UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC In the Matter of: SCOTT NOVAK FAA Order No. 2014-1 FDMS No. FAA-2012-0206 1 Served: January 2, 2014 DECISION AND ORDER2 I. Introduction Complainant Federal Aviation Administration ("Complainant") has appealed the written initial decision ofAdministrative 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 ofhazardous materials for ':·
..:· ':',I , transportation by air in violation of: (1) thehazarg0us 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

1Materials 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 ofthe decisions, the rules ofpractice, and other information, are available on the Internet at the following address: www.faa.gov/aboutlojfice _org/headquarters_offices/age/pol_ adjudication/ AGC400/ 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.
3A copy ofthe ALI's decision, served on:nwri,l:q, 2013, is attached.
4The text ofthe specific provisipns a11egedly,vio1ated are included in the Appendix to this decision. ·. " ·meaning ofthe hazardous materials transportation statute and regulations, andthat a civil penalty of$1,200 is appropriate under all the facts and circumstances ofthis 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 plannedto put all their belongings inthe back oftheir 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 oftheir belongings to an Alaska Airlines cargo facility to ship by air. (Tr. 176, 181, 185.) On December 22, 20II, Respondent drove the pickup truck filled with some of their belongings to the Alaska Airlines cargo facility and backed the truck onto the ramp. AnAlaskaAirlines 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 writtento FAA Special Agent and Dangerous Goods Specialist Jeffrey Deitz, dated January 3, 2012, and attached to Complainant's First Set ofInterrogatories as Exhibit D, at page I, Respondent wrote, "I did notpack any ofthe boxes and was under the assumptionthat we were shipping clothes, dishes, and furniture." The AlaskaAirlines 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 Complainanthas noted that it would have been necessary for Respondent to have taken a ferry as part ofthe trip, by truck, from Anchorage to Juneau.

2556 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." Ifan offerorrefers 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 askhim 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 "ExhibitR-[number]."
8 Technically, the international term is "dangerous goods" and the U.S. term is "hazardous materials," butthe terms are used interchangeably. (Tr. 33, 63, 159.) 3

### The ramp agent handed a copy ofthe half:sheetto 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 CFRParts 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 inthe 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 ofGoods," 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 ofthe 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 inthe box and pressed DONE. (Exhibit A-7.)

4The Alaska Airlines employee printed the air waybill, which contained the following statement: Shipper certifies that the particulars on the face hereofare correct and that insofar as any part ofthe 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 ofthis 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 ofSafeway odorless charcoal lighter fluid and a 6.5-ounce can ofRepel insect repellent, bothhazardous materials. (Exhibits A-1 through A-6.) This discovery triggered a physical search ofthe rest ofthe shipment, uncovering additional materials that were classified as hazardous materials under the HMR. Specifically, the following hazardous materials were found inside one ofthe cardboardboxes: one 1 0-ounce can ofMoroccanoil hairspray; onebottle ofnail polish;
one bottle ofSafeway nail polish remover, and one 7-ounce can ofGillette Fusion Hydra shaving gel. (Tr. 30-31.) There were 15 bottles ofnail polish in another cardboard box. 9 (Exhibits A-1 through A-6.) The proper shipping names, hazard classes, packing groups,

9 One bottle ofperfume, 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.) 

### 5and identification numbers for these hazardous materials, which are derived from the Hazardous Materials Table in49 C.F.R. § 172.101, are set forth inthe chartbelow: 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 hairspray 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 ofthe 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 onthe packages. 49 C.F.R. 

### § 172.400(a). And they mustprovide emergency response information. 49 C.F.R. 

### § 172.604(a). UN identification numbers and proper shipping names mustbe
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.) Inthe instant case, Respondent did notprovide the required shipping papers, labels, markings, and emergency response information for the shipment.

