UNITED STATES DEPARTMENT OF TRANSPORTATION - r r 

FEDERAL AVIATION ADMINISTRATION 

WASHING! ON, DC 

In the Matter of; HUSKY CORPORATION 

FAA Order No. 2010-8 

Docket No. CP07SO0017 

FDMS No. FAA-2007-0120' 

Served; June 16,2010 

DECISION AND ORDEROn October 31, 2008, Administrative Law Judge (ALJ) Richard C. Goodwin 

iiisued a decision assessing an $8,000 civil penalty against Husky Corporation ("Husky") 

ba.5ed upon his finding thai Husky had violated numerous sections of the Department of 

Transportation's Hazardous Materials Regulations (HMR) (see Appendix). The AJ.J 

held that an agent for Husky tendered two boxes containing gasoline and diescl pump 

nozzles lo FedEx, without identifying the shipment as containing hazardous materials. 

Husky filed an appeal from the ALJ's decision, arguing primarily that Dan Hatfield, the 

sales representative who oflcred the boxes for shipment to FedEx, was employed by 

another company and was not Husky's agent. As a result, Husky argues, the ALJ's 

finding of liability should be reversed. 

This dcci.sion holds that the ALJ's determination that Hatfield was Husky's agent, 

0m>: 

' Materials filed in the FAA Hearing Docket (except for materials filed in security cases) are also 

available for viewing at http://www.reKulations.Eov. For additional information, see 

http://dms.doi.gQv. 

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

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

v%>M>w.fa(2.gov/abow/o_fflce_org/headquurters_ojJ)ces/agc/pol_adjudication/AC7C400/ 

Civil Penalty. Sec 14C.F.R. § 13.210(eX2). In addition, Thomson Rcuters/Wcst Publishing 

publishes Federal Aviation Decisions- Finally, the decisions are available through LF-XIS (TRANS 

library) and WeslLaw (FTRAN-FAA database). For additional information, sec the Web site. 

SSO/LOOia SHQ * VVd snseetso s xvd 3e:sL oios/es/ao 
was erroneous, and, therefore, is reversed. As Husky argues, the ALJ erred in finding 

that an agency relationship existed because the FAA failed to prove that Husky had the 

requisite degree of control over Hatfield's actions. Consequently, Husky's appeal is 

granted. No penalty is assessed. 

I. Background 

On November 28, 2007, the FAA filed the complaint seeking a $15,000 civil 

penalty for violations of the HMR arising from an offer of two boxes containing 17 

gasoline pump nozzles to Federal Express for shipment by air. One box ("Box # 1") 

contained three nozzles wrapped in bubble wrap and cushioned with Styrofoam peanuts. 

The other box ("Box # 2") contained M nozzles packed in individual boxes. 

The FAA alleged that there was a residual .stain of gasoline on one of the 

14 individtial boxes packed in Box # 2, and that Husky did not clean the gasoline nozzle 

in that individual box sufficiently or purge it ol' vapors to remove any potential hazard. 

(Complaint § If, Tf 11.) The FAA alleged that: 

• the shipment was not marked or labeled to indicate that it contained regulated 

hazardous material; 

• the shipment was not accompanied by shipping papers describing the 

hazardous materials, or certifying that they were prepared for shipment in 

accordance with the HMR; 

• emergency response information was not included; 

• the shipment was not packaged properly; and 

• Husky's employees and agents were not trained regarding the FTMR. 

Thc FA A alleged that Husky offered hazardous material for transportation in 

commerce in violation ofthe following regulations: 49 C.F.R. §§ 171.2(a), 172.200(a), 

172.202(aXl), 172.202(a)(2). 172.202(a)(3), 172.202(a)(5), 172.203(f), 172.204(a) or 

Eso/sooia swa * — — ••- - — 
(c)(1), 172.204(c)(2), 172.204(c)(3), 172.600, 172.602(b)(3), 173.1(b), 172.702(a), 

173.27(b)(1), and 173.222.-' Husky denied the alleged violations in its answer. 

A hearing was held on May 28, 2008, at which one witness testified on behalf of 

the FAA and five wimesses testified on Husky's behalf At the conclusion of the hearing, 

the ALJ gave the parties an opportunity to file written closing argtiments, but counsel for 

both parties later waived closing argument. 

The ALJ issued the initial decision on October 31, 2008. Husky filed a notice of 

appeal, and perfected that appeal by filing an appeal brief on January 28, 2009. Husky 

requested oral argument. (Appeal Brief at 15.) The FAA did not file a reply brief^ 

II. The Facts 

Husky manufactures and sells products used in the petroletim industry, including 

fuel pLunp nozzles. (Tr. 142-143.) "While Husky manufactures all of its products in 

Pacific, Missouri, it tests its products at locations throughout the United States, (Tr. 143.) 

On Jtme 8, 2006. three Husky employees (John Myers, Joseph Laschkc, and 

Richard Benscoter) tested Husky gasoline and dicsel fUel nozzles at a Circle K service 

station in North Augusta, South Carolina. They were assisted by two Circle K employees 

and by Hatfield. Hatfield was employed by Jack Pittman and Associates, C'Pittman") 

which distributed products manufactured by Husky, as well as by other companies. (Tr. 

74.) Htisky pays Pittman on a commission basis. 

At the end of the test, the Husky employees removed the nozzles from the pumps 

and iiistalled new ones. Husky employees and Hatfield drained the residual fuel 

^ The regulations are reproduced in the Appendix attached to this decision, 

•* The FAA was granted two extensions of time within which to file its reply brief. The second 

extension of time granted the FAA until April 1, 2009, in which to file its reply brief, but the 

FAj^i neither filed a reply brief nor requested a third extension of time. 

sso/eooia sj,Q ^ ..... _, 

^^^ S^LSeetSOS XVd 3e:SL 0L0S/G3/9 0 
remaining in the old nozzles. (Tr. 76-78.) Draining the used nozzles was necessary 

because parts of tJie nozzle bold fuel after the nozzle is disconnected. (Tr. 100.) Richard 

Benscoter, Husky's engineering manager, explained that the area between the poppet and 

the check valve could hold approximately 1.35 ounces of fiiel. (Tr. 107.) 

