FEDERAL REGISTER: 45 FR 58780 (September 4, 1980) DEPARTMENT OF THE INTERIOR AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM) 30 CFR Parts 722, 723, 843 and 845 Civil Penalties, Final Rulemaking ACTION: Final rulemaking. SUMMARY: The Office of Surface Mining Reclamation and Enforcement adopts final rules, pursuant to the Surface Mining Control and Reclamation Act of 1977 (SMCRA), which would (1) modify the amount of penalties assessed in cases of nonabatement of violations, (2) mandate a review of a permittee's history of violations to determine whether a pattern of violations exists in such nonabatement cases, (3) provide for appropriate enforcement action in such nonabatement cases, and (4) make minor wording changes in Part 723 of the interim regulations so that Part 723 is the same as Part 845 of the permanent regulations. EFFECTIVE DATE: October 6, 1980. FOR FURTHER INFORMATION CONTACT: Richard Robinson, Enforcement Specialist, Office of Surface Mining, Department of the Interior, Washington, D.C. 20240, (202) 343-8061. SUPPLEMENTARY INFORMATION: In this document the Office adopts final rules to modify the amounts of penalties assessed in cases of nonabatement of violations, mandate a review of a permittee's history of violations to determine whether a pattern of violations exists in such nonabatement cases, provide for appropriate enforcement action in such nonabatement cases, and make minor wording changes in Part 723 of the interim regulations so that Part 723 is exactly the same as Part 845 of the permanent regulations. The Department has determined that these final rules are not significant rules and do not require the preparation of a regulatory analysis. An environmental assessment of these regulations has been prepared, and has been made a part of the administrative record for these rules. INTRODUCTION TO FINAL RULES CONFORMING INTERIM TO PERMANENT REGULATIONS 30 CFR 723.2-723.18 are changed to be exactly the same as (except as indicated in this document) the corresponding permanent regulations (30 CFR 845.2-845.20). The basis and purpose of these permanent regulations are explained in the preamble to Part 845 of the proposed permanent regulations, 43 FR 41796-41797 (September 18, 1978), and of the final permanent regulations, 44 FR 15305-15309 (March 13, 1979). These changes, are for the most part, merely ones of phraseology. The Office responded only to those comments on portions of these regulations which involved substantive changes. Since the procedural areas are not the subject of this rulemaking, the Office believes it is unnecessary to respond to these comments. For instance, a number of commenters suggested changes to the methods by which civil penalty points are assessed in the interim and permanent programs. In this area, there is no difference between the two programs. Such commenters, thus, went beyond the phraseology changes and commented on the substance of the rule which was not revised. The entire rule was reprinted in the text of this rulemaking only for the convenience of the reader, and not for the purpose of inviting public comment. PENALTIES FOR FAILURE TO ABATE The Office has been confronted with a problem in the assessment and the collection of civil penalties under SMCRA. Under section 723.14(a) of the interim regulations as previously written, in cases where a cessation order was issued for failure to abate, the Office was required to assess a daily penalty equal to the amount assessed for the violation or $750, whichever was greater, section 845.15(b) of the permanent regulations and section 518(h) of SMCRA provide that in such cases the Office must assess a daily penalty of not less than $750. Under the prior interim regulations, if an operator failed to abate a violation for 30 days and if that violation was assessed at $2,000 (the average penalty per violation), the penalty for nonabatement would have been $60,000. If the operator failed to abate two such violations, the total penalty was $120,000. On certain occasions, computation of failure-to-abate penalties under this scheme resulted in clearly excessive amounts considering the nature and effects of the underlying violations of SMCRA. The rule modification will reduce the potential for assessment of excessive penalties under the interim regulations by reducing the daily penalty to $750, the statutory minimum, except in those cases where the Director determines that a larger amount is appropriate. Nevertheless, even with this modification, the penalty in a failure-to- abate case could quickly become excessive where there is no limitation upon the number of days for which the penalty may be assessed. Furthermore, failure-to-abate penalties computed over a lengthy time period might drive many operators out of business. Many operators have been operating in States where enforcement efforts have historically been weak and penalties low. Without some limitation on the period during which failure-to-abate penalties run, a small-to-medium sized operator might be put out of business with his first such penalty. Since this would not give such an operator a second chance, the Office believes such action would be unduly harsh. While Congress intended that, in certain instances, recalcitrant operators who persist in defying SMCRA not be allowed to continue in business, the Office believes that, in most cases, the appropriate method of effectuating that intent is through an action to suspend or revoke the operator's permit under section 521(a)(4) of