35568 Federal Register / Vol. 65, No. 108 / Monday, June 5, 2000 / Rules and Regulations

continuous airworthiness maintenance plans

to reflect the requirements in the Engine

Manuals.

(f) This amendment becomes effective on

July 10, 2000.

Issued in Burlington, Massachusetts, on

May 26, 2000.

Jay J. Pardee,

Manager, Engine and Propeller Directorate,

Aircraft Certification Service.

[FR Doc. 00–13873 Filed 6–2–00; 8:45 am]

BILLING CODE 4910–13–U

DEPARTMENT OF LABOR

Pension and Welfare Benefits

Administration

29 CFR Part 2520

RIN 1210–AA52

Annual Reporting and Disclosure

Requirements; Correction

AGENCY: Pension and Welfare Benefits

Administration, Labor.

ACTION: Final rule; correction.

SUMMARY: On April 19, 2000, the

Pension and Welfare Benefits

Administration published in the

Federal Register (65 FR 21068)

amendments to the regulations

governing annual reporting and

disclosure requirements under Title I of

the Employee Retirement Income

Security Act of 1974, as amended

(ERISA). This document contains a

technical correction to those

amendments.

DATES: This correction is effective on

May 19, 2000.

FOR FURTHER INFORMATION CONTACT: Eric

A. Raps at (202) 219–8515 (not a tollfree number).

SUPPLEMENTARY INFORMATION: On April

19, 2000, the Pension and Welfare

Benefits Administration published in

the Federal Register (65 FR 21068)

amendments to Department of Labor

regulations relating to the annual

reporting and disclosure requirements

under part 1 of Title I of ERISA. In

publishing these regulations, the

Department amended the summary

annual report forms at 29 CFR

2520.104b–10(d)(3) and (4), but

inadvertently omitted a change to reflect

the fact that under the ERISA Filing

Acceptance System (EFAST) annual

returns/reports are filed with the

Pension and Welfare Benefits

Administration rather than the Internal

Revenue Service. A technical correction

amendment to the final rule is,

therefore, necessary.

Correction of Publication

Accordingly, the publication of the

final rule on April 19, 2000 (65 FR

21068) which was the subject of FR Doc.

00–9611 is corrected, with respect to the

amendments to 29 CFR 2520.104b–10,

as follows:

§ 2520.104b–10 [Corrected]

On page 21085, column 3, remove

paragraph d. and add in its place a

revised paragraph d. to read as follows:

d. Paragraphs (d)(3) and (d)(4) are

amended as follows:

1. The second sentence of the

introductory text under the heading

‘‘SUMMARY ANNUAL REPORT FOR

(NAME OF PLAN)’’ the term ‘‘Internal

Revenue Service’’ is removed and the

term ‘‘Pension and Welfare Benefits

Administration’’ is added in its place;

2. The last sentence under the

heading ‘‘Your Rights to Additional

Information’’ is removed and the

following sentence is added in its place:

‘‘Requests to the Department should be

addressed to: Public Disclosure Room,

Room N5638, Pension and Welfare

Benefits Administration, U.S.

Department of Labor, 200 Constitution

Avenue, N.W., Washington, D.C.

20210.’’

* * * * *

Dated: May 31, 2000.

Leslie Kramerich,

Acting Assistant Secretary, Pension and

Welfare Benefits Administration, U.S.

Department of Labor.

[FR Doc. 00–14000 Filed 6–2–00; 8:45 am]

BILLING CODE 4510–29–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 914

[SPATS No. IN–149–FOR]

Indiana Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: The Office of Surface Mining

Reclamation and Enforcement (OSM) is

approving an amendment to the Indiana

regulatory program (Indiana program)

under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA).

Indiana revised and recodified its

procedural rules for adjudicatory

proceedings. Indiana intends to revise

its program to be consistent with the

corresponding Federal regulations and

to improve operational efficiency.

EFFECTIVE DATE: June 5, 2000.

FOR FURTHER INFORMATION CONTACT:

Andrew R. Gilmore, Director,

Indianapolis Field Office, Office of

Surface Mining, Minton-Capehart

Federal Building, 575 North

Pennsylvania Street, Room 301,

Indianapolis, Indiana 46204–1521.

Telephone (317) 226–6700. Internet:

INFOMAIL@indgw.osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana Program

II. Submission of the Amendment

III. Director’s Findings

IV. Summary and Disposition of Comments

V. Director’s Decision

VI. Procedural Determinations

I. Background on the Indiana Program

On July 29, 1982, the Secretary of the

Interior conditionally approved the

Indiana program. You can find

background information on the Indiana

program, including the Secretary’s

findings, the disposition of comments,

and the conditions of approval in the

July 26, 1982, Federal Register (47 FR

32107). You can find later actions on the

Indiana program at 30 CFR 914.10,

914.15, 914.16, and 914.17.

II. Submission of the Amendment

On February 4, 2000, the Indiana

Department of Natural Resources,

Division of Reclamation (DoR), sent us

a copy of revised and recodified

procedural rules for adjudicatory

proceedings under the Indiana program

(Administrative Record No. IND–1685).

These procedural rules are codified in

the Indiana Administrative Code (IAC)

at 312 IAC 3–1 and provide procedures

for administrative review proceedings

held before the Division of Hearings,

Natural Resources Commission. The

DoR submitted the revised procedural

rules in response to a required program

amendment that we codified at 30 CFR

914.16(ff) on October 20, 1994 (59 FR

52906).

We announced receipt of the

amendment in the March 7, 2000,

Federal Register (65 FR 11950). In the

same document, we opened the public

comment period and provided an

opportunity for a public hearing or

meeting on the adequacy of the

amendment. The public comment

period closed on April 6, 2000. Because

no one requested a public hearing or

meeting, we did not hold one.

III. Director’s Findings

Following, under SMCRA and the

Federal regulations at 30 CFR 732.15

and 732.17, are our findings concerning

the amendment.

Federal Register / Vol. 65, No. 108 / Monday, June 5, 2000 / Rules and Regulations 35569

The Indiana rules at 312 IAC 3–1

contain procedures for adjudicatory

proceedings held before the Indiana

Natural Resources Commission

(commission) and its administrative law

judges. The rules provide procedures for

filing and pursuing an administrative

review of a determination by the

Indiana Department of Natural

Resources (department) under the

Indiana program. These rules are also

applicable to administrative review of

decisions by the department under other

State programs and of licensing and

disciplinary actions by the Board of

Certification of Professional Geologists.

We are making findings only on those

portions of the recodified rules that

pertain to administrative review under

the Indiana program. The term

‘‘director’’ in Indiana’s rules refers to

the ‘‘director of the Indiana Department

of Natural Resources.’’

1. Repeal and Recodification

a. 312 IAC 3 Adjudicatory Proceedings

We previously approved procedural

rules at 310 IAC 0.6–1 for adjudicatory

proceedings under the Indiana program.

