| 43 CFR 4.1100
TITLE 43--PUBLIC LANDS: INTERIOR
PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES
Subpart L--Special Rules Applicable to Surface Coal Mining Hearings and Appeals
Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 1275,
1293; 5 U.S.C. 301.
Source: 43 FR 34386, Aug. 3, 1978, unless otherwise noted.
General Provisions
Sec. 4.1100 Definitions.
As used in the regulations in this subpart, the term--
(a) Act means the Surface Mining Control and Reclamation Act of
1977, 91 Stat. 445 et seq., 30 U.S.C. 1201 et seq..
(b) Administrative law judge means an administrative law judge in
the Hearings Division of the Office of Hearings and Appeals appointed
under 5 U.S.C. 3105 (1970).
(c) Board means the Board of Land Appeals in the Office of Hearings
and Appeals.
(d) OHA means the Office of Hearings and Appeals, Department of the
Interior.
(e) OSM means the Office of Surface Mining Reclamation and
Enforcement, Department of the Interior.
[43 FR 34386, Aug. 3, 1978, as amended at 49 FR 7565, Mar. 1, 1984; 59
FR 1488, Jan. 11, 1994]
Sec. 4.1101 Jurisdiction of the Board.
(a) The jurisdiction of the Board, as set forth in 43 CFR 4.1(4),
and subject to 43 CFR 4.21(c) and 4.5, includes the authority to
exercise the final decisionmaking power of the Secretary under the act
pertaining to--
(1) Applications for review of decisions by OSM regarding
determinations concerning permits for surface coal mining operations
pursuant to section 514 of the act;
(2) Petitions for review of proposed assessments of civil penalties
issued by OSM pursuant to section 518 of the act;
(3) Applications for review of notices of violation and orders of
cessation or modifications, vacations, or terminations thereof, issued
pursuant to section 521(a)(2) or section 521(a)(3) of the act;
(4) Proceedings for suspension or revocation of permits pursuant to
section 521(a)(4) of the act;
(5) Applications for review of alleged discriminatory acts filed
pursuant to section 703 of the act;
(6) Applications for temporary relief;
(7) Petitions for award of costs and expenses under section 525(e)
of the act;
(8) Appeals from orders or decisions of administrative law judges;
and
(9) All other appeals and review procedures under the act which are
permitted by these regulations.
(b) In performing its functions under paragraph (a) of this section,
the Board is authorized to--
(1) Order hearings; and
(2) Issue orders to secure the just and prompt determination of all
proceedings.
Sec. 4.1102 Construction.
These rules shall be construed to achieve the just, timely, and
inexpensive determination of all proceedings consistent with adequate
consideration of the issues involved.
Sec. 4.1103 Eligibility to practice.
(a) An administrative law judge or the Board may determine the
eligibility of persons to practice before OHA in any proceeding under
the act pursuant to 43 CFR part 1.
(b) If an administrative law judge or the Board determines that any
person is not qualified to practice before OHA,
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the administrative law judge or the Board shall disqualify the person
and report the disqualification to the Director of OHA.
(c) Upon receipt of a report under paragraph (b) of this section,
the Director of OHA may request the Solicitor to initiate a disciplinary
proceeding under 43 CFR 1.6.
Sec. 4.1104 General rules relating to procedure and practice.
Proceedings in OHA under the act are subject to the general rules
relating to procedures and practice in subpart B of this part.
Sec. 4.1105 Parties.
(a) All persons indicated in the act as parties to administrative
review proceedings under the act shall be considered statutory parties.
Such statutory parties include--
(1) In a civil penalty proceeding under Sec. 4.1150, OSM, as
represented by the Office of the Solicitor, Department of the Interior,
and any person against whom a proposed assessment is made who files a
petition;
(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--
(i) If an applicant, operator, or permittee files an application or
request for review, the applicant, operator, or permittee; and
(ii) If any other person having an interest which is or may be
adversely affected files an application or request for review, the
applicant, operator, or permittee and the person filing such application
or request;
(3) In a proceeding to suspend or revoke a permit under Sec. 4.1190
et seq. OSM, as represented by the Office of the Solicitor, Department
of the Interior, and the permittee who is ordered to show cause why the
permit should not be suspended or revoked; and
(4) In a discriminatory discharge proceeding under Sec. 4.1200 et
seq. OSM, as represented by the Office of the Solicitor, Department of
the Interior, any employee or any authorized representative of employees
who files an application for review, and the alleged discriminating
party, except where the applicant files a request for the scheduling of
a hearing under Sec. 4.1201(c) only such applicant and the alleged
discriminating party.
(5) In an appeal to the Board in accordance with 43 CFR 4.1280
through 4.1286 from a determination of the Director of OSM or his or her
designee under 30 CFR 842.15(d) or a determination of an authorized
representative under 30 CFR 843.12(i), the permittee of the operation
that is the subject of the determination and any person whose interests
may be adversely affected by the outcome on appeal and who participated
before OSM. A person who wishes his or her identity kept confidential
under 30 CFR 842.12(b) is responsible for maintaining that
confidentiality when serving documents in accordance with Sec. 4.1109.
(b) Any other person claiming a right to participate as a party may
seek leave to intervene in a proceeding by filing a petition to do so
pursuant to Sec. 4.1110.
(c) If any person has a right to participate as a full party in a
proceeding under the act and fails to exercise that right by
participating in each stage of the proceeding, that person may become a
participant with the rights of a party by order of an administrative law
judge or the Board.
[43 FR 34386, Aug. 3, 1978, as amended at 56 FR 2142, Jan. 22, 1991; 59
FR 1488, Jan. 11, 1994; 59 FR 54362, Oct. 28, 1994]
Sec. 4.1106 Hearing sites.
Unless the act requires otherwise, hearings shall be held in a
location established by the administrative law judge; however, the
administrative law judge shall give due regard to the convenience of the
parties or their representatives and witnessess.
Sec. 4.1107 Filing of documents.
(a) Any initial pleadings in a proceeding to be conducted or being
conducted by an administrative law judge under these rules shall be
filed, by hand or by
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mail, with the Hearings Division, Office of Hearings and Appeals,
Department of the Interior, 4015 Wilson Boulevard, Arlington, Va. 22203.
(b) Where a proceeding has been assigned to an administrative law
judge, the parties will be notified by the Chief Administrative Law
Judge of the name and address of the administrative law judge assigned
to the case and thereafter all further documents shall be filed with the
Administrative Law Judge, Office of Hearings and Appeals, at the address
designated in the notice.
(c) Any notice of appeal, petition for review or other documents in
a proceeding to be conducted or being conducted by the Board shall be
filed, by hand or by mail, with the Board of Land Appeals, Office of
Hearings and Appeals, 4015 Wilson Boulevard, Arlington, Va. 22203.
(d) Any person filing initial pleadings with the Hearings Division
or a notice of appeal with the Board shall furnish an original and one
copy. Any person filing other documents with OHA shall furnish only an
original.
(e) Any person who has initiated a proceeding under these rules
before the Hearings Division or filed a notice of appeal with the Board
shall file proof of service with the same in the form of a return
receipt where service is by registered or certified mail, or an
acknowledgement by the party served or a verified return where service
is made personally. A certificate of service shall accompany all other
documents filed by a party in any proceeding.
(f) The effective filing date for documents initiating proceedings
before the Hearings Division, OHA, Arlington, VA, shall be the date of
receipt in that office, if filed by hand, or the date such document is
postmarked, if filed by mail.
(g) The effective filing date for a notice of appeal or a petition
for discretionary review filed with the Board shall be the date of
mailing or the date of personal delivery, except the effective filing
date for a notice of appeal from a decision in an expedited review of a
cessation order proceeding or from a decision in a suspension or
revocation proceeding shall be the date of receipt of the document by
the Board. The burden of establishing the date of mailing shall be on
the person filing the document.
(h) The effective filing date for all other documents filed with an
administrative law judge or with the Board shall be the date of mailing
or personal delivery. The burden of establishing the date of mailing
shall be on the person filing the document.
[43 FR 34386, Aug. 3, 1978, as amended at 45 FR 50753, July 31, 1980; 46
FR 6942, Jan. 22, 1981; 49 FR 7565, Mar. 1, 1984]
Sec. 4.1108 Form of documents.
(a) Any document filed with OHA in any proceeding brought under the
act shall be captioned with--
(1) The names of the parties;
(2) The name of the mine to which the document relates; and
(3) If review is being sought under section 525 of the act,
identification by number of any notice or order sought to be reviewed.
(b) After a docket number has been assigned to the proceeding by
OHA, the caption shall contain such docket number.
(c) The caption may include other information appropriate for
identification of the proceeding, including the permit number or OSM
identification number.
(d) Each document shall contain a title that identifies the contents
of the document following the caption.
(e) The original of any document filed with OHA shall be signed by
the person submitting the document or by that person's attorney.
(f) The address and telephone number of the person filing the
document or that person's attorney shall appear beneath the signature.
Sec. 4.1109 Service.
(a)(1) Any party initiating a proceeding in OHA under the Act shall,
on the date of filing, simultaneously serve copies of the initiating
documents on the officer in the Office of the Solicitor, U.S. Department
of the Interior, representing OSMRE in the state in which the mining
operation at issue is located, and on any other statutory parties
specified under Sec. 4.1105 of this part.
