U.S. Department 

of Transportation 

Federal Aviation 

Administration 

August 20, 2013 

New England Region 

Office of the Regional Counsel 

FACSIMILE (202) 366-7536 & U.S. FIRST CLASS MAIL 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office ofHearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, D.C. 20590 

In the Matter of Octavian Filoti 

Docket No. FAA-2013-0613 

Case No. 2013NE700100 

Dear Judge Sullivan: 

12 New England Executive Park 

Burlington, MA 01803-5299 

Telephone: (781) 238-7046 

FAX: (781) 238-7055 

RECEIVED 

AUG 2 &. 28f3 

HEARING DOCKET. 

In reference to the above matter, enclosed please find Complainant's Motion for Decision. 

Enclosures 

cc: Hearing Docket 

Mr. Octavian Filoti 
In the Matter of: 

OCT AVIAN FILOTI 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

DOCKET NO. FAA-2013-0613 

Dated: August 20, 2013 

FAA Case# 2013NE700100 

Hazardous Materials 

The Honorable J.E. Sullivan, ALJ 

MOTION FOR DECISION 

The Complainant, Federal Aviation Administration, by and through counsel, 

hereby files Complainant's Motion for Decision in accordance with 14 CFR 

§13.218(f)(5) ofthe Rules ofPractice in Federal Aviation Administration Civil Penalty 

Actions ("Rules of Practice"), and in support thereof states the following: 

Respondent's Admission to All of the Allegations Set Forth in the Complaint: 

1. On July 15,2013, the Complainant filed its Complaint in this matter, pursuant to 

Rule 208 (14 CFR § 13.208), alleging that Respondent violated fourteen (14) 

Hazardous Material Regulations (Title 49 of the Code of Federal Regulations) and, 

as such, was assessed a civil penalty in the amount of $1,000. 

2. Section 13.209(a) of the Rules requires a respondent to file a written answer to the 

complaint, or a written motion pursuant to sections 13.208(d) or 13.218(f)(1)-(4) of 

the Rules, no later than 30 days after service of the complaint. 

3. Complainant served its complaint upon Respondent on July 18, 2013, via certified 

mail, return receipt requested. 

4. Receipt of the Complaint on July 18, 2013, via certified mail at Respondent's 

residence, is evidenced by signature of Susan R. Magro (Exhibit A). 

5. Pursuant to the Rules, Respondent was required to file an answer, at the very latest, 

by August 18, 2013. 
6. As of the date of this Motion, August 20, 2013, Respondent has failed to serve 

Complainant with an answer or other written motion in response to the Complaint. 

7. Section 13.209(f) of the Rules provides that, "A person's failure to file an answer 

without good cause shall be deemed an admission of the truth of each allegation 

contained in the complaint." 

8. Consequently, because Respondent has failed to file an answer as of this date, each 

allegation contained in the Complaint should be deemed admitted~ 

9. Under these circumstances, the facts as alleged in the Complaint should be deemed 

admitted, thus supporting a finding ofRespondent's violation ofthe fourteen (14) 

Hazardous Material Regulations set forth in the Complaint. 

Reasonableness of Sanction: 

10. The proposed civil penalty of$1,000 is in accordance with 49 U.S.C. §5123(a) 1 and 

within the applicable range for a violation of this type as set forth in FAA Order 

2150.38. 

11. A civil penalty is determined by analyzing the statutory factors present in the Federal 

Hazardous Materials Transportation Statute, 49 U.S.C. 5213, including the nature, 

circumstances, extent, and gravity of the violation, the degree of culpability of the 

violator, any history of past violations, the ability to pay, any effect on the ability to 

continue to do business, and other matters as justice may require. 49 U.S.C. 5213(c). 

12. The statutory factors are then given a specific weight to determine the aggregate 

weight of the case. Finally, a matrix is used to further narrow the penalty range and 

select an appropriate sanction within that range for each violation category (Matrix, 

Figure C-1 & Risk Categories Figure C-2 are attached hereto as Exhibit B). 

