[Federal Register: November 28, 2003 (Volume 68, Number 229)]
[Rules and Regulations]
[Page 66723-66728]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28no03-12]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 4
RIN 1090-AA92
Special Rules Applicable to Surface Coal Mining Hearings and
Appeals
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
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SUMMARY: The Office of Hearings and Appeals is publishing a final rule
that revises an existing regulation allocating the burden of proof in a
proceeding under the Surface Mining Control and Reclamation Act of
1977.
EFFECTIVE DATE: December 29, 2003.
FOR FURTHER INFORMATION CONTACT: Will A. Irwin, Administrative Judge,
Interior Board of Land Appeals, U.S. Department of the Interior, 801 N.
Quincy Street, Suite 300, Arlington, Virginia 22203, telephone 703-235-
3750. Persons who use a telecommunications device for the deaf (TDD)
may call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
On March 20, 2003, the Office of Hearings and Appeals (OHA)
published for comment a petition for rulemaking that it had received
from the National Mining Association (NMA). 68 FR 13657-13661 (Mar. 20,
2003). On the basis of the decision of the U.S. Supreme Court in
Director, Office of
[[Page 66724]]
Workers' Compensation Programs, Department of Labor v. Greenwich
Collieries, 512 U.S. 267, 114 S. Ct. 2251 (1994), the petition urged
that OHA reallocate the burden of proof in several existing rules that
govern hearings under the Surface Mining Control and Reclamation Act of
1977, 30 U.S.C. 1201-1328 (2000) (the Act or SMCRA).
The Administrative Procedure Act (APA), 5 U.S.C. 554 (2000),
applies to cases of adjudication that are required by statute to be
determined on the record after an opportunity for an agency hearing.
Section 554(c)(2) of the APA requires an agency to give all interested
parties an opportunity for a hearing in accordance with sections 556
and 557. Section 556(d) provides that ``[e]xcept as otherwise provided
by statute, the proponent of a rule or order has the burden of proof.''
In Greenwich Collieries, the Supreme Court considered whether a
rule employed by the Department of Labor in adjudicating claims for
benefits under the Black Lung Benefits Act was consistent with section
556(d) of the APA. The Court explained that the effect of the rule was
to ``shift the burden of persuasion to the party opposing the benefits
claim--when the evidence is evenly balanced, the benefits claimant
wins,'' 512 U.S. at 269, 114 S. Ct. at 2253. The Court construed the
term ``burden of proof'' in section 556(d) to mean ``burden of
persuasion,'' not merely ``burden of production (i.e., the burden of
going forward with evidence),'' 512 U.S. at 272, 114 S. Ct. at 2255;
and it concluded that the Department of Labor rule was inconsistent
with section 556(d), pursuant to which ``when the evidence is evenly
balanced, the benefits claimant must lose.'' 512 U.S. at 281, 114 S.
Ct. at 2259.
The NMA petition argued that, ``[i]n those proceedings where SMCRA
does not expressly provide a burden of proof distinct from that set
forth in the APA, OHA has improperly relieved OSM [the Office of
Surface Mining Reclamation and Enforcement] of the burden of persuasion
when OSM is the proponent of a rule or order * * *. Since the ultimate
burden of persuasion under section [556(d)] of the APA requires the
agency as a proponent of a rule or order to prove its case by a
preponderance of the evidence * * *, OHA must revise its regulations
concerning the burden of proof to require OSM, as the proponent of a
rule or order, to prove its case by a preponderance of the evidence.''
Petition at 11.
The petition addressed existing OHA rules applicable to the burden
of proof in five different kinds of proceedings: (1) Proceedings to
review notices of violation or cessation orders issued under section
521 of the Act (the applicable existing rule is 43 CFR 4.1171); (2)
civil penalty proceedings (Sec. 4.1155); (3) individual civil penalty
proceedings (Sec. 4.1307); (4) permit suspension or revocation
proceedings (Sec. 4.1194); and (5) proceedings to review permit
revisions ordered by OSM (Sec. 4.1366(b)).
OHA received 19 comments in support of the petition from mining
companies, mining trade associations, and law firms; and it received
one comment from an agency in a primacy state recommending that the
burden of proof remain with the permittee.
