11/23/2012 11:11 9072712800 FAA 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON,D.C. 

IN THE MATTER OF 

SCOTT NOVAK 

FAA DOCKET NO. [TO BE ASSIGNED] 

(Civil Penalty Proceeding) 

I'DMS NO. FAA·2012·0206 

COMPLAINANT'S CLOSING ARGUMENT 

I. THE PLEADINGS 

A. COMPLAINT 

Complainant setVed the complaint in this matter on April 10, 2012. In it Complainant 

alleges, in essence, that on or about December 22, 2011, Respondent knowingly offered a 

PAGE 01/17 

shipment to Alaska Airlines for transportation by air from Anchorage, Alaska, to Juneau, Alaska; 

that included in this shipment were 16 bottles of nail polish, a bottle of nail polish removet, a 32" 

ounce bottle of charcoal lighter fluid, a l 0-ounce can ofhalrspray, a 7 -ounce cau. of Gillette 

Fusion Hydra Gel, and a 6.5-ounce can of in.sect repellant; that each of these items is classified 

as a hazardous material under the Hazardous Materials Regulations (HMR); that these hazardous 

materials were not properly identified or declared in the shipping papers; and that the shipment 

was not properly marked or labeled in any manner that would indicate the actual hazardous 

nature of its contents. In Section III of the complaint, the Complainant alleges that by reason of 

these facts and circumstances, Respondent violated§§ 1712(e),l72.200(a), l72.201(d), 

1 72.202(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) of the HMR. In Section IV of the complaint, Complainant alleges 

that under the facts and circumstances of this 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 shipment to Alaska Airlines, and conditionally admits that the shipment is described 

on the air waybill as consisting of "FURNITURE, MA TIRESS" and that the block declaring 

that the shipment does not contain hazardous materials is initialed. He conditionally denies that 

the shipment included nail polish, nail polish remover, charcoal lighter fluid, hairspray, hydra 

gel, and insect repellant, 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 allegations that 

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, when the 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 

hazardous nature of i,ts contents, when the shipment was not marked with the proper shipping 

name and assigned identification number for 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 had no actual or constructive knowledge that the 

shipm10nts he 'offered' for shipment on behalf of one of his 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 

On May 18, 2012, Complainant served its First Set of Requests for Admission, 

Interrogatories, and Requests for Production of Documents.1 In it Complainant asks Respondent, 

inter alia, to admit various facts and the authenticity of certain attached documents, and to 

answer certai,u questions as to his contentions. In his response, which was served on June 29, 

2012,2 Respondent admits that he offered a pickup, truck load of household goods on behalf of 

his daughter. He further states that to the best of his knowledge, all of the stuff was just 

household goods and not anything that was hazardous, He indicates his belief that the shipment 

was assigned Alaska Airlines Air Waybill No. 027-8385-7546. He admits his signature appears 

on the copy of this air waybill that was attached to the request, and that his initials appear in the 

box for the statement, "This shipment does not contain Dangerous Goods." Respondent also 

admits that his signature appears on the security screening document, but he otherwise declines 

to attest to the completeness or accuracy of this 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 of investigation and sending a letter in response to Jeffrey Deitz.4 

II. EVIDENCE 

During the hearing 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 

1 The 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 on the Hearing Docket and the original was served on Complainant. The origi.nal was admitted 

during the hearing as Rxhibit C-2. 

' Separate copies ofthls air waybill and the security screening documents were admitted during tile boaring as 

Exhibit A-1. 4 Copies of tho Letter oflnvestigation and Respondent's rospouse were admitted during the hearing as Exhibits A-15 

and A-16, respectively. 

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agent at Alaska Airline's cargo facility in Anchorage, Alaska, where she has worked on a parttime ba~is for five years. (Transcript of Hearing (Tr.) 24) Her duties include screening cargo 

prior to shipment. (Tr. 25) As part of her 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 at issue in this 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 in the shipment, and send the 

customer to a cargo agent with a ''half-sheet" where the shipment would be entered in the 

computer. (Tr. 27,46-47, 57-58) The custom.er places his initials and signature in appropriate 

locations on a point of sale screen similarto signing for a credit card purchase at Wal-Mart. (Tr. 

