### SERVED: JANUARY 14,2013

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC

) FEDERAL AVIATION ADMINISTRATION, ) ) Complainant, ) ) v. ) FAA Docket No. [To Be Assigned] ) (Civil Penalty Action) FROST AD ATELIER, INC. ) ) Respondent. ) FDMS No. FAA-2011-0294 )



# __________________________)

INITIAL DECISION OF ADMINISTRATIVE LAWJUDGE RICHARD C. GOODWIN



### Found: 

### 1. Respondentviolated §§171.2(e), 172.200(a), 172.202(a)(1), 172.202(a)(2), 172.202(a)(3), 172.202(a)(6), 172.202(a)(7), 172.204( a) or ( c)(1), 172.204(c)(2), 172.204(c)(3), 172.30l(a), 172.600 and 172.602(b)(3), 172.604(a)(3), and 173.1(b) as charged; and

2. Respondent is assessed a civil penalty of$5,000.

I. Background


### This matter originated with the discovery by authorities ofcertain restricted substances inthe luggage ofa passenger preparingto board an aircraft.
On May 29,2010, 

### Ronda (Ronnie) Frostad, a ticketed passenger on Southwest Airlines, prepared to depart Louisville, KY for Sacramento, CA. 1 

### She was travelling

1 Tr. 211. The Complaint stated the date as May 7, 2010. Complainant later served an erratum to the Complaint correcting the date ofthe incidentto May 29,2010. See Tr. 210.2

onbehalfofa company she owns and**runs~** Respondent Frostad**Atelier~ Inc.~**  ofMcClellan and**Sacramento~** CA. (''Respondent" or ''the company"). Respondent is a bronze casting foundry (Tr. 208-09; Exh.**C-9~** p. 1). Ms. Frostad and the two Respondent employees travelling with her
were returning after completing ajobthatthe company had been contracted to perform (Tr. 209- 12). Agents ofthe Transportation Security Administration ("TSA"i searched a bag checked by Ms. Frostad and found two substances inside warranting further examination: a 16.4-ounce
can ofpropane and an 8-ounce container ofan aerosol lubricant popularly known as WD-40 (Exhs. C-2 and C-4). They determined that both substances were classified as hazardous materials ("hazmats") underthe**Department~s** Hazardous Materials Regulations**("HMRs")~** 49 C.F.R. §§171-180.

The HMRs are designed to facilitate properhandling ofinherently dangerous goods and to alert first responders inthe event ofan incident. As such, hazardous materials offered for transportation by air must comply with detailed marking, labeling, packing, and informational requirements spelled out therein. Certain training obligations must be observed as well. 49 C.F.R. 

### §172. Ms. Frostad'stender had been undeclared: that is, the luggage in question had contained no warning or notice ofthe hazardous nature ofits contents. Midtown Neon Sign Corporation, FAA OrderNo. 96-26 (August 13, 1996),**p~** 2.

Based onthe foregoing, the Complaint ofthe Federal Aviation Administration ("Complainant," "FAA," or ''the agency") cited Respondent for the following fourteen HMR violations: §171.2(e), in offering hazardous materials for transportation improperly classed, described, packaged, marked, andlabeled; §§172.200(a), 172.202(a)(1), 172.202(a)(2), 172.202(a)(3),172.202(a)(6),,and 172.202(a)(7), in offering hazardous materials for transportation without properly describing the material on shipping papers, including the failure to set out the materials' identificationnumber, shipping name, hazard class or division, the total net mass perpackage, and the number and type ofpackages; §172.204(a) or (c)(1), in offering

### a hazardous material without certifying that the material was offered in accordance with applicable HMRs; §172.204( c)(2), in offering a hazardous material and failing to provide two .copies ofthe certification; §172.204( c)(3), in offering a hazardous material and failing to add prescribed language to the certification; §172.301(a), in offering hazardous materials in a non-bulk package not marked with the proper shipping names and identification numbers; §§ 172.600 and 172.602(b)(3), inoffering hazardous materials without providing emergency response information in the manner required; §172.604(a)(3), in offering a hazardous material without providing a 24-hour emergency response telephone number; and §173.1

### (b), in offering hazardous materials without instructing its agents and employees in preparing such goods for shipment. Complainant asked for a civil penalty under 49 U.S.C. §5123(a) of$37,500. Respondent denied the charges. Itraised several substantive defenses to liability and to mitigate or avoid the civil penalty sought. Italso asserted that the imposition ofa civil penalty would constitute. a financial hardship for the company.

