UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter of: SCOTT NOVAK 

FAA Order No. 2014-1 

FDMS No. FAA-2012-02061 

Served: January 2, 2014 

DECISION AND ORDER2 

I. Introduction 

Complainant Federal Aviation Administration ("Complainant") has appealed the 

written initial decision of Administrative Law Judge ("ALJ") Richard C. Goodwin. 3 The 

ALJ determined that Complainant failed to prove that Respondent Scott Novak 

("Respondent") "knowingly" offered an undeclared shipment of hazardous materials for 

':· .. :· ':',I , 

transportation by air in violation of: (1) thehazarg0 us materials transportation statute, 

' ') ', 

49 U.S.C., Subtitle III, Chapter 5i, §§ 5101-5'128; and (2) the hazardous materials 

regulations ("HMR"), 49 C.P.R. Parts 171;178 (2011 ).4 

This decision finds that Respondent did in fact act "knowingly" within the 

1 Materials filed in the FAA Hearing Docket (except for materials in security cases or 

materials under seal) are also available for viewing at the following Internet address: 

www. regulations. gov. 

2 The Administrator's civil penalty decisions, along with indexes of the decisions, the rules 

of practice, and other information, are available on the Internet at the following address: 

www.faa.gov/aboutlojfice _org/headquarters _offices/age/pol_ adjudication/ A GC400/ 

Civil_Penalty. In addition, Thomson Reuters/West Publishing publishes Federal Aviation 

Decisions. Finally, the decisions are available through ~EXIS (TRANS library) and WestLaw 

(FTRAN-FAA database). For additional information,.see the Web site. 

3

A copy of the ALI's decision, served on:nwri,l:q, 2013, is attached. 

4

The text of the specific provisipns a11egedly,vio1ated are included in the Appendix to this 

decision. ·. " · 
meaning of the hazardous materials transportation statute and regulations, and that a civil 

penalty of$1,200 is appropriate under all the facts and circumstances of this case. 

II. Facts 

Respondent flew to Anchorage, Alaska, to help his daughter and her husband 

move from Anchorage to Juneau, Alaska. (Tr. 175, 184. )

5 His daughter and son-in-law 

planned to put all their belongings in the back of their pickup truck and drive it to 

Juneau6 (Tr. 176, 181, 185.) When Respondent realized that everything would not fit in 

the pickup truck, he offered to bring some of their belongings to an Alaska Airlines cargo 

facility to ship by air. (Tr. 176, 181, 185.) 

On December 22, 20 II, Respondent drove the pickup truck filled with some of 

their belongings to the Alaska Airlines cargo facility and backed the truck onto the ramp. 

An Alaska Airlines ramp agent asked him what he had to ship, and he replied that he had 

"some furniture and household stuff." (Tr. 186, 192.) In a letter written to FAA Special 

Agent and Dangerous Goods Specialist Jeffrey Deitz, dated January 3, 2012, and attached 

to Complainant's First Set of Interrogatories as Exhibit D, at page I, Respondent wrote, 

"I did not pack any of the boxes and was under the assumption that we were shipping 

clothes, dishes, and furniture." The Alaska Airlines ramp agent helped Respondent place 

the goods, which included a mattress, cardboard boxes, and a grill, onto pallets. (Tr. 59, 

187.) The shipment consisted of II pieces on four pallets, together weighing 

5 Citations to the Hearing Transcript are as follows: "Tr. [page number(s)]." 

6 Complainant has noted that it would have been necessary for Respondent to have taken 

a ferry as part of the trip, by truck, from Anchorage to Juneau. 

2 
556 pounds. (Tr. 60; Exhibit A-9. )

7 An Alaska Airlines employee used a forklift to 

move the pallets into the building. (Tr. 187.) 

The Alaska Airlines ramp agent completed a company form called a "half-sheet." 

(Exhibit A-9.) On the half-sheet, the ramp agent indicated that the shipment consisted of 

"Furniture/Household Supplies." (!d.) The ramp agent also placed check marks next to 

"Boxes checked for dangerous goods' markings," and "Went over DG [dangerous goods] 

trigger terms with customer." (Exhibit A-9; Tr. 71-72.) 

For Alaska Airlines, terms like "household goods," "camping goods," "hunting 

gear," and "toolbox" are "trigger terms." If an offeror refers to goods by a trigger term, 

then the Alaska Airlines employee receiving the goods should ask questions designed to 

uncover whether the shipment contains any hazardous materials. (Tr. 47, 73, 147, 148.) 

For example, the Alaska Airlines employee could ask: 

• "Do you have any hazardous materials?" 

• "Do you have any aerosols?" 

• "Do you have anything that could start a fire?" 

• "Do you have anything that is under pressure?" 

• "Do you have anything explosive, radioactive, or corrosive?" 

• "Do you have any chemicals?" 

(Tr. 62, 79.) Respondent testified, however, that at no point did an Alaska Airlines 

employee ask him what was in the boxes. (Tr. 199.) 

7 The exhibits from the hearing are labeled as follows. The agency's exhibits- i.e., 

Complainant's exhibits- are labeled "Exhibit A-[ number]." Respondent's exhibits are labeled 

"Exhibit R-[number]." 

8 Technically, the international term is "dangerous goods" and the U.S. term is 

"hazardous materials," but the terms are used interchangeably. (Tr. 33, 63, 159.) 

3 
The ramp agent handed a copy of the half: sheet to Respondent, and Respondent 

took it inside the glass doors to the agent at the counter in the cargo service office. There 

was a hazardous materials poster inside the cargo service office that read as follows: 

Dangerous Goods Notice 

Hazardous Material Warning 

Cargo containing hazardous materials (dangerous goods) for 

transportation by aircraft must be offered in accordance with the Federal 

Hazardous Material Regulations ( 49 CFR Parts 171 through 180). 

A violation can result in five years' imprisonment and penalties of 

$250,000 or more (49 U.S.C. § 5124). 

Hazardous materials (dangerous goods) includes explosives, compressed 

gases, flammable liquids and solids, oxidizers, poisons, corrosives, and 

radioactive materials. 

(Exhibit A-29, italics in the original; Tr. 82, 84.) Respondent testified, however, that he 

did not recall seeing any signs addressing dangerous goods or hazardous materials. 

(Tr. 197-98.) 

Inside the cargo service office, an Alaska Airlines employee prepared an air 

waybill for Respondent's shipment. (Tr. 187.) Under "Nature of Goods," the air waybill 

stated, "Furniture, Mattress." (Exhibit A-7.) Like the half-sheet, the air waybill indicated 

that the shipment consisted of 11 pieces together weighing 556 pounds. (Exhibit A-7.) 

Respondent paid Alaska Airlines by credit card. As part of the electronic 

transaction, he selected the button that read, "This shipment DOES NOT contain 

dangerous goods." (Exhibit A-18; Tr. 50.) The next screen stated, "This shipment DOES 

NOT contain hazardous materials. Please initial in the box below and press DONE when 

complete." (Exhibit A-19; Tr. 50.) Respondent initialed in the box and pressed DONE. 

