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2011 FMSHRC [1] (2011)

handle is hein.usfed/fmshr2011 and id is 1 raw text is: FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 601 NEW JERSEY AVENUE, NW SUITE 9500 WASHINGTON, DC 20001 February 25, 2011 SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) Docket No. CENT 2010-1063-M v. : A.C. No. 14-00481-221117 ALSOP SAND COMPANY, INC. 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 July 28, 2010, the Commission received from Alsop Sand Company, Inc., a letter from the company's president 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). On August 5, 2010, the Commission received a response from the Secretary of Labor stating that she does not oppose the request to reopen the assessment. 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 section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 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 1

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