.
CLOSE CONSTRUCTION COMPANY, INC.
April 17, 2001
CENT 2001-89-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                         April 17, 2001

SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 :
          v.                     : Docket No. CENT 2001-89-M
                                 : A.C. No. 32-00740-05510
CLOSE CONSTRUCTION COMPANY, INC. :



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

                              ORDER

BY: Jordan, Chairman; Beatty, Commissioner

     This matter arises under the Federal Mine Safety and 
Health Act of 1977, 30 U.S.C. � 801 et seq. (1994) ("Mine 
Act").  On January 25, 2001, the Commission received from 
Close Construction Company ("Close") 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 Close.

     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 a letter submitted by the president of Close 
Construction, Greg Close, Close contends that it previously 
sent a letter to the Department of Labor's Mine Safety and 
Health Administration ("MSHA") contesting the proposed penalty 
assessment it currently seeks to reopen, but that the letter 
contained a typing error. Mot. Close asserts that, as a result 
of this error, it had indicated an incorrect assessment control
number for the proposed assessment that it intended to contest, 
and that the correct number is 32-00740-05510. Id. It explains 
that it did not realize its error until it received a notice 
from MSHA stating that Close had failed to pay the penalty.  
Id.  Close requests that the Commission grant its request for
relief and reopen the proceeding.  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 Close'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 Drummond Co., 17 FMSHRC 883, 883-84 (June 1995) (remanding 
to a judge where operator mistakenly circled citations it did 
not wish to contest, rather than circling the citations it 
sought to contest).  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
                           
                           Robert H. Beatty, Jr., Commissioner


Commissioners Riley and Verheggen, concurring in result:

     We would grant the operator's request for relief here,
because the Secretary does not oppose and the operator has 
offered a sufficient explanation for its failure to timely 
respond. 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).


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


Distribution

Greg J. Close, President
Close Construction Co., Inc.
Box 96
Milton, ND 58260

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

Tamara Nelson
Office of Civil Penalty Compliance, MSHA
U.S. Department of Labor
4015 Wilson Blvd., Suite 900
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