(Exhibit A-7.) 

4 
The Alaska Airlines employee printed the air waybill, which contained the 

following statement: 

Shipper certifies that the particulars on the face hereof are correct 

and that insofar as any part of the consignment contains dangerous goods, 

such part is properly described by name and is in proper condition for 

carriage by air according to the applicable Dangerous Goods Regulations. 

I consent to the inspection of this cargo. 

(Exhibit A-7.) The air waybill contains Respondent's signature indicating his assent to 

this statement. It also contains his initials next to the statement that, "THIS SHIPMENT 

DOES NOT CONTAIN DANGEROUS GOODS." (Exhibit A-7; Tr. 71.) His initials 

and signature were derived from the electronic transaction. (Tr. 71.) 

Sometime after Respondent completed the transaction and left the Alaska Airlines 

facility, an Alaska Airlines employee found hazardous materials in Respondent's 

shipment. (Tr. 30, 151.) When the employee opened the grill, she found a 32-ounce 

bottle of Safeway odorless charcoal lighter fluid and a 6.5-ounce can of Repel insect 

repellent, both hazardous materials. (Exhibits A-1 through A-6.) This discovery 

triggered a physical search of the rest of the shipment, uncovering additional materials 

that were classified as hazardous materials under the HMR. 

Specifically, the following hazardous materials were found inside one of the 

cardboard boxes: one 1 0-ounce can of Moroccanoil hairspray; one bottle of nail polish; 

one bottle of Safeway nail polish remover, and one 7-ounce can of Gillette Fusion Hydra 

shaving gel. (Tr. 30-31.) There were 15 bottles of nail polish in another cardboard box.9 

(Exhibits A-1 through A-6.) The proper shipping names, hazard classes, packing groups, 

9 One bottle of perfume, which may be a hazardous material, was included in the 

shipment, but Complainant did not include it in the complaint. (Exhibits A-1, A-6.) 

5 
and identification numbers for these hazardous materials, which are derived from the 

Hazardous Materials Table in 49 C.F.R. § 172.101, are set forth in the chart below: 

Hazardous Proper Hazard Class Packing Group Identification 

Material Shinnin!! Name Numbers 

Safeway Petroleum 3 (Flammable III UN 1268 

charcoal Distillates, Liquids) 

lighter fluid N.O.S. 

Repel insect Aerosols, 2.1 (Flammable Not applicable UN 1950 

repellent Flammable Gases) 

Moroccanoil Aerosols, 2.1 (Flammable Not applicable UN 1950 

hairs pray Flammable Gases) 

Nail polish Paint 3 (Flammable II UN 1263 

Liquids) 

Nail polish Acetone 3 (Flammable II UN 1090 

remover Solutions Liquids) 

Gillette Aerosols, 2.1 (Flammable Not applicable UN 1950 

Fusion Flammable Gases) 

Hydra 

shaving gel 

The HMR (see the Appendix) require offerors to provide shipping papers that 

appropriately describe and certify the hazardous materials. See, e.g., 49 C.F .R. 

§§ 172.200(a), 172.202(a), 172.204 (containing some of the requirements for shipping 

papers). Offerors must place hazardous materials markings on the packages. 49 C.F.R. 

§§ 172.300(a), 172.30l(a). They must place hazardous materials labels on the packages. 

49 C.F.R. § 172.400(a). And they must provide emergency response information. 

49 C.F.R. § 172.604(a). UN identification numbers and proper shipping names must be 

on all packages, and they are used in an emergency by first responders to determine what 

firefighting and first aid measures to use. (Tr. 113-14.) In the instant case, Respondent 

did not provide the required shipping papers, labels, markings, and emergency response 

information for the shipment. 

6 
Respondent stated in paragraph I of his response to Complainant's request for 

admissions that, "To the best of my knowledge, all the stuff my daughter asked me to 

ship was just household goods and not anything that was serious." Respondent also 

wrote in paragraph 3 of that response that the air waybill stated that "the shipment was 

furniture, mattress and GEN SOA (sic)/ 0 which is what I was told was in the containers." 

In paragraph I of Respondent's response to interrogatories, he wrote, "I didn't have a 

clue that there was any fingernail polish in the shipment. The contents were described by 

my daughter as household goods, including a mattress and other stuff she needed moved 

to Juneau. There wasn't any discussion about anything being dangerous in the boxes." 

At the hearing, Respondent's daughter testified that she packed everything, and 

because they originally did not intend to ship any oftheir goods by air, she was not 

concerned about any possible hazardous materials. (Tr. 176.) She also testified that she 

was unaware that any ofthe items would be considered hazardous and thus could not be 

shipped. (Tr. 179.) Everyone she knew took hairspray on vacation, she stated. (!d.) 

She also testified that her father did not know that any of the items in question 

were present because she packed everything and "he was not there when I packed it." 

(Tr. 176.) At another point, however, she testified that her father was indeed present 

when she was taping up the boxes, but that he did not look inside any of the boxes or ask 

what was in them. (Tr. 180.) She said that he never asked her if there were any 

hazardous materials and she never told him. (Tr. 176, 180.) 

Respondent testified that at no point did an Alaska Airlines agent ask him what 

was in the boxes. (Tr. 199.) He testified that after he walked in and handed the air 

10 "GEN SOA'' indicated that Respondent was a general, unknown shipper in the state of 

Alaska. (Tr. 40.) 

7 
waybill to the Alaska Airlines employee, the latter keyed the information into the 

computer and asked, "Are you ready to swipe your credit card?" He testified that after he 

swiped his card, a series of questions appeared on the credit card machine. (Tr. 199.) He 

testified that he checked "No," and signed his initials in response to one question, "Are 

there any dangerous materials?" (I d.) Respondent also testified that he indicated on the 

computer screen that the shipment did not contain hazardous materials, initialed, accepted 

the price, and signed. (Tr. 202.) 

When asked during direct examination why he selected the box that states, "Does 

not contain any hazardous materials," Respondent testified that he did so because, to the 

best of his knowledge at the time, there were no hazardous materials. (Tr. 200.) He 

testified that he thought that his daughter and son-in-law were shipping clothes, dishes, 

dirty laundry, and furniture. (Id.) 

Respondent testified that he never knowingly offered materials that were 

hazardous or dangerous. (Tr. 203.) To the best of his knowledge, there was nothing 

hazardous or dangerous. (Tr. 204, 208.) He testified that he had no way of knowing 

what was in the shipment because he did not pack the things. Instead, he just pulled 

items out of the pickup truck and put them on the pallet, as directed by the Alaska 

Airlines ramp agent. (Tr. 203-04.) Respondent testified that if he had known the 

hazardous materials were in the shipment, he still probably would have declared that they 

were not hazardous, with the possible exception of the lighter fluid, because he did not 

know that nail polish, nail polish remover, hairspray, shaving cream, and insect repellent 

were hazardous materials. (Tr. 205, 206, 208.) 

