.
RICHARD E. SEIFFERT RESOURCES
WEST 2000-201-M
April 16, 2001

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268

                         April 16, 2001

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        : Docket No. WEST 2000-201-M
               Petitioner       : A.C. No. 35-03489-05501
                                :
          v.                    : Docket No. WEST 2000-202-M
                                : A.C. No. 35-03489-05502
RICHARD E. SEIFFERT RESOURCES,  :
               Respondent       : Bailey Quarry

                             DECISION

Appearances: Paul  A.  Belanger, Conference and Litigation
             Representative,   Mine   Safety   and  Health
             Administration,  Vacaville,  California   for
             Petitioner;
             Marcel Roy Bendshadler, Portland, Oregon, for
             Respondent.

Before: Judge Manning

     These  cases  are  before  me on petitions for assessment of
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration  ("MSHA"),  against Richard
E.   Seiffert  Resources  ("Seiffert  Resources"),  pursuant   to
sections 105 and 110 of the Federal Mine Safety and Health Act of
1977,  30  U.S.C.  815 and 820 (the "Mine Act").  A hearing was
held in Portland, Oregon.

           I.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

     A.   Preliminary Issues

     Seiffert  Resources operates the Bailey Quarry in Washington
County, Oregon.   On  November  9-10,  1999, MSHA Inspector David
Brown inspected the Bailey Quarry.  MSHA  was  not  aware  of the
quarry  until it received a hazard complaint from an employee  at
the  quarry.    Inspector   Brown  was  sent  to  the  quarry  to
investigate the complaint.  Inspector  Brown  determined that the
quarry  was  subject  to  MSHA jurisdiction and he  conducted  an
investigation.  He also inspected  the  quarry  for violations of
the Secretary's safety standards.

     These cases involve 22 citations issued under section 104(a)
of  the  Mine  Act.   Two  of the citations allege that  Seiffert
Resources failed to notify MSHA  that  it  had opened the quarry.
These  citations  allege  violations  of 30 C.F.R.    41.11  and
56.1000.  Inspector Brown determined that the quarry had been in
operation for about three months.  (Tr.  38).  Seiffert Resources
contested one of these citations in WEST 2000-165-RM.

     From  the  outset of these proceedings,  Seiffert  Resources
took the position that MSHA does not have jurisdiction to inspect
the  quarry.  In the  related  contest  proceeding,  the  parties
briefed  the  jurisdiction  issue.   The  parties agreed that the
fundamental facts surrounding the jurisdiction  issue  are not in
dispute   and   that   this   issue   was   amenable  to  written
presentations.  In a decision issued on October  26, 2000, I held
that the Secretary has jurisdiction under the Mine Act to conduct
warrantless inspections of the Bailey Quarry.  Seiffert Resources
did not appeal that decision.  My decision in WEST 2000-165-RM is
binding in this case.[1]

     Seiffert Resources was represented by Marcel Roy Bendshadler
at  the hearing.  He is not an attorney, but he calls  himself  a
"Constitutional  Counselor."   I  permitted  Mr.  Bendshadler  to
represent  Seiffert  Resources  under  29  C.F.R.  2700.3(b)(4).
Seiffert  Resources raised a number of jurisdictional  issues  at
the hearing  in  these  cases.   Most  of  these  arguments  were
previously  raised  and are rejected for the reasons set forth in
my previous decision.  It argues, for example, that the quarry is
located in the "Republic  of  Oregon"  and that the United States
government  does  not  have  jurisdiction over  private  property
within Oregon.  This argument and others like it are rejected.

     Seiffert Resources also raises a number of other issues.  It
argues that the material that  it  digs  from  the earth is not a
mineral because it has no intrinsic value.  It maintains  that it
digs  up worthless rock and crushes it for use by customers.   It
argues  that ordinary rock is not a mineral, as that term is used
in section 3(h)(1) of the Mine Act.

     For  purposes  of  the  Mine Act, the term "mineral" is very
broadly  defined.   The term "mineral"  is  defined  as  "any  of
various naturally occurring homogeneous or apparently homogeneous
... solid substances  (as  ore ... sand, gravel ...) obtained for
man's  use  usually  from  the  ground."    Webster's  Third  New
International  Dictionary 1437 (1993).  The term  may  have  many
meanings  depending   on  the  context,  and  generally  includes
anything dug out of a mine or quarry, such as stone.  Indeed, the
term "rock" is defined  as "an aggregate of one or more minerals"
and  the  term "stone" is defined  as  "a  mineral  or  group  of
consolidated  minerals  either in mass or in a fragment of pebble
or larger size."  Dictionary  of  Mining,  Mineral,  and  Related
Terms  464, 540 (American Geological  Institute,  2d ed. 1997). I
find that stone, rock, gravel, and sand are minerals as that term
is used in the Mine Act.

     Seiffert  Resources  suggested  that  all  of  the citations
should be vacated because no employees were injured as  a  result
of   any  of  the  cited  conditions.   It argues that because no
employee had been injured, Inspector Brown  should  have  honored
the  posted "No Trespassing" signs.  The Secretary's jurisdiction
to conduct  warrantless  inspections of quarries is not dependent
on the presence of an injury.   In  addition,  the Commission and
the courts have uniformly held that mine operators  are  strictly
liable for violations of safety and health standards.  See,  e.g.
Asarco  v.  FMSHRC,  868  F.2d  1195 (10th Cir. 1989).  "[W]hen a
violation of a mandatory safety standard  occurs  in  a mine, the
operator  is  automatically  assessed  a civil penalty."  Id.  at
1197.  The Secretary is not required to  prove  that  a violation
creates a safety hazard, unless the safety standard so provides.

          The [Mine Act] imposes no general requirement
          that a violation of MSHA regulations be found
          to  create  a  safety  hazard  in order for a
          valid   citation  to  issue.   If  conditions
          existed  which   violated   the  regulations,
          citations [are] proper.

Allied   Products,   Inc.,  666  F.2d  890,  892-93   (5th   Cir.
1982)(footnote omitted).   The negligence of the operator and the
degree of the hazard created  by  the  violation  are  taken into
consideration in determining the amount of the penalty.  Thus, if
a  safety  standard  is  violated, a penalty is assessed even  if
there was no injury and the  chance  of  an  injury  was not very
great.

     Seiffert  Resources also argues that Title 30 of the  United
States Code does  not have the force of positive law.  (Tr. 166).
It contends that since  Title  30  is  not  positive law, it only
applies within the United States and it was not  established that
the quarry is "within the United States."  (Tr. 57).   As  stated
above,  Seiffert Resources' arguments concerning the jurisdiction
of the United  States government are rejected.  Although Title 30
is not positive  law,  it  is  "prima facie evidence of the laws"
contained within it.  (Preface to  the  United  States Code, 1994
Edition).  The Mine Act itself is positive law and  I have relied
upon the Mine Act not Title 30 in rendering my decision  in these
cases.   Any  references  to Title 30 in this decision are merely
for the convenience of the reader.

