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

 
WAYNE R. STEEN, EMPLOYED BY AMBROSIA COAL & CONSTRUCTION COMPANY
April 30, 1998
PENN 94-15


            FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                      1730 K STREET NW, 6TH FLOOR

                        WASHINGTON,  D.C. 20006


                            April 30, 1998

SECRETARY OF LABOR,               :
  MINE SAFETY AND HEALTH          :
  ADMINISTRATION (MSHA)           :
                                  :
           v.                     :    Docket No. PENN 94-15
                                  :
WAYNE R. STEEN, employed by       :
  AMBROSIA COAL & CONSTRUCTION    :
  COMPANY                         :


BEFORE:  Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
         Commissioners


                              DECISION


BY:  Marks, Riley, Verheggen, and Beatty, Commissioners:

    This civil penalty proceeding, arising under the Federal Mine Safety
and Health Act of 1977 ("Mine Act" or "Act"), 30 U.S.C. � 801 et seq.
(1994), is before the Commission a third time.  The Commission has twice
previously remanded this matter for reassessment of a penalty against
Wayne R. Steen, employed by Ambrosia Coal & Construction Company
("Ambrosia").  Ambrosia Coal & Constr. Co., 18 FMSHRC 1552 (Sept. 1996)
("Ambrosia I"); Ambrosia Coal & Constr. Co., 19 FMSHRC 819 (May 1997)
("Ambrosia II").  On second remand, the judge assessed a penalty of $2000
against Steen.  19 FMSHRC 1471 (Aug. 1997) (ALJ).  The Commission
granted Steen's petition for discretionary review.  For the reasons that
follow, we vacate the judge's penalty assessment and assess a penalty of
$1200 against Steen.

                                      I.

                       Factual and Procedural Background

    The background facts in this proceeding are fully set forth in Ambrosia
 I (18 FMSHRC at 1553-56), and are summarized in relevant part here.  On
June 3, 1992, during an inspection of the Ambrosia Tipple by the
Department of Labor's Mine Safety and Health Administration ("MSHA"), a
highlift was found to have been operated for over a month with bad
brakes.  Id. at 1553-54.  A section 104(d)(1) order was issued to
Ambrosia alleging a significant and substantial ("S&S") and
unwarrantable violation of 30 C.F.R. � 77.1605(b), later modified to
charge a violation of section 77.404(a).[1]  Id. at 1554.  On the basis
of an MSHA special investigation, the Secretary also proposed that a
$3500 penalty be assessed against Steen under section 110(c).  Id. at
1555.  Ambrosia and Steen challenged the Secretary's enforcement
actions, and the matters were consolidated and proceeded to a hearing
before Administrative Law Judge William Fauver.  Id.
	

     In his first decision, Judge Fauver found that the lack of operable
brakes on the highlift amounted to an unsafe condition and that the 
operator hadfailed to remove the equipment from service despite its
knowledge that the brakes were bad.  Id.  He concluded that Ambrosia
violated section 77.404(a), and that the violation was S&S and the result
of Ambrosia'sunwarrantable failure to comply with the standard.  Id. at
1555-56.  The judge further concluded that, as foreman, Steen was a
corporate agent under section 110(c) of the Mine Act, and that he had
knowingly authorized Ambrosia's violation because he knew that the brakes
were bad for at least five days before the inspection, yet failed to repair
them or remove the highlift from service.  Id. at 1556.  The judge assessed
a $4000 civil penalty against Steen.  Id.


     On review, the Commission affirmed Judge Fauver's findings of a
violation of section 77.404(a), that the violation was S&S and unwarrantable,
and that Steen was liable for the violation under section 110(c).  Id. at
1556-63.  Regarding Steen's penalty, the Commission concluded that the judge
erred because he "failed to set forth findings applying the statutory 
criteria [of section 110(i) of the Mine Act] to Steen as an individual," 
and remanded the case with instructions to reassess the penalty.  Id. at 
1565-66.  On remand, the judge stated that he "considered Respondent Steen's
financial situation in [his] original decision," and found that Steen's 
financial obligations warranted amortizing the payment of a civil penalty
which the judge assessed at $3500.  18 FMSHRC 1874, 1875, 1876 (Oct. 1996)
(ALJ).