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(2) The jurisdictions, addresses, and telephone numbers of the
applicable officers of the Office of the Solicitor to be served under
paragraph (a)(1) of this section are:
(i) For mining operations in Alabama, Arkansas, Georgia, Illinois,
Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, North
Carolina, Oklahoma, Tennessee, Texas, and Virginia: Field Solicitor,
U.S. Department of the Interior, 530 S. Gay Street, Room 308, Knoxville,
Tennessee 37902; Telephone: (615) 545-4294; FAX: (615) 545-4314.
(ii) For mining operations in Maryland, Massachusetts, Michigan,
Ohio, Pennsylvania, Rhode Island, and West Virginia: Field Solicitor,
U.S. Department of the Interior, Ten Parkway Center, Room 385,
Pittsburgh, Pennsylvania 15220; Telephone: (412) 937-4000; FAX: (412)
937-4003.
(iii) For mining operations in Colorado, Montana, North Dakota,
South Dakota, and Wyoming, including mining operations located on Indian
lands within those States: Regional Solicitor, Rocky Mountain Region,
U.S. Department of the Interior, 755 Parfet Street, Suite 151, Lakewood,
CO 80215; Telephone: (303) 231-5350; FAX: (303) 231-5360.
(iv) For mining operations in Arizona, California, and New Mexico,
including mining operations located on Indian lands within those States
except for the challenge of permitting decisions affecting mining
operations located on Indian lands in those states: Regional Solicitor,
Southwest Region, U.S. Department of the Interior, 2400 Louisiana Blvd.
N.E., Building One, Suite 200, Albuquerque, NM 87110-4316; Telephone:
(505) 883-6700; FAX: (505) 883-6711.
(v) For the challenge of permitting decisions affecting mining
operations located on Indian lands within Arizona, California, and New
Mexico: Regional Solicitor, Rocky Mountain Region, U.S. Department of
the Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215;
Telephone: (303) 231-5350; FAX: (303) 231-5360.
(vi) For mining operations in Alaska, Idaho, Oregon, Utah, and
Washington, except for the challenge of permitting decisions affecting
mining operations in Washington: Field Solicitor, U.S. Department of the
Interior, 6201 Federal Building, 125 South State Street, Salt Lake City,
UT 84138-1180; Telephone: (801) 524-5677; FAX: (801) 524-4506.
(vii) For the challenge of permitting decisions affecting mining
operations in Washington: Regional Solicitor, Rocky Mountain Region,
U.S. Department of the Interior, 755 Parfet Street, Suite 151, Lakewood,
CO 80215; Telephone: (303) 231-5350; FAX: (303) 231-5360.
(3) Any party or other person who subsequently files any other
document with OHA in the proceeding shall simultaneously serve copies of
that document on all other parties and persons participating in the
proceeding.
(b) Copies of documents by which any proceeding is initiated shall
be served on all statutory parties personally or by registered or
certified mail, return receipt requested. All subsequent documents shall
be served personally or by first class mail.
(c) Service of copies of all documents is complete at the time of
personal service or, if service is made by mail, upon receipt.
(d) Whenever an attorney has entered an appearance for a party in a
proceeding before an administrative law judge or the Board, service
thereafter shall be made upon the attorney.
[43 FR 34386, Aug. 3, 1978, as amended at 45 FR 50753, July 31, 1980; 52
FR 39526, Oct. 22, 1987; 56 FR 2142, Jan. 22, 1991; 56 FR 5061, Feb. 7,
1991; 59 FR 1488, Jan. 11, 1994; 59 FR 42774, Aug. 19, 1994; 60 FR
58243, Nov. 27, 1995; 61 FR 40348, Aug. 2, 1996]
Sec. 4.1110 Intervention.
(a) Any person, including a State, or OSM may petition for leave to
intervene at any stage of a proceeding in OHA under the act.
(b) A petitioner for leave to intervene shall incorporate in the
petition a statement setting forth the interest of the petitioner and,
where required, a showing of why his interest is or may be adversely
affected.
(c) The administrative law judge or the Board shall grant
intervention where the petitioner--
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(1) Had a statutory right to initiate the proceeding in which he
wishes to intervene; or
(2) Has an interest which is or may be adversely affected by the
outcome of the proceeding.
(d) If neither paragraph (c)(1) nor (c)(2) of this section apply,
the administrative law judge or the Board shall consider the following
in determining whether intervention is appropriate--
(1) The nature of the issues;
(2) The adequacy of representation of petitioner's interest which is
provided by the existing parties to the proceeding;
(3) The ability of the petitioner to present relevant evidence and
argument; and
(4) The effect of intervention on the agency's implementation of its
statutory mandate.
(e) Any person, including a State, or OSM granted leave to intervene
in a proceeding may participate in such proceeding as a full party or,
if desired, in a capacity less than that of a full party. If an
intervenor wishes to participate in a limited capacity, the extent and
the terms of the participation shall be in the discretion of the
administrative law judge or the Board.
Sec. 4.1111 Voluntary dismissal.
Any party who initiated a proceeding before OHA may seek to withdraw
by moving to dismiss at any stage of a proceeding and the administrative
law judge or the Board may grant such a motion.
Sec. 4.1112 Motions.
(a) Except for oral motions made in proceedings on the record, or
where the administrative law judge otherwise directs, each motion
shall--
(1) Be in writing; and
(2) Contain a concise statement of supporting grounds.
(b) Unless the administrative law judge or the Board orders
otherwise, any party to a proceeding in which a motion is filed under
paragraph (a) of this section shall have 15 days from service of the
motion to file a statement in response.
(c) Failure to make a timely motion or to file a statement in
response may be construed as a waiver of objection.
(d) An administrative law judge or the Board shall rule on all
motions as expeditiously as possible.
Sec. 4.1113 Consolidation of proceedings.
When proceedings involving a common question of law or fact are
pending before an administrative law judge or the Board, such
proceedings are subject to consolidation pursuant to a motion by a party
or at the initiative of an administrative law judge or the Board.
Sec. 4.1114 Advancement of proceedings.
(a) Except in expedited review proceedings under Sec. 4.1180, or in
temporary relief proceedings under Sec. 4.1266, at any time after
commencement of a proceeding, any party may move to advance the
scheduling of a proceeding.
(b) Except as otherwise directed by the administrative law judge or
the Board, any party filing a motion under this section shall--
(1) Make the motion in writing;
(2) Describe the exigent circumstances justifying advancement;
(3) Describe the irreparable harm that would result if the motion is
not granted; and
(4) Incorporate in the motion affidavits to support any
representations of fact.
(c) Service of a motion under this section shall be accomplished by
personal delivery or by telephonic or telegraphic communication followed
by mail. Service is complete upon mailing.
(d) Unless otherwise directed by the administrative law judge or the
Board, all parties to the proceeding in which the motion is filed shall
have 10 days from the date of service of the motion to file a statement
in response to the motion.
(e) Following the timely receipt by the administrative law judge of
statements in response to the motion, the administrative law judge may
schedule a hearing regarding the motion. If the motion is granted, the
administrative law judge may advance pleading schedules, prehearing
conferences, and the hearing, as deemed appropriate: Provided, A hearing
on the merits shall not be scheduled with less than 5 working days
notice to the parties, unless all parties consent to an earlier hearing.
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(f) If the motion is granted, the Board may, if it deems such action
to be appropriate, advance the appeal on its calendar and order such
other advancement as may be appropriate, including an abbreviated
schedule for briefing or oral argument.
Sec. 4.1115 Waiver of right to hearing.
Any person entitled to a hearing before an administrative law judge
under the act may waive such right in writing. Where parties are
directed by any rule in these regulations to file a responsive pleading
on or before a specified time, any party who fails to file such
responsive pleading by the time specified, may be deemed to have waived
his right to a hearing. Unless all parties to a proceeding who are
entitled to a hearing waive, or are deemed to have waived such right, a
hearing will be held.
Sec. 4.1116 Status of notices of violation and orders of cessation
pending review by the Office of Hearings and Appeals.
Except where temporary relief is granted pursuant to section 525(c)
or section 526(c) of the act, notices of violation and orders of
cessation issued under the act shall remain in effect during the
pendency of review before an administrative law judge or the Board.
Evidentiary Hearings
Sec. 4.1120 Presiding officers.
An adminstrative law judge in the Office of Hearings and Appeals
shall preside over any hearing required by the act to be conducted
pursuant to 5 U.S.C. 554 (1970).
Sec. 4.1121 Powers of administrative law judges.
(a) Under the regulations of this part, an administrative law judge
may--
(1) Administer oaths and affirmations;
(2) Issue subpoenas;
(3) Issue appropriate orders relating to discovery;
(4) Rule on procedural requests or similar matters;
(5) Hold conferences for settlement or simplification of the issues;
(6) Regulate the course of the hearing;
(7) Rule on offers of proof and receive relevant evidence;
(8) Take other actions authorized by this part, by 5 U.S.C. 556
(1970), or by the act; and
(9) Make or recommend decisions in accordance with 5 U.S.C. 557
(1970).
(b) An administrative law judge may order a prehearing conference--
(1) To simplify and clarify issues;
(2) To receive stipulations and admissions;
(3) To explore the possibility of agreement disposing of any or all
of the issues in dispute; and
(4) For such other purposes as may be appropriate.
