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UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

111 the Mfttter of; MOLE-MASTER SERVICES CORPORATION 

F A A Order No. 2010-11 

DocketNo.CP08SO00]2 

FDMS No- FAA-2008-0691' 

Served; June 16,2010 

DECISION AND ORDERS 

Respondent Mole-Master Services Corporation ("Mole-Master") has appealed the 

wriiien initial decision of Administrative Law Judge ("AU") Isaac D. Bcnkin assessing a 

civil penally of $25,000 againsi Molc-Masier for a number of violations^ of the 

Department of Transportation ("DOT") Hazardous Materials Rci^ulations ("HMR'') 

(49 CF.R, Parts 171 - 180) resulting I'rom a hidden shipment of a flammable material.'* 

On appeal, Mole-Master argues that tlie $25,000 civil penally is excessive, 

claiming that some mitigation would be appropriate due to corrective action taken by 

Mole-Master. For the reasons discussed below, the civil penalty assessed by the ALJ was 

appropriate and will not be disturbed in this decision. 

' Maccrials tiled in the FA A Hearing Docket (except for materials tiled in security cases) arc 

available for viewing at http://yvww.riigulaihns.gov. 

^ The Administrator's civil penalty decisions, along with indexes of the decisions, the rules of 

practice, and other information, are available on the Internet at the following nddrcsis; 

htip://Jaa.goy/abouiJo)f\ce org/headqvariers_offices/cigc/pol_adjud)catUm/AGC400/Civil_Piinalty. 

Ir addition, ThomiiOii ReutcrsAVcst Publishing publishes Federal Aviation Decisions. Finally, the 

decisions are available through LEXIS (TRANS librajy) iind We-slLaw (FTRAN-lrAA database;). 

For additional information, sec the Web site. 

^ The regulations allegedly violated can be found in the Appendix to this decision. 

^ A copy ol'the Al J'.s order is attached. 
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I, Background 

On June 20, 2008, the FA A tiled a complaint alleging that Mole-Master violated 

the HMR when it offered to UPS a box containing hazardous materials for shipment by 

air on or about February 13, 2007. The complaint sought a civil penally of $30,000. The 

ALJ held a hearing on January 29, 2009, and issued his written initial decision on 

February 10, 2009, finding that Mole-Master committed the alleged violations, bul ihat 

the proposed civil penalty of $30,000 was too high. Due to Mole-Master's investTiient in 

belter ha7.ardous materials training for its headquarters shop, management, and clerical 

employees, the ALJ assessed a civil penalty of $25,000. 

II. Facts 

Mole-Master is in tlie business of cleaning and repairing silos, bins, and other 

storage facilities. (Initial Decision at 1.) On February 13, 2007, Mole-Master shipped 

via UPS a cardboard box containing a hazardous material - specifically, nine 11-ounce 

tubes of a fl^mnmble sealant. (Tr. 150; Exhibit C-l.) The .'Shipment originated in 

Marietta, Ohio, Mole-Master's headquarters, and its destination was Mole-Ma-ster'-s other 

facility in Moscow Mills, Missouri. (Tr. 41; Exhibit C-l; Exhibit C-3 at 4.) Mole-Master 

offered the shipment for air transportation ("Next-Day Air"), bul it wa.s transported by 

truck on the fusl leg of its trip, to a UPS sorting facility in Louisville, Kentucky. 

At the UPS sorting facility in Louisville, UPS personnel discovered ihut the box 

contained the nine 11 -ounce rubes of a sealant in a clear plastic bag. (Tr. 50; Exhibit C-3 

at 9.) The manufacturer had labeled each tube with a warning that Hie sealant and its 

vapor were flammable. The box lacked the required hazardous materials shipping papers, 

marldngs, labels, and emergency response information to identify it as a hazardous 
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maleiial. (Tr. 42, 44, 58, 80, 109.) Thus, it constituted an undeclared shipment of a 

hazardous material. 

The next day, UPS sent a Hazardous Materials Incident Report* and a copy of a. 

Material Safety Data Sheet ("MSDS") concerning the shipment to FAA Special Agent 

Beverly Farris. Mole-Master later submitied the same MSDS to Special Agent Fairis 

(Tr. 59), who determined from the MSDS that the material at issue was a regulated, 

hazardous material (Tr. 38). 

