51256 Federal Register / Vol. 73, No. 170 / Tuesday, September 2, 2008 / Proposed Rules 

FOR FURTHER INFORMATION CONTACT: 

Paula Hart, Acting Director, Office of 

Indian Gaming, (202) 219–4066. 

SUPPLEMENTARY INFORMATION: The 

Indian Gaming Regulatory Act (IGRA), 

25 U.S.C. 2701–2721, was signed into 

law on October 17, 1988. IGRA, 25 

U.S.C. 2710, authorizes class III gaming 

activities on Indian lands when 

authorized by an approved ordinance, 

located in a State that permits such 

gaming and conducted in conformance 

with a Tribal-State compact. IGRA, 25 

U.S.C. 2710(d)(8)(A), (B) and (C), 

authorizes the Secretary to approve, 

disapprove or consider approved a 

Tribal-State compact or compact 

amendment and publish notice of that 

approval or considered approval in the 

Federal Register. The submission 

process for the Tribal-State compact or 

compact amendment is not clear. 

Therefore, BIA published a proposed 

rule on July 2, 2008 (73 FR 37907) to 

establish procedures for submitting 

Tribal-State compacts and compact 

amendments. 

The authority to issue this document 

is vested in the Secretary of the Interior 

by 5 U.S.C. 301 and 25 U.S.C. 2, 9, and 

2710. The Secretary has delegated this 

authority to the Assistant Secretary—

Indian Affairs by part 209 of the 

Departmental Manual. 

Dated: August 26, 2008. 

George T. Skibine, 

Acting Deputy Assistant Secretary for Policy 

and Economic Development—Indian Affairs. 

[FR Doc. E8–20257 Filed 8–29–08; 8:45 am] 

BILLING CODE 4310–02–P 

FEDERAL MINE SAFETY AND HEALTH 

REVIEW COMMISSION 

29 CFR Part 2700 

Procedural Rules 

AGENCY: Federal Mine Safety and Health 

Review Commission. 

ACTION: Advanced notice of proposed 

rulemaking. 

SUMMARY: The Federal Mine Safety and 

Health Review Commission (the 

‘‘Commission’’) is an independent 

adjudicatory agency that provides trials 

and appellate review of cases arising 

under the Federal Mine Safety and 

Health Act of 1977 (2000) (the ‘‘Mine 

Act’’). Trials are held before the 

Commission’s Administrative Law 

Judges, and appellate review is provided 

by a five-member Review Commission 

appointed by the President and 

confirmed by the Senate. The 

Commission is seeking suggestions for 

improving its procedures for processing 

requests for relief from default and 

reducing the number of cases in which 

a party seeks relief before the 

Commission after default. 

DATES: Written and electronic comments 

must be submitted on or before 

November 3, 2008. 

ADDRESSES: Written comments should 

be mailed to Michael A. McCord, 

General Counsel, Office of the General 

Counsel, Federal Mine Safety and 

Health Review Commission, 601 New 

Jersey Avenue, NW., Suite 9500, 

Washington, DC 20001. Persons 

submitting written comments shall 

provide an original and three copies of 

their comments. Electronic comments 

should state ‘‘Comments on Advanced 

Notice of Proposed Rulemaking’’ in the 

subject line and be sent to 

mmccord@fmshrc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Michael A. McCord, General Counsel, 

Office of the General Counsel, 601 New 

Jersey Avenue, NW., Suite 9500, 

Washington, DC 20001, telephone 202–

434–9935; FAX: 202–434–9944. 

SUPPLEMENTARY INFORMATION: The Mine 

Act sets forth dual filing requirements 

for parties’ contests of citations and 

orders and their associated proposed 

civil penalties. 30 U.S.C. 815(a), (d). The 

Commission has implemented these 

requirements in 29 CFR part 2700 

subparts B and C. Subpart B sets forth 

the manner in which a party may 

contest a citation or order before the 

Secretary has proposed a civil penalty 

for the alleged violation described in the 

citation or order. Subpart C sets forth 

the manner in which a party may 

contest a civil penalty after a proposed 

penalty assessment has been issued. If a 

party chooses not to file a contest of a 

citation or order under subpart B, it may 

nonetheless contest the proposed 

penalty assessment under subpart C. In 

such circumstances, in addition to 

contesting the proposed penalty 

assessment, the party may challenge the 

fact of violation and any special 

findings alleged in the citation or order. 

