FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

July 15, 2013

BEFORE: Jordan, Chairman; Young 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 19, 2012, the Commission received from J. Hanley Construction, Inc. (“Hanley”) a motion seeking to reopen a penalty assessment that, according to records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”), 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).

            MSHA’s records indicate that the proposed assessment was mailed to the operator’s address of record and was returned undelivered on April 13, 2012. Hanley asserts that it never received the assessment, and that its crushing plant was leased to a rancher for private use. MSHA received a check dated May 10, 2012, and applied the payment to this case. The Secretary does not oppose the request to reopen, but urges the operator to ensure that its address of record is accurate and that future assessments can be received at that address.

            Having reviewed Hanley’s request and the Secretary’s response, we conclude that the penalty assessment in this matter has not become a final order of the Commission because it was returned undelivered. We therefore remand it 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.