2Awitness asserted that the "S" in "TSA" stands for "Safety." This is incorrect. See Tr. 28.

### 3

I held a hearing in San Francisco, CA., onJuly 10,2012. The parties have filed briefs and the matter is nowready for decision.3
Complainantbears the burden ofproving its case. 14 C.F.R. §13.224. It also bears the burden ofproving that the penalty it seeks is appropriate. 

### See, e.g., American AirNetwork, FAA OrderNo. 2006-5 (February 10, 2006), 2006 WL 265369, p. 9 n. 19. Financial hardship may constitute grounds for a reduction ofan assessment which is otherwise fitting. 

### Conquest Helicopters, FAA OrderNo. 1994-20 (June 22, 1994), p. 3. The plea ofinability to pay, however, is an affirmative defense. On that issue it is Respondent which assumes the burden of proof. 14 C.F.R. §13.224(c). As the Administrator has explained, this assignment ofthe burden is "reasonable and necessary" because the Respondent has control ofits financial information. 

### Salvatore Giuffrida, FAA Order No. 1992-72 (December 21, 1992), p. 2. Claims ofsuch a nature must be substantiatedto be credited. 

### See, e.g., Michael John Costello, FAA OrderNo. 93-10 (March 24, 1993), 1993 WL 833110, p. 4.



### II. Discussion and Findings and Conclusions

I find and conclude that Complainant has sustained its burden ofproofon its allegations. Respondent is found inviolation ofeach ofthe fourteen charges preferred against it. I will
assess a civil penalty against Respondent of$5,000.

The facts which make up the charges are straightforward and may be briefly summarized. On May 29,2010, the evidence showed, Ms. Frostad andtwo employees ofthe company were preparing to board Southwest Airlines atthe Louisville International Airport in Louisville, KY. (''the Airport").4 They hadbeen working inthe Louisville area on ajobfor Respondent and were returning home. Luggage Ms. Frostad had checked at Southwest's ticket counter was flagged by agents ofthe TSA. Inside the luggage the agents observed a Ziploc-type plastic see-throughbag. Inside the bag they found an 8-ounce spray can ofWD-40 and a 16.4-ounce cylinder ofpropane (Tr. 9-11,30-31,58-61,65,69-70,76, 108; Exhs. C-2 and C-3, and C-9, p. 1).

Both substances are listed by the Department's HMRs as hazardous materials (Tr. 191; 

### See §172.101 Hazardous Materials Table; 

### see also Exh. C-7 and Tr. 164-70, 175, 179 (propane); Exh. C-6 and Tr. 157-61 (WD-40)). As noted, when such items are offered for shipment certain marking and labeling conventions mustbe observed. The HMRs require that propane be described as "Petroleum gases, liquefied, Hazard Class 2.1 (flammable gases)." The substance is assigned the UnitedNations ("UN") identificationnumber known as UN 1075. This material is,
as the parties stipulated, notpermitted inpassenger air transportation (Tr. 137, 152-53). The second hazmat found in Ms. Frostad's luggage, WD-40, is properly described for shipping purposes as "Aerosol, flammable, Hazard Class 2.1." Its assigned identificationnumber is UN 1950. The correct label for boththe propane and the WD-40 is "FLAMMABLE GAS." (emphasis and caps in original). Respondent recognized that WD-40 also is considered a

3 Complainant's Briefwill be referred to as "Compl. Br."; Respondent's as "Resp. Br."; and Complainant's Rebuttal Briefas "Compl. Rebut. Br." · 4 The three-letter identifying code for the Airport is SDF. Tr. 82; see, e.g., Exh. C-2, p. 5.

### 4

hazardous material (Tr. 152). See also table following §172.101 ofthe HMRs; §172.400; §172.417.5

The luggage had been undeclared. No labeling, marking, warnings or other information required under the HMRs were present (Tr. 170; see Initial Decision ("I.D."), p. 2). Norhad the company's employees undergone the HMR-required training in the transport by air ofhazmatsa fact Respondent conceded (Tr. 264).

RondaFrostad testified for Respondent Frostad Atelier, Inc. She generally was a credible witness. Ms. Frostad acknowledged that Respondent had offeredthe luggage in question for transport (Exh. C-9, p. 1). But in defense to the charges she insisted that she was not aware that the offending materials were in it. She did not packthem, she said. She asserted that she never travels with propane. Itwas used onthe Louisvillejob, yes, but company policy is to purchase propane locally and to avoid travelling with it. The presence ofWD-40 is a bigger mystery, Ms. Frostad insisted; while it is used at the foundry in California, Ms. Frostad denied using it onthis job. One ofthe employees travelling with herpacked the hazmats, she added (Tr. 213-27, 260).

