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

 
SOUTHERN MINERALS, INC., TRUE ENERGY COAL SALES, INC., FIRE CREEK, INC.
January 22, 1996
WEVA 92-15-R


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W.,  6TH FLOOR

                       WASHINGTON,  D.C.  20006


                           January 22, 1996

SOUTHERN MINERALS, INC.,            :
  TRUE ENERGY COAL SALES, INC.,     :
  and FIRE CREEK, INC.              :
                                    :
          v.                        :    Docket Nos. WEVA 92-15-R, etc.
                                    :
SECRETARY OF LABOR,                 :
  MINE SAFETY AND HEALTH            :
  ADMINISTRATION (MSHA)             :


                                ORDER

     On January 11, 1996, the Secretary of Labor filed with the
Commission a petition for discretionary review of Administrative Law
Judge David F. Barbour's December 13, 1995 Partial Decision dismissing
True Energy Coal Sales, Inc. ("True Energy") from the proceedings.

     The judge based the dismissal on his conclusion that True
Energy is not an operator, as defined in section 3(d) the Mine Act,
30 U.S.C. � 803(d).  In dismissing True Energy, the judge did not
expressly direct that his dismissal "be entered as a final decision,
nor did he find, pursuant to Rule 54(b)[1] [of the Federal Rules of
Civil Procedure,] that there is no just reason for delay."  Pontiki
Coal Corp.,17 FMSHRC 263, 264 (March 1995).

     Accordingly, we conclude that the order dismissing True Energy
is not final, and that therefore the Secretary's petition for
discretionary review is premature.  The Secretary's petition is
denied without prejudice.


                              Mary Lu Jordan, Chairman

                              Joyce A. Doyle, Commissioner

                              Arlene Holen, Commissioner

                              Marc Lincoln Marks, Commissioner

                              James C. Riley, Commissioner


**FOOTNOTES**

     [1]:    Rule  1(b)  of  the  Commission's  Procedural  Rules
provides that  the  Federal  Rules of Civil Procedure shall apply
"so far as practicable" in the  absence  of applicable Commission
rules.  29 C.F.R. � 2700.1(b).

     Rule 54(b) states in part:

       [W]hen  multiple  parties  are involved,  the
       court  may  direct  the  entry  of   a  final
       judgment as to one or more but fewer than all
       of the claims or parties only upon an express
       determination  that  there  is no just reason
       for delay and upon an express  direction  for
       the  entry  of  judgment.   In the absence of
       such determination and direction,  any  order
       or    other   form   of   decision,   however
       designated,  which  adjudicates  .  .  .  the
       rights  and liabilities of fewer than all the
       parties shall  not terminate the action as to
       any of the claims  or  parties, and the order
       or  other  form  of decision  is  subject  to
       revision  at any time  before  the  entry  of
       judgment adjudicating  .  .  . the rights and
       liabilities of all the parties.

Fed. R. Civ. P. 54(b).