As a preliminary matter OHA observes that, although the Supreme
Court did not discuss how often ``the evidence is evenly balanced,'' in
OHA's experience under SMCRA it is quite rare. See, e.g., OSM v. C-Ann
Coal Co., 94 IBLA 14, 19 (1986); Harry Smith Construction Co. v. OSM,
78 IBLA 27, 29, 32 (1983).
In any event, with one exception, OHA does not agree with the
premise of the NMA petition, i.e., that SMCRA does not provide for a
burden of proof distinct from that set forth in section 556(d) of the
APA for the proceedings NMA addresses. Whether or not OSM is ``the
proponent of a rule or order'' within the meaning of section 556(d), it
does not bear the burden of persuasion in most of the proceedings
discussed in NMA's petition because SMCRA ``otherwise provide[s].''
Each of the proceedings is analyzed below.
A. Proceedings To Review Notices of Violation or Cessation Orders
Issued Under Section 521 of the Act
Section 525(a)(1) of the Act, 30 U.S.C. 1275(a)(1), provides as
follows:
A permittee issued a notice or order by the Secretary pursuant
to the provisions of subparagraphs (a)(2) and (3) of section 521 of
this title [30 U.S.C. 1271], or pursuant to a Federal program or the
Federal lands program, or any person having an interest which is or
may be adversely affected by such notice or order or by any
modification, vacation, or termination of such notice or order, may
apply to the Secretary for review of the notice or order within
thirty days of receipt thereof or within thirty days of its
modification, vacation, or termination. Upon receipt of such
application, the Secretary shall cause such investigation to be made
as he deems appropriate. Such investigation shall provide an
opportunity for a public hearing, at the request of the applicant or
the person having an interest which is or may be adversely affected,
to enable the applicant or such person to present information
relating to the issuance and continuance of such notice or order or
the modification, vacation, or termination thereof. The filing of an
application for review under this subsection shall not operate as a
stay of any order or notice.
Section 525(a)(1) (emphasis added). Under section 525(a)(2), ``[a]ny
such hearing shall be of record and shall be subject to section 554 of
title 5 of the United State Code.''
The existing regulation, 43 CFR 4.1171, provides that OSM has the
``burden of going forward to establish a prima facie case as to the
validity'' of the notice or order or its modification, vacation or
termination; the ``ultimate burden of persuasion'' rests with the
applicant for review. OHA believes the regulation correctly allocates
the burdens of proof.
In Old Ben Coal Corp. v. Interior Board of Mine Operations Appeals,
523 F.2d 25 (7th Cir. 1975), the court construed nearly identical
language from the Federal Coal Mine Health and Safety Act of 1969.
Section 105(a)(1) of that statute, 30 U.S.C. 815(a)(1) (1976), provided
as follows:
An operator issued an order pursuant to the provisions of
section 814 of this title, or any representative of miners in any
mine affected by such order or by any modification or termination of
such order, may apply to the Secretary for review of the order
within thirty days of receipt thereof or within thirty days of its
modification or termination. * * * Upon receipt of such application,
the Secretary shall cause such investigation to be made as he deems
appropriate. Such investigation shall provide an opportunity for a
public hearing, at the request of the operator or the representative
of miners in such mine, to enable the operator and the
representative of miners in such mine to present information
relating to the issuance or continuance of such order or the
modification or termination thereof or to the time fixed in such
notice. The filing of an application for review under this
subsection shall not operate as a stay of any order or notice.
(Emphasis added.) Section 105(a)(2) provided that any such hearing
``shall be of record and shall be subject to section 554 of title 5.''
The operator in that case argued that a Department of the Interior
regulation allocating the burden of proof under section 105(a) to ``the
applicant, petitioner, or other party initiating the proceedings''
violated section 556(d) of the APA because there was no provision in
the Coal Mine Health and Safety Act that ``require[d] the mine operator
to carry the burden of proof in a review of summary agency action.''