     Seiffert Resources also  argues  that  the law of contracts,
the Uniform Commercial Code, and the law of secured  transactions
applies  in  these  cases.   At  the  hearing, Seiffert Resources
repeatedly asked me whether it is being "addressed" as a creditor
or a debtor in these cases. (Tr.  5-20,  160). It also  maintains  
that the concept of procuration applies.  (Tr.  16-17).  The term 
"procuration" simply refers to the act of appointing  another  as 
one's attorney-in-fact  or  agent.  Seiffert  Resources  seems to 
believe that it has been appointed as an agent of  MSHA  and  the 
Commission. It states that it has "put forth paperwork  [to] tell 
the people responding that  we  [Seiffert  Resources]  are  going 
to do the work for you [the judge] since you seem not to be  able  
to do your job on your own...."  (Tr. 17; Ex. R-1). This argument 
is without merit. As I stated at the hearing, this proceeding has 
nothing to do with the law of contracts  or  the  creditor-debtor 
relationship. It is a regulatory proceeding  under  the  Mine Act
which grants MSHA jurisdiction under Article I, Section 8, Clause 
3 of the United States Constitution.

     Seiffert  Resources  offered  no  testimony  concerning  the
individual  citations  at  the hearing.  Mr. Richard E.  Seiffert
testified that he is the operator of the Bailey Quarry, that MSHA
does  not have jurisdiction over  his  quarry,  and  that  he  is
declaring  "diplomatic  immunity."  (Tr. 163-64).  When asked for
the basis of his declaration  of  diplomatic  immunity  he simply
stated "that's for a matter that's going to continue later."  Id.
This  argument  is without merit.  The "Republic of Oregon"  does
not exist; Oregon  is  one  of the several states over which MSHA
has jurisdiction under the Mine Act.

     In its opening statement, Seiffert Resources stated that Mr.
Seiffert "would simply like to  continue  peacefully  going about
his existence, harming no other, as he expects others not to harm
him."  (Tr. 23).  The purpose of the MSHA inspection was  to help
Mr.  Seiffert  prevent  accidents.  One of his employees believed
that Mr. Seiffert was not  doing enough to provide a safe working
environment  so he called MSHA  for  help.   Numerous  fatal  and
serious accidents  have  occurred  at  small  quarries  like  Mr.
Seiffert's.  Thus, MSHA inspected the quarry to help Mr. Seiffert
make sure that he, in fact, does not harm others.

      B.  Discussion of the Citations

     At the outset of the inspection, Mr. Seiffert told Inspector
Brown  that  he  thought  he  had  obtained  all  of  the permits
necessary  to  open  the  quarry.   (Tr.  36).  Mr. Seiffert  was
unaware of MSHA's existence or the requirements  contained in the
Secretary's safety standards.  He was very cooperative during the
inspection.   (Tr. 50).  At the hearing, the Secretary  presented
testimony with  respect to each citation at issue in these cases.
Seiffert Resources  cross-examined the MSHA inspector but did not
present any evidence as to the merits of the citations.

     I affirmed Citation No. 7973945 in my decision in WEST 2000-
165-RM.[2]  I affirm  Inspector  Brown's  determination  that the
violation   was  not  serious,  was  not  of  a  significant  and
substantial nature  ("S&S"),  and that the negligence of Seiffert
Resources  was  low.  (Tr. 41).   I  assess  a  penalty  of  $20.
Citation No. 7973947  alleges that Seiffert Resources violated 30
C.F.R.    56.1000 by failing  to  notify  MSHA's  Metal/Nonmetal
District Office that he was commencing operations.  The Secretary
established a violation of this standard.  (Tr. 52-55).  I affirm
the inspector's determination that the violation was not serious,
not S&S, and  that the negligence was low.  I assess a penalty of
$20.

     Inspector  Brown  issued Citation No. 7973946 in response to
the hazard complaint.  This  citation  alleges  that  there was a
section  of  loose material that was about 15 feet high,  8  feet
wide, and 4 feet  thick  in a high wall at the quarry.  It states
that one of the fractures  in  the  rock  was  about eight inches
wide.  The citation further states that the fractured section was
directly above the loading area in a narrow slot  that  was about
25 feet wide and several hundred feet long.  The citation alleges
a  violation  of  section  56.3200,  which  requires  that ground
conditions  that  create  a  hazard  to persons be taken down  or
supported.

     Inspector Brown testified that if  this  condition  were not
corrected  the loose material could have fallen in an area  where
people  are  required  to  work.   (Tr.  43).   He  reached  this
conclusion because  the  area  was  cracked  on  both sides.  The
vibration of the equipment working in the area could have brought
the material down.  Id.  He also testified that rain  would  tend
to wash out the fine material making the high wall more likely to
fall.   (Tr. 44).  The inspector stated that the narrow work area
increased the hazard.

     No equipment  or  employees  were working in the area at the
time he issued his citation.  He observed  fresh  tracks  in  the
slot  between the two high walls that appeared to be from a track
hoe and  a  haul  truck.   (Tr.  47-48).  He was also told by Mr.
Seiffert  that they excavated material  from  within  this  slot.
(Tr. 48).   There  were  no  barricades  preventing  anyone  from
entering the area.  The inspector did not know when the cracks in
the  high  wall developed.  (Tr. 66).  Inspector Brown determined
that the violation  was  serious and S&S, and that the operator's
negligence  was  moderate.   The  inspector  testified  that  Mr.
Seiffert immediately abated the condition.

     Seiffert Resources  believes  that  this  citation should be
vacated  because the inspector did not know how long  the  cracks
had  been  present  nor  did  he  have  sufficient  expertise  to
determine whether  the high wall presented a hazard to employees.
(Tr. 166).  I find that  the  Secretary  established a violation.
As a result of his MSHA training and his prior experience working
in  quarries,  Inspector  Brown  had  sufficient   expertise   to
determine  that  the  high wall presented a hazard.  In addition,
Seiffert Resources did not offer any evidence to the contrary.  I
credit the inspector's testimony with respect to this citation.

     I also find that the violation was S&S.  An S&S violation is
described in section 104(d)(1) of the Mine Act as a violation "of
such nature as could significantly  and  substantially contribute
to the cause and effect of a ... mine safety  or  health hazard."
A  violation  is  properly  designated  S&S  "if  based upon  the
particular  facts  surrounding  that  violation, there  exists  a
reasonable likelihood that the hazard contributed  to will result
in  an  injury  or  illness  of  a  reasonably  serious  nature."
National  Gypsum Co., 3 FMSHRC 822, 825 (April 1981).  In Mathies
Coal Co., 6  FMSHRC  1, 3-4 (Jan. 1984), the Commission set out a
four-part  test for analyzing  S&S  issues.   Evaluation  of  the
criteria is  made  assuming "continued normal mining operations."
U.S. Steel Mining Co.,  6  FMSHRC  1573,  1574  (July 1984).  The
question of whether a particular violation is S&S  must  be based
on  the  facts  surrounding  the violation.  Texasgulf, Inc.,  10
FMSHRC 498 (April 1988).

