<DOC>
[DOCID: f:west98338.wais]

 
ESSAYONS
August 7, 1998
WEST 98-338-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                     1730 K STREET NW, 6TH FLOOR

                       WASHINGTON, D.C.  20006


                            August 7, 1998

SECRETARY OF LABOR,              :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 :
           v.                    :  Docket No. WEST 98-338-M
                                 :  A.C. No. 04-05271-05509
ESSAYONS, INC.                   :


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 July 17, 1998, the Commission received from Essayons, Inc.
("Essayons") 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 Essayons.

     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, Essayons contends that its failure to timely
file a hearing request to contest a proposed penalty was due to
its misplacement of the proposed assessment notification.
Essayons asserts that before it mailed the hearing request,
however, the thirty-day deadline for submission of the request
had already passed.

     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, 468
(Mar. 1997) (remanding final order when operator inadvertently
misfiled hearing request card); RB Coal Co., 17 FMSHRC 1110, 1111
(July 1995) (remanding final order when operator misplaced
hearing request card); 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 Preparation Servs., Inc., 17 FMSHRC 1529,
1530 (Sept. 1995).  In accordance with Rule 60(b)(1), we have
previously 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); Stillwater Mining
Co., 19 FMSHRC 1021, 1022-23 (June 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 Essayons' position.  In the interest of
justice, we remand the matter for assignment to a judge to
determine whether Essayons 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

Bruce Mcintosh, Vice President, Essayons, Inc., 2409 Oberlin Rd.,
Yreka, CA 96097

Shelia 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 and Health, Review Commission, 1730 K Street, N.W.,
Suite 600, Washington, D.C.  20006