<DOC>
[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