FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR,   MINE SAFETY AND HEALTH     ADMINISTRATION (MSHA)                         v. FREEPORT-MCMORAN TYRONE, INC.

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Docket No. A.C. No.

CENT 2013-533-M 29-00159-320274

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (“Mine Act”). On December 11, 2013, the Commission received from Freeport-McMoRan Tyrone, Inc., (“Freeport”) a motion seeking to reopen a penalty assessment proceeding and relieve it from the Default Order entered against it.

            On August 6, 2013, the Chief Administrative Law Judge had issued an Order to Show Cause in response to Freeport’s failure to answer the Secretary of Labor’s June 18, 2013 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause became a Default Order on September 6, 2013, when Freeport did not seem to file an answer within 30 days.

            Freeport asserts that it failed to send a timely answer due to a miscommunication or misunderstanding of the Commission’s procedures. Freeport maintains that when the Order to Show Cause was issued it had been in engaged in ongoing discussions with the Secretary, which have resulted in a proposed settlement agreement. The Secretary does not oppose the request, but notes that the Order to Show Cause clearly alerted the operator that it needed to respond to the order within 30 days.                        

            The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R.  § 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s decision may be sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct review within 40 days of a decision’s issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the Commission.

            In evaluating requests to reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief. 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”); Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

            Having reviewed Freeport’s request and the Secretary’s response, in the interest of justice, we hereby reopen the proceeding and vacate the Default Order. Accordingly, this case is remanded 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.

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman

/s/ Robert F. Cohen, Jr.

                                                                        Robert F. Cohen, Jr., Commissioner

/s/ William I. Althen

                                                                        William I. Althen, Commissioner