     The Secretary must establish:   (1) the underlying violation
of the safety standard; (2)  a  discrete safety hazard, a measure 
of danger to safety contributed to by the violation; (3) a 
reasonable likelihood that the hazard contributed  to will result 
in an injury; and (4) a reasonable likelihood  that the injury in  
question  will be of a reasonably serious nature.  The  Secretary 
is not required to show that it is more probable than not that an 
injury will result from the violation.  U.S. Steel Mining Co., 18 
FMSHRC 862, 865  (June 1996).

     The fact that employees worked in a narrow 25-foot wide area
between two high walls increased the chance that someone could be
injured.  The vibrations from the machinery and the rainy weather
also increased the likelihood of an accident in which an employee
could  be  seriously  injured.   I  find  that  the violation was
serious  and  that  the  operator's  negligence  was  moderate. I
assess a civil penalty of $113.

     Citation  No.7973948  alleges that  the  electrical  trailer
contained several electrical  control boxes that were open in the
back,  in  violation  of  section  56.12032.    Inspector   Brown
testified  that  480-volt  conductors entered these control boxes
through these open backs.  He  determined  that the violation was
not S&S because the trailer was dry and well  kept.   He believed
that  an injury was unlikely.  (Tr. 74, 76).  He determined  that
the operator's negligence was moderate.

     I  find  that  the  Secretary  established a violation.  The
openings in the backs of the starter  boxes created a hazard that
moisture, dirt, or other foreign objects  could  create  a  short
circuit.   The  inspector  agreed  that the risk was  not high. I
find that the violation was not serious  and  that the negligence
of Seiffert Resources was moderate.  The $55 penalty  proposed by
the Secretary is appropriate.

     Citation No. 7973949 alleges that the V-belt drives  on  the
generator  were not guarded, in violation of section 56.14107(a).
Employees could  become  entangled  in  the  pinch  points.   The
citation states that the drives are adjacent to the start-up area
for  the generator.  Seiffert Resources does not dispute that the
pinch   points  were  not  guarded.   (Tr.  80).   The  inspector
determined that the violation was not S&S and that the negligence
was moderate.

     Seiffert  Resources maintains that, because the manufacturer
of the generator  did  not  provide guards for the V-belt drives,
Seiffert Resources should not  be  charged  with a violation.  It
believes if anyone is charged with a violation  of  this standard
it should be the manufacturer of the equipment.  (Tr.  82-84).  I
find    that    the   Secretary   established   this   violation.
Manufacturers often  do  not  provide  all  the  guards  that are
required  by  MSHA.   It  is  the  responsibility  of  the quarry
operator  to  make  sure  that  all pinch points  are  guarded. I
affirm this citation in all respects  and  I  assess a penalty of
$55.

     Citation  No.  7973950  alleges  that  the  110-volt  wiring
between  two fluorescent light fixtures in the generator  trailer
contained  a  splice  that was not insulated to a degree at least
equal to the original and  sealed to exclude moisture.  (Tr. 85).
The  wires  were  attached using  a  twist  on  cap  without  any
additional protection.   The  citation  alleges  a  violation  of
section 56.12013(b).  The inspector determined that the violation
was not S&S and that the negligence was moderate.

     Seiffert  Resources  stated that the wiring was in the cited
condition when the generator  trailer  was  purchased.  It argues
that the safety standard is too vague to be enforceable.   I find
that the Secretary established a violation.   The  splice must be
insulated to the same degree as the original wiring or a junction
box  must  be  installed.   (Tr.  87).   The  fact  that Seiffert
Resources purchased the trailer in this condition does not negate
the  violation.   I  affirm this citation in all respects  and  I
assess a penalty of $55.

     Citation No. 7973951  alleges  that  the 480-volt power cord
for a conveyor had pulled away from the fitting  on  the  control
box.   It  states  that  inner  conductors in the power cord were
exposed.   (Tr.  9192).   The citation  alleges  a  violation  of
section 56.12008.  The inspector  determined  that  the violation
was not S&S and that the negligence was moderate.

     Seiffert  Resources  questions whether the conveyor  was  in
operation  at the time of the  inspection.   Through  its  cross-
examination,  it  infers  that  the  conveyor may have been under
construction at the time of the inspection.  (Tr. 94).  Inspector
Brown credibly testified that the conditions  he  observed showed
that  the  conveyor  was  in  an  operable  condition.   Id.   He
testified that the conveyor was part of the crushing circuit that
had  been  operating,  at  least for testing purposes.  (Tr. 99).
Although  the  crusher  may not  have  been  in  production,  the
inspector  believed  that  it   had  been  run.   (Tr.  101)  The
electrical circuit for the conveyor was not energized at the time
of  the  inspection  (Tr. 102).  The  citation  states  that  the
"conveyor was not in operation  due to repairs to that portion of
the  plant  and  power  at  the  main switch  was  in  the  `off'
position."  Seiffert Resources did  not  offer  any  evidence  to
contradict Inspector Brown's testimony that the conveyor had been
used.   There was no testimony that Seiffert Resources was in the
process of  correcting  the  cited  condition.   I  find that the
Secretary established a violation because the power cord  was not
properly  seated  in the fitting.  I affirm this citation in  all
respects and I assess a penalty of $55.

     Citation No. 7973952  alleges  that  the  self-cleaning tail
pulley  for  the  rear conveyor was not provided with  guards  to
protect employees from  contacting  the  rotating  tail fins.  It
states  that  the  pulley  was about 60 inches above the  ground.
There was  spillage  around  the  tail  pulley.  (Tr.  104).  The  
citation  alleges   a   violation  of  section  56.14107(a).  The 
inspector determined that the violation was not S&S and  that the 
negligence was moderate.

     Seiffert Resources indicated that guards  were  not provided
by  the  manufacturer.  As stated above, it is the mine  operator
that bears  the  ultimate responsibility.  I affirm this citation
in all respects and I assess a penalty of $55.

     Citation No.  7973953  alleges that the power cord supplying
power  for the motor on the horizontal  impact  crusher  was  not
securely  fastened  to  the fitting.  Electrical tape was used to
secure the cord where it  entered  the  junction box.  (Tr. 108).
The  citation  alleges  a  violation  of section  56.12008.   The
inspector determined that the violation  was not S&S and that the
negligence was moderate.  The Secretary did not propose a penalty
for this citation.  The citation is not included  in  "Exhibit A"
attached  to  the  Secretary's  Petition for Assessment of  Civil
Penalty.  Under section 105(a) of  the Mine Act, the Secretary is
required to "notify the operator by  certified  mail of the civil
penalty  proposed  to  be assessed under section 110(a)  for  the
violation cited...."  Because  a  penalty was not proposed by the
Secretary, I do not have authority  to  assess a penalty for this
citation.

