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[DOCID: f:cnt99329c.wais]

 
EAST ARKANSAS CONTRACTORS, INC.
September 30, 1999
CENT 99-329-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                       September 30, 1999

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
          v.                    : Docket No. CENT 99-329-M
                                :
EAST ARKANSAS CONTRACTORS, INC. :



BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
        Commissioners


                              ORDER


BY: Jordan, Chairman; Riley and Beatty, Commissioners

     This matter arises under the Federal Mine Safety and 
Health Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine 
Act"). On September 7, 1999, the Commission received from 
East Arkansas Contractors, Inc. ("EAC") 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). The Secretary of Labor does not oppose the 
motion for relief filed by EAC.

     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 the request, James Norman, president of EAC, asserts 
that EAC's failure to file a hearing request to contest the 
proposed penalty assessment was due to a change in personnel, 
resulting in mishandling of the notice of proposed penalty 
assessment. Mot. at 1. Norman submits that after EAC received 
the notice on July 10, 1999, it gave the notice to a technician 
from Environmental Data Services, a company which handles such 
matters for EAC.  Id.  Norman explains that the technician was
terminated a few days later, and that EAC never recovered the
original notice of proposed penalty assessment.  Id.  Norman 
further states that he called Harry Verdier, presumably, an 
MSHA official, explained the mishandling of the document to 
him, and was advised to request "proper documents" from the 
Civil Penalties Office with the Department of Labor's Mine 
Safety and Health Administration ("MSHA").  Id.  He claims he 
sent such a request to MSHA via facsimile on August 19, mailing 
a hard copy by registered mail.[1]  Id. Norman requests that
EAC be permitted to contest the violations in this case.

     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).  Jim Walters Resources, Inc., 
15 FMSHRC 782, 786-89 (May 1993); see also Rocky Hollow Coal 
Co., Inc., 16 FMSHRC 1931, 1932 (September 1994) (remanding 
to an administrative law judge where counsel for operator
failed  to  timely  submit  notice of  contest  due  to  his 
misplacement of the file). 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 Services, Inc., 
17 FMSHRC 1529, 1530 (September 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 Del Rio, Inc., 19 FMSHRC 467, 467-68 (March 1997) 
(remanding for judge's consideration of operator's request to 
reopen penalty assessment after green card was misfiled in 
accounts payable file); Eastern Associated Coal Corp., 19 
FMSHRC 494, 494-95 (March 1997) (remanding operator's request 
to reopen final order when substitute mailroom employee failed
to refer proposed assessment to legal department); RB Coal Co.,
Inc., 17 FMSHRC 1110, 1110-11 (July 1995) (remanding for 
judge's consideration of operator's request to reopen penalty 
assessment after green card was misplaced among other penalty 
assessments that operator intended to pay).

**FOOTNOTES**

     [1]: Although  Norman states that he enclosed a copy of 
his August 19 request to MSHA,  no  such copy was included 
with EAC's request to repoen.

     On the basis of the present record, we are unable to
evaluate the merits of EAC's position.[2]  In the interest 
of justice, we remand the matter for assignment to a judge 
to determine whether EAC 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
                              
                              James C. Riley, Commissioner
                              
                              Robert H. Beatty, Jr., 
                                Commissioner


Distribution

James W. Norman, President
East Arkansas Contractors, Inc.
Hwy. 49, Box 2513
West Helena, AR 72390

Tamara Nelson
Office of Civil Penalty Compliance
U.S. Department of Labor, MSHA
4015 Wilson Boulevard
Arlington, VA 22203

Sheila Cronan, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard, Suite
Arlington, VA 22203

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C.  20006


**FOOTNOTES**

     [2]: In view of the fact that the Secretary does not 
oppose EAC's motion to reopen this matter for a  hearing on 
the merits, Commissioners Marks and Verheggen conclude that 
the motion should be granted.