UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC

In the Matter of: APOLLO A & HS COMPANY

FAA Order No. 2011-4 

Docket No. CP08AL0001 

FDMS No. FAA-2008-07831

Served: January 14, 2011

DECISION AND ORDER2

 Complainant Federal Aviation Administration (FAA) has appealed from the 

written initial decision of Administrative Law Judge (ALJ) Richard C. Goodwin3 finding 

that Respondent Apollo A & HS Company (Apollo) violated the Hazardous Materials 

Regulations (HMR).4 The ALJ assessed a $9,000 civil penalty for the violations.5

History

On July 10, 2008, Apollo filed its request for hearing. In response, on July 15, 

2008, the FAA filed a complaint alleging that on or about August 16, 2007, Apollo 

shipped hazardous materials, consisting of 19,200 matches, from Hong Kong to New 

 

1

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

available for viewing at http://www.regulations.gov. 

2

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

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

http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/AGC400/Civil

_Penalty. In addition, Thompson/West publishes Federal Aviation Decisions. Finally, the 

decisions are available through LEXIS (TRANS library) and WestLaw (FTRAN-FAA 

database). For additional information, see the Web site. 

3

 The written initial decision was issued on November 9, 2009. 

4

 The HMR generally can be found in 49 C.F.R. Parts 171-180. The specific regulations 

allegedly violated in this case can be found in the Appendix to this decision. 

5

 A copy of the ALJ’s order is attached. 
York City. The complaint further alleged that the shipment failed to meet requirements 

for marking, labeling, shipping papers, emergency response information,6 and employee 

training set forth in the HMR. The FAA wrote in the complaint that it was seeking a civil 

penalty of $22,500. 

On July 23, 2009, the FAA filed a motion for decision under 14 C.F.R. 

§ 13.218(f)(5).7

 The FAA noted that Apollo had averred in its answer8 that the shipment 

contained demonstration items that had the shape and color of matches, but were not 

actually matches. However, the FAA argued, Apollo had admitted previously, both in its 

response to the Notice of Proposed Civil Penalty (NPCP) and in its response to the Letter 

of Investigation (LOI), that it had shipped real matches. The FAA attached copies of the 

response to the NPCP and to the LOI to its motion, as well as an affidavit of FAA Special 

Agent Gary Meaders. Meaders stated in his affidavit that he had examined the items 

closely and determined that they were real matches, not match sticks painted to resemble 

matches. Regarding the sanction, the FAA argued in the motion for decision that the 

amount it sought, $22,500, was well within the range specified in the agency’s sanction 

 

6

 Because of the alleged failure to mark, label, provide shipping papers and emergency response 

information, the shipment was allegedly a “hidden shipment.” 

7

 Section 13.218(f)(5) provides: 

A party may make a motion for decision, regarding all or any part of the 

proceedings, at any time before the administrative law judge has issued an initial 

decision in the proceedings. The administrative law judge shall grant a party’s 

motion for decision if the pleadings, depositions, matters that the administrative 

has officially noticed, or evidence introduced during the hearing show that there 

is no genuine issue of material fact and that the party making the motion is 

entitled to a decision as a matter of law. The party making the motion for 

decision has the burden of showing that there is no genuine issue of material fact 

disputed by the parties. 

8

 The FAA had construed a pre-complaint letter from Apollo, a letter dated August 10, 2008 

(Tr. 8), as its answer. 

2
guidance table found in Appendix 6 of FAA Order No. 2150.3A (entitled “FAA 

Compliance and Enforcement Program”).9

 

The ALJ scheduled the hearing for August 21, 2009, in Anchorage, Alaska. On 

that day, the ALJ and the FAA attorney appeared at the hearing site, but no one appeared 

for Apollo. The FAA attorney requested that the ALJ rule favorably on the motion for 

decision. 

The ALJ issued an oral initial decision finding that Apollo had constructively 

withdrawn its request for hearing. (Tr. 6, 10.) He stated at the hearing that based on the 

motion for decision, he would find that Apollo was deemed to have admitted all of the 

allegations in the complaint and that he would find for the agency. (Id.) He stated 

further that he would find that the evidence supported the FAA’s request for a civil 

penalty in the amount of $22,500. (Tr. 10.) 

On November 4, 2009, the ALJ issued a written initial decision. The ALJ wrote 

that he had already found at the hearing that by its failure to appear, Apollo had 

constructively withdrawn its request for a hearing and had constructively admitted all of 

the allegations of the complaint. The ALJ concluded that the agency proved its case on 

the merits. He cited the affidavit of Special Agent Meaders (FAA Motion for Decision, 

Ex. 2.), in which Meaders averred that the shipment contained matches, which are a 

hazardous material under the HMR. The ALJ also noted that Meaders averred that the 

shipment contained none of the marking, labeling, and other information required by the 

regulations. 

 

9

 Since the time of the alleged violations in this case (August 16, 2007), FAA Order No. 2150.3A 

has been updated and is now FAA Order No. 2150.3B (October 1, 2007). 

