<DOC>
[DOCID: f:kt200037.wais]
KENAMERICAN RESOURCES, INC.
December 22, 1999
KENT 2000-37
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
December 22, 1999
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. KENT 2000-37
: A.C. No. 15-17741-03542
KENAMERICAN RESOURCES, 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 November 18, 1999, 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). 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 motion, Kenamerican asserts that its failure to file
a hearing request to contest the proposed penalty for Citation
No. 7640047 was due to a processing error made by its accounting
department. Mot. at 2. The penalty assessment in question was
issued to Kenamerican, along with 10 other penalty assessments
for other violations. Id. at 1. Kenamerican alleges that while
it intended to pay the penalty assessments for the 10 other
violations, it intended to contest the penalty assessment for
Citation No. 7640047. Id. Kenamerican states that its
accounting department apparently sent a check in the amount of
$550 for payment of the 10 single penalty assessments, along
with a hearing request to contest the penalty assessment for
Citation No. 7640047, rather than separately filing the request.
Id. Kenamerican maintains that, upon learning of this
misfiling, it sent a letter dated October 28, 1999, to MSHA's
Civil Penalty Compliance Office explaining the misfiling and
requesting MSHA to accept the letter as its hearing request.
Ex. B. It claims that MSHA responded by letter dated November
17, 1999, stating that it received Kenamerican's payment and
hearing request on October 29, 1999, but denying the request
because the penalty assessment had become a final order of the
Commission on October 13.[1] Ex. C. Finally, Kenamerican
states, without elaborating, that the misfiling also was due to
a computer error. Mot. at 3. Kenamerican attached to its
request copies of the proposed penalty assessments, the
certified mail receipt, and correspondence with MSHA. Exs. A-C.
Kenamerican requests that the Commission reopen the final order
and allow the contest to proceed to hearing.
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., Jim Walters Resources,
Inc., 15 FMSHRC 782, 786-89 (May 1993); Rocky Hollow Coal Co.,
Inc., 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 Preparation
Services, 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, mistake, or excusable neglect. See National
Lime & Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody
Coal Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997).
**FOOTNOTES**
[1] Kenamerican claims that MSHA received its hearing
request on October 21, 1999. Mot. at 1. However, consistent
with statements in MSHA's November 17 letter, the return receipt
indicates that its hearing request was delivered to MSHA
and signed for on October 29, 1999. Exs. A, C.
On the basis of the present record, we are unable to
evaluate the merits of Kenamerican's position.[2] In the
interest of justice, we remand the matter for assignment to a
judge to determine whether Kenamerican has met the criteria for
relief under Rule 60(b). See Benton County Stone, Inc., 21
FMSHRC 5, 5-6 (Jan. 1999) (remanding operator's request to
reopen final order where the operator's secretary internally
misfiled the proposed penalties); Del Rio, Inc., 19 FMSHRC 467,
467-68 (Mar. 1997) (remanding for judge's consideration
operator's request to reopen penalty assessment after green card
was misfiled in accounts payable file). 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, Commissioner
Distribution
Adele L. Abrams, Esq., David Farber, Esq., Patton Boggs, LLP,
2550 M Street, N.W., Washington, D.C. 20037
W. Christian Schumann, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 400, Arlington,
VA 22203
jhe
**FOOTNOTES**
[2] In view of the fact that the Secretary does not
oppose Kenamerican's motion to reopen this matter for a hearing
on the merits, Commissioners Marks and Verheggen conclude that
the motion should be granted.