11/23/2012 11:11 9072712800 FAA



### UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON,D.C.
IN THEMATTER OF SCOTTNOVAK FAA DOCKET NO. [TO BE ASSIGNED] (Civil Penalty Proceeding) I'DMS NO. FAA·2012·0206



### COMPLAINANT'S CLOSINGARGUMENT I. THE PLEADINGS A. COMPLAINT Complainant setVed the complaint inthis matter on April 10, 2012. In

### it Complainant alleges, in 

### essence, that onor about December 22, 2011, Respondent knowingly offered a PAGE 01/17



### shipmentto Alaska Airlines for transportationby air

### from Anchorage, Alaska, to Juneau, Alaska; that included inthis shipment were 16 bottles ofnail polish, a bottle ofnail polishremovet, a 32"
ounce bottle ofcharcoal lighter fluid, a l0-ounce can ofhalrspray, a 7-ounce cau. ofGillette Fusion Hydra Gel, and a 6.5-ounce can ofin.sectrepellant; that each ofthese items is classified
as a hazardous material under the Hazardous Materials Regulations (HMR); thatthese hazardous materials were notproperly identified or declared in the shipping papers; and that the shipment
was notproperly marked or labeled 

### in any manner that would indicate the actual hazardous nature ofits contents. 

### In Section III ofthe complaint, the Complainant alleges that by reason of these facts and circumstances, Respondent violated§§ 1712(e),l72.200(a), l72.201(d), 172.202(a)(l}-(5), 172.203(f), 172.204(a), 172.204(c)(2)-(3), 172.300(a), 172.30l(a),
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### 172.400(a), and 172.604(a) ofthe HMR. In Section IV ofthe complaint, Complainant alleges that under the facts and circumstances ofthis case, a civil penalty of$2700 is appropriate. 

### B. ANSWER Respondent served his answer on May 8, 2012. In it Respondent denies that he knowingly offered the shipmentto AlaskaAirlines, and conditionally admits that the shipment is described
on the airwaybill as consisting of"FURNITURE, MA TIRESS" and that the block declaring that the shipment does not contain hazardous materials is initialed. He conditionallydenies that the shipment included nail polish, nail polishremover, charcoal lighter fluid, hairspray, hydra gel, and insectrepellant, but conditionally admits that such items are hazardous materials under the 

### HMR He asserts insufficient knowledge as to 

### whether the shipment was accompanied by a shipper's declaration for dangerous goods. He denies the remaining factual allegationsthat allege, in summary, t}).at he offered the shipment for transportation by air when tbe shipping papers 

### di.d not include the proper shipping name and other information regarding each hazardous material, whenthe shipping papers did not include an emergency response telephone number, when the shipment wall 

### not marked or labeled in any manner that would indicate the actual hazardousnature ofi,ts contents, when the shipment was not marked with the proper shipping
name and assigned identification numberfor each hazardous material contained in it, and when
no "Flam..mable liquid" or "Flammable gas" label was affixed to the shipment. Respondent denies the regulatory violations, and asserts "he hadno actual or constructive knowledge that the shipm10nts he 'offered' for shipment onbehalfofone ofhis children contained 'hazardous' materials as characterized by federal law." Lastly, Respondent denies tbat a civil penalty of $2700 is appropriate in this case.

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### C. DISCOVERY OnMay 18, 2012, Complainant served its First Set ofRequests for Admission, Interrogatories, and Requests for Production ofDocuments. 1 In it Complainant asks Respondent, 

### inter alia, to admit various facts and the authenticity ofcertain attached documents, andto
answer certai,u questions as to his contentions. Inhis response, whichwas served onJune 29, 2012,2 Respondent admits that he offered a pickup,truck load ofhousehold goods on behalfof his daughter. He further states that to the best ofhis knowledge, all ofthe stuffwasjust household goods and not anything that was hazardous, He indicates his beliefthat the shipment
was assigned Alaska Airlines Air Waybill No. 027-8385-7546. He admits his signature appears
onthe copy ofthis air waybillthat was attached to the request, and that his initials appear inthe box for the statement, "This shipment does not contain Dangerous Goods." Respondent also admits thathis signature appears onthe security screening document, but he otherwise declines to attest to the completeness or accuracy ofthis document? He also declines to admit that the shipment included the nail polish, the nail polish remover, the charcoal lighter fluid, the hairspray, the shaving cream, and the insect repellant. He does, however, admit receiving the letter ofinvestigation and sending a letter inresponse to Jeffrey Deitz. 4