     In Ambrosia II (19 FMSHRC at 823-25), the Commission vacated the 
penalty against Steen and remanded with the instruction to reassess the
penalty after making specific findings on the section 110(i) criteria
regarding ability to continue in business and size in accord with the
Commission's decision in Sunny Ridge Mining Co., 19 FMSHRC 254 (Feb. 1997).
In Sunny Ridge, the Commission held that its "judges must make findings
on each of the [statutory penalty] criteria [of section 110(i)] as they 
apply to individuals."  Id. at 272 (emphasis in original).  In Ambrosia 
II, the Commission further explained that "the relevant inquiry with 
respect to the criterion regarding the effect on the operator's ability 
to continue in business, as applied to an individual, is whether the
penalty will affect the individual's ability to meet his financial 
obligations. . . .  With respect to the 'size' criterion, . . . as
applied to an individual, the relevant inquiry is whether the penalty 
is appropriate in light of the individual's income and net worth."
19 FMSHRC at 824.

     On remand a second time, the parties submitted supplemental briefs,
including financial information on Steen and his wife.  19 FMSHRC at
1472-73.  In an unpublished prehearing order, Judge Fauver stated that 
"[s]ince Mr. Steen's tax returns are jointly filed, his income and financial
obligations will be considered on the basis of household income and 
financial obligations."  Order at 1 n.1 (June 25, 1997).  The case was
then reassigned to Administrative Law Judge David F. Barbour, who made
findings on Steen's ability to continue in business and size.  19 FMSHRC 
at 1474-75.  

     Over the objections of Steen's counsel, Judge Barbour followed
Judge Fauver's approach as to household income and financial obligations.
Id. at 1474.  Finding that Steen and his wife "do not live economically 
discrete lives," the judge concluded:

     I must make findings based on fiscal reality not its 
     artificial segmentation.  Therefore, I will consider their joint 
     income as Steen's income, their joint property as his property, 
     and their joint liabilities as his liabilities.

Id. The judge reduced Steen's penalty from $3500 to $2000, and ordered
him to pay the penalty in 10 monthly installments.  Id. at 1475-76.  

                                    II.

                                Disposition

    Both Steen and the Secretary agree that the judge erred in failing to
segregate the income and financial obligations of Steen and his wife for 
purposes of making findings on the section 110(i) criteria regarding ability
to continue in business and size.  PDR at 4-7; S. Br. at 9-10.  Both parties
further agree that in so doing, the judge failed to abide by the
Commission's remand order to ascertain Steen's individual income and net
worth.  PDR at5; S. Br. at 9.

    Analogizing to common law principles of property, Steen argues that
the judge erred in attributing to Steen "sole ownership . . . of the
property of the marital estate."  PDR at 4-5.  In addition, Steen argues
that the judge's findings are problematic for various reasons of public
policy.  Id. at 5-7.  Finally, Steen argues that the judge's penalty is
excessive.  Id. at 7; Steen Br., passim.  The Secretary argues that "while
the judge properly considered Steen's family's income, expenses, and assets,
he improperly failed to then adjust his findings in order to reflect Steen's
individual financial position."  S. Br. at 9 (emphasis in original). 
Notwithstanding her position on this issue, the Secretary argues "that
a proper penalty in this case should be no less than $2,000, and no more 
than $3,500, especially when the judge has amortized payment of the penalty 
over many months."  Id. at 10.