6Respondent stated in paragraph I ofhis response to Complainant's request for admissions that, "To the best ofmy knowledge, all the stuffmy daughter asked meto ship wasjusthousehold goods and not anything that was serious." Respondent also wrote in paragraph 3 ofthat response that the air waybill statedthat "the shipment was furniture, mattress and GEN SOA (sic)/0 which is what I was told was inthe containers." Inparagraph 

### I ofRespondent'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 stuffshe needed moved to Juneau. There wasn't any discussion about anything being dangerous in the boxes." Atthe 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 knewtook hairspray onvacation, she stated. (!d.) She also testified that her father did notknow that any ofthe items in question
were present because she packed everything and "he was notthere 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, butthat he did not lookinside any ofthe boxes or ask what was inthem. (Tr. 180.) She said that he never asked her ifthere were any hazardous materials and she nevertoldhim. (Tr. 176, 180.) Respondent testified that at no point did an Alaska Airlines agent ask him what
was inthe 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.)
7waybill 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 swipedhis card, a series ofquestions appeared onthe 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 onthe computer screen that the shipment did not containhazardous materials, initialed, accepted the price, and signed. (Tr. 202.) When asked during direct examination why he selected the boxthat states, "Does not contain any hazardous materials," Respondent testified that he did so because, to the best ofhis knowledge at the time, there were no hazardous materials. (Tr. 200.) He testified that he thought thathis 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 ofhis knowledge, there was nothing hazardous or dangerous. (Tr. 204, 208.) He testified that he had no way ofknowing what was in the shipment because he did notpackthe things. Instead, hejustpulled items out ofthe pickup truck and put them onthe pallet, as directed by the Alaska Airlines ramp agent. (Tr. 203-04.) Respondent testified that ifhe had known the hazardous materials were inthe shipment, he still probably would have declared that they
were nothazardous, with the possible exception ofthe lighter fluid, because he did not knowthat nail polish, nail polish remover, hairspray, shaving cream, and insectrepellent
were hazardous materials. (Tr. 205, 206, 208.)

8Respondent testified that no one specifically asked him whether he had packed the boxes or detem1ined the contents. (Tr. 204.) He also testifiedthat ifsomeone had asked himto certify on any ofthe forms that he had "personally inspected the contents ofthe boxes," he would not have done so. (!d) Respondent testified that he was not shown any pictures ofexamples ofdangerous goods. (Tr. 209-11.) He stated that there was no hazardous materials poster or sign near the creclit cardmachine. (Tr. 210.) Respondent testified that during the credit card transaction he was standing at a desk and looking back out ofthe Alaska Airlines garage door, not inthe direction ofany hazardous materials posters. (Tr. 213.) Respondent testified that he did not understand howhe was supposed to knowhe
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 inthe boxes orwhat could be hazardous. (Tr. 192, 195.) There was only the simple question onthe credit card machine, "Are you shipping dangerous materials?" (Tr. 213-14.) He testified that there was nothing to help him decide ifanything was dangerous. (!d.) After Respondent dropped offthe shipment, anAlaska Airlines employee called to advise himthatthe airline had removed hazardous materials from his shipment, and that he could pick them up. (Tr. 202.) Respondenttold the employee that Alaska Airlines could dispose ofthe 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 ofhazardous materials consisting ofsix items (charcoal

9lighter fluid, insect repellent, hairspray, nail polish, nail polishremover, and shaving gel). (Initial Decision at 3.) The ALJ found, that as the parties agreed, Respondent was
unaware ofthe contents ofthe 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 ofthe 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 nothave actual notice that he tendered hazardous materials. Thus, the ALJ wrote, the question was whether a reasonable person acting inthe 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.) TheALJ 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 rightto rely onhis daughter's general description ofthe shipment's contents, and he had "no reasonto inquire further." 

