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-2008-0783 1

Served: January 14, 2011

DECISION AND ORDER 2 Complainant Federal Aviation Administ ration (FAA) has appealed from the

written initial decision of Administra tive Law Judge (ALJ) Richard C. Goodwin 3 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 (ex cept 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 availabl e 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 com plaint further alleged th at 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 answer 8 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 re al matches. The FAA attached copies of the response to the NPCP and to the LOI to its mo tion, as well as an affidavit of FAA Special Agent Gary Meaders. Meaders stated in hi s affidavit that he had examined the items closely and determined that they were real ma tches, 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 admini strative 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 introd uced 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 lette r from Apollo, a letter dated August 10, 2008 (Tr. 8), as its answer.

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

Com pliance 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 th at 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 h earing 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 th at 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 wr itten 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 Sp ecial 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, la beling, 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).

3Regarding the sanction, the FAA asked for a $22,500 civil penalty for five categories of HMR violations regarding (1) m arking; (2) labeling; (3) shipping papers; (4) emergency response information; and (5) training. The ALJ, however, found that for sanction purposes, there were only two violat ions: (1) absence of information on the package, and (2) lack of training. He conc luded that a $9,000 penalty was appropriate for

these two violations under the F AA’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 FA A 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 fo r hearing, and the case reverted to the Final Notice of Proposed Civ il Penalty (FNPCP) stage. Apollo’s time for

45 filing a request for hearing from the FNPCP expired long ago. 10 In the absence of a request for hearing and a valid complaint, th e ALJ had no authority to make any findings regarding violations or an a ppropriate civil penalty amount. 11 Given that the case reverted to the FNPCP stage and that the ti me 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.APPE NDIX 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, mark ed, 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 pa per 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 statem ent indicating that the shipment is within the limitations prescribed fo r 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 m aterial 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 paragr aph (a)(1) of this section or the certification ... in paragraph (a)(2) of this section. (1) “This is to certify that the above-named materi als are properly classified, described, packaged, mark ed 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 labe lled/placarded, and are in all respects in proper condition for tran sport according to appli cable 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 transportati on 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 ce rtification required in this section ...: “I declare that all of th e applicable air transpor t requirements have been met.” Section 172.300(a) provided: (a) Each person who offers a hazar dous material for transportation shall mark each package ... containi ng 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 packagi ng must mark the package with the proper shipping name and identifica tion 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

78 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, tran sfer, 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 h azardous 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.