     Citation No. 79783954 alleges that the  junction  box on the
end  of  the  feed  motor had a hole in the side of the box  that
would allow moisture  and  dust  to  enter the junction box.  The
junction box was missing one of the knockouts.   (Tr.  110).  The
citation  alleges a violation of section 56.12032.  The inspector
determined that the violation was not S&S and that the negligence
was moderate.   I  affirm  this  citation  in  all respects and I
assess a penalty of $55.  Although the likelihood  of  an  injury
was low, the condition violated the safety standard.

     Citation  No.  7973955  alleges  that  a  small  quantity of
flammable  liquid  was kept in a container that was not a  safety
can, in violation of section 56.4402.  A safety can is defined at
56.2 as "an approved  container  ...  having a spring-closing lid
and spout cover."  There is no dispute  that  the  cited  plastic
container   was  not  an  approved  safety  can.   The  inspector
determined that the violation was not S&S and that the negligence
was  low.  The  plastic  container  contained  gasoline  and  was
properly  labeled.   (Tr. 113, 115).  Seiffert Resources suggests
that the word "shall"  in  the  safety  standard  means  "maybe,"
citing  Black's  Law  Dictionary.   (Tr.  114).   Its argument is
rejected.  The word "shall" means "has a duty to" or "is required
to."  Black's Law Dictionary 1379 (7th ed. 1999).   I affirm this
citation in all respects and I assess a penalty of $20.

     Citation No. 7973956 alleges that several fire extinguishers
at  the  site  had  not  been  inspected  on  an annual basis  in
violation  of section 56.4201(a)(2).  Inspector  Brown  testified
that the violation  was not S&S and the operator's negligence was
low.  (Tr. 116-17).   Seiffert  Resources may have had other fire
extinguishers  that  complied  with   the   standard   and  other
firefighting  equipment  may  have  been present.  I affirm  this
citation in all respects and I assess a penalty of $20.

      Citation No. 7973957 alleges that  none of the employees at
the  quarry  had  been given first-aid training  as  required  by
section 56.18010.   Inspector  Brown testified that the violation
was not S&S and the operator's negligence was low.  (Tr. 121-22).
As with Citation No. 7973953, a penalty for this citation was not
proposed by the Secretary.  Consequently, this citation cannot be
included within this decision.

     Citation No. 7973958 alleges that toilet facilities were not
provided that were readily accessible  to employees, in violation
of  section  56.20008(a).   The  inspector  testified   that  the
violation was not S&S and that the operator's negligence was low.
(Tr.  123).   The  inspector  further testified that Mr. Seiffert
advised him that there was a trailer  at  the  site  that  he was
going to equip with a toilet.  (Tr. 124).  I affirm this citation
in all respects and I assess a penalty of $20.

     Citation No. 7973959 alleges that there were no documents at
the  quarry to show that work place examinations were being made,
in violation  of  section 56.18002(b).  Inspector Brown testified
that the violation  was not S&S and the operator's negligence was
low.  (Tr. 125-26).  He stated that Mr. Seiffert was not aware of
this record keeping requirement.   I  affirm this citation in all
respects and I assess a penalty of $20.

     Citation No. 7973960 alleges that  the brake lights on a GMC
dump  truck were not in working order, in  violation  of  section
56.14100(b).   Inspector  Brown  determined  that  malfunctioning
brake  lights  were  a  defect  that affect safety because  other
vehicles in the quarry would not  know when the truck was slowing
down or coming to a stop.  (Tr. 127).   The  inspector determined
that  the  violation  was  not  S&S  and that the negligence  was
moderate.  I affirm this citation in all  respects and I assess a
penalty of $55.

     Citation No. 7973961 alleges that the  windshield  wiper  on
the  driver's  side  of this same dump truck was not functioning.
The citation also charges  a  violation  of  section 56.14100(b).
Inspector Brown determined that the malfunctioning  wiper  was  a
defect   that  affects  safety.   He  also  determined  that  the
violation  was  not  S&S  and  that  the negligence was moderate.
Inspector Brown was not sure if the wiper  was vacuum operated or
electrically operated.  (Tr. 130-31).  In order  to  test a wiper
that is operated by vacuum, one must start the engine to build up
air  pressure.   (Tr.  131).  The mine operator advised Inspector
Brown  that  the wiper had  been  working.   (Tr.  132-33).   The
inspector testified  that the passenger side wiper must have been
working because he did  not  include  that wiper in the citation.
In  addition,  the truck was started during  this  inspection  as
evidenced by Citation  No.  7973962.   I  find that the Secretary
established that the cited wiper was not functioning.   I  affirm
this citation in all respects and I assess a penalty of $55.

     Citation No. 7973962 alleges that the low air warning device
on  this  same  dump  truck  was  not maintained in a functioning
condition.   The  citation  alleges  a   violation   of   section
56.14100(b).   The  low  air  warning  device  did  not alert the
inspector  to low air pressure as the pressure was dropped  to  0
psi.  (Tr. 137).  The inspector determined that the violation was
not S&S and  that  the  negligence was moderate.  I find that the
Secretary established that  the malfunctioning warning device was
a device that affects safety.   The operator of the vehicle would
not be aware if the air pressure  became  too  low to operate the
brakes.  I affirm this citation in all respects  and  I  assess a
penalty of $55.

     Citation No. 7973963 alleges that the seatbelt installed  on
the  35  ton  Mack  haul  truck  did not meet the requirements of
section 56.14130(h).  The seat belt  was  an  ordinary  seat belt
installed on trucks for use on public highways and it was in good
condition.  (Tr. 139-40).  Mr.  Seiffert  was  unaware  that  the 
existing seatbelt was not  adequate.  Inspector  Brown  testified 
that  the  violation was not S&S  and  the  operator's negligence 
was low. I affirm this citation in all respects  and  I  assess a 
penalty of $20.

     Citation   No.   7973964  alleges  that  the  air  activated
windshield wiper on this  same haul truck was not functioning, in
violation of section 56.14100(b).   The  operator  of the vehicle
could  operate  the  wiper by hand.  (Tr. 142).  Inspector  Brown
testified that the violation  was  not  S&S  and  the  operator's
negligence was low.  I affirm this citation in all respects and I
assess a penalty of $20.

     Citation  No.  7973965 alleges that guards were not provided
for the fan and V-belt  drives  in the engine compartment of this
same haul truck.  The citation alleges  a  violation  of  section
56.14107(a).  Inspector Brown testified that it appeared that the
truck  had  once  been  provided  with the required guards.  (Tr.
143).  Inspector Brown testified that  the  violation was not S&S
and the operator's negligence was moderate.   He  stated that the
areas  that  required  guarding  were  within  reach of a  person
checking  the  oil.   (Tr.  144).   I  find  that  the  Secretary
established  a violation.  I affirm this citation in all respects
and I assess a penalty of $55.

