94-26553. Department Hearings and Appeals Procedures; Special Rules Applicable to Surface Coal Mining Hearings and Appeals  

  • [Federal Register Volume 59, Number 208 (Friday, October 28, 1994)]
    [Unknown Section]
    [Page ]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 94-26553]
    
    
    [Federal Register: October 28, 1994]
    
    
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    DEPARTMENT OF THE INTERIOR
    
    Office of Hearings and Appeals
    
    43 CFR Part 4
    
    RIN 1094-AA42
    
    
    Department Hearings and Appeals Procedures; Special Rules 
    Applicable to Surface Coal Mining Hearings and Appeals
    
    AGENCY: Office of Hearings and Appeals, Interior.
    
    ACTION: Final rule.
    
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    SUMMARY: The final rulemaking amends regulations of the Office of 
    Hearings and Appeals (OHA) applicable to surface coal mining hearings 
    and appeals by adding procedural rules for administrative review of a 
    decision by the Office of Surface Mining Reclamation and Enforcement 
    (OSM) to suspend or rescind permits that should not have been issued, 
    and a decision by OSM in response to (a) a challenge, by an applicant 
    or other person shown in the Applicant Violator System, to a finding 
    that he or she is in an ownership or control link to any person or (b) 
    a challenge, by an applicant or other person shown in the Applicant 
    Violator System in an ownership or control link to any person cited in 
    a federal violation notice, to the status of the violation in the 
    notice. The final rulemaking provides for a hearing before an 
    administrative law judge and for discretionary review of the 
    administrative law judge's initial decision by the Interior Board of 
    Land Appeals (IBLA). In addition, existing 43 CFR 4.1105(a)(2) is 
    amended to include a reference to the rules added by this rulemaking.
    
    EFFECTIVE DATE: These final regulations are effective on November 28, 
    1994.
    
    FOR FURTHER INFORMATION CONTACT: Will A. Irwin, Administrative Judge, 
    Interior Board of Land Appeals, Office of Hearings and Appeals, U.S. 
    Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 
    22203 (Telephone 703-235-3750).
    
    SUPPLEMENTARY INFORMATION: OHA's proposed rulemaking was published in 
    the Federal Register on September 6, 1991 (56 FR 45806-11). Proposed 43 
    CFR 4.1370-4.1377 set forth new OHA procedures for reviewing OSM 
    decisions to suspend or rescind permits OSM finds were improvidently 
    issued under 30 CFR 773.20. Proposed 43 CFR 4.1380-4.1387 set forth new 
    OHA procedures for reviewing OSM decisions finding that a person is in 
    an ownership or control link to a person currently in violation of the 
    Surface Mining Control and Reclamation Act of 1977 (SMCRA) or other 
    applicable law. In addition, OHA proposed to amend the existing rule 
    that establishes OSM's burden of proof in individual civil penalty 
    proceedings, 43 CFR 3.1307(a).
        Proposed 43 CFR 4.1370-4.1377 and 4.1380-4.1387 are based on 
    section 510(c) of SMCRA, 30 U.S.C. 1260(c) (1988). This section 
    requires an applicant for a surface coal mining and reclamation permit 
    to file with the permit application a schedule listing all notices of 
    violations of SMCRA and any law, rule, or regulation of the United 
    States, or of any department or agency in the United States pertaining 
    to air or water environmental protection incurred by the applicant in 
    connection with any surface coal mining operation during the three-year 
    period prior to the date of application. Where the schedule or other 
    information indicates that any surface coal mining operation owned or 
    controlled by the applicant is currently in violation of the Act or 
    other air or water environmental protection laws, the permit shall not 
    be issued until the applicant submits proof that such violation has 
    been corrected or is in the process of being corrected to the 
    satisfaction of the regulatory authority, department, or agency which 
    has jurisdiction over such violation.
        In order to implement section 510(c), OSM has promulgated a rule 
    defining the words ``owned or controlled'' in that section, as well as 
    ``owns or controls.'' 30 CFR 773.5. It has adopted a rule requiring 
    that an application for a permit include information about each person 
    who owns or controls the applicant, within the meaning of Sec. 773.5, 
    and about any surface coal mining operation owned or controlled by 
    either the applicant or any person who owns or controls the applicant. 
    30 CFR 778.13(c), (d). It has adopted a regulation concerning review of 
    applications for permits that provides: ``[b]ased on available 
    information * * *, the regulatory authority shall not issue the permit 
    if any surface coal mining and reclamation operation owned or 
    controlled by either the applicant or by any person who owns or 
    controls the applicant is currently in violation of the Act or any 
    other law, rule or regulation referred to in this paragraph.'' 30 CFR 
    773.15(b)(1). This is the so-called ``permit block,'' referring to the 
    language in section 510(c) that states ``the permit shall not be issued 
    until the applicant submits proof'' that a violation of a surface coal 
    mining operation owned or controlled by the applicant has been 
    corrected or is in the process of being corrected. OSM has also 
    established the Applicant/Violator System (AVS), a computerized system 
    to store data regarding violations and ownership and control links to 
    those violations. See Save Our Cumberland Mountains v. Lujan, 963 F.2d 
    1541, 1545-46 (D.C. Cir. 1992).
        OHA's proposed rules were published on the same day as OSM proposed 
    related rules defining the AVS, requiring its use in reviewing permit 
    applications to determine whether there are any ownership or control 
    links between applicants and persons in violation, and proposing 
    procedures and standards for an applicant or other person shown in the 
    AVS to challenge ownership and control links shown in the AVS and the 
    status of the violation. 56 FR 45780-45804 (Sept. 6, 1991). OSM also 
    proposed to amend its existing rules governing suspension and 
    rescission of improvidently issued permits. OSM's proposed rules 
    provided a right to review of its decisions to suspend or rescind a 
    permit under the procedures set forth in OHA's proposed rulemaking of 
    sections 4.1370 through 4.1377. See proposed Sec. 773.20(c)(2), 56 FR 
    45799 (Sept. 6, 1991). OSM's proposed rules also provided a right to 
    review of its written decisions on challenges to ownership and control 
    links and the status of violations shown in the AVS under the 
    procedures set forth in OHA's proposed rulemaking of sections 4.1380 
    through 4.1387. See proposed 30 CFR 773.24(d)(2)(ii), 56 FR 45800 
    (Sept. 6, 1991).
        OHA received comments on its proposed rules from Texas Utilities 
    Services, Inc. (TU Services), the Joint National Coal Association/
    American Mining Congress Committee on Surface Mining Regulations (NCA/
    AMC), and the National Wildlife Federation (NWF). The NCA/AMC comments 
    dealt with both OHA's and OSM's proposed rules.
    