13. In this case, Respondent offered two (2) Orion Hand Held Flares, which are properly 

categorized as Signal devices, hand. They are in a hazard class 1.4S (Explosive), 

packing group II. According to 2150.3B, this material is classified as a "Risk 

Category B" material, and thus carries a moderate weight2

• 

14. As this shipment was "Undeclared" as set forth in the Figure C-1 matrix, the range is 

$250- $1,000 per category. As Respondent had violations concerning shipping 

papers, labels, markings, and packaging, a moderate range of $675 (midpoint) could 

1 49 U.S.C. § 5123(a), as written at the time of the incident at issue, states that "a person that knowingly 

violates this chapter or a regulation prescribed or order issued under this chapter is liable to the United 

States Government of a civil penalty of at least $250 but not more than $55,000 for each violation." 2 If the hazardous materials referenced in paragraph 13 were the only items offered by Respondent for air 

transportation in violation of the Hazardous Material Regulations, a civil penalty of$1,000 would be 

justified. Unfortunately for Respondent, additional undeclared hazardous materials were offered for air 

transportation in violation of the Hazardous Materials Regulations as set forth in paragraph 16. 
, 

be used, multiplied by the four categories. The total civil penalty for the flares would 

total $2,700. 

15. However, the asterisk next to the column heading "Individual" is explained on page 

C-13, and states, "The range for the total civil penalty to be assessed, absent 

mitigating or aggravating factors, is $250 (the statutory minimum) to $1,000." 

16. Respondent also offered one (1) 9-ounce aerosol container of Alaska Bear Repellant, 

which is properly categorized as "Aerosols, non-flammable." It is in a hazard class 

2.2 (non-flammable gas). According to 2150.3B, this material is classified as a "Risk 

Category C" material, and thus carries a minimum weight. Had this been the only 

undeclared hazardous material offered by Respondent, the civil penalty would likely 

have been $250, which is the minimum allowed by statute. 

17. As demonstrated above, the FAA properly followed agency guidance, took into 

account all applicable factors as required by its policy, and acted reasonably in 

arriving at the $1,000 civil penalty sought in this case. 

In conclusion, the pleadings reflect that Complainant has admitted all of the 

allegations set forth in the Complaint by virtue ofhis failure to deny. Further, the FAA's 

sanction calculation is reasonable and in accordance with applicable statutes and FAA 

Orders. As such, there are no genuine issues of material fact disputed by the parties. 

WHEREFORE, The Complainant respectfully requests a decision affirming the allegations 

set forth in the Complaint. 

Attorney 

Federal Aviation Administration 

Office of the Regional Counsel 

12 New England Executive Park 

Burlington, Massachusetts 01803-5299 

TEL: (781) 238-7046 

FAX: (781) 238-7055 
CERTIFICATE OF SERVICE 

I certify that the foregoing has been mailed this date by Certified Mail-Return Receipt 

Requested to: 

Respondent 

Mr. Octavian Filoti 

67 Osprey Drive 

Portsmouth, New Hampshire 03801 

I certify that the foregoing has been sent via Facsimile and by U.S. First Class Mail this 

date to: 

Administrative Law Judge 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office ofHearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

Fax: (202) 366-7536 

and 

Hearing Docket 

Federal Aviation Administration (original & 1 copy) 

800 Independence Avenue, SW 

Wilbur Wright Building-Suite 2W1 000 

Washington, DC 20591 

Fax: (202) 493-5142 

. n~ ~ttn: H= Docket Clerk, AGC-430 

DONNA SORENSEN August 20, 2013 

Program Analyst 
EXHIBIT ''A'' 
" 

/ 

/ ..D 

<0 

tr' 

rn 

tr' 

<0 Postage 

ru 

ru Certified Fee 

r=l fletum flecelpt Fee CJ (Endorsement Required) CJ 

CJ Restricted Delivery Fee 

(Endorsement flequlred) 

CJ 

ru Total Postage & Fees 

<0 

ru 

tr' 

CJ 

CJ 

("'-

SENDER: COMPLETE THIS 

$ 

Postmark 

Here 

~-----------1 JUL 7 5 

20!J 

• Complete items 1, 2, and 3 .• 

Item 4 If Restricted Delivery ~ • Print your name and address on the reverse 

so that we can return the card to you. 

• Attach this card to the back of the mail piece, 

or on the front if space permits. 