According to the MSDS, the material is an adhesive (Exhibit C-5 at 4; Tr. 57-58) 

and is in Hazard Class 3 and Packing Group II. The MSDS indicated that the material's 

identification number is UNI 133; that it is a flammable material; and that shipments of 

this material require a red caution label. (Exhibit C-5 ai 4.) The MSDS further indicated 

that the material has harmful effects on the tliroat, lungs, eyes, skin, and gastrointestinal 

tract, (Id,) 

Special Agent Farris went lo UPS to inspect the box (Tr, 46) and found that it was 

wet and falling apart (Tr. 49), UPS had opened it to dctenminc if it was leaking or if it 

had been leaked upon, (Tr. 49, 111,) Special Agent Farri.'? did not know how it got wet, 

but nothing inside the package had leaked, (Tr. 87,) 

If a shipment of hazardous materials is offered for air transportation, it must be 

prepared for air transportation in accordance with the HMR. (Tr. 43.) Tliis shipment was 

not properly prepared for transportation by air. Not only was it an undeclared shipment, 

but Mole-Master had not met the requirement that anyone who prepares a shipment 

containing hazardous materials be trained according to the regulations. (Tr, 81,) Further, 

' Carriers are required to notify the FAA of possible violations of the HMR, (Tr, 30-31 ) 
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the box containing the liazardous material did not meet ihc packaging requirements for an 

adhesive, Class 3, Packing Group U. (Tr. 82.) Because the shipment was undeclared, 

UPS did not know to treat it as a hazardous matcriaJ. (Tr. 62,) If UPS knows that the 

shipment contains hazardous materials, it will be segregated when loaded, (Tr. 61.) 

Mole-Master responded to the FAA's letter of investigation as follows: "We have 

taken the necessary actions to see that this will not happen again. Please accept our 

apologies for any inconvenience this may have caused," (Exhibit C-6 at 1.) Mole-Master 

attached a dociunenx regarding its safety training (Exhibit C-6 at 2) to its letter. Special 

Agent Farris testified that the training described in this document would noi mccl the 

regulations for training. (Tr, 71-72.) 

Regarding the civil penalty, the FAA introduced through Special Agent Farris a 

copy of FAA Order No. 2150.3B, Appx, C, which the ALJ admitted. This document is 

entitled, "Sanction Guidance - Hazardous Materials Enforcement," (Exhibit C-7 at L) It 

contains a Matrix in figure C-l for use by agency employees in determining appropriate 

civil penalties in cases involving tlic shipment of haicardous materials by air. 

Special Agent Farris testified that under this Matrix, the Offense Category wa*? 

"H" for an "Undeclared Shipment within Ilazmai Quantity Limitalions." (I'r, 83; Exhibit 

C-7, Figure C-l, Row 2.) She also testified that she classified Mole-Master as a simple 

business entity - not a business entity that uses or handles hazardous materials in the 

course of business and not a business entity that regularly offers, accepts, or transports 

hazardous materials. (Tr, 82; Rxliibit C-7, Figure C-l, Column B.) 

Using the Matrix in Figure C-l, she determined that ttic appropriate civil penalty 

range per categoiy of violation was $1,500-8,200. She further testified that Mole-Master 
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violated six categoric.^? of violations; i.e., violations of regulations pertaining to 

(1) shipping papers; (2) labels; (3) markings; (4) packaging; (5) training; and 

(6) emergency response informeition. (Tr. 83.) Special Agent Farris testified that MoleMa"!ter was not charged with a release into the environment, because there was no leak. 

Multiplying the low end of the range, $1,500, by six categories would be $9,000. 

Multiplying the high end of $8,200 by six categories would be $49,200. When the judge 

asked her if the proposed $30,000 civil penalty was arrived at by averaging the low end 

and the high end, she said yes ('I'r. 82, 84), although she did not calculate the civil penalty 

herself (Tr. 97-98). 

Mole-Master's General Manager testified as follows. Mole-Master had about 35-

40 employees at tlic time of tlie incident. (Tr. 124,) It had a fleet of about 12-15 

vehicles, and some sales cars and other pieces of equipment. (Tr. 125.) The majority of 

ihe items Mole-Master ships are catalogues, brochures, and promotional items such as 

coffee mugs, T-shirts, and ball caps. (Id.) 

At the time of the incident, the company's annual sales volume was a little morn; 

than $4 million. (Tr. 127.) The profitability of the company wag 6 to 8 percent before 

taxes. (Id.) 

Mole-Master did not normally ship or use ihe sealant at issue, (Tr. 128.) UsuaJlly 

it used a non-hazardous sealajit (Id.) It had no prior violations, (Tr. 139.) It provided a 

2-day hazardous materials training class which was held in September 2008 for everyone 

in the company. Mole-Master, however, did not introduce certificates of training or a 

copy of the course curriculum into the record. (Tr. 14], 146.) Mole-Master now has a 

safely manager. (Tr. 147.) Molc-Mastcr',s General Manager testified that Mole-Master 
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replaced its shipping person with a much higher paid individual who had significant 

experience in handling hazardous materials. (Tr. 149.) 

III. The Initial Decision 

After the hearing, the /VLJ issued a decision fmding that Mole-Masler committed 

the alleged violations. (Initial Decision at 5. 6.) Regarding the penalty, he found that 

Special Agent Farris accurately applied FAA Order No. 2)50.3B, Appx. C, to calculate 

the appropriate civil penalty, 

The ALJ noted that the average or$9,000* and $49,200'' is $29,100, He 

di.sapproved the "rounding up" to $30,000 that he said took place after Special Agent 

Farris completed her report because, in his view, it was baseless. Thus, he stated, the 

tentative civil penalty should be $29,100. The AU recognized that xmdcr FAA Order 

No. 2150,3B, Appx. C, mitigating factors may be relied on to reduce the penalty, but he 

said that Mole-Master had placed in the record little or no hard evidence that would 

justify reducing the penalty significantly. 

