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[DOCID: f:wst2000470.wais]

 
JOHN RICHARDS CONSTRUCTION
September 11, 2000
WEST 2000-470-M


          FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET NW, 6TH FLOOR
                      WASHINGTON, D.C.  20006


                         September 11, 2000

SECRETARY OF LABOR,                :
  MINE SAFETY AND HEALTH           :
  ADMINISTRATION (MSHA)            :
                                   :
          v.                       :  Docket No. WEST 2000-470-M
                                   :  A.C. No. 24-02070-05504
JOHN RICHARDS CONSTRUCTION         :


BEFORE:  Jordan, Chairman; 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 
June 30, 2000, the Commission received from John Richards Con-
struction ("Richards") 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 Secre-
tary of Labor does not oppose the motion for relief filed by
Richards.

     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 his request, Richards asserts that he never received a
copy of the proposed assessment.  Mot. at 1-2.  Richards states
that he was not aware of the proposed penalty and would have
appealed it along with all other penalties he has appealed.  Id.
at 2.  Richards requests an opportunity for a hearing on this
penalty assessment.  Id.

     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, eg., Kenamerican Resources, Inc., 20 FMSHRC
199, 201 (March 1998); Jim Walter Resources, Inc., 15 FMSHRC 782,
786-89 (May 1993).  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 National
Lime & Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); 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).

     On the basis of the present record, we are unable to
evaluate the merits of Richards' position.  While Richards claims
that he did not receive the proposed penalty assessment, the
reasons for, and circumstances surrounding that alleged non-
receipt are not clear from the record.  In the interest of
justice, we remand the matter for assignment to a judge to
determine whether Richards has met the criteria for relief under
Rule 60(b).  See, e.g., Bauman Landscape, Inc., 22 FMSHRC 289,
290 (Mar. 2000) (remanding where operator claimed it did not
receive penalty assessment and that the return receipt was not
signed by him); Warrior Investment Co., Inc., 21 FMSHRC 971, 973
(Sept. 1999) (remanding where operator did not provide any
explanation for alleged non-receipt of proposed penalty
assessment); Harvey Trucking, 21 FMSHRC 567 (June 1999)
(remanding to a judge where the operator did not receive the
proposed penalty assessment because delivery was unsuccessful for
no known reason).  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

                              James C. Riley, Commissioner

                              Theodore F. Verheggen, Commissioner

                              Robert H. Beatty, Jr., Commissioner


Distribution

John Richards, John Richards Construction, Box 316, Seeley Lake, MT 59868

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