**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

**1331PENNSYLVANIA AVE., N.W., SUITE 520N**

**WASHINGTON,DC 20004-1710**

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| SECRETARY  OF LABOR,

 MINE  SAFETY AND HEALTH        

 ADMINISTRATION  (MSHA)           

 

                        v.

 

DRAGON  PRODUCTS COMPANY, LLC                                          | :

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Docket  No. YORK 2022-0016

A.C.  No. 17-00022-539342

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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 December 22, 2021, the Commission receivedfrom Dragon Products Company, LLC (“Dragon”) a motion 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 orders, the Commission has found guidancein Rule 60(b) of the Federal Rules of Civil Procedure, under which theCommission may relieve a party from a final order of the Commission on thebasis of mistake, inadvertence, excusable neglect, or other reason justifyingrelief. *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).

 

            Recordsof the Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicate that the proposed assessment was delivered on August 11, 2021, andbecame a final order of the Commission on September 10, 2021. On September 22,2021, MSHA received partial payment of the assessment. On November 23, 2021, adelinquency notification was mailed to the operator.

 

Dragon asserts that its contest of theassessment was timely mailed through certified mail, return receipt requested. However,MSHA did not have a record of receiving the contest of the assessment. Subsequently,Dragon tried to check with the postal service on the status of the contest butwas informed that the tracking number for the package which contained itscontest had expired. Dragon believes the postal service failed to properlydeliver its contest. The Secretary does not oppose the request to reopen, buturges the operator to take steps to ensure that future penalty contests aretimely filed. 

 

            Inaddition, we note that the motion to reopen was timely filed. The Commission has previously held that “[m]otions toreopen received within 30 days of an operator’s receipt of its first noticefrom MSHA that it has failed to timely file a notice of contest will be presumptivelyconsidered as having been filed within a reasonable amount of time.” *HighlandMining Co.,*31 FMSHRC 1313, 1316-17 (Nov. 2009). Here, the motion to reopenwas filed on December 22, 2021, within 30 days of the operator’s receiptof the delinquency notification, mailed on November 23. 

 

            Havingreviewed Dragon’s request and the Secretary’sresponse, we find that Dragon acted in good faith. We note that theSecretary does not dispute Dragon’s assertion that the operator timely mailedits contest of the assessment. Dragon took precautions in sending the contestof the assessment by certified mail, return receipt requested, and tried toprovide tracking information for its contest of the assessment. Dragon alsotimely filed its request to reopen. 

 

 

 

In the interest ofjustice, 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. 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

Attorney-at-Law

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