     Citation  No.  7973968 alleges that the seats belts were not
provided  in  the Caterpillar  front-end  loader.   The  citation
states that the front-end loader was not in operation at the time
of the inspection,  but  it  had  been  used  the day before.  He
obtained  this  information from mine personnel.   (Tr.  151-52).
The  citation alleges  a  violation  of  section  56.14130(a)(3).
Inspector  Brown  testified that the loader was built after 1969.
(Tr. 147-48).  He further  stated  that  the  quarry  was  fairly
level.   He  also stated that because the suspension on this type
of loader is rigid,  the  ride  is  not  smooth.   (Tr. 149).  He
determined  that the violation was S&S because it was  reasonably
likely that the  cited condition would contribute to an injury of
a reasonably serious  nature.   Id.  The inspector testified that
the operator of the loader would  be  bounced  around quite a bit
and that, if the operator had to make a sudden stop,  he could be
injured.   Inspector  Brown  determined  that Seiffert Resources'
negligence was moderate.

     I find that the Secretary established a violation.  I credit
Inspector  Brown's  testimony.   I affirm this  citation  in  all
respects and I assess a penalty of $113.

     Citation No. 7973969 alleges that guards were not present on
the  sides  of the engine compartment  on  this  same  loader  to
protect employees  from  contacting  moving  machine  parts.  The
citation  alleges  a  violation  of  section  56.14107(a).   This
citation is similar to Citation No. 7973965.  He did not consider
the  violation  to  be  S&S.   He  determined that the operator's
negligence was moderate.  He testified  that the likelihood of an
injury was not great because of the exposure  and location.  (Tr.
153).  He believes that normal maintenance is performed  with the
engine  off.   I find that the Secretary established a violation.
I affirm this citation  in all respects and I assess a penalty of
$55.

     Citation No. 7973970  alleges  that  employees  of  Seiffert
Resources had not been reporting and recording safety defects  on
mobile  equipment.   Section  56.14100(d)  requires  that  safety
problems on self-propelled equipment be corrected immediately  or
reported  to  and recorded by the mine operator.  Inspector Brown
testified that  there  were  no  records  for  any  of the safety
defects  he  found  during his inspection.  (Tr. 155).   When  he
asked Mr. Seiffert for  such  records,  he  was advised that such
records did not exist.  Id.  Inspector Brown  testified  that the
violation was not S&S and the operator's negligence was moderate.
I find that the Secretary established a violation.  I affirm this
citation in all respects and I assess a penalty of $55.

                 II.  APPROPRIATE CIVIL PENALTIES

     Section 110(i) of the Mine Act sets out six criteria  to  be
considered  in  determining appropriate civil penalties.   I find
that no citations  were issued at the quarry during the two years
preceding  the  inspection.    Seiffert   Resources  is  a  small
operator.  All of the citations were abated  in  good faith.  The
penalties  assessed  in  this decision will not have  an  adverse
effect on Seiffert Resources's  ability  to continue in business.
The  gravity  of  the  two  S&S violations is moderate,  but  the
gravity for the other violations is low.  My findings with regard
to negligence is set forth above.   I  reduced  the penalties for
citations   alleging  low  negligence.   Based  on  the   penalty
criteria,  I  find   that  the  penalties  set  forth  below  are
appropriate.

**FOOTNOTES**

     [1]:  The Commission  did  not  publish  my decision in WEST
2000-165-RM.   Consequently,  that  decision  is attached  as  an
appendix to this decision for publication.

     [2]:   As a result of a typographical error,  that  decision
refers to an  incorrect  citation  number for this citation.  The
correct citation alleging a violation  of  section  41.11  is No.
7973945.

                           III.  ORDER

     Based on the criteria in section 110(i) of the Mine Act,  30
U.S.C.  820(i), I assess the following civil penalties:

     Citation No.             30 C.F.R.          Penalty

     WEST 2000-201-M

       7973945                41.11                $20.00
       7973946                56.3200             $113.00
       7973947                56.1000               20.00
       7973948                56.12032              55.00
       7973949                56.14107(a)           55.00
       7973950                56.12013(b)           55.00
       7973951                56.12008              55.00
       7973952                56.14107(a)           55.00
       7973954                56.12032              55.00
       7973955                56.4402               20.00
       7973956                56.4201(a)(2)         20.00
       7973958                56.20008(a)           20.00
       7973959                56.18002(b)           20.00
       7973960                56.14100(b)           55.00
       7973961                56.14100(b)           55.00
       7973962                56.14100(b)           55.00
       7973963                56.14130(h)           20.00
       7973964                56.14100(b)           20.00
       7973965                56.14107(a)           55.00

     WEST 2000-202-M

       7973968                56.14130(a)(3)       113.00
       7973969                56.14107(a)           55.00
       7973970                56.14100(d)           55.00

                                 Total Penalty  $1,046.00

     Accordingly,  the  citations  contested  in  these cases are
AFFIRMED  as  set  forth above and Richard Seiffert Resources  is
ORDERED TO PAY the Secretary of Labor the sum of $1,046.00 within
40 days of the date of this decision.

                              Richard W. Manning
                              Administrative Law Judge

Distribution:

Paul A. Belanger, Conference  &  Litigation  Representative, Mine
Safety  &  Health Administration, 2060 Peabody Road,  Suite  610,
Vacaville, CA 95687  (Certified Mail)

Mr. Marcel Roy  Bendshadler,  P.O.  Box 11561, Portland, OR 97211
(Certified Mail)

Mr.  Richard E. Seiffert, Richard Seiffert  Resources,  P.O.  Box
388, Banks, OR 97106 (Certified Mail)

RWM

                           ATTACHMENT

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                    1244 SPEER BOULEVARD #280
                      DENVER, CO 80204-3582
                  303-844-3577/FAX 303-844-5268

                        October 26, 2000

RICHARD E. SEIFFERT RESOURCES,  : CONTEST PROCEEDING
               Contestant       :
                                : Docket No. WEST 2000-165-RM
                                : Citation No. 7973945; 
                                :   11/09/99
          v.                    :
                                :
SECRETARY OF LABOR,             : Bailey Quarry
  MINE SAFETY AND HEALTH        : Id. No. 35-03489
  ADMINISTRATION (MSHA),        :
               Respondent       :

                             DECISION

Before: Judge Manning

     This  case  is  before  me  on  a notice of contest filed by
Richard E. Seiffert Resources ("Seiffert")  against the Secretary
of Labor and the Mine Safety and Health Administration  ("MSHA"),
pursuant to section 105 of the Federal Mine Safety and Health Act
of  1977,  30  U.S.C.   801 et. seq. (the "Mine Act").  Seiffert
brought this case to contest  the  jurisdiction of the Secretary,
MSHA,  and  this  Commission over its operations  at  the  Bailey
Quarry.  The citation  at  issue  in  this  proceeding  alleges a
violation of 30 C.F.R.  41.11 because Seiffert failed to  notify
MSHA when it opened the Bailey Quarry.