SMCRA or other enforcement action under the Act, rather than though the more cumbersome and indirect method of imposing unrealistically large civil penalty assessments. The Office has adopted certain management measures to reduce the number of cases of nonabatement, such as: using interim steps for abatement where appropriate; attempting to inspect for compliance as close as possible to the final abatement date; increasing efforts to inform operators of the penalties and sanctions for nonabatement; expediting paperwork in nonabatement cases so that the operator receives notice of the penalty accrual as soon as possible; and seeking injunctive, and criminal relief, initiating procedures under section 518(f) of the Act, and using permit suspension and revocation powers more frequently. However, even with better management and with the modification discussed above, but without limitation on the penalty period, cases of nonabatement over lengthy periods would still occur with the consequent potential for excessive penalties. At the inception of the interim program, the Office had no occasion to anticipate the potential for exorbitant failure-to-abate penalties generated by applying the $750 daily penalty over months, years, or an indeterminate, lengthier period of time. The Office believed that desire to avoid increasing penalties, together with the other sanctions mentioned above, would universally motivate operators to abate violations of SMCRA. Experience under SMCRA has borne out the Office's beliefs in the vast majority of cases, and the failure-to-abate penalty has proven to be an effective enforcement tool. In some cases, however, the $750 daily penalty has led to alarmingly high totals. Ironically, such high penalties may actually deter effective enforcement by forcing operators out of business and to ultimately abandon unreclaimed sites. {58781} Subsection (h) of section 518 of SMCRA, which provides for the assessment of the $750-per-day penalty for failure-to-abate violations, contains no language limiting the length of time over which the assessment is to be made. Read outside the context of the remainder of section 518, the subsection would seem to require unlimited assessment. However, subsection (c) of section 518 provides as follows: (c) Upon the issuance of a notice of order charging that a violation of the Act has occurred, The Secretary shall inform the operator within thirty days of the proposed amount of said penalty (emphasis added). The Office is of the opinion that the language quoted above indicates Congress' intention to terminate at thirty days the time over which failure-to-abate penalties may be assessed. These penalties are assessed in addition to the penalty under Section 518(a) of SMCRA for the violation itself, which penalty may be as much as $5,000. Thus, guided by SMCRA, the Office now intends to avoid uncertainty and confusion by the changes to the interim and permanent regulations to clearly state that failure-to- abate penalties are subject to a thirty-day maximum assessment period. (See 30 CFR 723.15(b)(2), 845.15(b)(2).) The Office intends to modify any existing assessments in these failure-to-abate cases in accordance with the changes in these regulations, when they become effective, and will so notify affected operators. The Office intends to grant hearing and conference requests as though such recomputations were new assessments. Also, existing cases may be settled for the amounts that would be proper under these final rules. In addition, as discussed above, the interim civil penalty regulations have been modified to be exactly the same as the corresponding permanent regulations. This includes changing the requirement that the daily penalty for failure-to-abate run from the date of non-abatement, not the date on which the reinspection occurred and the cessation order for failure to abate was issued. The Office recognizes that unless reinspections are carried out on the date set for abatement, an operator who believes he has abated, but who in fact has not, may be assessed unfairly. For instance, if the inspector inspects 20 days later and finds that the operator still has not completely abated, even though he thought he had, the operator would face an additional $15,000 fine, part of which could have been avoided had the inspector-inspected on the abatement date. Accordingly, these final rules provide that the Office will not assess the daily penalty for failure-to-abate during the period from the abatement date set in the notice of violation or cessation order to the date of the OSM reinspection (30 CFR 723.15(b)). Thus, penalties will begin to accumulate on the date that the Office actually reinspects the minesite and determines that the violation cited in the notice of violation or cessation order has not been abated. Such reinspections will normally occur on the date set for abatement unless something unexpected occurs such as an equipment failure, inclement weather, etc. The Office recognizes that there is a potential for abuse of this modification, and that if the reinspection does not occur on the abatement date, it may be a de facto extension of time to abate. However, the Office is coupling this modification with a policy that the Office reinspect on the date set for abatement or within 3 days thereafter. Lastly, the Office believes that stronger enforcement action must be taken in most cases against those persons who fail to abate their violations within the periods set for such abatement. As