### (!d.)

10The ALJ wrote that while it is true that "some personal effects oftentransported
as part ofa household move are considered hazardous materials," Respondent was
unaware ofthat, and he may not be charged with that knowledge. (Initial Decision at 5.) The ALJ wrote further that Respondent could still be found liable ifhe knew, or should have known, that the materials at issue

- whether or not they were considered hazardous -werepart ofhis daughter's effects. (Initial Decision at 5.) But, the ALJ stated, liability may not be imputed inthis 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 ifhe was tendering hazardous materials. (!d.) The ALJ wrote that Complainant introduced evidence showing that ramp agents as a matter of policy ask shippers ifthey 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 withthe 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 ofthis



### 11case 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 notviolate the HMR "knowingly" within the meaning of49 U.S.C. 

### § 5123(a)(l). Complainant contends that the ALJ erred infinding that Respondent made sufficient inquiry into the contents ofthe shipment. Complainant also contends that there was no duty to warn Respondent about violations ofthe HMRs. The hazardous materials transportation statute provided as follows: "Aperson 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 HMRlikewise provided: "Eachperson who knowingly violates a requirement ofthe Federal hazardous material transportation law
... is liable for a civil penalty
....." 49 C.F.R. 

### § 171.1(g) (2011) (italics added). Similarly, the FAAregulations provided: "The FAAmay assess a civil penalty against any person who knowingly commits an act in violation of49 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:

12A person acts knowingly when- (A)the person has actual knowledge ofthe 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 ofthe facts giving rise to the violation. Respondent did not know what the contents ofthe 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 OrderNo. 2003- 8 at 14 n.22 (September 12, 2003); Smalling, FAA Order No. 1994-31 at 6-7 (October 5, 1994); TCI Corp., FAA OrderNo. 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 ProgramsAdministration, UnitedStates Department of

13Transportation, 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 ifthey 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, UnitedStates 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 ofhis daughter's household goods
were innocuous. A reasonable person would know that the contents ofa household include goods that range from the innocuous (i.e., towels, dishes) to the hazardous (i.e., paint, bleach). Ifa reasonable person would knowthat household goods may include hazardous materials, then a reasonable person would be expected to ask for some specifics- e.g., what did you put 

### inthe boxes? A reasonable person would not assume that it is acceptable to ship all ofthe goods by air without any inquiry. Respondent claims that he wasjust helping his daughter. However, when he gave the shipmentto Alaska Airlines, he took on the responsibilities ofa shipper. Shippers are generally responsible, within reason, for what they introduce into the stream ofair transportation. Likewise, a reasonable person would not initial and sign a certification that there were no hazardous materials contained in a shipment ifhe 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, mustbe determined on a case-by-case basis. The ALJ found that Respondent made reasonable inquiry, whenin fact he made
no inquiry at all. Respondent may not have beenpresent during the packing, but he was present whenhis daughter was sealing the boxes. Itwould nothave been difficult for him simplyto askhis daughter what was inthe boxes. Atthe very least, he shouldhave asked his daughter and son-in-law what types ofhousehold goods the shipment contained, but his daughter testified that he asked her nothing. Regarding the unwrapped propane grill, all Respondent had to do was openits drawers and he would have found the charcoal lighter fluid. Having failed to make reasonable inquiry, Respondent cannotbe said to have acted as a reasonable person acting inthe 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. Inits answer to the complaint, Respondent "conditionally admitted" the following statements:
• Respondent initialed the block onthe waybill declaring that the shipment did not contain hazardous materials.
• The shipment included 16 bottles ofnail polish, one bottle ofnail polish remover, one 32-ounce bottle ofCharcoal Lighter Fluid, one I0-ounce can

15ofMoroccanoil Hairspray, one 7-ounce can ofGillette Fusion Hydra Gel, and one 6.5-ounce can ofRepel Insect Repellent.
• Nail polish is classified as a hazardous material under 172.101 ofthe 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 ofUN 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, andhas an assigned identification number ofUN 1090.
• Charcoal lighter fluid is classified as a hazardous material under 172.101 ofthe HMR. Its proper shipping name is "Petroleum Distillates, NOS." It is inHazard Class 3 (Flammable Liquids) and Packing Group III, andhas an assigned identification number ofUN 1268.
• Moroccanoil hairspray, Gillette Fusion Hydra gel, and Repel insect repellent are classified as hazardous materials under 172.101 ofthe HMR. Their proper shipping name is "Aerosols, Flammable." They are in Hazard Class 2.1 (Flammable Gas) and have an assigned identification number ofUN 1950. These "conditionally admitted" allegations are deemed admitted under 14 C.F.R. 

