<DOC>
[DOCID: f:wes200123-2e.wais]

 
ORIGINAL SIXTEEN TO ONE MINE, INCORPORATED
WEST 2001-23-M
February 12, 2001


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                        February 12, 2001


SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 :
          v.                     : Docket No. WEST 2001-23-M
                                 : A.C. No. 04-01299-05535
ORIGINAL SIXTEEN TO ONE MINE,    :
  INCORPORATED                   :



BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty,
        Commissioners


                              ORDER


BY: Jordan, Chairman; Beatty, Commissioner

     This matter arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine Act").  On
October 13, 2000, the Commission received from Original Sixteen to
One Mine, Inc. ("Original") 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).
The Secretary of Labor does not oppose the motion for relief filed
by Original.

     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, Original contends that it timely submitted a
hearing request to the Department of Labor's Mine Safety and
Health Administration ("MSHA") on August 16, 1999, but that MSHA
either did not receive or failed to record receipt of its hearing
request.  Mot.  Original requests that the Commission grant its
request for relief and reopen the matter so that it may proceed to
a hearing on the merits.  Id.  Attached to its request is a copy
of a letter it allegedly sent to MSHA contesting numerous
citations, including the subject citations, and a copy of the
signed and dated green card.  Ex. A.

     We have held that, in appropriate circumstances and pursuant
to Rule 60(b), 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); 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 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 Original's position.  In the interest of justice, we
remand the matter for assignment to a judge to determine whether
Original has met the criteria for relief under Rule 60(b).  See
BR&D Enters., Inc., 22 FMSHRC 479, 481 (Apr. 2000) (remanding to
the judge where operator alleged that it timely submitted green
card, but never received return receipt); W. Aggregates, Inc., 20
FMSHRC 745, 747 (July 1998) (remanding to the judge where operator
mistakenly filed green card with MSHA's regional office, rather
than with MSHA's Civil Penalty Compliance Office in Arlington,
Virginia).  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

                              Robert H. Beatty, Jr., Commissioner


Commissioners Riley and Verheggen, concurring in result:

     We would grant the operator's request for relief here,
because the Secretary does not oppose and the operator has offered
a sufficient explanation for its failure to timely respond.
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).


                              James C. Riley, Commissioner

                              Theodore F. Verheggen, Commissioner


Distribution

Cindy McGaw, Corporate Manager
Original Sixteen to One Mine, Inc.
P.O. Box 1621
Alleghany, CA 95910

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

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