FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

July 12, 2007

BEFORE: Duffy, Chairman; Jordan and Young, 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. (2000) (“Mine Act”). On May 11, 2007, the Commission received from mine contractor Major Drilling America, Inc. (“Major”) a handwritten note. We construe the note as a motion to reopen the penalty proposed within the assessment, which 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).

            On January 23, 2007, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued proposed penalty assessment No. 000108938 to Major. According to Major, it did not return the assessment because it believed it had already contested the citation through the local MSHA district office via e-mail correspondence. In response, the Secretary requested that the Commission direct Major to provide a detailed explanation of why it believes reopening is warranted.

            Major replied to the Secretary by letter dated May 29, 2007, detailing its contacts with MSHA local and regional offices, and included copies of the e-mails. On June 7, 2007, MSHA vacated the citation underlying the penalty assessment at issue. Consequently, the Secretary now requests that the Commission reopen the assessment and dismiss the proceeding as moot.

            Here, where the request to reopen the penalty assessment has resulted in vacature of the citation underlying the assessment, there is no longer an outstanding penalty owed by Major. Because the lack of a penalty renders the penalty proceeding moot, we hereby dismiss the proceeding.

                                                                                    ____________________________________

                                                                                    Michael F. Duffy, Chairman

                                                                                    ____________________________________

                                                                                    Mary Lu Jordan, Commissioner

                                                                                    ____________________________________

                                                                                    Michael G. Young, Commissioner

Distribution

Mr. Mike Bernard

Major America

2200 South 400 West

Salt Lake City, UT 84120

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

U.S. Department of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209