Scabtron

Plain-English summary

Scabtron asked the Commission to reopen a proposed penalty assessment it said it never received. After receiving a delinquency letter from the Department of Treasury, the company paid the penalties in full. The Secretary confirmed that the assessment had been returned undelivered and did not oppose relief. The Commission held that the assessment never became a final order because Scabtron had not received it. It denied the reopening request as moot, remanded for further proceedings, and directed the Secretary to file a penalty petition within 45 days.

Decision snapshot

• Cited provisions: 30 U.S.C. §§ 801 and 815(a); 29 C.F.R. § 2700.28
• Outcome: Reopening was denied as moot because no final order existed, and the matter was remanded for a penalty petition.
• Key point: A proposed assessment does not become a final Commission order when the operator never receives it.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

August 22, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

SCABTRON

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Docket No. WEST 2012-302-M
A.C. No. 50-01614-224689

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, 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. (2006) (“Mine Act”). On December 13, 2011, the Commission received from
Scabtron a motion seeking to reopen a penalty assessment that may have 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).

Scabtron asserts that it did not receive the proposed assessment in this case. Scabtron
states that upon receiving a delinquency letter from the Department of Treasury, it paid the
penalties in full. The Secretary does not oppose the request to reopen. The Secretary confirms
that the proposed assessment was returned undelivered, and that the penalties were paid in full
through Treasury collection.

Having reviewed Scabtron’s request and the Secretary’s response, we conclude that the
above-captioned assessment has not become a final order of the Commission because it was
never received by Scabtron. Accordingly, we deny the request to reopen as moot

and remand
this matter 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, Chairman

/s/ Michael F. Duffy

Michael F. Duffy, Chairman

/s/ Michael G. Young

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Distribution:

Mike Miell, Scabtron

C/O Glen Thurman

1970 Porcupine Lane

Fairbanks, AK 99712

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N. W., Suite 9500

Washington, D.C. 20001-2021