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<br />fact of the violation only being material to the <br />issue of whether any civil penalty is appropri- <br />ate. It does not limit the scope of the proceed- <br />ing commenced by the petition to the propriety of <br />the penalty assessed by OSM. Rather, by the use <br />of the disjunctive form, the "person charged with <br />the violation" may exercise the right granted to <br />contest only the fact of the violation, i.e., the <br />validity or propriety of the notice of violation. <br />2. Sections 4.1150 et sue, of 43 CFR became <br />effective in their present form on August 3, <br />1978. They were developed to provide procedures <br />for various proceedings required by the Surface <br />Mining Control and Reclamation Act of 1977, 30 <br />U.S.C.§ 1201 et sec., and the initial regula- <br />r, . It was contemplated that they would be <br />supplemented following the adoption of permanent <br />substantive regulations. 43 FR 34376 (August 3, <br />1978). Section 845.19(a) of 30 CFR became effec- <br />tive in its present form on April 12, 1979. It <br />was promulgated by the Secretary as part of his <br />permanent program regulations. Sections 4.1150 et~ <br />sue. should not be interpreted to abrogate the <br />rights granted to operators by section 845.19(a) <br />because (i) it would be directly contrary to the <br />accepted rule of construction that subsequent <br />enactments repeal inconsistent prior enactments; <br />(ii) section 845.19(a) grants substantive rights <br />while sections 4.1150 et ses. are generally con- <br />cerned with the procedures by which those rights <br />are to be exercised; and (iii) section 845.19(a) <br />is expressly applicable to NOV's issued under the <br />permanent program, as was done in this case, and <br />sections 4.1150 et s~ce were intended to cover <br />only the interim program. <br />3. The interpretation suggested by the order to <br />show cause would create a difficult, inefficient <br />and unnecessary choice for an operator and cause a <br />waste of resources by operators, OSM and the <br />Office of Hearings and Appeals. It is possible to <br />convince an OSM inspector that an NOV was erron- <br />eously issued through the informal assessment <br />procedures set forth in 30 CFR Part 845. If that <br />is successful, there is no need to bother the <br />Office of Hearings and Appeals with the matter at <br />all. But, if the operator must contest the fact <br />of the violation within 30 days after issuance to <br />3 <br />