John Myers, Husky's national account sales manager, testified that he is always 

very careful to drain and purge all of the fiiel he can get out of a used nozzle because 

ultimately someone has to transport the nozzles. He testified that he tries to minimize the 

odor coming from used nozzles by draining and purging every bit of fuel that he can. 

(Tr. 88.) He explained that on June 8, he drained the residual fuel from the used nozzles 

into a bucket by jamming the poppet open with a screwdriver. (Tr. 88.) 

Myers explained further that if he were going to ship used nozzles, he would let 

them sit out in the .sun until they were sufficiently dried out and the odors were gone. 

Then he would package them and ship them by ground fi-eight. (Tr. 95.) However, he 

testified, in this instance, he did not place the nozzles in the sun to dry before putting 

them in the boxes. (Tr, 93.) Also, he did not flush the nozzles out. (Tr. 93.) Instead, 

after iJie nozzles were drained, they were put down for no more than a few minutes 

before they were boxed and placed in Hatfield's car. (Tr. 78.) 

Later that day, Hatfield tendered two fiberboard boxes containing a total of 17 

nozzles to FedEx in West Columbia, South Carolina, for shipment by air to Husky 

headquarters in Pacific, Missouri.^ (Complainant's Exhibits 1 and 3.) Hatfield used his 

home address in Lexington, South Carolina, as the point of origin. Hatfield did not 

prepare shipping papers, or mark or label the two outer boxes to disclose that they 

^ FedEx indicated in the incident report that ""Dan Hartfield [sic] Husky" was the .sliippcr/offcror 

of these boxes. (Complainant's Exhibit I.) 

^^^ SnseGt30 S XVd 3e:SL 0103/62/8 0 
contained hazardous materials. 

Hatfield used Husky's FedEx account number to pay for the shipment. Brad 

Baker, lltisky's Executive Vice President, testified that Husky permits its customers and 

outside salespeople to use its FedEx number to ship documents and paperwork back to 

the company. As a result, Baker testified, he assumed that Hatfield or his assistant had 

the Husky FedEx number before the boxes were tendered for shipment by air on June 8, 

2006. (Tr. 191-192.) 

In response to the FAA's letter of investigation, Baker and Mark Pittman, 

Pittman's President, wrote in a letter dated July 20,2006: 

On the days preceding the shipment three Husky employees (John Myers, 

Richard Benscoter, and Joe La-schke) were working vrith Dan Hatfield at a test 

location. Following the conclusion of the tests, Dan "was asked to make 

arrangements to return the products to Husky. IVhile employees of Husky asked 

Dan to make the shipment arrangements, Dan actually shipped the product. 

(Complainant's Exhibit 3 at 1-2,) (Emphasis added.) 

However, at the hearing, the Husky employees did not testify as clearly regarding 

how Hatfield became responsible for shipping the used nozzles. Baker testified that he 

had never been lold by any Husky employee that that employee had instructed Hatfield 

regarding shipping the nozzles, (Tr. 149), and that it was his understanding that Husky 

employees did not ask Hatfield to ship the nozzles. (Tr. 183.) Myers, Benscoter and 

Laschke testified ai the hearing that they did not give Hatfield any instructions about how 

or when to ship the nozzles to Husky headquarters in Missouri and denied having heard 

anyone else give any shipping instructions to Hatfield. (Tr. 89-90, 113,130, 135.) 

Myers and Laschke testified that they were aware of no reason for Hatfield to ship the 

nozzles to Husky by overnight delivery. (Tr. 89, 131.) Myers testified that he 

understood that the nozzles would be returned to Missouri, and that he did not expect 

^ ^ ^ SnSGGtSOS XVd 8e:SL 0L0S/G2/30 
Hatfield to drive the nozzles there. (Tr. 94-95.) Liischke, in contreist, testified that he did 

not expect that the nozzles would be returned to Husky's headquarters in Missoxiri and 

that Hatfield could have thrown the nozzles away, although none of the Husky employees 

told Hatfield that he could discard the nozzles. (Tr. 137-138.) 

As FedEx explained in the Hazardous Materials Incident Report that it completed, 

there v^as "vapor (gas) dispersion" coming from the shipment. (Complainant's Exhibit 

1.) Consequently, FedEx did not transport the boxes. 

FedEx contacted the FAA about this incident, and Staci Baldwin, an FAA Hazmat 

SpecicJist, was assigned to investigate this incident. She went to the FedEx sort facility 

on July 10, 2006, and saw two big boxes, neither of which had any hazardous materials 

markings or labels. (Tr. 19, 27.) Box # 1 contained Styrofoam peanuts and tliree nozzles 

with black handles wrapped in bubble wrap. (Tr. 19; Complainant's Exhibit 2, 

photographs 1 -8.) Box # 2 contained 14 nozzles, each packed in an individual box with 

Husky's name printed on it. (Tr. 19; Complainant's Exhibit 2, photographs 9-17.) She 

did not receive any shipping papers for these boxes. (Tr, 15, 27.) Baldwin wrote in her 

statement that "the contents of this package were discovered due to the heavy vapors 

coining from the box." (Respondent's Exhibit 5 at 3.) 

She testified that she smelled gasoline from Box # 2. (Tr. 18, 21, 39.) Box # 2 

contained one individual box that bad a "gassy" stain. (Tr. 22; Complainant's Exhibit 2, 

pictvires 15-17.) Baldwin opined that residual gasoline contained in the gasoline fuel 

nozzle packed in that individual box caused the stain. She based this opinion upon her 

observation that the nozzle's discharge end pointed to the stain. Actually, that particular 

nozzle had a green handle, and as she testified, diesel fuel nozzles generally have green 

£30/900 0 SWO ^ „„ . 

^^^ snssetsos xvd 3e:sL otos/es/ao 
handles while gasoline nozzles have black handles. (Tr. 34.) No tests were done to 

ascertain whether the stain was caused by diesel fuel or gasoline, and Baldwin did not 

know whether that particular nozzle had been used for diesel fuel or gasoline. 

Jack Peters testified as an expert in the field of hazardous materials regulations on 

behalf of Husky. Peters testified based on his examination of photograph 17 that "it 

would be a dicsel stain based especially on the handle that was tliere and the fact that it 

was there several days after whatever made the stain caused it" (Tr. 221.) 

Inspector Baldwin testified that whether the nozzles contained diesel fuel or 

gasoline, they were properly categorized as "dangerous goods in apparatus." (Tr. 53.) 

