 
Immigration and Naturalization Service v. Cardoza-Fonsecca, 480 U.S. 
421, 432 (1987) (when the plain language appears to settle the 
question, the strong presumption is that Congress expresses its 
intent through the language it chooses).
    Second, the legislative history that the agency relied upon 
appears in only the Senate committee's report on the bill. It is 
nowhere to be found in either the House or the conference report. If 
this were a proper interpretation, it would have been agreed to by 
both the House and Senate conferees and included in their report. In 
any event, the single passage in the Senate report is most likely 
based upon the same ambiguity the Supreme Court notes in Greenwich 
Collieries that has led to the misapprehension that the APA burden 
of proof meant only the burden of production. 512 U.S. at 276. 
Immediately preceding the SMCRA legislative history discussion on 
the burden of proof is the clear statement that hearings of record 
under SMCRA are ``subject to the Administrative Procedure Act.'' S. 
Rep. No. 128 at 93. In short, this single isolated passage in the 
Senate report cannot carry the day in the face of the statutory 
language of SMCRA and the APA.\3\
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    \3\ As the Third Circuit noted in Maher Terminals, only as 
express statutory provision may override the standards of the APA; 
and legislative history, longstanding use of a rule, judicial 
acceptance of the rule, or Congressional inaction do not constitute 
an express statutory provision having the authority to supercede the 
APA. 992 F.2d 1277, 1281 n.3 (3rd Cir. 1993), aff'd, 512 U.S. 267.
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    More recently, OSM has acknowledged the changes in burden of 
proof requirements that resulted from Greenwich Collieries. The 
agency stated:

* * *the Court held that, under that APA provision [Sec.  7(c)], the 
proponent of an order has the burden of persuasion, not just the 
burden of production (or the burden of going forward with the 
evidence). [512 U.S. 267].

60 FR 16740 (March 31, 1995).

    Not only did OSM acknowledge that the agency bears the ultimate 
burden of persuasion in cases governed by Sec.  7(c) of the APA, but 
the agency also bears the burden of going forward with the evidence 
(the burden of production).

2. Other Agencies

    While OHA attempts to place the ultimate burden of persuasion on 
parties other than OSM, other agencies have followed a more logical 
approach. For example, the Federal Mine Safety and Health Review 
Commission (FMSHRC) also has promulgated regulations that place the 
burden of proof on the proponent of an order. 29 CFR 2700.63(b) 
(1994). In cases before the Commission's ALJs, it is clear that when 
an operator avails itself of statutory rights to a formal hearing to 
contest a citation, the government shoulders the ultimate burden of 
persuasion as to both the fact and the seriousness of the violation. 
National Independent Coal Operators' Association et al. v. Kleppe, 
Secretary of the Interior, 423 U.S. 388, 397 (1976) (holding that 
under the predecessor Coal Mine Safety and Health Act, when a 
hearing is requested, the burden of proof remains with the 
Secretary); Secretary of Labor, Mine Safety and Health 
Administration (MSHA) v. Garden Creek Pocahontas Company, 11 FMSHRC 
2148, 2152 (November 21, 1989) (holding that the Mine Act imposes on 
the Secretary the burden of proving the violation the Secretary 
alleges by a preponderance of the evidence); Secretary of Labor 
(MSHA) v. Consolidation Coal Company, 11 FMSHRC 966, 973 (June 27, 
1989) (holding that the Mine Act imposes on the Secretary the burden 
of proving a violation alleged by a preponderance of the evidence in 
a civil penalty proceeding).
    Numerous decisions from the Courts of Appeals have made it clear 
that in proceedings governed by the APA's Sec.  7(c), the government 
must bear the burden of proof when it is the proponent of a rule or 
order. Kirby v. Shaw, 358 F.2d 446, 449 (9th Cir. 1966) (holding 
that in a formal hearing under the APA, the burden rested on the 
Post Office Department as the proponent of the order denying the use 
of the mails); Twigger v. Schultz, 484 F.2d 856, 862 (3rd Cir. 1973) 
(holding that in license suspension proceeding, the Secretary of the 
Treasury, as proponent of suspension order, had burden of proof 
under 5 U.S.C. 556(d)); Rice v. National Transportation Safety 
Board, 745 F.2d 1037, 1039 (6th Cir. 1984) (holding that the burden 
of proof in a proceeding to suspend pilot's license is upon the 
agency, rather than upon the pilot).
    As these cases demonstrate, when agencies are the proponents of 
orders in proceedings on the record, they are expected to carry 
their burden by a preponderance of the evidence. The Supreme Court 
has now made this proposition clear in the recent Greenwich 
Collieries decision.

