[DOCID: f:mineral.wais] MINERAL TRANSPORT, INC. March 27, 1995 WEVA 94-391 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 1730 K STREET NW, 6TH FLOOR WASHINGTON, D.C. 20006 March 27, 1995 SECRETARY OF LABOR, : MINE SAFETY AND HEALTH : ADMINISTRATION (MSHA) : : v. : Docket No. WEVA 94-391 : MINERAL TRANSPORT, 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"). On February 21, 1995, Chief Administrative Law Judge Paul Merlin issued an Order of Default to Mineral Transport, Inc. ("Mineral") for failing to answer the proposal for assessment of civil penalty filed by the Secretary of Labor on October 7, 1994, or the judge's Order to Respondent to Show Cause of December 21, 1994. The judge assessed the civil penalties of $800 proposed by the Secretary. On March 8, 1995, the Commission received a letter from Keith Martin, Mineral's manager, in which he asserts that Mineral had sent its reply on January 5, 1995, to the Department of Labor's Office of the Solicitor in Arlington, Virginia. The judge's jurisdiction over this case terminated when his default order was issued on February 21, 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). We deem Mineral's letter to be a timely filed petition for discretionary review, which we grant. See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130 (September 1988). On the basis of the present record, we are unable to evaluate the merits of Mineral's position. In the interest of justice, we remand this matter to the judge, who shall determine whether default is warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June 1990). For the reasons set forth above, we vacate the judge's default order and remand this matter for further proceedings. Mary Lu Jordan, Chairman Joyce A. Doyle, Commissioner Arlene Holen, Commissioner Marc Lincoln Marks, Commissioner T A L L Y S H E E T Mineral Transport, Inc., Docket No. WEVA 94-391 Commissioner Date Vacate default order and remand to the judge (order to that effect attached). Other: Comments: Please return to Lynne Bowman