### II. EVIDENCE During thehearing the Complainant called two witnesses, Jocelyn Juul and Special Agent (SA) Jeffrey Deitz, and introduced 29 Exhibits. Ms Juul testified that she is a customer servi.ce

1The original was served oo tile Hearing Docket and a copy was served on. Respondent. A copy was admitted during tile hearing as Exhibit C-l, · 2 A copy was served onthe Hearing Docket andthe original was served on Complainant. The origi.nal was admitted duringthe hearing as Rxhibit C-2. ' Separate copies ofthls airwaybill and the security screening documents were admitted duringtile boaring as ExhibitA-1. 4 Copies oftho Letter oflnvestigation and Respondent's rospouse were admitted during the hearing as Exhibits A-15 and A-16, respectively. 311/23/2012 11:11 9072712800 FAA PAGE 04/17



### agent at Alaska Airline's cargo facility in Anchorage, Alaska, where she has worked on a parttime**ba~is** 

### for five years. (Transcript ofHearing (Tr.) 24) Her duties include screening cargo prior to shipment. (Tr. 25) As part ofher

### employment at Alaska Airlines she has received training in hazardous materials. This training has included au initial four-day course with yearly refreshers. (Tr. 85-86) Nail polish is highly flammable. (TL 79-80) The normal process for a shipment like the one atissue inthis case would be for the customer to pull up on the ramp where a ramp service agent would help the customer unload and palletize the shipment, <ecord the weights and dimensions, ask what was inthe shipment, and send the customer to a cargo agent with a ''half-sheet" wherethe shipment would be entered in

### the computer. (Tr. 27,46-47, 57-58) The custom.erplaces his initials and signature in appropriate locations on a point ofsale screen similarto signing for a credit card purchase atWal-Mart. (Tr. 

### 45) Exhibits A-17, A-18, and A-19 show the screens a customer would see on the point ofsale machine ifhe indicates the shipment does notcontain dangerous goods. (Tr. 49-50) The computerthenprints out the air waybill with the signature and initials on it. (Tr, 45, 71) The copy the customer gets includes information as to the am.ount paid for the transportation. (Tr. 1

72-173) In addition, labels are pdnted and placed on everypiece ofthe shipment. (Tr. 32, 39) Ms. Juul ftrrtber testifiedthat Alaska Airlines must treatknown and unknown shippers differently, 

### An unknown shipper can ship cargo to anywhere in Alaskaon. a passengerjet and to Seattle oo.ly in a cargo-onlyjet. 

### (Tr. 28) Customer service agents rely very heavily on customers to tell them what is intheir shipments. (Tr. 90-91) Regarding the incident in question, Ms. Juul testified she recalls it because the young ladies who a:>sisted with the search were commenting on the brand ofthe nail polish. (Tr. 30), As she
was coming on shift a departing screenerrelatedthat she had found dangerous goods inthe

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shipment. Basically, not realizing that TSA had already cleared the shipment, she reported to Ms. Juul that she saw the grill, opened a drawer, and found lighter fluid and bug spray. This triggered a physical search ofthe rest ofthe shipment (Tr. 30"31) Ms. Juul. testified that she participated in the search ofthe rest ofthe boxes. She observed while the two younger girls went through the stuff (Tr. 31) They found nail polish, nail polishremover, hairspray, shaving cream
as well 

### as th<;o bug spray and lighterfluid. They thenphotographed these items, and Ms. Juul made a report. Ms. Juul testified she knows it was the shipment offered by Respondent because his name aud address were onthe air waybill, and each boxhad a label onit wi.th the air waybill number on it. (Tr. 32) Afterward, sheprepared a report. (Tr. 33-34) Ms. 