3
Regarding the sanction, the FAA asked for a $22,500 civil penalty for five 

categories of HMR violations regarding (1) marking; (2) labeling; (3) shipping papers; 

(4) emergency response information; and (5) training. The ALJ, however, found that for 

sanction purposes, there were only two violations: (1) absence of information on the 

package, and (2) lack of training. He concluded that a $9,000 penalty was appropriate for 

these two violations under the FAA’s sanction guidance at the time. 

On November 12, 2009, the FAA filed its notice of appeal, and subsequently 

perfected that appeal by filing an appeal brief. The FAA argued on appeal that the 

$9,000 civil penalty imposed by the ALJ was too low. According to the FAA, the ALJ’s 

decision to find only two types of violations for sanction purposes was contrary to 

precedent and FAA sanction guidance. The FAA argued that the Administrator should 

assess a $22,500 civil penalty. 

Analysis

Although the FAA’s appeal involves only the sanction amount, it is necessary to 

examine the underlying proceedings. As the ALJ found, Apollo’s failure to appear at the 

hearing and to pursue its request for hearing without good cause constituted a 

constructive withdrawal of its request for hearing. Once a respondent withdraws a 

request for hearing, then there is no basis for the complaint and the case reverts back to 

the status quo ante, before the request for a hearing. Hence, in other words, by failing to 

appear at the hearing, Apollo constructively withdrew its request for hearing, and the case 

reverted to the Final Notice of Proposed Civil Penalty (FNPCP) stage. Apollo’s time for 

4
5

 

filing a request for hearing from the FNPCP expired long ago.10 In the absence of a 

request for hearing and a valid complaint, the ALJ had no authority to make any findings 

regarding violations or an appropriate civil penalty amount.11 Given that the case 

reverted to the FNPCP stage and that the time for requesting a hearing has expired, the 

FAA is now free to issue an Order Assessing Civil Penalty. 

THEREFORE, IT IS ORDERED THAT: These proceedings are dismissed. 

 [Original signed by J. Randolph Babbitt] 

 J. RANDOLPH BABBITT, ADMINISTRATOR 

 Federal Aviation Administration 

10 If persons receiving a FNPCP wish to have a hearing, they must request a hearing within 

15 days of receipt of the FNPCP. 14 C.F.R. § 13.16(g)(2)(ii). In this case, the FAA served the 

FNPCP on June 30, 2008. 

11 In light of this disposition of the case, it is unnecessary to consider any other issues. 
APPENDIX 

Section 171.2(e)12 provided: 

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

transportation in commerce unless the hazardous material is properly 

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

shipment as required or authorized by applicable requirements of this 

subchapter .... 

Section 172.200(a) provided: 

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

who offers a hazardous material for transportation shall describe the 

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

subpart. 

Section 172.201(d) provided: 

 Emergency response telephone number. ... [A] shipping paper must contain an 

emergency response telephone number .... 

Sections 172.202(a)(1)-(5) provided: 

 

(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 § 172.201 table; 

(2) The hazard class or division number ... 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 § 172.201 table; 

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

hazardous material in Column 5 of the § 172.101 Table ...; and 

(5) The total quantity of hazardous materials ...; 

Section 172.203(f) provided: 

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

is within the limitations prescribed for either passenger and cargo aircraft 

or cargo aircraft only must be entered on the shipping paper. 

Section 172.204(a)(1)-(2) provided: 

 

12 All citations are to the October 1, 2006, edition of Title 49 of the Code of Federal Regulations. 

The regulations at issue were not revised again until October 1, 2007. 

6
(a) [E]ach person who offers a hazardous material for 

transportation shall certify that the material is offered for transportation in 

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

the certification contained in paragraph (a)(1) of this section or the 

certification ... 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 Transportation.” .... 

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

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

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

in proper condition for transport according to applicable international and 

national governmental regulations.” 

Section 172.204(c)(2) provided: 

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

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

certification required in this section. .... 

Section 172.204(c)(3) provided: 

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

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

in this section ...: 

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

met.” 

Section 172.300(a) provided: 

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

shall mark each package ... containing the hazardous material in the 

manner required by this subpart. 

Section 172.301(a) provided: 

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

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

proper shipping name and identification number (preceded by “UN” or 

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

Section 172.400(a) provided: 

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

hazardous material in any of the following packages or containment 

7
8

devices, shall label the package or containment device with the labels 

specified for the material in the § 172.101 table and in this subpart .... 

Section 172.600(c) provided: 

(c) ... No person to whom this subpart applies may offer for 

transportation, accept for transportation, transfer, store or otherwise handle during 

transportation a hazardous material unless: 

(1) Emergency response information conforming to this subpart is 

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

(2) Emergency response information ... 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. 

Section 172.702(a) provided: 

(a) A hazmat employer shall ensure that each of its hazmat employees is trained in 

accordance with the requirements prescribed in this subpart.