___________________________________                               
In the Matter of                   )         
                                   )       
GARY R. PROBST Formerly            )        
d/b/a Pro Divers Supply and/or     )     Ref. No. 95-59-CR-WE
or Puget Sound Divers              )                 
Association                        )        
                                   )     
Respondent                         )       
___________________________________)

ACTION ON APPEAL

Background

On March 11, 1996, the Chief Counsel, Research and Special Programs Administration (RSPA), U.S. Department of Transportation (DOT), issued an Order (the Order) to Gary R. Probst formerly doing business as Pro Divers Supply and/or Puget Sound Divers Association (Respondent) assessing a civil penalty for two violations of the Hazardous Materials (HMR), 49 C.F.R. Parts 171 - 180.

The Order, which is incorporated herein by reference, found that Respondent knowingly violated 49 C.F.R. §§ 171.2(c), 172.702(b), and 173.34(e)(3). The Order reduced the $3,280 civil penalty originally proposed in the February 13, 1995 Notice of Probable Violation (Notice) to $1,440. This reduction was based on an adjustment of the penalty for Violation 2 (because the regulatory safety training requirement is not applicable to cylinder retesters), and on statements from Respondent concerning the financial condition of the company. Based on Respondent’s statements of poor financial condition, the civil penalty was made payable in six monthly installments of $240 each. By letter dated March 26, 1996, Respondent submitted an appeal of the Order.

Discussion

The Order determined that Respondent committed two violations of the HMR. The Order found that Respondent knowingly violated the HMR by failing to: (1) increase test pressure by the lesser of 10% or 100 psi on a second retest, after test pressure could not be maintained on the first retest attempt due to failure of the retest equipment and (2) train its hazmat employees as required.

Respondent does not submit arguments or information to warrant modification of the findings in the Order. Respondent states that he wishes to appeal "the charges that have been brought against me" and states that he has never been given that opportunity. In his appeal, Respondent also states that to prepare his defense and show that he is "not to be held responsible for misuse of the hydrostation" he will need to have all the evidence that has been collected in this case, along with a copy of all the regulations that apply. Mr. Probst received a copy of all the evidence in the case, specifically a copy of the complete investigative report with exhibits, citing applicable regulations, when he received the Notice.

After the inspection and exit briefing conducted by the RSPA inspector, but prior to issuance of the Notice, Respondent submitted a November 18, 1994 letter in which he addressed each of the two probable violations. In this letter, Respondent cited the relevant HMR sections and explained the corrective actions that had been taken. Additionally, Respondent provided some documentation of corrective action for both probable violations. Based on this documentation, the baseline penalty amount in the Notice was reduced by $820.

On February 13, 1995, the Office of the Chief Counsel issued the Notice. Enclosed with the Notice mailed to Respondent was all the evidence in this case, the complete investigative/inspection report with exhibits. Respondent received this packet on February 29, 1995. The Notice and Order cited all applicable hazardous materials regulations.

On February 22, 1995, Respondent submitted his informal response to the Notice. In this response, Respondent did not address the two violations or provide additional documentation of corrective action. Respondent stated that the proposed civil penalty was excessive and that he could not pay the fine. Respondent stated that the information contained in a current Dun & Bradstreet report obtained by RSPA was incorrect because it had been based on Respondent’s exaggeration and hopeful projections. Respondent enclosed bank statements for 1994. Respondent stated that he kept the hydrostation part of his business as a convenience to customers and that it did not make money. Respondent stated that his business was not doing very well and was "near to going under." Respondent stated that he had closed down his bank account, was paying in cash, and had discharged his part-time employee. Respondent stated that if he had to pay the full proposed amount, he would have to close his business and declare bankruptcy. Respondent stated that the greatest amount that he could pay would be $250 per violation.

In a May 11, 1995 letter replying to Respondent, the Office of the Chief Counsel stated that it would attempt to work with Respondent to resolve the case without putting Respondent out of business or forcing him to declare bankruptcy. The Office of the Chief Counsel explained that, because Respondent is in business for himself and had not incorporated his business, RSPA must consider all of Respondent’s assets and liabilities, not just those relating to business activities. Therefore, the Office of the Chief Counsel requested a more complete statement of assets and liabilities, including personal assets and liabilities as well as those relating to the business.

In a letter received by the Office of the Chief Counsel on June 20, 1995, Respondent stated that he had moved to Canada because of increased employment opportunities, had closed down Pro Divers Supply and the Puget Sound Diving Association, and had over $250,000 in debts. Respondent did not provide the requested financial documentation.

On July 3, 1995, the Office of the Chief Counsel sent a letter to Respondent in Canada and stated that the Chief Counsel was prepared to consider a significant reduction of the proposed penalty if Respondent could provide documents to support his alleged poor financial condition. The Office of the Chief Counsel requested Respondent’s last two tax returns. After the July 3 letter was returned as undeliverable, the Office of the Chief Counsel sent another letter on August 1, 1995, to Respondent’s Washington address, again requesting financial documentation.

In an August 4, 1995 telephone conversation, Respondent stated that he would send copies of income tax returns for the last two years. On September 5, 1995, the Office of the Chief Counsel sent a letter to Respondent confirming this telephone conversation and requesting this documentation by the end of September.

Respondent did not submit the requested tax returns. After adjusting the penalty for Violation 2 because the safety training requirement is not applicable to cylinder retesters and considering Respondent’s statements of poor financial condition, the Chief Counsel issued an Order and reduced the civil penalty to $1,440 payable in six monthly payments of $240 each.

Findings

Having reviewed the record, I find that Respondent received and understood the allegations and evidence, that Respondent participated in each stage of these proceedings, and that no information has been submitted to warrant mitigation of the civil penalty assessed in the Order. I find that a civil penalty of $1,440 payable in six monthly payments of $240 each is appropriate in light of the nature and circumstances of these violations, their extent and gravity, Respondent’s culpability, 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, the March 11, 1995 Order is affirmed and the $1,440 civil penalty payable in six monthly installments is now due and payable, with the first payment due within 30 days of Respondent’s receipt of the Action on Appeal and each succeeding payment due every 30 days thereafter until the entire amount is paid.

If Respondent defaults on any payment of this installment schedule then, without further notice to Respondent, the entire amount of the remaining civil penalty is immediately due and payable as of the date that the first installment was due.

Respondent must make each installment payment either:

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 Action on Appeal. Questions concerning wire transfers should be directed to the Chief, Financial Operations Division, Federal Aviation Administration, Mike Monroney Aeronautical Center, AMZ-320, P.O. Box 25770, Oklahoma City, OK 73125 (Telephone - (405) 954-4719); or

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

If Respondent fails to pay this civil penalty in accordance with the terms of this Action on Appeal, the Financial Operations Division will assess interest and administrative charges and 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. Section 3717, 4 C.F.R. Section 102.13, and 49 C.F.R. Section 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 Action on Appeal constitutes the final administrative action in this proceeding.

Kelley S. Coyner
Acting Administrator

Date Issued: July 17, 1997

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

Original to:

Mr. Gary R. Probst Formerly d/b/a Pro Divers Supply and/or Puget Sound Divers Supply 9103 Veterans Dr., SW Tacoma, WA 98498 Mr. Gary R. Probst Formerly d/b/a Pro Divers Supply and/or Puget Sound Divers Supply 15355 24th Avenue Room 370 Surrey, BC V4A 2H9 CANADA