In 1996, the commission repealed the

procedural rules at 310 IAC 0.6–1 and

revised and recodified their substantive

requirements at 312 IAC 3–1. The

department is responsible for

implementing the rules under Title 310

of the IAC. The commission is

responsible for implementing the rules

under Title 312 of the IAC. We find that

the commission’s recodification of its

procedures for conducting adjudicatory

proceedings for the Indiana program

under its rules at Title 312 is

appropriate and does not make

Indiana’s rules for administrative review

proceedings less effective than the

Federal regulations at 43 CFR Part 4.

b. 310 IAC 0.7–3–5 Delegations for

Programs Administered by the Division

of Reclamation

We previously approved Indiana’s

rule at 310 IAC 0.7–3–5 concerning

delegations for programs administered

by the DoR. This rule was referenced in

the procedural rules at 310 IAC 0.6–1–

3 and was specific to the Indiana

program. In 1996, the commission

repealed this rule. There is no Federal

counterpart to Indiana’s rule at 310 IAC

0.7–3–5, and we find that the

commission’s repeal of it does not make

Indiana’s rules less effective than the

Federal regulations.

2. 312 IAC 3–1–1 Administration

Indiana’s previously approved

provisions at 310 IAC 0.6–1–1

(Definitions), 0.6–1–2 (Applicability of

rule), and 0.6–1–3 (Review of actions

taken by delegates of natural resources

commission) were revised and

recodified at 312 IAC 3–1–1. Subsection

(a) specifies that 312 IAC 3–1 controls

proceedings governed by Indiana Code

(IC) 4–21.5 (administrative orders and

procedures) for which the commission,

or an administrative law judge for the

commission, is the ultimate authority.

Subsection (b) allows an affected person

to apply for administrative review under

IC 4–21.5 and 312 IAC 3–1 if he or she

is aggrieved by a determination of the

director; a delegate of the director; a

board, other than the commission when

acting as the ultimate authority; a

delegate of the board, other than an

administrative law judge; or a person

delegated authority under 312 IAC 2–2.

Indiana’s rule at 312 IAC 2–2 governs

delegations by the Natural Resources

Commission. Subsection (c) defines

‘‘division director’’ as the director of the

division of hearings of the commission.

While there is no direct Federal

counterpart to 312 IAC 3–1–1, we find

that it is not inconsistent with the

Federal regulations at 43 CFR Part 4.

The Federal regulations at 43 CFR Part

4 provide procedures and practices for

administrative review of most decisions

made under SMCRA and the Federal

Regulations at 30 CFR Parts 700 through

865.

The definitions at 310 IAC 0.6–1–1 for

the terms ‘‘advisory council’’;

‘‘Commission’’; ‘‘Delegate’’;

‘‘Department’’; ‘‘Director’’; ‘‘Hearing

commissioner’’; and ‘‘Objections

hearing’’ were not recodified at 312 IAC

3–1. Because the Federal regulations do

not contain similar definitions, we find

that the removal of these definitions

will not make Indiana’s rules less

effective than the Federal regulations.

3. 312 IAC 3–1–2 Ultimate Authority

for the Department

Indiana’s previously approved

provisions at 310 IAC 0.6–1–2.5 were

revised and recodified at 312 IAC 3–1–

2. Subsection (a) designates the

commission as the ultimate authority for

the department and any department

board except as provided in subsection

(b). Subsection (b) designates an

administrative law judge as the ultimate

authority for an administrative review

under: (1) an order under Indiana’s

Surface Coal Mining and Reclamation

Act at IC 14–34, except for a proceeding

concerning the approval or disapproval

of a permit application or permit

renewal under IC 14–34–4–13 or for

suspension or revocation of a permit

under IC 14–34–15–7; (2) an order

granting or denying temporary relief

under IC 14–34 or an order voiding,

terminating, modifying, staying, or

continuing an emergency or temporary

order under IC 4–21.5–4; and (3) an

order designated as a final order in 312

IAC 3–1–9.

While there is no Federal counterpart

to 312 IAC 3–1–2, we find that it is not

inconsistent with the Federal

regulations concerning administrative

review at 43 CFR Part 4, and we are

approving it.

4. 312 IAC 3–1–3 Initiation of a

Proceeding for Administrative Review

Indiana’s previously approved

provisions at 310 IAC 0.6–1–4 (Petition

for administrative review; notice of

appointment of administrative law

judge) were revised and recodified at

312 IAC 3–1–3. Subsection (a) provides

that a proceeding before the commission

under IC 4–21.5 is initiated when one of

the following is filed with the Division

of Hearings: a petition for review under

IC 4–21.5–3–7; a complaint under IC 4–

21.5–3–8; a request for temporary relief

under IC 14–34; a request to issue an

emergency or other temporary order

under IC 4–21.5–4 or for review of an

order issued under IC 4–21.5–4; an

answer to an order to show cause under

312 IAC 3–1–5; or a referral by the

director of a petition for and challenge

to litigation expenses under 312 IAC 3–

1–13(g). Subsection (b) requires the

division director to appoint an

administrative law judge to conduct the

proceeding as soon as practicable after

the initiation of administrative review

under subsection (a).

Although there is no direct

counterpart to 312 IAC 3–1–3 in

SMCRA or the Federal regulations, we

find that its provisions are consistent

with the general requirements of the

Federal regulations at 43 CFR Part 4.

5. 312 IAC 3–1–4 Answers and

Affirmative Defenses

Indiana’s previously approved

provisions at 310 IAC 0.6–1–5(a) were

revised and recodified at 312 IAC 3–1–

4. Subsection (a) specifies that except as

provided in subsection (b) and in 312

IAC 3–1–5 and 13, the matters

contained in a pleading described in

312 IAC 3–1–3(a) are considered

automatically denied by any other party.

Subsection (b) provides that a party

wishing to assert an affirmative defense,

counterclaim, or cross-claim must do so,

in writing, and have the document filed

and served no later than the initial

prehearing conference, unless otherwise

ordered by the administrative law judge.

Although there is no direct

counterpart to 312 IAC 3–1–4 in

SMCRA or the Federal regulations, we

find that its provisions are consistent

35570 Federal Register / Vol. 65, No. 108 / Monday, June 5, 2000 / Rules and Regulations

with the general requirements of the

Federal regulations at 43 CFR Part 4.

6. 312 IAC 3–1–5 Pleadings for and

Disposing of a Show Cause Order Issued

Under the Indiana Surface Mining

Control and Reclamation Act

Indiana’s previously approved

provisions at 310 IAC 0.6–1–5(b)

through (j) were revised and recodified

at 312 IAC 3–1–5. Subsection (a)

provides that 312 IAC 3–1–5 governs the

suspension or revocation of a permit

under IC 14–34–15–7. Subsection (b)

requires the director (or a delegate of the

director) to issue, to the permittee, an

order of permit suspension or

revocation under IC 14–34–15–7 if the

director determines that a permit issued

under IC 13–4.1, IC 14–34, or 310 IAC

12 should be suspended or revoked. The

order of permit suspension or

revocation must state that: (1) a pattern

of violations of IC 13–4.1, IC 14–34, 310

IAC 12, or any permit condition

required by IC 13–4.1, IC 14–34, or 310

IAC 12 exists and (2) the violations are

either willfully caused by the permittee,

or caused by the permittee’s

unwarranted failure to comply with IC

13–4.1, IC 14–34, 310 IAC 12, or any

permit condition required by IC 13–4.1,

IC 14–34, or 310 IAC 12. Subsection (b)

further provides that, for the purposes of

this subsection, the unwarranted failure

of the permittee to pay any fee required

under IC 13–4.1, IC 14–34, or 310 IAC

12 constitutes a pattern of violations

and requires the issuance of an order of

permit suspension or revocation.