### § 13.209, which provides that "[a]ny statement or allegation
... inthe complaint that is not specifically denied in the answer may be deemed an admission ofthe truth ofthat allegation." Added to these admissions are the ALJ's findings, which Respondent did not challenge, that: (1) Respondent offered the items into the stream ofairtransportation; (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.) Giventhese 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

16determinations 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 ofproperty. 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 ofthe violation; (2) with respect to the violator, the degree ofculpability, any history of prior violations, the ability to pay, and any effect on the ability to continue to do business; and (3) other matters thatjustice 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 ofcivil 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 ofhazardous 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 ofhazardous materials by air").

17is found inFAA Order No. 2150.3B, "FAA Compliance and Enforcement Program," Appendix C, "Sanction Guidance, Hazardous Materials Enforcement" (October 1, 2007). 13 Past decisions haveheld that "although [ ALJs] are not agency personnel, and therefore are not boundby 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). "Ifthe ALJ does not follow agency policy, the agency may impose that policyby reversing the ALJ's decision on appeal." (Jd.) As previously stated, "[t]he Administrator has boththe authority and duty to impose the agency's policy on appeal." Warbelow 'sAir Ventures, FAA Order No. 2000-3 at 9 (February 3, 2000). The sanction guidance "provides . . . a systematic wayto evaluate a case and arrive at an appropriate penalty, considering all the relevant statutory criteria, including mitigating and aggravating circumstances, ifany." (FAA OrderNo. 2150.3B, Appx. C-2.) The sanction guidance is "designedto 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 ofminimum, moderate, or maximum; (2) using the Matrix to find the appropriate sanction amount range; and (3) considering any otherpertinent.factors.

13 The ALJ tookjudicial notice ofthis 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 ofthe [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 ofthe violations -whetherMinimum, Moderate, or Maximum

- the sanction guidance instructs agency personnel to consider a number of factors, including the nature ofthe 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 inthe confines ofan aircraft canpotentially 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 OrderNo. 2150.3B, Appx. C-17.) The hairspray, shaving gel, and insect repellent
were in Hazard Class 2.1 (Flammable Gas) and also are included inRisk 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 ofa 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 oftime due to undiscovered releases on aircraft structural components. (FAA OrderNo. 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 ifthe offeror did not pack the items himselfor herself. (FAA Order

19No. 2150.3B, Appx. C-7.) Under that guidance, a Minimum orModerate civil penalty shouldbe considered inthis 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, Complainantusedthe most hazardous category ofmaterial 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 polishremover, hairspray, shaving gel, and insectrepellent. 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 ofthe HMR [ 49 C.P.R.§ 175.10], all but the charcoal lighter fluid would have been eligible for transportation by air ifthey hadbeen in a checked bag." 14 (Complainant's Closing Argument at 15.) This decision finds that because Respondent did notpack or ownthe items, and

