_______________________________
)
In the Matter of Pingxiang )
Fireworks & Firecrackers )
Industries Corporation )
) Ref. No. 97-033-FSE-HQ
Respondent )
______________________________ )
ACTION ON APPEAL
Background
On March 31, 1997, the Office of the Chief Counsel of the
Research and Special Programs Administration (RSPA), U.S.
Department of Transportation (DOT), issued an Order to Pingxiang
Fireworks & Firecrackers Industries Corporation (Respondent),
finding that Respondent had knowingly committed the following
two violations of the Hazardous Materials Regulations (HMR),
49 C.F.R. Parts 171-180, and assessing a penalty in the
amount of $24,000, payable over 12 months:
1. Offering for transportation in commerce a new
explosive device which had not been examined and assigned
a recommended shipping description and hazard class
by Dr. W. S. Chang (formerly of the Bureau of Explosives)
or the National Institute for Occupational Safety
and Health (NIOSH) (formerly known as the Bureau of
Mines) and classed and approved by the Associate Administrator
for Hazardous Materials Safety, or examined, classed
and approved by any of the other agencies specified
in 49 C.F.R. § 173.54(a), and thus was forbidden for
transportation, 49 C.F.R. §§ 171.2(a), 173.51(a),
173.54(a) and 173.56.
2. Offering for transportation in commerce an
explosive, Fireworks 1.3G, which was improperly classed
as Fireworks 1.4G, 49 C.F.R. §§ 171.2(a), 172.202(a)(2),
172.202(a)(3), 172.301(a)(1) and 172.400(a)(1).
The Order, which is incorporated herein by reference, modified
the $30,100 civil penalty originally proposed in the February 3,
1997 Notice of Probable Violation (Notice). By letter dated
May 28, 1997, Respondent submitted a timely appeal of
the Order.
Discussion
Respondent is a foreign corporation that exports fireworks
as part of its business activities. On September 13, 1996,
RSPA was notified by the United States Customs Service in
Baltimore, Maryland, about a shipment of fireworks that appeared
to be either unapproved or misclassed. On October 1, 1996,
RSPA conducted an inspection of the shipment of fireworks
and determined that several cases of fireworks had not been
approved as required under the HMR and, therefore, were forbidden
to be offered for transportation in the U.S. RSPA also discovered
several cases of fireworks that were improperly classed as
1.4G instead of the proper 1.3G. As a result of this misclassification,
the packages were also misdescribed, mismarked and mislabeled.
Respondent has not denied these violations. In its February 20,
1997 response to the exit briefing issued by RSPA and its
February 28, 1997 written response to the Notice, Respondent
requested relief from the proposed civil penalty based on
the fact that it was unaware of the HMR requirements and on
its current financial status. Respondent indicated that it
would never again ship the unapproved explosive at issue to
the U.S. and that it would ensure that any future shipment
of its approved fireworks would be properly marked. Concerning
its financial status, Respondent stated, "I think I have
to stop our business if the penalty is decided." Respondent
submitted a current balance sheet with its response to the
Notice.
Based on the information contained in Respondent’s letters,
the penalty proposed in the Notice was reduced to $24,000,
payable in 12 monthly installments of $2,000 each.
In its appeal, Respondent again requested relief from the
assessed civil penalty due to its financial status. Respondent
stated that its current financial situation is very bad and
that it is unable to pay the fine. In addition, Respondent
indicated that it is a small, newly established company and
that it is new to the U.S. export market. Finally, Respondent
indicated that the size of the shipment, approximately 500
cartons, was small and that fact should be taken into account.
RSPA does not agree with Respondent’s contention that a shipment
of approximately 500 cartons of unapproved and misclassed
explosives is small or insignificant.
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 an $18,000 civil penalty, payable
in
18 monthly installments of $1,000 each 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.
In all other respects, the Chief Counsel’s March 31, 1997
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.
Form of Payment
Each installment payment must be made in one of the following
two ways:
(1) by sending a 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 (AMZ-320), Federal Aviation Administration, Mike
Monroney Aeronautical Center, P.O. Box 25770, Oklahoma City,
OK 73125 (Telephone (405) 954-4719); or
(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 $18,000 civil penalty 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 as required, 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. § 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 this amount
against any payment due Respondent. 4 C.F.R. § 102.3.
Final Administrative Action
This decision on appeal constitutes the final administrative
action in this proceeding.
/s/ Kelly S. Coyner
Kelley S. Coyner
Administrator
Date Issued: October 4, 1998
Enclosure
REGISTERED MAIL - RETURN RECEIPT REQUESTED
| Original to: |
Pingxiang Fireworks and Firecrackers
Industries Corporation
3# Guangchang Road
Pingxiang, Jiangxi
China |
|
