[Federal Register Volume 68, Number 229 (Friday, November 28, 2003)]
[Rules and Regulations]
[Pages 66723-66728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29695]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 4

RIN 1090-AA92


Special Rules Applicable to Surface Coal Mining Hearings and 
Appeals

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.

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SUMMARY: The Office of Hearings and Appeals is publishing a final rule 
that revises an existing regulation allocating the burden of proof in a 
proceeding under the Surface Mining Control and Reclamation Act of 
1977.

EFFECTIVE DATE: December 29, 2003.

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, telephone 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.

SUPPLEMENTARY INFORMATION:

I. Background

    On March 20, 2003, the Office of Hearings and Appeals (OHA) 
published for comment a petition for rulemaking that it had received 
from the National Mining Association (NMA). 68 FR 13657-13661 (Mar. 20, 
2003). On the basis of the decision of the U.S. Supreme Court in 
Director, Office of

[[Page 66724]]

Workers' Compensation Programs, Department of Labor v. Greenwich 
Collieries, 512 U.S. 267, 114 S. Ct. 2251 (1994), the petition urged 
that OHA reallocate the burden of proof in several existing rules that 
govern hearings under the Surface Mining Control and Reclamation Act of 
1977, 30 U.S.C. 1201-1328 (2000) (the Act or SMCRA).
    The Administrative Procedure Act (APA), 5 U.S.C. 554 (2000), 
applies to cases of adjudication that are required by statute to be 
determined on the record after an opportunity for an agency hearing. 
Section 554(c)(2) of the APA requires an agency to give all interested 
parties an opportunity for a hearing in accordance with sections 556 
and 557. Section 556(d) provides that ``[e]xcept as otherwise provided 
by statute, the proponent of a rule or order has the burden of proof.''
    In Greenwich Collieries, the Supreme Court considered whether a 
rule employed by the Department of Labor in adjudicating claims for 
benefits under the Black Lung Benefits Act was consistent with section 
556(d) of the APA. The Court explained that the effect of the rule was 
to ``shift the burden of persuasion to the party opposing the benefits 
claim--when the evidence is evenly balanced, the benefits claimant 
wins,'' 512 U.S. at 269, 114 S. Ct. at 2253. The Court construed the 
term ``burden of proof'' in section 556(d) to mean ``burden of 
persuasion,'' not merely ``burden of production (i.e., the burden of 
going forward with evidence),'' 512 U.S. at 272, 114 S. Ct. at 2255; 
and it concluded that the Department of Labor rule was inconsistent 
with section 556(d), pursuant to which ``when the evidence is evenly 
balanced, the benefits claimant must lose.'' 512 U.S. at 281, 114 S. 
Ct. at 2259.
    The NMA petition argued that, ``[i]n those proceedings where SMCRA 
does not expressly provide a burden of proof distinct from that set 
forth in the APA, OHA has improperly relieved OSM [the Office of 
Surface Mining Reclamation and Enforcement] of the burden of persuasion 
when OSM is the proponent of a rule or order * * *. Since the ultimate 
burden of persuasion under section [556(d)] of the APA requires the 
agency as a proponent of a rule or order to prove its case by a 
preponderance of the evidence * * *, 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.'' 
Petition at 11.
    The petition addressed existing OHA rules applicable to the burden 
of proof in five different kinds of proceedings: (1) Proceedings to 
review notices of violation or cessation orders issued under section 
521 of the Act (the applicable existing rule is 43 CFR 4.1171); (2) 
civil penalty proceedings (Sec.  4.1155); (3) individual civil penalty 
proceedings (Sec.  4.1307); (4) permit suspension or revocation 
proceedings (Sec.  4.1194); and (5) proceedings to review permit 
revisions ordered by OSM (Sec.  4.1366(b)).
    OHA received 19 comments in support of the petition from mining 
companies, mining trade associations, and law firms; and it received 
one comment from an agency in a primacy state recommending that the 
burden of proof remain with the permittee.
    As a preliminary matter OHA observes that, although the Supreme 
Court did not discuss how often ``the evidence is evenly balanced,'' in 
OHA's experience under SMCRA it is quite rare. See, e.g., OSM v. C-Ann 
Coal Co., 94 IBLA 14, 19 (1986); Harry Smith Construction Co. v. OSM, 
78 IBLA 27, 29, 32 (1983).
    In any event, with one exception, OHA does not agree with the 
premise of the NMA petition, i.e., that SMCRA does not provide for a 
burden of proof distinct from that set forth in section 556(d) of the 
APA for the proceedings NMA addresses. Whether or not OSM is ``the 
proponent of a rule or order'' within the meaning of section 556(d), it 
does not bear the burden of persuasion in most of the proceedings 
discussed in NMA's petition because SMCRA ``otherwise provide[s].'' 
Each of the proceedings is analyzed below.

