<DOC>
[DOCID: f:kenorder.wais]

 
KENAMERICAN RESOURCES, INC.
March 25, 1998
KENT 98-129


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006
                          

                          March 25, 1998
                           
SECRETARY OF LABOR,              :      CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 :
          v.                     :      Docket No. KENT 98-129
                                 :      A.C. No. 15-17741-03517
KENAMERICAN RESOURCES, 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 March 10, 1998, the Commission received from Kenamerican
Resources, Inc. ("Kenamerican") 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).
It has been administratively determined that the Secretary of
Labor does not oppose the motion for relief filed by Kenamerican.

     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, Kenamerican asserts that its failure to file
a hearing request to contest the proposed penalty for the
violation alleged in Citation No. 4278199 was due to an internal
processing error made by its accounting department.  According to
Kenamerican, its safety director, Bobby Gibson, who normally
handles challenges to citations issued by the Department of
Labor's Mine Safety and Health Administration ("MSHA"), was home
recovering from surgery when the hearing request was due.  Mot.
at 2.  Kenamerican asserts that Gibson provided instructions to
the company's treasurer for processing the forms to contest the
citation, but the accounting department inadvertently failed to
process the hearing request.  Id. at 2-3.  Kenamerican alleges
that Gibson discovered the processing error when he received a
copy of MSHA's February 27, 1998, letter to Kenamerican's General
Manager, notifying the company that the case became a final order
of the Commission on December 31, 1997.  Id. at 3.

     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., Rocky Hollow Coal Co., 16 FMSHRC
1931, 1932 (September 1994); Jim Walter Resources, Inc., 15
FMSHRC 782, 786-89 (May 1993).  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 (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 Peabody Coal Co., 19 FMSHRC 1613,
1614-15 (October 1997); Stillwater Mining Co., 19 FMSHRC 1021,
1022-23 (June 1997); Kinross DeLamar Mining Co., 18 FMSHRC 1590,
1591-92 (September 1996);  General Chem. Corp., 18 FMSHRC 704,
705 (May 1996).

     Here, the record indicates that Kenamerican intended to
contest Citation No. 4278199 and that, but for the illness of its
safety director and an apparent lack of coordination between the
safety director and the company's accounting department, it would
have timely submitted the hearing request and contested the
proposed penalty assessment.  In these circumstances,
Kenamerican's failure to timely file a hearing request properly
may be found to qualify as "inadvertence" or "mistake" within the
meaning of Rule 60(b)(1).  See Peabody, 19 FMSHRC at 1614-15
(granting operator's motion to reopen when operator failed to
submit request for hearing to contest proposed penalty due to
lack of coordination between counsel and personnel at mine);
Stillwater, 19 FMSHRC at 1022-23 (granting operator's motion to
reopen when operator failed to submit request for hearing to
contest proposed penalty due to lack of coordination between
recipient of assessment at mine and operator's attorneys).
     Accordingly, in the interest of justice, we grant
Kenamerican's unopposed request for relief and reopen this
penalty assessment that became a final order with respect to
Citation No. 4278199.  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


Adele L. Abrams, Esq.
Henry Chajet, Esq.
Patton Boggs, L.L.P.
2550 M Street, N.W.
Washington, D.C.  20037

Mark Malecki, 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 and Health Review Commission
1730 K Street, N.W., Suite 6003
Washington, D.C.  20006