.
UNIQUE ELECTRIC
October 26, 1998
WEST 95-333-M


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

                           October 26, 1998

SECRETARY OF LABOR,             :   CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :   Docket No. WEST 95-333-M
               Petitioner       :   A.C. No. 04-03425-05503
                                :   TIR
                                :
          v.                    :   Washington Mine
                                :
UNIQUE ELECTRIC,                :
               Respondent       :


                ORDER  TO SUBMIT INFORMATION


     I issued my decision in this case on April 23, 1997.
The Federal Mine Safety and Health Review Commission
(the "Commission') vacated the $400 penalty I
assessed against Unique Electric and remanded the
case to me for further proceedings consistent with
the Commission's decision.  The Commission vacated
the penalty I assessed based on concepts developed
in its decisions in Sunny Ridge Mining Co., 19
FMSHRC 254, 271-72 (February 1997) and Ambrosia
Coal & Construction Co., 19 FMSHRC 819, 823-24
(May 1997).  These decisions discuss how penalties
should be assessed against agents of corporate
mine operators under section 110(c) of the Federal
Mine Safety and Health Act of 1997, 30 U.S.C. �
820(c).  The $8,500 penalty in this case was
proposed by the Secretary under section 110(a) of
the Mine Act.  The Commission held that the
present case is "akin to one brought against an
individual under section 110(c) of the Mine Act"
because Kim Warnock, the owner of Unique Electric,
was self-employed at the time the citation was
issued.  Slip op. at 4.

     In its decision, the Commission directed that I 
reconsider the penalty taking into consideration the six
criteria set forth in section 110(i) of the Mine
Act.[1]  With respect to the ability to continue
in business criterion, the Commission directed
that I consider "whether the proposed penalty
would affect Warnock's ability to meet his
financial obligations."  Id.  With respect to the
size of the business criterion, the relevant
inquiry is whether the penalty is appropriate in
light of the individual's income and net worth.
Ambrosia, 19 FMSHRC at 824.
In Sunny Ridge, the Commission set forth its
analysis with respect to penalties brought against
individuals as follows:

          The criteria regarding the effect and
          appropriateness of a penalty can be applied
          to individuals by analogy, and we find that
          such an approach is in keeping with the
          deterrent purposes of penalties assessed
          under the Mine Act.  In making such findings,
          judges should thus consider such facts as an
          individual's income and family support
          obligations, the appropriateness of a penalty
          in light of the individual's job
          responsibilities, and an individual's ability
          to pay.  Similarly, judges should make
          findings on an individual's history of
          violations and negligence, based on evidence
          in the record on these criteria.  Findings on
          gravity of a violation and whether it was
          abated in good faith can be made on the same
          record evidence...."

19 FMSHRC at 272.

     The Commission further analyzed how penalties should be
assessed against individuals in Wayne Steen, employed by Ambrosia
Coal & Construction Co., 20 FMSHRC 381, 385-86 (April 1998).  The
Commission stated that "our judges must engage in a two-step
analysis..." as follows:  Id.

          First, they must determine [an individual's]
          household financial condition.  Then they
          must make findings on the ... "size" and
          "ability to continue in business" criteria on
          the basis of the [individual's] share of his
          or her household's net worth, income, and
          expenses.

     In order to perform this analysis, Mr. Warnock shall provide
me with the following information on or before November 17, 1998:

     1.  A statement of Mr. Warnock's income in 1997.  The
statement should indicate whether there has been a major change
in income since December 1997.

     2.  A statement of Mr. Warnock's net worth and financial
obligations.  This information should be in the form of a balance
sheet showing his major assets and liabilities.  The statement
should indicate which assets are held jointly with his wife or
any other individual and which liabilities are joint obligations.
Mr. Warnock shall also describe his "family support obligations"
and his share of his "household's net worth, income and
expenses."

     3.  Any argument that Mr. Warnock wishes to make concerning
the facts and issues involved in this case.

     A copy of these statements should also be sent to Ms.
Coplick at the Department of Labor.  In conjunction with
information request No. 1, Mr. Warnock shall also send me a copy
of his 1997 Federal Tax return.  He need not send the tax return
to Ms. Coplick.  I will place my copy under seal so that it is
not available to the public.

     The Secretary of Labor shall file any response to Mr.
Warnock's filing on or before December 4, 1998.

     The parties should understand that, based on my review of
the record in this proceeding and the information provided by Mr.
Warnock, the penalty I assess may be higher, lower, or the same
as the $400 penalty I assessed in my April 23, 1997, decision.
The parties are encouraged to confer in an attempt to reach
agreement on a penalty or to enter into stipulations regarding
the penalty criteria or the financial information submitted by
Mr. Warnock.  If the parties wish to hold a conference call with
me to discuss these issues, they are invited to do so.


                              Richard W. Manning
                              Administrative Law Judge


Distribution:

Jan M. Coplick, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
71 Stevenson St., Suite 1110,
San Francisco, CA 94105-2999

Mr. Kim Warnock,
1136 Cedar Street,
Shasta Lake City, CA 96019

RWM


**FOOTNOTES**

     [1]:   The  criteria  are  "the [mine] operator's history of
previous violations, the appropriateness  of  such penalty to the
size  of  the  business  of  the  operator  charged, whether  the
operator was negligent, the effect on the operator's  ability  to
continue  in  business,  the  gravity  of  the violation, and the
demonstrated good faith of the person charged  in  attempting  to
achieve  rapid compliance after notification of a violation."  30
U.S.C. � 820(i).