(c) Except as otherwise provided in these regulations, the
jurisdiction of an administrative law judge shall terminate upon--
(1) The filing of a notice of appeal from an initial decision or
other order dispositive of the proceeding;
(2) The issuance of an order of the Board granting a petition for
review; or
(3) The expiration of the time period within which a petition for
review or an appeal to the Board may be filed.
Sec. 4.1122 Conduct of administrative law judges.
Administrative law judges shall adhere to the ``Code of Judicial
Conduct.''
Sec. 4.1123 Notice of hearing.
(a) An administrative law judge shall give notice to the parties of
the time, place and nature of any hearing.
(b) Except for expedited review proceedings and temporary relief
proceedings where time is of the essence, notice given under this
section shall be in writing.
(c) In an expedited proceeding when there is only opportunity to
give oral notice, the administrative law judge shall enter that fact
contemporaneously on the record by a signed and dated memorandum
describing the notice given.
Sec. 4.1124 Certification of interlocutory ruling.
Upon motion or upon the initiative of an administrative law judge,
the judge may certify to the Board a ruling
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which does not finally dispose of the case if the ruling presents a
controling question of law and an immediate appeal would materially
advance ultimate disposition by the judge.
Sec. 4.1125 Summary decision.
(a) At any time after a proceeding has begun, a party may move for
summary decision of the whole or part of a case.
(b) The moving party under this section shall verify any allegations
of fact with supporting affidavits, unless the moving party is relying
upon depositions, answers to interrogatories, admissions, or documents
produced upon request to verify such allegations.
(c) An administrative law judge may grant a motion under this
section if the record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows that--
(1) There is no disputed issue as to any material fact; and
(2) The moving party is entitled to summary decision as a matter of
law.
(d) If a motion for summary decision is not granted for the entire
case or for all the relief requested and an evidentiary hearing is
necessary, the administrative law judge shall, if practicable, and upon
examination of all relevant documents and evidence before him, ascertain
what material facts are actually and in good faith controverted. He
shall thereupon, issue an order specifying the facts that appear without
substantial controversy and direct such further proceedings as deemed
appropriate.
Sec. 4.1126 Proposed findings of fact and conclusions of law.
The administrative law judge shall allow the parties to a proceeding
an opportunity to submit proposed findings of fact and conclusions of
law together with a supporting brief at a time designated by the
administrative law judge.
Sec. 4.1127 Initial orders and decisions.
An initial order or decision disposing of a case shall incorporate--
(a) Findings of fact and conclusions of law and the basis and
reasons therefore on all the material issues of fact, law, and
discretion presented on the record; and
(b) An order granting or denying relief.
Sec. 4.1128 Effect of initial order or decision.
An initial order or decision shall become final if that order or
decision is not timely appealed to the Board under Sec. 4.1270 or
Sec. 4.1271.
Sec. 4.1129 Certification of record.
Except in expedited review proceedings under Sec. 4.1180, within 5
days after an initial decision has been rendered, the administrative law
judge shall certify the official record of the proceedings, including
all exhibits, and transmit the official record for filing in the
Hearings Division, Office of Hearings and Appeals, Arlington, Va.
Discovery
Sec. 4.1130 Discovery methods.
Parties may obtain discovery by one or more of the following
methods--
(a) Depositions upon oral examination or upon written
interrogatories;
(b) Written interrogatories;
(c) Production of documents or things or permission to enter upon
land or other property, for inspection and other purposes; and
(d) Requests for admission.
Sec. 4.1131 Time for discovery.
Following the initiation of a proceeding, the parties may initiate
discovery at any time as long as it does not interfere with the conduct
of the hearing.
Sec. 4.1132 Scope of discovery.
(a) Unless otherwise limited by order of the administrative law
judge in accordance with these rules, the parties may obtain discovery
regarding any matter, not privileged, which is relevant to the subject
matter involved in the proceeding, including the existence, description,
nature, custody, condition, and location of any books, documents, or
other tangible things and the identity and location of persons having
knowledge of any discoverable matter.
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(b) It is not ground for objection that information sought will not
be admissible at the hearing if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
(c) A party may obtain discovery of documents and tangible things
otherwise discoverable under paragraph (a) of this section and prepared
in anticipation of or for the hearing by or for another party's
representative (including his attorney, consultant, surety, indemnitor,
insurer, or agent) only upon a showing that the party seeking discovery
has substantial need of the materials in the preparation of his case and
that he is unable without undue hardship to obtain the substantial
equivalent of the materials by other means. In ordering discovery of
such materials when the required showing has been made, the
administrative law judge shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or
other representative of a party concerning the proceeding.
(d) Upon motion by a party or the person from whom discovery is
sought, and for good cause shown, the administrative law judge may make
any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following--
(1) The discovery not be had;
(2) The discovery may be had only on specified terms and conditions,
including a designation of the time or place;
(3) The discovery may be had only by a method of discovery other
than that selected by the party seeking discovery;
(4) Certain matters not relevant may not be inquired into, or that
the scope of discovery be limited to certain matters;
(5) Discovery be conducted with no one present except persons
designated by the administrative law judge; or
(6) A trade secret or other confidential research, development or
commercial information may not be disclosed or be disclosed only in a
designated way.
Sec. 4.1133 Sequence and timing of discovery.
Unless the administrative law judge upon motion, for the convenience
of parties and witnesses and in the interests of justice, orders
otherwise, methods of discovery may be used in any sequence and the fact
that a party is conducting discovery, whether by deposition or
otherwise, shall not operate to delay any other party's discovery.
Sec. 4.1134 Supplementation of responses.
A party who has responded to a request for discovery with a response
that was complete when made is under no duty to supplement his response
to include information thereafter acquired, except as follows--
(a) A party is under a duty to supplement timely his response with
respect to any question directly addressed to--
(1) The identity and location of persons having knowledge of
discoverable matters; and
(2) The identity of each person expected to be called as an expert
witness at the hearing, the subject matter on which he is expected to
testify and the substance of his testimony.
(b) A party is under a duty to amend timely a prior response if he
later obtains information upon the basis of which--
(1) He knows the response was incorrect when made; or
(2) He knows that the response though correct when made is no longer
true and the circumstances are such that a failure to amend the response
is in substance a knowing concealment.
(c) A duty to supplement responses may be imposed by order of the
administrative law judge or agreement of the parties.
Sec. 4.1135 Motion to compel discovery.
(a) If a deponent fails to answer a question propounded, or a party
upon whom a request is made pursuant to Sec. 4.1140, or a party upon
whom answers to interrogatories are served fails to adequately respond
or objects to the request, or any part thereof, or fails to permit
inspection as requested, the discovering party may move the
administrative law judge for an order compelling a response or
inspection in accordance with the request.
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(b) The motion shall set forth--
(1) The nature of the questions or request;
(2) The response or objection of the party upon whom the request was
served; and
(3) Arguments in support of the motion.
(c) For purposes of this section, an evasive answer or incomplete
answer or response shall be treated as a failure to answer or respond.
(d) In ruling on a motion made pursuant to this section, the
administrative law judge may make such a protective order as he is
authorized to make on a motion made pursuant to Sec. 4.1132(d).
Sec. 4.1136 Failure to comply with orders compelling discovery.
If a party or an officer, director, or other agent of a party fails
to obey an order to provide or permit discovery, the administrative law
judge before whom the action is pending may make such orders in regard
to the failure as are just, including but not limited to the following--
(a) An order that the matters sought to be discovered or any other
designated facts shall be taken to be established for the purposes of
the action in accordance with the claim of the party obtaining the
order;
(b) An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting him from
introducing designated matters into evidence; or
(c) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the action
or proceeding or any part thereof, or rendering a judgment by default
against the disobedient party.
Sec. 4.1137 Depositions upon oral examination or upon written
questions.
(a) Any party desiring to take the testimony of any other party or
other person by deposition upon oral examination or written questions
shall, without leave of the administrative law judge, give reasonable
notice in writing to every other party, to the person to be examined and
to the administrative law judge of--
(1) The proposed time and place of taking the deposition;
(2) The name and address of each person to be examined, if known, or
if the name is not known, a general description sufficient to identify
him or the particular group or class to which he belongs;
(3) The matter upon which each person will be examined; and
(4) The name or descriptive title and address of the officer before
whom the deposition is to be taken.
(b) A deposition may be taken before any officer authorized to
administer oaths by the laws of the United States or of the place where
the examination is held.
(c) The actual taking of the deposition shall proceed as follows--
(1) The deposition shall be on the record;
(2) The officer before whom the deposition is to be taken shall put
the witness on oath or affirmation;
(3) Examination and cross-examination shall proceed as at a hearing;
(4) All objections made at the time of the examination shall be
noted by the officer upon the deposition;
(5) The officer shall not rule on objections to the evidence, but
evidence objected to shall be taken subject to the objections.
(d) When the testimony is fully transcribed, the deposition shall be
submitted to the deponent for examination and signature, unless
examination and signature is waived by the deponent. The officer shall
certify the deposition or, if the deposition is not signed by the
deponent, shall certify the reasons for the failure to sign.