### Juul identifiedExhibitsA-l and A-2 asbeing copies ofthe report she prepared for this shipment, and Exhibits A-3 through A-6 and A-10 through A-1.4 

### as being photographs ofthe shipment and the items found in it (Tr. 35"36, 39-41,48, 54-55) She identified Exhibits A-7, A-8, and A-9 as being the air waybill, security screeningpage, and the half-sheet she had**fo:~:** the shipment at the time ofher inspection. (Tr, 33, 42"44) Ms. Juul testifiedthat Exhibit A-8 indicates Respondent was identified by his Alaska driver's license, and thathis signature appears 

### in section 3, She further testi£led Exhibit A-8 is a hard-copy piece ofpaper filled out atthe time. (Tr. 42-44). Regarding Exhibit A-9, Ms. Juul testified that the topportionis the half-sheet filled out bythe ramp service agent. It il:ldicates inthis case that the ramp agent specifically asked about dangerous goods because "household goods" is a triggerterm. (Tr. 46-47, 57-58, 72, 76, 78-79) Hadthe shipmentbeen accompanied by a shipper's declaration for dangerous goods, it would have been included with Exhibits A-7 throughA-9, and she would have handled the shipm.ent differen.tly. There was, however, no declaration for dangerous goods with the shipment. (Tr. 52-53)

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### Ms. Juul identified Exhibits A,27, A-28, and A-29 as being photographs ofthe ramp service
area ather facility and the hazardous materials posters that were displayed there at the time Respondent offered the shipment. (Tr. 80-84) Special Agent Deitz testified he has worked for the FAA inhazardous materials enforcement since 1997, and he is the agent who wrote the case against Respondent (Tr. 93) For about seven years prior to coming to work for the FAA, he was involved with hazardous materials transportationwhile working for orin support ofair carriers (Tr. 94,95) He is stationed 

### in Anchorage, Alaska. (Tr. 97) SA Deitz testified that his involvement withthe case began when he received an email from AlaskaAirlines advising 

### him ofthe matter, He identified Exhibits A,1 and A-2 as being copies ofemailshe received. (Tr. 96) Because the incident happened inAnchorage, he wentto Alaska Airlines' cargo facility in Anchorage where he collected the screenlng record, air waybill, and any other paper documentation; inspected the shipment; aud took photographs ofi,t. 

### (Tr. 98) Afterward, he returned to his offi.ce and started the process ofobtaining a material safety data sheet (MSDS) for each ofthe items he identified. (Tr. 99) He testified that MSDSs are documents man,Ufacturers are required to produce by OSHA regulations, and contain information
as to what is ina product. (Tr. 99-100) SA Deitz testified thatExhibits A-10 through A-14 contain photographs he took ofthe shipment whi.le at Alaska Aidines' cargo warehouse. (Tr. 102-103) He identified Exhibits A-7, A-8, and A-9 as copies ofthe air 

### waybill, security screening record, and "half-sheet," respectively, he gathered at Alaska Airliues' facility during his investigation ofthe case. There
was no declaration for dau,gerous goods associated with the shipment or an emergencyresponse telephone number. (Tr. 105, 127-128) He identified Exhibits A,20 through A-25 as the MSDSs



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he obtained for the items identifi.ed 

### inthe photographs A-3 throughA-6 and A-10 throughA-14. (Tr. 1 07) Hetestified, inessence, that a material is flammable underthe HMR when it has a flash point that is less than 141 degrees Fahrenheit, and each ofMSDSs for the products inthis
case indicate th.e product's flash point is less than 141 degrees Fahrenheit. 

### (n. 108-109, 130- 

### 131) SA Deitz identified ExhibitA-15 as a copy ofthe letter ofi.nvestigation he sent to Respondent on about December 27, 2011. (Tr. 111) The information inhis second paragraph
carne from the MSDSs for the items as well as his personal inspection ofthe shipment (Tr. 114- 115) He iden.tified Exhibit A-16 as the response he received. The secondpage ofExhibitA-16 is a copy ofthe airwaybill provided with the response. (Tr. 116-117) This copy ofthe air waybill is different from Exhibit A-7 inthat it includes informationregarding the amount paid. (Tr. 