Subsection (c) requires the director to

serve an order of permit suspension or

revocation by certified mail or personal

delivery. Subsection (c) also clarifies

that an order of permit suspension or

revocation is governed by IC 4–21.5–3–

6. Subsection (d) requires a permittee,

who wants to contest an order of permit

suspension or revocation, to file a

petition for review under IC 4–21.5–3–

7 within thirty days of his or her receipt

of the order of permit suspension or

revocation. Subsection (d) also specifies

the kind of information that must be

included in a petition for review,

including whether the permittee wants

a hearing on the order of permit

suspension or revocation. Subsection (e)

provides that if a petition for review is

not filed by the permittee under

subsection (d), the order of permit

suspension or revocation will become

an effective and final order of the

commission without a proceeding under

IC 14–34–15–7(c). Subsection (f)

provides that if a petition for review is

filed by the permittee under subsection

(d) and a hearing on the order is sought

by the permittee, the matter will be

assigned to an administrative law judge

for a proceeding under IC 4–21.5–3.

Subsection (f) also sets out the burden

of proof standards for the hearing. The

director has the burden of going forward

with evidence demonstrating that the

permit in question should be suspended

or revoked. The director satisfies the

burden by establishing a prima facie

case that a pattern of violations exists or

has existed and the violations were

willfully caused by the permittee or

caused by the unwarranted failure of the

permittee to comply with any

requirements of IC 13–4.1, IC 14–34, 310

IAC 12, or any permit conditions

required under IC 13–4.1, IC 14–34, or

310 IAC 12. If the director demonstrates

that the permit should be suspended or

revoked, the permittee has the ultimate

burden of persuasion to show cause

why the permit should not be

suspended or revoked. A permittee may

not challenge the fact of any violation

that is the subject of a final order of the

director.

Subsection (g) provides that the

administrative law judge will issue a

nonfinal order if he or she determines

that a pattern of violations exists or has

existed. In this nonfinal order, the

administrative law judge must consider

the factors contained in 310 IAC 12–6–

6.5. The administrative law judge must

find that sufficient violations occurred

to establish a pattern. The nonfinal

order must comply with the

requirements of IC 4–21.5–3–27(a)

through IC 4–21.5–3–27(d) and IC 4–

21.5–3–27(g). The administrative law

judge may, at any time before the

conclusion of the hearing, allow the

parties to submit briefs and proposed

findings. Subsection (h) requires the

administrative law judge to submit the

nonfinal order to the commission within

ten days following the date that the

hearing is closed or within ten days of

the receipt of the permittee’s petition for

review submitted under subsection (d) if

no hearing is requested by any party and

it is determined that no hearing is

necessary. Subsection (i) provides that a

party must object to the findings and

nonfinal order in writing in order to

preserve for judicial review an objection

to the nonfinal order of an

administrative law judge. In its written

objection, a party must identify the

bases of the objection. The objection

must be filed with the commission

within 15 days after the findings and

nonfinal order are served on the party.

Subsection (j) requires the commission

to enter a final order affirming,

modifying, or vacating the

administrative law judge’s order of

permit suspension or revocation. The

final order of the commission must be

entered within 45 days following the

issuance of the nonfinal order. The final

order of the commission must be issued

60 days following the date that the

hearing record is closed by the

administrative law judge or 60 days

following the administrative law judge’s

receipt of the permittee’s petition for

review filed under subsection (d) if no

hearing was requested by any party and

the administrative law judge determined

that no hearing was necessary.

Subsection (k) provides that the

minimum suspension period is three

working days unless the commission

finds that imposition of the minimum

suspension period would result in

manifest injustice and would not further

the purposes of IC 13–4.1, IC 14–34, 310

IAC 12, or any permit condition

required by IC 13–4.1, IC 14–34, or 310

IAC 12. The commission may impose

preconditions that the permittee must

satisfy before the suspension is lifted.

Subsection (l) requires the commission

to serve the parties with a copy of the

final order. A party may then apply for

judicial review under IC 4–21.5.

The commission did not recodify the

provision at 310 IAC 0.6–1–5(g) that:

‘‘Under IC 13–4.1–11–6(c), the

administrative law judge shall issue the

findings and a nonfinal order within

sixty (60) days after conclusion of the

hearing.’’ We disapproved this

provision in a previous final rule on

October 20, 1994 (59 FR 52906), and

required Indiana to delete the provision

from its program (30 CFR 914.16(ff)). As

noted in subsection (h), the

administrative law judge must now

submit a nonfinal order to the

commission within ten days after the

hearing closes. This will allow the

commission sufficient time to issue the

final order within the 60-day time

period required by IC 14–34–15–7(h).

We find that the provisions at 312 IAC

3–1–5 contain adjudicatory proceedings

for the suspension and revocation of

permits that are the same as or similar

to those contained in the Federal

regulations at 30 CFR Part 843 and 43

CFR 4.1190 through 4.1196. We also

find that the changes made to the

requirements recodified at 312 IAC 3–1–

5(h) and (j) satisfy the required

amendment at 30 CFR 914.16(ff), and

we are removing it.

7. 312 IAC 3–1–6 Amendment of

Pleadings

Indiana’s previously approved

provisions at 310 IAC 0.6–1–6 were

revised and recodified at 312 IAC 3–1–

6. Subsection (a) provides for the

amendment of petitions for

administrative review filed under IC 4–

Federal Register / Vol. 65, No. 108 / Monday, June 5, 2000 / Rules and Regulations 35571

21.5–3–7. The various types of petitions

that may to be amended are described

in 312 IAC 3–1–3(a). A pleading may be

amended once as a matter of course

before a response is filed, but not later

than the initial prehearing conference or

15 days before a hearing, unless

otherwise allowed by the administrative

law judge. Subsection (b) specifies the

circumstances under which

amendments in a pleading relate back to

the date of the original pleading.

While there is no direct Federal

counterpart, we find that 312 IAC 3–1–

6 is not inconsistent with the Federal

regulations at 43 CFR part 4, and we are

approving it.

8. 312 IAC 3–1–7 Filing and Service of

Documents

Indiana’s previously approved

provisions at 310 IAC 0.6–1–7 were

revised and recodified at 312 IAC 3–1–

7. Subsection (a) requires documents to

be filed with the administrative law

judge and served on all other parties.

