FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
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SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA),
v.
JIM REEVES, employee of RODEO |
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Docket No. WEST 2014-83-M A.C. No. 26-02535-289894 A
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CREEK GOLD, INC. :
BEFORE: Jordan, Chairman; Young, Nakamura, and Althen, Commissioners[1]
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”). On November 26, 2013, the Commission received a motion seeking to reopen a penalty assessment under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that appeared to have become a final order of the Commission.
Under the Commission’s Procedural Rules, an individual charged under section 110(c) has 30 days following receipt of the proposed penalty assessment within which to notify the Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 29 C.F.R. § 2700.27.
Records of the Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered to Hollister mine, operated by Rodeo Creek Gold, Inc. on May 23, 2012. Mr. Reeves was cited for a violation while he was a crew shift foreman at this mine. The proposed assessment appeared to become a final order of the Commission on June 22, 2012. Mr. Reeves asserts that he never personally received the proposed assessment. The Secretary concedes that the proposed assessment may not have been successfully served on Mr. Reeves. Therefore, the Secretary does not oppose the request to reopen.
Having reviewed Mr. Reeves’ request and the Secretary’s response, we conclude that the proposed penalty assessment may not have become a final order of the Commission, because Mr. Reeves may not have personally received the proposed assessment. See 29 C.F.R. § 2700.26 (“[a] person has 30 days after receipt of the proposed penalty assessment within which to notify the Secretary that he contests the proposed penalty assessment.”) Accordingly, Mr. Reeves’ motion to reopen is moot, and this case is remanded 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.
/s/ Mary Lu Jordan
Mary Lu Jordan, Chairman
/s/ Michael G. Young
Michael G. Young, Commissioner
/s/ Patrick K. Nakamura
Patrick K. Nakamura, Commissioner
/s/ William I. Althen
William I. Althen, Commissioner
Distribution:
Patricia A. Asack, P.C.
Attorney at Law
630 E. Market
P.O. Box 2307
Rockport, TX 78381
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety & Health Review Commission
1331 Pennsylvania Ave. N.W., Suite 520N
Washington, DC 20004-1710
Melanie Garris
Office of Civil Penalty Compliance
Mine Safety and Health Administration
U.S. Department of Labor
201 12th St. South, Suite 500
Arlington, VA 22202-5450