(e) Where the deposition is to be taken upon written questions, the
party taking the deposition shall serve a copy of the questions, showing
each question separately and consecutively numbered, on every other
party with a notice stating the name and address of the person who is to
answer them, and the name, description, title, and address of the
officer before whom they are to be taken. Within 30 days after service,
any other party may serve cross-questions. The questions, cross-
questions, and answers shall be recorded and signed, and the deposition
[[Page 130]]
certified, as in the case of a deposition on oral examination.
(f) A deposition will not become a part of the record in the hearing
unless received in evidence. If only part of a deposition is offered in
evidence by a party, any other party may introduce any other parts.
(g) A deponent whose deposition is taken and the officer taking a
deposition shall be entitled to the same fees as are paid for like
services in the district courts of the United States, to be paid by the
party at whose instance the deposition is taken.
(h) The deponent may be accompanied, represented, and advised by
legal counsel.
Sec. 4.1138 Use of depositions.
At the hearing, any part or all of a deposition, so far as
admissible, may be used against any party who was present or represented
at the taking of the deposition, or who had reasonable notice thereof,
in accordance with any of the following provisions--
(a) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of a deponent as a witness;
(b) The deposition of a party or of anyone who at the time of taking
the deposition was an officer, director, or managing agent or a person
designated to testify on behalf of a public or private corporation,
partnership, or association or governmental agency which is a party may
be used by an adverse party for any purpose; or
(c) The deposition of a witness, whether or not a party, may be used
by a party for any purpose if the administrative law judge finds that--
(1) The witness is dead;
(2) The witness is at a distance greater than 100 miles from the
place of hearing, or is outside the United States, unless it appears
that the absence of the witness was procured by the party offering the
deposition;
(3) The witness is unable to attend or testify because of age,
illness, infirmity, or imprisonment;
(4) The party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or
(5) Such exceptional circumstances exist as to make it desirable, in
the interest of justice and with due regard to the importance of
presenting the testimony of witnesses orally at the hearing, to allow
the deposition to be used.
Sec. 4.1139 Written interrogatories to parties.
(a) Any party may serve upon any other party written interrogatories
to be answered in writing by the party served, or if the party served is
a public or private corporation or a partnership or association or
governmental agency, by any officer or agent, who shall furnish such
information as is available to the party. A copy of the interrogatories,
answers, and all related pleadings shall be served on the administrative
law judge and upon all parties to the proceeding.
(b) Each interrogatory shall be answered separately and fully in
writing under oath or affirmation, unless it is objected to, in which
event the reasons for objection shall be stated in lieu of an answer.
The answer and objections shall be signed by the person making them. The
party upon whom the interrogatories were served shall serve a copy of
the answers and objections upon all partes to the proceeding within 30
days after service of the interrogatories, or within such shorter or
longer period as the administrative law judge may allow.
(c) Interrogatories may relate to any matters which can be inquired
into under Sec. 4.1132. An interrogatory otherwise proper is not
necessarily objectionable merely because an answer to the interrogatory
involves an opinion or contention that relates to fact or the
application of law to fact, but the administrative law judge may order
that such an interrogatory need not be answered until after designated
discovery has been completed or until a prehearing conference or other
later time.
Sec. 4.1140 Production of documents and things and entry upon land for
inspection and other purposes.
(a) Any party may serve on any other party a request to--
(1) Produce and permit the party making the request, or a person
acting on his behalf, to inspect and copy any designated documents, or
to inspect and copy, test, or sample any tangible
[[Page 131]]
things within the scope of Sec. 4.1132 and which are in the possession,
custody, or control of the party upon whom the request is served; or
(2) Permit entry upon designated land or other property in the
possession or control of the party upon whom the request is served for
the purpose of inspection and measuring, surveying, photographing,
testing, or sampling the property (including the air, water, and soil)
or any designated object or operation thereon, within the scope of
Sec. 4.1132.
(b) The request may be served on any party without leave of the
administrative law judge.
(c) The request shall--
(1) Set forth the items to be inspected either by individual item or
by category;
(2) Describe each item or category with reasonable particularity;
and
(3) Specify a reasonable time, place, and manner of making the
inspection and performing the related acts.
(d) The party upon whom the request is served shall serve on the
party submitting the request a written response within 30 days after
service of the request.
(e) The response shall state, with respect to each item or
category--
(1) That inspection and related activities will be permitted as
requested; or
(2) That objection is made in whole or in part, in which case the
reasons for objection shall be stated.
Sec. 4.1141 Admissions.
(a) A party may serve upon any other party a written request for the
admission, for purposes of the pending action only, of the genuineness
and authenticity of any relevant document described in or attached to
the request, or for the admission of the truth of any specified relevant
matter of fact.
(b) Each matter of which an admission is requested is admitted
unless, within 30 days after service of the request or such shorter or
longer time as the administrative law judge may allow, the party to whom
the request is directed serves on the requesting party--
(1) A sworn statement denying specifically the relevant matters of
which an admission is requested;
(2) A sworn statement setting forth in detail the reasons why he can
neither truthfully admit nor deny them; or
(3) Written objections on the ground that some or all of the matters
involved are privileged or irrelevant or that the request is otherwise
improper in whole or in part.
(c) An answering party may not give lack of information or knowledge
as a reason for failure to admit or deny unless he states that he has
made reasonable inquiry and that the information known or readily
obtainable by him is insufficient to enable him to admit or deny.
(d) The party who has requested the admissions may move to determine
the sufficiency of the answers or objections. Unless the administrative
law judge determines that an objection is justified, he shall order that
an answer be served. If the administrative law judge determines that an
answer does not comply with the requirements of this section, he may
order either that the matter is admitted or that an amended answer be
served. The administrative law judge may, in lieu of these orders,
determine that final disposition of the request be made at a prehearing
conference or at a designated time prior to hearing.
(e) Any matter admitted under this section is conclusively
established unless the administrative law judge on motion permits
withdrawal or amendment of the admission.
(f) Any admission made by a party under this section is for the
purpose of the pending action only and is not an admission by him for
any other purpose nor may it be used against him in any other
proceeding.
Petitions for Review of Proposed Assessments of Civil Penalties
Sec. 4.1150 Who may file.
Any person charged with a civil penalty may file a petition for
review of a proposed assessment of that penalty with the Hearings
Division, OHA, 4015 Wilson Boulevard, Arlington, Va. 22203.
[[Page 132]]
Sec. 4.1151 Time for filing.
(a) A petition for review of a proposed assessment of a civil
penalty must be filed within 30 days of receipt of the proposed
assessment; or
(b) If a timely request for a conference has been made pursuant to
30 CFR 723.18 or 845.18, a petition for review must be filed within 30
days from service of notice by the conference officer that the
conference is deemed completed.
(c) No extension of time will be granted for filing a petition for
review of a proposed assessment of a civil penalty as required by
paragraph (a) or (b) of this section. If a petition for review is not
filed within the time period provided in paragraph (a) or (b) of this
section, the appropriateness of the amount of the penalty, and the fact
of the violation if there is no proceeding pending under section 525 of
the Act to review the notice of violation or cessation order involved,
shall be deemed admitted, the petition shall be dismissed, and the civil
penalty assessed shall become a final order of the Secretary.
[43 FR 34386, Aug. 3, 1978, as amended at 51 FR 16321, May 2, 1986; 59
FR 1488, Jan. 11, 1994]
Sec. 4.1152 Contents of petition; payment required.
(a) The petition shall include--
(1) A short and plain statement indicating the reasons why either
the amount of the penalty or the fact of the violation is being
contested;
(2) If the amount of penalty is being contested based upon a
misapplication of the civil penalty formula, a statement indicating how
the civil penalty formula contained in 30 CFR part 723 or 845 was
misapplied, along with a proposed civil penalty utilizing the civil
penalty formula;
(3) Identification by number of all violations being contested;
(4) The identifying number of the cashier's check, certified check,
bank draft, personal check, or bank money order accompanying the
petition; and
(5) A request for a hearing site.
(b) The petition shall be accompanied by--
(1) Full payment of the proposed assessment in the form of a
cashier's check, certified check, bank draft, personal check or bank
money order made payable to--Assessment Office, OSM--to be placed in an
escrow account pending final determination of the assessment; and
(2) On the face of the payment an identification by number of the
violations for which payment is being tendered.
(c) As required by section 518(c) of the act, failure to make timely
payment of the proposed assessment in full shall result in a waiver of
all legal rights to contest the violation or the amount of the penalty.
(d) No extension of time will be granted for full payment of the
proposed assessment. If payment is not made within the time period
provided in Sec. 4.1151 (a) or (b), the appropriateness of the amount of
the penalty, and the fact of the violation if there is no proceeding
pending under section 525 of the Act of review the notice of violation
or cessation order involved, shall be deemed admitted, the petition
shall be dismissed, and the civil penalty assessed shall become a final
order of the Secretary.
[43 FR 34386, Aug. 3, 1978, as amended at 51 FR 16321, May 2, 1986; 59
FR 1488, Jan. 11, 1994]
Sec. 4.1153 Answer.
OSM shall have 30 days from receipt of a copy of the petition within
which to file an answer to the petition with the Hearings Division, OHA.
Sec. 4.1154 Review of waiver determination.
(a) Within 10 days of the filing of a petition under this part,
petitioner may move the administrative law judge to review the granting
or denial of a waiver of the civil penalty formula pursuant to 30 CFR
723.16 or 845.16.
