FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

May 2, 2006

DIRECTION FOR REVIEW AND ORDER

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. ' 801 et seq. (2000) (AMine Act@). On February 3, 2006, Chief Administrative Law Judge Robert Lesnick issued to Paul F. Becker Coal Company (ABecker@) an Order to Show Cause for failure to answer the Secretary of Labor=s petition for assessment of civil penalty. On March 23, 2006, Chief Judge Lesnick issued an Order of Default entering judgement for the Secretary and directing Becker to pay the proposed civil penalty immediately.

On April 10, 2006, the Commission received a notarized letter from Paula M. Becker, Becker=s representative, which we construe to be a timely petition for discretionary review. In the letter, Becker states that the owner, Paul F. Becker, had been ill for some time and passed away on March 4, 2006. The Secretary has indicated that she does not oppose granting Becker=s petition for review.

The judge=s jurisdiction in this matter terminated when his decision was issued on March 23, 2006. 29 C.F.R. ' 2700.69(b). Relief from a judge=s decision may be sought by filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. ' 823(d)(2); 29 C.F.R. ' 2700.70(a). We deem Becker=s correspondence to be a timely filed petition for discretionary review, which we grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130 (Sept. 1988).

Upon review of the record, we have determined that the wording of the Order to Show Cause did not conform with the Commission=s Procedural Rules. Accordingly, in the interest of justice, we hereby vacate the Order of Default and remand this matter to the Chief Judge for further appropriate proceedings. See REB Enterprises, Inc., 18 FMSHRC 311 (Mar. 1996).

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Michael F. Duffy, Chairman

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Mary Lu Jordan, Commissioner

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Stanley C. Suboleski, Commissioner

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Michael G. Young, Commissioner
Distribution

Paul F. Becker, Owner
Paul F. Becker Coal Company
1593 Old Route 22
Duncansville, PA 16635

Adam F. Welsh, Esq.
Office of the Solicitor
U.S. Department of Labor
The Curtis Center, Suite 630E
170 S. Independence Mall West
Philadelphia, PA 19106-3306

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22^nd Floor
Arlington, VA 22209-2296

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