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®2/06/2008 18:26 3032315360. REG SOLICITOR DENVER PAGE 06/09 <br />FEB. 6.2008 4;18PM USDI IBIA ~ iuu. D4L0 ~. J/ n <br /> <br />IBLR, 2005.24 <br />related do the permit eligibility criteria conmined in proposed rule 30 C ~.R. <br />§ 773.16(x), which. were fi~aa]izad in $0 C.F.R. § 773.12. The commenter suggested <br />that a parent corporation does not necessarily own or control the operations of its <br />subsidiary, and azgued o ~ moons o~a s bsid ary wit ~obvts ftandiag ~1 ~.nn ~ OSM <br />actually controlled the p <br />rejected this arguments stating: <br />If the parent company owns or controls the subsidiary under the <br />deSnitions we adapt today, the parent company, de facto, also owns or <br />controls the subsidiary's operations. In upholding our previous <br />eonstntcdon of section 510(c) Hof SMCRA, 30 U.S.C. § 1260(c) <br />(2000)], whftch on this painC we import into this fugal rule, the D.G. <br />Circuit explained thae our view is "consistent with, if not mandated by <br />the statutory language, which as noted, applied to any violating <br />operations `controlled by the applicants' not only those chxectnd by hun, <br />Accordingly the ageflc~s eonstrucrion must be upheld "[5] 'T'hus, in <br />§ 773.1.2 of this final .rule, we retained the ability to deny permits based <br />on both direct and indirect ownership or contrnl , , , of operations with <br />current violations .... <br />65 Fed. Aeg. 79582, 79621 (Dec. 19, 2000). <br />In considering appellants' argument, it is important to understand the scope <br />and purpose ~-E the rule that was the subject of the comment tom ~em~~ a ~s <br />responding. That rule, lilualized at 30 C.F.R. § 773.12(x)(3), P <br />~ 1260 (c) (2000), under which <br />requirement of secdoa 510(c) of SMCRA, 30 U.S.C. licanr or its o crator owzied <br />an applicant for a permit would not be eligible if the app P <br />~~ or controlled a surface mining oPerariQn that has an unabared or uncorrected <br />violation. See Ruth v. OSM,158 I13LA 309, 316 (2003). Although the State program <br />countezpart to 30 C.F.R § 773.12(x) (3) would make vV'estmoreland ineligible foz a <br />permit if BRI or another subsidiary had ou~standimg viol~etiorts,6 Westmoreland did <br />not apply for a permit in this case. The Tatums' reliance on OSM's comment response <br />is misplaced. <br />oSM points out that no provision of OSM's regulations oz Colorado's State <br />program requires that a mining Permit held by a subsidiary corporation be <br />transferred to the parent corporation merely upon acquisition of the subsidiary. <br />Otherwise, DBMS would have to approve a transfer of the permit wheaev~er there is a <br />s National M~reingAss'n v, U.S, Dept. of Intercor,177 F. 3d 1, 5 (D.C. Cir.1999). <br />c As noted by UYiMS in ins Aug. 23, 2007, letter, Westmoreland is listed aS a,100% <br />owner of BRI in the Permit and in OSM's AVS. <br />5 <br />