    Proposed Amendment of 43 CFR 4.1307(a)(3) Withdrawn
    
        As part of its September 6, 1991, proposed rulemaking, OHA proposed 
    an amendment to 43 CFR 4.1307(a)(3) at 56 FR 45808 which set forth an 
    element of OSM's prima facie case in proceedings to review the 
    assessment of individual civil penalties. Proposed 43 CFR 4.1307(a)(3) 
    complemented proposed rules by OSM at 56 FR 48924, 48929-30 (Sept. 26, 
    1991) addressing individual civil penalties. Both TU Services' and NCA/
    AMC's comments expressed reservations about the proposed amendment of 
    43 CFR 4.1307(a)(3). By a notice published in the Federal Register on 
    October 16, 1992, OSM withdrew its September 26, 1991, proposed 
    rulemaking. 57 FR 47431 (Oct. 16, 1992). Therefore, OHA hereby 
    withdraws the corresponding proposed amendment to 43 CFR 4.1307(a)(3). 
    Because this proposed rule concerning an element of OSM's prima facie 
    case in individual civil penalty proceedings is withdrawn, no response 
    to the comments concerning it is necessary.
        As noted above, the NCA/AMC comments address both the proposed OSM 
    rules and the proposed OHA rules ``[b]ecause [their] comments on the 
    proposal by [OHA] are interrelated with [their] concerns about the OSM 
    proposal.'' NCA/AMC's comments that relate to the procedures for 
    administrative review are addressed here.
    
    Procedural Due Process
    
        NCA/AMC state that although the proposed rules ``purport to 
    establish a comprehensive scheme for administrative review of ownership 
    and control determinations emanating from the AVS, they fall far short 
    of providing the meaningful guarantees that the due process clause 
    requires.'' They fall short, NCA/AMC state, because the procedures do 
    not allow one to challenge the existence of the violation that forms 
    the basis for a permit block under section 510(c). Further, the 
    proposed rules do not provide ``any opportunity for challenging either 
    the status of the violation or the validity of the AVS link prior to 
    the deprivation of the operator's property interest through permit 
    denial, suspension, or revocation, unless the applicant is able to meet 
    the stringent requirements for seeking temporary relief'' contained in 
    proposed 43 CFR 4.1386 (emphasis in original). NCA/AMC state that the 
    ``right to notice and a hearing prior to a governmental deprivation of 
    private property is a cornerstone of American jurisprudence, and is a 
    well-established principle in cases involving the constitutionality of 
    SMCRA provisions'' that the proposed rules fail to recognize. NCA/AMC 
    state that an appeal or challenge to AVS information ``must, of 
    necessity, include the right to a full and fair determination on the 
    merits of the violation in advance of any decision to prohibit mining 
    through the sanctions contained within section 510(c).'' Under the 
    balancing test announced in Mathews v. Eldridge, 424 U.S. 319 (1976), 
    the proposed rules do not afford due process, NCA/AMC argue.
        A fundamental requirement of the Fifth Amendment to the 
    Constitution of the United States that ``[n]o person shall * * * be 
    deprived of life, liberty, or property, without due process of law'' is 
    the opportunity to be heard at a meaningful time and in a meaningful 
    manner. Armstrong v. Manzo, 380 U.S. 545, 552 (1965). In Mathews v. 
    Eldridge, supra, the U.S. Supreme Court discussed ``the extent to which 
    due process requires an evidentiary hearing prior to the deprivation of 
    some type of property interest even if such a hearing is provided 
    thereafter.'' 424 U.S. at 333. The Court quoted Morrissey v. Brewer, 
    408 U.S. 471, 481 (1972), that ``due process is flexible and calls for 
    such procedural protections as the particular situation demands,'' and 
    then stated:
    
    [O]ur prior decisions indicate that identification of the specific 
    dictates of due process generally requires consideration of three 
    distinct factors: First, the private interest that will be affected 
    by the official action; second, the risk of an erroneous deprivation 
    of such interest through the procedures used, and the probable 
    value, if any, of additional or substitute procedural safeguards; 
    and finally, the Government's interest, including the function 
    involved and the fiscal and administrative burdens that the 
    additional or substitute procedural requirement would entail. See, 
    e.g., Goldberg v. Kelly. [397 U.S.] at 263-271.
    