8 
Respondent testified that no one specifically asked him whether he had packed the 

boxes or detem1ined the contents. (Tr. 204.) He also testified that if someone had asked 

him to certify on any of the forms that he had "personally inspected the contents of the 

boxes," he would not have done so. (!d) 

Respondent testified that he was not shown any pictures of examples of dangerous 

goods. (Tr. 209-11.) He stated that there was no hazardous materials poster or sign near 

the creclit card machine. (Tr. 210.) Respondent testified that during the credit card 

transaction he was standing at a desk and looking back out of the Alaska Airlines garage 

door, not in the direction of any hazardous materials posters. (Tr. 213.) 

Respondent testified that he did not understand how he was supposed to know he 

was shipping something dangerous or hazardous because there were no questions, 

photographs, or drawings. (Tr. 213.) Respondent stated that he was never quizzed, 

educated, or interrogated about what might be in the boxes or what could be hazardous. 

(Tr. 192, 195.) There was only the simple question on the credit card machine, "Are you 

shipping dangerous materials?" (Tr. 213-14.) He testified that there was nothing to help 

him decide if anything was dangerous. (!d.) 

After Respondent dropped off the shipment, an Alaska Airlines employee called 

to advise him that the airline had removed hazardous materials from his shipment, and 

that he could pick them up. (Tr. 202.) Respondent told the employee that Alaska 

Airlines could dispose of the hazardous materials. (Tr. 203.) 

III. ALJ's Initial Decision 

The ALI found that the evidence was "clear and undisputed" that Respondent 

offered an undeclared shipment of hazardous materials consisting of six items (charcoal 

9 
lighter fluid, insect repellent, hairspray, nail polish, nail polish remover, and shaving gel). 

(Initial Decision at 3.) The ALJ found, that as the parties agreed, Respondent was 

unaware ofthe contents of the shipment he had offered. (!d. at 4.) The ALJ held that 

Complainant failed to prove that a civil penalty should be assessed against Respondent 

because Complainant did not prove that Respondent acted "knowingly." 

The hazardous materials transportation statute provides that a person who 

knowingly commits a violation is subject to a civil penalty. 49 U.S.C. § 5123. The 

statute provides that a person acts knowingly when: 

(A) The person has actual knowledge of the facts giving rise to the violation; or 

(B) A reasonable person acting in the circumstance and exercising reasonable care 

would have that knowledge. 

(!d.) The ALJ wrote that Respondent did not have actual notice that he tendered 

hazardous materials. Thus, the ALJ wrote, the question was whether a reasonable person 

acting in the circumstances and exercising reasonable care would have known the facts 

giving rise to the violation. (!d.) 

The ALJ stated that the statute's mandate to exercise reasonable care created a 

duty for Respondent to inquire sufficiently into the materials he was shipping, and the 

ALJ found that Respondent did make sufficient inquiry. (!d.) The ALJ wrote that the 

evidence showed that Respondent reasonably believed that he was shipping household 

goods. (!d.) The ALJ stated that goods customarily associated with household moves, 

such as furniture, bedding, and the like, are considered innocuous from an air transport 

standpoint and Respondent had no cause to suspect otherwise. (!d.) The ALJ stated that 

as a helper and facilitator, Respondent had the right to rely on his daughter's general 

description of the shipment's contents, and he had "no reason to inquire further." (!d.) 

10 
The ALJ wrote that while it is true that "some personal effects often transported 

as part of a household move are considered hazardous materials," Respondent was 

unaware of that, and he may not be charged with that knowledge. (Initial Decision at 5.) 

The ALJ wrote further that Respondent could still be found liable if he knew, or 

should have known, that the materials at issue - whether or not they were considered 

hazardous -were part of his daughter's effects. (Initial Decision at 5.) But, the ALJ 

stated, liability may not be imputed in this case because that would amount to strict 

liability, and the statute does not impose strict liability. (!d) 

The ALJ stated that there were no other factors that should have caused 

Respondent to inquire further. (Id) The ALJ found that Respondent "credibly" testified 

that he did not see any signs in Alaska Airlines' cargo area or elsewhere, and that no 

Alaska Airlines employee asked him if he was tendering hazardous materials. (!d.) The 

ALJ wrote that Complainant introduced evidence showing that ramp agents as a matter of 

policy ask shippers if they are shipping hazardous materials, but did not offer any 

evidence showing that the ramp agents actually posed such questions to Respondent. 

(!d) The ALJ wrote that he discounted, as hearsay, evidence that ramp agents discussed 

trigger terms with Respondent. (!d.) 

The ALJ wrote that he was well aware that the items in question, customarily 

characterized as household goods, are considered dangerous in air transportation because 

they were flammable. (!d.) But the ALJ emphasized that the dangers inherent in 

shipping undeclared hazardous materials do not mean that a shipper must always be 

charged with the knowledge that he or she is offering such items, because the statute does 

not set such an inflexible standard. (!d.) The ALJ found that the circumstances of this 

11 
case show that Respondent did not reasonably know what he was shipping and as a result, 

Respondent was not liable under the statute. (!d.) Concluding that the agency failed to 

prove that Respondent "knowingly" offered hazardous materials in air transportation, the 

ALJ dismissed the complaint. (Initial Decision at 6.) 

IV. Discussion 

A. "Knowingly" 

On appeal, Complainant argues that the ALI erred in finding that Respondent did 

not violate the HMR "knowingly" within the meaning of 49 U.S.C. § 5123(a)(l ). 

Complainant contends that the ALJ erred in finding that Respondent made sufficient 

inquiry into the contents of the shipment. Complainant also contends that there was no 

duty to warn Respondent about violations of the HMRs. 

The hazardous materials transportation statute provided as follows: "A person 

that knowingly violates this chapter or a regulation ... issued under this chapter is liable 

to the United States Government for a civil penalty .... " 49 U.S.C. § 5123(a)(l) (2011) 

(italics added). The HMR likewise provided: "Each person who knowingly violates a 

requirement of the Federal hazardous material transportation law ... is liable for a civil 

penalty ..... " 49 C.F.R. § 171.1(g) (2011) (italics added). Similarly, the FAA regulations 

provided: "The FAA may assess a civil penalty against any person who knowingly 

commits an act in violation of 49 U.S.C. chapter 51 [entitled, "Transportation of 

Hazardous Material"] or a regulation prescribed ... under that chapter, under 49 U.S.C. 

5123 and 49 C.F.R. 1.47(k)." 14 C.F.R. § 13.16(c) (2011) (italics added). 

The hazardous materials transportation statute defined the term "knowingly" as 

follows: 

12 
A person acts knowingly when-

(A)the person has actual knowledge of the facts giving rise to the 

violation; or 

(B) a reasonable person acting in the circumstances and exercising 

reasonable care would have that knowledge. 

