[DOCID: f:cent9970.wais] BENTON COUNTY STONE, INC. January 13, 1999 CENT 99-70-M FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006 January 13, 1999 SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA) : : v. : Docket No. CENT 99-70-M : A.C. No. 03-01730-05519 BENTON COUNTY STONE, INC. : BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, 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. (1994) ("Mine Act"). On December 7, 1998, the Commission received from Benton County Stone, Inc. ("Benton County") a request to reopen three penalty assessments that had become final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). It has been administratively determined that the Secretary of Labor does not oppose the motion for relief filed by Benton County. 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, Benton County contends that its failure to timely file a hearing request to contest a proposed penalty was due to a secretary's misfiling of the hearing request form. Mot. at 1. Benton County received the proposed penalty assessments on September 14, 1998. After locating the misfiled proposed penalties, the operator mailed the hearing request on November 16 to the Department of Labor's Mine Safety and Health Administration. By that time, however, the thirty-day deadline for submission of the request had already passed. We have held that, in appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b), we possess jurisdiction to reopen uncontested assessments that have become final by operation of section 105(a). See, e.g., Essayons, Inc., 20 FMSHRC 786, 788 (Aug. 1998) (remanding final order when operator misplaced proposed penalty notification); Del Rio, Inc., 19 FMSHRC 467, 468 (Mar. 1997) (remanding final order when operator inadvertently misfiled hearing request card); RB Coal Co., 17 FMSHRC 1110, 1111 (July 1995) (remanding final order when operator misplaced hearing request card). 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 Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In accordance with Rule 60(b)(1), we have previously afforded a party relief from a final order of the Commission on the basis of inadvertence or mistake. See National Lime & Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997); Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996). On the basis of the present record, we are unable to evaluate the merits of Benton County's position.[1] In the interest of justice, we remand the matter for assignment to a judge to determine whether Benton County has met the criteria for relief under Rule 60(b). 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. Mary Lu Jordan, Chairman Marc Lincoln Marks, Commissioner James C. Riley, Commissioner Theodore F. Verheggen, Commissioner Robert H. Beatty, Jr., Commissioner Distribution Gary Geralds, Mining Development Services for Benton County Stone, Route 2, Box 2785, Stigler, OK 74462 Sheila Cronan, Esq., Office of the Solicitor,U.S. Department of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203 Chief Administrative Law Judge Paul Merlin, Federal Mine Safety & Health Review Commission, 1730 K Street, N.W., Suite 600, Washington, D.C. 20006 **FOOTNOTES** [1]: In view of the fact that the Secretary does not oppose Benton County's motion to reopen this matter, Commissioner Marks concludes that the motion should be granted.