    Mathews v. Eldridge, supra at 334-35. In Goldberg v. Kelly, 397 U.S. 
    254 (1970), the Supreme Court decided procedural due process requires 
    that a state grant an evidentiary hearing before suspending or 
    terminating welfare payments to an individual who meets the statutory 
    qualifications for receiving them. ``[T]he crucial factor in this 
    context,'' the Court observed, ``is that termination of aid pending 
    resolution of a controversy over eligibility may deprive an eligible 
    recipient of the very means by which to live while he waits.'' Id. at 
    264 (emphasis in original). ``[C]ountervailing governmental interests 
    in conserving fiscal and administrative resources * * * are not 
    overriding in the welfare context,'' the Court stated. Id. at 265-66. 
    ``[H]owever, * * * the pre-termination hearing need not take the form 
    of a judicial or quasi-judicial trial,'' the Court commented. Id. at 
    266. A complete record and a comprehensive opinion are not necessary; 
    an opportunity for the welfare recipient to confront and cross-examine 
    witnesses relied on by the government, and to retain an attorney, 
    however, are necessary. Id. at 267-270. Also necessary is an impartial 
    decisionmaker, who must ``state the reasons for his determination and 
    indicate the evidence be relied on.'' Id. at 271.
        OHA believes that, when analyzed under Mathews v. Eldridge, the 
    procedures proposed for OSM decisions and for OHA administrative review 
    of those decisions provide adequate due process protection of the 
    interests involved.
        The proposed rules recognize a distinction between a person who 
    holds a permit that might be suspended or rescinded because OSM 
    determines it was improvidently issued (43 CFR 4.1370-4.1377) and a 
    person who has applied for a permit or might apply for one in the 
    future (43 CFR 4.1380-4.1387). A person who holds a permit is entitled 
    to more protection than the person who has applied for one or plans to 
    do so. In recognition of this distinction, OSM's final rule 30 CFR 
    773.20(b)(2) will provide, for a person who has a permit, that OSM will 
    determine whether a violation, penalty or fee existed when it was cited 
    and whether an ownership or control link between a permittee and the 
    person responsible for the violation existed, still exists, or has been 
    severed, before issuing a notice to suspend or rescind a permit. An 
    applicant for a permit, however, may challenge the existence of a 
    violation in a review proceeding under 43 CFR 4.1360-4.1369 after the 
    application has been denied, not before. An applicant (or any other 
    person shown in the AVS) may challenge an ownership or control link or 
    the status of a violation before a permit application is denied, or 
    even filed, under proposed 30 CFR 773.24, as discussed further below. 
    (The ``status of a violation'' concerns whether the violation remains 
    outstanding, has been or is in the process of being corrected, or is 
    the subject of an administrative or judicial appeal. The status of a 
    violation is distinct from ``the existence of a violation,'' i.e., 
    whether the violation existed at the time it was cited.)
        The ``private interest that will be affected,'' i.e., a permit, is 
    limited. A permit is issued for a five-year term (with a right of 
    renewal unless its terms or other requirements are not being met), 30 
    U.S.C. 1256(b), (d) (1988), and is conditioned on compliance with 
    several performance standards, 30 U.S.C. 1265(a) (1988). It may be 
    terminated, revised, reviewed, suspended, or revoked. 30 U.S.C. 
    1256(c), 1261(c), 1265(c), 1271(a)(4) (1988). Thus, while valuable, a 
    permit to conduct surface coal mining is not a private interest 
    comparable to the welfare benefits in Goldberg v. Kelly, supra, that 
    entitles the holder to an evidentiary hearing prior to suspension or 
    rescission. In Mathews v. Eldridge, supra at 343, the Supreme Court 
    held that termination of disability payments may be effected without a 
    pretermination evidentiary hearing. Similarly, suspension or rescission 
    of a surface coal mining permit does not require a prior hearing in 
    addition to the other procedural safeguards provided in the OSM and OHA 
    rules.
        Those rules significantly reduce ``the risk of an erroneous 
    deprivation'' of a permit. If OSM finds a permit was improvidently 
    issued because at the time it was issued one or more of the 
    circumstances set forth in the review criteria in 30 CFR 773.20(b)(1) 
    existed, it does so in accordance with the standards for challenging 
    ownership or control links and the status of violations in proposed 30 
    CFR 773.26, 56 FR 45801-45803 (Sept. 6, 1991). See proposed 30 CFR 
    773.20(b)(2), 56 FR 45799 (Sept. 6, 1991). As mentioned above, these 
    standards will apply, under OSM's final rule 30 CFR 773.20(b)(2), to a 
    determination whether a violation, penalty, or fee existed at the time 
    it was cited, remains unabated or delinquent, has been or is in the 
    process of being corrected, or is the subject of an appeal, and whether 
    an ownership or control link between the permittee and the person 
    responsible for the violation, penalty, or fee existed, still exists, 
    or has been severed. OSM has a choice of four remedial measures if it 
    finds a permit was improvidently issued, including suspension or 
    rescission of the permit. 30 CFR 773.20(c); see proposed 
    Sec. 773.20(c)(1), 56 FR 45799 (Sept. 6, 1991). If it decides to 
    suspend, it will give the permittee 30 days written notice and inform 
    the permittee of its right to review under 43 CFR 4.1370 et seq. See 
    proposed 30 CFR 773.20(c)(2), 56 FR 45799 (Sept. 6, 1991). If it 
    decides to rescind, it will issue the permittee a notice of proposed 
    suspension and rescission under 30 CFR 773.21 that includes the reasons 
    for finding the permit was improvidently issued and will inform the 
    permittee of its right to review under 43 CFR 4.1370 et seq. See 
    proposed 30 CFR 773.20(c)(2), 56 FR 45799 (Sept. 6, 1991).
        Under OHA's proposed rules 43 CFR 4.1370-4.1377, the permittee may 
    file a request for review with OHA that includes OSM's notice; 
    documentary proof or offers of proof concerning the Sec. 773.20(b) 
    review criteria (or their analogues in Sec. 773.21(a)(1)-(4)); other 
    relevant information; a request for specific relief; and a request for 
    an evidentiary hearing. Sec. 4.1372. The permittee may amend its 
    request for review once as a matter of right before OSM files a 
    response and may also do so afterwards with leave of the administrative 
    law judge. The administrative law judge is to convene the hearing 
    within 90 days of receiving responses to the request (unless the 
    parties waive this deadline); this gives the parties an opportunity to 
    conduct discovery under 43 CFR 4.1130-4.1141. Sec. 4.1373. The 
    administrative law judge must issue an initial decision within 30 days 
    of the date the hearing record is closed. Sec. 4.1375. OSM has the 
    burden of going forward to present a prima facie case in support of its 
    notice while the person requesting review has the ultimate burden of 
    persuasion that the notice is in error. Sec. 4.1374. Any party may file 
    a petition for discretionary review of the administrative law judge's 
    initial decision with IBLA. The petition shall attach a copy of this 
    decision and specify the alleged errors. Other parties have 30 days to 
    file responses, after which IBLA shall issue a decision within 60 days 
    denying the petition or granting it and deciding the merits. 
    Sec. 4.1377.
        OSM's proposed rule provides that its decision to suspend or 
    rescind will remain in effect during the time a request for review is 
    pending in OHA unless temporary relief is granted in accordance with 43 
    CFR 4.1376. 30 CFR 773.20(c)(2), 56 FR 45799 (Sept. 6, 1991). Proposed 
    43 CFR 4.1376 provides that with a request for review--or at any time 
    before the administrative law judge issues the initial decision--any 
    party may petition for temporary relief from OSM's notice of suspension 
    or notice of proposed suspension and rescission. Under Sec. 4.1376, the 
    petition must show that the petitioner has a substantial likelihood of 
    prevailing on the merits and that the relief it seeks will not 
    adversely affect public health or safety or cause significant, imminent 
    environmental harm. Other parties have 5 days to file responses. The 
    administrative law judge must hold a hearing within 10 days of the 
    filing of the responses if a hearing has been requested and must issue 
    a decision granting or denying temporary relief within 5 days of the 
    date of the hearing, or the filing of the responses if no hearing is 
    held. If all parties have been notified of the petition and given an 
    opportunity to respond (and a hearing has been held if requested), the 
    administrative law judge may grant temporary relief if the petitioner 
    has demonstrated a substantial likelihood of prevailing on the merits 
    and the relief will not adversely affect public health or safety or 
    cause significant, imminent environmental harm. These standards are 
    based on those contained in 30 U.S.C. 1275(c) (1988). As noted in the 
    preamble to the proposed regulations, 56 FR at 45807 (Sept. 6, 1991), 
