<DOC>
[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