### 119) Respondent preseJJ.ted the testimony ofhis daughter, Ericak Liddelow, and then testified on his own behalf. Ms. Liddelow testified Respondent had come up to Anchorage to help her and her husband moveto Juneau. Th.e initial plan was to puteverything in the back oftheir truck and drive it, but they soon realized it would not all fit. Respondent decided to take some stuffto Alaska Airlines cargo. Shehad the hazardous materials-hernailpolish, hairspray, and stuff.- just thrown into boxes. She testified Respondent did not knowthatthis stuffwas in theboxes becausehe had not seen. herplacing it inthe boxes. She further testifiedRespondent never asked wnat was inside the boxes, and she nevertold him ifthere washairspray or an.y kind of flammable or hazardous material in them. (Tr. 176, 180) She also confi.rrned that all ofthe items belongedto her or herhusband and thatthey were in the shipment. (Tr. 177-179, 181)



### 711/23/2012 11:11 FAA PAGE 08/17

She was upset that these items were not returned to her. (Tr. 182-J. 83) She was not aware that any ofthe items are hazardous materials. (Tr. 179) During his testimony Respondent acknowledged that he hadtraveled to Anchorage to help his daughter and son-in-lawmove to Juneau, and that the plan had beento bring their gear in theirpick-up. Hebegan by loading what his daughter had identified as the 1110st important stuff, which indudedthe bed, some furniture, andthe grill. Once the pick-up was loaded he looked around andrealized there was too much stuffto leave in storage, sohe contacted AlaskaAirlines to see if

### it couldbe shipped. His concern was whether the grill could be shipped as it was without something protecting it. Whenhe learned it couldbe shipped, he drove the pick-up to Alaska Airlines withthe stuffthey bad intended to drive to Haines. 5 (Tr. 184-186) Respondent testified that upon arrival at Alaska Airlines' cargo facility in Anchorage, he backedthe truck up
onthe ramp outside the freight door. Airline employees were busy with several shipments at the time, so he did some ofthe unloading to the area indicated by a ramp agent who ultimately helped getthe shipment onto pallets. (Tr. 186-188) Respondenttestified that he had previously shippedby air freight. 

### Itwas 

### in about May of 200l when he shipped ahnost his entire household, except very large items, by Alaska Air freight, and during his 40 years inAlaskahehas shipped lots ofthings on Alaska Airlines. At
onepoint he was told at AlaskaAirlines that 

### ifit fits through the door, it goes. He has shipped. other items that he knows are restricted in son1.e manner, and he endeavors to comply with the restrictions and procedures as he understands them. (Tt. 189-191, 213) Respondenttestified be does not recall being asked any questions about dangerous goods. Whathe recalls is a general question as to what he had. He denies ever being quizzed or

5 While not speci!i.cally addressed iu the record, one cannot actually drive from Aochorage to Juneau. Haines is the closest town to Anchorage where one can. catcb a car ferry to .Tun.ea.u.. 811/23/2012 11:11 9072712800 FAA PAGE 09/17

educated or interrogated about whatmight be i.n the boxes or whatmight be hazardous. (Tr. 192, 213-214) Whenhe in.di,cated he hadhousehold stuff, 

### itdid not prompt any further questions. (Tr. 193, 195) Oncehehad completed the off-loading onthe ramp, he went to the area oftb.e point ofsale. (Tr. 195) He denies seeing any signage regarding dangerous goods, (Tr. 197-198) and testified that no agent asked him what was inthe boxes. (Tr. 199, 201) He acknowledges initialing the block indi.cating the shipment did not contain dangerous good. (Tr. 199) He asserts that to the bestofhis knowledge, there were no hazardous or dangerous materials in the shipment. (Tr. 200) He also acknowledges he did not go through the boxes. (Tr. 201) Respondent testified he first learned there was something problematic in the shipment when he received a telephone call a few hours later from Alaska Airlines. He was told he could come down for the next hour or so to claimthe items, but at that point he wastoo tired, so hetold them to dispose ofthem. (Tr. 202-203) Respondent specifically denies that he knowingly offered**m~teri~ls** that were hazardous or dangerous to AlaskaAirlines. (Tr. 203) He assertsthat hadhe been asked, he would not**h~ve** signed**~** certification to the effect that hehad personally inspected the contents ofthe shipment. (Tr. 204) Respondenttestified that on December 22, 2011, he was not aware that fingernail polish, fingernail polishremover, hairspray, shaving cream, or an aerosol canofbug repellant are considered a hazardous materials ordangerous goods. He mayhave been aware, however, that charcoal lighter fluid is hazardous. It did not SUl]Jrise himthat these items were in the shipmen.t, and he considers them all to be household items, (Tr. 206, 208)

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III. ANALYSIS Broadly speaking, there aretwo issues. The first is whether Respondent violatedthe vadous provisions ofthe HMR as aliJJged, and the second is if so, then what shouldthe penalty be? Each ofthese is separately addressed below. 