Subsection (b) allows the filing of a

document with the administrative law

judge to be performed by personal

delivery, first class mail, certified mail,

interoffice mail, fax, or electronic mail.

Subsection (c) requires service of a

document to be made upon the attorney

or other authorized representative when

a party is represented by an attorney or

another authorized representative. If a

party is not represented by others,

service must be made upon the

individual. Subsection (d) provides that

filing or service by properly addressed,

prepaid first class or certified mail is

complete upon deposit in the United

States mail. Filing or service by another

method is complete upon receipt.

Subsection (e) specifies that 312 IAC 3–

1–7 does not modify the time in which

a party may file objections under IC 4–

21.5–3–29 or a petition for judicial

review under IC 4–21.5–5.

We find that 312 IAC 3–1–7 contains

procedures for filing and service of

documents that are no less effective

than the Federal regulations at 43 CFR

4.1107 and 4.1109, and we are

approving it.

9. 312 IAC 3–1–8 Administrative Law

Judge; Automatic Change

Indiana’s previously approved

provisions at 310 IAC 0.6–1–8 were

revised and recodified at 312 IAC 3–1–

8. Subsection (a) provides that an

automatic change of an administrative

law judge may be obtained under 312

IAC 3–1–8. Subsection (b) provides that

a party may file a written motion for

change of the administrative law judge

without specifically stating the grounds

for the request. A party must file the

motion within ten days after the

appointment of an administrative law

judge. Subsection (c) requires the

administrative law judge to grant the

motion filed under subsection (b) and to

notify the division director. The

division director must inform the

parties of the names of two other

individuals from whom a substitute

administrative law judge may be

selected. A party who is opposed to the

party who filed the motion under

subsection (b) may, within five days,

select one of the individuals named by

the division director to serve as the

substitute administrative law judge. The

division director must select a new

administrative law judge if the opposing

party does not make a timely selection.

Subsection (d) specifies under what

circumstances an automatic change of

administrative law judges under this

section does not apply. This section

does not apply where a previous change

of administrative law judge has been

requested under this section. It does not

apply to a proceeding under IC 4–21.5–

4 or to temporary relief under IC 13–4.1.

It does not apply if an administrative

law judge has issued a stay or entered

an order for disposition of all or a

portion of the proceeding. Finally it

does not apply if the commission orders

a suspension of the section because of

inadequate staffing.

There is no direct counterpart Federal

regulation. However, we find that 312

IAC 3–1–8 is not inconsistent with the

general rules relating to procedures and

practice at 43 CFR part 4, and we are

approving it.

10. 312 IAC 3–1–9 Defaults,

Dismissals, and Agreed Orders

Indiana’s previously approved

provisions at 310 IAC 0.6–1–9

(Dismissals) were revised and recodified

at 312 IAC 3–1–9. Subsection (a) allows

an administrative law judge to enter a

final order of dismissal if the party who

initiated administrative review requests

the proceeding be dismissed. Subsection

(b) allows an administrative law judge,

on the motion of the administrative law

judge or the motion of a party, to enter

a proposed order of default or proposed

order of dismissal under IC 4–21.5–3–

24, if at least one of the following

applies: (1) A party fails to attend or

participate in a prehearing conference,

hearing, or other stage of the

proceeding; (2) the party responsible for

taking action does not take action on a

matter for a period of at least 60 days;

(3) the person seeking administrative

review does not qualify for review

under IC 4–21.5–3–7; or (4) a default or

dismissal could be entered in a civil

action. Subsection (c) allows a party to

file a written motion requesting the

order not be imposed. The party must

file the motion within seven days after

service of a proposed order of default or

dismissal, or within a longer period

allowed by the proposed order. During

the time within which a party may file

a written motion, the administrative law

judge may adjourn the proceedings or

conduct them without participation of

the party against whom a proposed

default order was issued. The

administrative law judge must consider

the interest of justice and the orderly

and prompt conduct of the proceeding

before taking either action. Subsection

(d) requires the administrative law judge

to issue an order of default or dismissal

if the party fails to file a written motion

under subsection (c). If the party has

filed a written motion under subsection

(c), the administrative law judge may

either enter or refuse to enter an order

of default or dismissal. Subsection (e)

requires the administrative law judge,

after issuing an order of default, but

before issuing a final order or

disposition, to conduct any action

necessary to complete the proceeding

without the participation of the party in

default and determine all issues in the

adjudication, including those affecting

the defaulting party. The administrative

law judge may conduct proceedings

under IC 4–21.5–3–23 to resolve any

issue of fact. Subsection (f) requires an

administrative law judge to approve an

agreed order entered into by the parties

if it is clear and concise and lawful.

Subsection (g) allows the secretary of

the commission to affirm the entry of an

agreed order approved by the

administrative law judge under

subsection (f). Subsection (h) provides

that a final order entered under this

section is made with prejudice unless

otherwise specified in the order. A

person may seek judicial review of the

order under IC 4–21.5–5.

While there is no direct counterpart

Federal regulation, we find that 312 IAC

3–1–9 is not inconsistent with the

general rules relating to procedures and

practice at 43 CFR Part 4. Therefore, we

are approving it.

11. 312 IAC 3–1–10 Applicability of

Rules of Trial Procedure and Rules of

Evidence

Indiana’s previously approved

provisions at 310 IAC 0.6–1–10

(Applicability of rules of trial

procedure) were revised and recodified

at 312 IAC 3–1–10. This rule allows the

administrative law judge to apply the

Indiana Rules of Trial Procedure or the

Indiana Rules of Evidence as long as

they are not inconsistent with IC 4–21.5

or 312 IAC 3–1.

35572 Federal Register / Vol. 65, No. 108 / Monday, June 5, 2000 / Rules and Regulations

We find that there is no Federal

counterpart to Indiana’s proposed rule.

However, we are approving 312 IAC 3–

1–10 to the extent that the rule allows

an administrative law judge to apply

provisions of the Indiana Rules of Trial

Procedures and Indiana Rules of

Evidence that are not inconsistent with

SMCRA and the Federal regulations.

12. 312 IAC 3–1–11 Conduct of

Hearing; Separation of Witnesses

Indiana’s previously approved

provisions at 310 IAC 0.6–1–11

(Conduct of hearing) were revised and

recodified at 312 IAC 3–1–11.

Subsection (a) requires an

administrative law judge to govern the

conduct of a hearing and the order of

proof. Subsection (b) requires the

administrative law judge to provide for

a separation of witnesses on a motion by

a party before the commencement of

testimony.

We find that 312 IAC 3–1–11 is not

inconsistent with the Federal

regulations at 43 CFR 4.1121 concerning

powers of administrative law judges.

Therefore, we are approving the

recodification and revision of this

section.

13. 312 IAC 3–1–12 Nonfinal Order of

the Administrative Law Judge; Oral

Argument Before the Commission;

Participation by Nonparties (Amicus

Curiae); Disposition by the Secretary of

State if No Objection Filed

At 312 IAC 3–1–12, the commission

revised and recodified Indiana’s

previously approved provisions from

310 IAC 0.6–1–12 (Recommendations of

an administrative law judge; objections).