These circumstances do not avail Respondent; they do not absolve it from legal responsibility stemming from the tender ofthe luggage. The trip manifestly was carried out on behalfofRespondent. Respondent, ofcourse, hadbeen hired inorder to perform and had performed the work for whichthe travel had been undertaken. The airline tickets were purchased referencing the company address (Exh. C-2, p. 2). All matters involving the trip, including the tender, are properly the company's responsibility. In any event employers are vicariously liable for the actions oftheir employees acting withinthe scope oftheir employment (see, e.g., Warbelow 's Air Ventures, Inc., FAA OrderNo. 2000-3 (February 3, 2000), p. 5, reconsid den., FAA OrderNo. 2000-14, June 8, 2000,pet. den. 19 Fed.Appx. 606 (unpublished opn., September 20, 2001)). The offending materials were packed as part ofthe winding up of thejobthat hadjustbeen completed. The conduct underlying the charges, then, was within the scope. Ms. Frostad acknowledged also that the tools ofthe trade (which, the evidence showed, included bothitems under review) are the property ofRespondent (Tr. 221-24). The circumstances described above show, I conclude, that Respondent is obligated to answer for the conduct ofits employee and to accept responsibility for the consequences ofthe presence ofthe offending materials in Ms. Frostad's luggage.
Itis not necessary to Complainant'sproofto showthat Respondent or one ofits agents or employees actually knew what was inside Ms. Frostad's luggage. Nor is itnecessary for the agency to demonstrate that Respondent or one ofthese individuals was aware that either orboth ofthe offending items in fact were regulated orprohibited hazardous materials. The governing statute contains no suchrequirements. It subjects any person to a civil penalty who has "knowingly committed an act which is a violation

..." "Knowingly" means only that a person (the definition ofwhich includes a business) has actual knowledge ofthe facts giving rise to the violation (49 U.S.C. §5123(a)(l)). In this matter, it means that Respondent- through an agent

5 Complainant's witness P. Cartrice Dye, a security specialist who reviewed the agency's investigative file, stated that WD-40 is permittedto be shipped by air in a quantity no greaterthan four fluid ounces, citing 49 C.F.R. §173.306. Tr. 162. The particular item at issue, however, was stored in an aerosol can ofeight fluid ounces. Ms. Dye reiterated thatthe HMRs prohibit the movement ofpropane in air transportation in anyquantity. Tr. 169.5

or employee, ofcourse
-- knew that 

### itwas offeringthe luggage in question for air transport. This, ofcourse, was proven. The statute also makes clear that knowledge ofthe law is unnecessary to a finding ofviolation; persons are liable even ifthey do not knowthey are breaking the law. Riverdale Mills Corporation, FAA Order No. 2003-10 (September 12, 2003), p. 5; ScottH Smalling, FAA OrderNo. 94-31 (October 5, 1994), p. 7. Congress intended to prevent individuals from relying on ignorance ofthe law as an excuse in civil hazardous materials cases.6

Ms. Frostad also asserted that she failed to see any signs at the Airport warning passengers ofsuch things as categories ofrestricted orprohibited hazardous materials, hazmats' associated risks and dangers, and the possible adverse consequences ofattempting air transport ofsuch substances (Tr. 263-64). The evidence showed that the Southwest Airlines area where passengers tendertheir checked baggage features a large posterboard containing pictures and descriptions ofitems which may not be packed or brought aboard aircraft. The carrier also had posted notifications atthe counter oneither side ofthe baggage wells where passengers place theirbags for tagging and weighing. The signs advise that violators are subject to fines ofup to $110,000 (Tr. 42-47; Exh. C-1, p. 2).

The various signs provided ample warning to would-be passengers ofthe risks associated with travelling with hazmats. But Ms. Frostad's failure to spot any ofthem is in any event irrelevant to the charges. No duty to warn existed. The finding ofviolations is grounded simply
onproofthat Respondent offered the luggage containing the restricted orprohibited materials for carriage inpassenger air transportation undeclared. The luggage failed to conform to pertinent HMRs.

Pursuant to the foregoing discussion, it is concluded that Complainant proved its case. Respondent is found inviolation ofthe HMRs as charged inthe Complaint: § §171.2(e), 172.200(a), 172.202(a)(1), 172.202(a)(2), 172.202(a)(3),172.202(a)(6), 172.202(a)(7), 172.204(a) or (c)(1), 172.204(c)(2), 172.204(c)(3), 172.600, 172.602(b)(3), 172.604(a)(3), and §173.1(b)(Tr. 191).



