FMSHCONT0003 - Case Type 2

Civil Penalty Proceedings: A civil penalty proceeding is a case that an operator may file with the Commission in order to contest a civil penalty MSHA has proposed for a violation described in a citation or order. The civil penalty is called a “proposed penalty assessment.” If an operator refuses to accept certified mail containing a proposed penalty assessment, the operator is considered to have received it. After the operator receives a proposed penalty assessment from MSHA, it has 30 days to file a contest of that penalty. The operator files a contest of the proposed penalty assessment by following the instructions on the form that lists the penalty. Generally, the operator should indicate which penalty it wishes to contest and mail the form to the address provided. After MSHA receives a form from an operator indicating that the operator wishes to contest a proposed penalty assessment, MSHA notifies the Commission. In addition, 45 days after MSHA has received the form from the operator indicating that it wishes to contest a proposed penalty assessment, the Secretary must send to the Commission and the operator a document called a “petition for assessment of penalty.” The petition for assessment of penalty lists the alleged violation and proposed penalty, and the supporting information about how the Secretary arrived at the amount of the proposed penalty. After the operator receives the petition for assessment of penalty from MSHA, it has 30 days to file a document called an “answer” with the Commission. An answer is a document in which the operator responds to each statement in the petition for assessment of penalty. The operator must also send a copy of the answer to MSHA. Sending a document to a party in a case is called “service.” The 30-day period for filing the answer with the Commission starts to run from the date of service of the petition for assessment of penalty. The date of service can usually be found on the “certificate of service,” which is one of the last pages of the petition. It is important for the operator to know that even though it has filed a contest of a citation or order in the manner described in the section entitled, “Contest Proceedings,” it still must respond to any proposed penalty assessment that MSHA sends the operator. The operator must also respond to the proposed penalty assessment even if it is negotiating a settlement with MSHA. Similarly, the operator must file an answer to the petition for assessment of penalty even if it is negotiating a settlement with MSHA. If an operator fails to contest a proposed penalty assessment within 30 days after receiving it, the proposed penalty assessment becomes a final Commission order. However, under certain circumstances the Commission has the power to reopen uncontested assessments that have become final orders, thus permitting an operator to challenge the penalty. For example, in some instances the Commission may reopen an order if it has become final due to a mistake. For the Commission to reopen an order, an operator must show that good cause existed for its failure to timely respond to the proposed penalty assessment.