1. A~;·cleA~dressedto: MZ 7-15-13 

Od avl.an Filoti 

6~ Osprey Drive 

P rtsmouth, NH 03801 

2. Article N4mqer ; 1 ll , I · . i 1 

rrransfe! lrom ~ervl~e tabJQ • . ! II : 1 

I 3. Service Type 

0 CertlfledMail 

0 Registered 

0 Insured Mall 

0 Express Mall I 

0 Return Receipt for Merchandise 

0 C.O.D. 

Restricted Delivery? (Extra Fee) DYes 
/ Certified Mail Provides: • A mailing receipt 

• A unique identifier for your mailpiece 

• A record of delivery kept by ttie Postal Service for two years 

Important Reminders: 

• Certified Mail may ONLY be combined with First-Class Mail® or Priority Mail®-

• Certified Mail is not available for any class of international mail. 

• NO INSURANCE COVERAGE IS PROVIDED with Certified Mail. For 

valuables, please consider Insured or Registered Mail. 

• For an additional fee, a Return Receipt may be requested to provide proof of 

delivery. To obtain Return Receipt serv1ce, please complete and attach a Return 

Receipt (PS Form 3811) to the article and add applicable postage to cover the 

fee. Endorse maiipiece "Return Receipt Requested". To receive a fee waiver for a duplicate return receipt, a USPS® postmark on your Certified Mail receipt is reqwred. 

• For an additional fee, delivery may be restricted to the addressee or 

addressee's authorized agent. Advise the clerk or mark the mail piece with the ' 

endorsement •RestrictedDefivery". 1 

• If a postmark on the Certified Mail receipt is desired, please present the arti· I 

cle at the post office for postmarking. If a postmark on the Certified Mail I 

receipt is not needed, detach and affix label with postage and mail. 

IMPORTANT: Save this receipt and present it when making an inquiry. J 

PS Form 3800, August 2006 (Reverse) PSN 7530·02-000·9047 

UNITED STATES POSTAL SERVICE 

• Sender: Please print your name, address, and Zl 

Federal Aviation Administration 

Office of the Regiomi1 Counsel, ANE-7 

12 New England Executive Park, Rm 401 

Burlington. MA 01803-5299 
EXHIBIT ''B'' 
.. 10/01/07 

CATEGORY "A" 

{Maximum Weight} 

RISK CATEGORIES 

(Figure C-2) 

2150.38 

Category "A" materials are materials that when released in the confines of an aircraft can potentially have a catastrophic 

effect on an aircraft's ability to continue safe flight, resulting in a crash or emergency landing causing injury or death to 

passengers and flightcrew, as well as persons on the ground. 

Class 1 

Class 2 

Class 3 

Class 4 

Explosives: Division 1.1, 1.2, 1.3, 

Compressed Gases All 2.1, 2.2 with Subsidiary Risk 5.1 and All 2.3 PIH Zones A-D 

Flammable Liquids PG I, II, and (PIH) 

Division 4.1 Flammable Solids PG I, & (Matches) 

Division 4.2 Spontaneously Combustible Materials PG I (Pyrophoric) 

Division 4.3 Dangerous When Wet PG I 

Class 5 Division 5.1 Oxidizing Liquids and Solids PG I, II, e.g., "Chemical Oxygen Generators" 

Division 5.2 Organic Peroxides PG II (Type A,B,C,D) 

Class 6 Division 6.1 Toxic/Poisonous Materials PG I (PIH) 

Class 7 Cargo Aircraft Only Quantities on Passenger Aircraft 

Class 8 Corrosive Material Liquid PG I and (PIH) 

Forbidden Materials (See 49 C.F.R. § 173.21 & ICAO Technical Instructions) 

Forbidden Hazmat listed in Dangerous Goods Table 49 C.F.R. § 172.101 

CATEGORY "8" 

{Moderate Weight} 

The materials listed in Category "8" are materials that may not pose an immediate threat to the safety of a flight, but can 

cause death or injury to persons due to unintended releases in aircraft cabin areas, and potential damage to aircraft 

structures over a longer period of time due to undiscovered releases on aircraft structural components. 