part of its scheme to deal with such persons, described at Comment 6 below, the regulations require the Office to take appropriate action pursuant to sections 518(e), 518(f), 521(c), or 521(a)(4) of SMCRA in all cases where a person has failed to abate a violation within 60 days from the date the failure-to-abate cessation order is issued. This requirement is imposed under new subsections 30 CFR 723.15(b)(2) and 845.15(b)(2). BACKGROUND Proposed modifications to 30 CFR Parts 722, 723, 843 an 845 were published in the Federal Register on January 23, 1980 (45 FR 5540). A public hearing was held on February 13, 1980, in Washington, D.C. At the close of the comment period on February 11, 1980, nine commenters had submitted written comments. The transcript of the public hearing and all written comments pertaining to substantive changes in the regulations have been fully and completely considered in the development of these final regulations. Comments pertaining to each section of the regulations have been summarized below to assist the public in understanding the response to each comment and the bases and purposes of the final regulations. Sections 722.16 and 843.13 1. One commenter suggested that the review for a pattern of violations provided in 30 CFR 722.16(e) and 843.13(f) be limited to violations which are willful or involve an unwarranted failure to comply. The Office rejects this recommendation as unnecessary. The results of such review will be based only on such violations because a permit may be revoked or suspended only if the Director determines that a pattern of violations exists, and that the violations were willfully caused by the permittee or through its unwarranted failure to comply (See 30 CFR 722.16(a) and 843.13(a)). 2. Another commenter suggested that the Office either delete 30 CFR 722.16(e) and 843.13(f), or make its review for a pattern of violations discretionary. Because the rule states that an order to show cause may be issued as appropriate, the Office does not feel that it is necessary to make such review discretionary. Additionally, as mentioned above, the Office believes that such review is especially appropriate in cases of nonabatement of violations. This is true because the failure of operators to correct cited violations in a timely fashion demonstrates an intent to flout the Act. It also creates a gross abuse of the environmental standards of the Act and must be treated accordingly. The Office believes that if a notice of violation is uncorrected and ripens into a failure-to-abate cessation order, and that such order is in turn uncorrected for at least one month, a serious question arises regarding the permittee's intent to comply with the Act, and it is incumbent upon the Office to examine the permittee's history of violations to determine if a pattern of unwarranted or willful violations exists. While the Office will attempt to review all operations with an eye to enforcement of 521(a)(4) of the Act, it is especially necessary to make such reviews in these cases of chronic non-abatement of violations. Parts 723 and 845 1. Two commenters recommended that the Office change 30 CFR 723.13(b)(3)(iii), which requires that acts of all persons working on the site be attributed to the person issued the notice or order, unless such acts are those of deliberate sabotage. The commenters suggested that acts of persons not working for the operator and acts which are unauthorized or beyond the scope of employment, also not be attributed to the person to whom the notice or order was issued. The Office rejects this comment because it is the responsibility of the permittee to control the site and access thereto, and to prevent such violations from occurring on his/her property. {58782} 2. Two commenters objected to the Office's statement in the preamble of these proposed rules that failure-to-abate penalties may force operators into bankruptcy because such penalties are not dischargeable in bankruptcy. The Office agrees with the commenters that such penalties are not dischargeable in bankruptcy. However, such penalties may be a cause of operators going out of business. This clarification has been made in the preamble of these final rules. 3. One commenter recommended that the amount of the failure-to-abate penalty bear a direct correlation to the operator's economic position. The Office rejects this comment because the daily penalty is set at a minimum of $750 per day under section 518(h) of the Act. Congress did not differentiate between operators on the basis of an operator's economic position. Even in the case of penalties other than for failure-to-abate situations, the criteria set by Congress in section 518(a) of the Act do not include an operator's ability to pay. 4. One commenter objected to the Office's policy of beginning to accumulate the failure-to-abate penalty on the date that the Office actually reinspects the minesite and determines that the cited violation has not been abated. The Office rejects this comment because it does not feel it is fair to penalize operators for the failure of the Office, in certain instances, to reinspect for compliance with the notice or order on the date set for abatement. 