### A. VIOLATIONS OF THE HMR There is no dispute as to the essential facts. Thepleadings, testimony, and exhibits establish that Respondent offered 

### a shipment to AlaskaAirlines on Air WaybillNo. 027-8385 7546 for transpo.rtation by air from Anchorage to Juneau; that

### the shipmentincluded 16 bottles ofnail polish, one bottle ofnail polish remover, one 32-ounce bottle ofcharcoal lighter fluid, one 

### l0-
ounce can, ofMoroccanoilhairspray, one 7-ounce can. ofGillette Fusion Hydra Gel, and one 6.5-
ounce can ofRepel insect repellant; that each ofthese items is a hazardous material underthe HMR; thatthe shipping papers did notinclude a declaration for dangerous goods, a proper description ofeach hazardous material, or an eme(gency response telephone number; and that
none ofthe boxes oritems containing hazardous materials was marked orlabeled to so indicate
or as the HMRrequires. Likewise, there is no dispute that Respondent did not pack any ofthe boxes and did not actually know what was inthem, and atthetime he affered the shipment, with the exception ofthe charcoal lighter fluid, he did not know that any ofthe items inquestion, is hazardous. What is at issue is whether Respondent knowinglyviolated the 

### HMR as that term is defmed in49 U.S.C. § 5123(a)(l). A full understanding ofthe current definition

### requi.res a review ofits development. Whenthe Hazardous Materials TransportationAct (HMTA), Title I 

### ofP.1 93-633, was originally enacted

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in 1975, § llO(a)(l/ provided, "Anyperson ... who is determined by the Secretary,.. to have knowingly committed an act which is a violation ofa provision ofthis title or ofa regulation issued under this title, shall be liable to the United States for a civil penalty." The HMTA was amended in 1990 by§ 12 ofP.L. 101-615. Among other things, this amendment added subsection (3) to 49 U.S.C. App. 

### § 1809(a). Itprovides: "Apersonacts knowingly when--{A) the personhas actual knowledge ofthe facts giving rise to the violation; or (B) a reasonable person acting inthe circumstances and exercising reasonable care would have that knowledge." In 1994 the various transportation statutes that were codified in title 49 appendix were recodified intitle 49. 7 The provisions ofthe HMTA are now in 

### §§ 510l-5127, and the act is nowreferred to as the "Federal hazardous material transportation act." Since this recodification., the above definition ofknowingly added by PJ.. 101-615 has been in49 U.S,C. § 5123(a)(1). The meaning ofknowingly as initially enacted was at issue i.n Contract Courier Services, Inc., v_ Research andSpecial Program,> Administration, Department of Transportation, 924 F.2d 112 (7th Cir. 1991). The case was argued and submitted prior to the passage ofP.L. 101-615, but decided afterward. The position ofthe Agencl was that knowingly includes shouldhave known. Inits opinion the Court ackn.owledges that statutes frequently provide that a personknows what
a reasonable inquiry would have turned up. It firmly rejects, however, the notion that § 1809(a)
was such a statute as originally enacted. In 2002 the FAA Decisiomnakerheld that 

### §5123(a)(l)
as amended in 1990 "is a statute 'thatrequires inquiry and treats a person as possessing whatever knowledge inquiry would have produced
....' [quoti.ng Contract Courier Services, supra, at

'This was codified at 49 U.S.C. App. § 1809(a)(l). 1 P.L. 103-272. In it Congress specifically states that the recodification. creates no substantive change to the earlier funn ofthe statutes_ 'In 2004 the Research and Special Program.s Administraticm. became the Pipeline and Hazardous Materials Safety Programs Administration_ 

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114]." In the Matter of Interstate Chemical Company, Inc., FAA Order No. 2002-29 (December 2, 2002). Whether something is a hazardous material is a question oflaw J:ather than fact. In the Matter of Riverdale Mills Corporation, FAA OrderNo. 2003-10 (September 10, 2003). Thus, because the knowledge requirement of§ 5123(a) extends to knowledge ofthefacts giving rise to the violation, provi,ng a violation does not require proofthat the person offering a shipment was
aware that items in the shipment were hazardous. RiverdaleMills Corporation, supra; In the Matter of Smalling, FAA OrderNo. 94-31 (September 30, 1994). Given, the apparent ease withwhichthe employees ofAlaskaAirlines found the hazardous materials, it is abundantly clear that Respondent would have found the items in question had he simply opened and lookedthroughthe boxes and the grill. 