49 U.S.C. § 5123(a)(l)(A) & (B) (2011) (italics added). 

Complainant does not allege that Respondent had actual knowledge of the facts 

giving rise to the violation. Respondent did not know what the contents of the boxes or 

the grill were, and therefore, did not know that he was offering hazardous materials. 

Hence, he did not act knowingly under 49 U.S.C. § 5123(a)(l )(A). To determine whether 

the evidence shows that Respondent acted knowingly, as that term is defined in 

Section 5123(a)(l )(B), it is necessary to consider whether a reasonable person acting in 

the circumstances and exercising reasonable would have known the facts giving rise to 

the violation. 

To be liable, it is not necessary for a person to know that the items that he or she 

is offering are classified as hazardous materials. Aero Continente, FAA Order No. 2003-

8 at 14 n.22 (September 12, 2003); Smalling, FAA Order No. 1994-31 at 6-7 (October 5, 

1994); TCI Corp., FAA Order No. 1992-77 at 8 (December 22, 1992).) Under 

Section 5123(a)(1)(B), shippers are subject to civil penalties as long as they know the 

facts giving rise to the violations. 

The statute "requires inquiry and treats a person as possessing whatever 

knowledge inquiry would have produced .... " Interstate Chemical Company, Inc. (ICC), 

FAA Order No. 2002-29 at 13 (December 6, 2002), quoting Contract Courier Services, 

Inc. v. Research & Special Programs Administration, United States Department of 

13 
Transportation, 924 F.2d 112, 114 (7th Cir. 1991).) "Because it is wise on occasion to 

require persons to acquire knowledge, and to treat them as if they have done so, statutes 

frequently provide that a person 'knows' whatever a reasonable inquiry would have 

turned up." Contract Courier Services, Inc. v. Research & Special Programs 

Administration, United States Department ofTransportation, 924 F.2d 112, 114 (7'h Cir. 

1991). 

Respondent complains that he received no warning about hazardous materials, but 

he cites to no authority establishing a duty to warn. Complainant is correct that there is 

no duty to warn. 

Respondent should not have assumed that all of his daughter's household goods 

were innocuous. A reasonable person would know that the contents of a household 

include goods that range from the innocuous (i.e., towels, dishes) to the hazardous (i.e., 

paint, bleach). If a reasonable person would know that household goods may include 

hazardous materials, then a reasonable person would be expected to ask for some 

specifics- e.g., what did you put in the boxes? A reasonable person would not assume 

that it is acceptable to ship all of the goods by air without any inquiry. 

Respondent claims that he was just helping his daughter. However, when he gave 

the shipment to Alaska Airlines, he took on the responsibilities of a shipper. Shippers are 

generally responsible, within reason, for what they introduce into the stream of air 

transportation. Likewise, a reasonable person would not initial and sign a certification 

that there were no hazardous materials contained in a shipment if he or she did not know 

whether any were present or had not made a reasonable inquiry as to the contents. A 

reasonable person acting in the circumstances and exercising reasonable care makes 

14 
reasonable inquiry. What constitutes a "reasonable inquiry" may vary depending upon 

the circumstances, and, consequently, must be determined on a case-by-case basis. 

The ALJ found that Respondent made reasonable inquiry, when in fact he made 

no inquiry at all. Respondent may not have been present during the packing, but he was 

present when his daughter was sealing the boxes. It would not have been difficult for 

him simply to ask his daughter what was in the boxes. At the very least, he should have 

asked his daughter and son-in-law what types of household goods the shipment 

contained, but his daughter testified that he asked her nothing. Regarding the unwrapped 

propane grill, all Respondent had to do was open its drawers and he would have found 

the charcoal lighter fluid. 

Having failed to make reasonable inquiry, Respondent cannot be said to have 

acted as a reasonable person acting in the circumstances and exercising reasonable care, 

and thus, Respondent acted "knowingly." The ALI's determination to the contrary is 

therefore reversed. 

B. Violations 

Having determined that Respondent acted "knowingly" within the meaning ofthe 

hazardous materials statute, it still must be determined whether Respondent violated the 

hazardous materials regulations, as alleged. 

In its answer to the complaint, Respondent "conditionally admitted" the following 

statements: 

• Respondent initialed the block on the waybill declaring that the shipment 

did not contain hazardous materials. 

• The shipment included 16 bottles of nail polish, one bottle of nail polish 

remover, one 32-ounce bottle of Charcoal Lighter Fluid, one I 0-ounce can 

15 
of Moroccanoil Hairspray, one 7 -ounce can of Gillette Fusion Hydra Gel, 

and one 6.5-ounce can of Repel Insect Repellent. 

• Nail polish is classified as a hazardous material under 172.1 01 of the 

HMR. Its proper shipping name is Paint. It is in Hazard Class 3 

(Flammable Liquids) and Packing Group II, and has an assigned 

identification number of UN 1263. 

• Nail polish remover is classified as a hazardous material under 172.101 of 

the HMR. Its proper shipping name is "Acetone Solutions." It is in 

Hazard Class 3 (Flammable Liquids) and Packing Group II, and has an 

assigned identification number of UN 1 090. 

• Charcoal lighter fluid is classified as a hazardous material under 172.101 

of the HMR. Its proper shipping name is "Petroleum Distillates, NOS." It 

is in Hazard Class 3 (Flammable Liquids) and Packing Group III, and has 

an assigned identification number of UN 1268. 

• Moroccanoil hairspray, Gillette Fusion Hydra gel, and Repel insect 

repellent are classified as hazardous materials under 1 72.101 of the HMR. 

Their proper shipping name is "Aerosols, Flammable." They are in 

Hazard Class 2.1 (Flammable Gas) and have an assigned identification 

number of UN 1950. 

These "conditionally admitted" allegations are deemed admitted under 14 C.F .R. 

§ 13.209, which provides that "[a]ny statement or allegation ... in the complaint that is 

not specifically denied in the answer may be deemed an admission of the truth of that 

allegation." 

Added to these admissions are the ALJ's findings, which Respondent did not 

challenge, that: (1) Respondent offered the items into the stream of air transportation; 

(2) the items were hazardous materials; and (3) the shipment was undeclared (no 

markings, labels, shipping papers, or emergency response information). (Initial Decision 

at 3.) 

Given these admissions and findings, it is clear that Respondent violated the 

HMR, as alleged. Hence, it is unnecessary to remand this case to the ALJ for further 

16 
determinations regarding whether Respondent violated the regulations. 

C. Civil Penalty Amount 

On appeal, Complainant argues that a $2,700 civil penalty would be appropriate 

under 49 U.S. C.§ 5123(c) and agency sanction guidance. 

In 20 11, when the violations occurred, the hazardous materials statute provided 

that the maximum civil penalty was $50,000 per violation in case not involving death, 

serious illness, severe injury, or substantial destruction of property. 49 U.S.C. 

§ 5123(a)(l) (2011). The minimum civil penalty for any violations other than training 

violations was $250 per violation. 11 49 U.S.C. § 5123(a)(l), (3). 

