(ii) In determining the permittee's degree of good faith in attempting to achieve rapid compliance, the following definitions apply

(A) Rapid compliance means that the permittee took extraordinary measures to abate the violation in the shortest possible time and that abatement was achieved before the time set for abatement.

(B) Normal compliance means the permittee abated the violation within the time given for abatement.

(C) Lack of good faith means the permittee did not show diligence in attempting to abate the violation and the violation was not timely abated.

(iii) If the consideration of this criteria is impractical because of the length of the abatement period, the assesssment may be made without considering this criteria. Any such assessment may be reconsidered upon the permittee's request after abatement is completed.

(d) Determination of amount of penalty. The Office shall determine the amount of any civil penalty by converting the total number of points assigned under paragraph (c) of this section to a dollar amount according to the following schedule:

bated following expiration of the abatement period in the notice of violation. The daily penalty shall be the amount assessed for the violation or $750.00, whichever is greater. The daily assessment of a penalty shall not be made for any period that the obligation to abate is suspended.

(2) The Office may assess separately each day of any continuing violation. In making this determination, the Office may consider the factors listed in paragraph (b) of this section and any economic benefit to the permittee which resulted from a failure to comply.

(3) The Office shall separately assess a minimum of 2 days for any continuing violation which is assigned more than 70 points under paragraph (c) of this section.

(f) Waiver of use of formula to determine civil penalty. The Director, upon his own initiative or upon written request received within the time set in paragraph (g) of this section, may elect to waive in whole or in part the use of the formula contained in this part in determining the civil penalty for violation of the Act, if he determines that a waiver will further abatement of violations of the Act. A grant or denial of a waiver may be reversed by the Office of Hearings and Appeals, if such grant or denial is determined to be an abuse of discretion.

(g) Procedures for assessment of civil penalties. (1) Within 10 days of service of a notice or order, the permittee may submit information in writing pertaining to the violation involved to the Assessment Office and to the inspector who issued the notice or order. The Office shall consider any information so submitted in determining the facts surrounding the violation and the amount of the penalty.

(2) The Office shall serve the permittee by certified mail, return receipt requested within 30 days of the issuance of the notice or order, with a copy of the proposed assessment and of the worksheets showing the computation.

(h) Procedure for conference. (1) If a written request from the permittee is received within 15 days from receipt of a proposed assessment, the Office

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shall arrange for a conference to review the assessment. The permittee may submit additional material for consideration during the conference. The Office may contact the permittee to discuss the assessment prior to the conference if necessary to expedite the review.

(2) The Office shall consider all relevant information on the violation in question presented by the permittee and may recalculate either up or down or vacate the proposed penalty. No information as to which the permittee claims confidentially shall be considered as a basis for reduction of a proposed assessment. When new facts warrant the imposition of a higher penalty, it shall be proposed in the manner provided in paragraph (f) of this section. Every change in a proposed assessment shall be fully documented in the file including a written explanation of the reason the penalty has changed.

(3) Notice of the time and place of the conference shall be posted at the Office of Surface Mining Reclamation and Enforcement field office with jurisdiction over the mine at least 5 days prior to the conference. Any person shall have a right to attend the conference and participate.

(4) If the issues are resolved, the agreement shall be in writing and signed by the party assessed and the representative of the Office. If payment is not received within 30 days the office may:

(i) Enter the agreed upon amount as a final order of the Secretary; or

(ii) Rescind the agreement and reinstate the original proposed assessment.

(5) A reduction of a proposed civil penalty assessment of more than 25 percent and more than $500 agreed to during a conference shall be approved by the Director or his designee before it is final and binding on the Secretary.

(i) Request for hearing. (1) Within 30 days from receipt of the proposed assessment, the permittee may request a hearing before the Office of Hearings and Appeals by filing a petition and tendering full payment of the proposed assessment to be held in escrow.

(2) The timely filing of a request for a conference under paragraph (h) of this section suspends the running of the 30-day period for requesting a hearing. The suspension shall continue until the completion of the conference, which shall be held within 60 days from the date of the request for the conference. The permittee shall have 15 days after completion of the conference or after any disapproval by the Director or his designee under paragraph (h)(5) of this section, whichever occurs later, to request a public hearing.

(3) The Office of Hearings and Appeals conducts the hearings and issues orders or otherwise terminates the petition pursuant to its procedures in 43 CFR Part 4. The Office of Hearings and Appeals may determine whether a violation occurred. When determining the amount of the penalty, the Office of Hearings and Appeals shall use the point system and conversion table contained in this Part, except in cases in which the Office has waived the use of the point system and conversion table pursuant to paragraph (f) of this section.

(j) Availability of records. All records and files created or used in the assessment process under this Part shall be available for public inspection.

(k) Notice to Tribe. Appropriate officials of the local governing Indian Tribe shall be notified of any hearings or conferences conducted pursuant to this section, and shall be invited to attend.

'Assets" means all unadjudicated or unliquidated claims against the United States, all gas, oil, and mineral rights of every kind, and all other assets of the Ute Tribe of Uintah and Ouray Reservation as constituted on August 27, 1954, not distributed in accordance with the terms of the Ute Partition Act.

"Business Committee" means the Uintah and Ouray Tribal Business Committee, created pursuant to the provisions of the constitution and bylaws of the Ute Indian Tribe of the Uintah and Ouray Reservation.

"Board of directors" means the board of directors of the Ute Distribution Corp., a corporation organized and existing under the laws of the State of Utah.

"Joint manager" or "joint managers" means the business committee and the board of directors, or either of them, as is appropriate, within the context where one of those terms is used.

