Marco Crane & Rigging Company (Commission decision, May 4, 2007)

Plain-English summary

Marco Crane & Rigging did not contest a proposed penalty assessment and first learned of it when MSHA sent a delinquency notice about three months later. The company asked the Commission to reopen the resulting final order on the ground that it never received the assessment. The Secretary did not oppose the request. The Commission remanded the matter for a judge to determine whether the missing notice established good cause and justified relief.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b) and 30 U.S.C. § 815(a)
• Outcome: The final penalty assessment was remanded for a good-cause determination.
• Key point: An operator's claimed nonreceipt of a proposed assessment may support reopening when it acts after receiving the delinquency notice.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 4, 2007

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

MARCO CRANE & RIGGING

COMPANY

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Docket No. WEST 2007-363-M
A.C. No. 02-00135-106324-MWX

BEFORE: Duffy, Chairman; Jordan 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 April 9, 2007, the Commission received from Marco Crane & Rigging Company (“Marco”) a motion from its counsel requesting 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).

On December 20, 2006, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued proposed penalty assessment No. 106324 to Marco. Marco did not contest the assessment, and on March 22, 2007, MSHA sent Marco a notice that the penalty in the assessment was delinquent. Marco asserts that the March 22 notice was the first notification that it received of the penalty assessment. On that basis, Marco requests that the Commission reopen the proceeding. The Secretary states that she does not oppose Marco’s request to reopen the penalty assessment.

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) (“JWR”). 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. 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.

Having reviewed Marco’s request, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for Marco’s failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

Distribution

Bethany L. Jacobs

Attorney at Law

221 South 35th Avenue

Phoenix, AZ 85009

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209

Myra James, Chief

Office of Civil Penalty Compliance

U.S. Department of Labor, MSHA

1100 Wilson Boulevard, 25th 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