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

 
CONSTRUCTION MATERIALS CORPORATION
April 26, 1995
YORK 94-73-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W., 6TH FLOOR

                       WASHINGTON,  D.C.  20006


                            April 26, 1995

SECRETARY OF LABOR,                 :
  MINE SAFETY AND HEALTH            :
  ADMINISTRATION (MSHA)             :
                                    :
          v.                        :  Docket No. YORK 94-73-M
                                    :
CONSTRUCTION MATERIALS CORPORATION  : 


BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners


                                  ORDER

BY THE COMMISSION:

     This civil penalty proceeding arises under the  Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §  801  et  seq. (1988). On January 5,
1995,  Chief  Administrative  Law  Judge Paul Merlin issued  an  Order 
of Default to Construction  Materials  Corporation ("Construction") for
its failure to answer the Secretary of Labor's proposal for assessment
of civil penalty or the judge's October 24, 1994,  Order  to Respondent
to  Show  Cause.   The judge assessed civil penalties of $645.

     In  an April 7, 1995, letter to the Civil Penalty Compliance Office
of the Department of Labor's  Mine  Safety  and  Health  Administration
("MSHA"), received  by the Commission on April 17, Construction  states
that it had  responded  to  MSHA's  enforcement actions in two letters
addressed  to Judge  Merlin,  dated November 20, 1994, and January 10,
1995. In the November 20 letter, Construction requested reconsideration
of the proposed penalty. In the January 10 letter, Construction stated 
that it had  timely  responded to the show cause order by its November 
20 letter, a  copy  of  which it attached. The Commission received the 
January 10 letter, and its attachment, on  January 17.

     The judge's jurisdiction over this case terminated when his default
order  was  issued on January 5, 1995.   29 C.F.R. § 2700.69(b). Relief
from a judge's  decision  may  be  sought  by  filing  a  petition  for  
discretionary review  within  30  days  of  its  issuance.  30  U.S.C. 
§ 823(d)(2);  29  C.F.R.  § 2700.70(a).  Due  to clerical oversight, the
Commission did not act  on  the January 10 letter within the statutory 
period  for  considering  requests  for  discretionary   review.  The 
judge's default order became a final decision of the Commission 40 days
after  its issuance.  30 U.S.C. § 823(d)(1).

     Relief  from  a  final  Commission  judgment or order is available
to a party under Fed. R. Civ. P. 60(b)(1)  in  circumstances  such  as 
mistake,   inadvertence, or excusable neglect.  29 C.F.R. § 2700.1(b)
(Federal Rules of Civil Procedure apply  "so  far as practicable"   in
the  absence  of applicable Commission rules); see, e.g., Lloyd Logging,
Inc., 13 FMSHRC 781, 782 (May 1991). On the basis of the present record,
we are unable to evaluate  the merits of  Construction's  position.  In
the interests of justice, we reopen the proceeding, treat Construction's
April 7 letter  as  a  late-filed  petition  for discretionary review 
requesting  relief from  a final Commission  decision,  and excuse its
late filing. See, e.g., Kelley  Trucking  Co., 8 FMSHRC 1867, 1868-69
(December 1986). We  remand the matter to the judge, who shall determine 
whether  final  relief  from default  is warranted.  See Hickory Coal 
Co.,  12 FMSHRC 1201, 1202 (June 1990).


                                   Mary Lu Jordan, Chairman


                                   Joyce A. Doyle, Commissioner
                                                                 

                                   Arlene Holen, Commissioner


                                   Marc Lincoln Marks, Commissioner