### III. Penalty

I will assess against Respondent a civil penalty of$5,000.


### A. Standards

Indetermining the amount ofthe penalty, the decisionmaker must consider ''the nature, circumstances, extent, and gravity ofthe violation," and, withrespect to the violator, ''the degree

6 ScottH Smalling, p. 7. The legislative history ofthe Hazardous Material Transportation Act conftrms that Congress intended to impose civil penalties onpersons who knew aboutthe act constituting the violation but did not know about the law. The conference substitute explains that "acivilpenalty may be imposed only uponproofthat the defendant knowingly committedthe act which constitutes the violation (it is notnecessary to show that he knew the act constituteda violation)

... (emphasis supplied)." S. Conf. Rep. No. 1347, 93rd Cong., 2nd Sess., reprinted in 197 4 U.S. Code Cong. &Ad. News 7669, 7686; see also TCI Corporation, FAA OrderNo. 92-77 (December 22, 1992), pp. 8-9 n. 13.

### 6

ofculpability, any history ofpriorviolations, the ability to pay, and any effect onthe ability to continue to dobusiness" and "other matters thatjusticerequires" (49 U.S.C. §5123(c)).

The Administrator has provided policy guidance·for agency employees to follow when recommending an appropriate civil penalty inhazardous-materials cases. The guidance is found

· inthe agency's Penalty Guidelines ("the Guidelines"). The Guidelines have beenpublished as

FAA Order 2150.3B, Appendix C. They were marked (but not admitted) inthis proceeding as Exhibit C-10, ofwhich I tookjudicial notice (Tr. 196). (I will refer to itas "Exh. C-10" even though itwas not admitted). The Guidelines assess all relevant statutory criteria, including mitigating and aggravating circumstances. They additionally aid Complainant's penalty determinationthrough a Sanction Guidance Matrix ("the Matrix"). The Matrix sets out specific penalty ranges for eachinput, cross-referencing suchpertinent factors as the respondent's size, the quantity ofthe violative material offered, the extent ofthe respondent's usual dealings with hazmats, the relative risk ofharm posed bythe substances involved, and any adverse consequences associated with the hazmats' transport.
The Guidelines are intendedto indicate the Administrator's "general views" about the civil penalty ranges appropriate for different types ofviolations. Folsom'sAirService, Inc., FAA OrderNo. 2008-11 (November 6, 2008), 2008 WL 4948488, p. 13. They are notbinding. Each situation, being dependent on so many variables, is unique. "Evaluation ofthe case," the FAAhas emphasized, "isbased onthe totality ofthe facts and circumstances."7
· ·
An administrative lawjudge ("ALJ") is not required to follow the guidelines. The guidelines are intended for agency personnel, and ALJs are not agency personnel. Folsom's, supra, p. 14. ALJs make decisions independently, and the ALJ determines (subject to agency review) whether a civil penalty is to be assessed, and ifso, in what amount. The Guidelines nonetheless mustbe respected as an expression ofagency sanction policy. They represent an effort to produce consistent results in similar cases. The Administrator has asserted the power to impose the agency's sanctionpolicy on appeal ifan ALJ assesses a civil penalty that is not consistent with the Guidelines. Warbelow 's, supra, p. 20; NorthwestAirlines, FAA OrderNo. 1990-37 (November 7, 1990), pp. 8-10.


### B. Complainant's Position Complainant seeks a civil penalty totaling $37,500. Itcalculated the sum as follows: first, by slotting the HMRs violated into five categories (shipping papers, labels, markings, training, and emergency response) and then by describing Respondent per the Guideline category "Business Entity that uses or handles hazmat inthe course ofbusiness" (Exh. C-10, p. 14; Compl. Br., pp. 9-10). The Matrix suggests a range of$7,500 to $22,000 per violation category for this type ofbusiness entity found to have offered anundeclared shipment ofa hazmat exceedingquantity limits or forbidden onpassenger aircraft (Exh. C-12, Fig. C-1, intersection of

7 FAA Policy on Enforcement ofthe Hazardous Materials Regulations: Penalty Guidelines, 64 Fed.Reg. 19443, 19444, 1999 WL 226610 (F.R.) (April21, 1999), also published on Aprill4, 1999, as Change 26,Appendix 6, to FAA Order 2150.3A. Order2150.3B, effective October I, 2007, updated and superseded the original guidelines. See 72 Fed.Reg. 55853. FAA Order 2150.3B may also be found at www.airweb.faa.gov andrgl.faa.gov. See Tr. 194.

