**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)            

 

                        v.

 

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