     This case was initially set for hearing.  Because there  are
no  factual  disputes  and  the  jurisdictional  issues  are more
amenable to a written presentation, I canceled the hearing at the
request  of  the  parties  and required them to brief the issues.
For  the  reasons  set  forth  below,   I   find  that  MSHA  has
jurisdiction to inspect the Bailey Quarry and  to issue citations
for violations of its safety standards and regulations.   I  also
affirm Citation No. 7973945.

                          I.  BACKGROUND

     Seiffert  operates  the  Bailey Quarry in Washington County,
Oregon.   On  November  9,  1999,  MSHA   Inspector  David  Brown
inspected the Bailey Quarry.  At the time of  his inspection, the
crushing  plant  was in operation, a haul truck was  transporting
material from the  lower pit area to the crushing plant, and this
material was being dumped  in  an area adjacent to the feeder for
the crushing plant.  A track hoe  was picking up and placing this
raw material into the crushing plant  for  processing  and a dump
truck  was  transporting  the finished product to the stock  pile
area,  which contained inventories  of  crushed  and  sized  rock
products.

     The  Bailey Quarry consists of three areas.  The upper level
contains crushing,  screening,  and  processing  equipment.   The
crushing equipment includes a feeder, screening devices, crushing
devices,  and  connecting  conveyors.   The middle level contains
stockpiles of finished crushed product.   The  lower level is the
pit area where the raw material is excavated with  a  track  hoe.
Inspector  Brown  observed  a number of pieces of equipment being
used at the quarry that were  not  manufactured  in  the State of
Oregon, including a GMC haul truck, a Mack haul truck,  a Komatsu
dozer, and various pieces of Caterpillar equipment.

              II.  SUMMARY OF THE PARTIES' ARGUMENTS

     C.   Secretary of Labor

     The  Secretary  contends  that  the  Bailey Quarry is a mine
subject to the jurisdiction of the Mine Act.  She argues that the
quarry  is  a "coal or other mine," as that term  is  defined  in
section 3(h)(1) of the Mine Act.  Minerals are extracted from the
earth and then  crushed  and  screened  at  the  quarry  site  in
preparation   for  sale.   The  Secretary  maintains  that  these
operations clearly  fit  within the cited definition.  She points
to  the  fact  that  this  definition  includes  the  milling  of
minerals.  According to the Secretary, the crushing and screening
operations at the quarry qualify  as  mineral  milling under this
definition.  Thus, she contends that the extraction  and  milling
operations  at  the quarry are included within the definition  of
"coal or other mine."

     The Secretary  next  argues that the Bailey Quarry meets the
requirements of section 4 of  the  Mine  Act because the products
produced at the quarry enter or affect commerce.   The  Secretary
emphasizes  that the language of the Mine Act and the Mine  Act's
legislative  history   demonstrates  that  Congress  intended  to
exercise its full power  under  the  commerce  clause of the U.S.
Constitution  when it enacted the Mine Act.  The  Secretary  also
maintains that  the  Bailey  Quarry  affects  interstate commerce
because  it  uses  equipment manufactured outside  the  State  of
Oregon.  Finally, she contends that the quarry affects interstate
commerce because the  Mine Act was passed to reduce the number of
mining  accidents and mining-related  diseases  in  the  nation's
mines.  She argues that disruption of a mine's production because
of  accidents  and  mining-related  diseases  affects  interstate
commerce.

     D.   Richard E. Seiffert Resources

     Seiffert  argues  that  the federal government does not have
jurisdiction to regulate operations  at the Bailey Quarry because
the quarry is located on private property.    Because  Seiffert's
argument  in  this case is about 145 pages in length, I can  only
briefly summarize  its major points.  Seiffert contends that MSHA
has "jurisdictional authority within the District of Columbia and
federal territories  only  with  regard  to activities that occur
specifically  `within'  federal possessions  located  inside  the
territorial boundaries of  Oregon  state."  (Motion to Dismiss at
4).  It further contends that, because  the quarry is not located
on federal property, MSHA does not have territorial  jurisdiction
to  inspect  it.  In support of this position, Seiffert  cites  a
number  of  authorities  including  the  U.S.  Constitution,  the
Federalist Papers,  court cases from the 19th and 20th centuries,
and  a  report,  apparently  prepared  in  1957  by  the  federal
government in conjunction  with  state  Attorneys  General,  that
discusses  federal  and  state  jurisdiction  over  federal lands
within the states.[3]  Seiffert cites other authorities  as well.
Its  brief  includes  a discussion of the development of property
rights from 15th century  England  to  present  day America and a
discussion of Federal judicial authority from the colonial period
to  the  present.   Seiffert also filed a supplemental  brief  on
October 23, 2000, which raises additional arguments.

  III.  DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

     A.  Jurisdiction

     Seiffert's arguments  center  around  its  interpretation of
Federal  jurisdiction.   Its  position, however, is  based  on  a
misinterpretation of the U.S. Constitution and the development of
constitutional law over the past  60 years.  I find that Congress
granted the Secretary of Labor jurisdiction under the Mine Act to
conduct health and safety inspections  at  privately  owned mines
within  the states as long as the activities at the mines  affect
interstate commerce.

     Seiffert  places  great  reliance  on  the  Report discussed
above.  The Report discusses Article I, Section 8,  Clause  17 of
the  U.S.  Constitution.   That  provision  of  the  Constitution
concerns  the  District  of  Columbia  and  lands over which  the
Federal   government   exercises   exclusive  jurisdiction.    It
provides, in pertinent part, that "Congress  shall  have power to
... exercise exclusive legislation in all cases whatsoever,  over
such  District ... and to exercise like authority over all places
purchased by the consent of the legislature of the state in which
the  same  shall  be,  for  the  erection  of  forts,  magazines,
arsenals,  dock-yards, and other needful buildings..." Under this
provision of  the  constitution,  the  Federal  government cannot
exercise  exclusive  jurisdiction  over  an area within  a  state
without the consent of that state's legislature.   This provision
was  designed  to prevent the Federal government from  purchasing
lands within a state and displacing the state's authority without
the consent of the  state  legislature.   It  does  not deal with
jurisdictional  issues on private lands or jurisdictional  issues
on  lands owned by  the  federal  government  where  the  federal
government   has   neither  sought  nor  been  granted  exclusive
jurisdiction by the state legislature.

     The federal government  can acquire property in a state, but
it can only acquire jurisdiction  over  that property if both the
state and federal governments agree to that transfer.  See, e.g.,
Paul v. United States, 371 U.S. 245, 264  (1963).  Otherwise, the
United States does not take jurisdiction over the property and is
merely a proprietor of the property.  If the  United  States  has
jurisdiction over property in a state, it is often referred to as
a  "federal  enclave"  and  state  law  does  not  apply  to that
property.  For example, in Lord v. Local Union No. 2088, 646 F2d.
1057,  1063  (5th  Cir.  1981),  cert. denied, 458 U.S. 1106, the
court held that Florida's right-to-work  law  did  not apply to a
federal  enclave  in that state.  That federal enclave  had  been
previously  established   with   the   consent   of  the  Florida
legislature.