    the focus of the adverse effect inquiry would be on the permitted 
    operation rather than operation allegedly in violation. Any party may 
    appeal the administrative law judge's decision granting or denying 
    temporary relief to IBIA, which shall decide the appeal expeditiously, 
    or may seek judicial review.
        OHA believes ``the probable value, if any, of additional or 
    substitute procedural safeguards''--in particular, an evidentiary 
    hearing before a decision to suspend or rescind is effective--is 
    minimal. As in Mathews, supra at 343-345, although the definition of 
    ownership and control in 30 CFR 773.5 includes elements or judgment 
    where witness credibility and veracity will sometimes play a role 
    (e.g., Secs. 773.5(a)(3), 773.5(b)(6)), the determination is usually 
    made on the basis of documents, such as instruments of ownership or 
    voting securities, or on the basis of readily and often publicly 
    documentable circumstances such as a person's status as an officer or 
    director of an entity, the permittee or operator of a surface coal 
    mining operation, or a general partner in a parternship (e.g., 
    Secs. 773.5(a)(1)-(2), 773.5(b)(1)-(2), (4)-(5)). Further, a permittee 
    receives sufficient notice of OSM's decision to suspend a permit (30 
    days under proposed Sec. 773.20(c)(2)) or rescind a permit (up to 180 
    days under Sec. 773.21) to enable it to request review by an 
    administrative law judge before the decision becomes effective. The 
    provisions in Secs. 4.1370-4.1377 imposing short time frames for each 
    step of review significantly reduce delay due to ``the torpidity of 
    [the] administrative review process,'' Mathews, supra at 342, 
    especially if temporary relief is sought.
        The ``Government's interest'' is to effectively implement section 
    510(c), specifically, to ensure that no person in violation of SMCRA or 
    the other specified environmental laws obtains or retains a permit to 
    conduct surface mining operations until the violation is corrected or 
    in the process of being corrected. The Department's goal of achieving 
    compliance with these laws would be significantly burdened if it were 
    required to provide an evidentiary hearing before OSM could decide to 
    suspend or rescind a permit because the person should not have received 
    the permit when it was issued. It was OSM's experience in 1992-93 that 
    providing informal review by OSM of the proposed entry into the AVS of 
    information concerning ownership or control links became very time-and-
    personnel-consuming. For 105 cases in 1993, for example, OSM spent more 
    than 11,000 hours from after investigating an ownership or control link 
    to issuing its final decision, a mean of 105 hours per case. It would 
    be even more costly to require an evidentiary hearing before a permit 
    was suspended or rescinded; meanwhile, mining would continue while 
    alleged outstanding violations existed.
        In sum, as the Supreme Court stated in Mathews, supra at 343, 
    ``there is less reason here than in Goldberg to depart from the 
    ordinary principle, established by our decisions, that something less 
    than an evidentiary hearing is sufficient prior to adverse 
    administrative action.'' OHA believes the procedures for OSM 
    decisionmaking and OHA administrative review on the proposed rules 
    provide all the due process that is due before an improvidently issued 
    permit is suspended or rescinded.
        As noted above, OSM's proposed rules also provide that an applicant 
    for a permit or any other person that is shown in the AVS as having an 
    ownership or control link to a person may challenge the link (unless 
    the applicant or other person is bound by an earlier administrative or 
    judicial decision concerning the link). See proposed 30 CFR 
    773.24(a)(1), 56 FR 45800 (Sept. 6, 1991). An applicant or any other 
    person shown in the AVS may also challenge the status of the violation 
    cited in a federal violation notice naming a person with whom the 
    applicant or other person is linked (unless bound by a decision 
    concerning the status of the violation). See proposed 30 CFR 
    773.24(a)(2), 56 FR 45800 (Sept. 6, 1991). The applicant or other 
    person may submit a written explanation and supporting evidence to OSM 
    concerning the existence of the link or the status of the violation. 
    See proposed Sec. 773.24(b), 56 FR 45800 (Sept. 6, 1991). Applying the 
    standards for challenging ownership and control links and the status of 
    violations contained in proposed Sec. 773.26, 56 FR 45801-03 (Sept. 6, 
    1991), OSM will either correct the information in the AVS, if the 
    applicant or other person shows the link is erroneous or the violation 
    is no longer outstanding, or, if this is not shown, OSM will so notify 
    the applicant or other person. See proposed Sec. 773.24(d), 56 FR 45800 
    (Sept. 6, 1991). In either event, OSM will issue a written decision and 
    serve it by certified mail. See proposed Secs. 773.24(d)(2)(i), 56 FR 
    45800-01 (Sept. 6, 1991). The applicant or other person has a right to 
    request review within 30 days of service of OSM's decision under the 
    procedures proposed by OHA in 43 CFR 4.1380-4.1387. OSM's decision 
    remains in effect pending a decision on review unless temporary relief 
    is granted under proposed Sec. 4.1386. See proposed 
    Sec. 773.24(d)(2)(ii), 56 FR 45801 (Sept. 6, 1991).
        OHA's procedures in proposed 43 CFR 4.1380-4.1387 closely parallel 
    those in Secs. 4.1370-4.1377. Any person who receives a written OSM 
    decision concerning a challenge to the existence of a link or the 
    status of a violation may request review. Sec. 4.1381. The required 
    contents of the request are set forth in proposed Sec. 4.1382; the 
    request may be amended once as a matter of right before a response is 
    filed by OSM and with the leave of an administrative law judge 
    thereafter. Sec. 4.1382(c). The administrative law judge is to convene 
    a hearing within 90 days of receipt of the responses unless the parties 
    waive that deadline, and give notice at least 10 days in advance of the 
    hearing. Sec. 4.1383. OSM has the burden of going forward to present a 
    prima facie case in support of its decision, while the person 
    requesting review has the ultimate burden of persuasion that the 
    decision is in error. Sec. 4.1384. An initial decision is required 
    within 30 days after the record of the hearing is closed. Sec. 4.1385. 
    At any time before the initial decision is issued, any party may file a 
    petition for temporary relief from OSM's decision. Temporary relief may 
    be granted if all parties to the proceeding have been notified of the 
    petition, have had an opportunity to respond, and a hearing has been 
    held if requested; and if the petitioner has demonstrated that it has a 
    substantial likelihood of prevailing on the merits and that temporary 
    relief will not adversely affect public health or safety or cause 
    significant, imminent environmental harm. Sec. 4.1386. Expedited review 
    by IBLA or judicial review of a decision granting or denying temporary 
    relief may be requested within 30 days of receipt of the decision. 
    Sec. 4.1386(h). If temporary relief is not requested, any party may 
    file a petiton for discretionary review of the administrative law 
    judge's initial decision within 30 days of receiving it. Sec. 4.1387. 
    The Board is to issue a decision denying the petition or granting it 
    and ruling on the merits within 60 days of the deadline for filing 
    responses to the petition section 4.1387(d).
        The nature of a person's interest in an application for a permit 
    cannot be regarded as a ``legitimate claim of entitlement'' to a permit 
    and therefore requires less due process protection than the interest of 
    a person who holds a permit that is subject to suspension or rescission 
    because it was improvidently issued. See Board of Regents v. Roth, 408 
    U.S. 564, 569-71, 577 (1972). For a person who has applied for a permit 
    or may apply for one, due process does not require a hearing on the 
    existence of an ownership or control link or on the existence of a 
    violation when it was cited before OSM issues a decision under proposed 
    30 CFR 773.24. If the proposed procedures in Secs. 4.1370-4.1377 for 
    administrative review of notices of permit suspension or rescission 
    under proposed 30 CFR 773.20(c)(2) provide adequate due process 
    protection, as OHA believes, then the parallel procedures in proposed 
    Secs. 4.1380-4.1387 certainly satisfy due process requirements for 
    OSM's decisions regarding ownership and control links or the status of 
    a violation under proposed 30 CFR 773.24. In particular, an applicant's 
    opportunity to obtain temporary relief under 43 CFR 4.1386 from an OSM 
    decision provides sufficient due process at this stage. Further 
    administrative review is available to an applicant for a permit in an 
    appeal of the denial of the application under existing procedures in 43 
    CFR 4.1360 through 4.1369, when the existence of the violation may be 
    challenged. Providing an evidentiary hearing before OSM decisions under 
    proposed 30 CFR 773.24 would severely impede the Department's effective 
    implementation of section 510(c).
    