A. Proceedings To Review Notices of Violation or Cessation Orders 
Issued Under Section 521 of the Act

    Section 525(a)(1) of the Act, 30 U.S.C. 1275(a)(1), provides as 
follows:

    A permittee issued a notice or order by the Secretary pursuant 
to the provisions of subparagraphs (a)(2) and (3) of section 521 of 
this title [30 U.S.C. 1271], or pursuant to a Federal program or the 
Federal lands program, or any person having an interest which is or 
may be adversely affected by such notice or order or by any 
modification, vacation, or termination of such notice or order, may 
apply to the Secretary for review of the notice or order within 
thirty days of receipt thereof or within thirty days of its 
modification, vacation, or termination. Upon receipt of such 
application, the Secretary shall cause such investigation to be made 
as he deems appropriate. Such investigation shall provide an 
opportunity for a public hearing, at the request of the applicant or 
the person having an interest which is or may be adversely affected, 
to enable the applicant or such person to present information 
relating to the issuance and continuance of such notice or order or 
the modification, vacation, or termination thereof. The filing of an 
application for review under this subsection shall not operate as a 
stay of any order or notice.

Section 525(a)(1) (emphasis added). Under section 525(a)(2), ``[a]ny 
such hearing shall be of record and shall be subject to section 554 of 
title 5 of the United State Code.''
    The existing regulation, 43 CFR 4.1171, provides that OSM has the 
``burden of going forward to establish a prima facie case as to the 
validity'' of the notice or order or its modification, vacation or 
termination; the ``ultimate burden of persuasion'' rests with the 
applicant for review. OHA believes the regulation correctly allocates 
the burdens of proof.
    In Old Ben Coal Corp. v. Interior Board of Mine Operations Appeals, 
523 F.2d 25 (7th Cir. 1975), the court construed nearly identical 
language from the Federal Coal Mine Health and Safety Act of 1969. 
Section 105(a)(1) of that statute, 30 U.S.C. 815(a)(1) (1976), provided 
as follows:

    An operator issued an order pursuant to the provisions of 
section 814 of this title, or any representative of miners in any 
mine affected by such order or by any modification or termination of 
such order, may apply to the Secretary for review of the order 
within thirty days of receipt thereof or within thirty days of its 
modification or termination. * * * Upon receipt of such application, 
the Secretary shall cause such investigation to be made as he deems 
appropriate. Such investigation shall provide an opportunity for a 
public hearing, at the request of the operator or the representative 
of miners in such mine, to enable the operator and the 
representative of miners in such mine to present information 
relating to the issuance or continuance of such order or the 
modification or termination thereof or to the time fixed in such 
notice. The filing of an application for review under this 
subsection shall not operate as a stay of any order or notice.

