FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

October 30, 2008

BEFORE: Duffy, Chairman; Jordan, 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. (2000) (“Mine Act”). On June 10, 2008, the Commission received from Stratcor, Inc. (“Stratcor”) a letter 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).

            On March 6, 2008, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued Proposed Assessment No. 000143012 to Stratcor, proposing civil penalties for 13 citations that had been issued to the company during January 2008. Stratcor states that it did not contest the assessment until after 30 days had passed because it spent the intervening time dealing with, and waiting to hear back from, various MSHA offices on questions Stratcor had regarding the basis for the amounts of the proposed penalties and a review of the proposed penalties in light of the information it had received. The Secretary states that she does not oppose Stratcor’s request to reopen the proposed assessment. However, she emphasizes that every proposed assessment states that the operator must contest or pay it within 30 days of its receipt, and that such requirement, having been imposed by statute, is not suspended while the operator is discussing the proposed assessment with MSHA personnel.

            We have held 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 inadvertence or mistake. 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).

            Having reviewed Statcor’s request and the Secretary’s response, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Stratcor’s failure to timely contest the penalty proposals and whether relief from the final orders should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

                                                                                                                        ____________________________________

                                                                                                                        Michael F. Duffy, Chairman

                                                                                                                        ____________________________________

                                                                                                                        Mary Lu Jordan, Commissioner

                                                                                                                        ____________________________________

                                                                                                                        Michael G. Young, Commissioner

                                                                                                                        ____________________________________

                                                                                                                        Robert F. Cohen, Jr., Commissioner

Distribution:

Shane Weatherford, Safety Officer

Stractor, Inc.

 4343 Malvern Rd.

Hot Springs, AK 71901-8802

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2226

Arlington, VA 22209-2296

Myra James, Chief

Civil Penalty Compliance Office

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209

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