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[DOCID: f:pn200250.wais]

 
ROSEBUD MINING COMPANY
PENN 2002-50
May 10, 2002



        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                          

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                : Docket No. PENN 2002-50
          v.                    : A.C. No. 36-08862-03509
                                :
ROSEBUD MINING COMPANY          :


BEFORE: Verheggen, Chairman; Jordan 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 January 8, 2002, the Commission received from Rosebud Mining 
Company ("Rosebud") 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 its request, Rosebud, through counsel, indicates that 
on August 30, 2001, the Department of Labor's Mine Safety and 
Health Administration ("MSHA") issued to Rosebud a proposed 
penalty assessment totaling $553 for seven alleged violations.  
Mot., Attach.  Rosebud asserts that it did not contest four of 
the citations and paid their penalties to MSHA, but that it 
filed a proposed assessment form ("green card") signed by 
counsel for the operator on September 25, 2001, contesting the
penalties for the remaining three citations. Id. Apparently, 
however, MSHA did not receive the green card.  Id.  Attached 
to Rosebud's request is a copy of the green card which 
indicates that the company intended to contest the penalties 
(totaling $291) for three of the listed citations (Citation 
Nos. 07060863, 07060868, and 07060869). Id., Attach.

     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," Rule 60(b) of the Federal 
Rules of Civil Procedure.  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).

     Rosebud has offered a sufficient explanation demonstrating
that it intended to contest the penalties relating to Citation
Nos. 07060863, 07060868, and 07060869, and that the proposed
penalty assessment as to those citations became final as a 
result of "inadvertence" or "mistake."  See Eighty Four Mining 
Co., 23 FMSHRC 1102, 1102-04 (Oct. 2001) (granting relief where 
operator paid some of the penalties and allegedly submitted 
green card contesting the other penalties but MSHA did not 
receive the green card); Eighty Four Mining Co., 21 FMSHRC 876,
876-78 (Aug. 1999) (same).  Rosebud's intention to contest 
these penalties is supported by the copy of the green card, 
signed and dated by counsel, attached to its request, and 
by its uncontested assertion that it paid the remaining 
uncontested penalties. In addition, no other circumstances 
exist that would render a grant of relief here problematic.

     Accordingly, in the interest of justice, we grant 
Rosebud's unopposed request for relief to reopen the penalty 
assessment that became a final order with respect to Citation 
Nos. 07060863, 07060868, and 07060869.  We remand to the Chief
Administrative Law Judge for further proceedings on the merits.  
The case shall proceed pursuant to the Mine Act and the 
Commission's Procedural Rules, 29 C.F.R. Part 2700.


                           Theodore F. Verheggen, Chairman

                           Mary Lu Jordan, Commissioner

                           Robert H. Beatty, Jr., Commissioner


Distribution

Joseph A. Yuhas, Esq.
P.O. Box 1025
Northern Cambria, PA 15714

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209

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