(Emphasis added.) Section 105(a)(2) provided that any such hearing 
``shall be of record and shall be subject to section 554 of title 5.''
    The operator in that case argued that a Department of the Interior 
regulation allocating the burden of proof under section 105(a) to ``the 
applicant, petitioner, or other party initiating the proceedings'' 
violated section 556(d) of the APA because there was no provision in 
the Coal Mine Health and Safety Act that ``require[d] the mine operator 
to carry the burden of proof in a review of summary agency action.'' 
523 F.2d at 35. In defending the regulation, the Secretary argued that 
section 105(a) fit within the ``[e]xcept as otherwise provided by 
statute'' language in section 556(d) ``because it specifically places 
on the operator who requests a public

[[Page 66725]]

hearing the burden ``to present information relating to the issuance 
and continuance of such order [Section 104(a) withdrawal order].''' Id. 
at 36 (bracketed text in original). The court agreed:

    We think that an examination of the statutory scheme as a whole, 
as well as a review of the legislative history of the Act * * *, 
supports respondents' argument that the Secretary's regulation is 
consistent with the intent of Congress to place upon the mine 
operator the primary responsibility for the safety of miners.

Id. The court found ``no compelling indications that the Secretary was 
wrong in interpreting the Act to place the burden of proof on the 
petitioner.'' Id. On Petition for Rehearing, the court clarified that, 
``[i]n practice * * *, the burden of proof is split, with the 
Government bearing the burden of going forward [to establish a prima 
facie case], and the mine operator bearing the ultimate burden of 
persuasion.'' Id. at 39, 40.
    Since Old Ben dealt with the exception language in 5 U.S.C. 556(d), 
rather than the meaning of the term ``burden of proof,'' it remains 
good law after the Supreme Court's decision in Greenwich Collieries. II 
Richard J. Pierce, Jr., Administrative Law Treatise Sec.  10.7 (4th ed. 
2002), at 760-61.
    A similar examination of SMCRA's language and legislative history 
demonstrates that the allocation of the burden of proof in 43 CFR 
4.1171 is likewise consistent with the intent of Congress. The purpose 
of the hearing provided in section 525(a)(1) is not for the Secretary 
to prove that a violation exists but ``to enable the applicant * * * to 
present information relating to the issuance and continuance of [the] 
notice or order * * *.'' (emphasis supplied). Thus SMCRA itself places 
the burden of proof on the applicant. This interpretation is clear from 
the legislative history:

    In order to assure expeditious review and due process for 
persons seeking administrative relief of enforcement decisions of 
Federal inspectors under the provisions of section [521], section 
[525] establishes clear, definitive administrative review 
procedures. Those persons having standing to request such 
administrative review include permittees against whom notices and 
orders have been issued pursuant to section [521] and persons having 
an interest which is or may be adversely affected by such notice or 
order. Any person with standing may request a public hearing which 
must be of record and subject to the Administrative Procedure Act. 
The person seeking review shall have the ultimate burden of proof in 
proceedings to review notices and orders issued under Section [521]. 
Pending review the notice or order complained of will remain in 
effect. * * *

S. Rep. No. 95-128, 95th Cong., 1st Sess., 92-93 (1977).
    The legislative history also confirms what is obvious from the 
language of the two statutes, namely, that SMCRA's enforcement 
provisions were modeled after those in the Coal Mine Health and Safety 
Act. Id. at 58. Thus, comparable to the regulation at issue in Old Ben, 
43 CFR 4.1171 properly allocates to OSM the burden of going forward to 
establish a prima facie case as to the validity of the notice of 
violation or cessation order (or its modification, vacation, or 
termination), and to the applicant for review the ultimate burden of 
persuasion.