14 Section 175.10 provides exceptions to Subchapter C ofthe 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 inadvertentrelease. 20because the total quantities were relatively small, a Minimum final aggregate weight is appropriate inthis case. Having thus established the final aggregate weight ofMinimum for the violations, the next step is to turnto the Matrix inthe sanction guidance, which includes recommendedpenaltyranges for different categories ofoffenses, 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 ofbusiness entities. The weight ofa particular violation determines whether a penalty at the bottom, middle, or top ofthe appropriate penaltyrange shouldbe imposed. The applicable offense category in this case is Undeclared 15 Shipment within Hazmat Quantity Limitations. (FAA Order No. 2150.3B, Figure C-1.) Each offense category is divided further into subcategories ofviolations 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 ofviolations. Because the fmal aggregate weight ofthe violations inthis case is Minimum, a civil penaltytowards the bottom ofthe sanction range inthe Matrix (i.e., $250 to $1,000) is warranted for each ofthe four subcategories ofviolations (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 OrderNo. 1994-28 at 12 (September 30, 1994). They are thus deserving ofhigher 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 ofthe 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 ofthe $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 ofservice ofthis decision with the U.S. Court ofAppeals for the District ofColumbia Circuit or the U.S. court ofappeals for the circuit in which Respondent resides or has its principal place ofbusiness. 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 offinal agency decisions in civil penalty cases).

22APPENDIX 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 ofthis 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 onthe shipping paper in the mannerrequired 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 ofa hazardous material on the shipping paper must include: (1) The identification number prescribed for the material
...; (2) The proper shipping name prescribedfor the material
...; (3) The hazard class or division number prescribed for the material



### ... , (4) The packing group inRoman numerals, as designated for the hazardous material in Column (5) ofthe 

### § 172.101 table (5)
... the total net mass per package
...; Section 172.203(£) provided: (f) Transportation by air. A statement indicating that the shipment is withinthe limitations prescribed for either passenger and cargo aircraft or cargo aircraft only must be entered onthe shipping paper Section 172.204(a) provided:

17 All citations are to the October I, 20I I, edition ofTitle 49 ofthe Code ofFederal 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]achperson who offers a hazardous material for transportation shall certify that the material is offered for transportation in accordance with this subchapter by printing
... onthe shipping paper ... the certification contained inparagraph (a)(!) ofthis section or the certification
... in paragraph (a)(2) ofthis section. (I) "This is to certify that the above-named materials are properly classified, described, packaged, marked and labeled, and are inproper conditionfor transportation according to the applicable regulations ofthe Department ofTransportation."
.... (2) "I hereby declare that the contents ofthis 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 inproper 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 ofthe certificationrequired 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 inthis section the following statement: "I declare that all ofthe applicable air transport requirements have been met." Section 172.300(a) provided: (a) Each person who offers a hazardous material for transportation shall mark eachpackage, freight container, and transport vehicle containing the hazardous material inthe manner required bythis 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 andidentification number (preceded by "UN" or "NA," as appropriate) for the material as shown in the§ 172.101 Table
....

2Section 172.400(a) provided: (a)
... [E]achperson who offers for transportation or transports a hazardous material in any ofthe 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 mustprovide an emergency response telephone number, including the area code or international access code, for use in the event ofan emergency involving the hazardous material.
.... The regulations also provided: "Eachperson who knowingly violates a requirement ofthe Federal hazardous material transportation law
... is liable for a civil penalty ofnot more than $55,000 and not less than $250 for each violation, except the maximum civil penalty is $110,000 ifthe violation results in death, serious illness or severe injury to any person or substantial destruction ofproperty, 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 BEASSIGNED] · ) 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 bedismissed. 

### I. Background 

### The Complaint ofthe FederalAviationAdministration ("Complainant," "FAA," or "the agency") alleges that on December :z.:z., :z.on, Respondent ScottNovak ("Novak" or "Respondent") "knowingly offered" toAlaskaAirlines.ann-pieceshipment for air transportation from Anchorage, AK, toJuneau,AK which included hazardous materials
.. The hazardous materials ("hazmats"), itis charged, consisted ofnail polish, nailpolish remover, charcoallightedluid, hairspray, shaving cream, and insectrepellent (see 

### Tr. 13- 14). Hazardous materials tendered for airtraiisportation obligatetheshipperto place certain information onandwith the shipmentto alettthosewho might come in contact with it. The requirements are accomplished through detailed marking, labeling; and similaractions. Respondent's tender inthisrespect failed completely, the Complaint states.