See 29 CFR 2700.21(b) (‘‘An operator’s 

failure to file a notice of contest of a 

citation or order * * * shall not 

preclude the operator from challenging, 

in a penalty proceeding, the fact of 

violation or any special findings 

* * *.’’); Quinland Coals, Inc., 9 

FMSHRC 1614, 1621–23 (Sept. 1987) 

(holding that fact of violation and 

special findings may be placed in issue 

by the operator in a civil penalty 

proceeding regardless of whether the 

operator has availed itself of the 

opportunity to file a contest proceeding 

under subpart B). However, if a party 

files a contest of a citation or order 

under subpart B, it must also file 

additional pleadings under subpart C in 

order to challenge the proposed penalty 

assessment related to the citation or 

order. 

The Mine Act’s dual filing 

requirements have often led to 

confusion by parties who may fail to 

timely file required documents and have 

their cases result in default. The 

Commission receives requests for relief 

from default that generally fall into two 

categories. Requests in the first category 

involve circumstances in which a party 

has failed to file a timely contest of a 

proposed penalty assessment and the 

proposed penalty thereby becomes a 

final order of the Commission by 

operation of section 105(a) of the Mine 

Act, 30 U.S.C. 815(a). Requests in the 

second category involve circumstances 

in which a Commission Administrative 

Law Judge issues a default order 

because a party has failed to file an 

answer to a petition for assessment of 

penalty filed by the Secretary of Labor. 

Currently, the large majority of requests 

for relief received by the Commission 

fall within the first category. 

Under the Commission’s present 

practice, requests for relief from default 

are directed to the Review Commission. 

In evaluating requests for relief from 

default, the Review Commission finds 

guidance in Rule 60(b) of the Federal 

Rules of Civil Procedure (‘‘Rule 60(b)’’). 

See 29 CFR 2700.1(b) (‘‘the Commission 

and its Judges shall be guided so far as 

practicable by the Federal Rules of Civil 

Procedure’’); Jim Walter Res., Inc., 15 

FMSHRC 782, 787 (May 1993). The 

Review Commission has recognized that 

Rule 60(b) ‘‘is a tool which * * * courts 

are to use sparingly * * *.’’ Id. at 789 

(citation omitted); Atlanta Sand and 

Supply Co., 30 FMSHRCl, slip op. at 

4, No. SE 2008–327–M (July 16, 2008). 

The Review Commission has also 

observed that default is a harsh remedy 

and that, if the defaulting party can 

make a showing of good cause for a 

failure to timely respond, the case may 

be reopened and appropriate 

proceedings on the merits permitted. 

See Coal Prep. Servs., Inc., 17 FMSHRC 

1529, 1530 (Sept. 1995). 

Upon application of this standard, if 

the Review Commission concludes that 

a request for relief is potentially 

sufficient on its face to support 

reopening, but cannot conclusively 

determine from the record whether 

relief should be granted, it remands the 

matter to the Chief Administrative Law 

Judge. The Chief Administrative Law 

Judge exercises his discretion to engage 

in any further fact-finding and 

determines whether good cause exists 

for a failure to timely respond. If the 


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Federal Register / Vol. 73, No. 170 / Tuesday, September 2, 2008 / Proposed Rules 51257 

Judge finds good cause, the case 

proceeds pursuant to the Mine Act and 

the Commission’s Procedural Rules in 

29 CFR part 2700. 

In January 2006, while considering 

changes to its procedural rules, the 

Commission determined that its 

procedures for processing requests for 

relief should be made more efficient 

through informal means rather than 

through the rulemaking process. 71 FR 

553, 554, Jan. 5, 2006. The Commission 

explained that such informal means 

include making available a summary of 

the Commission’s procedural rules 

described in simple terms and placing 

on the Commission’s Web site 

(www.fmshrc.gov) a page of frequently 

asked questions and answers regarding 

Commission procedure. Id. 

The Commission has since employed 

a number of informal means in an effort 

to reduce the number of cases resulting 

in default. For instance, it has worked 

with the Department of Labor’s Mine 

Safety and Health Administration 

(‘‘MSHA’’) to clarify instructions 

provided to parties for the filing of 

various documents, including the filing 

of a contest of a proposed penalty 

assessment. The Commission did so 

believing that if such instructions were 

clearer, parties would be more likely to 

timely file their documents and avoid 

default. 

