.
EARL BEGLEY, employed by MANALAPAN MINING CO., INC.
May 30, 2000
KENT 99-233


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 1730 K STREET N.W., 6TH FLOOR

                    WASHINGTON,  D.C.  20006


                           May 30, 2000

SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 :
          v.                     : Docket No. KENT 99-233
                                 : A.C. No. 15-16318-03656 M
EARL BEGLEY, employed by         :
  MANALAPAN MINING CO., INC.     :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
        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. (1994)
("Mine Act").  On May 25, 2000, the Commission received via
facsimile transmission a petition for discretionary review from
Earl Begley, employed by Manalapan Mining Co., Inc., challenging
a decision issued by Administrative Law Judge Avram Weisberger on
April 19, 2000.  In his decision, Judge Weisberger found that
Begley had violated section 317(c) of the Mine Act, 30 U.S.C. 
§ 877(c), by carrying smoking materials underground, and ordered
Begley to pay a civil penalty of $250.  22 FMSHRC 537, 540-43
(Apr. 2000) (ALJ).

     The judge's jurisdiction in this matter terminated when his
decision was issued on April 19, 2000.  29 C.F.R. § 2700.69(b).
Under the Mine Act and the Commission's procedural rules, 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).  If the Commission does not
direct review within 40 days of a decision's issuance, it becomes
a final decision of the Commission.  30 U.S.C. § 823(d)(1).
Begley's petition was received by the Commission on May 25, 2000,
six days past the 30-day deadline.  Under the Commission's
Procedural Rules, the filing of a petition for discretionary
review is effective upon receipt.  29 C.F.R. § 2700.70(a).

     The Commission has entertained late-filed petitions for
discretionary review where good cause has been shown.  See, e.g.,
DeAtley Co., 18 FMSHRC 491, 492 (Apr. 1996) (excusing late filing
of petition for discretionary review where operator's predecessor
failed to inform operator of unconsummated settlement agreement);
McCoy v. Crescent Coal Co., 2 FMSHRC 1202, 1204 (June 1980)
(vacating judge's order of dismissal and finding good cause where
petitioner was pro se during part of the proceedings,
subsequently-retained counsel obtained judge's decision only 10
days prior to deadline for petition, and petition was mailed on
30th day).  In circumstances in which a hearing on the merits has
taken place, the Commission has rejected a late-filed petition
for discretionary review where the petitioner has offered no
explanation for the late filing.  See Dykhoff v. U.S. Borax Inc.,
21 FMSHRC 976, 977-78 (Sept. 1999); Duval Corp. v. Donovan, 650
F.2d 1051, 1054 (9th Cir. 1981); Sunbeam Coal Corp., 2 FMSHRC 775
(Mar. 1980).  But see Dykhoff v. U.S. Borax, Inc., 21 FMSHRC
1279, 1280-81 (Dec. 1999) (reopening proceedings where pro se
miner filed motion for reconsideration explaining he mistakenly
believed he had 40 days to file his petition for discretionary
review).

     Here, Begley, who is represented by counsel, has availed
himself of the opportunity to have his case heard by a judge. He
also offers no explanation for his failure to timely submit a
petition for discretionary review.  Thus, Begley has failed to
show "good cause," excusing his late filing. Accordingly, we
reject this petition as untimely.  See Duval Corp., 650 F.2d at
1054 (upholding finding of no good cause where counsel obtained
judge's decision 24 days prior to deadline for filing petition,
and petition was mailed within 30 days of judge's decision but
received by the Commission one day after filing deadline);
Sunbeam, 2 FMSHRC at 775 n.1 (dismissing petition as untimely
where good cause for late filing was neither claimed nor shown 
in the petition).

     For the foregoing reasons, Begley's petition for
discretionary review is denied as untimely filed.[1]

                                       
                              Mary Lu Jordan, Chairman
                              
                              James C. Riley, Commissioner
                              
                              Theodore F. Verheggen, Commissioner
                               
                              Robert H. Beatty, Jr., Commissioner


Distribution

Fred Owens, Jr.
Attorney at Law
P.O. Box 352
Harlan, KY 40831

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

Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041


**FOOTNOTES**

     [1] Commissioner Marks would grant Begley's petition.