B. Civil Penalty Proceedings

    Section 518(a) of the Act, 30 U.S.C. 1268(a), provides that a 
permittee who violates the Act or a permit condition may be assessed a 
civil penalty. Section 518(b) provides that the penalty may only be 
assessed after the person charged with a violation has been given the 
opportunity for a public hearing conducted in accordance with section 
554 of the APA. Section 518(c) provides that the person charged may 
contest the amount of the penalty or the fact of the violation.
    Section 518(b) also provides that, when there has been a hearing, 
``the Secretary shall * * * issue a written decision as to the 
occurrence of the violation and the amount of the penalty which is 
warranted'' and ``shall consolidate such hearings with other 
proceedings under section 521'' when appropriate.
    When OHA originally adopted the regulation governing burdens of 
proof in civil penalty proceedings, 43 CFR 4.1155, it allocated both 
the burden of going forward to establish a prima facie case and the 
burden of persuasion to OSM, with respect to both the fact of violation 
and the amount of the penalty. 43 FR 34376, 34393 (Aug. 3, 1978). The 
result was that the allocation of the ultimate burden of persuasion as 
to the fact of a violation was inconsistent with the legislative 
history of the Act discussed above in connection with section 525. In 
addition, when there was a consolidated hearing to review a notice or 
order issued under section 521 and a civil penalty proposed under 
section 518, there were contradictory provisions allocating the 
ultimate burden of persuasion as to the fact of a violation: Sec.  
4.1171 to the applicant for review and Sec.  4.1155 to OSM. 52 FR 
38246-38247 (October 15, 1987).
    In 1988, therefore, OHA amended Sec.  4.1155 to provide that ``OSM 
shall have the burden of going forward to establish a prima facie case 
as to the fact of the violation and the amount of the civil penalty and 
the ultimate burden of persuasion as to the amount of the civil 
penalty.'' A person who petitions for review of a proposed assessment 
of a civil penalty, however, has ``the ultimate burden of persuasion as 
to the fact of the violation.''
    Viewing the statutory scheme as a whole, including the interplay 
among SMCRA sections 518, 521, and 525, and in view of the legislative 
history and case precedent discussed above, OHA concludes that the 
burden of proof as to the fact of the violation in civil penalty 
proceedings fits within the exception language of 5 U.S.C. 556(d) and 
that 43 CFR 4.1155 is consistent with Congressional intent.

C. Individual Civil Penalty Proceedings

    Section 518(f) of the Act, 30 U.S.C. 1268(f), provides that, when a 
corporate permittee violates a condition of its permit or fails or 
refuses to comply with any order issued under section 521 of the Act or 
any order in a final decision by the Secretary (with certain 
exceptions), any director, officer, or agent of the corporation who 
willfully and knowingly authorized, ordered, or carried out the 
corporation's violation or its failure or refusal to comply, ``shall be 
subject to the same civil penalties * * * that may be imposed upon a 
person'' under section 518(a).
    43 CFR 4.1307(a) allocates to OSM the burden of going forward with 
evidence to establish a prima facie case that (1) the corporation 
violated a permit condition or failed or refused to comply with an 
order; (2) the individual was a director, officer, or agent of the 
corporation at the time of the violation; and (3) the individual acted 
willfully and knowingly. Section 4.1307(b) imposes on the individual 
the ultimate burden of persuasion as to (1) whether the corporation 
violated a permit condition or failed or refused to comply with an 
order and (2) whether he or she was a director or officer at the time 
of the violation or refusal. Section 4.1307(c) imposes on OSM the 
ultimate burden of persuasion as to (1) whether the individual was an 
agent of the corporation and (2) the amount of the individual civil 
penalty.
    Just as the statutory scheme, legislative history, and court 
precedent discussed above assign the burden of persuasion as to the 
fact of a violation to a corporate permittee under section 518(a), so 
they support allocating the burden of proof on that issue to the 
individual under section 518(f). However, the same conclusion cannot be 
drawn as to the individual's role in the corporation. Since SMCRA does 
not

[[Page 66726]]

``otherwise provide[]'' an allocation of the burden of proof on that 
issue, OHA agrees with NMA that the burden must be imposed on OSM as 
the proponent of the order (individual civil penalty) under 5 U.S.C. 
556(d). OHA is therefore amending 43 CFR 4.1307 in this final rule to 
state that OSM has the ultimate burden of persuasion as to whether the 
individual was a director, officer, or agent of the corporation.