### lt also seems likelythathad he at least pressed his daughterfor details as to the actual contents ofthe boxes, the nail polish and perhaps nail polishremover and hair spray would have been mentioned. Respondent, however, neither looked nor asked. Instead, he was simply relying on his daughter's general description of what to pack first whenhe specificallydeclared to Alaska Airlines that the shipment did not containdangerous goods. The issue, therefore, is whether Respondent, tmder the circumstances, acted as a reasonable person exercising reasonable care. Clearly he was not. Boththe statute inquestion and th.e 

### HMRimpose a duty on a shipper to know what is in each shipment offered for transportation. As noted above the statute is one that "requires inquiry," and inRiverdale Mills, supra, the FAA Decisionmaker states, "[T]he regulations require Riverdale to knowwhat it was shipping." Cf. In the Mattei" of Petek-.Jackson, FAA Order No. 92-59 (October 15, 1992) (In a case arising under the Federal Aviation

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Regulations, the FAADecisionmaker states, "[P]assengers have a duty to knowthe contents of the items they intend to carry onboard a plane."). Were th.e duty any less, it would encourage shippers not to look or inquire, which would severely tmdew:ti.ne the effectiveness ofthe HMR. The HMR could have been written. so as to leave it to carriers to figure out the nature ofeach shipment ittransports, but clearly they were not so written. Requiting carriers to fully and completely inspect and then repackage 100% of shipments offered would seriously impede commerce. Rather, the HMRrecognizes that shippers
are 

### in the best position to knowwhat is being shipped and to properly prepare each shipment for transportation. Hence, the HMRplaces the duty to knowthe contents squarely onthe shipper by requiring each shipper to perform pre-transportation functions that include properly describing eachhazardous material in shipping papers and marking and labeling each shipment in the required manner so as to notifY all who mayhandle it ofthe hazardous nature ofits contents. HMR § 17l.l(b). Further, the HMR specifically authorizes carriers to rely on the inform.ation provided bythe person offering the shipment for transportation. HMR § 171.2(£). In addition to tbe dutyto know imposed by law and regulation, the circumstances dem.anded inquiry. Respondentkn.ew the boxes had been. packed and sealed by his daughterwiththe expectation that they would be transported by private vehicle. Further, the grill that contained ihe insect repellant and charcoal lighter fluid belonged to Respondent's son-in-law, 

### and his daughter neverrepresented--or ever claimed a basis for re_presenting-it did not contain hazardous materials. Yet when Respondent concluded that the soluti.on the problem ofthere being too much stuffto carry inthe truck was 

### to ship some ofit by air at his expense, he apparently never considered thepossibility that some ofthe items were subject to restrictions. Thathe didn't considerthis possibility is understandable given that he didnotknowmost ofthe

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items at issue are hazardous and that he believed at that time that pretty much anything that could be placed on an aircraft was good to go. His mistaken beliefs, however, do not make his failure to inspect reasonable. In sununazy, Respondent had a duty to knowwhat was in the shipment he offered to Alaska Airlines. Bynot learning what was in. the shipment, he breachedthis duty. He was not, therefore, a reasonable person acting inthe circumstances and exercising reasonable care. Had he exercised reasonable care, he would have learned that the shipment contained the nail polish, the nail polishremover, thehairspray, the shaving cream, the insect repellant, and the charcoal lighter fluid. 11J.us, he had knowledge ofthe facts giving rise to the violations. Riverdale Mills, 

### supra. Because each ofthese items is either a flammable liquid or a flammable aerosol regulated by the HMR and at the timehe offeredthe shipment Respondent had not complied with the HMRas alleged, he kn:owingly violated each ofthe regulations cited 

