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[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