<DOC>
[DOCID: f:se2001107.wais]

 
CANTERA BRAVO INC.
August 22, 2001
SE 2001-107-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. SE 2001-107-M
                                :
CANTERA BRAVO INC.              :


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 20, 2001, the Commission received from Cantera Bravo
Inc. ("Cantera") 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, Cantera, appearing pro se, asserts various
reasons why the Department of Labor's Mine Safety and Health
Administration ("MSHA") should not have issued the citations
(Citation Nos. 07797264, 07797265, 07797266, and 07797267)
against it that resulted in the penalty assessment at issue.
Mot.  It requests that the penalties be dropped but offers no
explanation for its failure to timely file a request for a
hearing.  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).

     On the basis of the present record, we are unable to
evaluate the merits of Cantera's position. In the interest of
justice, we remand the matter for assignment to a judge to
determine whether Cantera has met the criteria for relief 
under Rule 60(b).  See Collier Stone, 22 FMSHRC 483, 483-84 
(Apr. 2000) (remanding to judge where pro se operator offered 
inadequate explanation for its failure to file a timely 
request for a hearing); Bailey Sand & Gravel Co., 20 FMSHRC 
946, 946-47 (Sept. 1998) (remanding to judge where pro se 
operator offered no explanation for its failure to contest 
the penalty assessment). 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.
First, we note that the Secretary does not oppose Cantera's
motion.  We also note that Cantera is proceeding pro se, and the
Commission has always held the pleadings of pro se litigants to
less stringent standards than pleadings drafted by attorneys.
Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273 (Aug. 1992) (citing
Haines v. Kerner, 404 U.S. 519, 520 (1972)).  Because Cantera,
which is located in Puerto Rico, submitted its motion to reopen
in Spanish (subsequently translated into English), language
factors may have contributed to its failure to fully explain why
it did not file a timely request for a hearing.  Nor do we find
any other circumstances that would render a grant of relief here
problematic.  Under these circumstances, we thus fail to see the
need or utility for remanding this matter.

     Nevertheless, in order to avoid the effect of an evenly
divided decision, we join our colleagues in remanding the case.
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

Elias Oritz Rodriguez
Cantera Bravo, Inc.
P.O. Box 890
Cabo Rojo, PR 00623

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