<DOC>
[DOCID: f:yr200252.wais]

 
CRANESVILLE AGGREGATES COMPANY, INC.
YORK 2002-52-M
July 22, 2002


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006



                          July 22, 2002


SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                : Docket No. YORK 2002-52-M
          v.                    : A.C. No. 30-00964-05527
                                :
CRANESVILLE AGGREGATES          :
  COMPANY, INC.                 :



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 May 28, 2002, the Commission received from 
Cranesville Aggregates Company ("Cranesville") 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).

     Cranesville's request was submitted by Joseph Sagarese,
the company's safety director. Mot. He asserts that Cranesville
failed  to  file  a  hearing  request  because,  pursuant  to
conversations with officials from the Department of Labor's 
Mine Safety and Health Administration ("MSHA"), it was awaiting 
the results of an MSHA investigation. Id. Sagarese claims that
he believed that Cranesville had been granted an extension of 
time in which to contest the related penalties. Id. He further
states that the company wishes to contest two penalty issues
relating to the penalty proceedings but he does not specify 
which of the 19 proposed penalties listed in the proposed 
penalty  assessment  the  company  wants  to  contest.  Id. 
Cranesville is apparently proceeding pro se.  Attached to its 
request are copies  of  MSHA's  delinquency  letter  and  the 
proposed penalty assessment. Id., Attachs.

     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, we are unable to
evaluate the merits of Cranesville's position. In the interest
of justice, we remand the matter for assignment to a judge to
determine whether Cranesville has met the criteria for relief
under Rule 60(b).  See Powell Mt. Coal Co., Inc., 23 FMSHRC 
144, 144-47 (Feb. 2001) (remanding to judge where operator 
alleged it failed to timely file green card based on erroneous 
information from MSHA officials); Dean Heyward Addison, 19 
FMSHRC 681, 681-83 (Apr. 1997) (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

                          Robert H. Beatty, Jr., Commissioner
			   

Distribution

Joseph A. Sagarese, Safety Director
Cranesville Aggregates Co., Inc.
427 Sacandaga Road
Scotia, NY 12302

W. Christian Schumann, Esq.
Office of the Solicitor
U. S. Department of Labor
1100 Wilson Blvd., 22nd Floor West
Arlington, VA 22209-3939

Myra James
Civil Penalty Compliance, MSHA
1100 Wilson Blvd., 25th Floor
Arlington, VA 22209-3939

Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C.  20006