5. One commenter asked for the right to comment on any agency documents describing the management measures adopted by the Office to reduce the number of cases of non-abatement. This comment is rejected. These documents are internal management procedures and the rules are in no way based upon the information contained in these documents. Any person may, of course, request copies of these documents under the Freedom of Information Act. The Office, however, expresses no opinion as to whether these documents are available to the public under that law. 6. One commenter suggested that the Office agree, in nonabatement cases, to take whatever enforcement action or actions are most likely to abate a violation in the most expeditious manner possible and to deter future violations. The commenter recommended that the Office take such action within 45 days from the date the failure-to-abate cessation order is issued. The Office accepts this suggestion, except that the regulation provides the Office with 60 days from the date the failure-to-abate cessation order is issued to take such action. 30 CFR 723.15(b)(2) and 845.15(b)(2) are amended accordingly. Specifically the amended regulations require the Office to take appropriate action under sections 518(e), 518(f), 521(a)(4) or 521(c) of SMCRA. The Office will also develop an administrative system to insure that appropriate action is taken within the 30-day period after the maximum penalty has been assessed, and that alternative enforcement action will be pursued at least until such time as the violation has been abated except in cases where no enforcement purpose would be served. The Office considers this suggestion to be appropriate because of the likelihood that one who refuses to comply with a cessation order for more than 30 days is usually flouting the Act and that other effective enforcement or legal action is required. Operators who fail to cease operations and to correct violations when ordered to do so must be subjected as quickly as possible to other enforcement actions. Longstanding violations often cause serious environmental hazards on minesites and must be dealt with in some effective manner. The Office is doing no more than utilizing other enforcement tools already available in the Act to accomplish this end. 7.Two comments were received regarding the Director's discretion to waive the formula in determining a civil penalty under 30 CFR 723.16. One suggestion was that such waiver be used only to lower the amount of a penalty. The Office rejects this comment because it needs the flexibility for cases where waiver of the formula is appropriate, and where the facts as established at the time of the proposed assessment turn out to be different and less favorable to the permittee. Another commenter suggested adding, "and such exceptional factors as he may deem appropriate," to the criteria to be considered by the Director in determining the amount of the penalty, and the term "detailed" to describe the written explanation of the basis for the assessment in 30 CFR 723.16(b). The Office rejects these recommendations as unnecessary. The Director is already required under 30 CFR 723.16(a) to take exceptional factors into account in determining whether to waive the formula. The Director is also prohibited from using any factors in determining the amount of the penalty other than the four contained in section 518(a) of SMCRA. Finally, the Office feels that the Director's written explanation of the basis for the assessment will be sufficient without the addition of the term "detailed." 8. One commenter requested that the Office serve copies of all records on which an assessment is based, including the inspector's notes, statements and inspection reports, and the worksheet showing the computation of the proposed assessment on the person to whom the notice or order was issued While these documents are not now served on the person to whom the notice or order was issued, all are available upon request from the Assessment Office and the Regional Office except for the inspector's notes which are merely preparatory to the inspector's statement and the inspection report. The Office finds that it would be administratively cumbersome to routinely include these extra documents in the already large package presently being sent to violators and, therefore, rejects this comment. 9. One commenter suggested that the Office modify 30 CFR 723.18(d)(1) to allow the person assessed a penalty to contest the fact of the violation and not the amount of the penalty even though such person has entered into a settlement agreement. The Office rejects this comment because its adoption would undermine the purpose of settlements. If such person wishes to contest the fact of a violation, he may do so in the hearing provided for in Section 525 of SMCRA if no settlement has been entered into. 10. One commenter recommended changing the last sentence of 30 CFR 723.19(a) to allow a person charged with a violation to contest the fact of the violation irrespective of whether it has been decided in a review proceeding commenced under section 525 of SMCRA and 43 CFR Part 4.The Office rejects this comment because it believes that one hearing on the fact of the violation is sufficient, and any further hearings would unduly burden the administrative system. If a decision was rendered previously on the identical violation which is the subject of a civil penalty review action the earlier ruling would be res judicata on the fact of the violation. REGULATION DRAFTERS These rules have been drafted principally by Harriet B. Marple, Chief, Division of Enforcement; Richard Robinson, Enforcement Specialist, Office of Surface Mining, Reclamation and Enforcement; John Williams, Staff Attorney; and Marc McGraw, Assistant Solicitor for Enforcement. {58783} Dated: August 25, 1980. Joan M. Davenport, Assistant Secretary, Energy and Minerals . PART 722 -- ENFORCEMENT PROCEDURES 1. Section 722.16 is revised by adding paragraph (e) as follows: Sec. 722.16 Pattern of violations. (e) Whenever a permittee fails to abate a violation contained in a notice of violation or cessation order within the abatement period set in the notice or order or as subsequently extended, the Director shall review the permittee's history of violations to determine whether a pattern of violations exists pursuant to this section, and shall issue an order to show cause as appropriate pursuant to 30 CFR 723.15(b)(2). 