FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

December 14, 2007

BEFORE: Duffy, Chairman; Jordan and Young, 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 October 19, 2007, the Commission received from

Manalapan Mining Company (“Manalapan”) 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 April 13, 2007, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a proposed penalty assessment to Manalapan. In its letter, Manalapan asserts that it failed to submit its contest within 30 days of receipt because the assessment form “may have been misplaced” or there was “some confusion with the mail.” Although the Secretary does not oppose reopening the proposed penalty assessment, she offers mailing receipts that appear to indicate that Manalapan contested the penalty assessment beyond the 30-day time limit.

            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 Manalapan’s request, we are unable to determine from the record whether reopening this matter is warranted. In the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Manalapan’s failure to timely contest the penalty proposal and whether relief from the final order should be granted. We direct Manalapan to provide a detailed explanation to the judge setting forth the reasons for its failure to timely contest the proposed penalty proposal. If it is determined that reopening 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

Distribution:

Jim Brummett, Safety Director

Manalapan Mining Co., Inc.

8174 East Highway 72

Pathfork, KY 40863

W. Christian Schumann, Esq.

Office of the Solicitor

U. S. Department of Labor

1100 Wilson Boulevard, Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance, MSHA

U. S. Department of Labor

1100 Wilson Boulevard, 25^th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety and Health Review Commission

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

Washington, D. C. 20001