FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 5, 2012

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On October 25, 2011, the Commission received from Northern Filter Media, Inc. (“Northern”) a motion seeking to reopen a penalty assessment that had become a final order of the Commission pursuant to section 105(a) of the Mine Act,     30 U.S.C. § 815(a).

            Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).

            We have held, however, that in appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have become final Commission orders under section 105(a). Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have 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).

            A record from the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicates that the proposed assessment was delivered on September 15, 2010, signed for by D. Shelangowski, and became a final order of the Commission on October 15, 2010. A notice of delinquency was mailed on December 1, 2010, and the case was referred to the U.S. Department of Treasury for collection on March 17, 2011. Northern asserted that its employee suffered from memory loss and general confusion for a few years before his employment was terminated in December 2010. Northern discovered that the employee sent a letter to an MSHA representative on August 3, 2010, and believed that letter was a sufficient contest.

            The Secretary opposes the request to reopen and contends that Northern took no steps to ensure that the employee’s work on MSHA safety compliance, reporting, and record keeping was being monitored. Moreover, the Secretary states that Northern did not explain why it took more than ten months to request reopening after receiving MSHA’s delinquency notice.

            Under Rule 60(c), a Rule 60(b) motion shall be made within a reasonable time, and for reasons of mistake, inadvertence, or excusable neglect, not more than one year after the judgment, order, or proceeding was entered or taken. This motion to reopen was filed more than one year after becoming a final order. Therefore, Northern’s motion is untimely. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004).

            Accordingly, we deny Northern’s motion with prejudice.