[DOCID: f:ce2002242.wais] ARNOLD CRUSHED STONE Docket No. CENT 2002-242-M July 10, 2002 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006 July 10, 2002 SECRETARY OF LABOR, : MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA) : : Docket No. CENT 2002-242-M v. : A.C. No. 41-03882-05515 : ARNOLD CRUSHED STONE : BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners ORDER BY: Verheggen, Chairman; and Beatty, Commissioner This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On May 24, 2002, the Commission received from Arnold Crushed Stone ("Arnold") a request 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 has 30 days following receipt of the Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it wishes to contest the proposed penalty. 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). In its request, Arnold, apparently proceeding pro se, requests relief from the final order, but offers no explanation for its failure to avoid entry of the final order. Mot. It attached a copy of the proposed penalty assessment to its request. Id., Attach. We have held that, in appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting party can make a showing of adequate or good cause for the failure to timely respond, the case may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has found guidance in, and has applied "so far as practicable," Rule 60(b) of the Federal Rules of Civil Procedure. See 29 C.F.R. § 2700.1(b) ("the Commission and its judges shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance with Rule 60(b)(1), we previously have afforded a party relief from a final order of the Commission on the basis of inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997). On the basis of the present record, we are unable to evaluate the merits of Arnold's position. In the interest of justice, we remand the matter for assignment to a judge to determine whether Arnold has met the criteria for relief under Rule 60(b). See Cantera Bravo Inc., 23 FMSHRC 809, 809-11 (Aug. 2001) (remanding to judge where operator offered no explanation for failure to timely file request for hearing); Bailey Sand & Gravel Co., 20 FMSHRC 946, 946-47 (Sept. 1998) (same). If the judge determines that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. Theodore F. Verheggen, Chairman Robert H. Beatty, Jr., Commissioner Commissioner Jordan, dissenting: I would deny the operator's request for relief from the final order. Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, we have previously afforded a party relief from a final order on the basis of inadvertence or mistake. Slip op. at 2. However, Arnold has failed to provide any explanation to justify its failure to timely contest the proposed penalty assessment. See Tanglewood Energy, Inc., 17 FMSHRC 1105, 1107 (July 1995) (denying request to reopen final Commission order where operator failed to set forth grounds justifying relief). Consequently, I respectfully dissent. Mary Lu Jordan, Commissioner Distribution Mike Arnold, President Arnold Crushed Stone P.O. Box 632 Blum, TX 76627 W. Christian Schumann, Esq. Office of the Solicitor U.S. Department of Labor 1100 Wilson Blvd., 22nd Floor Arlington, VA 22209 Myra James, Chief Civil Penalty Compliance Office U. S. Department of Labor 1100 Wilson Blvd., 25th Floor Arlington, VA 22209 Chief Administrative Law Judge David Barbour Federal Mine Safety & Health Review Commission 1730 K Street, N.W., Suite 600 Washington, D.C. 20006