D. Permit Suspension or Revocation Proceedings

    Section 521(a)(4) of the Act, 30 U.S.C. 1271(a)(4), provides as 
follows:

    When, on the basis of a Federal inspection * * *, the Secretary 
or his authorized representative determines that a pattern of 
violations of any requirements of this Act or any permit conditions 
required by this Act exists or has existed, and if the Secretary or 
his authorized representative also finds that such violations are 
caused by the unwarranted failure of the permittee to comply with 
any requirements of this Act or any permit conditions, or that such 
violations are willfully caused by the permittee, the Secretary or 
his authorized representative shall forthwith issue an order to the 
permittee to show cause as to why the permit should not be suspended 
or revoked and shall provide opportunity for a public hearing. If a 
hearing is requested, the Secretary shall inform all interested 
parties of the time and place of the hearing. Upon the permittee's 
failure to show cause as to why the permit should not be suspended 
or revoked, the Secretary or his authorized representative shall 
forthwith suspend or revoke the permit.

(Emphasis added.) Section 525(d) of the Act, 30 U.S.C. 1275(d), 
provides that the hearing shall be of record and subject to section 554 
of the APA.
    OHA's regulations at 43 CFR 4.1194 provide that, in such 
proceedings, OSM has the burden of going forward to establish a prima 
facie case for suspension or revocation of the permit, but the ultimate 
burden of persuasion that the permit should not be suspended or revoked 
rests with the permittee.
    The language of section 521(a)(4) clearly assigns the burden of 
persuasion in permit suspension or revocation proceedings to the 
permittee. The legislative history confirms Congress' intent:

    This section [section 525] also provides for the Secretary to 
hold a public hearing following the issuance of an order to show 
cause why a permit should not be revoked or suspended pursuant to 
[section 521]. At the hearing the permittee shall have the burden of 
proof to show why his permit should not be suspended or revoked.

S. Rep. No. 95-128, 95th Cong., 1st Sess., 96 (1977) (emphasis added).

    As with the fact-of-the-violation issue in proceedings under 
sections 525(a)(1), 518(b), and 518(f), therefore, SMCRA provides its 
own allocation of the burden of proof in permit suspension or 
revocation proceedings, and the language of 5 U.S.C. 556(d) assigning 
the burden to the proponent of the order does not apply.

E. Proceedings To Review Permit Revisions Ordered by OSM

    Section 511 of the Act, 30 U.S.C. 1261, applies to revision of 
permits. Section 511(a) provides that, during the term of the permit, a 
permittee may apply for a revision to a permit. Section 511(c) provides 
that the regulatory authority must, within time limits prescribed in 
regulations, review outstanding permits and may require reasonable 
revision or modification of permit provisions during the term of the 
permit. The revision or modification is to be ``based upon a written 
finding and subject to notice and hearing requirements established by 
the State or Federal program.'' Id.
    OSM's implementing regulations at 30 CFR 774.10(a) provide that the 
regulatory authority must review each permit issued under an approved 
program not later than the middle of each permit term. The regulatory 
authority ``may, by order, require reasonable revision of a permit * * 
* to ensure compliance with the Act and the regulatory program.'' Sec.  
774.10(b). Any order requiring revision of a permit ``shall be based 
upon written findings and shall be subject to the provisions for 
administrative and judicial review in [30 CFR] part 775.'' Sec.  
774.10(c). Under Sec.  775.11(c), all hearings ``under a Federal 
program for a State or a Federal lands program * * * on an application 
for approval of * * * permit revision shall be of record and governed 
by 5 U.S.C. 554 and 43 CFR part 4.''
    OHA's regulations at 43 CFR 4.1366(b) provide that, in a proceeding 
to review a permit revision ordered by OSM, OSM has the burden of going 
forward to establish a prima facie case that the permit should be 
revised, and the permittee has the ultimate burden of persuasion. This 
allocation of the burden of proof was explained in the preamble to the 
proposed rule:

    A comment suggested due process requires that 43 CFR [4.1365] 
should provide that the filing of a request for review would stay an 
OSM order requiring revision of a permit because it is an ``ex parte 
action by OSM''* * * . [B]ecause the purpose of such an order is to 
ensure compliance with the Act (see 30 CFR 774.11(b)), no stay is 
appropriate, just as it is not under 30 U.S.C. 1275(a)(1) when an 
application for review is filed for a notice of violation or 
cessation order (unless temporary relief is granted). Cf. 43 CFR 
4.1116. Because of the enforcement nature of such an order, the 
ultimate burden of persuasion is properly on the permittee in 43 CFR 
[4.1366(b)]. Cf. 43 CFR 4.1171(b).

