[DOCID: f:cn200274.wais] HOLNAM TEXAS LIMITED CENT 2002-74-M May 7, 2002 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006 May 7, 2002 SECRETARY OF LABOR, : MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA) : : Docket No. CENT 2002-74-M v. : A.C. No. 41-03307-05564 : HOLNAM TEXAS LIMITED : BEFORE: Verheggen, Chairman; Jordan 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 January 7, 2002, the Commission received from Holnam Texas Limited ("Holnam") a motion made by counsel 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 motion, Holnam asserts that it intended to contest the proposed penalty relating to Citation No. 7895146 but that it did not submit a green card because it inadvertently paid the assessment. Mot. at 2-3. Holnam contends that the citation was issued pursuant to an inspection by the Department of Labor's Mine Safety and Health Administration ("MSHA") on November 16, 2000. Id. at 1. It is a matter of record that Holnam filed a Notice of Contest for the citation underlying the penalty at issue here, Docket No. CENT 2001-60-RM, and that this contest proceeding is currently stayed pending the issuance of a proposed penalty assessment. MSHA issued a proposed penalty assessment for the contested citation on August 23, 2001. Mot. at 2. Holnam points out, however, that on September 24, 2001, its plant safety director, Andy Yuhas, inadvertently initiated payment of the civil penalty after failing to recognize the modified citation as being related to the original contested citation. Id. 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," Fed. R. Civ. P. 60(b). 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 and based on counsel's representations in their motion, we grant Holnam's motion for relief, reopen the penalty assessment that became a final order, and remand to the judge for further proceedings on the merits. The case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. Theodore F. Verheggen, Chairman Mary Lu Jordan, Commissioner Robert H. Beatty, Jr., Commissioner Distribution William K. Doran, Esq. Heenan, Althen & Roles, LLP 1110 Vermont Ave., N.W., Suite 400 Washington, D. C. 20005 W. Christian Schumann, Esq. Office of the Solicitor U.S. Department of Labor 1100 Wilson Blvd., 22nd Floor West 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