45) Exhibits A-17, A-18, and A-19 show the screens a customer would see on the point of sale 

machine if he indicates the shipment does not contain dangerous goods. (Tr. 49-50) The 

computer then prints 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 every piece of the shipment. (Tr. 32, 39) 

Ms. Juul ftrrtber testified that Alaska Airlines must treat known and unknown shippers 

differently, An unknown shipper can ship cargo to anywhere in Alaska on. a passenger jet and to 

Seattle oo.ly in a cargo-only jet. (Tr. 28) Customer service agents rely very heavily on 

customers to tell them what is in their 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 of the nail polish. (Tr. 30), As she 

was coming on shift a departing screener related that she had found dangerous goods in the 

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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 of the rest of the shipment (Tr. 30"31) Ms. Juul. testified that she 

participated in the search of the rest of the boxes. She observed while the two younger girls went 

through the stuff (Tr. 31) They found nail polish, nail polish remover, hairspray, shaving cream 

as well as th<;o bug spray and lighter fluid. They then photographed 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 on the air waybill, and each box had a label on it wi.th the air waybill 

number on it. (Tr. 32) Afterward, she prepared a report. (Tr. 33-34) 

Ms. Juul identified Exhibits A-l and A-2 as being copies of the report she prepared for this 

shipment, and Exhibits A-3 through A-6 and A-10 through A-1.4 as being photographs of the 

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 screening page, and the half-sheet she had fo:~: the 

shipment at the time of her inspection. (Tr, 33, 42"44) Ms. Juul testified that Exhibit A-8 

indicates Respondent was identified by his Alaska driver's license, and that his signature appears 

in section 3, She further testi£led Exhibit A-8 is a hard-copy piece of paper filled out at the time. 

(Tr. 42-44). Regarding Exhibit A-9, Ms. Juul testified that the top portion is the half-sheet filled 

out by the ramp service agent. It il:ldicates in this case that the ramp agent specifically asked 

about dangerous goods because "household goods" is a trigger term. (Tr. 46-47, 57-58, 72, 76, 

78-79) Had the shipment been accompanied by a shipper's declaration for dangerous goods, it 

would have been included with Exhibits A-7 through A-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 of the ramp service 

area at her 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 in hazardous 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 

transportation while working for or in support of air carriers (Tr. 94,95) He is stationed in 

Anchorage, Alaska. (Tr. 97) 

SA Deitz testified that his involvement with the case began when he received an email from 

Alaska Airlines advising him of the matter, He identified Exhibits A, 1 and A-2 as being copies 

of emails he received. (Tr. 96) Because the incident happened in Anchorage, he went to 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 of i,t. (Tr. 98) 

Afterward, he returned to his offi.ce and started the process of obtaining a material safety data 

sheet (MSDS) for each of the 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 in a product. (Tr. 99-100) 

SA Deitz testified that Exhibits A-10 through A-14 contain photographs he took of the 

shipment whi.le at Alaska Aidines' cargo warehouse. (Tr. 102-103) He identified Exhibits A-7, 

A-8, and A-9 as copies of the air waybill, security screening record, and "half-sheet," 

respectively, he gathered at Alaska Airliues' facility during his investigation of the case. There 

was no declaration for dau,gerous goods associated with the shipment or an emergency response 

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 in the photographs A-3 through A-6 and A-10 through A-14. 

