______________________________
                              )					  
In the Matter of Metroline    )
Industries, Inc.,             )     Ref. No. 98-091-SC-EA 
Respondent.                   )
______________________________)

On December 31, 1998, the Office of the Chief Counsel of the Research and Special Programs Administration (RSPA), U.S. Department of Transportation (DOT), issued an Order to Metroline Industries, Inc. (Respondent) assessing a penalty in the amount of $15,000 and finding that Respondent had knowingly committed the following violations of the Hazardous Materials Regulations (HMR), 49 C.F.R. Parts 171-180:

Violation #1 - Offering for transportation in commerce compressed gas cylinders without preparing a shipping paper, in violation of 49 C.F.R. ßß 171.2(a), 173.22(a)(1) and 172.200(a).

Violation #2 - Offering for transportation in commerce compressed gas cylinders without providing the motor carrier with the required placards, in violation of 49 C.F.R. ßß 171.2(a) and 172.506(a).

Violation #3 - Allowing an employee to perform a function covered by the HMR without providing hazardous materials training and failing to maintain hazardous materials training records, in violation of 49 C.F.R. ßß 171.2(a) and 172.702(b).

The Order, which is incorporated herein by reference, was issued after Respondent failed to respond to an August 5, 1998 Notice of Probable Violation (NOPV). The NOPV proposed a $15,000 civil penalty. By a January 28, 1998 letter, Respondent submitted a timely appeal of the Order.

Respondent is a manufacturer of vacuum pumps and uses hazardous materials as part of its business activities. On November 14, 1997, the Abington Police Department, Abington, Pennsylvania, contacted the Eastern Region, Office of Hazardous Materials Enforcement (OHME). The Abington Police Department reported that a motor vehicle, operated by a local moving and storage company, had been involved in a traffic incident and destroyed by fire. The Abington Police Department stated that, at the time of the incident, the vehicle was transporting 24 compressed gas cylinders. OHME contacted the moving and storage company and determined that Respondent had offered the compressed gas cylinders for transportation in commerce. During the course of a subsequent compliance inspection at Respondent's Marlton, New Jersey facility, RSPA inspectors discovered or verified the probable violations.

In its appeal, Respondent acknowledged that "it failed in total compliance with the letter of the law"; however, Respondent claimed there were "significant" mitigating factors. Respondent stated that it had taken "commercially reasonable steps to affect compliance." Respondent stated that it had relied on the moving company to prepare the shipping papers and to provide placards and trained employees. Respondent also stressed that 20 of the cylinders had been empty and that none contained a flammable gas. Respondent also emphasized that the fire was caused by a defect in the vehicle's transmission and not the compressed gas cylinders. Based on the information contained in its appeal, Respondent argued that any assessment was "unwarranted."

Although Respondent relied on a third party to transport the hazardous materials in commerce, the HMR also place responsibilities on the person who offers the hazardous material for transportation in commerce. The HMR require that each person who offers a hazardous material for transportation describe the hazardous material on the shipping paper in the manner required by the HMR. (See 49 C.F.R. ß 172.200(a).) In addition, the HMR require that each person offering a motor carrier a hazardous material for transportation by highway provide the motor carrier with the required placards. (See 49 C.F.R. ß 172.506(a).)

In addition, based on Respondent's offering the compressed gas cylinders for transportation in commerce, it was a "hazmat employer" and had a responsibility to provide hazardous materials training to those employees who had a direct effect on hazardous material transportation safety. (See 49 C.F.R. ß 171.8, Definition of Hazmat employer/Hazmat employee.) A shipper and a carrier have independent responsibilities, and Respondent cannot avoid its responsibilities because of its apparent reliance on a carrier.

In response to a March 10, 1999 request for documentation of the corrective actions described in its appeal letter, Respondent submitted several documents. A review of these documents indicates that, following the vehicle fire, Respondent provided hazardous material training to its personnel. In addition, Respondent stated that it had changed its hazardous materials shipping procedures and reviewed these procedures with its personnel.

Based on Respondent's failure to respond to the NOPV, Respondent's corrective actions were not considered in the Order. The record now contains documentation of Respondent's corrective actions, and these actions justify mitigation of the civil penalty. However, Respondent's corrective actions do not justify a complete waiver of the penalty.

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 $11,800 is appropriate in light of the nature and circumstances of the 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, the December 31, 1998 Order is hereby modified to reflect the findings contained herein.

Respondent must make payment 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: Financial Operations Division, Federal Aviation Administration, Mike Monroney Aeronautical Center, AMZ-320, P.O. Box 25770, Oklahoma City, OK 73125 or call 405-954-4719.

If the $11,800 is paid in accordance with the terms 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 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. ß 3717, 4 C.F.R. ß 102.13, and 49 C.F.R. ß 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 that 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 this amount against any payment due Respondent. 4 C.F.R. ß 102.3.

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

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

Date Issued: December 16, 1999

Enclosure