1a. The table of contents for Part 723 is amended by revising the headings for Secs. 723.2 and 723.11-723.19, a new Sec. 723.20 is added. PART 723 -- CIVIL PENALTIES Sec. 723.2 Objective. 723.11 How assessments are made. 723.12 When penalty will be assessed. 723.13 Point system for penalties. 723.14 Determination of amount of penalty. 723.15 Assessment of separate violations for each day. 723.16 Waiver of use of formula to determine civil penalty. 723.17 Procedures for assessment of civil penalties. 723.18 Procedures for assessment conference. 723.19 Request for hearing. 723.20 Final assessment and payment of penalty. Authority: Surface Mining Control and Reclamation Act of 1977, Secs. 201, 501, 518 (30 U.S.C. 1211, 1251, 1268). 2. Part 723 is amended by revising each section, including the headings (all but Sec. 723.1) and by adding Sec. 723.2 to read as follows: Sec. 723.2 Objective. Civil penalties are assessed under section 518 of the Act and this Part to deter violations and to ensure maximum compliance with the terms and purpose of the Act on the part of the coal mining industry. Sec. 723.11 How assessments are made. The Office shall review each notice of violation and cessation order in accordance with the assessment procedures described in 30 CFR 723.12, 723.13, 723.14, 723.15, and 723.16 to determine whether a civil penalty will be assessed, the amount of the penalty, and whether each day of a continuing violation will be deemed a separate violation for purposes of the total penalty assessed. Sec. 723.12 When penalty will be assessed. (a) The Office shall assess a penalty for each cessation order. (b) The Office shall assess a penalty for each notice of violation, if the violation is assigned 31 points or more under the point system described in 30 CFR 723.13. (c) The Office may assess a penalty for each notice of violation assigned 30 points or less under the point system described in 30 CFR 723.13. In determining whether to assess a penalty, the Office shall consider the factors listed in 30 CFR 723.13(b). Sec. 723.13 Point system for penalties. (a) The Office shall use the point system described in this section to determine the amount of the penalty and, in the case of notices of violation, whether a mandatory penalty should be assessed as provided in 30 CFR 723.12(b). (b) Points shall be assigned as follows: (1) History of previous violations . The Office shall assign up to 30 points based on the history of previous violations. One point shall be assigned for each past violation contained in a notice of violations. Five points shall be assigned for each violation (but not a condition or practice) contained in a cessation order. The history of previous violations for the purpose of assigning points, shall be determined and the points assigned with respect to a particular surface coal mining operation. Points shall be assigned as follows: (i) A violation shall not be counted if the notice or order is the subject of pending administrative or judicial review or if the time to request such review or to appeal any administrative or judicial decision has not expired, and thereafter it shall be counted for only one year. (ii) No violation for which the notice or order has been vacated shall be counted; and (iii) Each violation shall be counted without regard to whether it led to a civil penalty assessment. (2) Seriousness . The Office shall assign up to 30 points based on the seriousness of the violation, as follows: (i) Probability of Occurrence . The Office shall assign up to 15 points based on the probability of the occurrence of the event which a violated standard is designed to prevent. Points shall be assessed according to the following schedule: Probability of Occurrence ______________________________________________________________________________ Points None 0 Insignificant 1 - 4 Unlikely 5 - 9 Likely 10 - 14 Occurred 15 ______________________________________________________________________________ (ii) Extent of potential or actual damage . The Office shall assign up to 15 points, based on the extent of the potential or actual damage, in terms of area and impact on the public or environment, as follows: (A) If the damage or impact which the violated standard is designed to prevent would remain within the permit area, the Office shall assign zero to seven points, depending on the duration and extent of the damage or impact. (B) If the damage or impact which the violated standard is designed to prevent would extend outside the permit area, the Office shall assign eight to fifteen points, depending on the duration and extent of the damage or impact. (iii) Alternative . In the case of a violation of an administrative requirement, such as a requirement to keep records, the Office shall, in lieu of Paragraphs (i) and (ii), assign up to 15 points for seriousness, based upon the extent to which enforcement is