51 FR 35250 (Oct. 2, 1986) (emphasis added).
    Under section 510(a) of the Act, 30 U.S.C. 1260(a), ``[t]he 
applicant for a permit, or revision of a permit, shall have the burden 
of establishing that his application is in compliance with all the 
requirements of the applicable State or Federal program.'' If at any 
point the permitted operation is no longer in compliance with the Act, 
``the regulatory authority * * * may require reasonable revision or 
modification of the permit provisions * * * .'' Section 511(c). It 
follows that, when challenging OSM's decision to require a permit 
revision to ensure compliance with the Act, the permit holder properly 
bears the burden of persuasion.
    Construing section 511(c) in light of the statutory scheme as a 
whole, including sections 510(a), 521(a), and 525(a), and in light of 
the legislative history and case precedent interpreting those 
provisions, OHA believes it has correctly allocated the burden of proof 
in 43 CFR 4.1366(b).

F. Conclusion

    For the foregoing reasons, NMA's petition for rulemaking is granted 
in part with respect to 43 CFR 4.1307 and is otherwise denied.

II. Review Under Procedural Statutes and Executive Orders

    A.  Planning and Review (E.O. 12866). accordance with the criteria 
in Executive Order 12866, the Department of the Interior finds that 
this document is not a significant rule. The Office of Management and 
Budget has not reviewed this rule under Executive Order 12866.
    1. 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. The amended rule will have virtually no effect on the economy 
because it will only change the allocation of the burden of proof--from 
the individual to OSM--on one issue in one kind of proceeding under 
SMCRA. Moreover, the practical effect of the rule will be limited to 
the rare situation in which the evidence on that one issue is evenly 
balanced.
    2. This rule will not create inconsistencies with or interfere with 
other agencies' actions. The rule amends an existing OHA regulation to 
change

[[Page 66727]]