Subsection (a) provides that 312 IAC 3–

1–12 governs the disposition of

objections under IC 4–21.5–3–29.

Subsection (b) requires a party, who

wishes to contest whether objections

provide reasonable particularity, to

move, in writing, for a more definite

statement. The administrative law judge

may rule upon a motion filed under this

subsection and any other motion filed

subsequent to the entry of the nonfinal

order, and enter an appropriate order

(including removal of an item from the

commission agenda). Subsection (c)

requires that parties schedule objections

for argument before the commission

simultaneously with the presentation by

the administrative law judge of findings,

conclusions, and a nonfinal order.

Unless otherwise ordered by the

commission, argument must not exceed

10 minutes for each party and 20

minutes for each side. Subsection (d)

allows a nonparty to file a brief with the

commission ten days before oral

argument is scheduled on objections

filed under subsection (c). A copy of the

brief must be served upon each party.

The brief must not be more than five

pages long and cannot include

evidentiary matters outside the record.

Unless otherwise ordered by the

commission, a nonparty may also

present oral argument for not more than

five minutes in support of the brief. If

more than one nonparty files a brief, the

administrative law judge must order the

consolidation of briefs if reasonably

necessary to avoid injustice to a party.

A nonparty who has not filed a brief at

least ten days before oral argument is

first scheduled on objections may

participate in the argument upon the

stipulation of the parties. Upon the

written request of a party, subsection (e)

requires the commission to provide the

services of a stenographer or court

reporter to record the argument. This

request must be filed at least 48 hours

before an oral argument to consider

objections. Subsection (f) allows the

secretary of the commission, as the

commission’s designee under IC 4–

21.5–3–28(b), to affirm the findings and

nonfinal order if objections are not filed.

The secretary has exclusive jurisdiction

to affirm, remand, or submit to the

commission for final action, any

findings and nonfinal order subject to

this subsection. No oral argument will

be conducted under this subsection

unless ordered by the secretary.

Subsection (g) allows a party to move to

strike all or any part of objections, a

brief by a nonparty, or another pleading

under 312 IAC 3–1–12. The

administrative law judge must act upon

a motion filed under this subsection by

providing relief which is consistent

with IC 4–21.5 and 312 IAC 3–1.

While there are no direct Federal

counterparts to most of the provisions in

312 IAC 3–1–12, the Director finds that

none of the proposed rules are

inconsistent with the Federal

regulations at 43 CFR Part 4. Therefore,

we are approving them.

14. 312 IAC 3–1–13 Awards of

Litigation Expenses for Specified

Proceedings

Indiana’s previously approved

provisions at 310 IAC 0.6–1–13 (Awards

of litigation expenses for proceedings

under surface coal mine reclamation

law, oil and gas code, and entomology

and plant pathology code) were revised

and recodified at 312 IAC 3–1–13.

Subsection (a) provides that 312 IAC 3–

1–13 governs an award of costs and

expenses reasonably incurred, including

attorney fees, under IC 14–22–26–5, IC

14–24–11–5, IC 14–34–15–10, or IC 14–

37–13–7. We are considering in this

final rule those provisions for award of

costs and expenses that pertain to

Indiana’s surface coal mining program

under IC 14–34–15–10. The provisions

at subsections (b) and (c) do not pertain

to the Indiana program. The provisions

at paragraphs (d), (e), (f), and (g) are

applicable to administrative review

proceedings under IC 14–34–15–10.

Subsection (d) provides that

appropriate costs and expenses,

including attorney fees, may be awarded

under IC 14–34–15–10 in five instances.

First, litigation costs and expenses may

be awarded to any person from the

permittee; but, the person must initiate

or participate in an administrative

proceeding reviewing enforcement.

Also, a finding must be made by the

administrative law judge or commission

that a violation of IC 14–34, a rule

adopted under IC 14–34, or a permit

issued under IC 14–34 has occurred or

that an imminent hazard existed and the

person made a substantial contribution

to the full and fair determination of the

issues. However, a contribution of a

person who did not initiate a

proceeding must be separate and

distinct from the contribution made by

a person initiating the proceeding.

Second, litigation costs and expenses

may be awarded by the department to a

person, other than a permittee or the

permittee’s authorized representative,

who initiates or participates in a

proceeding. The person must prevail in

whole or in part, achieving at least some

degree of success on the merits. A

finding must also be made indicating

that the person made a substantial

contribution to a full and fair

determination of the issues. Third,

litigation costs and expenses may be

awarded by the department to a

permittee if the permittee demonstrates

that the department issued the following

orders in bad faith and for the purpose

of harassing or embarrassing the

permittee: a cessation order, a notice of

violation, or an order to show cause

why a permit should not be suspended

or revoked. Fourth, litigation costs and

expenses may be awarded to a permittee

from a person, where the permittee

demonstrates that the person initiated a

proceeding under IC 14–34–15 or

participated in the proceeding in bad

faith and for the purpose of harassing or

embarrassing the permittee. Finally,

litigation costs and expenses may be

awarded to the department from a

person, where the department

demonstrates that the person sought

administrative review or participated in

a proceeding in bad faith and for the

purpose of harassing or embarrassing

the department. We find that the

provisions of 312 IAC 3–1–12(d) are

Federal Register / Vol. 65, No. 108 / Monday, June 5, 2000 / Rules and Regulations 35573

substantively identical to 43 CFR

4.1294(a)(1) and (b) through (e).

Subsection (e) allows the commission

to order a person requesting a hearing to

pay the cost of the court reporter if the

person requesting the hearing fails, after

proper notice, to appear at the hearing.

Although there is no Federal

counterpart to 312 IAC 3–1–13(e), we

find that the provision is reasonable and

is not inconsistent with SMCRA and the

Federal regulations. Therefore, we are

approving it.

Subsection (f) specifies the factors

that the commission must consider in

determining what is a reasonable

amount of attorney fees. The factors

include: (1) The nature and difficulty of

the proceeding; (2) the time, skill, and

effort involved; (3) the fee customarily

charged for similar legal services; (4) the

costs involved in the proceeding; and

(5) the time limitations imposed by the

circumstances. For a party whose

attorney is a full-time, salaried

employee of the party, consideration

also must be given to the prorated cost

of the salary of the attorney and of the

clerical or paralegal employees of the

party who assisted the attorney. The

employee benefits attributable to the

time devoted to representation must

also be considered. Although there are

no direct Federal counterparts to all the

factors listed in 312 IAC 3–1–13(f), we

find that the provisions are reasonable

and consistent with the Federal

regulations at 43 CFR 4.1292(a)(3), and

we are approving them.

