<DOC>
[DOCID: f:lk2001154.wais]
CARRI SCHARF MATERIALS, COMPANY
August 22, 2001
LAKE 2001-154-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
August 22, 2001
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. LAKE 2001-154-M
:
CARRI SCHARF MATERIALS, :
COMPANY :
BEFORE: Verheggen, Chairman; Jordan, Riley, and Beatty,
Commissioners
ORDER
BY: Jordan 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 April 25, 2001, the Commission received from Carri
Scharf Materials, Company ("Carri Scharf") 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).
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 this case, Carri Scharf did not timely submit its
request for a hearing to the Department of Labor's Mine Safety
and Health Administration ("MSHA"). See 29 C.F.R. � 2700.26.
In its pro se motion, it contends that it never received the
proposed penalty assessment (Control No.
11-03013-05509) from MSHA.[1] Id. Carri Scharf also challenges
the merits of one of the orders associated with the proposed
penalty assessment (Order No. 7827502), stating that the
information contained in the order is not accurate, and that
there is new information pertaining to the case. It asserts
that the civil penalty amount of $7259 is absurd and that
another proposed penalty assessment (Control No.
11-03013-05508), for the amount of $1600, was issued to it and
pertains to the present case. Id. Carri Scharf requests that
the Commission reopen this matter. Id.
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).
**FOOTNOTES**
[1]: Carri Scharf attached to its motion a copy of a
certified mail receipt showing that the proposed penalty
assessment was sent by MSHA to Carri Scharf's P.O. box
address but was returned to the agency undelivered. Mot.,
attachment.
On the basis of the present record, we are unable to
evaluate the merits of Carri Scharf'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 Idaho Minerals, 22 FMSHRC 1301, 1301-03 (Nov. 2000)
(remanding where operator alleged it did not receive proposed
penalty assessment); Bauman Landscape, Inc., 22 FMSHRC 289, 289-
90 (Mar. 2000) (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, Commissioner
Robert H. Beatty, Jr., Commissioner
Chairman Verheggen and Commissioner Riley, concurring in result:
We would grant the operator's request for relief here,
because the Secretary does not oppose the motion for relief, the
operator has offered a sufficient explanation for its failure to
timely respond, and no other circumstances exist that would
render such a grant problematic. 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).
Theodore F. Verheggen, Chairman
James C. Riley, Commissioner
Distribution
Joseph A. Scharf
Carri Scharf Materials Company
P.O. Box 305
Bloomington, IL 61702
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David F. Barbour
Federal Mine Safety and Health Review Commission
1730 K Street N.W., Suite 600
Washington, D.C. 20006