In addition, the Commission has 

created and made available three guides 

to Commission proceedings intended to 

clarify Commission procedure. The first 

guide, ‘‘How a Case Proceeds before the 

Commission,’’ provides charts and 

summaries of procedural requirements 

for different types of proceedings before 

the Commission. The second guide, 

‘‘Frequently Asked Questions,’’

provides a wide variety of information 

pertaining to Commission procedure in 

question and answer format. It includes 

a section devoted to problems in 

contesting penalties and provides 

parties with information for seeking 

relief from a proposed penalty 

assessment that becomes a final 

Commission order after the party failed 

to file a timely contest of a proposed 

penalty assessment. The third guide, 

‘‘Guide to Commission Proceedings,’’

describes Commission proceedings in 

simple terms. The Commission has 

made these guides available on its Web 

site (http://www.fmshrc.gov/guides/ 

guides.html ). It intends to publish and 

distribute a paper compilation of the 

three guides in the near future. 

Although the Commission has taken 

such actions, it has been receiving an 

increasingly large number of requests 

for relief from operators large and small, 

who have failed to file a timely contest 

of a proposed penalty assessment. As a 

result, the Commission is exploring 

additional means for improving its 

handling of requests for relief and for 

decreasing the number of cases that 

result in default. 

One of the Commission’s key 

considerations is whether it should set 

forth requirements for requesting relief 

from default in a rule, or whether 

further guidance should be provided in 

an informal document. In order to aid 

its consideration, the Commission is 

requesting comment from members of 

the interested public. In considering the 

feasibility of promulgating a rule 

pertaining to requests for relief from 

default, the Commission invites the 

public to consider any or all of the 

following questions. Members of the 

public are not limited to commenting on 

these questions and may offer any 

suggestion related to the subject. 

Scope of Rule: Should a rule be 

limited to requests for relief from 

citations and orders that have become 

final by operation of section 105(a) of 

the Mine Act when a party failed to 

timely file a contest of a proposed 

penalty assessment? Should the rule 

also address requests for relief from a 

default order issued by an 

administrative law judge after a party 

has failed to timely file an answer to the 

Secretary of Labor’s petition for 

assessment of penalty? To what extent 

should the rule be modeled on Rule 

60(b)? 

Time Limitations: When should a 

request for relief be filed? To what 

extent should a rule follow the time 

limitations set forth in Rule 60(b)? How 

should the Commission interpret the 

‘‘reasonable time’’ requirement of Rule 

60(b)? Should the one-year time 

limitation pertaining to Rule 60(b)(1), 

(2), and (3) be applied in certain 

circumstances? When an order becomes 

final by operation of Mine Act section 

105(a), what effect should an operator’s 

receipt of a delinquency notice from 

MSHA have on the time within which 

the operator should file a motion to 

reopen? 

Standard for Relief: What standard 

should apply to entitle a party to relief? 

In determining whether to grant relief, 

how closely should the Commission be 

guided by federal case law interpreting 

Rule 60(b)? Should the Commission 

require a movant to set forth specific 

facts which support the grounds alleged 

under Rule 60(b) and, if so, what level 

of specificity should be required? 

Should the Commission require a 

movant to show a meritorious claim or 

defense as a prerequisite to granting 

relief? Should the Commission also be 

guided by the standard for setting aside 

defaults in Rule 55(c) of the Federal 

Rules of Civil Procedure? Should the 

Commission apply a different standard 

depending upon certain factors relating 

to the movant, such as whether the 

movant is represented by counsel, or the 

size of an operator? 

Documentation: Should a rule require 

that allegations be established by sworn 

written statements by individuals with 

personal knowledge of the facts and/or 

other sufficiently reliable 

documentation? Should a rule require 

that the movant include in its request 

for relief copies of all relevant 

documents in its possession including, 

but not limited to, the proposed penalty 

assessment? Should the signature of an 

attorney on a request for relief be treated 

as a substitute for any required 

documentation? 

Process: Should requests for relief be 

filed directly with the Chief 

Administrative Law Judge or with the 

Review Commission? What service 

requirements should apply? 

Public Review of Comments 

All comments responding to this 

notice will be a matter of public record 

and available for public inspection and 

copying by appointment with Ella 

Waymer, between the hours of 9 a.m. 

and 5 p.m. on business days at the 

Federal Mine Safety and Health Review 

Commission, 601 New Jersey Avenue, 

NW., 9th Floor, Room 9536, 

Washington, DC 20001; telephone 202–

434–9935. 

Dated: August 27, 2008. 

Michael F. Duffy, 

Chairman, Federal Mine Safety and Health 

Review Commission. 

[FR Doc. E8–20235 Filed 8–29–08; 8:45 am] 

BILLING CODE 6735–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2008–0340; FRL–8700–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; State of 

Utah; Revised Transportation 

Conformity Consultation Process, and 

Approval of Related Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

State Implementation Plan (SIP) 

revisions submitted by the State of Utah 

on June 26, 2007 and April 17, 2008. 

The June 26, 2007 revision updates 


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