    The determination of the amount of the penalty that should be assessed
for a particular violation is an exercise of discretion by the trier of
fact, bounded by proper consideration of the statutory criteria and the
deterrent purposes underlying the Act's penalty assessment scheme. 
Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), aff'd, 736 F.2d 1147
(7th Cir. 1984).[2]  While "a judge's assessment of a penalty is an exercise
of discretion, assessments lacking record support, infected by plain error,
or otherwise constituting an abuse of discretion are not immune from 
reversal."  U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984). 

    At issue here is whether section 110(c) of the Mine Act, under which
Steen has been found liable for violating section 77.404(a), applies to
Steen as an individual or Steen's household for purposes of determining
the extent of his financial liability under section 110(i).  Although
section 110(i) cannot help us resolve this issue since it refers to 
operators rather than individuals, proper construction of the provision
that forms the basis for Steen's liability, section 110(c), does provide
an answer.

    Section 110(c) subjects "any director, officer, or agent . . . to the
same civil penalties . . . that may be imposed upon a person under 
[sections 110(a) and 110(d)]."  30 U.S.C. � 820(c).  The first inquiry
in statutory construction is "whether Congress has directly spoken to the 
precise question at issue."  Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842 (1984); Thunder Basin Coal Co.,
18 FMSHRC 582, 584 (Apr. 1996).  If a statute is clear and unambiguous,
effect must be given to its language.  Chevron, 467 U.S. at 842-43. 
Accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990).
For purposes of this case, Steen is Ambrosia's agent (Ambrosia I, 18
FMSHRC at 1563) - but his wife clearly is not, nor has any party to the
case even suggested that she be found an agent of Ambrosia.  She thus 
cannot be subjected to financial liability under section 110(c), which 
is arguably the effect of the judge's decision in this case.

    The judge noted that, "[l]ike most domestic partners, [the Steens]
function as an economic unit.  They commingle economic resources 
and jointly assume economic responsibilities."  19 FMSHRC at 1474.
After noting that he had to "make findings based on fiscal reality 
not its artificial segmentation" (id.), the judge found that Steen 
had "monthly family expenses of $2,965 . . . [and] monthly family 
income of $3,156."  Id. at 1475.  But insofar as her earnings and 
share of the household net worth have been used explicitly by the judge
as factors to adjust the assessed penalty, Mrs. Steen is arguably made 
to bear an additional and identical financial burden as that imposed by
the Secretary's enforcement action against her husband, an outcome that
is at odds with the plain language of section 110(c).  

    We recognize, of course, that any penalty against an agent under 
section 110(c) will always have some impact on his or her spouse.
But the spouse's share of the household estate must not explicitly
be used as a factor to increase a penalty assessed for a section 
110(c) violation.  On the other hand, we are not holding that a 
spouse's share of the agent's household finances is not at all 
relevant in assessing a penalty.  In this respect, we agree with the
Secretary that "[a]lthough Steen's individual financial position must
be analyzed within the context of the family's financial position, 
Steen's position and the family's position are not the same thing." 
S. Br. at 9.  This means that our judges must engage in a two-step 
analysis in cases such as this one.  First, they must determine a 
section 110(c) defendant's household financial condition.  Then they
must make findings on the section 110(i) "size" and "ability to continue
in business" criteria on the basis of the defendant's share of his or
her household's net worth, income, and expenses.  In sum, we conclude 
that the judge erred as a matter of law when he made findings on the
basis of the financial condition of the Steen household rather than 
Steen's individual share of the household's income and financial 
obligations. 

    We disagree with our concurring colleague's statement that "the
issue of how to view financial resources when setting a penalty 
transcends the civil/criminal distinction" (slip op. at 10 n.3),
a proposition for which no authority is cited.  Here, we are construing
section 110(i) of the Mine Act, which does not create criminal liability 
and is not subject to federal criminal sentencing guidelines.  More 
importantly, as the D.C. Circuit noted in Coal Employment Project v. Dole,
in the Mine Act, "Congress was intent on assuring that the civil penalties
provide an effective deterrent against all offenders."  889 F.2d 1127,
1133 (D.C. Cir. 1989).[3]  A criminal fine, on the other hand, is 
punitive - "a sum of money exacted of a person guilty of an offense
as a pecuniary punishment."  21 Am. Jur. 2d Criminal Law � 613 (1981)
(emphasis added).  We thus find no relevant or appropriate guidance in 
cases involving criminal penalties because Congress did not intend 
section 110(i) to be a punitive measure.[4]  See slip op. at 9-10 and 
cases cited. 

