Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

SCABTRON

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Docket No. 2011-1001-M
A.C. No. 50-01614-242769

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, 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 May 19, 2011, the Commission received from Scabtron a motion seeking to reopen a penalty assessment that may have 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).

Scabtron asserts it did not receive the proposed assessment although it changed its address of record to facilitate FedEx deliveries. It further notes that upon receiving a delinquency letter from the Department of Treasury, it paid the penalties in full, including fees and interest, since it never received instructions on how to contest. The Secretary does not oppose the request to reopen and notes that the proposed assessment was returned undelivered. The Secretary submits that a change of address was reported to MSHA, but was not made official by the operator on its Legal ID Report’s Address of Record (MSHA Legal ID form 2000-7). As the Secretary states, it is Scabtron’s responsibility to make official changes to its address of record on its Legal Identity Report.

Having reviewed Scabtron’s request and the Secretary’s response, we conclude that the above-captioned assessment has not become a final order of the Commission because it was never received by Scabtron. Accordingly, we deny the request to reopen as moot and remand this matter to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.