Under the statute, the Administrator12 must consider the following factors in 

setting the sanction amount: 

( 1) the nature, circumstances, extent, and gravity of the violation; 

(2) with respect to the violator, the degree of culpability, any history of 

prior violations, the ability to pay, and any effect on the ability to 

continue to do business; and 

(3) other matters that justice requires. 

49 U.S.C. § 5123(c); see also 14 C.F.R. § 13.16(c) (to the same effect). 

The agency has issued sanction guidance to implement the statute. This guidance 

11 Congress has also provided for periodic adjustments for inflation, to maintain the 

deterrent effect of civil penalties and promote compliance with the law. 28 U.S.C. § 2461 (note), 

as amended by Public Law 104-134 (April 26, 1996). Any applicable adjustments would be 

found in 14 C.P.R. Subpart H, entitled "Civil Monetary Penalty Inflation Adjustment." No such 

adjustments are present here. 

12 The P AA Administrator has the authority to enforce the statute and the HMR regarding 

the shipment of hazardous materials by air. 49 C.P.R.§ 1.47(j) ("[t]he Federal Aviation 

Administrator is delegated authority to: ... (j)(1) ... carry out the functions vested in the Secretary 

by 49 U.S.C. § 5123 ... , with particular emphasis on the transportation or shipment of hazardous 

materials by air"). 

17 
is found in FAA Order No. 2150.3B, "FAA Compliance and Enforcement Program," 

Appendix C, "Sanction Guidance, Hazardous Materials Enforcement" (October 1, 

2007). 13 

Past decisions have held that "although [ ALJ s] are not agency personnel, and 

therefore are not bound by internal agency orders [such as FAA Order No. 2150.3B, 

which contains the sanction guidance], [the ALJs] are nonetheless subject to agency 

policy." E.g., [Air Carrier], FAA Order No. 1996-19 at 4 (May 3, 1996). "If the ALJ 

does not follow agency policy, the agency may impose that policy by reversing the ALJ's 

decision on appeal." (Jd.) As previously stated, "[t]he Administrator has both the 

authority and duty to impose the agency's policy on appeal." Warbelow 's Air Ventures, 

FAA Order No. 2000-3 at 9 (February 3, 2000). 

The sanction guidance "provides . . . a systematic way to evaluate a case and 

arrive at an appropriate penalty, considering all the relevant statutory criteria, including 

mitigating and aggravating circumstances, if any." (FAA Order No. 2150.3B, Appx. 

C-2.) The sanction guidance is "designed to promote better consistency so that similar 

penalties are imposed in similar cases." (I d.) 

The sanction guidance requires the following: 

(I) weighing the case by answering certain questions to arrive at a weight 

of minimum, moderate, or maximum; 

(2) using the Matrix to find the appropriate sanction amount range; and 

(3) considering any other pertinent.factors. 

13 The ALJ took judicial notice of this sanction guidance (Tr. 121), which was marked as 

Exh. A-26 but was not admitted. Presently, FAA Order No. 2150.38, Appx. C, is available on 

the FAA's Web site at http://www.faa.gov/regulations policies/orders notices/. 

The FAA published this sanction guidance in the Federal Register as "[FAA] Policy on 

Enforcement of the [HMR]: Penalty Guidelines," 64 Fed. Reg. 19443 (April21, 1999). 

18 
(FAA Order No. 2150.3B, Appx. C, ~~ 2, 8; italics added.) 

To determine the weight of the violations -whether Minimum, Moderate, or 

Maximum - the sanction guidance instructs agency personnel to consider a number of 

factors, including the nature of the hazardous material involved. 

The nail polish and nail polish remover were in Hazard Class 3 (Flammable 

Liquids), Packing Group II. As a result, under the guidance, they fell into Risk 

Category A, which is defined as: 

Materials that when released in the confines of an aircraft can potentially 

have a catastrophic effect on the aircraft's ability to continue safe flight, 

resulting in a crash or emergency landing causing injury or death to 

passengers and flight crew, as well as persons on the ground. 

(FAA Order No. 2150.3B, Appx. C-17.) The hairspray, shaving gel, and insect repellent 

were in Hazard Class 2.1 (Flammable Gas) and also are included in Risk Category A. 

(!d.) Under the guidance, Risk Category A materials receive a Maximum weight when 

determining the appropriate civil penalty. (I d.) 

The charcoal lighter fluid was in Hazard Class 3 (Flammable Liquids) and 

Packing Group III, which is in Risk Category B. Risk Category B materials are defined 

as: 

Materials that may not pose an immediate threat to the safety of a flight, 

but can cause death or injury to persons due to unintended releases in 

aircraft cabin areas, and potential damage to aircraft structures over a 

longer period of time due to undiscovered releases on aircraft structural 

components. 

(FAA Order No. 2150.3B, Appx. C-17.) Risk Category B materials receive a Moderate 

weight. (I d.) 

The sanction guidance provides that a violation may only warrant a Minimum or 

Moderate weight if the offeror did not pack the items himself or herself. (FAA Order 

19 
No. 2150.3B, Appx. C-7.) Under that guidance, a Minimum or Moderate civil penalty 

should be considered in this case because Respondent did not prepare the shipment 

himself. 

Under the sanction guidance, all the responses/weights regarding individual 

factors are evaluated to determine a final aggregate weight for the case - whether 

Minimum, Moderate, or Maximum. In its sanction evaluation, Complainant used the 

most hazardous category of material found in the shipment, which was Hazard Class 2.1 

(Flammable Gas) and received a Maximum weight. (Tr. 123.) However, because 

someone else packed the shipment, Complainant assigned a Moderate rather than a 

Maximum, final aggregate weight. 

The most hazardous materials that Respondent offered were the Risk Category A 

items: nail polish, nail polish remover, hairspray, shaving gel, and insect repellent. 

According to the guidance, as discussed, violations involving Risk Category A items 

ordinarily, absent other factors, would receive a Maximum weight. 

In contrast, the charcoal lighter fluid is a Risk Category B item that receives a 

Moderate weight. Also, as Complainant wrote in its closing argument, "the total 

quantities ... were relatively small, and, in fact, under Section 175.10 of the HMR [ 49 

C.P.R.§ 175.10], all but the charcoal lighter fluid would have been eligible for 

transportation by air if they had been in a checked bag." 14 (Complainant's Closing 

Argument at 15.) 

This decision finds that because Respondent did not pack or own the items, and 

14 Section 175.10 provides exceptions to Subchapter C of the HMR (49 C.F.R. §§ 171.1-

175.706) for passengers, crewmembers, and air operators. In particular, 49 C.F.R. 

§ 175.10(a)(l)(i) provides an exception for "non-radioactive medicinal and toilet articles for 

personal use (including aerosols) carried in carry-on and checked baggage" as long as release 

devices on aerosols are protected by a cap or other means to prevent inadvertent release. 

20 
because the total quantities were relatively small, a Minimum final aggregate weight is 

appropriate in this case. 