### 7

Offense Category III and column C.; Compl. Br., p. 9; Compl. Rebut. Br., pp. 4-5). The agency does not explicitly state howit arrived at its suggested civil penalty; but multiplying the minimum amount perviolation category suggested bythe Matrix, $7,500, by the number of violation categories, five, leads to the total sought of$37,500.


### C. Respondent's Position Respondent offers the affirmative defense ofinabilityto pay. It states that its financial circumstancesjustify a finding that no penalty be assessed. Respondent is "notin any positionto pay," itargues. Anypenaltywould force the company ''to cease doing business" (Resp. Br., pp. 3-4). Ms. Frostad testified that the company could not continue to operate ifa civil penalty were levied in the amount sought (Tr. 252).

In support ofits position, Respondent submitted company federal tax returns for the years 2009 and 2010 (Exhs. R-1 and R-2; Tr. 240). Ms. Frostad testified that in the year 2010 Respondent did not make any money. She did not take a salary in either 2009 or 2010 (Tr. 241, 244). She added that she has never taken a salary since founding the company in 1999 (Tr. 228- 29, 251)

.. 

### D. Determination Weighing the appropriate penalty inthis matter requires initially an evaluation ofthe violative act. Frostad intended to check luggage containing flammable gases. This conduct was highly dangerous. The degree ofpotential peril such an actposed to affected persons and to the aircraft itselfis suggested bythe fact that both substances

- propane in any amount and WD-40 in the amount offered

-- are banned from passenger airtransportation under all circumstances.

The civil penalty must be substantial in order to appropriately reflect the unacceptable and significant risk ofharm the offering ofthese hazardous materials broughtto flight.

I do not accord validity to Respondent's affirmative defense offinancial straits. The evidence supporting its argument simply is insufficient. Respondent fails to showhow Complainant'sproposed assessment would work the grievous consequences claimed. 

### It did not fashion a nexus between the civil penalty amount suggested and the result feared. Another factor undermining the power ofRespondent's argument is thatneither

### tax return submitted in support is signed by any officer representing the company (Exh. R-1, p. 2; Exh. R-2, p. 1 ). Respondent, I conclude, failed to prove that it is unable to pay any assessment.

Matters in additionto the nature ofthe violative act must also be considered; and an evaluation ofall the surrounding circumstances compels the finding that the civil penalty proposed is considerably greaterthan warranted. I conclude that an assessment of$5,000 most closely accounts for the situation as a whole.

There are several reasons for my determination. First, the agency'sproposal is disproportionate to the nature ofRespondent's behavior andto the policies soughtto be advanced. The conduct complained ofinvolved a single underlying act. To assert that the

### 8

penalty necessarily is grounded on five violation groupings, and then calculating the proposed assessment onthat basis, fails to account for this fundamental fact. Complainant is not sufficiently appreciative ofthe Administrator's warning that deriving an assessment simplyby multiplying the number ofviolations by the penalty recommended per sanction

-- even a category minimum-- could result in a fine disproportionately severe. Warbelow'sAir Ventures, Inc., FAA OrderNo. 2000-3 (February 3, 2000), pp. 20-21,pet.for reconsid. den., OrderNo. 2000-14 (June 8, 2000). Complainant's calculation smacks of"piling on," a policy the Administrator frowns upon in non-egregious circumstances such as these. PaulA. Carr, FAA OrderNo. 98-2 (March 12, 1998), pp. 11-12.