(Tr. 1 07) He testified, in essence, that a material is flammable under the HMR when it has a 

flash point that is less than 141 degrees Fahrenheit, and each ofMSDSs for the products in this 

case indicate th.e product's flash point is less than 141 degrees Fahrenheit. (n. 108-109, 130-

131) 

SA Deitz identified Exhibit A-15 as a copy of the letter ofi.nvestigation he sent to 

Respondent on about December 27, 2011. (Tr. 111) The information in his second paragraph 

carne from the MSDSs for the items as well as his personal inspection of the shipment (Tr. 114-

115) He iden.tified Exhibit A-16 as the response he received. The second page of Exhibit A-16 

is a copy of the air waybill provided with the response. (Tr. 116-11 7) This copy of the air 

waybill is different from Exhibit A-7 in that it includes information regarding 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 move to Juneau. Th.e initial plan was to put everything in the back of their truck and 

drive it, but they soon realized it would not all fit. Respondent decided to take some stuff to 

Alaska Airlines cargo. She had the hazardous materials-her nail polish, hairspray, and stuff.-

just thrown into boxes. She testified Respondent did not know that this stuff was in the boxes 

because he had not seen. her placing it in the boxes. She further testified Respondent never asked 

wnat was inside the boxes, and she never told him if there was hairspray or an.y kind of 

flammable or hazardous material in them. (Tr. 176, 180) She also confi.rrned that all of the 

items belonged to her or her husband and that they were in the shipment. (Tr. 177-179, 181) 

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She was upset that these items were not returned to her. (Tr. 182-J. 83) She was not aware that 

any of the items are hazardous materials. (Tr. 179) 

During his testimony Respondent acknowledged that he had traveled to Anchorage to help 

his daughter and son-in-law move to Juneau, and that the plan had been to bring their gear in 

their pick-up. He began by loading what his daughter had identified as the 1110st important stuff, 

which induded the bed, some furniture, and the grill. Once the pick-up was loaded he looked 

around and realized there was too much stuff to leave in storage, so he contacted Alaska Airlines 

to see if it could be shipped. His concern was whether the grill could be shipped as it was 

without something protecting it. When he learned it could be shipped, he drove the pick-up to 

Alaska Airlines with the stuff they bad intended to drive to Haines. 5 (Tr. 184-186) Respondent 

testified that upon arrival at Alaska Airlines' cargo facility in Anchorage, he backed the truck up 

on the ramp outside the freight door. Airline employees were busy with several shipments at the 

time, so he did some of the unloading to the area indicated by a ramp agent who ultimately 

helped get the shipment onto pallets. (Tr. 186-188) 

Respondent testified that he had previously shipped by air freight. It was in about May of 

200 l when he shipped ahnost his entire household, except very large items, by Alaska Air 

freight, and during his 40 years in Alaska he has shipped lots of things on Alaska Airlines. At 

one point he was told at Alaska Airlines that if it 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) 

Respondent testified be does not recall being asked any questions about dangerous goods. 

What he 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 .. 

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educated or interrogated about what might be i.n the boxes or what might be hazardous. (Tr. 192, 

213-214) When he in.di,cated he had household stuff, it did not prompt any further questions. 

(Tr. 193, 195) Once he had completed the off-loading on the ramp, he went to the area oftb.e 

point of sale. (Tr. 195) He denies seeing any signage regarding dangerous goods, (Tr. 197-198) 

and testified that no agent asked him what was in the 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 best of his 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 claim the items, but at that point he was too tired, so he told them 

to dispose of them. (Tr. 202-203) 

Respondent specifically denies that he knowingly offered m~teri~ls that were hazardous or 

dangerous to Alaska Airlines. (Tr. 203) He asserts that had he been asked, he would not h~ve 

signed ~ certification to the effect that he had personally inspected the contents of the shipment. 

(Tr. 204) 

Respondent testified that on December 22, 2011, he was not aware that fingernail polish, 

fingernail polish remover, hairspray, shaving cream, or an aerosol can of bug repellant are 

considered a hazardous materials or dangerous goods. He may have been aware, however, that 

charcoal lighter fluid is hazardous. It did not SUl]Jrise him that 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 are two issues. The first is whether Respondent violated the vadous 

provisions of the HMR as aliJJged, and the second is if so, then what should the penalty be? Each 

of these is separately addressed below. 