(b) The motion shall contain a statement indicating all alleged
facts relevant to the granting or denial of the waiver;
(c) Review shall be limited to the written determination of the
Director of OSM granting or denying the waiver, the motion and responses
to the motion. The standard of review shall be abuse of discretion.
[[Page 133]]
(d) If the administrative law judge finds that the Director of OSM
abused his discretion in granting or denying the waiver, the
administrative law judge shall hold the hearing on the petition for
review of the proposed assessment required by section 518(b) of the act
and make a determination pursuant to Sec. 4.1157.
[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1488, Jan. 11, 1994]
Sec. 4.1155 Burdens of proof in civil penalty proceedings.
In civil penalty proceedings, 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. The person who
petitioned for review shall have the ultimate burden of persuasion as to
the fact of the violation.
[53 FR 47694, Nov. 25, 1988]
Sec. 4.1156 Summary disposition.
(a) In a civil penalty proceeding where the person against whom the
proposed civil penalty is assessed fails to comply on time with any
prehearing order of an administrative law judge, the administrative law
judge shall issue an order to show cause why--
(1) That person should not be deemed to have waived his right to a
hearing; and
(2) The proceedings should not be dismissed and referred to the
assessment officer.
(b) If the order to show cause is not satisfied as required, the
administrative law judge shall order the proceedings summarily dismissed
and shall refer the case to the assessment officer who shall enter the
assessment as the final order of the Department.
(c) Where the person against whom the proposed civil penalty is
assessed fails to appear at a hearing, that person will be deemed to
have waived his right to a hearing and the administration law judge may
assume for purposes of the assessment--
(1) That each violation listed in the notice of violation or order
occurred; and
(2) The truth of any facts alleged in such notice or order.
(d) In order to issue an initial decision assessing the appropriate
penalty when the person against whom the proposed civil penalty is
assessed fails to appear at the hearing, an administrative law judge
shall either conduct an ex parte hearing or require OSM to furnish
proposed findings of fact and conclusions of law.
(e) Nothing in this section shall be construed to deprive the person
against whom the penalty is assessed of his opportunity to have OSM
prove the violations charged in open hearing with confrontation and
cross-examination of witnesses, except where that person fails to comply
with a prehearing order or fails to appear at the scheduled hearing.
Sec. 4.1157 Determination by administrative law judge.
(a) The administrative law judge shall incorporate in his decision
concerning the civil penalty, findings of fact on each of the four
criteria set forth in 30 CFR 723.13 or 845.13, and conclusions of law.
(b) If the administrative law judge finds that--
(1) A violation occurred or that the fact of violation is
uncontested, he shall establish the amount of the penalty, but in so
doing, he shall adhere to the point system and conversion table
contained in 30 CFR 723.13 and 723.14 or 845.13 and 845.14, except that
the administrative law judge may waive the use of such point system
where he determines that a waiver would further abatement of violations
of the Act. However, the administrative law judge shall not waive the
use of the point system and reduce the proposed assessment on the basis
of an argument that a reduction in the proposed assessment could be used
to abate other violations of the Act; or
(2) No violation occurred, he shall issue an order that the proposed
assessment be returned to the petitioner.
(c) If the administrative law judge makes a finding that no
violation occurred or if the administrative law judge reduces the amount
of the civil
[[Page 134]]
penalty below that of the proposed assessment and a timely petition for
review of his decision is not filed with the Board or the Board refuses
to grant such a petition, the Department of the Interior shall have 30
days from the expiration of the date for filing a petition with the
Board if no petition is filed, or 30 days from the date the Board
refuses to grant such a petition, within which to remit the appropriate
amount to the person who made the payment, with interest at the rate of
6 percent, or at the prevailing Department of the Treasury rate,
whichever is greater.
(d) If the administrative law judge increases the amount of the
civil penalty above that of the proposed assessment, the administrative
law judge shall order payment of the appropriate amount within 30 days
of receipt of the decision.
[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1488, Jan. 11, 1994]
Sec. 4.1158 Appeals.
Any party may petition the Board to review the decision of an
administrative law judge concerning an assessment according to the
procedures set forth in Sec. 4.1270.
Review of Section 521 Notices of Violation and Orders of Cessation
Sec. 4.1160 Scope.
These regulations govern applications for review of--
(a) Notices of violation or the modification, vacation, or
termination of a notice of violation under section 521(a)(3) of the Act;
and
(b) Orders of cessation which are not subject to expedited review
under Sec. 4.1180 or the modification, vacation, or termination of such
an order of cessation under section 521(a)(2) or section 521(a)(3).
Sec. 4.1161 Who may file.
A permittee issued a notice or order by the Secretary pursuant to
the provisions of section 521(a)(2) or section 521(a)(3) of the Act or
any person having an interest which is or may be adversely affected by a
notice or order subject to review under Sec. 4.1160 may file an
application for review with the Hearings Division, OHA, 4015 Wilson
Boulevard, Arlington, Va. 22203.
Sec. 4.1162 Time for filing.
(a) Any person filing an application for review under Sec. 4.1160 et
seq. shall file that application within 30 days of the receipt of a
notice or order or within 30 days of receipt of notice of modification,
vacation, or termination of such a notice or order. Any person not
served with a copy of the document shall file the application for review
within 40 days of the date of issuance of the document.
(b) No extension of time will be granted for filing an application
for review as provided by paragraph (a) of this section. If an
application for review is not filed within the time period provided in
paragraph (a) of this section, the application shall be dismissed.
[51 FR 16321, May 2, 1986]
Sec. 4.1163 Effect of failure to file.
Failure to file an application for review of a notice of violation
or order of cessation shall not preclude challenging the fact of
violation during a civil penalty proceeding.
Sec. 4.1164 Contents of application.
Any person filing an application for review shall incorporate in
that application regarding each claim for relief--
(a) A statement of facts entitling that person to administrative
relief;
(b) A request for specific relief;
(c) A copy of any notice or order sought to be reviewed;
(d) A statement as to whether the person requests or waives the
opportunity for an evidentiary hearing; and
(e) Any other relevant information.
Sec. 4.1165 Answer.
(a) Where an application for review is filed by a permittee, OSM as
well as any other person granted leave to intervene pursuant to
Sec. 4.1110 shall file an answer within 20 days of service of a copy of
such application.
(b) Where an application for review is filed by a person other than
a permittee, the following shall file an answer within 20 days of
service of a copy of such application--
[[Page 135]]
(1) OSM;
(2) The permittee; or
(3) Any other person granted leave to intervene pursuant to
Sec. 4.1110.
Sec. 4.1166 Contents of answer.
An answer to an application for review shall incorporate--
(a) A statement specifically admitting or denying the alleged facts
stated by the applicant;
(b) A statement of any other relevant facts;
(c) A statement whether an evidentiary hearing is requested or
waived; and
(d) Any other relevant information.
Sec. 4.1167 Notice of hearing.
Pursuant to section 525(a)(2) of the act, the applicant and other
interested persons shall be given written notice of the time and place
of the hearing at least 5 working days prior thereto.
Sec. 4.1168 Amendments to pleadings.
(a) An application for review may be amended once as a matter of
right prior to the filing of an answer and thereafter by leave of the
administrative law judge upon proper motion.
(b) Upon receipt of an initial or amended application for review or
subsequent to granting leave to amend, the administrative law judge
shall issue an order setting a time for filing an amended answer if the
judge determines that such an answer is appropriate.
Sec. 4.1169 Failure to state a claim.
Upon proper motion or after the issuance of an order to show cause
by the administrative law judge, an administrative law judge may dismiss
at any time an application for review which fails to state a claim upon
which administrative relief may be granted.
Sec. 4.1170 Related notices or orders.
(a) An applicant for review shall file a copy of any subsequent
notice or order which modifies, vacates, or terminates the notice or
order sought to be reviewed within 10 days of receipt.
(b) An applicant for review of a notice shall file a copy of an
order of cessation for failure timely to abate the violation which is
the subject of the notice under review within 10 days of receipt of such
order.
(c) If an applicant for review desires to challenge any subsequent
notice or order, the applicant must file a separate application for
review.
(d) Applications for review of related notices or orders are subject
to consolidation.
Sec. 4.1171 Burden of proof in review of section 521 notices or orders.
(a) In review of section 521 notices of violation or orders of
cessation or the modification, vacation, or termination thereof,
including expedited review under Sec. 4.1180, OSM shall have the burden
of going forward to establish a prima facie case as to the validity of
the notice, order, or modification, vacation, or termination thereof.
(b) The ultimate burden of persuasion shall rest with the applicant
for review.
Expedited Review of Section 521(a)(2) or 521(a)(3) Orders of Cessation
Sec. 4.1180 Purpose.
The purpose of Secs. 4.1180--4.1187 is to govern applications filed
under section 525(b) of the act for expedited review of orders of
cessation for which temporary relief has not been granted under section
525(c) or section 526(c) of the act. If a person is qualified to receive
a 30-day decision under these regulations, he may waive that right and
file an application under Sec. 4.1164, and the procedures in Sec. 4.1160
et seq. shall apply. If there is a waiver as set forth in Sec. 4.1186,
the final administrative decision shall be issued within 120 days of the
filing of the application.