Having thus established the final aggregate weight of Minimum for the violations, 

the next step is to turn to the Matrix in the sanction guidance, which includes 

recommended penalty ranges for different categories of offenses, depending upon the 

violator's characteristics (i.e., whether the violator is an individual or a business). The 

Matrix recommends the lowest sanction ranges for individuals and higher penalty ranges 

for various types of business entities. The weight of a particular violation determines 

whether a penalty at the bottom, middle, or top of the appropriate penalty range should be 

imposed. 

The applicable offense category in this case is Undeclared15 Shipment within Hazmat 

Quantity Limitations. (FAA Order No. 2150.3B, Figure C-1.) Each offense category is divided 

further into subcategories of violations involving: (1) shipping papers; (2) labels; (3) markings; 

( 4) packaging; ( 5) training; ( 6) emergency response information; (7) release into environment; 

and (8) other. (!d.) The four violation subcategories at issue in the instant case are: shipping 

papers, labels, markings, and emergency response information. According to the Matrix, for an 

Undeclared Shipment Within Hazmat Quantity Limitations, the sanction range for an individual 

violator is $250 to $1,000 for each subcategory of violations. 

Because the fmal aggregate weight of the violations in this case is Minimum, a 

civil penalty towards the bottom of the sanction range in the Matrix (i.e., $250 to $1,000) 

is warranted for each ofthe four subcategories of violations (shipping papers, labels, 

markings, and emergency information). This decision assesses a total civil penalty of 

15 It is well settled that undeclared or hidden shipments pose a special danger. 

Envirosolve, FAA Order No. 2006-2 at 14 (February 2, 2006), citing Toyota Motor Sales, FAA 

Order No. 1994-28 at 12 (September 30, 1994). They are thus deserving of higher sanctions. 

21 
$1 ,200 for the four violations in this case. This amount will have sufficient "bite" or 

deterrent effect. It appropriately reflects the sanction guidance, the statutory factors, and 

the totality of the circumstances. It will promote compliance and deter future violations 

by Respondent and others. 

Conclusion 

Complainant's appeal is granted as to the violations but not as to the sanction. In 

lieu of the $2,700 civil penalty sought by Complainant, this decision assesses a civil 

penalty of$1,200. 16 

Federal Aviation Administration 

16 This order shall be considered an order assessing civil penalty unless Respondent files 

a petition for review within 60 days of service of this decision with the U.S. Court of Appeals for 

the District of Columbia Circuit or the U.S. court of appeals for the circuit in which Respondent 

resides or has its principal place of business. 14 C.F.R. §§ 13.16(d)(4), 13.2330)(2), 13.235 

(2009). See 71 Fed. Reg. 70460 (December 5, 2006) (regarding petitions for review of final 

agency decisions in civil penalty cases). 

22 
APPENDIX 

Below are the specific provisions allegedly violated. 

Section 171.2( e) 17 provided: 

(e) No person may offer or accept a hazardous material for 

transportation in commerce unless the hazardous material is properly 

classed, described, packaged, marked, labeled, and in condition for 

shipment as required or authorized by applicable requirements of this 

subchapter .... 

Section 172.200(a) provided: 

(a) Description of hazardous materials required . ... [E]ach person 

who offers a hazardous material for transportation shall describe the 

hazardous material on the shipping paper in the manner required by this 

subpart. 

Section 172.201(d) provided: 

(d) Emergency response telephone number. . .. [A] shipping paper 

must contain an emergency response telephone number .... 

Sections 172.202(a)(l )-(5) provided: 

(a) The shipping description of a hazardous material on the 

shipping paper must include: 

(1) The identification number prescribed for the material ... ; 

(2) The proper shipping name prescribed for the material ... ; 

(3) The hazard class or division number prescribed for the material 

... , 

( 4) The packing group in Roman numerals, as designated for the 

hazardous material in Column ( 5) of the § 172.1 01 table 

(5) ... the total net mass per package ... ; 

Section 172.203(£) provided: 

(f) Transportation by air. A statement indicating that the shipment 

is within the limitations prescribed for either passenger and cargo aircraft 

or cargo aircraft only must be entered on the shipping paper 

Section 172.204(a) provided: 

17 All citations are to the October I, 20I I, edition of Title 49 of the Code of Federal 

Regulations (C.P.R.), which was in effect at the time, as the violations occurred on December 22, 

2011, and tbe regulations were not revised again until October 1, 20I2. 
(a) General. ... [E]ach person who offers a hazardous material for 

transportation shall certify that the material is offered for transportation in 

accordance with this subchapter by printing ... on the shipping paper ... 

the certification contained in paragraph (a)(!) of this section or the 

certification ... in paragraph (a)(2) of this section. 

(I) "This is to certify that the above-named materials are properly 

classified, described, packaged, marked and labeled, and are in proper 

condition for transportation according to the applicable regulations of the 

Department of Transportation." .... 

(2) "I hereby declare that the contents of this consignment are fully 

and accurately described above by the proper shipping name, and are 

classified, packaged, marked and labelled/placarded, and are in all respects 

in proper condition for transport according to applicable international and 

national governmental regulations." 

Section 172.204( c )(2) provided: 

(c)(2) Certificate in duplicate. Each person who offers a hazardous 

material to an aircraft operator for transportation by air shall provide two copies 

of the certification required in this section ..... 

Section 172.204( c )(3) provided: 

(c) Additional certification requirements . ... (3) [E]ach person who offers 

a hazardous material for transportation by air must add to the certification 

required in this section the following statement: 

"I declare that all of the applicable air transport requirements have been 

met." 

Section 172.300(a) provided: 

(a) Each person who offers a hazardous material for transportation shall 

mark each package, freight container, and transport vehicle containing the 

hazardous material in the manner required by this subpart. 

Section 172.301(a) provided: 

(a) [E]ach person who offers a hazardous material for 

transportation in a non-bulk packaging must mark the package with the 

proper shipping name and identification number (preceded by "UN" or 

"NA," as appropriate) for the material as shown in the§ 172.101 Table .... 

2 
Section 172.400(a) provided: 

(a) ... [E]ach person who offers for transportation or transports a 

hazardous material in any of the following packages or containment devices shall 

label the package or containment device with labels specified for the material in 

the § 172.101 table and in this subpart .... 

Section 172.604(a) provided: 

(a) A person who offers a hazardous material for transportation 

must provide an emergency response telephone number, including the area 

code or international access code, for use in the event of an emergency 

involving the hazardous material. .... 

The regulations also provided: "Each person who knowingly 

violates a requirement of the Federal hazardous material transportation 

law ... is liable for a civil penalty of not more than $55,000 and not less 

than $250 for each violation, except the maximum civil penalty is 

$110,000 if the violation results in death, serious illness or severe injury to 

any person or substantial destruction of property, and a minimum $495 

civil penalty applies to a violation relating to training." 49 C.F.R. 

§ 17l.l(g) (2011). 

