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

 
AUSTIN POWDER COMPANY
December 12, 1996
YORK 95-57-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730  K  STREET  NW,  6TH  FLOOR

                        WASHINGTON, D.C. 20006


                          December 12, 1996

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
                    v.          :
                                :
AUSTIN POWDER COMPANY           :
                                :    Docket Nos.  YORK 95-57-M
SECRETARY OF LABOR,             :                 YORK 96-13-M
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA)         :
                                :
                    v.          :
                                :
BRUCE EATON                     :


BEFORE:  Jordan, Chairman; Marks and Riley, Commissioners[1]


                               DECISION

BY THE COMMISSION:

This proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act" or "Act").  On December 10, 1996, the
Commission granted the joint petition for discretionary
review filed by Austin Powder Company and Bruce Eaton
with respect to the issue of whether the judge erred by
affirming the citation as one issued under section
104(d)(1) of the Act, 30 U.S.C. � 814(d)(1).

According to the attachments to the Secretary's proposed
penalty assessment filed March 24, 1995, and the
Secretary's Preliminary Statement of May 16, 1996,
Citation No. 4424405 was modified on December 6, 1994
to reflect that the Secretary was charging the
violation under section 104(a) rather than section
104(d)(1).  They indicate that the citation was further
modified on March 8, 1995 to delete the allegation of
unwarrantable failure (although the allegations of
negligence and the designation of significant and
substantial were retained).

The judge's decision makes no reference to these
modifications, while affirming the inspector's original
section 104(d)(1) determination. Therefore, we vacate
the judge's decision and remand for the judge to
determine the appropriate designation for the citation
and whether any penalty reassessment is warranted.



                              ________________________________
                              Mary Lu Jordan, Chairman

                              ________________________________
                              Marc Lincoln Marks, Commissioner

                              ________________________________
                              James C. Riley, Commissioner


**FOOTNOTES**

[1]:  Pursuant to section 113(c) of the Federal Mine Safety
and Health Act  of  1977, 30 U.S.C. � 823(c), this panel of three
Commissioners has been  designated  to exercise the powers of the
Commission.