    State Primacy
    
        NCA/AMC argue that the proposed OSM and OHA regulations ``undermine 
    state primacy [under section 503 of SMCRA, 30 U.S.C. (1988)] entirely, 
    by preempting state permitting authority where the ownership and 
    control presumption is based on information contained within the AVS. * 
    * * Additionally, OSM and OHA propose to require that any appeals from 
    decisions on the ownership and control presumptions be made before the 
    OHA in accordance with the proposed OHA regulations at 43 CFR 4.1380. * 
    * * Moreover, OSM would create a completely federalized process for 
    administrative review of the AVS linkage.''
        The regulatory authority in a state that has been delegated primacy 
    under section 503 will retain its authority to issue permits. 
    Information in the AVS is ``other information available to the 
    regulatory authority,'' within the meaning of section 510(c), that a 
    state regulatory authority must use in deciding whether or not issuance 
    of a permit should be blocked. The state regulatory authority's 
    decision is its own--subject, of course, to OSM oversight. See 30 
    U.S.C. 1202(g), 1211(c), 1253, 1254, 1255, and 1271.
        An applicant or other person shown in the AVS in an ownership or 
    control link to any person cited in a state violation notice may 
    challenge the status of the violation in that notice under the state 
    program equivalents to proposed 30 CFR 773.24(b)-(d) and 773.26. See 
    proposed 30 CFR 773.24(a)(3), 56 FR 45800 (Sept. 6, 1991). Similarly, 
    decisions by a state regulatory authority to suspend or rescind a 
    permit are reviewed by the State program equivalent of proposed 43 CFR 
    4.1370-4.1377. See proposed 30 CFR 773.20(c)(2), 56 FR 45799 (Sept. 6, 
    1991). The fact that challenges to ownerships and control links and to 
    the status of violations are made to OSM by applicants or other persons 
    shown in the AVS under proposed 30 CFR 773.24(a)(1) and (a)(2), and 
    that OSM's decisions are reviewed under proposed 43 CFR 4.1380-4.1387, 
    is a function of OSM's maintenance of the data in AVS and its 
    responsibility to keep that data accurate and up-to-date. But OSM's 
    role in deciding on the accuracy of the data and OHA's role in 
    reviewing those decisions do not subvert the authority of the state 
    regulatory authority in a primacy state to make decisions on 
    applications for permits.
    
    Burden of Proof
    
        NCA/AMC object to OHA's proposed 43 CFR 4.1374(b) and 4.1384(b), 
    which place the ultimate burden of persuasion on a permittee that seeks 
    review of a notice of proposed suspension or rescission and on an 
    applicant or other persons that seeks review of an OSM decision on a 
    challenge to an ownership and control link or status of a violation 
    shown in the AVS. In proposed Secs. 4.1374(a) and 4.1384(a), OSM has 
    the burden of going forward to present a prima facie case of the 
    validity of the notice or decision. NCA/AMC state that when OSM seeks 
    to overturn a permit as improvidently issued, it should bear the 
    ultimate burden of proving its case. ``All permits, once issued, should 
    be accorded some presumption that they were issued in accordance and 
    compliance with applicable law. * * * [I]t is the party seeking to set 
    aside the permitting decision who should bear both the burden of going 
    forward to establish a prima facie case and the ultimate burden of 
    persuasion, ``NCA/AMC state.
        Allocation of the burdens of proof in proposed 43 CFR 4.1374 and 
    4.1384 is consistent with other OHA regulations governing review of OSM 
    decisions. See 43 CFR 4.1171, 4.1193, 4.1366. OSM's burden of going 
    forward to support a prima facie case of the validity of its notice or 
    decision means it must present ``sufficient evidence * * * to establish 
    the essential facts * * * which evidence will remain sufficient if not 
    contradicted. It is evidence that will justify but not compel a finding 
    in favor of the one presenting it.'' James Moore, 1 IBSMA 216, 223 n.7, 
    86 I.D. 369, 373 n.7 (1979). It is the permittee, applicant, or other 
    person shown in the AVS who will have access to information that would 
    overcome OSM's prima facie case. Harry Smith Construction Co. v. OSM, 
    78 IBLA 27, 31 (1983). Under the Administrative Procedure Act, 5 U.S.C. 
    556(d) (1988), OSM properly bears only the burden of going forward with 
    proof, not the ultimate burden of persuasion. Environmental Defense 
    Fund, Inc. v. Environmental Protection Agency, 548 F.2d 998, 1012-13 
    (D.C. Cir. 1976).
    
    Right of Appeals From OSM Decisions for Adversely Affected Persons; 
    Notice of Appeals to Adversely Affected Persons
    
        The NWF comments criticized proposed 43 CFR 4.1371 for its failure 
    to incorporate the rights of citizens to challenge decisions by OSM 
    regarding improvidently issued permits under 30 CFR 773.20. As 
    explained above, 30 CFR 773.20 provides that a permit has been 
    improvidently issued if, under the violations review criteria at the 
    time the permit was issued, the regulatory authority should not have 
    issued the permit. Proposed 43 CFR 4.1371 grants a right of review to a 
    ``permittee that is served with a notice of suspension under 30 CFR 
    773.20(c)(2) or a notice of proposed suspension and rescission under 30 
    CFR 773.21.'' The rights of citizens to appeal similar decisions have 
    been completely overlooked, NWF states.
        Similarly, NWF objects to proposed 43 CFR 4.1381, which authorizes 
    ``[a]ny person who receives a written decision from OSM'' pursuant to 
    proposed 30 CFR 773.24(d)(2) or 773.25(c)(2) to file a request for 
    review of OSM's finding that such person is in an ownership or control 
    link to any person cited in a violation notice within the scope of 30 
    CFR 773.5 and 773.15(b). No provision for citizen-initiated appeals of 
    these decisions exists under the proposed rules, NWF states. 
    ``Decisions by OSM not to act on the information provided by citizens, 
    or decisions to issue permits in the face of information that indicates 
    an ownership or control link to a violation, should be subject to 
    review by the Office of Hearings and Appeals,'' NWF comments.
        NWF also criticizes lack of notice to affected citizens. Although 
    proposed 43 CFR 4.1372(b) provides to ``OSM and all interested 
    parties'' the right to file an answer to a request for review of a 
    decision to suspend or rescind a permit as improvidently issued and to 
    request an evidentiary hearing even if the person requesting review 
    does not, it is silent as to how interested parties other than OSM are 
    to know that a request for review has been filed, NWF states. Only 
    counsel for OSM would be served with a copy of a request for review 
    under 43 CFR 4.1109, NWF observes. Similarly, the rules proposed in 43 
    CFR 4.1380-4.1387 for review of OSM decisions concerning ownership and 
    control links provide ``no notice to citizens who may be substantially 
    and adversely affected by a reversal of a determination of ownership 
    and control linkage,'' NWF comments. Specific provisions for notice to 
    all affected persons of appeals of both kinds of OSM decisions should 
    be adopted, NWF urges.
        OHA agrees that provisions for notice to citizens of appeals of OSM 
    decisions concerning permit suspension and rescission and concerning 
    ownership and control links and for rights of appeal of such OSM 
    decisions were not included in the proposed rules. Adding such 
    provisions to the final rules on the basis of NWF's comments, however, 
    without providing an opportunity for notice and comment, might be 
    regarded as inconsistent with the requirements of the Administrative 
    Procedure Act. See American Federation of Labor v. Donovan, 757 F.2d 
    330, 338-40 (D.C. Cir. 1985). After consultation with OSM, OHA may 
    propose rules concerning these issues in the future. Meanwhile, no 
    right of appeal by citizens from OSM decisions not to find an ownership 
    or control link is available under these rules. Citizens may of course 
    avail themselves of existing procedures, e.g., 30 CFR 773.13, 842.11, 
    842.12, 842.15, and 843.21, and petition for leave to intervene in 
    proceedings under Secs. 4.1370-4.1377 and 4.1380-4.1387 in accordance 
    with 43 CFR 4.1110.
    