    Normally, having found that a judge erred as a matter of law in 
considering the section 110(i) penalty criteria, we would vacate the
penalty and remand the matter to the judge for assessment of a new
penalty.  This case, however, has simply gone on too long.  In interests
of justice and a speedy resolution to this litigation, instead of 
remanding the case, we will enter the necessary findings based on
the undisputed record evidence on Steen's financial condition, and 
assess a new penalty.  Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147,
1153 (7th Cir. 1984).

    First, we note that, with respect to Steen's negligence and history
of previous violations, the gravity of the violation, and whether the
violation was abated in good faith, the findings made by Judge Fauver 
that were before the Commission in Ambrosia II were affirmed by the 
Commission and are thus the law of the case.  19 FMSHRC at 823-24.  As
to these criteria, the judge found that Steen's violation was due to 
high negligence, that he had no record of prior violations, and that
the violation was serious.  18 FMSHRC at 1875.  In his initial decision,
Judge Fauver also found that "[s]ince the inspector red-tagged the vehicle,
the question of the operator's abatement does not arise."  Ambrosia Coal
& Constr. Co., 16 FMSHRC 2293, 2305 (Nov. 1994) (ALJ).  

    As to the two remaining criteria, size and ability to continue in
business, we find that Steen's share of his household's net worth of 
$49,410 amounts to one half of the total, or approximately $25,000.
Stipulation of the Parties, Ex. C.  We further find that Steen's share 
of the household's net monthly income of $3156 amounts to roughly 54
percent of the total, or approximately $1700, and the Steen's share of
the household's expenses of $2965 also amounts to 54 percent of the total,
or approximately $1600.  Id. at Ex. B-2; 19 FMSHRC at 1474-75.  

    Having considered these findings, we find that a penalty of $1200
will not adversely affect Steen's ability to meet his financial
obligations, and is appropriate considering the gravity of the violation
and Steen's income and net worth, negligence, and lack of any previous
violations.  We further find that in light of Steen's financial obligations,
payment of the penalty may be amortized over a year, with no interest 
accrued other than on any late payments.  See 30 U.S.C. � 820(j).  Our
penalty assessment is made on the narrowest of grounds.  Our findings
on the penalty criteria of size and ability to continue in business as
they relate to Steen, and our ultimate penalty assessment, are based 
on the particular facts and circumstances of this case, and may not be
applicable to the apportionment of the household finances of all married
individuals found liable under section 110(c) in other cases.  


                                III.

                             Conclusion

    For the foregoing reasons, we vacate the judge's penalty assessment
and assess Mr. Steen a penalty of $1200 for his violation of 30 C.F.R. 
� 77.404(a), to be paid as directed by the Secretary in twelve consecutive
monthly installments of $100 each, with no interest accrued other than on
any late payments.  

                                                
                        Marc Lincoln Marks, Commissioner
                                                
                        James C. Riley, Commissioner
                                                
                        Theodore F. Verheggen, Commissioner
                                                
                        Robert H. Beatty, Jr., Commissioner


Chairman Jordan, concurring:

    Although I agree in result with the majority's decision to reduce 
Steen's penalty to $1200, I write separately because I reach this conclusion
based on a completely different rationale.  Unlike my colleagues, I believe
the judge applied the correct analysis to determine Steen's "ability to 
continue in business," properly using his household income and liabilities
as a touchstone.  However, for reasons entirely independent from the
majority's,  I find that the judge abused his discretion in setting the
penalty at $2000, and agree that it should be reduced to $1200.