She stated that diesel fuel, like gasoline, is a hazardous material. (Tr. 42.) 

After the FAA notified Husky about its investigation, Husky arranged for 

hazardous materials transportation training for five of its employees. FedEx provided 

one training course, and Jack Peters and Associates ran the other course attended by 

Husky employees. (Tr. 170.) The Husky employees completed their training in August 

2006. (Tr. 171-172, 174.) Husky introduced copies of the certificates received by its 

employees after they completed the training, as well as other doctimcntation pertaining to 

the training. (Tr. 171-172; Respondent's Exhibit 3,) 

TIL The Initial Decision 

The ALJ held that Hatfield served as an agent for Husky. He wrote: 

The critical fact in determining liability is that Hatfield acted at the behest 

of Husky employees who were acting, or apparently acting, on Husky's behalf 

Nozzles in the field routinely were returned to headquarters ('ir. 94). Husky 

employees designated Hatfield to perform that task. These circumstances created 

an agency relationship. See, e.g., Holley v. Crank, 386 F.3d 1248, 1252 (9 Cir. 

2004). 

(Initial Decision at 3.) Tlie ALJ rejected Hu.sky's arguments that an agency relationship 

"l!:^!! ^ ^^° ^ ^Vd 3WSG61,303 XVd i8:SL 0103/63/80 
did not exist because its employees had not directed the manner of shipment or packaging 

of the nozzles. According to the ALJ, these details did not change the nature of the 

relationship between Husky and Hatfield. 

Regarding the shipment, the ALJ concluded that the evidence showed that diesel 

lucl had leaked from a diesel fuel nozzle inside one of the individtial boxes in Box # 2. 

(Initial Decision at 4.) The ALJ wrote that his determination that dicsel fiiel leaked firom 

a diesel fuel nozzle - rather than gasoline from a gasoline fuel nozzle as alleged in the 

complaint - did not affect his legal findings and conclusions because the HMR regulate 

both dicsel fuel and gasoline. He decided to "permit the Complaint to conform to the 

proof"* (Initial Decision at 4-5.) 

TTic ALJ rejected Husky's other arguments that compliance with the HMR was 

not required based upon exceptions in the regulations. (Initial Decision at 5-6.) He 

concluded that Husky violated all of the alleged regulations. 

After weighing the totality of the facts and circumstances, the ALJ concluded that 

an $8,000 civil penalty was appropriate. On the one hand, he found that a significant 

penalty was appropriate bccaase of the risks posed by a hidden shipment and because 

Husky used hazardous materials in the course of its business. On the other hand, he 

found that Husky's witnesses credibly testified that they attempted to drain the nozzles 

thoroughly and that the "the residual ainotmt of fiiel in each of the nozzles would have 

* In determining to conform the complaint to the proof, the ALJ relied in part upon the following 

reasoning: 

Respondent has not suggested that it was surprised or otherwise prejudiced by the 

difference between the allegations of the Complaint and the evidence adduced at the 

hearing. No compelling reason exists to hold Complainant strictly to the Complaint's 

literal words. 

(Initial Decision at 6.) 

^^<>^^00m SWO ^ VVd StLSe6t303 XVd i8:9L 0103/63/80 
been measured 'in drips rather than ounces or liters.'" (Initial Decision at 8.) He also 

found that the Husky's response to this incident - sending its employees for hazardous 

materials training - was a mitigating factor. (Initial Decision at 8.) 

IV. Resolution of the Issues on Appeal 

Husky argues on appeal that it was error for the ALJ to find that Hatfield was an 

agent for Husky. Hatfield, Husky notes, was employed by Pittman, a manufacturer's 

representative. Pittman sold Husky products, as well as the products of other 

manufacturers of petroleum products, on a commission basis. The evidence indicated, 

Husky argues, that Husky did not give Hatfield any direction regarding how to ship the 

nozzles, and that Hatfield probably had Husky's FedEx account number before the day of 

the sliipment. The ALJ, Husky notes, made no findings showing that Husky had the right 

to control Hatfield's behavior and conduct, regardless of whether its employees asked 

Hatfield to ship the nozzles to Missouri. Husky argues that it was error for the ALJ to 

conclude that the Hatfield acted as Husky's agent if Husky did not have the right to 

contiol Hatfield's behavior and conduct. 

Husky is correct. To establish an agency relationsliip between Hatfield and 

Husky, it is not enough to show that Hatfield shipped the nozzles at Husky's request. 

According to the Restatement (Third) of Agency § 1.01 (2006): 

Agency is the fiduciary relationship that arises when one person (a "principal") 

manifests assent to another person (an agent") that the agent shall act on the 

principal's behalf and subject to the principal's control, and the agent manifests 

assent or otherwise consents so to act. 

As explained in Comment c to Restatement (Third) of Agency § 1.01: 

A principal's right to control the agent is a constant across relationships of 

agency, but the content of specific meaning of the right varies. Thus, a person 

may be an agent although the principal lacks the right to control the full range of 

S30/600i a sua * VVd 31?LSSGt303 XVd iC'S t 0t03/63/8 0 
the agent's activities, how the agent uses time, or the agent's exercise of 

professional judgment. A principal's failure to exercise the right of control does 

not eliminate it, nor is it eliminated by physical distance between the agent and 

principal. 

Howe\'er, if a person has the right to control only "the result of the work [by another 

person], and not the means by which it is accomplished,... an independent contractor 

relationship exists." Aero Continente. S.A.> FAA Order No. 2003-8 atl6 (September 12, 

2003), quotinz In re Coupon Clearing Service. Inc., 113 F.3d 1091,1099 (9"" Cir. 1997). 

In this case, the FAA presented no evidence concerning the relationship between 

Hatfield and Hu.sky beyond the equivocal testimony regarding how the nozzles came to 

be shipped back to Husky. There was no evidence describing any contractual 

arrangement between Hatfield and Husky or between Husky and Pittman, nor was there 

any evidence that Husky either controlled or had the right to control Pittman's employees 

when they acted as sales representatives for Husky. Conseqtiently, whether Hatfield 

agreed to serve as an agent subject to Husky's control for the discrete fiinction involved 

in this case - the shipment of the used nozzles - cannot be determined on this record.' 