--....... >~Class 1 

Class 3 

Class4 

Division 1.4, 1.5, 1.6, All Compatibility Groups 

PG Ill Flammable Liquids 

Division 4.1 Flammable Solids PG II, Ill 

Class 5 

Class 6 

Class 7 

Class 8 

Division 4.2 Spontaneously Combustible Materials PG II, Ill 

Division 4.3 Dangerous When Wet PG II, Ill 

Division 5.1 Oxidizing Liquids or Solids PG Ill 

Division 5.2 Organic Peroxides (Type E,F,G) 

Division 6.1 Toxic/Poisonous Materials PG I, II ( NON- PIH ) 

Division 6.2 Infectious Substances 

Radioactive Materials, yellow label II, white label I 

Liquids PG II, Ill Solids PG I, II, Ill 

Category "C" 

{Minimum Weight} 

The materials listed in Category "C" are materials that present the least amount of risk to the transportation system. 

··----3)P<Ciass 2 

Class 6 

Class 7 

Class 9 

2.2 Nonflammable Gas 

Division 6.1 Toxic/Poisonous Materials PG Ill 

All other RAM (LSA, L TO QTY, Instruments, and Articles) 

Miscellaneous Dangerous Goods {ORM-D and Consumer Commodity} 

NOTE: This guidance is not intended to replace the experienced judgment of a special agent who is convinced, based on 

the evidence and facts of a case, that the failure of an air carrier, shipper, freight forwarder, or passenger to follow 

established regulations has posed a risk to aviation safety. 

C-17 
10/01/07 

OFFENSE 

CATEGORIES 

I. Declared Shinment 

1. Shipping Papers 

2. Labels 

3. Markings 

4. Packaging 

5. Training 

6. Emerg. Response 

7. Release into Environ. 

8. Other 

>- II. Undeclared Shinment I Within Hazmat 

Ouantitv Limitations 

fT. -shipping Papers 

fz· Labels 

3. Markings 

lfoP. Packaging 

~Trammg 

6. Emerg. Response . 7. Release into Environ. 

8. Other 

III. Undeclared 

Shinment 

Hazmat Forbidden on1 

or exceeds gt):: limits for1 

Passen2er Aircraft 

I. Shipping Papers 

2. Labels 

3. Markings 

4. Packaging 

5. Training 

6. Emerg. Response 

7. Release into Environ. 

8. Other 

IV. Undeclared 

Shinment 

Forbidden on1 or 

exceeds gt):: limits for1 

All Aircraft 

1. Shipping Papers 

2. Labels 

3. Markings 

4. Packaging 

5. Training 

6. Emerg. Response 

7. Release into Environ. 

8. Other 

v. Intentional or 

W \ MATRIX & DEFINITIONS (Figure C-1) 

