______________________________
                              )					  
In the Matter of              )
JOHN K. DUSSIA,               )     Ref. No. 98-215-SB-EA 
Respondent.                   )
______________________________)

On February 11, 1999, the Chief Counsel, Research and Special Programs Administration (RSPA), U.S. Department of Transportation, issued an Order to John K. Dussia (Respondent) assessing a penalty in the amount of $4,000 for two violations of the Hazardous Materials Regulations (HMR), 49 C.F.R. Parts 171-180.

The Order, which is incorporated herein by reference, found that Respondent knowingly offered for transportation in commerce two DOT specification 4DS cylinders containing compressed gas (bromotrifluoromethane pressurized with nitrogen) without describing this material on a shipping paper (violation No. 1), and without properly marking the outer box containing the cylinders (violation No. 2), in violation of 49 C.F.R. §§ 171.2(a), 172.200(a), 172.201, 173.25(a)(2), and 173.25(a)(4).

The Order reduced the $6,000 civil penalty originally proposed in the January 29, 1998 Notice of Probable Violation (Notice). By letter received March 4, 1999, Respondent submitted a timely appeal of the Order.

The cargo compartments of certain airplanes are equipped with cylinders containing an inert gas which functions as a fire suppression system upon activation by the pilot. Among the cylinders that are used in this system are those manufactured to DOT specification 4DS, which must be periodically retested to assure that they are qualified for continued use.

At the time of these violations, Respondent was a self-employed aircraft mechanic. From an airplane he was servicing, Respondent removed for retesting two 4DS cylinders containing bromotrifluromethane pressurized with nitrogen, packaged the cylinders in a fiberboard box, and shipped the package by air from Florida to Texas. However, the air carrier (Federal Express) was unaware that the box contained any hazardous material because Respondent failed to indicate in any manner that the box contained a hazardous material. The Notice alleged that Respondent failed to describe the compressed gas on a shipping paper or to mark the box with the proper shipping name and identification number of this material.

Undeclared shipments of hazardous materials present a great risk to the carrier and the public, especially in air transportation. Without the knowledge that a package contains hazardous materials, the carrier cannot assure that the packaging is proper or take any other steps to transport the materials safely. In the event of an incident, the carrier and emergency responders are unaware of the hazards presented by the shipment and are hindered in responding properly. A hazardous material incident in air transportation may cause the loss of the airplane, crew, and passengers; it may also cause additional damage to people, property, and the environment on the ground.

Respondent has not denied these violations, nor has he disputed their seriousness. Except for changing jobs, he has not taken any actions to correct these violations or to prevent future violations of the HMR. He stated that he could not provide evidence of corrective actions (because he was a "lone mechanic" without the capability to take a class) and that he had changed jobs and is no longer involved in shipping any hazardous materials.

[Personal information deleted.]

One finding in the Order requires correction, although it does not warrant any change in the penalty. The Notice alleged and the Order found that Respondent failed to mark an "overpack" properly. In this case, the fiberboard box in which Respondent packed the two 4DS cylinders appears to have been a "strong outside packaging" as required by 49 C.F.R. § 173.301(k); it was not an "overpack" because it was not an enclosure used at the option of "a single consignor to provide protection or convenience in handing to a package or to consolidate two or more packages." Accordingly, Respondent was required only to mark the box with the proper shipping name and identification number, under 49 C.F.R. § 172.301(a). The requirements for marking overpacks in 49 C.F.R. § 173.25(a) do not apply, and Respondent did not need to indicate that the inside packages comply with prescribed specifications. This does not diminish the seriousness of Respondent's violations, which involved the shipment of an undeclared hazardous material, and deprived the carrier of knowledge about the hazardous nature of the material it transported.

It appears that the Notice could have also alleged that Respondent failed to affix a hazard class warning label to the box, as required by 49 C.F.R. § 172.400; that he failed to provide the emergency response information and telephone number required by 49 C.F.R. §§ 172.600(c) and 172.604(a); and that he performed functions subject to requirements in the HMR without having been trained, in violation of 49 C.F.R. § 172.702(b). These potential additional violations were not considered in setting the penalty in the Order, but they indicate the total circumstances of Respondent's violations. The penalty assessed in the Order is fully justified, and further reduction is not justified in the absence of more information about Respondent's financial condition.

The Order of February 11, 1999, is modified to the extent of finding that, in violation No. 2, Respondent violated 49 C.F.R. §§ 171.2(a) and 172.301(a) by not marking the outer packaging with the proper shipping name and identification number. I am setting aside the finding that Respondent violated 49 C.F.R. §§ 173.25(a)(2) and 173.25(a)(4) by not marking an overpack as specified in those provisions. In all other respects, the Order 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.

I have determined that there is not sufficient information to warrant mitigation of the civil penalty assessed in the Chief Counsel's Order. I find that a civil penalty of $4,000 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.

Respondent must pay this $4,000 civil penalty within 30 days of the date of issuance of this Action on Appeal in either of the following two ways:

1) by wire transfer, through the Federal Reserve Communications System (Fedwire), to the account of the U.S. Treasury. Detailed instructions are contained in the enclosure to this Order. Questions concerning wire transfers should be directed to: Financial Operations Division (AMZ-320), Federal Aviation Administration, Mike Monroney Aeronautical Center, P.O. Box 25770, Oklahoma City, OK 73125 (Telephone 405-954-4719).

(2) by sending a certified check or money order (containing the Ref. No. of this case) payable to "U.S. Department of Transportation" to the Financial Operations Division (AMZ-320), Federal Aviation Administration, Mike Monroney Aeronautical Center, P.O. Box 25770, Oklahoma City, OK 73125.

If the $4,000 civil penalty is paid within 30 days of the date of issuance of this Action on Appeal, no interest will be charged. If, however, the civil penalty is not paid by that date, the Financial Operations Division of the Federal Aviation Administration will assess interest and administrative charges, and it will initiate collection activities on the debt and those charges. Interest on the debt will accrue from the date of issuance of this Action on Appeal at the applicable rate in accordance with 31 U.S.C. § 3717, 4 C.F.R. § 102.13, and 49 C.F.R. § 89.23. Pursuant to those same authorities, a late-payment penalty of six percent (6%) per year will be charged on any portion of the debt that is more than 90 days past due. This penalty will accrue from the date this Action on Appeal is received. This debt and associated charges are also subject to referral to the Department of the Treasury for collection, and the Department of the Treasury may offset these amounts against any payment due Respondent.

This decision on appeal constitutes the final administrative action in this proceeding.

/s/ Kelley S. Coyner
Kelley S. Coyner
Administrator

Date Issued: July 27, 1999

Enclosure