GENERAL54539 - Laserfiche WebLink

Home Browse Search

525 of the Act by filing a petition to review the propriety of a proposed penalty under section 518 of the Act when no penalty has been assessed and there is nothing to review. A contrary interpretation would render section 525 of the Act meaningless. The intent of Congress in providing two remedies under the Act, i.e., review of the propriety of the notice of viola- tion under section 525 and review of the propriety of a pro- posed penalty under section 518, is clear. If an operator wishes to review a notice of violation, he must file an application for review within 30 days of receipt of the notice. If an operator wishes to review a proposed penalty, he must file a petition for review within 30 days of receipt of the proposed amount of the penalty. In the penalty review proceeding, the operator can contest the amount of the penalty, with a recognition that the violation did in fact occur, and/or the fact that no penalty should be assessed because there was no violation. He cannot, how- ever, obtain a review of the notice of violation in a penalty review proceeding if no penalty has been assessed and the subject matter of the proceeding, i.e., the pro- priety of the proposed penalty, does not exist. The regulation relied on by the petitioner, 30 CFR 845.19(a), differs from section 518(c) of the Act and the Department's procedural regulations in 43 CFR 4.1150 et ses. in that (1) it substitutes "the person charged with the violation" for "the person charged with the penalty"; (2) it provides for a contest of "the proposed penalty or the fact of the violation" rather than "the amount of the penalty or the fact of the violation"; and (3) it does not specifically limit the proceeding to a "review of the proposed penalty." I cannot construe 30 CFR 845.19(a) in a manner contrary to the clear intent of Congress in providing two remedies under the Act; contrary to the clear intent of the Department in providing two procedures in its procedural regulations for obtaining the two remedies; and contrary to the specific recognition by Congress and the Department that the sole issue in a penalty review proceeding is the propriety of the penalty that was assessed and the fact of violation is simply an ancillary matter that is pertinent or significant only from the standpoint of determining the propriety of the proposed penalty. If the two remedies provided by Congress create a difficult, inefficient and unnecessary choice for an operator and cause a waste of resources by operators, OSM and the Office of 7