523 F.2d at 35. In defending the regulation, the Secretary argued that
section 105(a) fit within the ``[e]xcept as otherwise provided by
statute'' language in section 556(d) ``because it specifically places
on the operator who requests a public
[[Page 66725]]
hearing the burden ``to present information relating to the issuance
and continuance of such order [Section 104(a) withdrawal order].''' Id.
at 36 (bracketed text in original). The court agreed:
We think that an examination of the statutory scheme as a whole,
as well as a review of the legislative history of the Act * * *,
supports respondents' argument that the Secretary's regulation is
consistent with the intent of Congress to place upon the mine
operator the primary responsibility for the safety of miners.
Id. The court found ``no compelling indications that the Secretary was
wrong in interpreting the Act to place the burden of proof on the
petitioner.'' Id. On Petition for Rehearing, the court clarified that,
``[i]n practice * * *, the burden of proof is split, with the
Government bearing the burden of going forward [to establish a prima
facie case], and the mine operator bearing the ultimate burden of
persuasion.'' Id. at 39, 40.
Since Old Ben dealt with the exception language in 5 U.S.C. 556(d),
rather than the meaning of the term ``burden of proof,'' it remains
good law after the Supreme Court's decision in Greenwich Collieries. II
Richard J. Pierce, Jr., Administrative Law Treatise Sec. 10.7 (4th ed.
2002), at 760-61.
A similar examination of SMCRA's language and legislative history
demonstrates that the allocation of the burden of proof in 43 CFR
4.1171 is likewise consistent with the intent of Congress. The purpose
of the hearing provided in section 525(a)(1) is not for the Secretary
to prove that a violation exists but ``to enable the applicant * * * to
present information relating to the issuance and continuance of [the]
notice or order * * *.'' (emphasis supplied). Thus SMCRA itself places
the burden of proof on the applicant. This interpretation is clear from
the legislative history:
In order to assure expeditious review and due process for
persons seeking administrative relief of enforcement decisions of
Federal inspectors under the provisions of section [521], section
[525] establishes clear, definitive administrative review
procedures. Those persons having standing to request such
administrative review include permittees against whom notices and
orders have been issued pursuant to section [521] and persons having
an interest which is or may be adversely affected by such notice or
order. Any person with standing may request a public hearing which
must be of record and subject to the Administrative Procedure Act.
The person seeking review shall have the ultimate burden of proof in
proceedings to review notices and orders issued under Section [521].
Pending review the notice or order complained of will remain in
effect. * * *
S. Rep. No. 95-128, 95th Cong., 1st Sess., 92-93 (1977).
The legislative history also confirms what is obvious from the
language of the two statutes, namely, that SMCRA's enforcement
provisions were modeled after those in the Coal Mine Health and Safety
Act. Id. at 58. Thus, comparable to the regulation at issue in Old Ben,
43 CFR 4.1171 properly allocates to OSM the burden of going forward to
establish a prima facie case as to the validity of the notice of
violation or cessation order (or its modification, vacation, or
termination), and to the applicant for review the ultimate burden of
persuasion.
B. Civil Penalty Proceedings
Section 518(a) of the Act, 30 U.S.C. 1268(a), provides that a
permittee who violates the Act or a permit condition may be assessed a
civil penalty. Section 518(b) provides that the penalty may only be
assessed after the person charged with a violation has been given the
opportunity for a public hearing conducted in accordance with section
554 of the APA. Section 518(c) provides that the person charged may
contest the amount of the penalty or the fact of the violation.
Section 518(b) also provides that, when there has been a hearing,
``the Secretary shall * * * issue a written decision as to the
occurrence of the violation and the amount of the penalty which is
warranted'' and ``shall consolidate such hearings with other
proceedings under section 521'' when appropriate.
When OHA originally adopted the regulation governing burdens of
proof in civil penalty proceedings, 43 CFR 4.1155, it allocated both
the burden of going forward to establish a prima facie case and the
burden of persuasion to OSM, with respect to both the fact of violation
and the amount of the penalty. 43 FR 34376, 34393 (Aug. 3, 1978). The
result was that the allocation of the ultimate burden of persuasion as
to the fact of a violation was inconsistent with the legislative
history of the Act discussed above in connection with section 525. In
addition, when there was a consolidated hearing to review a notice or
order issued under section 521 and a civil penalty proposed under
section 518, there were contradictory provisions allocating the
ultimate burden of persuasion as to the fact of a violation: Sec.