3 
SERVED: APRlL 11, 2013 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

) 

FEDERAL AVIATION ADMINISTRATION, ) 

) 

Complainant, ) FAA DOCKE:T No. [TO BE ASSIGNED] · 

) 

v. ) (Civil Penalty Action) 

) 

SCOTI NOVAK, ) 

) 

Respondent. ) DMS No. FAA-2012-0206 

) 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found: Complainant failed to prove a violation. The Complaint wlll be dismissed. 

I. Background 

The Complaint of the Federal Aviation Administration ("Complainant," "FAA," or 

"the agency") alleges that on December :z.:z., :z.on, Respondent Scott Novak ("Novak" or 

"Respondent") "knowingly offered" to Alaska Airlines. an n-piece shipment for air 

transportation from Anchorage, AK, to Juneau, AK which included hazardous materials .. 

The hazardous materials ("hazmats"), it is charged, consisted of nail polish, nail polish 

remover, charcoallightedluid, hairspray, shaving cream, and insectrepellent (see Tr. 13-

14). Hazardous materials tendered for air traiisportation obligate the shipper to place 

certain information on and with the shipment to alettthose who might come in contact 

with it. The requirements are accomplished through detailed marking, labeling; and 

similar actions. Respondent's tender inthis respect failed completely, the Complaint 

states. 

--·,· 

•,1,•1 
As a result of the circumstances described above, the agency charged Respondent 

with sixteen Hazardous Materials Regulations ("HMRs") violations, namely: 49 C.F.R. 1) 

§r71.2(e) (offering hazardous materials for shipment not properly classed, described, 

marked, labeled, and in condition for shipment); 2) §172.2oo(a) (offering hazmats not 

properly described on the shipping papers); 3) §172.201(d) (offering hazmats without an 

emergency response number); 4) §172.202(a)(1) (offering hazmats without the proper 

identification number for the material); 5) §172.202(a)(2) (offering hazmats without the 

proper shipping name); 6) §172.202(a)(3) (offeringhazmats lacking the hazard class or 

division number prescribed for the material); 7) §172.2o2(a)(4) (offering hazmats lacking 

the designated packing group, or PG); 8) §172.2oz(a)(s) (failing to include in the shipping 

papers the total quantity of the hazmat); 9) §172.203(£) (failing to include in the shipping 

papers a statement that the shipment is within limitations prescribed for passenger or 

cargo aircraft); 10) §172.204(a) (offering hazmats without the required shipper's 

certification); n) §172.204(c)(2) (failing to provide two copies of the required shipper's 

declaration); 12) §172.204(c)(3) (offeringhaz)Il:ats without the required declaration); 13) 

§172.3oo(a) (offering hazmats without markingthe shipment with the proper shipping 

name and identification number); 14) i72:3o1(a) (offering hazmatsin a package not 

marked with proper shipping munes and identification numbers); 15) §172.4oo(a) 

(offering a package containing hazardous material improperly labeled); and 16) 

§172.604(a) (failing to provide an emergency response telephone number). 

Complainant asked for a civil penalty of $2,700, Respondent, denying that he 

"knowingly offered" the shipment, denies the charges. 

I held a hearing on September 25, 2012, in Juneau. At the conclusion of the hearing 

I determined that a written decision \yould be reasonable and appropriate. Briefs have 

been filed and the matter now is ready for decision. 

IT. Discussion 

I find and conclude that. the agency fuilet;l tqprove its case. The Complaint will be 

dismissed. · '· .'' ' · 

A. Review of the Event 

The incident forming the basis of Complainant's charges grew out of a household 

move by Respondent's daughter and her husband. Respondent testified that he had .I -, 

traveled to Anchorage specifically to help his daughter and son-in-law move from there to 

Juneau. When he realized that their household goods would not all fit in their pickup 

truck, he offered to take some ofthe items to Alaska Airlines for shipment. On December 

22, :zon, Mr. Novak took some goods formerly loaded in the pickup and brought them to 

Alaska Airlines' air cargo ramp atthe Anchorage airport (Tr. 174-76, 184-87). He told 

ramp personnel, he stated, that he was loading "furniture and household stuff." Th!! air 

waybill he signed listed only "furniture; mattress." Mr. Novak acknowledged that he had 

.',, ··-' 
3 

initialed and signed the waybill's box indicating that he was notshipping "dangerous 

goods." Respondept's signature and initials on the air waybillactually were derived from 

a subsequent electronic credit-card transaction in which he had clicked "no," and had 

signed and initialed, a statement assuring that the shipment contained neither 

"dangerous goods" (Exh. A-18) nor ~hazardous'materials (Exh. A-19)."' 

Alaska Airlines customer service representative Jocelyn Juul appeared as the 

agency's first witness. She worked at the carrier's cargo facility in Anchorage. When she 

reported for duty on the afternoon of December 22, 2011, a ramp service agent ~ such 

agents are the first point of contact for a shipper-" told her of finding some "dangerous 

goods" in a shipment. The agent had opened a grill and had observed lighter fluid and 

bug spray inside. That finding triggered a thorough search of the rest of the shipment. 

Ramp service agents then also found hairspray, nail polish, nail polish remover, insect 

repellent, and shaving cream (Tr. 29-33, 41, 48, 58, 61-62; Exhs. A-1 through A-6 and A-10 · 

through A-14). 

Ericka Liddelow, Mr. Novak's daughter, had (along with her husband) initially 

packaged and packed the items. She testified that they consisted of 16 bottles of nail 

polish; a 32-ounce bottle of charcoal. lighter fluid; a 1o-ounce can of hairspray; a 7-ounce 

can of shaving cream; and a 6.5-ounce can ofhtsect repellent, as well as nail polish 

remover (Tr. 177-79). FAA special agent and dangerous-goods specialist Jeffrey Deitz, the 

agency's second witness, testified more specifically about. the nature. of the substances 

and the proper marking and labeling the HMRS require. The nail polish, he stated, 

properly is classified as "Paint, class,31 UN 12631 packing group II." Nail polish remover is · 

"Acetone Solutions, class 3, UN 1090, packing group II." Class 3fefers to flammable 

liquids. The "UN" (for United Nations) number is a number assigned to the substance. 

Charcoal lighter fluid properly is classified as "Petroleum Distillates, NOS [which stands 

for "not otherwise specified"], class 3, UN 1268, packing group III;" and the hairspray, 

shaving cream and insect repellent must each be marked and labeled (as appropriate) as 

"Aerosols, Flammable, class 2.1, UN 1950:• Class 2.1 substances are flammable gases (Elms. 

A-15 and A-20 through A-25; Tr. 109-15, 123; see Hazardous Materials Table following 49 

C.P.R. §172.101). 