"Superintendent" means the superintendent of the Uintah and Ouray Agency, Bureau of Indian Affairs.

"Secretary" means the secretary of the Interior or a subordinate official acting pursuant to authority delegated by said Secretary.

§ 178.2 Authority and purpose.

In accordance with the Ute Partition Act approved August 27, 1954 (68 Stat. 868; 25 U.S.C. 677-677aa), as amended by the Act of August 2, 1956 (70 Stat. 936), and the Act of September 25, 1962 (76 Stat. 597), assets shall be managed jointly by the business committee and the board of directors. These regulations set out the procedures for exercising such joint management.

§ 178.3 Referral of questions by superintendent.

The superintendent shall refer all questions and problems related to the management of the assets as they come to his attention, together with his analysis of alternative solutions to each question or problem, to the business committee and to the board of directors for resolution. Such referrals shall be in writing and shall be addressed to the joint managers at such addresses as they furnish to the superintendent and to each other from time to time.

§ 178.4 Referral of questions by the joint managers.

The business committee and the board of directors must refer to each other for resolution any questions or problems related to joint management of the assets which they from time to time determine need to be resolved together with the submitting party's proposal, if any, for solution. Such referrals shall be in writing, addressed to the other joint manager at the address furnished in accordance with section 178.3 of this part. Copies of all such referrals shall also be furnished to the superintendent. Either of the parties may request an analysis of alternative solutions of each question or problem referred pursuant to this section, and the superintendent will furnish such analysis within ten working days, or within such longer period as he may notify the parties is required to prepare such analysis.

§ 178.5 Management decisions.

In arriving at management decisions concerning the assets, the business committee shall be entitled to cast 72.83814 votes and the board of directors shall be entitled to cast 27.16186 votes. Any total number of votes cast exceeding 50 shall be sufficient to determine an issue submitted to the joint managers for resolution. A majority of votes cast will decide an issue. § 178.6 Method of casting votes.

Within 30 days after an issue and any analysis provided for in §§ 178.4 and 178.5 have been submitted to the joint managers for resolution, they

shall each notify the superintendent in writing of the number of votes cast for and against the proposed or alternative solutions. If either of the joint managers fails or refuses to cast his votes and to notify the superintendent thereof within the time specified, the superintendent may conclude that such joint managers' votes have been cast against the proposed solution or solutions; or, if no solutions have been proposed, for the maintenance of the status quo. At the time they notify the superintendent of the votes cast on an issue, each joint manager shall furnish to the superintendent a certified copy of a resolution of the business committee or the board of directors, as the case may be, authorizing such vote.

§ 178.7 Implementation of decision.

The Secretary shall issue such documents as are necessary or expendient to implement the decisions of the joint managers, insofar as such issuance is authorized by law, and he shall execute and/or approve such documents for and on behalf of the joint managers, or either of them, and on behalf of the United States, as necessary. If it becomes necessary for the Secretary to execute an instrument on behalf of one or both of the joint managers and to approve the same instrument as trustee, two different officials having delegated authority from the Secretary shall serve as executing and approving officers, respectively.

183.16

OPERATIONS

Commencement of operations. 183.17 How to acquire permission to begin operations on a restricted homestead allotment.

183.18 Information to be given surface owners prior to commencement of drilling operations.

183.19 Use of surface of land.

183.20 Settlement of damages claimed. 183.21 Procedure for settlement of damages claimed.

183.22 Prohibition of pollution.

183.23 Easements for wells off leased premises.

183.24 Lessee's use of water.

183.25 Gas well drilled by oil lessees and vice versa.

183.26 Determining cost of well. 183.27 Gas for operating purposes and tribal use.

CESSATION OF OPERATIONS

183.28 Shutdown, abandonment and plugging of wells.

183.29 Disposition of casings and other improvements.

REQUIREMENTS OF LESSEES

183.30 Lessees subject to Superintendent's orders; books and records open to inspection.

Sec.

183.31 Lessee's process agents. 183.32 Well records and reports. 183.33 Line drilling.

183.34 Wells and tank batteries to be inarked.

183.35 Formations to be protected.

183.36

Control devices.

183.37 Waste of oil and gas.

183.38 Measuring and storing oil.

183.39

Measurement of gas.

183.40 Use of gas for lifting oil.

183.41 Accidents to be reported.

PENALTIES

183.42 Penalty for violation of lease terms. 183.43 Penalties for violation of certain operating regulations.

APPEALS AND NOTICES

183.44 Hearings and appeals. 183.45 Notices.

AUTHORITY: Sec. 3, 34 Stat. 543. Interpret or apply secs. 1, 2, 45 Stat. 1478, 1479.

SOURCE: 39 FR 22254, June 21, 1974, unless otherwise noted.

As used in this Part 183, terms shall have the meanings set forth in this section.

(a) "Secretary" means the Secretary of the Interior or his authorized representative acting under delegated authority.

(b) "Osage Tribal Council" means the duly elected governing body of the Osage Nation or Tribe of Indians of Oklahoma vested with authority to lease or take other actions on oil and gas mining pertaining to the Osage Mineral Estate.

(c) "Superintendent" means the Superintendent of the Osage Agency, Pawhuska, Oklahoma, or his authorized representative acting under delegated authority.

(d) "Oil lessee" means any person, firm, or corporation to whom an oil mining lease is made under the regulations in this part.

(e) "Gas lessee" means any person, firm, or corporation to whom a gas mining lease is made under the regulations in this part.

(f) "Oil and gas lessee" means any person, firm, or corporation to whom