<DOC>
[DOCID: f:wst200076.wais]

 
OGDEN CONSTRUCTORS, INC.
January 12, 2000
WEST 2000-76-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                        January 12, 2000

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
          v.                    : Docket No. WEST 2000-76-M
                                : A.C. No. 42-02242-05501
OGDEN CONSTRUCTORS, INC.        :



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


                              ORDER

BY: Jordan, Chairman; Riley, 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 December 10, 1999, the Commission received from 
Ogden Constructors, Inc. ("Ogden") 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 Ogden.

     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, Ogden asserts that its failure to file a
hearing request to contest the proposed penalty for an alleged
violation of a mandatory standard was due to its mistaken 
belief that the cited crushing plant was not subject to the j
urisdiction of the Department of Labor's Mine Safety and Health
Administration ("MSHA").  Mot. at. 1.  It explained that its Utah
office closed earlier in the year and that it was led to believe
by project sponsors that the new location and "purpose" of the
crushing plant would place it under the jurisdiction of the
Occupational Safety and Health Administration, and the Army Corps
of Engineers, rather than MSHA.  Id.  Ogden maintains that, after
consulting with MSHA, it subsequently determined that the plant
was subject to MSHA jurisdiction, but that by then the time for
contesting the citation had expired.  Id.  It further states that
personnel from the Utah office were relocated throughout the
country, making it difficult to route correspondence to the
proper person.  Id.  Ogden submits that the person assigned with
the overall responsibility for health and safety is no longer
employed by Ogden, and that it has not been successful in
locating the original proposed assessment.  Id. at 2.
Accordingly, it requests that the Commission reopen the final
order.  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, e.g., Jim Walters Resources, 
Inc., 15 FMSHRC 782, 786-89 (May 1993); Rocky Hollow Coal Co., 
Inc., 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
Services, 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, mistake, or excusable neglect.  See National Lime 
& Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal Co.,
19 FMSHRC 1613, 1614-15 (Oct. 1997).

     On the basis of the present record, we are unable to
evaluate the merits of Ogden's position.[1]  In the interest of
justice, we remand the matter for assignment to a judge to
determine whether Ogden has met the criteria for relief under
Rule 60(b).  See M&Y Services, Inc., 19 FMSHRC 670, 671-72 (April
1997) (remanding when proposed penalty became final order because
operator was unfamiliar with Commission procedure).  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
                              
                              Robert H. Beatty, Commissioner


Distribution

Conrad Weidenkeller
Regional Safety Manager
Ogden Constructors
2725 Jefferson St., Suite 12
Carlsbad, CA 92008

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


**FOOTNOTES**

     [1] In view of the fact that the Secretary does not oppose
Ogden's motion to reopen this matter for a hearing on the merits,
Commissioners Marks and Verheggen conclude that the motion should
be granted.