FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

April 27, 2010

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen, 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 July 13, 2009, the Commission received from Coal Haulers, Inc. (“Coal Haulers”) a letter from its president 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).

            On March 24, 2009, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000180113 to Coal Haulers. Coal Haulers states that on April 10, 2009, it faxed a letter to MSHA requesting a conference and that it also mailed the proposed assessment form contesting the penalty and requesting a hearing. However, it further states that it received a letter from MSHA dated June 24, 2009, indicating that the penalty was delinquent.

            The Secretary does not oppose the operator’s request to reopen. She notes that on the front of all proposed assessments, it states that an operator who wishes to contest the penalties and/or citations listed, should mark the form accordingly and mail it to the MSHA Civil Penalty Compliance Office in Arlington, Virginia. She urges the operator to take all steps necessary to ensure that future penalty assessments are contested in the required manner.

            Having reviewed Coal Haulers’ request to reopen and the Secretary’s response, we hereby reopen this matter and remand it 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. 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.

                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Chairman

                                                                                    ____________________________________

                                                                                    Michael F. Duffy, Commissioner

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner    

                                                                                    ____________________________________

                                                                                    Robert F. Cohen, Jr., Commissioner

Distribution:

Lakewood J. Cox

President

Coal Haulers, Inc.

P.O. Box 116

Falls Mills, VA 24613

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

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

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021