    Changes in the Final Rules From the Proposed Rules
    
        OHA believes no revisions to proposed 43 CFR 4.1370-4.1377 and 
    4.1380-4.1387 are required in response to the comments. However, OHA 
    has made the following changes to the proposed rules to improve their 
    clarity and to remove references to section numbers of the rules 
    proposed by OSM:
        1. 43 CFR 4.1373(a): The phrase ``If a hearing is requested'' has 
    been added at the beginning of the first sentence, and the remainder of 
    the sentence revised, to account for the possibility that a hearing 
    might not be requested.
        2. 43 CFR 4.1373(b): ``of the date of the hearing'' has been added 
    at the end of the sentence to make clear that notice shall be given at 
    least 10 days in advance of the hearing.
        3. 43 CFR 4.1375: An alternative deadline is provided for issuance 
    of an initial decision when no hearing is held.
        4. 43 CFR 4.1380: The language concerning the kind of OSM decisions 
    from which a request for review may be filed has been revised to 
    replace references to 30 CFR 773.5 and 773.15(b) with a more general 
    description, i.e., decisions on challenges by an applicant or other 
    person shown in the AVS to an ownership or control link or the status 
    of a violation.
        5. 43 CFR 4.1381(a): The specific references to proposed 30 CFR 
    773.24(d)(2) and 773.25(c)(2) and to 30 CFR 773.5 and 773.15(b) have 
    been replaced with language describing the kind of OSM decision from 
    which a request for review may be filed, i.e., a written decision by 
    OSM, in response to a challenge from an applicant or other person shown 
    in the AVS, on whether or not the ownership or control link has been 
    shown to be erroneous or has been rebutted and/or whether the violation 
    covered by the notice remains outstanding, has been corrected, or is 
    the subject of a good faith appeal.
        6. 43 CFR 4.1383(a): The phrase ``If a hearing is requested'' has 
    been added at the beginning of the first sentence, and the remainder of 
    the sentence revised, to account for the possibility that a hearing 
    might not be requested.
        7. 43 CFR 4.1383(b): ``of the date of the hearing'' has been added 
    at the end of the sentence to make clear that notice shall be given at 
    least 10 days in advance of the hearing.
        8. 43 CFR 4.1385: An alternative deadline is provided for issuance 
    of an initial decision when no hearing is held.
        In addition, in order to implement the Administrative Dispute 
    Resolution Act, OHA has added rules (Secs. 4.1371(c), 4.1381(c)) 
    providing the parties an opportunity to employ alternatives means of 
    dispute resolution, as defined in 5 U.S.C. 571(3) (1988), before the 
    hearing and appeals procedures set forth in the following rules. Any 
    party could decline this opportunity, in its discretion, at any time. 
    Because no new obligations are imposed and this voluntary procedure 
    does not affect substantive rights, its adoption does not require 
    separate notice under the Administrative Procedure Act.
    
    Determination of Effects
    
        The Department has determined that these rules will not have a 
    significant economic effect on a substantial number of small entities 
    under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.
    
    Executive Order 12866
    
        These rules were not subject to OMB review under Executive Order 
    12866.
    
    National Environmental Policy Act
    
        The Department has determined that these rules will not 
    significantly affect the quality of the human environment on the basis 
    of the categorical exclusion of regulations of a procedural nature set 
    forth in 516 DM 2, Appendix 1, section 1.10.
    
    Paperwork Reduction Act
    
        These rules contain no information collection requirement requiring 
    Office of Management and Budget approval under 44 U.S.C. 3501 et seq.
    
    Takings Implication Assessment
    
        These rules do not pose any takings implications requiring 
    preparation of a Takings Implication Assessment under Executive Order 
    No. 12630 of March 18, 1988.
    
    Drafting Information
    
        The primary author of these regulations is Will A. Irwin, 
    Administrative Judge, Interior Board of Land Appeals, Office of 
    Hearings and Appeals, U.S. Department of the Interior.
    
    List of Subjects in 43 CFR Part 4
    
        Administrative practice and procedure, Mines, Public lands, Surface 
    mining.
        For the reasons set forth in the preamble, subpart L of part 4 of 
    title 43 of the Code of Federal Regulations is amended as set forth 
    below:
    
        Dated: August 18, 1994.
    Bonnie R. Cohen,
    Assistant Secretary--Policy, Management and Budget.
    
        43 CFR part 4 is amended as follows:
    
    PART 4--[AMENDED]
    
    Subpart L--Special Rules Applicable to Surface Coal Mining Hearings 
    and Appeals
    
        1. The authority citation for part 4, subpart L, continues to read 
    as follows:
    
        Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 
    1275, 1293; 5 U.S.C. 301.
    
        2. Section 4.1105 is amended by revising paragraph (a)(2) 
    introductory text to read:
    
    
    Sec. 4.1105  Parties.
    
        (a) * * *
        (2) In a review proceeding under Secs. 4.1160 through 4.1171, 
    4.1180 through 4.1187, 4.1300 through 4.1309, 4.1350 through 4.1356, 
    4.1360 through 4.1369, 4.1370 through 4.1377, 4.1380 through 4.1387 or 
    4.1390 through 4.1394 of this part, OSM, as represented by the Office 
    of the Solicitor, Department of the Interior, and--
    * * * * *
        3. New Secs. 4.1370 through 4.1377 and a new undesignated heading 
    preceding them are added to read:
    
    Review of Decisions of the Office of Surface Mining Suspending or 
    Rescinding Improvidently Issued Permits
    
    Sec.
    4.1370  Scope.
    4.1371  Who may file, where to file, when to file.
    4.1372  Contents of request for review, response to request, 
    amendment of request.
    4.1373  Hearing.
    4.1374  Burdens of proof.
    4.1375  Time for initial decision.
    4.1376  Petition for temporary relief from notice of suspension or 
    notice of proposed suspension and rescission; appeals from decisions 
    granting or denying temporary relief.
    4.1377  Petition for discretionary review of initial decisions.
    
    Review of Decisions of the Office of Surface Mining Suspending or 
    Rescinding Improvidently Issued Permits
    
    
    Sec. 4.1370  Scope.
    
        Sections 4.1370 through 4.1377 govern the procedures for review of 
    notices from OSM of suspension of improvidently issued permits issued 
    under 30 CFR 773.20(c) or of notices of proposed suspension and 
    rescission of improvidently issued permits issued under 30 CFR 773.21.
    
    
    Sec. 4.1371  Who may file, where to file, when to file.
    
        (a) A permittee that is served with a notice of suspension under 30 
    CFR 773.20(c)(2) or a notice of proposed suspension and rescission 
    under 30 CFR 773.21 may file a request for review with the Hearings 
    Division, Office of Hearings and Appeals, U.S. Department of the 
    Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203 (Telephone 
    703-235-3800) within 30 days of service of the notice.
        (b) Failure to file a request for review within 30 days of service 
    of the notice shall constitute a waiver of review of the notice. An 
    untimely request for review shall be dismissed.
        (c) Where appropriate under the Administrative Dispute Resolution 
    Act, 5 U.S.C. Secs. 571-583, the Hearings Division may use a dispute 
    resolution proceeding, if the parties agree to such proceeding, before 
    the procedures set forth in Secs. 4.1373 through 4.1377.
    