C. The Rules OHA Must Revise To Place the Ultimate Burden of Persuasion 
on the Agency Where the Agency is the Proponent of a Rule or Order 
Governed by Sec.  556(d) of the APA

1. Sec.  4.1155 Burdens of Proof in Civil Penalty Proceedings

    This regulation divides the burden of proof between OSM and the 
petitioner regarding the fact of the violation. 43 CFR 4.1155 
(1994). Under the existing rule, OSM is charged with the burden of 
going forward to establish a prima facie case, and the person who 
petitioned for review is improperly assigned the ultimate burden of 
persuasion. Civil penalty proceedings are governed by Sec.  518 of 
the Act, which provides that:

    A civil penalty shall be assessed by the Secretary only after 
the person charged with a violation described under subsection (a) 
of this section has been given an opportunity for a public hearing * 
* * Any hearing under this section shall be of record and shall be 
subject to section 554 of title 5 of the United States Code. 
(emphasis added)

30 U.S.C. 1268(b).
    Section 554 of the APA provides in relevant part:
    The agency shall give all interested parties opportunity for--
    (1) * * *
    (2) * * * hearing and decision on notice and in accordance with 
sections 556 and 557 of this title.

5 U.S.C. 554(c).

    Since Sec.  554 of the APA requires the agency to comply with 
Sec.  556 of the APA, the proponent of the rule or order must bear 
the burden of proof unless otherwise provided by statute. 5 U.S.C. 
556(d). In cases of civil penalties, the agency is the proponent of 
the rule or order. See Merrit v. U.S., 960 F.2d 15 (2nd Cir. 1992) 
(stating that the Shipping Act of 1984 allocates burden of proof 
according to APA Sec.  556(d) and that the Federal Maritime 
Commission was proponent of order assessing fines for violation of 
that Act); and Hazardous Waste Treatment Council v. EPA, 886 F.2d 
355, 367 (D.C. Cir. 1989) (holding that EPA administrator bears 
burden of proof in APA Sec.  554 hearing to review agency compliance 
order), cert. denied, 498 U.S. 849 (1989). In a case involving civil 
penalty proceedings conducted in accordance with 43 CFR Sec.  
4.1155, there can be no doubt that OSM, in seeking to charge a 
violation of SMCRA, is the proponent of the order, and therefore 
must carry both the burden of production and the burden of 
persuasion.
    Moreover, the statute does not ``provide otherwise'' for a 
different party to bear the burden of proof, other than the agency. 
To the contrary, it expressly references the APA and further 
requires the Secretary to ``make findings of fact, and * * * issue a 
written decision as to the occurrence of the violation and the 
amount of the penalty which is warranted * * * (emphasis added) 30 
U.S.C. Sec.  1268(b). Nowhere in that section did Congress manifest 
an intent to either (1) place the ultimate burden of persuasion on 
the petitioner as to his innocence, or (2) provide differing burdens 
for the fact of the violation and the amount of the penalty. It is 
clear that Congress intended that the Secretary bear the burden of 
proof, and that the fact of the violation and the amount of the 
penalty be proven by the same party. Therefore, in light of the 
decision in Greenwich Collieries, 43 CFR 4.1155 must be amended to 
place the ultimate burden of persuasion on the agency for both the 
fact of the violation and the amount of the penalty.

