FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

July 14, 2006

BEFORE: Duffy, Chairman; Jordan, Suboleski, 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 June 15, 2006, the Commission received a letter from DS Mine & Development LLC (“DS Mine & Development”) requesting that the Commission 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 16, 2004, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) sent to DS Mine & Development the proposed penalty assessment at issue. The company states that it contested the proposed assessment in a timely fashion, but that a “response to that contest was never received.” In her response to DS Mine & Development’s letter, the Secretary states that although she “has no record that the penalty contest form . . . was received by MSHA,” she further states that she “has no basis . . . for questioning that this form was sent to [MSHA] as asserted” by DS Mine & Development. Accordingly, the Secretary does not oppose the company’s request for relief.

            On the record before us, we are unable to determine whether DS Mine & Development timely contested the proposed penalty assessment. If the company did so, the proposed assessment has not become a final order of the Commission and the company’s request for relief would be moot. However, if DS Mine & Development failed to timely contest the proposed assessment, we would not be able to grant the relief requested. Under Rule 60(b) of the Federal Rules of Civil Procedure, any motion for relief from a final order must be made within a reasonable time, and in the case of mistake, inadvertence, or excusable neglect not more than one year after the order was entered. Fed. R. Civ. P. 60(b). Here, DS Mine & Development has requested reopening of a proposed assessment more than one year after it became a final Commission order if the company did not file a timely contest. See J S Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004) (denying request to reopen filed more than one year after penalty proposals had become final orders).

  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). In evaluating requests to reopen final\ section 105(a) orders, the Commission has found guidance in Rule 60(b) 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. Id. at 787.

            Accordingly, we remand this matter to the Chief Administrative Law Judge for a determination of whether DS Mine & Development timely contested the proposed penalty assessment at issue. If it is determined that the company did file a timely contest, the Chief Judge shall order further proceedings as appropriate pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. If it is determined that DS Mine & Development failed to timely contest the proposed assessment, the Chief Judge shall dismiss this proceeding.

                                                                                    ____________________________________

                                                                                    Michael F. Duffy, Chairman

                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Commissioner

                                                                                    ____________________________________

                                                                                    Stanley C. Suboleski, Commissioner

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner

Distribution

Clarence E. Ellis, Safety Consultant

Arizona Safety Management

D S Mine & Development LLC

433 E. 8^th Street

Mesa, AZ 85203

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22^nd Floor

Arlington, VA 22209

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