_________________________________
)
In the Matter of JESSE J. WOODS )
d/b/a J & W DRUM SERVICE, )
)
Respondent. )
_________________________________)
ACTION ON APPEAL
Background
On June 30, 2000, the Chief Counsel, Research and Special
Programs Administration (RSPA), U.S. Department of Transportation,
issued an Order to Mr. Jesse J. Woods d/b/a J & W Drum Service
(Respondent) assessing a penalty in the amount of $2,000 for
the following violation of the Hazardous Materials Regulations
(HMR), 49 C.F.R. Parts 171-180:
Representing, certifying, marking, and selling
reconditioned drums as meeting the requirements of the HMR,
when Respondent failed to apply the required internal air
pressure and the proper markings, in violation of 49 C.F.R.
§§ 171.2(c), 171.2(f), 173.28(b)(2), and 178.503(c).
In the Order, which is incorporated herein by reference,
RSPA's Chief Counsel assessed the $2,000 civil penalty originally
proposed in the March 8, 2000 Notice of Probable Violation
(Notice). By letter dated July 27, 2000, Respondent submitted
a timely appeal of the Order.
Discussion
Based on inspections conducted at Respondent's customer
and Respondent's own facility, RSPA alleged in the Notice
that Respondent had represented, marked, and sold reconditioned
55-gallon plastic drums when he did not have an air gauge
and could not assure that he was leakproof testing drums to
an internal air pressure of at least 48 kPa (7 psi) for drums
certified to the Packing Group I performance standard, and
at least 20 kPa (3 psi) for drums certified to the Packing
Group II and III performance standards. RSPA also alleged
that Respondent marked drums "DOT IMPROVED M5224 [year]" rather
than marking these drums with the name of the country in which
the reconditioning was performed, the name and address or
registered symbol of the reconditioner, the last two digits
of the year of reconditioning, the letter "R" and, for every
drum that passed the leakproofness test, the additional letter
"L." 49 C.F.R. §§ 178.503(c), 173.28(b)(2).
Respondent did not submit a written response to the Notice,
in the Order, the Chief Counsel assessed the $2,000 civil
penalty proposed in the Notice. However, neither the Notice
nor the Order specifically considered the fact that, in early
2000, Respondent visited RSPA's inspector and showed him a
pressure gauge that Respondent had purchased. At that time,
RSPA's inspector advised Respondent to provide a photograph
or other evidence that Respondent had actually installed the
pressure gauge and was using the gauge when he reconditioned
drums.
In his appeal letter, Respondent stated that he had fully
corrected the violation in this case. He referred to his visit
with RSPA's inspector in early 2000, and he provided a sample
of the revised marking (USA/M5224/00RL) that he was placing
on reconditioned drums.
According to RSPA's inspector, Respondent was a very small
operation that appears to have gone out of the business of
reconditioning drums. Earlier this year, RSPA's inspector
found that Respondent's former place of business was locked
and there was no one present. One certified letter from RSPA's
Office of the Chief Counsel has been returned as "UNCLAIMED,"
and there has not been any response to a second letter inviting
Respondent to submit additional information about the actions
he has taken to correct the violation in this case, the size
of his business, and his financial condition.
The small size of Respondent's business and the partial
evidence of corrective actions warrant reduction of the penalty
to $1,500.
Findings
I have determined that there is sufficient information to
warrant mitigation of the civil penalty assessed in the Chief
Counsel's Order. I find that a civil penalty of $1,500 is
appropriate in light of the nature and circumstances of these
violations, their extent and gravity, Respondent's culpability,
Respondent's lack of prior offenses, Respondent's ability
to pay, the effect of a civil penalty on Respondent's ability
to continue in business, and all other relevant factors.
Therefore, as modified herein, the Order of June 30, 2000,
is affirmed as being substantiated in the record and as being
in accordance with the assessment criteria prescribed in 49
C.F.R. § 107.331.
Payment
Due Date. Respondent must pay this $1,500 civil penalty
within 30 days of the date of this Action on Appeal.
Payment Method. Respondent must pay the civil penalty
by (1) wire transfer, (2) certified check or money order,
or (3) credit card via the Internet:
- Wire Transfer.
Detailed instructions for sending a wire transfer through
the Federal Reserve Communication System (Fedwire) are
contained in the enclosure to this Acton on Appeal. Please
direct questions concerning wire transfers to:
Financial Operations Division (AMZ-120)
Federal Aviation Administration
Mike Monroney Aeronautical Center
P.O. Box 25770
Oklahoma City, OK 73125
Telephone No. 405-954-4719.
- Check or Money Order.
Make your check or money order payable to "U.S. Department
of Transportation" (include the Ref. No. of this case
on the check or money order) and send it to:
Chief, Financial Operations Division (AMZ-120)
Federal Aviation Administration
Mike Monroney Aeronautical Center
P.O. Box 25770
Oklahoma City, OK 73125.
- Credit Card.
To pay electronically using a credit card, visit the
following website address and follow the instructions:
http://hazmat.dot.gov/hmenforce.htm
Interest and Administrative Charges. If Respondent pays
the civil penalty by the due date, no interest will be charged.
If Respondent does not pay by that date, the FAA's Financial
Operations Division will start collection activities and may
assess interest, a late-payment penalty, and administrative
charges under 31 U.S.C. § 3717, 31 C.F.R. § 901.9, and 49 C.F.R.
§ 89.23.
The rate of interest is determined under the above authorities.
Interest accrues from the date of this Action on Appeal. A
late-payment penalty of six percent (6%) per year applies
to any portion of the debt that is more than 90 days past
due. The late-payment penalty is calculated from the date
Respondent receives this Action on Appeal.
Treasury Department Collection. FAA's Financial Operations
Division may also refer this debt and associated charges to
the Department of the Treasury for collection. The Department
of the Treasury may offset these amounts against any payment
due Respondent. 31 C.F.R. § 901.3.
Under the Debt Collection Act (see 31 U.S.C. § 3716(a)),
a debtor has certain procedural rights prior to an offset.
The debtor has the right to be notified of: (1) the nature
and amount of the debt; (2) the agency's intention to collect
the debt by offset; (3) the right to inspect and copy the
agency records pertaining to the debt; (4) the right to request
a review within the agency of the indebtedness; and (5) the
right to enter into a written agreement with the agency to
repay the debt. This Action on Appeal constitutes written
notification of these procedural rights.
Final Administrative Action
This decision on appeal constitutes the final administrative
action in this proceeding.
/s/ Edward A. Brigham
Edward A. Brigham
Acting Deputy Administrator
Date Issued: July 10, 2001
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