--·,· •,1,•1

### As a result ofthe circumstances described above, the agency charged Respondent with sixteenHazardous Materials Regulations ("HMRs") violations, namely: 49 C.F.R. 1) §r71.2(e) (offering hazardous materials for shipmentnotproperlyclassed, described, marked, labeled, and in condition for shipment); 2) §172.2oo(a) (offering hazmats not properly described onthe shippingpapers); 3) §172.201(d) (offering hazmats withoutan emergencyresponse number); 4) §172.202(a)(1) (offering hazmats withoutthe proper identification numberfor thematerial); 5) §172.202(a)(2) (offering hazmatswithoutthe proper shippingname); 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 quantityofthe hazmat); 9) §172.203(£) (failingto include in the shipping papers a statementthatthe shipment is withinlimitations prescribedfor passengeror cargo aircraft); 

### 10) §172.204(a) (offering hazmatswithoutthe required shipper's certification); n) §172.204(c)(2) (failingtoprovide two copies ofthe required shipper's declaration); 12) §172.204(c)(3) (offeringhaz)Il:ats withoutthe required declaration); 13) §172.3oo(a) (offeringhazmats without markingthe shipmentwith the proper shipping name and identification number); 14) i72:3o1(a) (offering hazmatsin a package not marked withproper shippingmunes andidentification numbers); 15) §172.4oo(a) (offering a packagecontaininghazardous material improperly labeled); and 16) §172.604(a) (failingtoprovide an emergencyresponsetelephone number). Complainant asked for a civil penaltyof$2,700, Respondent, denying that he "knowinglyoffered" the shipment, denies the charges. I held a hearing onSeptember 25, 2012, inJuneau. At theconclusion ofthe hearing I determinedthat a written decision \yould bereasonable andappropriate. Briefs have been filed and the matter now is ready for decision. IT. Discussion 

### I find and concludethat.theagency fuilet;l tqprove its case. The Complaintwill be dismissed. · '· .'' ' · A. Review ofthe Event 

### The incident forming thebasis ofComplainant's charges grew outofa household move byRespondent's daughter andherhusband. Respondent testified that he had .I -, 

### traveled toAnchorage specificallytohelp his daughterand son-in-law movefrom thereto Juneau. When herealized that theirhousehold goods would not all fit in theirpickup truck, he offered totake some oftheitemstoAlaska Airlines for shipment. OnDecember 22, :zon, Mr. Novaktook some goods formerly loaded in thepickup andbroughtthemto AlaskaAirlines' air cargo ramp attheAnchorageairport (Tr. 174-76, 184-87). He told ramp personnel, he stated, thathewas loading "furniture and household stuff." Th!! air waybill he signed listed only "furniture;mattress." Mr. Novak acknowledged that he had

.',, ··-'3 

### initialed and signed thewaybill's boxindicatingthathewas notshipping"dangerous goods." Respondept's signature and initials onthe airwaybillactuallywere derived from a subsequent electronic credit-card transaction inwhich hehad clicked "no," and had signed and initialed, a statement assuringthatthe shipment contained neither "dangerous goods" 

### (Exh. A-18) nor**~hazardous'materials** 

### (Exh. A-19)."' Alaska Airlines customer service representativeJocelyn Juul appearedasthe agency's first witness. Sheworked atthe carrier's cargofacility inAnchorage. When she reported for dutyontheafternoon ofDecember 22, 2011, a ramp service agent**~** 