Subsection (g) requires a party who

wishes to seek litigation expenses to

petition the director within 30 days after

the party receives notice of the final

agency action. A party wishing to

challenge the petition for an award must

deliver a written response to the

director within 15 days of service of the

petition. If a petition for seeking

litigation expenses and a challenge of

the petition for award are delivered to

the director under this subsection, the

director must refer the matter to the

division of hearings so that a proceeding

may be conducted under IC 4–21.5. The

Federal regulation at 43 CFR 4.1291

allows a petition for fees to be filed

within 45 days of receipt of the final

agency action. While the time limit for

filing is shorter under the Indiana rule,

we find that the proposed time period

is still reasonable and that 312 IAC 3–

1–13(g) is no less effective than the

Federal regulation. We are, therefore,

approving the provisions.

15. 312 IAC 3–1–14 Court Reporter;

Transcripts

Indiana’s previously approved

provisions at 310 IAC 0.6–1–14 were

revised and recodified at 312 IAC 3–1–

14. Subsection (a) requires the

commission to employ and engage the

services of a stenographer or court

reporter, either on a full-time or a parttime basis, to record evidence taken

during a hearing. Subsection (b) allows

a party to obtain a transcript of the

evidence by submitting a written

request to the administrative law judge.

Subsection (c) requires the party who

requests a transcript under subsection

(b) to pay the cost of the transcript.

Subsection (d) provides that, upon a

written request by a party filed at least

48 hours before a hearing, a court

reporter who is not an employee of the

commission will be engaged to record a

hearing.

We find that 312 IAC 3–1–14 is no

less effective than the Federal regulation

at 43 CFR 4.23 that contains provisions

for hearing transcripts.

16. 312 IAC 3–1–15 Quasi-declaratory

Judgments

Indiana’s previously approved

provisions at 310 IAC 0.6–1–15 (Special

status determinations) were revised and

recodified at 312 IAC 3–1–15.

Subsection (a) allows a person to

request the department to interpret a

statute or rule administered by the

department as applicable to a specific

factual circumstance. The request must

be in writing and must describe with

reasonable particularity all relevant

facts. The request must cite with

specificity the statutory or rule sections

in issue. The request must identify any

other person who may be affected by a

determination of the request. Finally the

request must describe the relief sought.

Subsection (b) allows the director or the

director’s delegate to provide a written

response to the request. The written

response must be provided within 45

days of the request. The response may

include an interpretation based upon

the information provided in the request

or may specify additional information

needed to respond to the request. If the

department needs additional

information, it has an additional 45 days

in which to respond. Subsection (c)

provides that if the department does not

respond within the periods described in

subsection (b), a general denial of the

request is deemed to have resulted.

Subsection (d) allows the person who is

seeking the request under subsection (a)

to file a petition for administrative

review under IC 4–21.5–3 if he or she

is aggrieved by the response of the

department under subsection (b) or a

general denial under subsection (c). The

department’s response constitutes a

determination of status under IC 4–

21.5–3–5(a)(5). Subsection (e) provides

that 312 IAC 3–1–15 does not excuse a

person from a requirement to exhaust

another administrative remedy provided

by statute or rule. A person may not use

this section to void or modify a final

order entered by the department in

another proceeding. A request under

this section does not extend any time

limitation imposed on the availability of

another administrative remedy. A final

order of the department under this

section, which follows a contested

proceeding under IC 4–21.5–3, provides

the same precedent as a final order

following any other contested

proceeding under IC 4–21.5–3.

While there are no Federal

counterparts to the provisions in 312

IAC 3–1–15, we find that the proposed

rule is not inconsistent with SMCRA or

the Federal regulations, and we are

approving it.

17. 312 IAC 3–1–16 Continuances

Indiana’s previously approved

provisions at 310 IAC 0.6–1–16 were

revised and recodified at 312 IAC 3–1–

16. Subsection (a) provides that upon

the motion of a party, a hearing may be

continued by the administrative law

judge and shall be continued upon a

showing of good cause. Subsection (b)

requires that a motion to continue a

hearing because of the absence of

evidence must be made by affidavit. The

affidavit must show the materiality of

the evidence expected to be obtained;

that due diligence has been used to

obtain the evidence; and where the

evidence may be. If the motion is based

on the absence of a witness, the party’s

affidavit must show: the name and

residence of the witness, if known; the

probability of procuring the testimony

in a reasonable time; that absence of the

witness was not procured by the party

nor by others at the request, knowledge,

or consent of the party; what facts the

party believes to be true; and that the

party is unable to prove the facts by

another witness whose testimony can be

readily procured. Subsection (c)

provides that the hearing shall not be

continued if, upon the receipt of a

continuance motion under subsection

(b), the adverse party stipulates to the

truth of the facts which the party

seeking the continuance said could not

be presented.

There is no direct Federal counterpart

to Indiana’s proposed rule. However, we

find that the provisions of 312 IAC 3–

1–16 are not inconsistent with the

Federal regulations at 43 CFR 4.1112,

concerning motions, or the Federal

regulations at 43 CFR 4.1121,

concerning powers of administrative

law judges. Therefore, we are approving

them.

35574 Federal Register / Vol. 65, No. 108 / Monday, June 5, 2000 / Rules and Regulations

18. 312 IAC 3–1–17 Record of

Proceedings; Adjudicative Hearings

Generally; Record of the Director for

Surface Coal Mining Permits

Indiana’s previously approved

provisions at 310 IAC 0.6–1–17 were

revised and recodified at 312 IAC 3–1–

17. Subsection (a) provides that the

record required to be kept by an

administrative law judge under IC 4–

21.5–3–14 commences when a

proceeding is initiated under 312 IAC

3–1–3(a) and includes the items

described in IC 4–21.5–3–33. Subsection

(b) provides that in addition to

subsection (a), this subsection applies to

a proceeding concerning the approval or

disapproval of a permit application,

permit revision application, or permit

renewal application under IC 14–34–4–

13. However, nothing in this subsection

precludes the admission of testimony or

exhibits that are limited to the

explanation or analysis of materials

included in the record before the

director. Neither does this subsection

preclude the manner in which the

materials were applied, used, or relied

upon in evaluating the application.

Upon a timely objection made before or

during a hearing, the administrative law

judge shall exclude testimony or

exhibits that are offered but that identify

or otherwise address matters that are not

part of the record before the director

under IC 14–34–4–13. The record before

the director includes: (1) The permit; (2)

the permit application as defined at 310

IAC 12–0.5–10; (3) documentation given

or referenced, in writing, by the

applicant or an interested person for the

purposes of evaluating, or

documentation used by the department

to evaluate, the application; (4) the

analyses of the department in

considering the application, including

the expertise of the department’s

employees and references used to

evaluate the application; (5)

documentation received under IC 14–

34–4, including the conduct and results

of any informal conference or public

hearing under IC 14–34–4–6; and (6)

correspondence received or generated

by the department relative to the

application, including letters of

notification, proofs of filing newspaper

advertisements, and timely written

comments from an interested person.

Section 514(c) of SMCRA and the

Federal regulations at 30 CFR

775.11(b)(1) require that hearings

conducted by State regulatory

authorities on permitting decisions must

be of record and adjudicatory in nature.

