<DOC>
[DOCID: f:ws2002109.wais]

 
B & B CRUSHING
WEST 2002-109-M
May 10, 2002


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                          May 10, 2002

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                : Docket No. WEST 2002-109-M
          v.                    : A.C. No. 35-03516-05502
                                :
B & B CRUSHING                  :


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 December 5, 2001, the Commission received from 
B & B Crushing ("B & B") 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).

     On August 13, 2001, the Department of Labor's Mine Safety
and Health Administration ("MSHA") issued a proposed penalty
assessment (A.C. No. 35-03516-05502) to B & B for the sum of 
$321 relating to Citation No. 07986780.  In its request, B & B 
asserts that it did not file a hearing request to contest the
proposed penalty because it believed the civil penalty should 
have been included in an Order of Dismissal issued by 
Administrative Law Judge Jerold Feldman on July 18, 2001 
(Docket No. WEST 2001-408-M).  Mot.  Apparently proceeding 
pro se, B & B attached a copy of the dismissal order to its 
request. Id., Attach. The dismissal order involved another 
proposed penalty assessment (A.C. No. 35-03516-0551) issued to 
B & B on April 13, 2001, involving Citation Nos. 7986781, 
7986782, and 7986784. In the dismissal order, the judge vacated 
the three citations and dismissed the proceedings. There is 
nothing in the record for Docket No. WEST 2001-408-M to
indicate that the dismissal order should have included Citation
No. 07986780.

     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).

     On the basis of the present record, however, we are unable
to evaluate the merits of B & B's position.  In particular, 
B & B provides no explanation or supporting evidence for its 
assertion that Citation No. 07986780 should have been included 
in the dismissal order issued on July 18, 2001. 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 Eclipse C Corp., 23 FMSHRC 134, 134-36 (Feb. 2001) 
(remanding to judge where operator filed request for hearing 
in one proceeding and mistakenly believed that request applied
to other citations it received at the same time). 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.


                           Theodore F. Verheggen, Chairman
                              
                           Mary Lu Jordan, Commissioner
                              
                           Robert H. Beatty, Jr., Commissioner


Distribution

George J. Bora
B & B Crushing
P.O. 3500-181
Sister, OR 97759

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