### such agents arethefirst point ofcontactfor a shipper-"toldheroffinding some "dangerous goods" in a shipment. The agenthadopened a grill and had observed lighter fluid and bug spray inside. That finding triggered a thorough search ofthe rest ofthe shipment. Ramp service agentsthenalso found hairspray, nail polish, nail polish remover, insect repellent, and shaving cream (Tr. 29-33, 41, 48, 58, 61-62; Exhs. A-1 throughA-6 andA-10 · throughA-14). Ericka Liddelow, Mr. Novak's daughter, had (along with herhusband) initially packaged and packedtheitems. She testifiedthatthey consisted of16 bottles ofnail polish; a 32-ounce bottle ofcharcoal. lighter fluid; a 1o-ounce can ofhairspray; a 7-ounce can ofshaving cream; and a 6.5-ounce can ofhtsect repellent, as well as nail polish remover (Tr. 177-79). FAA special agent and dangerous-goods specialistJeffrey Deitz, the agency's secondwitness, testified more specificallyabout. thenature.ofthe substances and the proper markingand labelingtheHMRS require. Thenail polish, he stated, properlyis classified as "Paint, class,31

### UN 12631

### packinggroup II." Nail polish remover is · "Acetone Solutions, class 3, UN 1090, packing group II." Class 3fefersto flammable liquids. The "UN" (forUnited Nations) numberis a numberassigned to the substance. Charcoal lighter fluid properlyis classified as "Petroleum Distillates, NOS [which stands for "not otherwise specified"], class 3, UN 1268, packinggroup III;" and the hairspray, shaving cream and insectrepellent must eachbe marked andlabeled (as appropriate) as "Aerosols, Flammable, class 2.1, UN 1950:• Class 2.1 substances areflammable gases (Elms. A-15 andA-20 throughA-25; Tr. 109-15, 123; see 

### Hazardous Materials Table following 49 C.P.R. §172.101). B. Findings 

### The evidence is clear andundisputed that Mr. Novak offered the six items discussed above into the stream ofairtransportation. It is also clearthatthe items each are defined underapplicable regulations as**haz~rdous**

### materials, and, additionally, that the shipmentwas offered undeclared- that is,'Without anywarning or notice ofthe
'See also Tr. 38,49-52,68,71, 192-93, 199,201;

## Exhs. A-7 andA-17. The tenn "dangerous goods" as used inthe 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 warningposter at the Alaska Airlines shipping facility. Exh. A-29; Tr. ·' ·''.r . - .. 159•60,164, ': · . • I •4 

### hazardous nature ofits contents. 

### See Midtown Neon Sign Corporation, FAA Order No. 96- 2.6 

### (August 13, 1996), p. 2. Theparties also agree that Respondent was unaware ofthe contents ofthe boxes he hadoffered 

### (see Tr. 150), and I so find. What Respondent challengesis Complainant's contention thathe·**~knoWingly** 

### offered" thesematerials. He states thathe didnot. And ifhedie\ not knowingly:offer the materials, Respondent's argumentgoes, then.he cannothave violated any ofthe HMRs with which he is charged. Thestatute governingthis case is the.Hazard6us Materials TransportationAct, 49 U.S.C. 49 U.S.C. §§5101-5127 ("the Act"). Inpertinentpart theAct provides that "[a]ny person ...who is determined by the secretary..... to have 

### knowingly committed an act which is a violation
... ofa regulation issued underthis title, shall be liable to the United Statesfor a civil penalty." (emphasis supplied). The Act further provides thata person acts knowingly when

- (A)the person has actual 

### knowledge ofthe facts giving rise to the violation; or (B) areasonable person acting in the circumstances and exercising reasonable care would have thatknowledge. · 49 U.S.C. §5123(a)(1). It has beendeterminedthat Respondent hadno actual knowledge that he had tendered hazardous materials. The critical**queS\:[d~·** 

### thenbecomeswhether, as a reasonable personin the circumstances> he would''have known that in the exercise of reasonable care. He is chargedwiththeknqwledgethat the exercise ofreasonable care in the circumstanceswould have produced. The statutorymandateto exercise "reasonable care" createda dutyupon Mr. Novakto make some kind ofinquiry intothematerialhewas shipping. The nature ofthe inquiry required depended onthe surrounding circumstances. bidMr. Novak make sufficientinquiry? Ifind that he did. The evidence shows that Respondent believed that hewasshippinghousehold goods. This beliefwas reasonable. !twasbased on tile surroundingfacts: Mr. Novak's daughter and son-in-lawwere movingtheir personal effects from Anchorage toJuneau. Respondent believed that goods customarilyassociated with household moves, such as furniture, bedding, andthe like, constituted the contents ofthe shipment. Suchgoods generally are consideredinnocuous from an air transport standpoint. Theydo not as a rule raise an alarm. Mr. Novak had no caus.e to suspect otherwise. Hewas a helper and facilitator. Underthecircumstances he had tile right to rely on his daughter's general description ofthe. contents ofthe shipment. He had no reason to inquire or lookfurther.