     Seiffert  applies  the concepts in the Report to  all  lands
within a state, not just federally owned lands.  For example, the
Report,  as  quoted  by  Seiffert,   states   that  the  "federal
government  cannot,  by  unilateral action on its  part,  acquire
legislative  jurisdiction  over  any  area  within  the  exterior
boundaries of a state."  (Brief  in  Support of Motion to Dismiss
at 20).  Seiffert uses that sentence to support its position that
the  Secretary  lacks territorial jurisdiction  over  the  Bailey
Quarry.  Article  I,  Section  8,  Clause 17 of the Constitution,
however, merely provides that federal  enclaves cannot be created
without the consent of the host state.   It  does  not pertain to
federal  regulation  of  businesses located on private  property.
The Report merely discusses  the implementation of that clause of
the constitution to federal lands  within  a  state.   Thus,  the
above quote from the Report is taken out of context by Seiffert.

     More  importantly,  the  words "legislative jurisdiction" in
the  quote  refer  to  exclusive  legislative   jurisdiction   as
specified  in  Article I, Section 8, Clause 17.  The Secretary is
not  contending  that   the   federal  government  has  exclusive
jurisdiction over the Bailey Quarry  or  that  the  quarry  is  a
"federal  enclave."   Laws passed by the State of Oregon are also
applicable to the Bailey  Quarry.   Thus,  the federal government
has neither sought nor acquired "legislative  jurisdiction"  over
the  Bailey  Quarry.  Thus, I conclude that Article I, Section 8,
Clause 17 of the  constitution  and  the Report are irrelevant to
this proceeding.

     Seiffert's other arguments also revolve  around  Article  I,
Section  8,  Clause  17 of the U.S. Constitution.  Seiffert cites
criminal cases in which  the  issue  is  whether federal or state
criminal statutes apply to federal military  bases.  For example,
in  United  States  v. Lovely, 319 F2d 673 (4th Cir.  1963),  the
defendant  was  convicted   of   sexual  assault  on  a  military
reservation  under  a federal criminal  statute.   The  defendant
attempted to have his  conviction  reversed  on  the  basis  that
jurisdiction over the reservation had not been properly ceded  to
the  federal  government  by  the state.  Seiffert cites numerous
cases discussing jurisdictional  issues  on federally owned lands
or on ships at dock.  (Motion to Dismiss 4-6; Brief in Support of
Motion to Dismiss 11-20, 21-30).

     From  these  cases,  Seiffert  reaches the  conclusion  that
"federal  jurisdiction  extends  only over  the  areas  where  it
possesses  the  power  of exclusive jurisdiction..."   (Brief  in
Support of Motion to Dismiss  11).   It  believes  that  "to hold
otherwise  would destroy the purpose, intent, and meaning of  the
entire Constitution  for  the  United  States  of  America."  Id.
Seiffert believes that these principles were made clear in Unites
States  v.  Bevans, 16 U.S. 336 (1818) and have been followed  by
federal courts  since that time.  For example, in Fort Levenworth
R. Co. v. Lowe, 114  U.S. 525 (1885), the court held the "consent
of the states to purchase  lands  within  them  ... is essential,
under the constitution, to transfer to the [federal]  government,
with the title, of political jurisdiction and dominion."   Id. at
531.   "Where  lands  are  acquired  without  such  consent,  the
possession of the United States ... is simply that of an ordinary
proprietor  ...  subject to the legislative authority and control
of the states equally  with the property of private individuals."
Id.

     In its supplemental  brief,  Seiffert  set  forth additional
arguments  that  focus  on jurisdiction over federal  lands.   It
cites  40 U.S.C.  255, entitled  "Approval  of  Title  Prior  to
Federal  Land Purchases..." for the proposition that, because the
federal government  did  not  obtain  title to the Bailey Quarry,
MSHA  must  obtain  the  approval of the Governor  of  Oregon  to
"`operate'  its scheme of warrantless  inspections  upon  private
property located  within  the  external boundaries of Oregon...."
(Supplemental  Brief  2).   It also  makes  broad  constitutional
arguments  based  on  the  relationship   between   the   federal
government,  state governments, and the rights of citizens.   For
example, it cites  cases  in  which the Supreme Court struck down
the  authority of the federal government  to  require  states  to
administer  federal  regulatory  programs.  See New York v. U.S.,
505 U.S. 144 (1992); Printz v. U.S., 521 U.S. 98 (1997).

     Based  on  the Report and the cases  cited  in  its  briefs,
Seiffert makes the following argument that is at the heart of its
case:

          Federal  jurisdiction  results  only  from  a
          conveyance   of  state  jurisdiction  to  the
          federal  government   for   lands   owned  or
          otherwise possessed by ... the United States,
          and  this  federal  jurisdiction is extremely
          limited  in  nature.   There  is  no  federal
          jurisdiction if there is  no grant or cession
          of jurisdiction by the state  to  the federal
          government.   Therefore,  federal territorial
          jurisdiction exists only in Washington, D.C.,
          the federal enclaves within  the  states, and
          the  territories and possessions of  the  ...
          United States.

(Brief in Support of Motion to Dismiss 14-15).

     These cases  and  the  other  cases  discussed in Seiffert's
brief discuss a very narrow issue: federal and state jurisdiction
on  federal  enclaves and other federal property.   They  do  not
consider  the  power   of  the  federal  government  to  regulate
businesses, such as mines  on private property.  While it is true
that the federal government  can  exercise  exclusive legislative
jurisdiction only with the consent of the states, it can exercise
nonexclusive jurisdiction on private property  under the commerce
clause  of  the Constitution:  Article I, Section  8,  Clause  3.
That provision  states  that  "Congress  shall  have power to ...
regulate  commerce  with foreign nations, and among  the  several
states, and with the  Indian  Tribes...."  As stated in section 4
of the Mine Act, the Mine Act was  enacted under the authority of
the commerce clause.  Since the early  1940s, the commerce clause
has been interpreted very broadly by the  Supreme  Court  and the
inferior  courts.   For  example, in Wickard v. Filburn, 317 U.S.
111,  125  (1942),  the  Supreme  Court  held  that  the  federal
government's power to regulate  private economic activities under
the commerce clause is not confined to the regulation of commerce
between the states, but extends to a local activity if "it exerts
a substantial economic effect on  interstate commerce...."  "Even
activity that is purely intrastate  in character may be regulated
by Congress, where the activity, combined  with  like  conduct by
others similarly situated, affects commerce among the States...."
Fry  v.  United  States,  421 U.S. 542, 547 (1975).  The commerce
clause  is  an  independent  and   distinct   source  of  federal
jurisdiction that is not based on the ownership of land.

