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-                   Requests to Reopen              

#   Requests to Reopen

#### DISCLAIMER

The following summary is provided for informational purposes only and is not binding legal authority. A more comprehensive explanation of procedural matters is provided in the Procedural Rules (29 C.F.R. Part 2700) of the Federal Mine Safety and Health Review Commission (“the Commission”). The Commission has also compiled a list of frequently asked questions and answers. In that compilation, the Commission has addressed problems that arise in contesting penalties. The Commission is currently engaging in procedural rulemaking and the procedures summarized here may change. If these procedures change, the Commission will replace the following summary with updated information.

## FILING A REQUEST TO REOPEN A FINAL COMMISSION ORDER

A proposed penalty assessment becomes a final order if you fail to contest it within 30 days after receiving it. Once the proposed assessment becomes a final order, you are no longer able to contest it and will have to pay the penalty amount proposed by MSHA unless you file a request to reopen. You may receive a letter from MSHA telling you that you are delinquent and demanding that you pay the penalty. Interest will accrue on unpaid penalties.

If a proposed penalty assessment has become a final order and you still want to contest the proposed penalty, you must file a request to reopen the final order with the Commission. The Commission is a different federal agency than MSHA. Your request to reopen may be a motion or a letter.

#### Your request to reopen should include:

                      - Mine operator’s name and mine ID number;
                      - Your name, relationship to the mine operator, and contact information (address, phone number, email address);
                      - A copy of the proposed penalty assessment you seek to reopen and challenge;
                      - Detailed reason(s) why you did not send a contest of the proposed penalty assessment on time; and
                      - Supporting documentation (which should be as reliable as possible).

#### You must send your request to reopen to:

Executive DirectorFederal Mine Safety and Health Review Commission1331 Pennsylvania Avenue, NW,Suite 520NWashington, D.C. 20004-1710

#### You must also send a copy of your request and all attachments to:

Office of the SolicitorU.S. Dept. of Labor201 12th Street South, Suite 401Arlington, VA 22202-5450

## Guidance for Asking the Commission to Reopen Final Orders so that a Proposed Penalty may be Contested

A proper motion to reopen a final order must explain, in as much detail as possible, that the failure to timely contest a penalty resulted from excusable neglect, mistake, inadvertence or other good cause, or it must demonstrate that the order is not final.

The Commission has considered a number of factors in determining whether good cause exists:
                      - The error does not reflect indifference, inattention, inadequate or unreliable office procedures or general carelessness;
                      - The error resulted from mistakes that the operator typically does not make;
                      - Procedures to prevent, identify and correct such mistakes have been adopted or changed, as appropriate;
                      - In cases where receipt of the penalty assessment is an issue, the operator maintains proper addresses with the Mine Safety and Health Administration (MSHA).

The Commission also recognizes that a proposed penalty may not have become final if an operator did not actually receive the proposed assessment from MSHA.

A proper motion must also provide all relevant documentation and identify the persons who have knowledge of the circumstances. Documents are especially important if they are referred to in the motion or in the Secretary's response to the motion, but you should include any document that helps explain why the underlying proceeding was not properly contested. Your motion should also be supported by affidavit(s) of (a) person(s) with direct knowledge of the underlying facts.

Motions for relief must identify and explain:
                      - Why a timely contest was not filed,
                      - How and when you first discovered the failure to timely contest the penalty and how you responded once this was discovered,
                      - If the motion to reopen was filed more than 30 days after you first learned that the penalty was not timely contested, you must provide a reasonable explanation for the delay or your motion may be DENIED WITH PREJUDICE.

Finally, if you only wish to contest some of the penalties subject to the final order, you must identify them on the MSHA Form 1000-179 (the penalty assessment form) if you have a copy of it.

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### The Federal Mine Safety and Health Review Commission

#### 1331 Pennsylvania Avenue, NW,Suite 520NWashington, DC 20004-1710Phone: (202)434-9900TTY/TDD (202)434-4000 ext. 293E-mail: fmshrc@fmshrc.gov