Sec. 4.1181 Who may file.
(a) An application for review of an order of cessation may be filed
under this section, whenever temporary relief has not been granted under
section 525(c) or section 526(c) of the act, by--
(1) A permittee who has been issued an order of cessation under
section 521(a)(2) or section 521(a)(3) of the act; or
(2) Any person having an interest which is or may be adversely
affected by the issuance of an order of cessation
[[Page 136]]
under section 521(a)(2) or section 521(a)(3) of the act.
(b) A permittee or any person having an interest which is or may be
adversely affected by a section 521(a)(2) or section 521(a)(3) order of
cessation waives his right to expedited review upon being granted
temporary relief pursuant to section 525(c) or section 526(c) of the
act.
Sec. 4.1182 Where to file.
The application shall be filed in the Hearings Division, 4015 Wilson
Boulevard, OHA, Arlington, Va. 22203.
Sec. 4.1183 Time for filing.
(a) Any person intending to file an application for expedited review
under section 525(b) of the act shall notify the field solicitor,
Department of the Interior, for the region in which the mine site is
located, within 15 days of receipt of the order. Any person not served
with a copy of the order shall file notice of intention to file an
application for review within 20 days of the date of issuance of the
order.
(b) Any person filing an application for review under Sec. 4.1184
shall file the application within 30 days of receipt of the order. Any
person not served with a copy of the order shall file an application for
review within 40 days of the date of issuance of the order.
Sec. 4.1184 Contents of application.
(a) Any person filing an application for expedited review under
section 525(b) of the act shall incorporate in that application
regarding each claim for relief--
(1) A statement of facts entitling that person to administrative
relief;
(2) A request for specific relief;
(3) A specific statement which delineates each issue to be addressed
by the applicant during the expedited proceeding;
(4) A copy of the order sought to be reviewed;
(5) A list identifying each of applicant's witnesses by name,
address, and place of employment, including expert witnesses and the
area of expertise to which they will address themselves at the hearing,
and a detailed summary of their testimony;
(6) Copies of all exhibits and other documentary evidence that the
applicant intends to introduce as evidence at the hearing and
descriptions of all physical exhibits and evidence which is not capable
of being copied or attached; and
(7) Any other relevant information.
(b) If any applicant fails to comply with all the requirements of
Sec. 4.1184(a), the administrative law judge may find that the applicant
has waived the 30-day decision requirement or the administrative law
judge shall order that the application be perfected and the application
shall not be considered filed for purposes of the 30-day decision until
perfected. Failure to timely comply with the administrative law judge's
order shall constitute a waiver of the 30-day decision.
Sec. 4.1185 Computation of time for decision.
In computing the 30-day time period for administrative decision,
intermediate Saturdays, Sundays, Federal legal holidays, and other
nonbusiness days shall be excluded in the computation.
Sec. 4.1186 Waiver of the 30-day decision requirement.
(a) Any person qualified to receive a 30-day decision may waive that
right--
(1) By filing an application pursuant to Sec. 4.1160-71;
(2) By failing to comply with all the requirements of
Sec. 4.1184(a); or
(3) In accordance with Sec. 4.1187(j).
(b) Any person qualified to receive a 30-day decision shall waive
that right--
(1) By obtaining temporary relief pursuant to section 525(c) or
section 526(c) of the act;
(2) By failing to perfect an application pursuant to Sec. 4.1184(b);
or
(3) In accordance with Sec. 4.1187(i).
Sec. 4.1187 Procedure if 30-day decision requirement is not waived.
If the applicant does not waive the 30-day decision requirement of
section 525(b) of the act, the following special rules shall apply--
(a) The applicant shall serve all known parties with a copy of the
application simultaneously with the filing of the application with OHA.
If service is accomplished by mail, the applicant
[[Page 137]]
shall inform all known parties by telephone at the time of mailing that
an application is being filed and shall inform the administrative law
judge by telephone that such notice has been given. However, no ex parte
communication as to the merits of the proceeding may be conducted with
the administrative law judge.
(b) Any party desiring to file a response to the application for
review shall file a written response within 5 working days of service of
the application.
(c) If the applicant has requested a hearing, the administrative law
judge shall act immediately upon receipt of the application to notify
the parties of the time and place of the hearing at least 5 working days
prior to the hearing date.
(d) The administrative law judge may require the parties to submit
proposed findings of fact and conclusions of law at the hearing which
may be orally supplemented on the record at the hearing or, where
proposed findings of fact and conclusions of law have not been submitted
at the hearing, they may be orally presented for the record at the
hearing.
(e) The administrative law judge shall make an initial decision. He
shall either rule from the bench on the application, orally stating the
reasons for his decision or he shall issue a written decision. If the
administrative law judge makes an oral ruling, his approval of the
record of the hearing shall constitute his written decision. The
decision of the administrative law judge must be issued within 15 days
of the filing of the perfected application under Sec. 4.1184.
(f) If any party desires to appeal to the Board, such party shall--
(1) If the administrative law judge makes an oral ruling, make an
oral statement, within a time period as directed by the administrative
law judge, that the decision is being appealed and request that the
administrative law judge certify the record to the Board; or
(2) If the administrative law judge issues a written decision after
the close of the hearing, file a notice of appeal with the
administrative law judge and with the Board within 2 working days of
receipt of the administrative law judge's decision.
(g) If the decision of the administrative law judge is appealed, the
Board shall act immediately to issue an expedited briefing schedule, and
the Board shall act expeditiously to review the record and issue its
decision. The decision of the Board must be issued within 30 days of the
date the perfected application is filed with OHA pursuant to
Sec. 4.1184.
(h) If all parties waive the opportunity for a hearing and the
administrative law judge determines that a hearing is not necessary, but
the applicant does not waive the 30-day decision requirement, the
administrative law judge shall issue an initial decision on the
application within 15 days of receipt of the application. The decision
shall contain findings of fact and an order disposing of the
application. The decision shall be served upon all the parties and the
parties shall have 2 working days from receipt of such decision within
which to appeal to the Board. The Board shall issue its decision within
30 days of the date the perfected application is filed with OHA pursuant
to Sec. 4.1184.
(i) If at any time after the initiation of this expedited procedure,
the applicant requests a delay or acts in a manner so as to frustrate
the expeditious nature of this proceeding or fails to comply with any
requirement of Sec. 4.1187(a), such action shall constitute a waiver of
the 30-day requirement of section 525(b) of the act.
(j) If the applicant seeks to offer witnesses, exhibits, or
testimony at the hearing in addition to those identified, submitted,
described, or summarized in the application for expedited review
perfected in accordance with the requirements of Sec. 4.1184, upon
objection by an opposing party to such offer, the administrative law
judge may allow such objecting party additional time in order to prepare
for cross-examination of unidentified witnesses or to identify and
prepare rebuttal evidence or otherwise uncover any additional prejudice
which may result to such party. The administrative law judge may rule
that the running of the 30-day time for decision is stayed for the
period of any additional time allowed pursuant to this
[[Page 138]]
subsection or may determine that the applicant has waived his right to
the 30-day decision.
Proceedings for Suspension or Revocation of Permits Under Section
521(a)(4) of the Act
Sec. 4.1190 Initiation of proceedings.
(a) A proceeding on a show cause order issued by the Director of OSM
pursuant to section 521(a)(4) of the Act shall be initiated by the
Director of OSM filing a copy of such an order with the Hearings
Division, OHA, 4015 Wilson Boulevard, Arlington, Va. 22203, at the same
time the order is issued to the permittee.
(b) A show cause order filed with OHA shall set forth--
(1) A list of the unwarranted or willful violations which contribute
to a pattern of violations;
(2) A copy of each order or notice which contains one or more of the
violations listed as contributing to a pattern of violations;
(3) The basis for determining the existence of a pattern or
violations; and
(4) Recommendations whether the permit should be suspended or
revoked, including the length and terms of a suspension.
Sec. 4.1191 Answer.
The permittee shall have 30 days from receipt of the order within
which to file an answer with the Hearings Division, OHA, Arlington, Va.
Sec. 4.1192 Contents of answer.
The permittee's answer to a show cause order shall contain a
statement setting forth--
(a) The reasons in detail why a pattern of violations, as described
in 30 CFR 722.16, does not exist or has not existed, including all
reasons for contesting--
(1) The fact of any of the violations alleged by OSM as constituting
a pattern of violations;
(2) The willfulness of such violations; or
(3) Whether such violations were caused by the unwarranted failure
of the permittee;
(b) All mitigating factors the permittee believes exist in
determining the terms of the revocation or the length and terms of the
suspension;
(c) Any other alleged relevant facts; and
(d) Whether a hearing on the show cause order is desired.
Sec. 4.1193 Burden of proof in suspension or revocation proceedings.
In proceedings to suspend or revoke a permit, OSM shall have the
burden of going forward to establish a prima facie case for suspension
or revocation of the permit. The ultimate burden of persuasion that the
permit should not be suspended or revoked shall rest with the permittee.
Sec. 4.1194 Determination by the administrative law judge.
(a) Upon a determination by the administrative law judge that a
pattern of violations exists or has existed, pursuant to 30 CFR 722.16
(c)(2) or (c)(3), the administrative law judge shall order the permit
either suspended or revoked. In making such a determination, the
administrative law judge need not find that all the violations listed in
the show cause order occurred, but only that sufficient violations
occurred to establish a pattern.
