FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

DRAGON PRODUCTS COMPANY, LLC

Docket No. YORK 2021-0060

A.C. No. 17-00022-533995

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, 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. (2018) (“Mine Act”). On August 19, 2021, the Commission received from Dragon Products Company, LLC (“Dragon”) a motion seeking to reopen a penalty assessment that had appeared to become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

Dragon claims it never received the proposed penalty assessment from the Department of Labor. The Secretary of Labor does not oppose the request to reopen and concedes that the assessment was not delivered to the operator but rather, was returned to MSHA.

Section 105(a) states that if an operator “fails to notify the Secretary that [the operator] intends to contest the . . . proposed assessment of penalty . . . the proposed assessment of penalty shall be deemed a final order of the Commission. 30 U.S.C. § 815(a). Here, because the operator never had an opportunity to timely contest the proposed assessment, we conclude that the proposed penalty assessment did not become a final order of the Commission. This obviates any need to invoke Rule 60(b) of the Federal Rules of Civil Procedure. Accordingly, the operator’s motion to reopen is moot.

We deem the operator’s motion a contest of the relevant penalties. 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.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

Distribution:

C. Gregory Ruffennach, Esq.

1629 K Street, N.W., STE 300

Washington, DC 20036

greg@ruffennachlaw.com

April Nelson, Esq.

Associate Solicitor

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

Nelson.April@dol.gov

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

Office of the Solicitor

U.S. Department of Labor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

scott.emily.t@dol.gov

Melanie Garris
USDOL/MSHA, OAASEI/CPCO

201 12th Street South, Suite 401

Arlington, VA 22202

Garris.Melanie@DOL.GOV

Chief Administrative Law Judge Glynn F. Voisin

Federal Mine Safety Health Review Commission

1331 Pennsylvania Avenue, NW Suite 520N

Washington, DC 20004-1710

GVoisin@fmshrc.gov