V. Conclusion 

In light of the foregoing, Htisky's appeal is granted, the ALJ's initial decision is 

reversed, and Husky is not liable for the payment of a civil penalty. 

I, RANDOLPH BABBIT!, 

ADMINISTRATOR 

Federal Aviation Administration 

^ The FAA did not address tlie issue of agency in its opening argument and did present n closing 

argument or file a reply brief Consequently, the record does not reflect the agency's vjcw 

regarding whether there is any basis for holding Husky liable for Hatfield's failure to prepare the 

package properly for shipment. Therefore, whether there is any other basis for a finding of 

liability under the HMR other than agency in a case such as this one in which hazardous materials 

are ^iven by one party to another for tendering to a carrier for transportation is not decided. 

10 

'''^^^'• ^ S^ ° ^ VVd 3WSGGt30 3 XVd iG:S t 0t03/e3/8 0 
APPENDIX 

[The regulations quoted in this Appendix 

were printed in the 2005 Volume 49 

of the Code of Federal Regulations, 

which was current between 

October 1, 2005, and September 30, 2006.] 

49 C.F.R. § 171.2(a) (2005) provides: 

(a) Each person who performs a function covered by this subchapter must 

perform thai function in accordance with this subchapter. 

49 C-F.R. § 172.200(a) (2005) provides: 

(a) Description of hazardous materials required. Except as otherwise 

provided in this subpart, each person who offers a hazardous material for 

transportation shall describe the hazardous material on the shipping paper in the 

manner required by this subpart. 

49 C-F.R. § 172.202(a)(1) - (3) and (5) (2006) provide: 

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

must include: 

(1) The proper shipping name prescribed for the material in column 2 of 

the§ 172.101 table; 

(2) The hazard class or division number prescribed for the material, as 

shown in column (3) of the § 172.101 table. * * * 

(3) The identification number prescribed for the material as shown in 

column 4 of the § 172.101 table; 

+ t t 

(5) The total quantity of hazardous materials covered by the description 

must be indicated (by mass or volume, or by activity for Class 7 materials) and 

must include an indication of the applicable xmit of measure. For example, "200 

kgs." or "50 L." * * * 

49 C.F.R. § 172.203(f) (2005) provides: 

(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. 

11 

^^(^/^^^ ^ SWQ * VVd 3nseGt30 3 XVd iS:S L 0103/63/8 0 
49 C.F.R. § 172.204(a) (2005) provides: 

(a) General. Except as provided in paragraphs (b) and (c) of this section, 

each person who offers a hazardous material for transportation shall certify that 

the material is offered for transportation in accordance with this subchapter by 

printing (manually or mechanically) on the shipping paper containing the required 

shipping description the certification contained in paragraph (a)(l) of this section 

of the certification (declaration) containing the language contained in paragraph 

(a)(2) of this section. 

(1) "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 

Tran,sportation." 

NOTE: In line one of the certification the words "herein-named" may be 

substituted for the words "above-named". 

(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 labeled/placarded, and are in all respects in proper 

condition for transport according lo applicable international and national 

governmental regulations." 

49 C.F.R. § 172.204(c)(1) - (c)(3)(2005) provides: 

(c) Transportation by air - (1) General. Certification containing the 

following language may be used in place of the certification required by 

paragraph (a) of this section: 

I hereby certify tliat the contents of this consignment are fully and accurately 

described above by proper shipping name and are classified, packaged, marked and 

labeled and in proper condition for carriage by air according to applicable national 

government standards. 

NOTE TO FARAGRATH (e)(1): In the certification, the word "packaged' may 

be used instead of the word "packaged" until October 1, 2010. 

(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. (See § 175.30 of this subchapter.) 

(3) Additional certification requirements. Effective October 1, 2006, each 

person who offers a hazardous material for transportation by air must add to the 

certification required in this section the following statement: 

12 

630/310 0 swa VVd 3t?LSG6t303 XVd LZ-<iV 0L03/63/8 0 
"I declare that all of the applicable air transport requirements have been 

met." * * * 

49 C.F.R. § 172.600 (2005) provides: 

(a) Scope. Except as provided in paragraph (d) of this section, this subpart 

prescribes requirements for providing and maintaining emergency response 

information during transportation and at facilities where hazardous materials are 

loaded for transportation, stored incidental to transportation or otherwise handled 

dm-ing any phase of transportation. 

(b) Applicability. This subpart applies to persons who offer for 

transportation, accept for transportation, transfer or otherwise handle hazardous 

materials during transportation. 

(c) General requirements. No person to whom this subpart applies may 

offer for transportation, accept for transportation, transfer, store or otherwise 

handle during transpori;ation a hazardous material unless: 

(1) Emergency response information conforming to this subpart is 

ijnmcdiately available for use at all times the hazardous material is present; and 

(2) Emergency response information including the emergency response 

telephone number, required by this subpart is immediately available to any 

person, who, as a representative of a Federal, State or local government agency, 

responds to an incident involving a hazardous material, or is conducting an 

investigation which involves a hazardous material. 

(d) Exceptions. The requirements of this subpart do not apply to 

hazardous material which is excepted from the shipping paper requirements of 

tliis subchapter or a material properly classified as an ORM-D. 

49 C.F.R. § 172.602(b)(3) (2005) provides: 

+ + * 

(b) Form of information. The information required for a hazardous 

amterial by paragraph (a) of this section must be: 

* • • 

(3) Presented -

(i) On a shipping paper; 

(ii) In a doctxment, other than a shipping paper, that includes both the basic 

description and technical name of the hazardous material as required by §§ 

172.202 and 172.203(k), the ICAO Teclinical Instructioi\ the TMDG Code, or tlie 

13 

S30/St0ia swa VVd 3tLSG6t303 XVd iZ<i l OL03/63/80 
TDG Regulations, as appropriate, and the emergency response information 

required by this subpart (e.g., a material safety data sheet): or 

(iii) Related to the information on a shipping paper, a written notificati'on 

to pilot-in-command, or a dangerous cargo manifest, in a separate document {e.g., 

an emergency response guidance document), in a manner that cross-references the 

description of the hazardotis material on the shipping paper with the emergency 

response information contained in the document. * * * 

* * * 

49 C.F.R- § 172.702(a) (2005): 

(a) A hazmat employer sliall ensure that each of its hamat employees is 

tramed in accordance with the requirements prescribed in this subpart49 C.F.R. § 173,1(b) (2005): 

(b) A shipment of hazardous materials that is not prepared in accordance 

with this subchapter may not be offered for transportation by air, highway, rail, or 

water. It is the responsibility of each hazmat employer subject to the 

requirements of this subchapter to ensure that each hazmat employee is trained in 

accordance with the requirement prescribed in this subchapter. It is the duty of 

each person who offers hazardous materials for transportation to instruct each of 

his officers, agent, and employees having any responsibility for preparing 

hazardous materials for shipment as to applicable regulations in this subchapter. 

