.
H & D COAL COMPANY, INC.
April 18, 2001
KENT 2001-107


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                         April 18, 2001

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         : Docket No. KENT 2001-107
                                : A.C. No. 15-17646-03516
          v.                    : 
                                :
H & D COAL COMPANY, INC.        :


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


                              ORDER


BY:  Jordan, Chairman; Beatty, Commissioner

     This matter arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act").  On 
February 5, 2001, the Commission received from H & D Coal 
Company ("H & D") 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 H & D.

     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 a letter submitted by H & D's president, Charles Hall, 
H & D contends that on November 7, 2000, it mailed a protest of 
all violations contained in the proposed penalty assessment it
currently seeks to reopen.  Mot.  It asserts that after it
contacted the compliance office of the Department of Labor's 
Mine Safety and Health Administration ("MSHA"), it discovered 
that MSHA does not have a record of its protest.  Id.  H & D 
requests that the Commission grant its request for relief and 
reopen the proceeding.  Id.  Attached to its request is a copy 
of the proposed assessment with the notations "Protested 
11-7-00" and "Lynn Johnson 2-5-00."

     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, we are unable to 
evaluate the merits of H & D's position.  In the interest of 
justice, we remand the matter for assignment to a judge to 
determine whether relief from the final order is appropriate. 
See Original Sixteen to One Mine, Inc., 23 FMSHRC 149, 149-50 
(Feb. 2001) (remanding to a judge where operator alleged that 
it sent a hearing request to MSHA, but MSHA did not receive 
the request); Ahern & Assocs., Inc., 23 FMSHRC 121, 121-22 
(Feb. 2001) (same).  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
                           
                           Robert H. Beatty, Jr., Commissioner


Commissioners Riley and Verheggen, concurring in result:

     We would grant the operator's request for relief here,
because the Secretary does not oppose and the operator has 
offered a sufficient explanation for its failure to timely 
respond. However, in order to avoid the effect of an evenly 
divided decision, we join in remanding the case to allow the 
judge to consider whether the operator has met the criteria 
for relief under Rule 60(b).  See Pa. Elec. Co., 12 FMSHRC 
1562, 1563-65 (Aug. 1990), aff'd on other grounds, 969 F.2d 
1501 (3d Cir. 1992) (providing that the effect of a split 
Commission decision is to leave standing disposition from 
which appeal has been sought).


                          James C. Riley, Commissioner
                          
                          Theodore F. Verheggen, Commissioner


Distribution

Charles B. Hall, President
H & D Coal Company, Inc.
Box 480
Whitesburg, KY 41858

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Tamara Nelson, Chief
Civil Penalty Compliance Office
U.S. Department of Labor
4015 Wilson Blvd., Suite 900
Arlington, VA 22203

Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C.  20006