    
    Sec. 4.1372  Contents of requests for review, response to request, 
    amendment of request.
    
        (a) The request for review shall include:
        (1) A copy of the notice of suspension or the notice of proposed 
    suspension and rescission;
        (2) Documentary proof, or, where appropriate, offers of proof, 
    concerning the matters set forth in 30 CFR 773.20(b) or 773.21(a)(1) 
    through (4) showing that the person requesting review is entitled to 
    administrative relief;
        (3) A statement whether the person requesting review wishes an 
    evidentiary hearing or waives the opportunity for such a hearing;
        (4) A request for specific relief; and
        (5) Any other relevant information.
        (b) Within 20 days of service of the request for review by the 
    permittee in accordance with 43 CFR 4.1109, OSM and all interested 
    parties shall file an answer to the request for review or a motion in 
    response to the request or a statement that no answer or motion will be 
    filed. OSM or any interested party may request an evidentiary hearing 
    even if the person requesting review has waived the opportunity for 
    such a hearing.
        (c) The permittee may amend the request for review once as a matter 
    of right before a response in accordance with paragraph (b) of this 
    section is required to be filed. After the period for filing such a 
    response, the permittee may file a motion for leave to amend the 
    request for review with the administrative law judge. If the 
    administrative law judge grants a motion for leave to amend, he shall 
    provide OSM and any other party that filed a response in accordance 
    with paragraph (b) not less than 10 days to file an amended response.
    
    
    Sec. 4.1373  Hearing.
    
        (a) If a hearing is requested, the administrative law judge shall 
    convene the hearing within 90 days of receipt of the responses under 
    Sec. 4.1372(a). The 90-day deadline for convening the hearing may be 
    waived for a definite time by the written agreement of all parties, 
    filed with the administrative law judge, or may be extended by the 
    administrative law judge, in response to a motion setting forth good 
    cause to do so, if no other party is prejudiced by the extension.
        (b) The administrative law judge shall give notice of the hearing 
    at least 10 days in advance of the date of the hearing.
    
    
    Sec. 4.1374  Burdens of proof.
    
        (a) OSM shall have the burden of going forward to present a prima 
    facie case of the validity of the notice of suspension or the notice of 
    proposed suspension and rescission.
        (b) The permittee shall have the ultimate burden of persuasion by a 
    preponderance of the evidence that the notice is invalid.
    
    
    Sec. 4.1375  Time for initial decision.
    
        The administrative law judge shall issue an initial decision within 
    30 days of the date the record of the hearing is closed, or, if no 
    hearing is held, within 30 days of the deadline for filing responses 
    under Sec. 4.1372(b).
    
    
    Sec. 4.1376  Petition for temporary relief from notice of suspension or 
    notice of proposed suspension and rescission: appeals from decisions 
    granting or denying temporary relief.
    
        (a) Any party may file a petition for temporary relief from the 
    notice of suspension or the notice of proposed suspension and 
    rescission in conjunction with the filing of the request for review or 
    at any time before an initial decision is issued by the administrative 
    law judge.
        (b) The petition for temporary relief shall be filed with the 
    administrative law judge to whom the request for review has been 
    assigned. If none has been assigned, the petition shall be filed with 
    the Hearings Division, Office of Hearings and Appeals, U.S. Department 
    of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203 
    (Telephone 703-235-3800).
        (c) The petition for temporary relief shall include:
        (1) A statement of the specific relief requested;
        (2) A detailed statement of why temporary relief should be granted, 
    including--
        (i) A showing that there is a substantial likelihood that 
    petitioner will prevail on the merits, and
        (ii) A showing that the relief sought will not adversely affect the 
    public health or safety or cause significant, imminent environmental 
    harm to land, air or water resources;
        (3) A statement whether the petitioner requests an evidentiary 
    hearing.
        (d) Any party may file a response to the petition no later than 5 
    days after it was served and may request a hearing even if the 
    petitioner has not done so.
        (e) The administrative law judge may hold a hearing on any issue 
    raised by the petition within 10 days of the filing of responses to the 
    petition, and shall do so if a hearing is requested by any party.
        (f) The administrative law judge shall issue an order or decision 
    granting or denying the petition for temporary relief within 5 days of 
    the date of a hearing on the petition or, if no hearing is held, of 
    service of the responses to the petition on all parties.
        (g) The administrative law judge may only grant temporary relief 
    if:
        (1) All parties to the proceeding have been notified of the 
    petition and have had an opportunity to respond and a hearing has been 
    held if requested;
        (2) The petitioner has demonstrated a substantial likelihood of 
    prevailing on the merits; and
        (3) Temporary relief will not adversely affect public health or 
    safety or cause significant, imminent harm to land, air or water 
    resources.
        (h) Any party may file an appeal of an order or decision granting 
    or denying temporary relief with the Board within 30 days of receipt of 
    the order or decision or, in the alternative, may seek judicial review 
    within 30 days in accordance with section 526(a) of the Act, 30 U.S.C. 
    1276(a). If an appeal is filed with the Board, the Board shall issue an 
    expedited briefing schedule and shall decide the appeal expeditiously.
    
    
    Sec. 4.1377  Petition for discretionary review of initial decision.
    
        (a) Any party may file a petition for discretionary review of an 
    initial decision of an administrative law judge issued under 
    Sec. 4.1375 with the Board within 30 days of receipt of the decision. 
    An untimely petition shall be dismissed.
        (b) The petition for discretionary review shall set forth 
    specifically the alleged errors in the initial decision, with 
    supporting argument, and shall attach a copy of the decision.
        (c) Any party may file a response to the petition for discretionary 
    review within 30 days of its service.
        (d) The Board shall issue a decision denying the petition or 
    granting the petition and deciding the merits within 60 days of the 
    deadline for filing responses.
        4. New Secs. 4.1380 through 4.1387 and a new undesignated heading 
    preceding them are added to read:
    
    Review of Office of Surface Mining Written Decisions Concerning 
    Ownership and Control
    
    Sec.
    4.1380  Scope.
    4.1381  Who may file; when to file; where to file.
    4.1382  Contents of request for review; response to request; 
    amendment of request.
    4.1383  Hearing.
    4.1384  Burdens of proof.
    4.1385  Time for initial decision.
    4.1386  Petition for temporary relief from decision; appeals from 
    decisions granting or denying relief.
    4.1387  Petition for discretionary review of initial decisions.
    
    Review of Office of Surface Mining Written Decisions Concerning 
    Ownership and Control
    
    
    Sec. 4.1380  Scope.
    
        Sections 4.1380 through 4.1387 govern the procedures for review of 
    written decisions of OSM on challenges by an applicant or other person 
    shown in the Applicant Violator System to an ownership or control link 
    or the status of a violation.
    
    
    Sec. 4.1381  Who may file; when to file; where to file.
    