B. Findings 

The evidence is clear and undisputed that Mr. Novak offered the six items 

discussed above into the stream of air transportation. It is also clear that the items each 

are defined under applicable regulations as haz~rdous materials, and, additionally, that 

the shipment was offered undeclared- that is,' Without any warning or notice of the 

'See also Tr. 38,49-52,68,71, 192-93, 199,201; Exhs. A-7 andA-17. The tenn "dangerous goods" as used in the 

International Civil Aviation Organization ("ICAO") Technical Insti'Jidtions is interchangeable w:ith the tenn 

"hazardous material" as defined in 49 C.F.R. § 171.8. See Tr: 158,59. The terms "dangerous goods" and "hazardous 

. materials" also are used interchangeably in a warning poster at the Alaska Airlines shipping facility. Exh. A-29; Tr. ·' ·''.r . - .. 

159•60,164, ': · . • I • 
4 

hazardous nature of its contents. See Midtown Neon Sign Corporation, FAA Order No. 96-

2.6 (August 13, 1996), p. 2. The parties also agree that Respondent was unaware of the 

contents of the boxes he had offered (see Tr. 150), and I so find. What Respondent 

challenges is Complainant's contention that he· ~knoWingly offered" these materials. He 

states that he did not. And if he die\ not knowingly: offer the materials, Respondent's 

argument goes, then.he cannot have violated any of the HMRs with which he is charged. 

The statute governing this case is the.Hazard6us Materials Transportation Act, 49 

U.S.C. 49 U.S.C. §§5101-5127 ("the Act"). In pertinent part the Act provides that "[a]ny 

person ... who is determined by the secretary ..... to have knowingly committed an act 

which is a violation ... of a regulation issued under this title, shall be liable to the United 

States for a civil penalty." (emphasis supplied). The Act further provides that a person 

acts knowingly when -

(A) the person has actual knowledge of the facts giving rise to the violation; 

or 

(B) a reasonable person acting in the circumstances and exercising reasonable 

care would have that knowledge. · 

49 U.S.C. §5123(a)(1). 

It has been determined that Respondent had no actual knowledge that he had 

tendered hazardous materials. The critical queS\:[d~· then becomes whether, as a 

reasonable person in the circumstances> he would''have known that in the exercise of 

reasonable care. He is charged with the knqwledge that the exercise of reasonable care in 

the circumstances would have produced. 

The statutory mandate to exercise "reasonable care" created a duty upon Mr. 

Novak to make some kind of inquiry into the material he was shipping. The nature of the 

inquiry required depended on the surrounding circumstances. bid Mr. Novak make 

sufficient inquiry? I find that he did. 

The evidence shows that Respondent believed that he was shipping household 

goods. This belief was reasonable. !twas based on tile surrounding facts: Mr. Novak's 

daughter and son-in-law were moving their personal effects from Anchorage to Juneau. 

Respondent believed that goods customarily associated with household moves, such as 

furniture, bedding, and the like, constituted the contents ofthe shipment. Such goods 

generally are considered innocuous from an air transport standpoint. They do not as a 

rule raise an alarm. Mr. Novak had no caus.e to suspect otherwise. He was a helper and 

facilitator. Under the circumstances he had tile right to rely on his daughter's general 

description of the. contents of the shipment. He had no reason to inquire or look further. . ' ,' ·; .. 

·L .. ~ .. 
5 

While it is true that some personal effects often transported as part of a household 

move are considered hazardous materials in air travel, Respondent was unaware of that. 

And he may not be charged with that knowledge. The law does not require shippers to 

know or inquire about which products may be conSidered dangerous goods for pl.lrposes 

of air transportation. 

Respondent nonetheless may be fol.lnd liable if he knew, or should have known, 

that the materials at issl.le -- whether they were in fact considered hazardous or not --

were part of his daughter's effects. Scc;Jtt H. Smalling, FM Order No. 94-31 (October 5, 

1994). But liability in these circumstances ,ofthi~ ~.S'l may not be imputed. Such a 

finding would amount to a determination thi;ltbeca!,lse Mr. Novak generated the 

shipment, he is accountable for the legal consequences. That amounts to a standard of 

strict liability. The statute does not go so fur. See Contract Courier Services, Inc., v. 

Research and Special Programs Administration, 924 F.2d 112 (7 Cir. 1991). 

Nor do any other factors su~est that ~r. NoVak should have inquired further. He 

credibly testified that he did not see any signs in Alaska Airlines' cargo area, or elsewhere, 

warning about the dangers of shipping hazardous materials or dangerous goods. Nor had 

any Alaska Airlines employee asked him if he was tendering such goods. Complainant 

did show that ramp agents as a matter of policy ask passengers if they are shipping 

dangerous or hazardous goods, .but the agency offered no evidence tending to show that 

such a question was posed to Mr. Novak (Tr. 175c76, 179-80, 191-98, 203-06, 208, 214; Exh. 

A-16). Evidence that ramp agents discussed "trigger terms"- shipper descriptions of 

merchandise which trigger agents' additional, .more specific inquiry into whether the 

shipment may contain hazmats- with Respondent is discounted as hearsay.' 

I am well aware that the items in question, customarily characterized .as household 

or consumer goods, are nonetheless considered dangerous in air transportation. They 

each are flammable. Each, under the proper conditions, COl.lld produce a grave situation 

aboard an aircraft. But it must be emphasized'that,the dangers inherent in tendering an 

undeclared shipment of dangerous goods do ndt m~iili that a shipper, as a consequence of 

the shipper's duty to inquire, must ihherfsittiatidn be charged with the knowledge that 

he or she is tendering such items. The statute simply does not set such an inflexible 

standard. The particular circumstances ofthis case show that Mr. Novak reasonably did 

not know what he was sh,ipping: they warrant a finding that Respondent may not be .held 

liable under the statute. 

2 Such triggering terms, Complainant witnesses 1estifjed, incll¥1e "household goods" and "camping gear." Tr. 71-

73, 78-79. 

,- ,, 
6 .. 

I find and conclude that the agency failed to prove that Respondent Scott Novak 

knowingly offered hazardous materials in air transportation. As such, the Complaint is 

dismissed! · 

C~~i;r-rlc!-;.~~,;;;·~;-;:d::w~~:-;d;:::;:::;·. r--'---

U.s. Administrative Law Judge 

Attachment - Service List 

' ' ' \'· 

' This decision may be appealed to the Administrator of the FAA. The notice of appeal must conform to sections 

13.210, 13.2ll(e) and 13.233 of the Rules of Practice, which require that a notice of appeal I) be filed not later than 

I 0 days (plus an additional five days if mailed) from the service date of this decision, and 2) be perfected With a 

written brief or memorandum not later than 50 days (plus an additional five; if mailed) from the .service date of this 

decision. The notice of appeal and brief or memorandum must either be a) mailed to the Federal Aviation 

Administration, 800 Independence Avenue, S.W., Washingto0, DC 20591, Attn: Hearing Docket Clerk, AGC-430, 

Wilbur Wright Building-Suite 2WIOOO, or b) delivered personally or via expedited courier service to the Federal 

Aviation Administration, 600 fudependence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, 

D.C. 20591, Attn: Hearing Docket Clerk, AGC-430. A copy of the notice of!lPpeal and briefor memorandum also 

must be sent to agency counsel. Service upon the presiding judge is optional.