. ' ,' ·;.. 

### ·L
..**~**

### ..5 

### Whileitis truethat some personal effects often transported as part ofa household move are considered hazardous materials in air travel, Respondent was unaware ofthat. And he may notbe charged withthat knowledge. The law does notrequire shippersto know orinquire aboutwhich products may beconSidered dangerous goods for pl.lrposes ofair transportation. Respondent nonetheless may be fol.lnd liable ifhe knew, or should have known, thatthe materials atissl.le

-- whether theywere in

### fact considered hazardous or not
-- were part ofhis daughter's effects. 

### Scc;JttH. Smalling, FMOrder No. 94-31 

### (October 5, 1994). 

### Butliability in these circumstances**,ofthi~ ~.S'l**  

### may notbe imputed. Such a finding would amountto a determination thi;ltbeca!,lse Mr. Novak generated the shipment, he is accountable forthelegal consequences. That amountstoa standard of strict liability. The statute does not go so fur. 

### See Contract CourierServices, Inc., v. Research andSpecialProgramsAdministration, 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 inAlaska Airlines' cargo area, or elsewhere, warning about the dangers ofshipping hazardous materials ordangerousgoods. Nor had anyAlaskaAirlines employee asked him ifhe was tendering such goods. Complainant did showthatramp agents as a matter ofpolicy ask passengers ifthey are shipping dangerous orhazardous goods, .buttheagency offered no evidence tendingtoshowthat 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 merchandisewhich triggeragents' additional, .more specific inquiryintowhetherthe shipmentmaycontain hazmats- with Respondent is discounted as hearsay.' I amwell aware that theitems in question, customarily characterized .as household or consumer goods, are nonetheless considered dangerous in air transportation. They each are flammable. Each, undertheproper conditions, COl.lld produce a grave situation aboard an aircraft. But it mustbe emphasized'that,the dangers inherentin tenderingan undeclared shipmentofdangerous goods do ndt

### m~iili thata shipper, as a consequence of the shipper's dutyto inquire, must ihherfsittiatidnbe charged with theknowledge that he or she is tendering suchitems. The statute simply does not set such aninflexible standard. Theparticularcircumstances ofthiscase showthatMr. Novak reasonably did notknowwhat he was sh,ipping: they warranta findingthat Respondentmay not be .held liable underthe statute.

2 Such triggering terms, Complainantwitnesses 1estifjed, incll¥1e "household goods" and "camping gear." Tr. 71- 73, 78-79.

,- ,,6
.. 

### I find and concludethatthe agencyfailed 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 ofthe FAA. The notice ofappeal must conformto sections 13.210, 13.2ll(e)and 13.233 ofthe Rules ofPractice, which require that anotice ofappeal I)be filed not later than I0 days (plus an additional five days ifmailed) from the service 

### date ofthis decision, and 2)be perfected With a written brieformemorandum not laterthan 50 days (plus an additional five; ifmailed) from the.service date ofthis decision. The notice ofappeal and brieformemorandum must either be a) mailed to the Federal Aviation Administration, 800 Independence Avenue, S.W., Washingto0,DC 20591, Attn: HearingDocket Clerk, AGC-430, Wilbur Wright Building-Suite 2WIOOO, orb) 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. Acopy ofthe notice of!lPpeal and brieformemorandum also mustbe sentto agency counsel. Service upon the presidingjudge is optional.