2. Review of Section 521 Notices or Orders--Sec.  4.1171

    This regulation also divides the burden of proof between the 
petitioner and the agency. The applicant for review is improperly 
charged with the burden of persuasion in reviewing Sec.  521 notices 
of violation or orders of cessation. This regulation was issued 
pursuant to SMCRA Sec.  525, 30 U.S.C. 1275, titled ``Review by the 
Secretary.'' Section 525(a)(1) provides a permittee with an 
opportunity to request review of the notice or order by the 
Secretary, and requires the Secretary to cause ``such investigation 
to be made as he deems appropriate. Such investigation shall provide 
an opportunity for a public hearing * * *'' Section 525(a)(2) 
further dictates that ``Any such hearing shall be of record and 
shall be subject to section 554 of title 5 of the United States 
Code.''
    Read together, subsections (a)(1) and (a)(2) of Sec.  525 
clearly require the Secretary, as the

[[Page 13661]]

proponent of the original notice or order, to conduct a hearing 
pursuant to APA Sec.  554 upon the request of the permittee. 
Moreover, Sec.  525 of the Act does not ``provide otherwise'' for 
the burden of proof. In fact, it expressly adopts, by cross-
reference, the APA standard. Therefore, since the proponent must 
have the ultimate burden of persuasion, OHA must modify 43 CFR 
4.1171 to be consistent with federal law and the Greenwich 
Collieries case.

3. Permit Suspension or Revocation Proceedings--Sec.  4.1194

    This regulation improperly places the ultimate burden of 
persuasion on the permittee in proceedings to suspend or revoke a 
permit that has previously been approved. OSM merely bears the 
burden of going forward with a prima facie case for suspension or 
revocation of the permit. 43 CFR 4.1194. The allocation of the 
burden of proof for this regulation must be amended to place both 
the burden of going forward with a prima facie case and the ultimate 
burden of persuasion on the agency. See, e.g. Roach v. National 
Transportation Safety Board, 804 F.2d 1147, 1159 (10th Cir. 1986) 
(holding that in a proceeding to suspend commercial pilot's license, 
the burden of proof always remained with the Administrator), cert. 
denied, 486 U.S. 1006.
    Section 525(d) of SMCRA governs hearings held following the 
issuance of an order under Sec.  521(a)(4) to show cause why a 
permit should not be suspended or revoked. Section 525(d) 
specifically requires the Secretary to ``hold a public hearing * * * 
[and that] any hearing shall be of record and shall be subject to 
Sec.  554 of title 5 of the United States Code.'' 30 U.S.C. 1275(d). 
Section 525(d) does not provide a burden of proof distinct from that 
in the APA, but expressly incorporates the APA as the governing 
procedure. Since OSM is the proponent of the order to show cause, it 
must bear the burden of presenting a prima facie case and proving it 
by a preponderance of the evidence. \4\
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    \4\ In additioin to properly allocating the burden of proof to 
OSM in review of suspension or revocation proceedings, this 
modification to 43 CFR Sec.  4,1194 would correct an inconsistency 
with 43 CFR Sec.  4.1355. In Sec.  4.1355, OHA correctly allocated 
to OSM both the burden of going forward with a prima facie case and 
the ultimate burden of persuasion as to the existence of a 
demonstrated pattern of willful violations.
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4. Petitions for Review of Proposed Individual Penalty Assessments 
Under Sec.  518(f) of the Act--Sec.  4.1307

    This regulation inappropriately requires ``the individual'' to 
carry the burden of proof on the issues of (1) whether the 
individual at the time of the violation, failure, or refusal was a 
director or officer of the corporation; and (2) whether the 
individual violated a condition of a permit or failed or refused to 
comply with an order issued under Sec.  521 of the Act or an order 
incorporated in a final decision by the Secretary under the Act. 43 
CFR 1307(b) (1994). This regulation was issued pursuant to Sec.  
518(f) of the Act.
    Section 518(b) of the Act expressly provides that any hearings 
arising under Sec.  518 are to be governed by Sec.  554 of the APA. 
The assignment of the burden of proof by the agency to the 
individual by this regulation is improper and inconsistent with 
SMCRA and the APA. A defendant's status as a corporate officer or 
director and the fact of the violation are both necessary elements 
to impose the civil penalties called for in Sec.  518(f) of the Act. 
Therefore, the agency must amend 43 CFR Sec.  4.1307 so that the 
proponent of the notice or order, the agency, has the ultimate 
burden of persuasion on all of these critical elements.