49 C.F.R. § 173.27(b)(1) (2005): 

(b) Packages authorized on board aircraft. (1) When column 9a of the 

§ 172.101 table indicates that a material is "Forbidden", that material may not be 

offered for transportation or transported aboard aircraft. 

49C,F.R. § 173-222(2005): 

Hazardous materials in machinery or apparatus are excepted from the 

specification packaging requirements of this subchapter when packaged according 

to this section. Hazardous materials in machinery or apparatus must be packaged 

in strong outer packagings, unless the receptacles containing the hazardous are 

afforded adequate protection for the construction of the machinery or apparattis. 

Each package must conform to the packaging requirements of subpart B of this 

part, except for the requirements in 173.24(a)(1) and 173.27(e) and the following 

requirements: 

(b) The nature of the containment mu.stbe as follows 

14 

S30/tPL0i a swa <• VVd 3^1566^303 XVd 8e:SL 0L03/63/80 
(1) Damage to the receptacles containing the hazardous materials during 

transport is unlikely. However, in the event of damage to the receptacles 

containing the hazardous materials, no leakage of the hazardous materials from 

the equipment, machinery or apparatus is possible. A Icakproof liner may be used 

to satisfy this requirement. 

(2) Receptacles containing hazardous materials must be secured and 

cushioned so as to prevent their breakage or leakage and so as to control their 

movement within the equipment, machinery or apparatus during normal 

conditions of transportation. * * * 

* * + 

(c) The total net quantity of hazardous materials contained in one item of 

equipment, machinery or apparatus must not exceed the following: 

* * * 

(2) 0.5 L (0.1 gallons) in the case of liquids; '^ * * 

15 

£30/5100 swa VVd 3tLSe6t'303 XVd 8G:St 0t03/63/8 0 
SERVED OCTOBER, 31 . 2008 RFCFIVFn 

UNITED STATES DEPARTMENT OF TRANSPORlATI(Kr ^ CLI V CI J 

OFFICE OF HEARINGS j^QV 0 3 2008 

WASHINGTON, D.C. 

HEARING DOCKET 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

V. 

HUSKY CORPORATION. 

Respondent. 

FAA DOCKET NO. CP07SO0017 

(Civil Penalty Action) 

DMS NO. FAA-2007-0120 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found: 1) Respondent is hereby asiiessed 4 civil penalty of S8,000. 

I, Background 

Husky Corporation (hereinafter "Respondent" or "Husky"), of Pacific, MO, 

manufactures and sells equipment for the petroleum industry (Tr. 142-43). On 

June 8, 2006, according to the Complaint of the Federal Aviation Administration 

(hereinafter "Complainant," "FAA," or "the agency"), Husky offered in air 

transportation an "undeclared" shipment of hazardous materials (Exh. R-6). 

"Undeclared" means that the shipment contained no warning or notice of the 

hazardous nature of its contents (Tr, 17). Complainant identified the hazardous 

malerials as gasoline and gasoline pump nozzles. 

By this act, Complainant says, Respondent violated sixteen Hazardous 

Materials Regulations ("HMRs"), 49 CFR §171 etseq., viz., §§171.2(a), 

172.200(a), 172.202(a)(1)-(a)(3), 172.202(a)(5), 172.203(f). 172.204(a) or (c)(1). 

172.204(c)(2). 172.204(c)(3), 172.600, 172.602(b)(3), 173.1(b), 172.702(a), 

173.27(b)(1). and 173.222 (Exh. R-6). These provisions generally set out 

marking and similar informational requirements for certain hazardous-materials 

shipments as well as training obligations for entities involved in such shipments. 

The agency seeks a civil penalty of $15,000 (Exh. R-6; Tr. 6). 

Respondent denies the charges. It argues that it was not the shipper, and 

so cannot be held liable. The shipment In any event contained no hazardous 

e30/8L0i a SWO VVd 31?LSe81?303 XVd 8e:SL 0L03/G3/8 0 
materials, it says further. Husky also asserts that the shipment is properly 

characterized as falling outside HMR requirements (Tr. 7-8, 216). Finally, it 

argues that, as an entity not regularly offering hazardous materials, it had no 

obligation to offer training; nonetheless, it instituted an employee training 

program after the incident. 

A hearing was held on May 28, 2008, in St Louis, MO. I determined that 

a written decision was reasonable and appropriate under the circumstances (Tr. 

276-78). 

I hold that the facts and circumstances of this case, including factors in 

mitigation, warrant an assessment against Respondent of $8,000. 

11. Liability 

The question of responsibility for placing the shipment into the stream of 

commerce must be considered first. For if Respondent, as it assert:s, was not, in 

fact or in law, the shipper, then it is not liable for any violation stemming from the 

shipment. 

The facts show that Respondent was the shipper. As such, it must 

answer for any violations. 

On June 8, 2006, several Husky officials were in South Carolina testing 

noz,iles for a possible customer. Respondent had 20 nozzles at the site. 

Sixteen were gasoline nozzles, and four were diesel (Tr. 71-73). After the 

demonstration, employees of Husky asked an individual, Dan Hatfield 

("Hatfield"), to arrange to ship the nozzles to Husky's headquarters In Missouri 

(Exh. C-2, pp. 1-2). After the nozzles were drained and packaged, they were 

placed in Hatfield's car (Tr. 77-78, 83-88). Hatfield was not instructed on how or 

when to effect the shipment (Tr. 88-89, 113). 

Hatfield was not a Husky employee. He was a salesman for Jack Pittman 

and Associates ("Pittman"). a manufacturer's representative. Pittman sells 

products to distributors and end users on behalf of Husky and other 

manufacturers. Husky pays Pittman on a commission basis (Tr. 72-74, 92, 144-

45, 147; Exh. R-2, p, 1). 

