“SECRETARY OF LABOR,Complainant,v.CULBERSON WELL SERVICE,Respondent.OSHRC DOCKET NO. 82-1166_ORDER_In light of Respondent’s failure to respond to the Commission’s Order ofFebruary 13, 1984, and the Secretary’s Motion to Dismiss Respondent’sPetition for Discretionary Review of March 9, 1984, the Commissiongrants the Secretary’s Motion to Dismiss Respondent’s Petition forReview and vacates the Direction for Review.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDated: APR 24 1984RAYMOND J. DONOVAN, SECRETARY OF LABOR,Complainant,v.CULBERSON WELL SERVICE,Respondent.OSHRC DOCKETNO. 82-1166_SECRETARY’S MOTION TO DISMISS RESPONDENT’SPETITION FOR DISCRETIONARY REVIEW_Raymond J. Donovan, Secretary of Labor, respectfully moves that theCommission dismiss respondent’s petition for discretionary review in theinstant case and affirm the judges decision.In support of this motion, the Secretary states:1. On June 20, 1983, Commission Administrative Law Judge Dee C. Blytheissued his decision in this matter. He found respondent in seriousviolation of section 5(a)(2) of the Act and the standards at 29 CFR ??1915.7(a)(1), 1915.12(c)(1)(ii), and 1915.152(b)(3). A penalty of $600was assessed. The judge specifically found that the employees at issuein this case were not \”crew of the vessel\” as that phrase is used in ?1915.4(d) and accordingly such employees were not exempt from coverageunder the Secretary’s regulations.2. On August 11, 1983, respondent filed a petition for discretionaryreview with the Commission. On August 15, 1983, Chairman Robert A.Rowland directed review of the following issue:Whether the judge erred in concluding that the employees at issue inthis case are not members of the crew of a vessel, as those terms areused in 29 CFR ? 1915.4(d).3. On October 21, 1983, the Commission issued a briefing notice to theparties. According to Commission Rule 93, respondent was required tofile its brief on November 30, 1983.4. Respondent did not file a brief on November 30, 1983.5. On December 20, 1983 the Secretary moved that the Commission allow apostponement in the filing of the Secretary’s brief on the grounds thatrespondent’s initial brief had not yet been filed. The Secretaryrequested that the time for filing his brief be postponed untilrespondent filed its brief or until the Commission directed otherwise.6. By order dated February 13, 1984, the Commission ordered respondentto file a response with the Commission within 20 days advising theCommission whether it intends to file a brief, and, if so, why a latefiled brief should be accepted. This order advised respondent thatfailure to respond could result in dismissal of the case. The 20 daysexpired on March 5, 1984, with no response or brief having been filed byrespondent.7. In light of respondent’s complete silence, the Commission shouldconclude that respondent lacks any continued interest in this case. Inover four months since the Commission issued its briefing order,respondent has done nothing to further pursue the case or even apprisethe Commission of its intent. Having invoked the Commission’sjurisdiction with the filing of _its_ petition for discretionary review,it is incumbent upon respondent to pursue its claim in an expeditiousfashion as directed by the Commission. Because of respondent’s evidentlack of interest in this matter the Commission should dismiss the petition.WHEREFORE, the Secretary respectfully requests that the Commissiondismiss respondent’s petition for discretionary review and affirm,without review, the judges decision below. Respectfully submitted,FRANCIS X. LILLYDeputy Solicitor of LaborFRANK A. WHITEAssociate Solicitor for Occupational Safety and HealthDANIEL J. MickCounsel for Regional Trial LitigationLINTON W. HENGERERAttorney————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).”