4.1171 to the applicant for review and Sec. 4.1155 to OSM. 52 FR
38246-38247 (October 15, 1987).
In 1988, therefore, OHA amended Sec. 4.1155 to provide that ``OSM
shall have the burden of going forward to establish a prima facie case
as to the fact of the violation and the amount of the civil penalty and
the ultimate burden of persuasion as to the amount of the civil
penalty.'' A person who petitions for review of a proposed assessment
of a civil penalty, however, has ``the ultimate burden of persuasion as
to the fact of the violation.''
Viewing the statutory scheme as a whole, including the interplay
among SMCRA sections 518, 521, and 525, and in view of the legislative
history and case precedent discussed above, OHA concludes that the
burden of proof as to the fact of the violation in civil penalty
proceedings fits within the exception language of 5 U.S.C. 556(d) and
that 43 CFR 4.1155 is consistent with Congressional intent.
C. Individual Civil Penalty Proceedings
Section 518(f) of the Act, 30 U.S.C. 1268(f), provides that, when a
corporate permittee violates a condition of its permit or fails or
refuses to comply with any order issued under section 521 of the Act or
any order in a final decision by the Secretary (with certain
exceptions), any director, officer, or agent of the corporation who
willfully and knowingly authorized, ordered, or carried out the
corporation's violation or its failure or refusal to comply, ``shall be
subject to the same civil penalties * * * that may be imposed upon a
person'' under section 518(a).
43 CFR 4.1307(a) allocates to OSM the burden of going forward with
evidence to establish a prima facie case that (1) the corporation
violated a permit condition or failed or refused to comply with an
order; (2) the individual was a director, officer, or agent of the
corporation at the time of the violation; and (3) the individual acted
willfully and knowingly. Section 4.1307(b) imposes on the individual
the ultimate burden of persuasion as to (1) whether the corporation
violated a permit condition or failed or refused to comply with an
order and (2) whether he or she was a director or officer at the time
of the violation or refusal. Section 4.1307(c) imposes on OSM the
ultimate burden of persuasion as to (1) whether the individual was an
agent of the corporation and (2) the amount of the individual civil
penalty.
Just as the statutory scheme, legislative history, and court
precedent discussed above assign the burden of persuasion as to the
fact of a violation to a corporate permittee under section 518(a), so
they support allocating the burden of proof on that issue to the
individual under section 518(f). However, the same conclusion cannot be
drawn as to the individual's role in the corporation. Since SMCRA does
not
[[Page 66726]]
``otherwise provide[]'' an allocation of the burden of proof on that
issue, OHA agrees with NMA that the burden must be imposed on OSM as
the proponent of the order (individual civil penalty) under 5 U.S.C.
556(d). OHA is therefore amending 43 CFR 4.1307 in this final rule to
state that OSM has the ultimate burden of persuasion as to whether the
individual was a director, officer, or agent of the corporation.
D. Permit Suspension or Revocation Proceedings
Section 521(a)(4) of the Act, 30 U.S.C. 1271(a)(4), provides as
follows:
When, on the basis of a Federal inspection * * *, the Secretary
or his authorized representative determines that a pattern of
violations of any requirements of this Act or any permit conditions
required by this Act exists or has existed, and if the Secretary or
his authorized representative also finds that such violations are
caused by the unwarranted failure of the permittee to comply with
any requirements of this Act or any permit conditions, or that such
violations are willfully caused by the permittee, the Secretary or
his authorized representative shall forthwith issue an order to the
permittee to show cause as to why the permit should not be suspended
or revoked and shall provide opportunity for a public hearing. If a
hearing is requested, the Secretary shall inform all interested
parties of the time and place of the hearing. Upon the permittee's
failure to show cause as to why the permit should not be suspended
or revoked, the Secretary or his authorized representative shall
forthwith suspend or revoke the permit.
(Emphasis added.) Section 525(d) of the Act, 30 U.S.C. 1275(d),
provides that the hearing shall be of record and subject to section 554
of the APA.