Later that same day, June 8, Hatfield carried out the task that Husky 

employees had asked him to perform. Using his home address as the point of 

origin, he tendered to Federal Express Corporation ("FedEx") at West Columbia, 

SC, two fiberboard boxes for shipping to Husky headquarters. One of the boxes 

contained three gasoline pump nozzles. The other contained fourteen nozzles, 

each individually packaged in its own fiberboard box (Tr. 19-21, 28-29; Exhs. C-1 

and C-2, picture 15; Exhs. R-4 and R-5, p. 3). Hatfield used Husky's FedEx 

account number (Tr. 183). 

830/2.10 0 SWO * VVd 3t?LSe6t303 XVd SS-St 0t03/63/8 0 
The critical fact in determining liability is that Hatfield acted at the behest 

of Husky employees who were acting, or apparently acting, on Husky's behalf. 

Nozzles in the field routinely were returned to headquarters (Tr. 94). Husky 

employees designated Hatfield to perform that task. These circumstances 

created an agency relationship. See, e.g., Holley v. Crank, 386 F.3d 1248, 1252 

(9 Cir. 2004). Husky, in asserting that Hatfield's actions should not be imputed to 

it, points out that the manner in which the nozzles were packed and the type of 

transportation used were details left to the judgment solely of Hatfield. But these 

were, of course, details. They did not change the nature of the relationship. Of 

central and overriding significance is that Hatfield, in arranging to ship the 

nozzles, acted at the direction of Husky employees. He used Husky's FedEx 

account number to do so. Hatfield in this transaction acted as Husky's agent I 

conclude. Hatfield's actions therefore are imputed to Husky.'' 

Ill, Findings and Conclnsions 

The salient facts are straightforward. Respondent tendered for shipment 

aboard aircraft hazardous materials lacking the safeguards the HMRs require for 

such shipments. By doing so. Respondent violated the HMRs set out in 

Complainant's Complaint. An appropriate civil penalty will be set 

The FAA learned of the shipment the day after Respondent's tender, when 

it was notified by the carrier hired to transport the packages. Federal Express 

Corporation (Tr. 14; Exh. R-5, p. 3). FedEx subsequently sent to the agency a 

report required by carriers involved in a hazmat incident. In its Hazardous 

Materials Incident Report, FedEx stated that it had uncovered an undeclared 

shipment of gasoline. Its employees, it said, were alerted by gas or vapor 

emitting from the shipment (Exh. C-1; Exh, R-5, p. 3; Tr. 14-18). One of the 

individual boxes was stained. The stain, according to the report, was gasoline 

residue.^ 

FAA special agent and hazardous-materials specialist Staci Baldwin 

investigated the incident. She pointed out that gasoline pump nozzles are a 

regulated hazardous material known as Dangerous Goods in Apparatus (see 

Haziardous Materials Table immediately following §172.101; Tr. 25-27, 32). The 

source of the apparent leakage which had led to the stain, she said, was gasoline 

' See generally Westair Commuter Airlines, Inc. d/'h/a United Express, FAA Order'No. 93-18 (June 10, 

1993). That Hatfield may have performed ihc lask either in a maimer difltrcni from Husky procedures, in 

an unauthorized manner, or even in a manner contrary to law does nor change the nature of the relationship. 

Wesiair, pp. .5-7; W. Page Prosser er a/,, grosser and Keeton on the T,aw of Torts, § 70, at 502-503 (5th ed, 

1984), The claim of Husky safety oftlcial John Myers that he would not have shipped tiie nozzles unless 

they were "sufficiently" dried out ('JY. 95), then, docs not alrer the agency relationship Husky had 

established with Hatfield. 

^ Exh, C-2. pictures 15, 16, and 17; Exh. R-5, p. 3, Although the report stares thai the shipper/offeror's 

surname is "Harttleld," the record establishes that die repon ivas referring lo Dan Hatfield. Ss&. eg . Kxh. 

C-3,p, 1. 

E!20/8L0ia SWO * VVd SnSSetSO S XVd SS-SL 0L02/62/9 0 
(Tr. 33, 56; see Exh. C-2, picture 15). Gasoline also is named in the HMRs as a 

hazardous material and subject to the regulations' requirements and restrictions.' 

Agent Baldwin supported the allegations of the Complaint, She stated that 

the shipment at issue failed to observe any HMR requirements triggered by its 

nature. She concluded that Respondent violated each of the HMRs set out in the 

Complaint (Tr. 27). 

The preponderance of the evidence showed that the materials in the 

shipment included diesel pump nozzles as well as gasoline pump nozzles. The 

evidence also showed that a substance did cause the stain on one inner 

package, but that it was diesel fuel, not gasoline. The diesel fuel, I further 

conclude, had leaked from inside the package. 

Testimony from witnesses for both parties sufficiently supported these 

determinations. Agent Baldwin testified that she had removed from the stained 

box the nozzle inside it before she took a photograph. She placed the nozzle on 

top of the offending box. Her photograph shows a nozzle with a green handle. 

Pump nozzles with green handles customarily are used for diesel fuel; gasoline 

normally is pumped through nozzles with handles that are black (Tr. 35-36, 48-

49; Exh. C-2, picture 17). Jack Peters, a consultant on hazardous-materials 

regulation and a witness for Respondent, concluded that the nozzle 

photographed by agent Baldwin is a diesel nozzle and that the stain in the picture 

is a diesel stain (Tr. 220-22; see Exh. C-2, picture 17). In support, he testified 

not only that green is the color customarily used for diesel handles; he added that 

while gasoline will evaporate after staining, diesel fuel will not (Tr, 220), Further, 

while it is true that any residue remaining in the nozzle In question was not tested 

(Tr. 33, 50), no evidence tended to show that Husky broke with industry 

convention by using a nozzle with a green handle for gasoline rather than for 

diesel. The evidence showing that the stain was the product of diesel fuel, not 

gasoline, and that diesel pump nozzles were part of the shipment, was 

persuasive. 

These determinations do not affect the legal findings and conclusions 

herein. Diesel fuel, like gasoline, is named in the HMRs as a hazardous material. 