### inthe complaint. 

### B. SANCTION Complainant seeks a civil penalty of$2700 for the violations. This amount was determined using the Agency's Sanction Guidance Table,9 and gives due consideration to the pomalty considerati.ons set forth in49U.S.C. § 5123(c). To calculate a penalty under the Sanction Guidance Table, the first step is to determine the final aggregate weight ofthe case. This determination begins with a detennination ofthe risk category ofthematerial offered, and then a consideration ofthe quantity offered and whetl1er any damage was caused. These are followed byconsideration ofthe violator's degree ofculpability and other tmique factors that increase or decrease the risk the shipmentposed. The next step is to utilize the maU:L--.:: to determine the sanction amount within the appropriate range for each
'It is found inNational Order21503B, Appendix C. A copy was offered as Exhibi.t A-26. 1411/23/2012 11:11 9072712800 FAA PAGE 15/17

violation group. The final step is to take the total calculated underthe second step and then consider the violator's ability to pay as well as continu.e to do business, and any other matters thatjusticerequires. Exhibit A-26,**~8;** ln. the Matter of Tate andPartners, FAA OrderNo. 2010-7 (June 15, 2010). Here, under Figure C-2 ofExhibitA-26, all ofthe items except for the charcoal lighter fluid
come under risk category A, maximum weight. Thetotal quantities, however, wererelatively small, and, in :fact, under§ 175.10 o{theHMR, all butthe charcoal lighter fluid would have been eligible for transportation by air ifthey had been ina checked bag. As to Respondent's culpability, he did not prepare the shipment for tran.sportation, butit was prepared before he
came up with the altemateplanto offer the items for transportationby ai.r. And after deciding to offerthem for 11.11llsportation, he didn't stop to consider whether the shipment might contain items for with something else was required. Hence, there is no indicationhe reasonably relied on incorrect infon:nation from another source, Giving an appropriate weightto each ofthese factors results in a .final aggregate weight ofModerate. Turningto the Matrix (Figure C-l ofExhibit A26), Respondent is an individual so the correct cohunn is A; the shipment was uudeclared but within quantity limits, so the correct row is IL Under II.A ofthe Matrix, the range .for each group ofviolations is from $250 to $1100. A moderate civil penalty falls inthe middle portion ofthis range, with $675 beingthe midpoint. There are four groups ofviolations inthe case (shipping papers, labels, marking, and emergency response), and four times $675 equal $2700. Respondent does not contend that he lacks the ability to paythis amount (Exhibit C-2, Response to Interrogatory No. 6), and there is no evidence that he took any corrective action to preclude a
recurrence such as attending hazardous matetials training. Further, Respondent has notraised



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any othermatter that warrants a reduction in the amount calculated under the Matrix. Hence, $2700 is the appropriate civil penalty in this case.


### IV. CONCLUSION The Agency agrees that words have meaning. While 

### knowingly may mean actual knowledge in some instances, the statute in this case defines 

### knowingly to include what a reasonable person acting inthe circumstances and exercising reasonable care would know. Because Respondent breached his duty to fmd out what he was shipping, he is deemed to have known that the shipment contained the items referenced inthe complaint. Thus, he had knowledge ofthe facts giving rise to the violations. As for sanction, under the Agency's Sanction Guidance Table, an appropriate civil penalty in this case i,s $2700. Respondent should, therefore, be assessed a $2700 civil pen.alty. Respectfully submitted this 23'd day ofNovember 2012. HOWARD L. MARTlN, JR.

# ~~ Glenn. 

### H. Brown Senior Attorney

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### CERTIFICATE OF SERVICE Re: ScottNovak FAADocketNo. --...,-,..,- FPMS NO. FAA-2012·0206 PAGE 17/17



### I hereby certify that on this date 

### I have served a copy of

### the ComjJlainant's Closing Argument by postage-prepaid, certifiedmail, return receipt requested to the following: The Honorable Richard C. Goodwin Office ofHearings, M-20; U.S. Department ofTransportation 1200NewJersey Avenue, S.E. East Building GroundFloor, Room El2-320 Washington, DC 20590 Joseph W. Geldhof 2 Marine Way, Suite 207 Juneau, AK 99801 I further certifY that onthis date I have served the original and two copies ofthe Complainant's Closing Argumentby postage-prepaid, certified mail, retu:m receipt requested and facsimile, addressed as follows: Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright**Building~Suite** 2Wl000 DATED:

Federal 

## AYra; Administration Office ofRegional Counsel 222 West 7th Avenue, Box 

### 14, AAL-7 Anchorage, Alaska 99513-7587

17