A. VIOLATIONS OF THE HMR 

There is no dispute as to the essential facts. The pleadings, testimony, and exhibits establish 

that Respondent offered a shipment to Alaska Airlines on Air Waybill No. 027-8385 7546 for 

transpo.rtation by air from Anchorage to Juneau; that the shipment included 16 bottles of nail 

polish, one bottle of nail polish remover, one 32-ounce bottle of charcoal lighter fluid, one l 0-

ounce can, ofMoroccanoil hairspray, one 7-ounce can. of Gillette Fusion Hydra Gel, and one 6.5-

ounce can of Repel insect repellant; that each of these items is a hazardous material under the 

HMR; that the shipping papers did not include a declaration for dangerous goods, a proper 

description of each hazardous material, or an eme(gency response telephone number; and that 

none ofthe boxes or items containing hazardous materials was marked or labeled to so indicate 

or as the HMR requires. Likewise, there is no dispute that Respondent did not pack any of the 

boxes and did not actually know what was in them, and at the time he affered the shipment, with 

the exception of the charcoal lighter fluid, he did not know that any of the items in question, is 

hazardous. 

What is at issue is whether Respondent knowingly violated the HMR as that term is defmed 

in 49 U.S.C. § 5123(a)(l). 

A full understanding of the current definition requi.res a review ofits development. When the 

Hazardous Materials Transportation Act (HMT A), Title I of P .1 93-633, was originally enacted 

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in 1975, § llO(a)(l/ provided, "Any person ... who is determined by the Secretary,.. to have 

knowingly committed an act which is a violation of a provision of this title or of a 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). It provides: "A person acts knowingly when--{A) 

the person has actual knowledge of the facts giving rise to the violation; or (B) a reasonable 

person acting in the circumstances and exercising reasonable care would have that knowledge." 

In 1994 the various transportation statutes that were codified in title 49 appendix were recodified 

in title 49.7 The provisions of the HMT A are now in § § 510 l-5127, and the act is now referred 

to as the "Federal hazardous material transportation act." Since this recodification., the above 

definition of knowingly added by PJ.. 101-615 has been in 49 U.S,C. § 5123(a)(1). 

The meaning of knowingly as initially enacted was at issue i.n Contract Courier Services, 

Inc., v_ Research and Special 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 of the Agencl was that knowingly includes should have known. 

In its opinion the Court ackn.owledges that statutes frequently provide that a person knows 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 Decisiomnaker held that § 5123(a)(l) 

as amended in 1990 "is a statute 'that requires 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 of law J:ather than fact. In the 

Matter of Riverdale Mills Corporation, FAA Order No. 2003-10 (September 10, 2003). Thus, 

because the knowledge requirement of§ 5123(a) extends to knowledge of the facts giving rise to 

the violation, provi,ng a violation does not require proof that the person offering a shipment was 

aware that items in the shipment were hazardous. Riverdale Mills Corporation, supra; In the 

Matter of Smalling, FAA Order No. 94-31 (September 30, 1994). 

Given, the apparent ease with which the employees of Alaska Airlines found the hazardous 

materials, it is abundantly clear that Respondent would have found the items in question had he 

simply opened and looked through the boxes and the grill. lt also seems likely that had he at 

least pressed his daughter for details as to the actual contents of the boxes, the nail polish and 

perhaps nail polish remover 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 when he specifically declared to Alaska Airlines that the shipment did not 

contain dangerous goods. The issue, therefore, is whether Respondent, tmder the circumstances, 

acted as a reasonable person exercising reasonable care. 

Clearly he was not. Both the statute in question and th.e HMR impose 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 in Riverdale Mills, supra, the FAA Decisionmaker states, "[T]he 

regulations require Riverdale to know what 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 FAA Decisionmaker states, "[P]assengers have a duty to know the contents of 

the items they intend to carry on board 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 of the HMR. The HMR could have been written. so as to 

leave it to carriers to figure out the nature of each shipment it transports, 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 HMR recognizes that shippers 

are in the best position to know what is being shipped and to properly prepare each shipment for 

transportation. Hence, the HMR places the duty to know the contents squarely on the shipper by 

requiring each shipper to perform pre-transportation functions that include properly describing 

each hazardous material in shipping papers and marking and labeling each shipment in the 

required manner so as to notifY all who may handle it of the hazardous nature of its contents. 