Diesel pump nozzles, like gasoline pump nozzles, also are hazardous materials 

categorized as Dangerous Goods in Apparatus (Hazardous Materials Table 

immediately foWowing §172.101; Tr. 53, 222). Although the Complaint asserts 

HMR violations stemming solely from the undeclared tender of gasoline and 

gasoline pump nozzles (Exh. R-6), Respondent has not suggested that it was 

surprised or otherwise prejudiced by the difference between the allegations of the 

Complaint and the evidence adduced at the hearing. No compelling reason 

' Hazardous Materials Table of §172.101. Respondent artempted to cast doubt on Complainant's 

conclusion that the package leaked from the inside, or that ii leaked at all. See. e.g., Tr, 47-49. Whether 

the package leaked is not directly relevant to the violations at issue. Tr. 54, 

£20/6100 SWO * VVd stLssetsos XVd 88;sL oLos/ee/80 
exists to hold Complainant strictly to the Complaint's literal words. Therefore, I 

will permit the Complaint to conform to the proof." 

Respondent's attempts to show that the materials involved fall within 

exceptions to HMR requirements miss the mark. Its contention that the diesel 

fuel it carried qualifies for the small-quantity exception of §173.4 (Tr. 234) is 

wrong. Section 173.4 may indeed be invoked when eleven numbered 

prerequisites are met (§173.4; Tr. 255). But Respondent failed to meet at least 

two of them. First, packing material must be capable of absoriDing liquid in an 

inner receptacle (§173.4(a)(4)). The leak of the diesel fuel shows that the 

packing material failed in that task. Further, no evidence, other than a hearsay 

statement of insufficient credibility, demonstrated that Respondent met the "droptest" prerequisite (§173.4(a)(6); Tr. 257-58). Respondent in fact acknowledged 

that rt failed to meet the requirements necessary to benefit from the §173.4 

exception (Tr. 259). 

Nor does the HMRs' Special Provision ("SP") 136 suggest an exemption 

from the labeling rules otherwise applicable to the shipment (see "Code/Special 

Provisions" following §172.102j. SP 136 exempts hazardous materials from 

labeling requirements under certain conditions, but only when they arc offered for 

transportation by a method other than aircraft. Apparatus such as the nojizles 

may be excepted from HMR requirements by the Associate Administrator 

respecting any form of travel, including transportation by air; however, the 

Associate Administrator granted no exception in this case (Tr. 249-50). 

Therefore, SP 136 dbes not apply either.^ Neither do the exceptions from 

labeling requirements for "limited quantities" classed as flammable or 

combustible liquids pertain, because these exceptions are not applicable for 

carriage by aircraft (§173.150; Tr. 243). 

Respondent also asserted that the diesel fuel at issue could not have 

been a hazardous material because its flash point was too high to be considered 

as such. Husky's consultant-witness, Jack Peters, contended that "there is a 

good possibility" (Tr. 224) or "a possibility" (Tr. 244) that the flash point of the fuel 

had been over 140° F. - and thus too high to be regulated, he said ~ because it 

was recovered In early June, near the beginning of summer, in warm-weather 

South Carolina (Tr. 223-24). But the witness' conclusion is merely conjecture. 

Peters did not know the actual flash point of the diesel fuel in the nozzle (Tr. 

246). Speculation is not probative testimony. 

" My power to do so derives from the Administrative Procedure Act, 5 USC §556(c), and the FAA's rules, 

14 CFR §13.205(a)(5) and (a)(0), each of which permit administrative law judges to "receive relevant 

evidence" and "regulate the course of the hearing." I'he Federal Rules of Civil Procedure also allow such 

an action. Rule 15(b) state."; that "when issues not raised by the pleadings arc tried by express or implied 

consi.;nl of the parties, they shall be treated in all respects as if they had been raised in the pleadings." It 

further states that failure to amend the pleadings to conform them to the evidence "docS not affect the result 

of the trial of these issues." 

^ Respondent acknowledges that if these exceptions do not apply and "Husky was the shipper," then HMR 

labeling and packaging requirements do apply, Tr, 236-37; see also Tr. 251-52. 

£30/0200 SWO f- VVd StLSSetSOS XVd Ge:SL 0103/62/80 
Respondent's assumption that fuel with a flash point above 140° F. would 

remove it from the regulatory scheme is, moreover, incorrect, A flash point 

above 140° F. and less than 200' F. would, as Respondent correctly points out, 

enable a substance classed as a flammable liquid to be reclassed as a 

combustible liquid.^ But Peters' claim that combustible liquids are completely 

nonregulated (Tr. 268-69) is not correctPeters bases his conclusion on §173.150(f)(2), which states that (other 

than exceptions inapplicable here) "the requirements in this subchapter do not 

apply to a material classed as a combustible liquid in a non-bulk packaging.' But 

the previous subparagraph, (f)(1), makes clear that subparagraph (f)(2) does not 

apply to transportation by aircraft or vessel. Peters counters that subparagraph 

(f)(2) stands alone; it should be read without reference to (f)(1), he stated (Tr. 

271-72), The witness' reading is incorrect. It is an elementary rule of statutory 

construction that, in construing one provision or section, provisions of a 

legislative enactment must be read together. A & E Supply Co., Inc. v. 

Nationwide Mutual Fire Insurance Co., 798 F.2d 669, 675 (4 Cir. 1986). All parts, 

provisions, and sections of the HMRs must be read together in order to best 

ascertain and give effect to their meaning. Meloy v. Conoco, Inc., 817 F.2d 275 

(5 Cir. 1987). It is concluded that combustible liquids generally must conform to 

HMR requirements. 

1 have considered all other objections raised by Respondent and reject 

them without additional comment.' 

IV. Penalty 

I have decided to assess a civil penalty against Respondent of $8,000. 

Complainant asks for a civil penalty of $15,000. It bears the burden of 

proving the appropriateness of this amount by a preponderance of the evidence. 

Phillips Building Supply, FAA Order No. 2000-20 (August 11, 2000), p. 8. 

In determining the amount of the penalty, the decisionmaker must 

consider "the nature, circumstances, extent, and gravity of the violation," and, 

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 "other matters that justice requires" (49 U.S.C. §5123(c)). 

* § 173.120(b). A flammable liquid with a flash point of just 100" 1'. or above may be reclassed as a 

combustible liquid, but only if means of transportation other than aircraft or vessel are "impracticable." 

§ 173.120(b)(2); Tr, 245, Mo such showing was made here. 