obstructed by the violation. (3) Negligence . (i) The Office shall assign up to 25 points based on the degree of fault of the person to whom the notice or order was issued in causing or failing to correct the violation, condition, or practice which led to the notice or order, either through act or omission. Points shall be assessed as follows: (A) A violation which occurs through no negligence shall be assigned no penalty points for negligence; (B) A violation which is caused by negligence shall be assigned 12 points or less, depending on the degree of negligence; (C) A violation which occurs through a greater degree of fault than negligence shall be assigned 13 to 25 points, depending on the degree of fault. (ii) In determining the degree of negligence involved in a violation and the number of points to be assigned, the following definitions apply: (A) "No negligence" means an inadvertent violation which was unavoidable by the exercise of reasonable care. {58784} (B) "Negligence" means the failure of a permittee to prevent the occurrence of any violation of his or her permit or any requirement of the Act or this Chapter due to indifference, lack of diligence, or lack of reasonable care, or the failure to abate any violation of such permit or the Act due to indifference, lack of diligence, or lack of reasonable care. (C) "A greater degree of fault than negligence" means reckless, knowing, or intentional conduct. (iii) In calculating points to be assigned for negligence, the acts of all persons working on the surface coal mining and reclamation site shall be attributed to the person to whom the notice or order was issued, unless than person establishes that they were acts of deliberate sabotage. (4) Good faith in attempting to achieve compliance . (i) The Office shall add points based on the degree of good faith of the person to whom the notice or order was issued in attempting to achieve rapid compliance after notification of the violation. Points shall be assigned as follows: Degree of Good Faith ___________________________________________________________________________________________ Points Rapid compliance - 1 to - 10 Normal compliance 0 ___________________________________________________________________________________________ (ii) The following definitions shall apply under Paragraph (b)(4)(i) of this Section: (A) "Rapid compliance" means that the person to whom the notice or order was issued took extraordinary measures to abate the violation in the shortest possible time and that abatement was achieved before the time set for abatement. (B) "Normal compliance" means the person to whom the notice or order was issued abated the violation within the time given for abatement. (iii) If the consideration of this criterion is impractical because of the length of the abatement period, the assessment may be made without considering this criterion and may be reassessed after the violation has been abated. Sec. 723.14 Determination of amount of penalty. The Office shall determine the amount of any civil penalty by converting the total number of points assigned under 30 CFR 723.13 to a dollar amount, according to the following schedule: _____________________________________________________________________________ Points Dollars 1 20 2 40 3 50 4 80 5 100 6 120 7 140 8 160 9 180 10 200 11 220 12 240 13 260 14 280 15 300 16 320 17 340 18 360 19 380 20 400 21 420 22 440 23 460 24 480 25 500 26 600 27 700 28 800 29 900 30 1,000 31 1,100 32 1,200 33 1,300 34 1,400 35 1,500 36 1,600 37 1,700 38 1,800 39 1,900 40 2,000 41 2,100 42 2,200 43 2,300 44 2,400 45 2,500 46 2,600 47 2,700 48 2,800 49 2,900 50 3,000 51 3,100 52 3,200 53 3,300 54 3,400 55 3,500 56 3,600 57 3,700 58 3,800 59 3,900 60 4,000 61 4,100 62 4,200 63 4,300 64 4,400 65 4,500 66 4,600 67 4,700 68 4,800 69 4,900 70 and above 5,000 ____________________________________________________________________________________________ Sec. 723.15 Assessment of separate violations for each day. (a) The Office may assess separately a civil penalty for each day from the date of issuance of the notice of violation or cessation order to the date set for abatement of the violation. In determining whether to make such an assessment, the Office shall consider the factors listed in 30 CFR 723.13 and may consider the extent to which the person to whom the notice or order was issued gained any economic benefit as a result of a failure to comply. For any violation which continues for two or more days and which is assigned more than 70 points under 30 CFR 723.13(b), the Office shall assess a civil penalty for a minimum of two separate days. (b) In addition to the civil penalty provided for in paragraph (a), whenever a violation contained in a notice of violation or cessation order has not been abated within the abatement period set in the notice or order or as subsequently extended pursuant to section 521(a) of the Act, a civil penalty of not less than $750 shall be assessed for each day during which such failure to abate continues, except that: (1)(i) If suspension of the abatement requirements of the notice or order is ordered in a temporary relief proceeding under section 525(c) of the Act, after a determination that the person to whom the notice or order was issued will suffer irreparable loss or damage from the application of the requirements, the period permitted for abatement shall not end until the date on which the Office of Hearing and Appeals issues a final order with respect to the violation in question; and (ii) If the person to whom the notice or order was issued initiates review proceedings under section 526 of the Act with respect to the violation, in which the obligations to abate are suspended by the court pursuant to section 526(c) of the Act, the daily assessment of a penalty shall not be made for any period before entry of a final order by the court. (2) Such penalty for the failure to abate a violation shall not be assessed for more than 30 days for such violation. If the permittee has not abated the violation within the 30-day period, the Office shall take appropriate action pursuant to sections 518(e), 518(f), 521(a)(4) or 521(c) of the Act within 30 days to ensure that abatement occurs or to ensure that there will not be a reoccurrence of the failure to abate. Sec. 723.16 Waiver of use of formula to determine civil penalty. (a) The Director, upon his own initiative or upon written request received within 15 days of issuance of a notice of violation or a cessation order, may waive the use of formula contained in 30 CFR 723.13 to set the civil penalty, if he or she determines that, taking into account exceptional factors present in the particular case, the penalty is demonstrably unjust. However, the Director shall not waive the use of the formula or reduce the proposed assessment on the basis of an argument that a reduction in the proposed penalty could be used to abate violations of the Act, this Chapter, any applicable program, or any condition of any permit or exploration approval. The basis for every waiver shall be fully explained and documented in the records of the case. (b) If the Director waives the use of the formula, he or she shall use the criteria set forth in 30 CFR 723.13(b) to determine the appropriate penalty. When the Director has elected to waive the use of the formula, he or she shall give a written explanation of the basis for the assessment made to the person to whom the notice or order was issued. Sec. 723.17 Procedures for assessment of civil penalties. (a) Within 15 days of service of a notice or order, the person to whom it was issued may submit written information about the violation to the Office and to the inspector who issued the notice of violation or cessation order. The Office shall consider any information so submitted in determining the facts surrounding the violation and the amount of the penalty. (b) The Office shall serve a copy of the proposed assessment and of the worksheet showing the computation of the proposed assessment on the person to whom the notice or order was issued, by certified mail, within 30 days of the issuance of the notice or order. If the mail is tendered at the address of that person set forth in the sign required under 30 CFR 715.12(b) or at any address at which that person is in fact located, and he or she refuses to accept delivery of or to collect such mail, the requirements of this paragraph shall be deemed to have been complied with upon such tender. {58785} (c) Unless a conference has been requested, the Office shall review and reassess any penalty if necessary to consider facts which were not reasonably available on the date of issuance of the proposed assessment because of the length of the abatement period. The Office shall serve a copy of any such reassessment and of the worksheet showing the computation of the reassessment in the manner provided in paragraph (b) of this section, within 30 days after the date the violation is abated. Sec. 723.18 Procedures for assessment conference. (a) The Office shall arrange for a conference to review the proposed assessment or reassessment, upon written request of the person to whom the notice or order was issued, if the request is received within 15 days from the date the proposed assessment or reassessment is mailed. (b)(1) The Office shall assign a conference officer to hold the assessment conference. The assessment conference shall not be governed by section 554 of Title 5 of the United States Code, regarding requirements for formal adjudicatory hearings. The assessment conference shall be held within 60 days from the date of issuance of the proposed assessment or the end of the abatement period, whichever is later. (2) The Office shall post notice of the time and place of the conference at the regional, district or field office closest to the mine at least 5 days before the conference. Any person shall have a right to attend and participate in the conference. (3) The conference officer shall consider all relevant information on the violation. Within 30 days after the conference is held, the conference officer shall either: (i) Settle the issues, in which case a settlement agreement shall be prepared and signed by the conference officer on behalf of the Office and by the person assessed; or (ii) Affirm, raise, lower, or vacate the penalty. (4) An increase or reduction of a proposed civil penalty assessment of more than 25 percent and more than $500 shall not be final and binding on the Secretary, until approved by the Director or his designee. (c) The conference officer shall promptly serve the person assessed with a notice of his or her action in the manner provided in 30 CFR 723.17(b) and shall include a worksheet if the penalty has been raised or lowered. The reasons for the conference officer's action shall be fully documented in the file. (d)(1) If a settlement agreement is entered into, the person assessed will be deemed to have waived all rights to further review of the violation or penalty in question, except as