the allocation of the burden of proof in one kind of proceeding under 
SMCRA.
    3. This rule will not alter the budgetary effects of entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. The existing regulation has to do with the burden of 
proof in one kind of proceeding under SMCRA, not with entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients.
    4. This rule does not raise novel legal or policy issues. Rather, 
it conforms OHA's regulations to recent court precedent.
    B. Regulatory Flexibility Act. The Department 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.). Changing the allocation of the burden of 
proof on one issue in individual civil penalty proceedings under SMCRA 
will have no effect on small entities. A Small Entity Compliance Guide 
is not required.
    C. 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.
    1. This rule will not have an annual effect on the economy of $100 
million or more. Changing the allocation of the burden of proof in one 
kind of proceeding under SMCRA will have no effect on the economy.
    2. 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. Changing the allocation of the burden 
of proof in one kind of proceeding under SMCRA will not affect costs or 
prices for citizens, individual industries, or government agencies.
    3. This rule will 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. Changing the allocation of the burden of proof in one kind 
of proceeding under SMCRA will have no effects, adverse or beneficial, 
on competition, employment, investment, productivity, innovation, or 
the ability of U.S.-based enterprises to compete with foreign-based 
enterprises.
    D. Unfunded Mandates Reform Act. In accordance with the Unfunded 
Mandates Reform Act (2 U.S.C. 1531 et seq.), the Department finds as 
follows:
    1. This rule will not have a significant or unique effect on state, 
local, or tribal governments or the private sector. Changing the 
allocation of the burden of proof in one kind of proceeding under SMCRA 
will neither uniquely nor significantly affect these governments. A 
statement containing the information required by the Unfunded Mandates 
Reform Act, 2 U.S.C. 1531 et seq., is not required.
    2. This rule will 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.
    E. Takings (E.O. 12630). In accordance with Executive Order 12630, 
the Department finds that this rule will not have significant takings 
implications. A takings implication assessment is not required. 
Imposing on OSM the burden of proof on one issue in one kind of 
proceeding under the SMCRA will have no effect on property rights.
    F. Federalism (E.O. 13132). In accordance with Executive Order 
13132, the Department finds that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment. States with approved regulatory programs may be affected to 
the extent they make a conforming change to their own rules and 
consequently bear the burden of proof on the issue of whether someone 
who receives a proposed individual civil penalty assessment was an 
officer, director, or agent of the corporation. These effects are so 
minor that a Federalism Assessment is not required.
    G. 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 meets the requirements 
of sections 3(a) and 3(b)(2) of the Order. This rule, because it simply 
changes the allocation of the burden of proof proceedings in one kind 
of proceeding under SMCRA, will not burden either administrative or 
judicial tribunals.
    H. Paperwork Reduction Act. This rule will 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. This rule will only change the allocation of the burden of 
proof in one kind of proceeding under SMCRA; it will not require the 
public to provide information.
    I. National Environmental Policy Act. The Department has analyzed 
this rule in accordance with the National Environmental Policy Act of 
1969 (NEPA), 42 U.S.C. 4321 et seq., Council on Environmental Quality 
(CEQ) regulations, 40 CFR part 1500, and the Department of the Interior 
Departmental Manual (DM). CEQ regulations, at 40 CFR 1508.4, define a 
``categorical exclusion'' as a category of actions that the Department 
has determined ordinarily do not individually or cumulatively have a 
significant effect on the human environment. The regulations further 
direct each department to adopt NEPA procedures, including categorical 
exclusions. 40 CFR 1507.3. The Department has determined that this rule 
is categorically excluded from further environmental analysis under 
NEPA in accordance with 516 DM 2, Appendix 1, which categorically 
excludes ``[p]olicies, directives, regulations and guidelines of an 
administrative, financial, legal, technical or procedural nature.'' In 
addition, the Department has determined that none of the exceptions to 
categorical exclusions, listed in 516 DM 2, Appendix 2, applies to this 
rule. This rule is an administrative and procedural rule, relating to 
the allocation of the burden of proof in one kind of proceeding under 
SMCRA. Therefore, neither an environmental assessment nor an 
environmental impact statement under NEPA is required.
    J. 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 has evaluated 
potential effects of this rule on Federally recognized Indian tribes 
and has determined that there are no potential effects. This rule will 
not affect Indian trust resources; it will simply change the allocation 
of the burden of proof in one kind of proceeding under SMCRA.
    K. Effects on the Nation's Energy Supply. In accordance with 
Executive Order 13211, the Department finds that this regulation does 
not have a significant effect on the nation's energy supply, 
distribution, or use. Changing the allocation of the burden of proof in 
one kind of proceeding under SMCRA will not affect energy supply or 
consumption.

III. Determination To Issue Final Rule

    The Department has determined that prior publication of a proposed 
rule to amend 43 CFR 4.1307 is not required by the notice and comment 
provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), 
because an opportunity was provided to comment on the change

[[Page 66728]]

as proposed in NMA's petition for rulemaking (68 FR 13657).

List of Subjects in 43 CFR Part 4

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

    Dated: November 13, 2003.
P. Lynn Scarlett,
Assistant Secretary--Policy, Management and Budget.

0
For the reasons set forth in the preamble, part 4, subpart L, of title 
43 of the Code of Federal Regulations is amended as set forth below:

PART 4--[AMENDED]

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

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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.

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2. In Sec.  4.1307, revise paragraphs (b) and (c) to read as follows:


Sec.  4.1307  Elements; burden of proof.

* * * * *
    (b) The individual shall have the ultimate burden of persuasion by 
a preponderance of the evidence as to the elements set forth in 
paragraph (a)(1) of this section.
    (c) OSM shall have the ultimate burden of persuasion by a 
preponderance of the evidence as to the elements set forth in 
paragraphs (a)(2) and (a)(3) of this section and as to the amount of 
the individual civil penalty.

[FR Doc. 03-29695 Filed 11-26-03; 8:45 am]
BILLING CODE 4310-79-P