    My colleagues insist on considering Steen's income, assets and 
expenses as if he were a solitary financial entrepreneur instead of a
family man whose assets and liabilities are hopelessly commingled with
those of his wife.  The majority holds that the penalty in 110(c) cases 
must be based on an individual's share of his or her household's assets,
income and expenses.[5]  This ignores the judge's undisputed finding that:

     [T]he Steens do not live economically discrete lives.  Like most 
     domestic partners, they function as an economic unit.  They commingle 
     economic resources and jointly assume economic responsibilities.  
     They file a joint federal income tax return . . . . They jointly hold 
     real property. . . . Personal property, such as automobiles and 
     household property, is titled jointly. . . . They have a joint 
     personal checking account . . . . Moreover, as may be inferred from 
     the list of expenses, they are equally liable for most, if not all, 
     of their debts . . . . I must make findings based on fiscal reality 
     not its artificial segmentation.

19 FMSHRC 1471, 1474 (Aug. 1997) (ALJ).

    I agree with the judge that the only equitable method of setting 
the penalty in this case is to acknowledge Steen's actual financial 
state of affairs and consider him and his wife as an economic unit,
rather than pretending that he is economically independent.  To evaluate 
the statutory penalty criteria of "size" and "ability to continue in
business" (which I translate, in a 110(c) case against an individual,
to mean the ability to remain solvent), one must take into account the 
individual's access to income and assets, as well as all of his or her 
financial liabilities.  The pertinent inquiry in determining how a penalty
under 110(c) will affect an individual must include an assessment of the
financial resources under his or her control.[6]

    The majority's rationale for using only Steen's individual financial
resources as a basis for the penalty is that 110(c) refers to "agent of 
such corporation" and it is Steen - and not his wife - who is Ambrosia's 
agent.  I can hardly disagree.  However, determining the identity of
Ambrosia's agent - a fairly uncomplicated task - begs a far more intricate 
question:  what is the most equitable way of determining that agent's
penalty?   

    Contrary to the views of the majority, treating the Steens as the 
economic unit they really are does not in any way imply that Mrs. Steen
has, through some sleight of hand, miraculously become an agent of
Ambrosia.  Slip op. at 4-5.  Rather, it simply recognizes what the 
majority itself acknowledges: "that any penalty against an agent under
section 110(c) will always have some impact on his or her spouse." 
Id. at 5.   This is precisely right, and is the sole implication of
the judge's decision.  Under the judge's analysis,  Mrs. Steen will 
undoubtedly bear some effect of the penalty; this does not in any way
mean that she is somehow "subjected to financial liability under section
110(c)," as the majority contends.  Slip op. at 4.  By merging these two
concepts, the majority has inexplicably intertwined the notions of an 
individual's statutory liability with the determination of the effect
of that liability (the penalty) on others. 

    Congress, on the other hand, has had no difficulty in recognizing 
the difference between these two concepts.  When it enacted criminal
sentencing provisions regarding payment schedules for restitution, for 
example, it stated that a criminal defendant, in describing his or her
financial resources for a presentence report, must include "the financial
needs and earning ability of the defendant and the defendant's dependents." 
18 U.S.C. � 3664(a) (1994).  This statutory language hardly converts the
family of a criminal defendant into convicted criminals.  Rather, it is
a simple recognition that a dependent's assets and liabilities are relevant
in determining restitution payment schedules.  See United States v. Castner,
50 F.3d 1267, 1278  (4th Cir. 1995) (court takes spouses' income into
account in determining appropriateness of restitution orders and criminal
fines).