Indiana’s proposed rule meets these

standards. Therefore, we find that 312

IAC 3–1–17 is no less stringent than

SMCRA and no less effective than the

Federal regulations.

19. 312 IAC 3–1–18 Petitions for

Judicial Review

Indiana added a new section to its

procedural rules at 312 IAC 3–1–18. We

are considering in this final rule only

those provisions in 312 IAC 3–1–18 that

pertain to the Indiana program under IC

14–34. Subsection (a) requires a person,

who wishes judicial review of a final

agency action entered under 312 IAC 3–

1, to serve copies of a petition for

judicial review upon the persons

described in IC 4–21.5–5–8. Subsection

(b) provides the address for sending a

copy of the petition that IC 4–21.5–5–

8(a)(1) requires to be served upon the

ultimate authority for an administrative

review. The address applies whether the

commission or an administrative law

judge is the ultimate authority. Where

the department is a party to a

proceeding under this rule, subsection

(c) provides the address for sending a

copy of the petition that IC 4–21.5–5–

8(a)(4) requires to be served upon a

party to a proceeding. The provisions at

subsection (d) do not pertain to the

Indiana program. Subsection (e) clarifies

that the commission and its

administrative law judge provide the

forum for administrative review under

this rule and that neither is a party.

Section 526(e) of SMCRA and the

Federal regulations at 30 CFR 775.13(b)

require that the actions of the State

regulatory authority under an approved

State program be subject to judicial

review by a court of competent

jurisdiction in accordance with State

law. We find that 312 IAC 3–1–18 is not

inconsistent with the requirements of

section 526(e) of SMCRA or the Federal

regulations at 30 CFR 775.13(b),

concerning judicial review of a final

agency action.

IV. Summary and Disposition of

Comments

Federal Agency Comments

On February 29, 2000, under section

503(b) of SMCRA and 30 CFR

732.17(h)(11)(i) of the Federal

regulations, we requested comments on

the amendment from various Federal

agencies with an actual or potential

interest in the Indiana program

(Administrative Record No. IND–1687.

We did not receive any comments.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), we

are required to obtain the written

concurrence of the EPA for those

provisions of the program amendment

that relate to air or water quality

standards issued under the authority of

the Clean Water Act (33 U.S.C. 1251 et

seq.) or the Clean Air Act (42 U.S.C.

7401 et seq.). None of the revisions that

Indiana proposed to make in this

amendment pertain to air or water

quality standards. Therefore, we did not

ask the EPA for its concurrence.

On February 29, 2000, under 30 CFR

732.17(h)(11)(i), we requested

comments on the amendment from the

EPA (Administrative Record No. IND–

1687). The EPA did not respond to our

request.

State Historical Preservation Officer

(SHPO) and the Advisory Council on

Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are

required to request comments from the

SHPO and ACHP for amendments that

may have an effect on historic

properties. On February 29, 2000, we

requested comments on Indiana’s

amendment (Administrative Record No.

IND–1687), but neither responded to our

request.

Public Comments

OSM requested public comments on

the proposed amendment. By letter

dated April 5, 2000, the Indiana Coal

Council, Inc. (ICC) submitted comments

in support of the amendment. The ICC

commented that the Natural Resources

Commission’s Division of Hearings has

earned a good reputation for

impartiality and professionalism in its

handling of administrative proceedings.

The ICC believes that recodification and

transfer of the Division of Hearings’

procedural rules for administrative

review proceedings from under the

Indiana Department of Natural

Resources’ (IDNR) rules at Title 310 to

under the Indiana Natural Resources

Commission’s rules at Title 312, ‘‘has

further strengthened and guaranteed the

independence of the administrative law

judges from the IDNR program staff.’’

The ICC further commented that the

recodification does not represent any

significant substantive changes in the

procedural rules applicable to legal

proceedings under the Indiana program

and the amendment should be

approved.

As discussed above under III.

Director’s Finding, we are approving

Indiana’s proposed amendment.

V. Director’s Decision

Based on the above findings, we

approve the amendment as sent to us by

Indiana on February 4, 2000. To

implement this decision, we are

amending the Federal regulations at 30

CFR Part 914, which codify decisions

concerning the Indiana program. We are

Federal Register / Vol. 65, No. 108 / Monday, June 5, 2000 / Rules and Regulations 35575

making this final rule effective

immediately to expedite the State

program amendment process and to

encourage Indiana to bring its program

into conformity with the Federal

standards. SMCRA requires consistency

of State and Federal standards.

VI. Procedural Determinations

Executive Order 12866—Regulatory

Planning and Review

This rule is exempted from review by

the Office of Management and Budget

under Executive Order 12866.

Executive Order 12630—Takings

This rule does not have takings

implications. This determination is

based on the analysis performed for the

counterpart Federal regulations.

Executive Order 13132—Federalism

This rule does not have federalism

implications. SMCRA delineates the

roles of the Federal and State

governments with regard to the

regulation of surface coal mining and

reclamation operations. One of the

purposes of SMCRA is to ‘‘establish a

nationwide program to protect society

and the environment from the adverse

effects of surface coal mining

operations.’’ Section 503(a)(1) of

SMCRA requires that State laws

regulating surface coal mining and

reclamation operations be ‘‘in

accordance with’’ the requirements of

SMCRA, and section 503(a)(7) requires

that State programs contain rules and

regulations ‘‘consistent with’’

regulations issued by the Secretary

under SMCRA.

Executive Order 12988—Civil Justice

Reform

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988 and

has determined that, to the extent

allowed by law, this rule meets the

applicable standards of subsections (a)

and (b) of that section. However, these

standards are not applicable to the

actual language of State regulatory

programs and program amendments

since each such program is drafted and

promulgated by a specific State, not by

OSM. Under sections 503 and 505 of

SMCRA (30 U.S.C. 1253 and 1255) and

30 CFR 730.11, 732.15, and

732.17(h)(10), decisions on proposed

State regulatory programs and program

amendments submitted by the States

must be based solely on a determination

of whether the submittal is consistent

with SMCRA and its implementing

Federal regulations and whether the

other requirements of 30 CFR Parts 730,

731, and 732 have been met.

National Environmental Policy Act

Section 702(d) of SMCRA (30 U.S.C.

1292(d)) provides that a decision on a

proposed State regulatory program

provision does not constitute a major

Federal action within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (NEPA) (42

U.S.C. 4332(2)(C)). A determination has

been made that such decisions are

categorically excluded from the NEPA

process (516 DM 8.4.A).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by the Office of

Management and Budget under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The State submittal

which is the subject of this rule is based

upon counterpart Federal regulations for

which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions for the

counterpart Federal regulations.

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.

This rule:

a. Does not have an annual effect on

the economy of $100 million.

b. Will not cause a major increase in

costs or prices for consumers,

individual industries, federal, state, or

local government agencies, or

geographic regions.

c. Does 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.

This determination is based upon the

fact that the State submittal which is the

subject of this rule is based upon

counterpart Federal regulations for

which an analysis was prepared and a

determination made that the Federal

regulation was not considered a major

rule.

Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 914

Intergovernmental relations, Surface

mining, Underground mining.

Dated: May 17, 2000.

Charles E. Sandberg,

Acting Regional Director, Mid-Continent

Regional Coordinating Center.

For the reasons set out in the

preamble, 30 CFR Part 914 is amended

as set forth below:

PART 914—INDIANA

1. The authority citation for Part 914

continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 914.15 is amended in the

table by adding a new entry in

chronological order by ‘‘Date of final

publication’’ to read as follows:

§ 914.15 Approval of Indiana regulatory

program amendments.

* * * * *

Original amendment submission

date Date of final publication Citation/description

*****

February 4, 2000 ........................... June 5, 2000 .................................. 310 IAC 0.6–1–1 through 17 [repealed]; 310 IAC 0.7–3–5 [repealed];

312 IAC 3–1–1 through 18.

35576 Federal Register / Vol. 65, No. 108 / Monday, June 5, 2000 / Rules and Regulations

§ 914.16 [Amended]

3. Section 914.16 is amended by

removing and reserving paragraph (ff).

[FR Doc. 00–13972 Filed 6–2–00; 8:45 am]

BILLING CODE 4310–05–P

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 3

RIN 0790–AG79

Transactions Other Than Contracts,

Grants, or Cooperative Agreements for

Prototype Projects

AGENCY: Office of the Secretary, DoD.

ACTION: Interim rule.

SUMMARY: This interim rule requires

inclusion of a clause as required by law,

providing for Comptroller General

access to records in transactions other

than contracts, grants or cooperative

agreements for prototype projects that

provide for total payments in excess of

$5,000,000. This rule is published in the

Federal Register for public comment

because it directly impacts the public by

prescribing conduct that must be

followed by a party to, or entity that

participates in the performance of, any

such transaction.

DATES: The interim rule will be effective

July 5, 2000. Comments on the interim

rule should be submitted in writing to

the address specified below on or before

August 4, 2000, to be considered in the

formation of the final rule.

ADDRESSES: Interested parties should

submit written comments on the interim

rule to: Office of the Director, Defense

Procurement, Attn: Ms. Teresa Brooks,

PDUSD(A&T)/DP(DSPS), 3060 Defense

Pentagon, Washington, DC 20301–3060.

Telefax (703) 693–9616.

FOR FURTHER INFORMATION CONTACT:

Teresa Brooks, (703) 695–4258.

SUPPLEMENTARY INFORMATION:

Background and Purpose

Section 845 of the National Defense

Authorization Act for Fiscal Year 1994,

Pub. L. 103–160, as amended by section

804 of the National Defense

Authorization Act for Fiscal Year 1997,

Pub. L. 104–201 and section 241 of the

Strom Thurmond National Defense

Authorization Act for Fiscal Year 1999,

Pub. L. 105–261, authorizes the

Secretary of a Military Department, the

Director of Defense Advanced Research

Projects Agency and any other official

designated by the Secretary of Defense,

to enter into transactions other than

contracts, grants or cooperative

agreements for prototype projects that

are directly relevant to weapons or

weapon systems proposed to be

acquired or developed by the

Department of Defense. Such

transactions are commonly referred to as

‘‘other transaction’’ agreements for

prototype projects.

Section 801 of the National Defense

Authorization Act for Fiscal Year 2000

establishes a requirement that an ‘‘other

transaction’’ agreement for a prototype

project that provides for payments in a

total amount in excess of $5,000,000

include a clause that provides

Comptroller General access to records.

To the extent that a particular statute

or regulation is limited in its

applicability to the use of a procurement

contract, it would generally not apply to

‘‘other transactions’’ for prototype

projects. The requirement for

Comptroller General access on ‘‘other

transactions’’ for prototype projects that

provide for payments that exceed

$5,000,000 is the first statutory

requirement mandating conditions that

must be included in an ‘‘other

transactions’’ agreement. The content of

this rule may also be included in a

future DoD issuance.

Regulatory Evaluation

Executive Order 12866, ‘‘Regulatory

Planning and Review’’

It has been determined that this rule

is not a significant rule as defined under

section 3(f)(1) through 3(f)(4) of

Executive Order 12866.

Pub. L. 96–354, ‘‘Regulatory Flexibility

Act’’ (5 U.S.C. 601)

It has been certified that this part is

not subject to the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.) because it

would not, if promulgated, have a

significant economic impact on a

substantial number of small entities.

The rule requires only that the

Comptroller General be provided access

to records of certain projects. It does not

require additional record keeping or

other significant expense by project

participants.

Pub. L. 96–511, ‘‘Paperwork Reduction

Act of 1995’’ (44 U.S.C. et seq.)

It has been certified that this rule does

not impose any reporting or record

keeping requirements under the

Paperwork Reduction Act of 1995.

List of Subjects in 32 CFR Part 3

Grant programs.

Accordingly, Title 32, Chapter 1 is

amended to add part 3 to read as

follows:

PART 3—TRANSACTIONS OTHER

THAN CONTRACTS, GRANTS, OR

COOPERATIVE AGREEMENTS FOR

PROTOTYPE PROJECTS

Sec.

3.1 Purpose.

3.2 Applicability.

3.3 Definitions.

3.4 Policy.

Authority: Section 801, Pub. L. 106–65.

§ 3.1 Purpose.

This part implements section 801 of

the National Defense Authorization Act

for Fiscal Year 2000 (Pub. L. 106–65). It

establishes the requirement for the

inclusion of a clause in transactions

other than contracts, grants or

cooperative agreements for prototype

projects awarded under authority of 10

U.S.C. 2371 that provides Comptroller

General access to records when

payments total an amount in excess of

$5,000,000.

§ 3.2 Applicability.

This part applies to the Secretary of

a Military Department, the Directors of

the Defense Agencies, and any other

official designated by the Secretary of

Defense to enter into transactions other

than contracts, grants or cooperative

agreements for prototype projects that

are directly relevant to weapons or

weapon systems proposed to be

acquired or developed by the

Department of Defense, under authority

of 10 U.S.C. 2371. Such transactions are

commonly referred to as ‘‘other

transaction’’ agreements and are

hereafter referred to as agreements.

§ 3.3 Definitions.

Contracting activity. An element of an

agency designated by the agency head

and delegated broad authority regarding

acquisition functions. It also means

elements designated by the director of a

defense agency that has been delegated

contracting authority through its agency

charter.

Head of the contracting activity. The

official who has overall responsibility

for managing the contracting activity.

§ 3.4 Policy.

(a) Except as provided in paragraph

(b) of this section, a clause must be

included in solicitations and agreements

for prototype projects awarded under

authority of 10 U.S.C. 2371, that provide

for total government payments in excess

of $5,000,000 to allow Comptroller

General access to records that directly

pertain to such agreements.

(b) The clause referenced in paragraph

(a) of this section will not apply with

respect to a party or entity, or

subordinate element of a party or entity,