<DOC>
[DOCID: f:yrk20011161.wais]

 
BAKER SLATE, INC.
August 22, 2001
YORK 2001-61-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                         August 22, 2001

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
          v.                    :    Docket No. YORK 2001-61-M
                                :
BAKER SLATE, INC.               :



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


                              ORDER


BY:  Jordan 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 May 
29, 2001, the Commission received from Baker Slate, Inc. ("Baker 
Slate") 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 this case, Baker Slate did not timely submit its 
request for a hearing to the Department of Labor's Mine Safety 
and Health Administration ("MSHA").  In its pro se motion, it 
states that it was advised by others in the slate industry to 
first contact Donald Corp of MSHA regarding the matter. Mot. 
It asserts that when it finally contacted him, after three 
weeks of attempting to do so, Corp said that he was no longer
handling the matter and advised Baker Slate to call the MSHA 
telephone number printed on the proposed assessment.  Id.  
Baker Slate contends that it called the MSHA number and was 
told to send a note and other documents to MSHA.  Id.  It 
asserts that it did not do so because it was concerned that the 
documents might become lost. Id. It further asserts that, after
a few days, it contacted an attorney who sent a letter to MSHA 
requesting a hearing on its behalf. Id.  MSHA responded to the 
letter on May 17, 2001, informing Baker Slate that its hearing 
request was untimely and that the order had become final on
April 21, 2001.  Baker Slate requests that the Commission 
reopen this matter.  Id.

     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 Baker Slate'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 Dean Heyward Addison, 19 FMSHRC 681, 682-83 (Apr. 1997)
(remanding to judge to determine whether asserted lack of
familiarity with Commission procedures met criteria for relief
under Rule 60(b)); Peabody Coal Co., 16 FMSHRC 2030, 2030-31
(Oct. 1994) (remanding to judge where failure to timely submit 
a hearing request was allegedly due to operator's confusion 
about Commission procedures).  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, Commissioner
                            

                          Robert H. Beatty, Jr., Commissioner


Chairman Verheggen and Commissioner Riley, concurring in result:

   We would grant the operator's request for relief here, because
the Secretary does not oppose the motion for relief, the operator
has offered a sufficient explanation for its failure to timely
respond, and no other circumstances exist that would render such
a grant problematic.  However, in order to avoid the effect of an
evenly divided decision, we join in remanding the case to allow
the judge to consider whether the operator has met the criteria
for relief under Rule 60(b).  See Pa. Elec. Co., 12 FMSHRC 1562,
1563-65 (Aug. 1990), aff'd on other grounds, 969 F.2d 1501 (3d
Cir. 1992) (providing that the effect of a split Commission
decision is to leave standing disposition from which appeal has
been sought).


                          Theodore F. Verheggen, Chairman
                          
                          James C. Riley, Commissioner


Distribution

John R. Winn, Esq.
13 North Street
Granville, NY 12832

W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard, Suite 400
Arlington, VA 22203

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