     Congress   and  the  courts  have  determined  that   mines,
including  quarries,  exert  a  substantial  economic  effect  on
interstate commerce.   In  Donovan  v.  Dewey,  452 U.S. 594, 602
(1981), the Supreme Court stated:

          As  an initial matter, it is undisputed  that
          there  is  a  substantial federal interest in
          improving the health and safety conditions in
          the nation's underground  and  surface mines.
          In enacting the statute, Congress was plainly
          aware that the mining industry is  among  the
          most  hazardous  in  the country and that the
          poor  health  and  safety   record   of  this
          industry  has significant deleterious effects
          on interstate commerce.

The Court relied upon the legislative history and the preamble to
the Mine Act in reaching  this  conclusion.  The Court determined
that MSHA had the authority to conduct  a  warrantless inspection
of  a  stone  quarry  that  was  located on private  property  in
Wisconsin.

     The   circuit  courts  have  uniformly   recognized   MSHA's
authority to  inspect  mines  under  the  commerce  clause.   For
example,  in  U.S. v. Lake, 985 F3d 265, 268 (6th Cir. 1993), the
court of appeals  held  that "the language of the [Mine] Act, its
broad remedial purpose, and  its  legislative  history combine to
convince  us  that Congress intended to exercise its  full  power
under  the Commerce  Clause."   I  conclude  that  the  arguments
presented  by  Seiffert  are  irrelevant to this case because the
Mine Act was enacted under the  authority  granted Congress under
the  commerce clause.  Jurisdiction under the  Mine  Act  is  not
dependent  upon  the  authority  of  Congress  to  establish  the
District  of Columbia and other federal enclaves under Article I,
Section 8,  Clause  17.  [4]   In addition, the Mine Act does not
require  states to enact or administer  any  of  the  enforcement
provisions  of  the  Mine  Act.   Consequently, its argument that
Congress cannot compel the State of  Oregon  to  enforce the Mine
Act is beside the point.  I reject all other arguments  presented
by Seiffert that are not specifically discussed herein.

     For  the  reasons  set  forth  below, I find that the Bailey
Quarry  is a mine and that its operations  affect  commerce.   An
analysis  of  Mine Act jurisdiction starts with the definition of
the term "coal  or  other  mine,"  in section 3(h)(1).  A coal or
other mine is defined, in pertinent  part,  as   "(A)  an area of
land from which minerals are extracted ..., (B) private  ways and
roads  appurtenant to such area, and (C) lands, excavations,  ...
structures,  facilities,  equipment,  machines,  tools,  or other
property  ...  on  the surface or underground, used in, or to  be
used in, or resulting  from, the work of extracting such minerals
from their natural deposits,  ...  or  used in, or to be used in,
the milling of such minerals...."  30 U.S.C.    802(h)(1).   The
undisputed  facts demonstrate that the Bailey Quarry clearly fits
within this definition.  Minerals are extracted from the earth at
the quarry and are milled at the site for sale to customers.  The
Bailey Quarry  is  a "coal or other mine" as that term is defined
in the Mine Act.

     Section 4 of the  Mine Act, entitled "Mines Subject to Act,"
provides that "[e]ach coal  or  other mine, the products of which
enter commerce, or the operations  or  products  of  which affect
commerce, and each operator of such mine, and every miner in such
mine shall be subject to the provisions of this Act."   30 U.S.C.
  803.   The  facts  set forth above demonstrate that the Bailey
Quarry affects interstate  commerce.  The machinery and equipment
used to produce the products  at  the  quarry  were  manufactured
outside  the  State of Oregon and the products of the quarry  are
sold to customers,  which thereby affects interstate commerce.  I
conclude  that  Seiffert's   Bailey  Quarry  is  subject  to  the
provisions of the Mine Act.  Consequently,  the Secretary has the
authority  to  conduct  warrantless  inspections  of  the  Bailey
Quarry,  to  issue citations and orders  for  violations  of  her
safety and health regulations, and to propose civil penalties for
those violations.

      B.  Citation No. 7973954

     Citation  No.  7973954  alleges  a  violation of 30 C.F.R. 
41.11 because the operator failed to notify  MSHA  within 30 days
that it opened a new mine.  Inspector Brown determined  that  the
violation  was  not  serious,  was  not  of  a  "significant  and
substantial"  nature,  and  was  the  result  of  Seiffert's  low
negligence.   Section  41.11  provides,  in part, that within "30
days after ... the opening of a new mine ...  the  operator  of a
coal  or  other  mine  shall,  in writing, notify the appropriate
district  manager  of  [MSHA]  of  the   legal  identity  of  the
operator...."

     The undisputed facts establish a violation.  Seiffert opened
a new mine and failed to notify MSHA of its  existence  within 30
days after it opened.  Accordingly, the Secretary established the
violation.  I affirm the citation as written by Inspector Brown.

                            IV.  ORDER

     For  the  reasons set forth above, I hold that the Secretary
of Labor has jurisdiction,  as  authorized  by  the  Federal Mine
Safety and Health Act of 1977, to conduct warrantless inspections
of  the  Bailey  Quarry  in Washington County, Oregon, owned  and
operated by Richard E. Seiffert Resources.  For the same reasons,
I hold that this Commission has jurisdiction over this case under
section 113 of that Act.   30 U.S.C.  823.  Citation No. 7973954
is  AFFIRMED  and  the notice of  contest  filed  by  Richard  E.
Seiffert Resources in this proceeding is DISMISSED.

                              Richard W. Manning
                              Administrative Law Judge

Distribution:

Mr. Richard E. Seiffert,  Richard  Seiffert  Resources,  P.O. Box
388, Banks, OR 97106  (Certified Mail)

Eugene  Dayton Pringle, Jr., c/o 12820 SE Park Street, Vancouver,
WA 98683  (Certified Mail)

Edward H.  Fitch,  Esq., Office of the Solicitor, U.S. Department
of  Labor,  4015  Wilson   Boulevard,  Arlington,  VA  22203-1954
(Certified Mail)

RWM

**FOOTNOTES**

     [3]:   The report that Seiffert  relies  upon  is  entitled,
Jurisdiction  Over Federal Areas Within the States: Report of the
Interdepartmental  Committee  for  the Study of Jurisdiction Over
Federal Areas Within the States (the "Report").  Seiffert did not
provide  a  citation  for  this  report.    I  have  relied  upon
Seiffert's extensive quotations from the Report  in analyzing the
arguments presented in its brief.

     [4]:  Seiffert also refers to Article IV, Section  3, Clause
2  of  the  Constitution.  That provision provides that "Congress
shall have power  to  dispose  of  and  make  needful  rules  and
regulations respecting territorial or other property belonging to
the  United  States; and nothing in this Constitution shall be so
construed as to  prejudice any claims of the United States or any
particular state."   This provision also deals with federal lands
and, for the same reasons, it has no bearing on this case.