.
OPPORTUNITY TRUCKING, INC.
September 11, 1995
WEVA 95-122


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W., 6TH FLOOR

                       WASHINGTON,  D.C.  20006


                          September 11, 1995

SECRETARY OF LABOR,                 :
  MINE SAFETY AND HEALTH            :
  ADMINISTRATION (MSHA)             :
                                    :
          v.                        :  Docket No. WEVA 95-122
                                    :
OPPORTUNITY TRUCKING, INC.          :
                                    :


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) ("Mine
Act" or "Act").  On August 2, 1995, Chief Administrative Law Judge Paul
Merlin issued an Order of Default to Opportunity Trucking, Inc.
("Opportunity") for failing to answer the proposal for assessment
of penalty filed by the Secretary of Labor on March 17, 1995, or the
judge's Order to Respondent to Show Cause issued on May 15, 1995.  The
judge assessed the civil penalties of $800 proposed by the Secretary.

     On September 1, 1995, the Commission received from
Opportunity a Motion to Set Aside Default.  Opportunity's counsel
states that Opportunity's owner and president believed he had filed his
answer with counsel for the Secretary.  The official file does
not contain a copy of such answer. On September 7, the Commission
received the Secretary's opposition to the motion, in which he asserts
that Opportunity failed to set forth grounds justifying relief
under Fed. R. Civ. P. 60(b).

     The judge's jurisdiction in this matter terminated when his
decision was issued on August 2, 1995.  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
receive a petition or direct review on its own motion within the
30-day period, the judge's decision becomes a final decision of the
Commission 40 days after its issuance.  30 U.S.C. § 823 (d)(1).

     The Commission has looked to Fed. R. Civ. P. 60(b) in
evaluating whether relief from a final Commission order is
appropriate.  See, e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782
(May 1991); 29 C.F.R. § 2700.1(b) (Federal Rules of Civil Procedure
apply "so far as practicable" in the absence of applicable
Commission rules).  Here, Opportunity's motion was received
within the 30-day time period.  We deem Opportunity's motion to 
be a  timely filed petition for discretionary review, which we
grant.  See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130
(September 1988).  Accordingly, the judge's order has not become a
final Commission decision, and we do not consider whether
Opportunity's request justifies relief under Fed. R. Civ. P. 60(b).

     On the basis of the present record, we are unable to
evaluate the merits of  Opportunity's position.  In the
interest of justice, we vacate the judge's default order and
remand this matter to the judge, who shall determine whether 
relief from default is warranted.  See Amber Coal Co.,
11 FMSHRC 131, 132-33 (February  1989).


                                   Mary Lu Jordan, Chairman

                                   Joyce A. Doyle, Commissioner

                                   Arlene Holen, Commissioner

                                   Marc Lincoln Marks, Commissioner