---
kind: "range"
citation: "43 C.F.R. §§ 4.1370–4.1377"
title: "43"
from: "4.1370"
to: "4.1377"
count: 8
url: "https://uscodex.org/cfr/43/4.1370..4.1377"
---

# §4.1370. Scope.


[Sections 4.1370 through 4.1377](/cfr/43/4.1370..4.1377.md) govern the procedures for review of a written notice of proposed suspension or rescission of an improvidently issued permit issued by OSM under [30 CFR 773.22](/cfr/30/773.22.md) and of a written notice of suspension or rescission of an improvidently issued permit issued by OSM under [30 CFR 773.23](/cfr/30/773.23.md).


# §4.1371. Who may file, where to file, when to file.

- (a) A permittee that is served with a notice of proposed suspension or rescission under [30 CFR 773.22](/cfr/30/773.22.md) or a notice of suspension or rescission under [30 CFR 773.23](/cfr/30/773.23.md) may file a request for review with DCHD within 30 days of service of the notice.
- (b) Failure to file a request for review within 30 days of service of the notice shall constitute a waiver of review of the notice. An untimely request for review shall be dismissed.
- (c) Where appropriate under the Administrative Dispute Resolution Act, [5 U.S.C. §§ 571-583](/usc/5/571-583.md), DCHD may use a dispute resolution proceeding, if the parties agree to such proceeding, before the procedures set forth in [§§ 4.1373 through 4.1377](/cfr/43/4.1373..4.1377.md).

# §4.1372. Contents of request for review, response to request, amendment of request.

- (a) The request for review shall include:
  - (1) A copy of the notice of proposed suspension or rescission or the notice of suspension or rescission;
  - (2) Documentary proof, or, where appropriate, offers of proof, concerning the matters in 30 CFR [773.21(a)](/cfr/30/773.21.md?p=a) and [(b)](/cfr/30/773.21.md?p=b) or [30](/cfr/30/30.md) CFR 773.14(c) for a notice of proposed suspension or rescission, or [30 CFR 773.23(a)(1) through (a)(6)](/cfr/30/773.23.md?p=a-1..a-6) for a notice of suspension or rescission, showing that the person requesting review is entitled to administrative relief;
  - (3) A statement whether the person requesting review wishes an evidentiary hearing or waives the opportunity for such a hearing;
  - (4) A request for specific relief; and
  - (5) **Any other relevant information.**
- (b) Within 20 days of service of the request for review by the permittee in accordance with [43 CFR 4.1109](/cfr/43/4.1109.md), OSM and all interested parties shall file an answer to the request for review or a motion in response to the request or a statement that no answer or motion will be filed. OSM or any interested party may request an evidentiary hearing even if the person requesting review has waived the opportunity for such a hearing.
- (c) The permittee may amend the request for review once as a matter of right before a response in accordance with [paragraph (b)](#b) of this section is required to be filed. After the period for filing such a response, the permittee may file a motion for leave to amend the request for review with the administrative law judge. If the administrative law judge grants a motion for leave to amend, he shall provide OSM and any other party that filed a response in accordance with [paragraph (b)](#b) not less than 10 days to file an amended response.

# §4.1373. Hearing.

- (a) If a hearing is requested, the administrative law judge shall convene the hearing within 90 days of receipt of the responses under [§ 4.1372(b)](/cfr/43/4.1372.md?p=b). The 90-day deadline for convening the hearing may be waived for a definite time by the written agreement of all parties, filed with the administrative law judge, or may be extended by the administrative law judge, in response to a motion setting forth good cause to do so, if no other party is prejudiced by the extension.
- (b) The administrative law judge shall give notice of the hearing at least 10 days in advance of the date of the hearing.

# §4.1374. Burdens of proof.

- (a) OSM shall have the burden of going forward to present a prima facie case of the validity of the notice of proposed suspension or rescission or the notice of suspension or rescission.
- (b) The permittee shall have the ultimate burden of persuasion by a preponderance of the evidence that the notice is invalid.

# §4.1375. Time for initial decision.


The administrative law judge shall issue an initial decision within 30 days of the date the record of the hearing is closed, or, if no hearing is held, within 30 days of the deadline for filing responses under [§ 4.1372(b)](/cfr/43/4.1372.md?p=b).


# §4.1376. Petition for temporary relief from notice of proposed suspension or rescission or notice of suspension or rescission; appeals from decisions granting or denying temporary relief.

- (a) Any party may file a petition for temporary relief from the notice of proposed suspension or rescission or the notice of suspension or rescission in conjunction with the filing of the request for review or at any time before an initial decision is issued by the administrative law judge.
- (b) The petition for temporary relief shall be filed with the administrative law judge to whom the request for review has been assigned. If none has been assigned, the petition shall be filed with DCHD.
- (c) The petition for temporary relief shall include:
  - (1) A statement of the specific relief requested;
  - (2) **A detailed statement of why temporary relief should be granted, including—**
    - (i) A showing that there is a substantial likelihood that petitioner will prevail on the merits, and
    - (ii) A showing that the relief sought will not adversely affect the public health or safety or cause significant, imminent environmental harm to land, air or water resources;
  - (3) **A statement whether the petitioner requests an evidentiary hearing.**
- (d) Any party may file a response to the petition no later than 5 days after it was served and may request a hearing even if the petitioner has not done so.
- (e) The administrative law judge may hold a hearing on any issue raised by the petition within 10 days of the filing of responses to the petition, and shall do so if a hearing is requested by any party.
- (f) The administrative law judge shall issue an order or decision granting or denying the petition for temporary relief within 5 days of the date of a hearing on the petition or, if no hearing is held, of service of the responses to the petition on all parties.
- (g) The administrative law judge may only grant temporary relief if:
  - (1) All parties to the proceeding have been notified of the petition and have had an opportunity to respond and a hearing has been held if requested;
  - (2) The petitioner has demonstrated a substantial likelihood of prevailing on the merits; and
  - (3) Temporary relief will not adversely affect public health or safety or cause significant, imminent harm to land, air or water resources.
- (h) Any party may file an appeal of an order or decision granting or denying temporary relief with the Board within 30 days of receipt of the order or decision or, in the alternative, may seek judicial review within 30 days in accordance with section 526(a) of the Act, [30 U.S.C. 1276(a)](/usc/30/1276.md?p=a). If an appeal is filed with the Board, the Board shall issue an expedited briefing schedule and shall decide the appeal expeditiously.

# §4.1377. Petition for discretionary review of initial decision.

- (a) Any party may file a petition for discretionary review of an initial decision of an administrative law judge issued under [§ 4.1375](/cfr/43/4.1375.md) with the Board within 30 days of receipt of the decision. An untimely petition shall be dismissed.
- (b) The petition for discretionary review shall set forth specifically the alleged errors in the initial decision, with supporting argument, and shall attach a copy of the decision.
- (c) Any party may file a response to the petition for discretionary review within 30 days of its service.
- (d) The Board shall issue a decision denying the petition or granting the petition and deciding the merits within 60 days of the deadline for filing responses.