HMR § 17l.l(b). Further, the HMR specifically authorizes carriers to rely on the inform.ation 

provided by the person offering the shipment for transportation. HMR § 171.2(£). 

In addition to tbe duty to know imposed by law and regulation, the circumstances dem.anded 

inquiry. Respondent kn.ew the boxes had been. packed and sealed by his daughter with the 

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 never represented--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 stuff to carry in the truck was to ship some of it by air at his expense, he 

apparently never considered the possibility that some of the items were subject to restrictions. 

That he didn't consider this possibility is understandable given that he did not know most of the 

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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 know what was in the shipment he offered to Alaska 

Airlines. By not learning what was in. the shipment, he breached this duty. He was not, 

therefore, a reasonable person acting in the circumstances and exercising reasonable care. Had 

he exercised reasonable care, he would have learned that the shipment contained the nail polish, 

the nail polish remover, the hairspray, 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 of these items is either a flammable liquid or a flammable aerosol regulated 

by the HMR and at the time he offered the shipment Respondent had not complied with the 

HMR as alleged, he kn:owingly violated each of the regulations cited in the 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 of the case. This determination begins with a detennination of the risk 

category ofthe material offered, and then a consideration of the quantity offered and whetl1er any 

damage was caused. These are followed by consideration of the violator's degree of culpability 

and other tmique factors that increase or decrease the risk the shipment posed. The next step is 

to utilize the maU:L--.:: to determine the sanction amount within the appropriate range for each 

'It is found in National Order 21503B, Appendix C. A copy was offered as Exhibi.t A-26. 

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violation group. The final step is to take the total calculated under the second step and then 

consider the violator's ability to pay as well as continu.e to do business, and any other matters 

that justice requires. Exhibit A-26, ~8; ln. the Matter of Tate and Partners, FAA Order No. 

2010-7 (June 15, 2010). 

Here, under Figure C-2 of Exhibit A-26, all of the items except for the charcoal lighter fluid 

come under risk category A, maximum weight. The total quantities, however, were relatively 

small, and, in :fact, under§ 175.10 o{the HMR, all but the charcoal lighter fluid would have been 

eligible for transportation by air if they had been in a checked bag. As to Respondent's 

culpability, he did not prepare the shipment for tran.sportation, but it was prepared before he 

came up with the altemate plan to offer the items for transportation by ai.r. And after deciding to 

offer them 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 indication he reasonably relied on 

incorrect infon:nation from another source, Giving an appropriate weight to each of these factors 

results in a .final aggregate weight of Moderate. Turning to the Matrix (Figure C-l of Exhibit 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 of the Matrix, the range .for each 

group of violations is from $250 to $1100. A moderate civil penalty falls in the middle portion 

of this range, with $675 being the midpoint. There are four groups of violations in the case 

(shipping papers, labels, marking, and emergency response), and four times $675 equal $2700. 

Respondent does not contend that he lacks the ability to pay this 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 not raised 

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any other matter 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 in the 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 in the complaint. Thus, he had knowledge of the 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 of November 2012. 

HOWARD L. MARTlN, JR. 

~~ Glenn. H. Brown 

Senior Attorney 

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CERTIFICATE OF SERVICE 

Re: ScottNovak 

FAA Docket No. --...,-,..,-

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, certified mail, return receipt requested to the following: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20; 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

Joseph W. Geldhof 

2 Marine Way, Suite 207 

Juneau, AK 99801 

I further certifY that on this date I have served the original and two copies of the Complainant's 

Closing Argument by 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 of Regional Counsel 

222 West 7th Avenue, Box 14, AAL-7 

Anchorage, Alaska 99513-7587 

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