<DOC>
[DOCID: f:yor200167.wais]

 
D.A.S. SAND AND GRAVEL, INC.
September 27, 2001
YORK 2001-67-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                       September 27, 2001

SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 :
          v.                     : Docket No. YORK 2001-67-M
                                 : A.C. No. 30-03254-05508
D.A.S. SAND AND GRAVEL, INC.     :


BEFORE: Verheggen, Chairman; Jordan, Riley, 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 29, 2001, the Commission received from D.A.S. Sand and
Gravel, Inc. ("D.A.S.") 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).

     In its request, D.A.S. asserts that it never received a copy
of the proposed penalty assessment.  Mot.  D.A.S. states that it
first received notice of the proposed penalty assessment on June
11, 2001, when it received a letter from the Department of
Labor's Civil Penalty Compliance Office, stating that D.A.S. was
delinquent in the payment of the proposed penalties.  Id.  It
further contends that it was unable to match the number assigned
to the proposed penalty assessment to any of the citations it had
received.  Id.  D.A.S. requests an opportunity for a hearing on
the penalty assessment.  Id.  D.A.S. attached to its request a
copy of the correspondence from MSHA dated June 6, 2001.

     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," Fed.
R. Civ. P. 60(b).  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, we are unable to
evaluate the merits of D.A.S.'s position.  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 John Richards Constr., 22 FMSHRC 1054, 1055 (Sept. 2000)
(remanding to judge to determine whether relief from final order
was appropriate where operator alleged that it never received
copy of the proposed penalty assessment); Bauman Landscape, Inc.,
22 FMSHRC 289, 290 (Mar. 2000) (same).  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

                          James C. Riley, Commissioner

                          Robert H. Beatty, Jr., Commissioner


Distribution

David Scheer, President
D.A.S. Sand & Gravel Inc.
1444 Hydeville Road
Newark, NY 14515

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