OHA's regulations at 43 CFR 4.1194 provide that, in such
proceedings, OSM has the burden of going forward to establish a prima
facie case for suspension or revocation of the permit, but the ultimate
burden of persuasion that the permit should not be suspended or revoked
rests with the permittee.
The language of section 521(a)(4) clearly assigns the burden of
persuasion in permit suspension or revocation proceedings to the
permittee. The legislative history confirms Congress' intent:
This section [section 525] also provides for the Secretary to
hold a public hearing following the issuance of an order to show
cause why a permit should not be revoked or suspended pursuant to
[section 521]. At the hearing the permittee shall have the burden of
proof to show why his permit should not be suspended or revoked.
S. Rep. No. 95-128, 95th Cong., 1st Sess., 96 (1977) (emphasis added).
As with the fact-of-the-violation issue in proceedings under
sections 525(a)(1), 518(b), and 518(f), therefore, SMCRA provides its
own allocation of the burden of proof in permit suspension or
revocation proceedings, and the language of 5 U.S.C. 556(d) assigning
the burden to the proponent of the order does not apply.
E. Proceedings To Review Permit Revisions Ordered by OSM
Section 511 of the Act, 30 U.S.C. 1261, applies to revision of
permits. Section 511(a) provides that, during the term of the permit, a
permittee may apply for a revision to a permit. Section 511(c) provides
that the regulatory authority must, within time limits prescribed in
regulations, review outstanding permits and may require reasonable
revision or modification of permit provisions during the term of the
permit. The revision or modification is to be ``based upon a written
finding and subject to notice and hearing requirements established by
the State or Federal program.'' Id.
OSM's implementing regulations at 30 CFR 774.10(a) provide that the
regulatory authority must review each permit issued under an approved
program not later than the middle of each permit term. The regulatory
authority ``may, by order, require reasonable revision of a permit * *
* to ensure compliance with the Act and the regulatory program.'' Sec.
774.10(b). Any order requiring revision of a permit ``shall be based
upon written findings and shall be subject to the provisions for
administrative and judicial review in [30 CFR] part 775.'' Sec.
774.10(c). Under Sec. 775.11(c), all hearings ``under a Federal
program for a State or a Federal lands program * * * on an application
for approval of * * * permit revision shall be of record and governed
by 5 U.S.C. 554 and 43 CFR part 4.''
OHA's regulations at 43 CFR 4.1366(b) provide that, in a proceeding
to review a permit revision ordered by OSM, OSM has the burden of going
forward to establish a prima facie case that the permit should be
revised, and the permittee has the ultimate burden of persuasion. This
allocation of the burden of proof was explained in the preamble to the
proposed rule:
A comment suggested due process requires that 43 CFR [4.1365]
should provide that the filing of a request for review would stay an
OSM order requiring revision of a permit because it is an ``ex parte
action by OSM''* * * . [B]ecause the purpose of such an order is to
ensure compliance with the Act (see 30 CFR 774.11(b)), no stay is
appropriate, just as it is not under 30 U.S.C. 1275(a)(1) when an
application for review is filed for a notice of violation or
cessation order (unless temporary relief is granted). Cf. 43 CFR
4.1116. Because of the enforcement nature of such an order, the
ultimate burden of persuasion is properly on the permittee in 43 CFR
[4.1366(b)]. Cf. 43 CFR 4.1171(b).
51 FR 35250 (Oct. 2, 1986) (emphasis added).
Under section 510(a) of the Act, 30 U.S.C. 1260(a), ``[t]he
applicant for a permit, or revision of a permit, shall have the burden
of establishing that his application is in compliance with all the
requirements of the applicable State or Federal program.'' If at any
point the permitted operation is no longer in compliance with the Act,
``the regulatory authority * * * may require reasonable revision or
modification of the permit provisions * * * .'' Section 511(c). It
follows that, when challenging OSM's decision to require a permit
revision to ensure compliance with the Act, the permit holder properly
bears the burden of persuasion.
