**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

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

**WASHINGTON,DC 20004-1710**

** **

 

 

 

 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners

            

**ORDER**

 

BY THE COMMISSION:

                        

            Thismatter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (2018) (“Mine Act”). On January 18, 2023, the Commission receivedfrom Dyno Nobel a motion seeking to reopen a penalty assessment that had becomea final order of the Commission pursuant to section 105(a) of the Mine Act, 30U.S.C. § 815(a).

 

            Undersection 105(a) of the Mine Act, an operator who wishes to contest a proposedpenalty must notify the Secretary of Labor no later than 30 days afterreceiving the proposed penalty assessment. If the operator fails to notify theSecretary, the proposed penalty assessment is deemed a final order of the Commission.30 U.S.C. § 815(a).

 

            Wehave held, however, that in appropriate circumstances, we possess jurisdiction to reopen uncontestedassessments that have become final Commission orders under section 105(a). *JimWalter Res., Inc.,* 15 FMSHRC 782, 786-89 (May 1993) (“*JWR*”). Inevaluating requests to reopen final orders, the Commission has found guidancein Rule 60(b) of the Federal Rules of Civil Procedure, under which theCommission may relieve a party from a final order of the Commission on thebasis of mistake, inadvertence, excusable neglect, or other reason justifyingrelief. *See* 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shallbe 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 andthat, if the defaulting party can make a showing of good cause for a failure to timely respond, the case may bereopened and appropriate proceedings on the merits permitted. *See Coal Prep.Servs., Inc.,* 17 FMSHRC 1529, 1530 (Sept. 1995).

 

            Recordsof the Department of Labor’s Mine Safety and Health Administration (“MSHA”)indicate that the proposed assessment was delivered on December 2, 2022, andbecame a final order of the Commission on January 2, 2023. Dyno Nobel assertsthat it’s failure to timely contest the proposed assessment arose fromadministrative error and inadvertent mistake. It claims that it received theassessment during the holiday period, but that personnel were absent, and theiroffices were closed. As a result of insufficient staffing, the assessment wasinadvertently not forwarded to Dyno Nobel’s counsel for a timely filing of thecontest. The citation was also mistaken for another, related citation that hadbeen issued on the same date. According to the operator, the error wasdiscovered after proactively checking MSHA’s data retrieval system and findingthat the final order was issued in its case. The Secretary does not oppose therequest to reopen, but urges the operator to take steps to ensure that futurepenalty contests are timely filed. 

 

            HavingreviewedDyno Nobel’s request and the Secretary’s response, we findthat the operator’s failure arose from administrative error and inadvertentmistake due to the insufficient staffing, closures, and confusion from theother citation issued on the same date. In theinterest of justice, we hereby reopen this matter and remand it to the Chief AdministrativeLaw Judge for further proceedings pursuant to the Mine Act and the Commission’sProcedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule28, the Secretary shall file a petition for assessment of penalty within 45days 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:

 

AdeleL. Abrams, Esq. CMSP

LawOffice of Adele L. Abrams, P.C.

4740Corridor Place, Suite D

Beltsville,MD 20705

Safetylawyer@gmail.com

 

AprilNelson, Esq.

AssociateSolicitor

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

Nelson.April@dol.gov

 

EmilyToler Scott, Esq.

Counselfor Appellate Litigation

Officeof the Solicitor

U.S.Department of Labor

Divisionof Mine Safety and Health

20112th Street South, Suite 401

Arlington,VA 22202

scott.emily.t@dol.gov

 

MelanieGarris USDOL/MSHA, OAASEI/CPCO 201 12th Street South, Suite 401Arlington, VA 22202Garris.Melanie@DOL.GOV

 

ChiefAdministrative Law Judge Glynn F. VoisinFederal Mine Safety Health Review Commission 1331 Pennsylvania Avenue, NW Suite 520NWashington, DC 20004-1710GVoisin@fmshrc.gov