^ One further matter must be addressed. The Order Sealing Portions of the Docket served June 9, 2008, 

protected from public disclosure certain exhibits of a proprietary nature. It also directed the parties to 

notily the undersigned within 30 days of receipt of the transcript whether any testimony needed to be 

redacted and withheld from public filing. Mo such notification was received, llierefore, the transcript will 

be filed in full with the Docket Management System (DMS) in due course. 

eSO/LSOia SWO * VVd StLSSetSOS XVd 6S:S L 0L0S/6S/90 
Hazardous materials, by their very nature, are dangerous. Air shipment of 

such goods puts the safety of air transportation - the overriding goal of the 

Department - at significant risk. Because of hazmats' inherent capacity for peril, 

the HMRs effect a web of protection to minimize risk for persons who could be 

adversely affected by proximity to such materials, such as handlers, passengers, 

and crew. 

Undeclared shipments of hazardous materials lack that protection. Such 

shipments, by constituting a safety threat whose magnitude is unknown, are 

particularly worrisome. The Administrator has emphasized that undeclared 

shipments of hazardous materials, "which increase the likelihood of injury, pose a 

special risk" (see, e.g., Toyota Motor Sales, USA, Inc., FAA Order No. 94-28 

(September 30, 1994), p. 13). These circumstances warrant a substantial fine. 

The character of Respondent's business also is important in determining 

an appropriate penalty. The fine should reflect the degree of Husky's 

involvement with hazardous materials. The agency's HMR Penalty Guidelines 

suggest that the greater the degree of a respondent's involvement in hazardous 

materials, the higher the sanction amount should be.' The record shows that the 

company uses hazardous materials in the course of its business (Tr. 24). Husky 

VP Brad Baker acknowledged that the company utilizes and accepts hazardous 

materials as part of its manufacturing process (Tr. 150-51, 183-84, 193). Husky 

also transports hazmats in the sense of moving them within the plant and in 

storing them (Tr, 185-86). Respondent, however, emphasized that it does not (at 

least as a rule) ship hazmats (Tr, 150). 

Respondent's position as a business using and handling hazardous 

materials - even if not utilizing such materials on a regular basis - compels an 

awareness of the HMRs and the concomitant obligation to follow them. The 

Penalty Guidelines emphasize that such a business "is clearly on notice of the 

hazardous mature of the material and the regulatory requirements to which the 

Hazmat is subject" (64 Fed.Reg. 19443, 19449). But Respondent showed very 

little such knowledge. No employee had undergone any kind of training in the 

recognition or appropriate use of hazardous materials (Tr. 25). No company 

procedure existed for the purging of pump nozzles (Tr. 187). The nozzles in the 

shipment were not flushed (Tr. 92-93). These circumstances also compel a 

significant assessment for the violations at issue. 

Additional relevant factors, however, warrant mitigation of the penalty 

amount. Respondent officials credibly testified that they attempted to drain 

thoroughly the nozzles that later were tendered for shipment (Tr. 88, 116-17). 

° Sec Federal Aviation Administration Policy on Enforcement of the HiLiurdous Materials Regulations: 

Penalty'Guidelines, 64 Fcd.Rcg. 19443 etseq. (April21, 1999), FAA Order 2150.3A. Chg. 26, Appendix 6, 

dated April 14, 1999. By Order2150.3B, the agency issued new sanction guidelines superseding the old. 

llie new guidelines are inapplicable here, however, because they apply lo violations occurring on or after 

October 1, 2007, and the incident in this matter took place on June 8, 2006. See 72 Fed,Reg, 55853 

(October 1,2007). 

sso/ssoE SWO + VVd stLseeteos xvd GCS L OLoe/6s/8o 
Little fuel was left in them by the time they were placed in Hatfield's car. I agree 

with the evidence suggesting that the residual amount of fuel in each of the 

nozzles would have been measured "in drips rather than ounces or liters" (Exh. 

R-2, p. 2), 

Another factor suggesting mitigation is that soon after the incident Husky 

officials underwent hazardous-materials training. Swift action designed to better 

ensure future compliance may warrant a significant reduction in civil penaltyOne such measure which has led to a lesser penalty involved sending 

responsible employees to training programs {Westair Commuter Airlines, Inc. 

d/b/a United Express. FAA Order 93-18 (June 10, 1993)). Husky VP Brad Baker 

testified that, within a few weeks of the incident, responsible officials attended a 

Federal Express-sponsored seminar on dangerous goods in air transportation. 

Jack Peters, Respondent's witness-consultant, also provided training (Tr. 169-

174, 238-39). These actions justify a measure of mitigation. 

In weighing all the totality of the facts and circumstances, 1 find and 

conclude that a civil penalty assessment of $8,000 is appropriate. I conclude that 

this amount will achieve the statutory purpose of promoting compliance with the 

HMRs. It also contains sufficient "bite", or deterrent effect (see Toyota Motor 

Sales, Inc., FAA Order No. 94-28 (September 30, 1994), p. 11). The assessment 

additionally fairly weighs the post-incident actions Respondent has undertaken. 

Finally, the civil penalty also appropriately accounts for the factors the statute 

directs in fixing the assessment. 

Husky Corporation is hereby assessed a civil penalty of $8,000 for 

violations of the following HMRs: §§171,2(a), 172.200(a), 172.202(a)(1)-(a)(3), 

172.202(a)(5), 172.203(f), 172.204(a) or (c)(1), 172.204(c)(2), 172.204(c)(3), 

172.600, 172.602(b)(3), 173.1(b), 172.702(a), 173.27(b)(1), and 173.222." 

ichard C. Gooawin 

Administrative Law Judge 

Attachment - Service List 

' Any appeal from the Initial Decision to the Administrator must be in accordance with section 13.233 of 

the Rules of Practice, which requires 1) that a notice of appeal be filed no later than 10 days (plus an 

additional 5 for mailing) from the date of this order and 2) rhat the appeal be perfected with a written brief 

or memorandum not later than 50 days (plus 5 for mailing) from the date of this order. Each is to be sent to 

the Appellate Docket Clerk, Room 924-A, Federal Aviation Administration, 800 Independence Avenuc, 

Washington, DC 20591, and to agency counsel. Service upon the presiding judge is optional. 

'^'^^^' ® SWO . VVd snse6*20 2 xvd ee-si OLOS/GS/S O