The fine suggested also would do little to vindicate the agency's policies ofcompliance and deterrence for this Respondent. Frostad Atelier, Inc. is an entity which does not need to be educated or lectured about the dangers ofhazardous substances. On the contrary, it is well aware ofthe risks broadly associated with chemicals. The very nature ofits business warrants and compels such an awareness. Ms. Frostad testified that the company uses over one hundred different chemicals in casting. Employees performing their duties often must wearprotective clothing (Tr. 256-62). Ms. Frostad, Respondent's owner and president, also testified that her business customarily bans the transport ofthese materials for reasons she well understands. It additionally is noteworthy when determining penalty that Ms. Frostad credibly asserted that she
was unaware that the propane and WD-40 had been packed in the company's luggage. Against this background, a fine ofthe magnitude suggested clearly would do little to impress upon this company the agency's policies ofcompliance ordeterrence. Finally, itbears mention that the civil penalty suggested is much greaterthanthe agency has sought inroughly comparable matters. In one case the agency asked for an assessment of $3,750 for the attempted undeclared shipment on a passenger-carrying flight of"strikeanywhere" matches and two cylinders ofcompressed gas. These are substances which are banned from passenger air transportation under all circumstances. 8 In another instance, the FAA sought a civil penalty inthe same amount for the failure to properly mark, label, and package a shipment ofthree one-gallon cans ofconcrete sealer (Berthan Macaulay, Docket CP02S00029 (DMS 12591)). Kaden andMacaulay are not unlike the instant case.
Itis true, ofcourse, thatthe agencyhas virtually unfettered discretion in suggesting civil penalty totals. Moreover, because each case presents a unique set ofcircumstances, comparisons with other proceedings canbe elusive. Butthe request ofthe agency
-- whose Guidelines are designed to produce consistentresults in similar cases (see I.D., p. 6)- to seek a civil penalty ten times the amount sought inthe referenced matters must, without additionaljustification, be viewed with considerable skepticism.

I have considered all other arguments advanced by bothparties and reject them as without merit.9

8 ToddKaden, FAA DocketNo. CP05NM0024, Initial Decision ofAdministrative Law Judge Richard C. Goodwin, served June 22, 2006. The Respondent was found to have violated the HMRs as charged and was assessed a civil fenalty of$3,000.

. .

Two more matters require attention. The first concernsthe fact that the docket inthis case has been sealed. See Order Sealing Docket served August 10, 2012. The docket, now including the briefs, will remain sealed for the9

Weighing all the circumstances discussed above, I conclude that a civil penalty of$5,000 is warranted. The amount equals the minimum suggested by the Guidelines for a business entity committing one category ofhazmatviolation. Such an assessment best reflects the totality ofthe circumstances inthe context ofthe statutory factors. The fine also will fittingly promote the agency's policies ofcompliance and deterrence for similarly-situated entities. Itis substantial but not undulypunitive. In the circumstances it is appropriate. Respondent Frostad Atelier, Inc. is hereby assessed a civil penalty of$5,000 for violations ofthe following HMRs: §§171.2(e), 172.200(a), 172.202(a)(l), 172.202(a)(2), 172.202(a)(3),172.202(a)(6),172.202(a)(7), 172.204(a) or (c)(l), 172.204(c)(2), 172.204(c)(3), 172.301(a), 172.600 and 172.602(b)(3), 172.604(a)(3), and §173.l(b). 10

Attachments

- Service List

reasons stated in the Order, butthis Initial Decision, I hold, does not touch on any subject appropriate for withholding from public disclosure and, therefore, is not subjectto that Order. The I.D. may be freely disseminated. The second matter concerns Complainant's Motion to Strike ("Motion") Respondent's Post Hearing Brief, dated December 17, 2012, onthe grounds that the briefwas one business day late. The Motion, failing to demonstrate any ftrejudice to Complainant, is denied. 0 Any appeal from the Initial Decision to the Administrator must be in accordance with section 13.233 ofthe Rules ofPractice, which requires 1) that a notice ofappeal be filed no laterthan 10 days (plus an additional 5 for mailing) from the date ofthis order and 2) that the appeal be perfected with a written brieformemorandum not later than 50 days (plus 5 for mailing) from the date ofthis order. Each is to be sent to the Appellate Docket Clerk, Room 924-A, Federal Aviation Administration, 800 Independence Avenue, Washington, DC 20591, andto agency counsel. Service upon the presidingjudge is optional.10

SERVICE LIST
ORIGINAL & ONE COPY
Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 WilburWright Building-Suite 2W1000 1

ONE COPY
David W. Williams, 

### Respondent's Counsel Attorney at Law 16372 Underhill Lane Huntington Beach, CA 92647 TEL: 714-745-5610

Lisa

### J. Toscano, 

### Complainant's Counsel Attorney, Office oftheRegional Counsel, AWP-7 Western-Pacific Region Federal Aviation Administration P.O. Box 92007 Los Angeles, CA 90009-2007 TEL: 310-725-7110 FAJ<: 310-725-6816 FDMS No. FAA-2011-0294 (Civil Penalty Action)

The Honorable Richard C. Goodwin,

### Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant FAJ<: 202-366-7536

1 Service was by U.S. Mail. For service inperson orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright BuildingSuite 2WIOOO, Washington, DC 20591, Attention: HearingDocket Clerk, AGC-430.