FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

June 27, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

ORDER

BY THE COMMISSION:

            These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”). On March 21, 2013, the Commission received from Amistad Ready Mix (“Amistad”) five motions seeking to reopen five penalty assessments that had become final orders 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).

            The Department of Labor’s Mine Safety and Health Administration’s (“MSHA”) records indicate that proposed assessment No. 000309396 was delivered on December 20, 2012, and became a final order of the Commission on January 22, 2013. A delinquency notice was mailed on March 7, 2013. Proposed assessment No. 000275623 was delivered on December 22, 2011, and became a final order of the Commission on January 23, 2012. A delinquency notice was mailed on March 7, 2012, and the case was referred to the U.S. Department of Treasury for collection on June 28, 2012. Proposed assessment No. 000261135 was delivered on July 20, 2011, and became a final order of the Commission on August 19, 2011. A delinquency notice was mailed on October 7, 2011, and the case was referred to the U.S. Department of Treasury for collection on January 19, 2012. Proposed assessment No. 000249717 was delivered on March 23, 2011, and became a final order of the Commission on April 22, 2011. A delinquency notice was mailed on June 8, 2011, and the case was referred to the U.S. Department of Treasury for collection on September 29, 2011. Proposed assessment No. 000226284 was delivered on July 21, 2010, and became a final order of the Commission on August 20, 2010. A delinquency notice was mailed on October 26, 2010, and the case was referred to the U.S. Department of Treasury for collection on January 28, 2011.

            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. The motions to reopen in Docket Nos. CENT 2013-356-M, CENT 2013-357-M, CENT 2013-358-M and CENT 2013-359-M were filed more than one year after becoming final orders. Therefore, these motions are untimely. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004).

            Regarding Docket No. CENT 2013-355-M, Amistad asserts that it has recently been told that the penalties it received were exceedingly harsh for a quarry of its size. The Secretary opposes the request to reopen, noting that the operator provided no explanation for its failure to timely contest the proposed assessment.

            Having reviewed Amistad’s requests and the Secretary’s responses, we conclude that Amistad has failed to establish good cause for reopening the proposed penalty assessments. Accordingly, we hereby deny Amistad’s motions to reopen.

/s/ Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Sergio Galindo

Amistad Ready Mix Inc.

1661 Frontera Road

Del Rio, TX 78840

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710