Construing section 511(c) in light of the statutory scheme as a
whole, including sections 510(a), 521(a), and 525(a), and in light of
the legislative history and case precedent interpreting those
provisions, OHA believes it has correctly allocated the burden of proof
in 43 CFR 4.1366(b).
F. Conclusion
For the foregoing reasons, NMA's petition for rulemaking is granted
in part with respect to 43 CFR 4.1307 and is otherwise denied.
II. Review Under Procedural Statutes and Executive Orders
A. Planning and Review (E.O. 12866). accordance with the criteria
in Executive Order 12866, the Department of the Interior finds that
this document is not a significant rule. The Office of Management and
Budget has not reviewed this rule under Executive Order 12866.
1. This rule will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity,
competition, jobs, the environment, public health or safety, or other
units of government. A cost-benefit and economic analysis is not
required. The amended rule will have virtually no effect on the economy
because it will only change the allocation of the burden of proof--from
the individual to OSM--on one issue in one kind of proceeding under
SMCRA. Moreover, the practical effect of the rule will be limited to
the rare situation in which the evidence on that one issue is evenly
balanced.
2. This rule will not create inconsistencies with or interfere with
other agencies' actions. The rule amends an existing OHA regulation to
change
[[Page 66727]]
the allocation of the burden of proof in one kind of proceeding under
SMCRA.
3. This rule will not alter the budgetary effects of entitlements,
grants, user fees, loan programs, or the rights and obligations of
their recipients. The existing regulation has to do with the burden of
proof in one kind of proceeding under SMCRA, not with entitlements,
grants, user fees, loan programs, or the rights and obligations of
their recipients.
4. This rule does not raise novel legal or policy issues. Rather,
it conforms OHA's regulations to recent court precedent.
B. Regulatory Flexibility Act. The Department certifies that this
rule will not have a significant economic effect on a substantial
number of small entities as defined under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Changing the allocation of the burden of
proof on one issue in individual civil penalty proceedings under SMCRA
will have no effect on small entities. A Small Entity Compliance Guide
is not required.
C. Small Business Regulatory Enforcement Fairness Act. This rule is
not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory
Enforcement Fairness Act.
1. This rule will not have an annual effect on the economy of $100
million or more. Changing the allocation of the burden of proof in one
kind of proceeding under SMCRA will have no effect on the economy.
2. This rule will not cause a major increase in costs or prices for
consumers, individual industries, Federal, state, or local government
agencies, or geographic regions. Changing the allocation of the burden
of proof in one kind of proceeding under SMCRA will not affect costs or
prices for citizens, individual industries, or government agencies.
3. This rule will not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. Changing the allocation of the burden of proof in one kind
of proceeding under SMCRA will have no effects, adverse or beneficial,
on competition, employment, investment, productivity, innovation, or
the ability of U.S.-based enterprises to compete with foreign-based
enterprises.
D. Unfunded Mandates Reform Act. In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1531 et seq.), the Department finds as
follows:
1. This rule will not have a significant or unique effect on state,
local, or tribal governments or the private sector. Changing the
allocation of the burden of proof in one kind of proceeding under SMCRA
will neither uniquely nor significantly affect these governments. A
statement containing the information required by the Unfunded Mandates
Reform Act, 2 U.S.C. 1531 et seq., is not required.
2. This rule will not produce an unfunded Federal mandate of $100
million or more on state, local, or tribal governments or the private
sector in any year, i.e., it is not a ``significant regulatory action''
under the Unfunded Mandates Reform Act.
E. Takings (E.O. 12630). In accordance with Executive Order 12630,
the Department finds that this rule will not have significant takings
implications. A takings implication assessment is not required.
Imposing on OSM the burden of proof on one issue in one kind of
proceeding under the SMCRA will have no effect on property rights.
F. Federalism (E.O. 13132). In accordance with Executive Order
13132, the Department finds that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment. States with approved regulatory programs may be affected to
the extent they make a conforming change to their own rules and
consequently bear the burden of proof on the issue of whether someone
who receives a proposed individual civil penalty assessment was an
officer, director, or agent of the corporation. These effects are so
minor that a Federalism Assessment is not required.
