[DOCID: f:lake98197.wais] BAILEY SAND & GRAVEL CO. September 9, 1998 LAKE 98-197-M FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006 September 9, 1998 SECRETARY OF LABOR, : MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA) : : v. : Docket No. LAKE 98-197-M : A.C. No. 20-03036-05502 BAILEY SAND & GRAVEL CO. : 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 August 17, 1998, the Commission received from Bailey Sand & Gravel Co. ("Bailey") 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 Bailey. 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, Bailey requests relief from the final order, but offers no explanation of the reasons for its failure to avoid entry of the final order. 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., Del Rio, Inc., 19 FMSHRC 467, 467-68 (Mar. 1997) (remanding final order when operator inadvertently misfiled hearing request card); RB Coal Co., 17 FMSHRC 1110, 1110-11 (July 1995) (remanding final order when operator misplaced hearing request card); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994). We also have 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 (Sept. 1995). 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 Peabody Coal Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997); Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); General Chem. Corp., 18 FMSHRC 704, 705 (May 1996). On the basis of the present record, we are unable to evaluate the merits of Bailey's position. In the interest of justice, we remand the matter for assignment to a judge to determine whether Bailey 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 Marc Lincoln Marks, Commissioner James C. Riley, Commissioner Theodore F. Verheggen, Commissioner Robert H. Beatty, Jr., Commissioner Distribution Jerald W. Bailey, Bailey Sand & Gravel Company, 1060 Toro Drive Jackson, MI 49201 Sheila Cronan, 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 & Health Review Commission, 1730 K Street, N.W., Suite 600, Washington, D.C. 20006