    In United States v. Fabregat, 902 F.2d 331 (5th Cir. 1990), the court 
of appeals explicitly considered the question of whether the district 
court erred in considering the wealth of a criminal defendant's family 
when setting a $50,000 fine.  In this case the defendant was convicted 
of conspiring to possess drugs and possessing drugs with the intent to 
distribute.  In interpreting the federal sentencing guideline factor 
concerning "the ability of the defendant to pay the fine . . . in light
of his earning capacity and financial resources" (id. at 333), the Fifth 
Circuit stated that "[w]e cannot say as a matter of law that the wealth 
of an individual's family is never a financial resource which can be 
considered in determining defendant's ability to pay a fine. . . . [I]n
reality, the wealth of a defendant's family can be a very significant 
asset to the defendant in particular cases."  Id. at 334.  The Court took
note of the presentence report, stating that the defendant was a member of
a wealthy upper class family with significant financial resources, and 
that his family paid for his college education, legal expenses and other
expenses.  Id.  The Fifth Circuit did not find that this appreciation of
the family's broader financial picture somehow turned the defendant's
relatives into convicted drug dealers.  Instead, the Court simply took 
a pragmatic approach which recognized the family's "willingness to share
their significant resources" with the defendant.  Id.  It appears that
this approach has also been adopted by at least one court in the civil
penalty context.[7]  See FTC v. Hughes, 710 F.Supp. 1524, 1530 (N.D.
Texas 1989), appeal dismissed, 891 F.2d 589 (5th Cir. 1990) (in 
determining a defendant's ability to pay a civil penalty, pursuant
to the FTC statute, judge takes into account the adjusted gross income
of the defendant and his wife).   

    In determining an individual's "ability to continue in business"
for purposes of setting a penalty under 110(c), the relevant inquiry
must be: what is the individual's discretionary income?  This 
determination is inevitably affected by his family situation: does 
the individual's spouse work?  Are there dependent children?  What
are the household expenses?  If his wife did not have any income, yet
incurred sizeable expenses, would the majority insist on recognizing 
only Steen's individual expenses?  Conversely, what if his wife earned 
five times the amount of annual income as Steen, and he continued to 
have access to all of her funds?  Wouldn't a penalty that failed to 
take her financial situation into account provide him with a windfall 
discount?  For these very practical reasons, therefore, I decline to
place the income and expenses of an individual's family under a shield
when reviewing a penalty under section 110(c).[8]

    Moreover, I fundamentally disagree with the majority's interpretation
of the Commission's decision in Sunny Ridge Mining Co., 19 FMSHRC 254 
(February 1997).  When we held that judges must make findings on the
section 110(i) penalty criteria as they apply to "individuals" (id at
272), we meant "individuals" as opposed to "operators" (to whom the 
statutory criteria were clearly directed), not individuals as opposed
to families.  Our opinion in Sunny Ridge did not give judges the green 
light to strip an individual of his or her joint assets and expenses 
when setting a penalty.  It simply delineated the clear difference
between applying the statutory criteria to a person as opposed to a
business.  Similarly, when we remanded this case with instructions
that, pursuant to Sunny Ridge, the relevant inquiry was "whether the
penalty will affect the individual's ability to meet his financial 
obligations" (Ambrosia Coal & Constr. Co., 19 FMSHRC 819, 824 (May 1997)),
we meant personal obligations as opposed to the business obligations of 
the operator.

    For the foregoing reasons, I cannot find as a matter of law that
the judge erred in taking Steen's household financial situation into
account when setting the penalty.  Nonetheless, I agree with the majority,
although for different reasons than those relied on by my colleagues, 
that the penalty set by the judge was excessive.  

    In assessing Steen's financial situation, the judge determined that
after meeting household expenses, Steen had available a monthly family
income of $191.  19 FMSHRC at 1475.  He ordered Steen to pay a $2000
penalty, at a rate of approximately $166 per month for 12 months. 
Id. at 1476.  This represents approximately 90% of the Steen family's
discretionary monthly income.  For the Steen family, which has virtually
no savings (Stipulation, Ex. C), this penalty leaves no safety net in
case of a financial emergency.  Even if no exigent circumstances occur,
the penalty will have a severe impact not only on Steen, but on his
entire family.  