otherwise expressly provided for in the settlement agreement. The settlement agreement shall contain a clause to this effect. (2) If full payment of the amount specified in the settlement agreement is not received by the Office within 30 days after the date of signing, the Office may enforce the agreement or rescind it and proceed according to paragraph (b)(3)(ii) of this section within 30 days from the date of the rescission. (e) The conference officer may terminate the conference when he determines that the issues cannot be resolved or that the person assessed is not diligently working toward resolution of the issues. Sec. 723.19 Request for hearing. (a) The person charged with the violation may contest the proposed penalty or the fact of the violation by submitting a petition and an amount equal to the proposed penalty or, if a conference has been held, the reassessed or affirmed penalty to the Office of Hearings and Appeals to be held in escrow as provided in paragraph (b) of this section within 30 days from receipt of the proposed assessment or reassessment or 15 days from the date of service of the conference officer's action, whichever is later. The fact of the violation may not be contested, if it has been decided in a review proceeding commenced under section 525 of the Act and 43 CFR Part 4. (b) The Office of Hearings and Appeals shall transfer all funds submitted under paragraph (a) of this section to the Office, which shall hold them in escrow pending completion of the administrative and judicial review process, at which time it shall disburse them as provided in 30 CFR 723.20. Sec. 723.20 Final assessment and payment of penalty. (a) If the person to whom a notice of violation or cessation order is issued fails to request a hearing as provided in 30 CFR 723.19, the proposed assessment shall become a final order of the Secretary and the penalty assessed shall become due and payable upon expiration of the time allowed to request a hearing. (b) If any party requests judicial review of a final order of the Secretary, the proposed penalty shall continue to be held in escrow until completion of the review. Otherwise, subject to Paragraph (c) of this Section, the escrowed funds shall be transferred to the Office in payment of the penalty, and the escrow shall end. (c) If the final decision the administrative and judicial review results in an order or eliminating the proposed penalty assessed under this part, the Office shall within 30 days of receipt of the order refund to the person assessed all or part of the escrowed account, with interest from the date of payment into escrow to the date of the refund at the rate of 6 percent or at the prevailing Department of the Treasury rate, whichever is greater. (d) If the review results in an order increasing the penalty, the person to whom the notice or order was issued shall pay the difference to the Office within 15 days after the order is mailed to such person. PART 843 -- FEDERAL ENFORCEMENT 3. Section 843.13 is revised by adding paragraph (f) as follows: Sec. 843.13 Suspension or revocation of permits. (f) Whenever a permittee fails to abate a violation contained in a notice of violation or a cessation order within the abatement period set in the notice or order or as subsequently extended, the Director shall review the permittee's history of violations to determine whether a pattern of violations exists pursuant to this section, and shall issue an order to show cause as appropriate pursuant to 30 CFR 845.15(b)(2). {58786} PART 845 -- CIVIL PENALTIES 4. Section 845.15(b) is revised to read as follows: Sec. 845.15 Assessment of separate violations for each day. (b) In addition to the civil penalty provided for in Paragraph (a), whenever a violation contained in a notice of violation or cessation order has not been abated within the abatement period set in the notice or order or as subsequently extended pursuant to section 521(a) of the Act, a civil penalty of not less than $750 shall be assessed for each day during which such failure to abate continues, except that: (1)(i) If suspension of the abatement requirements of the notice or order is ordered in a temporary relief proceeding under section 525(c) of the Act, after a determination that the person to whom the notice or order was issued will suffer irreparable loss or damage from the application of the requirements, the period permitted for abatement shall not end until the date on which the Office of Hearings and Appeals issues a final order with respect to the violation in question; and (ii) If the person to whom the notice or order was issued initiates review proceedings under section 526 of the Act with respect to the violation, in which the obligations to abate are suspended by the court pursuant to section 526(c) of the Act, the daily assessment of a penalty shall not be made for any period before entry of a final order by the court; (2) Such penalty for the failure to abate a violation shall not be assessed for more than 30 days for each such violation. If the permittee has not abated the violation within the 30-day period, the Office shall take appropriate action pursuant to sections 518(e), 518(f), 521(a)(4), or 521(c) of the Act within 30 days to ensure that abatement occurs or to ensure that there will not be a reoccurrence of the failure to abate. (Surface Mining Control and Reclamation Act of 1977 (the "Act"), Sections 201, 501, 518, (30 U.S.C. 1211, 1251, 1268) [FR Doc. 80-27918 Filed 9-3-80; 8:45 am] BILLING CODE 4310-05-M