G. Civil Justice Reform (E.O. 12988). In accordance with Executive
Order 12988, the Office of the Solicitor has determined that this rule
does not unduly burden the judicial system and meets the requirements
of sections 3(a) and 3(b)(2) of the Order. This rule, because it simply
changes the allocation of the burden of proof proceedings in one kind
of proceeding under SMCRA, will not burden either administrative or
judicial tribunals.
H. Paperwork Reduction Act. This rule will not require an
information collection from 10 or more parties, and a submission under
the Paperwork Reduction Act is not required. An OMB form 83-I has not
been prepared and has not been approved by the Office of Policy
Analysis. This rule will only change the allocation of the burden of
proof in one kind of proceeding under SMCRA; it will not require the
public to provide information.
I. National Environmental Policy Act. The Department has analyzed
this rule in accordance with the National Environmental Policy Act of
1969 (NEPA), 42 U.S.C. 4321 et seq., Council on Environmental Quality
(CEQ) regulations, 40 CFR part 1500, and the Department of the Interior
Departmental Manual (DM). CEQ regulations, at 40 CFR 1508.4, define a
``categorical exclusion'' as a category of actions that the Department
has determined ordinarily do not individually or cumulatively have a
significant effect on the human environment. The regulations further
direct each department to adopt NEPA procedures, including categorical
exclusions. 40 CFR 1507.3. The Department has determined that this rule
is categorically excluded from further environmental analysis under
NEPA in accordance with 516 DM 2, Appendix 1, which categorically
excludes ``[p]olicies, directives, regulations and guidelines of an
administrative, financial, legal, technical or procedural nature.'' In
addition, the Department has determined that none of the exceptions to
categorical exclusions, listed in 516 DM 2, Appendix 2, applies to this
rule. This rule is an administrative and procedural rule, relating to
the allocation of the burden of proof in one kind of proceeding under
SMCRA. Therefore, neither an environmental assessment nor an
environmental impact statement under NEPA is required.
J. Government-to-Government Relationship with Tribes. In accordance
with the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR
22951), E.O. 13175, and 512 DM 2, the Department has evaluated
potential effects of this rule on Federally recognized Indian tribes
and has determined that there are no potential effects. This rule will
not affect Indian trust resources; it will simply change the allocation
of the burden of proof in one kind of proceeding under SMCRA.
K. Effects on the Nation's Energy Supply. In accordance with
Executive Order 13211, the Department finds that this regulation does
not have a significant effect on the nation's energy supply,
distribution, or use. Changing the allocation of the burden of proof in
one kind of proceeding under SMCRA will not affect energy supply or
consumption.
III. Determination To Issue Final Rule
The Department has determined that prior publication of a proposed
rule to amend 43 CFR 4.1307 is not required by the notice and comment
provisions of the Administrative Procedure Act, 5 U.S.C. 553(b),
because an opportunity was provided to comment on the change
[[Page 66728]]
as proposed in NMA's petition for rulemaking (68 FR 13657).
List of Subjects in 43 CFR Part 4
Administrative practice and procedure; Mines; Public lands; Surface
mining.
Dated: November 13, 2003.
P. Lynn Scarlett,
Assistant Secretary--Policy, Management and Budget.
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For the reasons set forth in the preamble, part 4, subpart L, of title
43 of the Code of Federal Regulations is amended as set forth below:
PART 4--[AMENDED]
Subpart L--Special Rules Applicable to Surface Coal Mining Hearings
and Appeals
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1. The authority for 43 CFR part 4 subpart L continues to read as
follows:
Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272,
1275, 1293; 5 U.S.C. 301.
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2. In Sec. 4.1307, revise paragraphs (b) and (c) to read as follows:
Sec. 4.1307 Elements; burden of proof.
* * * * *
(b) The individual shall have the ultimate burden of persuasion by
a preponderance of the evidence as to the elements set forth in
paragraph (a)(1) of this section.
(c) OSM shall have the ultimate burden of persuasion by a
preponderance of the evidence as to the elements set forth in
paragraphs (a)(2) and (a)(3) of this section and as to the amount of
the individual civil penalty.
[FR Doc. 03-29695 Filed 11-26-03; 8:45 am]
BILLING CODE 4310-79-P