    Although "a judge's assessment of a penalty is an exercise of
discretion, assessments lacking record support, infected by plain error,
or otherwise constituting an abuse of discretion are not immune from 
reversal."  Secretary of Labor on behalf of Carroll Johnson v. Jim 
Walter Resources, Inc., 18 FMSHRC 552, 556 (April 1996) (citations
omitted).  Here, the judge abused his discretion in setting a penalty
so excessive that it would inevitably lead to great hardship for Steen
and his family.  Accordingly, I would reduce the penalty, and agree 
with the majority that a reduction of the penalty to $1200 is 
appropriate.

                        
                                       Mary Lu Jordan, Chairman


Distribution


Frank G. Verterano, Esq.
Verterano & Monolis
2622 Wilmington Road
New Castle, PA 16105-1530

Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA  22203

Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041


**FOOTNOTES**

     [1] Section 77.404(a) provides:  "Mobile and stationary machinery 
and equipment shall be maintained in safe operating condition and 
machinery or equipment in unsafe condition shall be removed from
service immediately."

     [2] Section 110(i) of the Mine Act requires the Commission to
consider six criteria in assessing appropriate civil penalties:  

     [1] the operator's history of previous violations, [2] 
     the appropriateness of such penalty to the size of the business 
     of the operator charged, [3] whether the operator was negligent, 
     [4] the effect on the operator's ability to continue in 
     business, [5] the gravity of the violation, and [6] 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).

     [3] The Commission has also noted that "the purpose of civil penalties
[under the Mine Act] is to 'convinc[e] operators to comply with the Act's
requirements.'"  Ambrosia I, 18 FMSHRC at 1565 n.17 (also citing 
Consolidation Coal Co., 14 FMSHRC 956, 965 (June 1992), which recognized
the importance of the deterrent effect of civil penalties). 

     [4] Our colleague cites FTC v. Hughes as an example of a civil
penalty being assessed on the basis of the household income of 
a defendant and his wife.  Slip op. at 10 (citing 710 F. Supp.
1524, 1530 (N.D. Texas 1989), appeal dismissed as untimely, 891
F.2d 589 (5th Cir. 1990)).  We do not find the Hughes case 
relevant, however, because the propriety of the penalty 
calculation made in that case was not at issue; in fact, the
wife's financial situation is not mentioned at all.
	 
     [5] My colleagues state that they are in agreement with the 
Secretary's position.  Slip op. at 5.  Frankly, I find it somewhat 
difficult to ascertain what that position is since she claims that 
"[a]lthough Steen's individual financial position must be analyzed
within the context of the family's financial position . . . an 
adjustment is necessary to refocus the analysis on the financial 
position of Steen, the individual."  S. Br. at 9.  By insisting on 
taking both family and individual financial matters into account,
without an explanation of how one should relate to the other, the 
reasoning of the Secretary remains fairly opaque. 

     [6] The Seventh Circuit, in affirming a $100,000 criminal fine,
based in part on an evaluation of assets titled in the name of the 
defendant's putative common-law wife, held that it would be "contrary
to the intent of Congress and the Sentencing Commission to exclude
from consideration property that, although titled in another's name,
in fact remains within the defendant's dominion and control."  United
States v. Granado, 72 F.3d 1287, 1294 (7th Cir. 1995).

     [7] Although I recognize, of course, that this 110(c) proceeding 
is a civil one, the issue of how to view financial resources when setting
a penalty transcends the civil/criminal distinction.  Consequently, for
purposes of determining whether a penalty should be based on individual
or household income, both civil and criminal cases are relevant.  Both
types of laws permit an adjudicatory body to order monetary sanctions
against the named civil or criminal defendant.  Neither type was enacted
with the intent to adversely affect the individual's family.

     [8] Moreover, the majority's approach could encourage some individual
 mine directors, officers or agents to convert the title of assets
they own or control from their names into the names of family members,
so that such assets will not be considered in assessing a penalty under
110(c).