(b) If the permit is suspended, the minimum suspension period shall
be 3 working days unless the administrative law judge finds that
imposition of the minimum suspension period would result in manifest
injustice and would not further the purposes of the act. Also, the
administrative law judge may impose preconditions to be satisfied prior
to the suspension being lifted.
(c) The decision of the administrative law judge shall be issued
within 20 days following the date the hearing record is closed by the
administrative law judge or within 20 days of receipt of the answer, if
no hearing is requested by any party and the administrative law judge
determines that no hearing is necessary.
(d) At any stage of a suspension or revocation proceeding being
conducted by an administrative law judge, the parties may enter into a
settlement, subject to the approval of the administrative law judge.
[[Page 139]]
Sec. 4.1195 Summary disposition.
(a) In a proceeding under this section where the permittee fails to
appear at a hearing, the permittee shall be deemed to have waived his
right to a hearing and the administrative law judge may assume for
purposes of the proceeding that--
(1) Each violation listed in the order occurred;
(2) Such violations were caused by the permittee's unwarranted
failure or were willfully caused; and
(3) A pattern of violations exists.
(b) In order to issue an initial decision concerning suspension or
revocation of the permit when the permittee fails to appear at the
hearing, the administrative law judge shall either conduct an ex parte
hearing or require OSM to furnish proposed findings of fact and
conclusions of law.
Sec. 4.1196 Appeals.
Any party desiring to appeal the decision of the administrative law
judge shall have 5 days from receipt of the administrative law judge's
decision within which to file a notice of appeal with the Board. The
Board shall act immediately to issue an expedited briefing schedule. The
decision of the Board shall be issued within 60 days of the date the
hearing record is closed by the administrative law judge or, if no
hearing is held, within 60 days of the date the answer is filed.
Applications for Review of Alleged Discriminatory Acts Under Section 703
of the Act
Sec. 4.1200 Filing of the application for review with the Office of
Hearings and Appeals.
(a) Pursuant to 30 CFR 830.13, within 7 days of receipt of an
application for review of alleged discrimina- tory acts, OSM shall file
a copy of the application in the Hearings Division, OHA, 4015 Wilson
Boulevard, Arlington, Va. 22203. OSM shall also file in the Hearings
Division, OHA, Arlington, Va., a copy of any answer submitted in
response to the application for review.
(b) The application for review, as filed in the Hearings Division,
OHA, shall be held in suspense until one of the following takes place--
(1) A request for temporary relief is filed pursuant to Sec. 4.1203;
(2) A request is made by OSM for the scheduling of a hearing
pursuant to 30 CFR 830.14(a);
(3) A request is made by the applicant for the scheduling of a
hearing pursuant to 30 CFR 830.14(a);
(4) A request is made by the applicant for the scheduling of a
hearing pursuant to 30 CFR 830.14(b); or
(5) A request is made by OSM that OHA close the case because OSM,
the applicant, and the alleged discriminating person have entered into
an agreement in resolution of the discrimina- tory acts and there has
been compliance with such agreement.
Sec. 4.1201 Request for scheduling of a hearing.
(a) If OSM determines that a violation of section 703(a) of the act
has probably occurred and was not resolved at the informal conference,
it shall file with the Hearings Division, OHA, a request on behalf of
the applicant that a hearing be scheduled. The request shall be filed
within 10 days of the completion of the informal conference, or where no
conference is held, within 10 days following the scheduled conference.
Where OSM makes such a request, it shall represent the applicant in the
administrative proceedings, unless the applicant desires to be
represented by private counsel.
(b) If OSM declines to request that a hearing be scheduled and to
represent the applicant, it shall within 10 days of the completion of
the informal conference, or where no conference is held, within 10 days
following the scheduled conference, notify the applicant of his right to
request the scheduling of a hearing on his own behalf. An applicant
shall file a request for the scheduling of a hearing in the Hearings
Division, OHA, within 30 days of service of such notice from OSM.
(c) If no request for the scheduling of a hearing has been made
pursuant to paragraph (a) or (b) of this section and 60 days have
elapsed from the filing of the application for review with OSM, the
applicant may file on his own behalf a request for the scheduling of a
hearing with the main office of OHA.
[[Page 140]]
Where such a request is made, the applicant shall proceed on his own
behalf, but OSM may intervene pursuant to Sec. 4.1110.
Sec. 4.1202 Response to request for the scheduling of a hearing.
(a) Any person served with a copy of the request for the scheduling
of a hearing shall file a response with the Hearings Division, OHA,
Arlington, Va., within 20 days of service of such request.
(b) If the alleged discriminating person has not filed an answer to
the application, such person shall include with the response to the
request for the scheduling of a hearing, a statement specifically
admitting or denying the alleged facts set forth in the application.
Sec. 4.1203 Application for temporary relief from alleged
discriminatory acts.
(a) On or after 10 days from the filing of an application for review
under this part, any party may file an application for temporary relief
from alleged discriminatory acts.
(b) The application shall be filed in the Hearings Division, OHA,
Arlington, Va.
(c) The application shall include--
(1) A detailed written statement setting forth the reasons why
relief should be granted;
(2) A showing that the complaint of discrimination was not
frivolously brought;
(3) A description of any exigent circumstances justifying temporary
relief; and
(4) A statement of the specific relief requested.
(d) All parties to the proceeding to which the application relates
shall have 5 days from receipt of the application to file a written
response.
(e) The administrative law judge may convene a hearing on any issue
raised by the application if he deems it appropriate.
(f) The administrative law judge shall expeditiously issue an order
or decision granting or denying such relief.
(g) If all parties consent, before or after the commencement of any
hearing on the application for temporary relief, the administrative law
judge may order the hearing on the application for review of alleged
discrimina- tory acts to be advanced and consolidated with the hearing
on the application for temporary relief.
Sec. 4.1204 Determination by administrative law judge.
Upon a finding of a violation of section 703 of the act or 30 CFR
830.11, the administrative law judge shall order the appropriate
affirmative relief including, but not limited to--
(a) The rehiring or reinstatement of the applicant to his former
position with full rights and privileges, full backpay, and any special
damages sustained as a result of the discrimination; and
(b) All other relief which the administrative law judge deems
apropriate to abate the violation or to prevent recurrence of
discrimination.
Sec. 4.1205 Appeals.
Any party aggrieved by a decision of an administrative law judge
concerning an application for review of alleged discriminatory acts may
appeal to the Board under procedures set forth in Sec. 4.1271 et seq.
Applications for Temporary Relief
Sec. 4.1260 Scope.
These regulations contain the procedures for seeking temporary
relief in section 525 review proceedings under the act. The special
procedures for seeking temporary relief from an order of cessation are
set forth in Sec. 4.1266. Procedures for seeking temporary relief from
alleged discrimina- tory acts are covered in Sec. 4.1203.
Sec. 4.1261 When to file.
An application for temporary relief may be filed by any party to a
proceeding at any time prior to decision by an administrative law judge.
Sec. 4.1262 Where to file.
The application shall be filed with the administrative law judge to
whom
[[Page 141]]
the case has been assigned. If no assignment has been made, the
application shall be filed in the Hearings Division, OHA, 4015 Wilson
Boulevard, Arlington, Va. 22203.
Sec. 4.1263 Contents of application.
The application shall include--
(a) A detailed written statement setting forth the reasons why
relief should be granted;
(b) A showing that there is a substantial likelihood that the
findings and decision of the administrative law judge in the matters to
which the application relates will be favorable to the applicant;
(c) A statement that the relief sought will not adversely affect the
health or safety of the public or cause significant, imminent
environmental harm to land, air, or water resources;
(d) If the application relates to an order of cessation issued
pursuant to section 521(a)(2) or section 521(a)(3) of the act, a
statement of whether the requirement of section 525(c) of the act for
decision on the application within 5 days is waived; and
(e) A statement of the specific relief requested.
Sec. 4.1264 Response to application.
(a) Except as provided in Sec. 4.1266(b), all parties to the
proceeding to which the application relates shall have 5 days from the
date of receipt of the application to file a written response.
(b) Except as provided in Sec. 4.1266(b), the administrative law
judge may hold a hearing on any issue raised by the application if he
deems it appropriate.
Sec. 4.1265 Determination on application concerning a notice of
violation issued pursuant to section 521(a)(3) of the act.
Where an application has been filed requesting temporary relief from
a notice of violation issued under section 521(a)(3) of the act, the
administrative law judge shall expeditiously issue an order or decision
granting or denying such relief.
Sec. 4.1266 Determination on application concerning an order of
cessation issued pursuant to section 521(a)(2) or section
521(a)(3) of the act.
(a) If the 5-day requirement of section 525(c) of the act is waived,
the administrative law judge shall expeditiously conduct a hearing and
render a decision on the application.
(b) If there is no waiver of the 5-day requirement of section 525(c)
of the act, the following special rules shall apply--
(1) The 5-day time for decision shall not begin to run until the
application is filed pursuant to Sec. 4.1262 or a copy of the
application is received by the field solicitor for the region in which
the mine site subject to the order is located, whichever occurs at a
later date (see Sec. 4.1109 for addresses);
(2) The application shall include an affidavit stating that
telephone notice has been given to the field office of OSM serving the
state in which the minesite subject to the order is located. The
telephone notice shall identify the mine, the mine operator, the date
and number of the order from which relief is requested, the name of the
OSM inspector involved, and the name and telephone number of the
applicant. OSM's field offices and their telephone numbers follow.