        (a) An applicant or any other person shown in the Applicant 
    Violator System who receives a written decision by OSM, in response to 
    a challenge to an ownership or control link or the status of a 
    violation, on whether or not the ownership or control link has been 
    shown to be erroneous or has been rebutted and/or whether the violation 
    covered by a federal violation notice remains outstanding, has been 
    corrected, or is the subject of a good faith appeal may file a request 
    for review with the Hearings Division, Office of Hearings and Appeals, 
    U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, 
    Virginia 22203 (Telephone 703-235-3800) within 30 days of service of 
    the decision.
        (b) Failure to file a request for review within 30 days of service 
    of the decision constitutes a waiver of review of the decision. An 
    untimely request for review shall be dismissed.
        (c) Where appropriate under the Administrative Dispute Resolution 
    Act, 5 U.S.C. Secs. 571-583, the Hearings Division may use a dispute 
    resolution proceeding, if the parties agree to such proceeding, before 
    the procedures set forth in Secs. 4.1383 through 4.1387.
    
    
    Sec. 4.1382  Contents of request for review; response to request; 
    amendment of request.
    
        (a) The request for review shall include:
        (1) A copy of the decision of OSM;
        (2) A statement of the alleged errors in the decision and the facts 
    that entitle the person requesting review to administrative relief;
        (3) A statement whether the person requesting review wishes an 
    evidentiary hearing or waives the opportunity for such a hearing;
        (4) A request for specific relief; and
        (5) Any other relevant information.
        (b) Within 20 days of service of the request for review in 
    accordance with 43 CFR 4.1109, OSM and all interested parties shall 
    file an answer to the request for review or a motion in response to the 
    request or a statement that no answer or motion will be filed. OSM or 
    any interested party may request an evidentiary hearing even if the 
    person requesting review has waived the opportunity for a hearing.
        (c) The person filing the request for review may amend it once as a 
    matter of right before the response in accordance with paragraph (b) of 
    this section is required to be filed. After the period for filing such 
    a response, the person may file a motion for leave to amend the request 
    with the administrative law judge. If the administrative law judge 
    grants a motion for leave to amend, he shall provide OSM and any other 
    party that filed a response in accordance with paragraph (b) not less 
    than 10 days to file an amended response.
    
    
    Sec. 4.1383  Hearing.
    
        (a) If a hearing is requested, the administrative law judge shall 
    convene the hearing within 90 days of receipt of responses under 
    Sec. 4.1382(b). The 90-day deadline for convening the hearing may be 
    waived for a definite time by the written agreement of all parties, 
    filed with the administrative law judge, or may be extended by the 
    administrative law judge, in response to a motion setting forth good 
    cause to do so, if no other party is prejudiced by the extension.
        (b) The administrative law judge shall give notice of the hearing 
    at least 10 days in advance of the date of the hearing.
    
    
    Sec. 4.1384  Burdens of proof.
    
        (a) OSM shall have the burden of going forward to present a prima 
    facie case of the validity of the decision.
        (b) The person filing the request for review shall have the 
    ultimate burden of persuasion by a preponderance of the evidence that 
    the decision is in error.
    
    
    Sec. 4.1385  Time for initial decision.
    
        The administrative law judge shall issue an initial decision within 
    30 days of the date the record of the hearing is closed, or, if no 
    hearing is held, within 30 days of the deadline for filing responses 
    under Sec. 4.1382(b).
    
    
    Sec. 4.1386  Petition for temporary relief from decision; appeals from 
    decisions granting or denying temporary relief.
    
        (a) Any party may file a petition for temporary relief from the 
    decision of OSM in conjunction with the filing of the request for 
    review or at any time before an initial decision is issued by the 
    administrative law judge.
        (b) The petition for temporary relief shall be filed with the 
    administrative law judge to whom the request for review has been 
    assigned. If none has been assigned, the petition shall be filed with 
    the Hearings Division, Office of Hearings and Appeals, U.S. Department 
    of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203 
    (Telephone 703-235-3800).
        (c) The petition for temporary relief shall include:
        (1) A statement of the specific relief requested:
        (2) A detailed statement of why temporary relief should be granted, 
    including:
        (i) A showing that there is a substantial likelihood that 
    petitioner will prevail on the merits, and
        (ii) A showing that granting the relief requested will not 
    adversely affect the public health or safety or cause significant, 
    imminent environmental harm to land, air or water resources;
        (3) A statement whether the petitioner requests an evidentiary 
    hearing.
        (d) Any party may file a response to the petition no later than 5 
    days after it was served and may request a hearing even if the 
    petitioner has not done so.
        (e) The administrative law judge may hold a hearing on any issue 
    raised by the petition within 10 days of the filing of responses to the 
    petition, and shall do so if a hearing is requested by any party.
        (f) The administrative law judge shall issue an order or decision 
    granting or denying the petition for temporary relief within 5 days of 
    the date of a hearing on the petition or, if no hearing is held, of 
    service of the responses to the petition on all parties.
        (g) The administrative law judge may only grant temporary relief 
    if:
        (1) All parties to the proceeding have been notified of the 
    petition and have had an opportunity to respond and a hearing has been 
    held if requested;
        (2) The petitioner has demonstrated a substantial likelihood of 
    prevailing on the merits; and
        (3) Temporary relief will not adversely affect public health or 
    safety or cause significant, imminent environmental harm to land, air 
    or water resources.
        (h) Any party may file an appeal of an order or decision granting 
    or denying temporary relief with the Board within 30 days of receipt of 
    the order or decision or, in the alternative, may seek judicial review 
    within 30 days in accordance with section 526(a) of the Act, 30 U.S.C. 
    1276(a). If an appeal is filed with the Board, the Board shall issue an 
    expedited briefing schedule and shall decide the appeal expeditiously.
    
    
    Sec. 4.1387  Petition for discretionary review of initial decisions.
    
        (a) Any party may file a petition for discretionary review of an 
    initial decision of an administrative law judge issued under 
    Sec. 4.1385 with the Board within 30 days of receipt of the decision. 
    An untimely petition shall be dismissed.
        (b) The petition for discretionary review shall set forth 
    specifically the alleged errors in the initial decision, with 
    supporting argument, and shall attach a copy of the decision.
        (c) Any party may file a response to the petition for discretionary 
    review within 30 days of its service.
        (d) The Board shall issue a decision denying the petition or 
    granting the petition and deciding the merits within 60 days of the 
    deadline for filing responses.
    [FR Doc. 94-26553 Filed 10-27-94; 8:45 am]
    BILLING CODE 4310-79-M
    
    
    

Document Information

Effective Date:
11/28/1994
Published:
10/28/1994
Department:
Hearings and Appeals Office, Interior Department
Entry Type:
Uncategorized Document
Action:
Final rule.
Document Number:
94-26553
Dates:
These final regulations are effective on November 28, 1994.
Pages:
0-0 (None pages)
Docket Numbers:
Federal Register: October 28, 1994
RINs:
1094-AA42
CFR: (19)
43 CFR 4.1372(a)
43 CFR 4.1382(b)
43 CFR 4.1105
43 CFR 4.1370
43 CFR 4.1371
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