5. Request for Review of Approval or Disapproval of Permit 
Revisions--Sec.  4.1366(b)

    Section 4.1366(b) improperly requires the permittee to carry the 
ultimate burden of persuasion that a revision of their permit 
ordered by OSM is not justified. While a new permit applicant may 
bear the burden of persuasion that he has complied with all of the 
permitting requirements, 30 U.S.C. 1260(a); 43 CFR 4.1366(a)(1) 
(1994); see also Greenwich Collieries at 280, (holding that 
applicants for statutory benefits bear ultimate burden of proof on 
entitlement thereto); United States Steel Corp. v. Train, 556 F.2d 
822, 834, (7th Cir. 1977) (holding that where law prohibits conduct 
for which applicant seeks a permit, unless applicant receives 
permit, applicant is proponent); the agency becomes the proponent 
once the applicant becomes a permittee and the agency is trying to 
change the status quo. Roach v. National Transportation Safety 
Board, 804 F.2d 1147, 1159 (10th Cir. 1986) (holding that in a 
proceeding to suspend a commercial pilot's license, the burden of 
proof always remained with the Administrator), cert. denied, 486 
U.S. 1006 (1988).
    Pursuant to Sec.  511(c), 30 U.S.C. 1261(c), the regulatory 
authority may require reasonable revisions provided that such 
revision or modification shall be based upon a written finding and 
subject to notice and hearing requirements. Section 511(c) of SMCRA 
does not provide for a burden of proof different than that 
established under Sec.  7(c) of the APA. Moreover, as a general 
matter, OSM's rules provide that administrative hearings under 
Federal programs for such permit revisions ``shall be of record and 
subject to 5 U.S.C. 554 * * *'' 30 CFR 775.11(c) (1994). 
Accordingly, when the regulatory authority orders the permittee to 
revise its permit, the regulatory authority is the proponent of the 
order, and thus bears the burden of proof.
    Since the burden of proof carried by the proponent of a rule or 
order has now been settled to mean the burden of persuasion, OHA 
must amend 43 CFR 4.1366(b) to place the ultimate burden of 
persuasion on the agency when the agency seeks to revise a permit.

V. Conclusion

    The requested amendments and modifications to OHA's burden of 
proof requirements in situations where the agency is the proponent 
of the rule or order (and the Act does not provide for a different 
burden of proof) will conform the agency's regulatory review 
procedures to the plain language of the Act, Congressional intent, 
and the controlling Supreme Court decision in Greenwich Collieries. 
Moreover, these changes will correct several flaws in OSM's current 
approach to adjudicatory proceedings and will provide for a more 
consistent and equitable system of jurisprudence. Under OHA's 
current regulations, OSM may essentially assess penalties, revise or 
revoke valid permits, and/or have their notices of violation or 
cessation orders affirmed without proving their case by a 
preponderance of the evidence. As the D.C. Circuit noted:

    * * * in American law a preponderance of the evidence is rock 
bottom at the fact-finding level of civil litigation. Nowhere in our 
jurisprudence have we discerned acceptance of a standard of proof 
tolerating ``something less than the weight of the evidence.'' * * * 
the bare minimum for a finding of misconduct is the greater 
convincing power of the evidence. That the proceeding is 
administrative rather than judicial does not diminish this wholesome 
demand * * *

Charlton v. F.T.C., 543 F.2d 903, 907-8 (D.C. Cir. 1976).

Amending the OHA regulations outlined above will afford mine 
operators this minimum level of protection that is required by SMCRA 
and the APA.

    Accordingly, for the reasons stated herein, the National Mining 
Association requests that the Director immediately grant the 
petition pursuant to Sec.  201(g) of the Surface Mining Act, 30 
U.S.C. 1211(g), and 30 CFR 700.12, and promptly thereafter commence 
an appropriate proceeding to promulgate the requested amendments and 
modifications in accordance with Sec.  501 of the Surface Mining 
Act, 30 U.S.C. 1251, and 5 U.S.C. 553.

     Respectfully submitted,

National Mining Association, 101 Constitution Avenue, NW., 
Washington, DC 20001.
By:--------------------------------------------------------------------
Harold P. Quinn, Jr.,
Senior Vice President & General Counsel.

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Bradford V. Frisby,
Associate General Counsel.

[FR Doc. 03-6555 Filed 3-19-03; 8:45 am]
BILLING CODE 4310-79-P