Alabama Field Office (also serving Georgia): 205-290-7282.
Illinois Field Office: 217-492-4495.
Indiana Field Office: 317-226-6700.
Kentucky Field Office: 606-233-2494.
Missouri Field Office (also serving Iowa, Kansas and Nebraska): 816-374-
6405.
New Mexico Field Office: 505-766-1486.
Ohio Field Office (also serving Michigan): 614-866-0578.
Oklahoma Field Office (also serving Arkansas, Louisiana and Texas): 918-
581-6430.
Pennsylvania Field Office (also serving Massachusetts and Rhode Island):
717-782-4036.
Tennessee Field Office: 615-545-4103.
Virginia Field Office: 703-523-4303.
West Virginia Field Office: 304-347-7158.
Wyoming Field Office (also serving Alaska, Idaho, Montana, North Dakota,
Oregon, South Dakota and Washington): 307-261-5776.
(3) Prior to or at the hearing, the applicant shall file with OHA an
affidavit stating the date upon which the copy
[[Page 142]]
of the application was delivered to the office of the field solicitor or
the applicant may make an oral statement at the hearing setting forth
that information. For purposes of the affidavit or statement the
applicant may rely upon telephone confirmation by the office of the
field solicitor that the application was received.
(4) In addition to the service requirements of Sec. 4.1266(b) (1)
and (2), the applicant shall serve any other parties with a copy of the
application simultaneously with the filing of the application. If
service is accomplished by mail, the applicant shall inform such other
parties by telephone at the time of mailing that an application is being
filed, the contents of the application, and with whom the application
was filed.
(5) The field solicitor and all other parties may indicate their
objection to the application by communicating such objection to the
administrative law judge and the applicant by telephone. However, no ex
parte communication as to the merits of the proceeding may be conducted
with the administrative law judge. The field solicitor and all other
parties shall simultaneously reduce their objections to writing. The
written objections must be immediately filed with the administrative law
judge and immediately served upon the applicant.
(6) Upon receipt of communication that there is an objection to the
request, the administrative law judge shall immediately order a
location, time, and date for the hearing by communicating such
information to the field solicitor, all other parties, and the applicant
by telephone. The administrative law judge shall reduce such
communications to writing in the form of a memorandum to the file.
(7) If a hearing is held--
(i) The administrative law judge may require the parties to submit
proposed findings of fact and conclusions of law at the hearing which
may be orally supplemented on the record at the hearing or where written
proposed findings of fact and conclusions of law have not been submitted
at the hearing, they may be orally presented for the record at the
hearing.
(ii) The administrative law judge shall either rule from the bench
on the application, orally stating the reasons for his decision or he
shall within 24 hours of completion of the hearing issue a written
decision. If the administrative law judge makes an oral ruling, his
approval of the record of the hearing shall constitute his written
decision.
(8) The order or decision of the administrative law judge shall be
issued within 5 working days of the receipt of the application for
temporary relief.
(9) If at any time after the initiation of this expedited procedure,
the applicant requests a delay or acts in a manner so as to frustrate
the expeditious nature of this proceeding or fails to supply the
information required by Sec. 4.1263 such action shall constitute a
waiver of the 5-day requirement of section 525(c) of the act.
[43 FR 34386, Aug. 3, 1978, as amended at 49 FR 7565, Mar. 1, 1984; 59
FR 1489, Jan. 11, 1994]
Sec. 4.1267 Appeals.
(a) Any party desiring to appeal a decision of an administrative law
judge granting temporary relief may appeal to the Board.
(b) Any party desiring to appeal a decision of an administrative law
judge denying temporary relief may appeal to the Board or, in the
alternative, may seek judicial review pursuant to section 526(a) of the
act.
(c) The Board shall issue an expedited briefing schedule and shall
issue a decision on the appeal expeditiously.
[43 FR 34386, Aug. 3, 1978, as amended at 45 FR 50753, July 31, 1980]
Appeals to the Board From Decisions or Orders of Administrative Law
Judges
Sec. 4.1270 Petition for discretionary review of a proposed civil
penalty.
(a) Any party may petition the Board to review an order or decision
by an administrative law judge disposing of a civil penalty proceeding
under Sec. 4.1150.
(b) A petition under this section shall be filed on or before 30
days from the date of receipt of the order or decision sought to be
reviewed and the time for filing may not be extended.
[[Page 143]]
(c) A petitioner under this section shall list the alleged errors of
the administrative law judge and shall attach a copy of the order or
decision sought to be reviewed.
(d) Any party may file with the Board a response to the petition for
review within 10 days of receipt of a copy of such petition.
(e) Not later than 30 days from the filing of a petition under this
section, the Board shall grant or deny the petition in whole or in part.
(f) If the petition is granted, the rules in Secs. 4.1273 through
4.1277 are applicable and the Board shall use the point system and
conversion table contained in 30 CFR part 723 in recalculating
assessments; however, the Board shall have the same authority to waive
the civil penalty formula as that granted to the administrative law
judges in Sec. 4.1157(b)(1). If the petition is denied, the decision of
the administrative law judge shall be final for the Department, subject
to 43 CFR 4.5.
Sec. 4.1271 Notice of appeal.
(a) Any aggrieved party may file a notice of appeal from an order or
decision of an administrative law judge disposing of a proceeding under
Secs. 4.1160 through 4.1171, 4.1200 through 4.1205, 4.1260 through
4.1267, 4.1290 through 4.1296, and 4.1350 through 4.1356.
(b) Except in an expedited review proceeding under Sec. 4.1180, or
in a suspension or revocation proceeding under Sec. 4.1190, a notice of
appeal shall be filed with the Board on or before 30 days from the date
of receipt of the order or decision sought to be reviewed and the time
for filing may not be extended.
[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1489, Jan. 11, 1994]
Sec. 4.1272 Interlocutory appeals.
(a) If a party has sought certification under Sec. 4.1124, that
party may petition the Board for permission to appeal from an
interlocutory ruling by an administrative law judge.
(b) A petition under this section shall be in writing and not exceed
10 pages in length.
(c) If the correctness of the ruling sought to be reviewed involves
a controlling issue of law the resolution of which will materially
advance final disposition of the case, the Board may grant the petition.
(d) Upon granting a petition under this section, the Board may
dispense with briefing or issue a briefing schedule.
(e) Unless the Board or the administrative law judge orders
otherwise, an interlocutory appeal shall not operate as a stay of
further proceedings before the judge.
(f) In deciding an interlocutory appeal, the Board shall confine
itself to the issue presented on appeal.
(g) The Board shall promptly decide appeals under this section.
(h) Upon affirmance, reversal or modification of the administrative
law judge's interlocutory ruling or order, the jurisdiction of the Board
shall terminate, and the case shall be remanded promptly to the
administrative law judge for further proceedings.
Sec. 4.1273 Briefs.
(a) Unless the Board orders otherwise, an appellant's brief is due
on or before 30 days from the date of receipt of notice by the appellant
that the Board has agreed to exercise discretionary review authority
pursuant to Sec. 4.1270 or a notice of appeal is filed.
(b) If any appellant fails to file a timely brief, an appeal under
this part may be subject to summary dismissal.
(c) An appellant shall state specifically the rulings to which there
is an objection, the reasons for such objections, and the relief
requested. The failure to specify a ruling as objectionable may be
deemed by the Board as a waiver of objection.
(d) Unless the Board orders otherwise, within 20 days after service
of appellant's brief, any other party to the proceeding may file a
brief.
(e) If any argument is based upon the evidence of record and there
is a failure to include specific record citations, when available, the
Board need not consider the arguments.
(f) Further briefing may take place by permission of the Board.
(g) Unless the Board provides otherwise, appellant's brief shall not
exceed 50 typed pages and an appellee's brief shall not exceed 25 typed
pages.
[[Page 144]]
Sec. 4.1274 Remand.
The Board may remand cases if further proceedings are required.
Sec. 4.1275 Final decisions.
The Board may adopt, affirm, modify, set aside, or reverse any
finding of fact, conclusion of law, or order of the administrative law
judge.
Sec. 4.1276 Reconsideration.
(a) A party may move for reconsideration under Sec. 4.21(c);
however, the motion shall be filed with the Board within 30 days of the
date of the decision.
(b) The filing of a petition for reconsideration shall not stay the
effect of any decision or order and shall not affect the finality of any
decision or order for purposes of judicial review.
Appeals to the Board From Decisions of the Office of Surface Mining
Sec. 4.1280 Scope.
This section is applicable to appeals from decisions of the Director
of OSM concerning small operator exemptions under 30 CFR 710.12(h) and
to other appeals which are not required by the Act to be determined by
formal adjudication under the procedures set forth in 5 U.S.C. 554.
Sec. 4.1281 Who may appeal.
Any person who is or may be adversely affected by a written decision
of the Director of OSM or his delegate may appeal to the Board where the
decision specifically grants such right of appeal.
Sec. 4.1282 Appeals; how taken.
(a) A person appealing under this section shall file a written
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