FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

February 17, 2009

BEFORE: Duffy, Chairman; Jordan, Young, and Cohen, 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 August 21, 2008, the Commission received from Omis Ricky Smith (“Smith”) a letter 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).

            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).

            The Secretary states that upon review of the record, she has found that service of the proposed assessment was not achieved, and as a result, the assessment did not become a valid final order. The Secretary plans to resend the proposed assessment to the correct address and then Mr. Smith will have 30 days after receipt to contest the penalty. Accordingly, the Secretary submits that the request to reopen should be dismissed as moot.

            Given the circumstances and in the interest of justice, we conclude that service of the proposed assessment was never made, and thus there is no final order under section 105(a) of the Mine Act. Hence, Mr. Smith’s motion is moot and his request is dismissed.

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Michael F. Duffy, Chairman

____________________________________

Mary Lu Jordan, Commissioner

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Michael G. Young, Commissioner

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Robert F. Cohen, Jr., Commissioner

Distribution:

Omis Ricky Smith

P.O. Box 147

Banner, KY 41603

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Myra James, Chief

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

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