C. Business Entity 

that uses or handles 

A. Individual* B. Business Entity hazmat in the 

course of business 

250-550 250-1,100 500-2,200 

250-550 250-1 '1 00 500-2,200 

250-550 250-1,100 500-2,200 

250-550 250-1,100 500-2,200 

---------- 450-1,100 500-2,200 

250-550 250-1,100 500-2,200 

250-550 250-1 '1 00 500-2,200 

250-550 250-1,100 500-2,200 

250-1,10~ 1 ,500-8,200 2,500-11 ,000 

250-1, I 00 I ,500-8,200 2,500-11 ,000 

250-1,100 I ,500-8,200 2,500-11 ,000 

250-1,100 I ,500-8,200 2,500-11,000 ____ .., ________ 1 ,500-8,200 2,500-11 ,000 

250-1,100 I ,500-8,200 2,500-11 ,000 

250-1,100 1 ,500-8,200 2,500-11,000 

250-1 '1 00 I ,500-8,200 2,500-11 ,000 

500-5,500 5,000-16,200 7,500-22,000 

500-5,500 5,000-16,200 7,500-22,000 

500-5,500 5,000-I6,200 7,500-22,000 

500-5,500 5,000-16,200 7,500-22,000 _________ ... 5,000-16,200 7,500-22,000 

500-5,500 5,000-16,200 7,500-22,000 

500-5,500 5,000-16,200 7,500-22,000 

500-5,500 5,000-I6,200 7,500-22,000 

500-32,500 7,500-32,500 I 0,000-32,500 

500-32,500 7,500-32,500 I 0,000-32,500 

500-32,500 7,500-32,500 I 0,000-32,500 

500-32,500 7,500-32,500 I 0,000-32,500 _____ ,. ____ 7,500-32,500 10,000-32,500 

500-32,500 7,500-32,500 I 0,000-32,500 

500-32,500 7,500-32,500 10,000-32,500 

500-32,500 7,500-32,500 I 0,000-32,500 

CONSULT CONSULT CONSULT 

C-12 

2150.38 

D. Business Entity 

that regularly 

offers, accepts, or 

transoorts hazmat 

I ,000-5,500 

I ,000-5,500 

1 ,000-5,500 

1,000-5,500 

1,000-5,500 

1,000-5,500 

1,000-5,500 

1,000-5,500 

5,000-13,000 

5,000-13,000 

5,000-13,000 

5,000-13,000 

5,000-13,000 

5,000-13,000 

5,000-13,000 

5,000-13,000 

10,000-32,500 

I 0,000-32,500 

10,000-32,500 

10,000-32,500 

10,000-32,500 

I 0,000-32,500 

I 0,000-32,500 

I 0,000-32,500 

I5,000-32,500 

15,000-32,500 

15,000-32,500 

15,000-32,500 

15,000-32,500 

15,000-32,500 

15,000-32,500 

15,000-32,500 

CONSULT 
10/01/07 2150.38 

Deliberate Violation1 or LEGAL- Up to LEGAL- Up to LEGAL- Up to LEGAL- Upto 

other siz:;nificant 50,000 per offense 50,000 per offense 50,000 per offense 50,000 per offense 

agz:;ravation category may be category may be category may be category may be 

asse~sed assessed assessed assessed 

VI. Violation results in CONSULT CONSULT CONSULT CONSULT 

death1 serious illness1 LEGAL- Up to LEGAL- Up to LEGAL- Up to LEGAL- Up to 

severe injun:1 or 100,000 per 100,000 per I 00,000 per offense 100,000 may be 

substantial destruction offense category offense category category may be assessed 

oforooertv may be assessed may be assessed assessed 

h. *Sanctions applicable to air carrier and commercial operator passengers and 

'>.., crewmembers. The range for the total civil penalty to be assessed, absent mitigating or 

-----1-r aggravating factors, is $250 (the statutory minimum) to $1,000. 

E. Group I & II F. Group III & IV 

AIR CARRIER AND OTHER AIRCRAFT Air Carriers and Air Carriers and 

OPERATOR VIOLATIONS Other Aircraft Other Aircraft . Operators Operators 

Failure to comply with Parts 171, 172, or 173 Use main Matrix. Use main Matrix. 

requirements of the HMR as an offeror of hazrnat. 

Improper acceptance of hazmat for air transportation. 

(i.e., quantity, labeling, marking, packaging, and 5,000-32,500 2,500-16,200 

shipping papers) 

See 49 C.F.R. §§ 175.30(a)(l)- (4) 

Failure to inspect hazmat shipment properly. 10,000-32,500 5,000-16,200 

See 49 C.F.R. §§ 175.30(b), (c), (d), (e) 

Improper storage/securing of hazmat aboard aircraft. 10,000-32,500 5,000-16,200 

Failure to provide hazmat training, maintain records of 10,000-32,500 5,000-16,200 

training, or meet minimum requirements for hazmat 

training (49 C.F.R.). 

Using untrained/improperly trained hazmat personnel, 10,000-32,500 5,000-16,200 

failure to retain hazmat training records (49 C.F.R.) 

Failure to notify FAA properly of incident/discrepancies 5,000-16,200 1,000-5,500 

in hazmat shipment. 

Failure to provide notice to the pilot-in-command. 5,000-16,200 1,000-5,500 

Other Part 175 violations. 5,000-16,200 1,000-5,500 

Intentional, deliberate, or other significantly aggravated CONSULT CONSULT LEGAL 

violation. LEGAL- Up to - Up to 50,000 per 

50,000 per offense category 

offense category may be assessed 

may be assessed 

Violation results in death, serious illness, severe injury, or CONSULT CONSULT LEGAL 

substantial destruction of property. LEGAL- Up to - Up to 100,000 per 

100,000 per offense category 

offense category may be assessed 

may be assessed 

C-13