With respect to any alleged negative effect on Mole-Master's ability to remain in 

business and its inability to pay, the ALJ stated that the burden of coming forward rested 

upoti Mole-Master. He further stated that Mole-Master ct)uld not rely upon mere 

generalizations that formed much of the testimony of Mole-Master's General Manager, 

but instead, Mole-Master had to "come forward with audited fmancial statements and 

other data showing its financial position in detail." Mole-Master, he found, failed to 

introduce such documentary evidence to prove its financial circumstances. (Initial 

* $1,500, the low ond of the sanction range in FAA Order No. 2150.3B, muhiplied by six 

violation categories. 

^ $8,200, the high end of the sanction r.inge in FAA Order No. 2150.3B, multiplied by six 

violation categories. 
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Decision at 7.) Mole-Master's general argtimenl that the civil penally should be reduced 

because it was a small business, he found, was insufficient and contrary to FAA Order 

No. 2150.3H, Appx. C, ^ 5c, which provides that "[tjhe FAA does not reduce or waive 

the penalty ,.. solely because [the violator] is a small business entity." 

The ALJ emphasized that "[m]ajor catastrophes and significant loss of life may 

occur because seemingly iimocuous household items are placed in the stream of air 

commerce without adequate warning to the carrier, its employees or emergency rescue 

personnel." (Initial Decision at 7.) According to the AtJ, "*[t]he garden-variety adhesive 

containers ... contained a flanimable substance that would have been transformed into a 

powerfiil accelerant if a fire had broken out in ihc cargo compartment of the aircraft." 

(Id) 

However, the ALJ reduced the penalty sought by the FAA from $29,100 to 

$25,000 based on Mole-Master's "investment in better training in hazardous materials 

transportation for its headquarters shop, management, and clerical personnel." (Initial 

Decision at 7.) The AI.J did so even though Mole-Master's training did not occur until 

September 2008,1 year and 7 months after the violations, and, in his words, the 

description of the training from Mole-Master's General Manager was "rather sketchy.'' 

(Id.) Nevertheless, the ALJ stated, Mole-Master did make the effort to remedy the 

fvmdamental causes of the violations - ignorance and carelessness. 
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rv, Discussion 

Only Mole-Master has appealed., Mole-Master contests the civil penalty amount, 

but not the finding of violations. 

Preliminarily, the ALJ used the wrong guidance in determining the civil penalty 

amount. He used FAA Order No. 2150,3B, Appx. C (Exhibit C-7), which became 

effective on October 1, 2007, and, therefore, did nol apply to the violations in this case, 

which occurred on February 13, 2007. Instead, the sanction guidance in FAA Order 

No. 2150,3A, Appx. 6,* applies lo this case.* 

The applicable sanction range, for business entities tliat ship undeclared 

.shipments within the hazardous materials quantity limitations, is higher under FAA Order 

No. 2150,3n, Appx. C, than under FAA Order No, 2150.3A, Appx. 6, 'fhe range under 

FAA Order No. 2150.3B, Appx. C, is $1,500 to $8,200, while the range under the 

applicable order, FAA Order No, 2150,3A, Appx. 6, is $1,500 to $7,500. If the FAA 

took the average of the high and low ends of the range to arrive at a moderate sanction 

(Tr. 84), as the testimony indicated, then the proposed civil penalty was higher Ihan il 

should have been. 

Not only did the FAA and the ALJ use the wrong guidance in determining the 

penalty, but the F/VA's sole witness. Special Agent Farr),5, testified that she did not 

' This sanction guidance ^vas published in the Federal Register; the citation is Federal Aviation 

Adminislration Policy on Enforcement of the HazardouH Materials Regulations: Penalty 

Considerations. 64 Fed. Reg, 19443 (April 21. 1<)99). 

* The ALJ's reliance on the wrong guidance is undci-standable because Special Agcnl Farris 

testified regarding FAA Order No, 2150.3B, Appx, C, (Tr. 36.) 
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herself calculate the civil penalty and did not know how her colleague, who was not at 

the hearing due to inclement weather, had calculated the amount. (Tr 97-98.)'** 

Notwithstanding the proceedings before the ALJ, the Administrator can determine 

the appropriate civil penalty on appeal. Cf, Zoltanski. FAA Order No, 2002-12 at 7 

(April 26, 2002) (stating thai the Administrator need not remand a case for a sanction 

determination when the Administrator overturns a finding of no violation), citing Esau. 

FAA Order No, 1991-38 at 7 n. 7 (September 4, 1991) (stating that while it would not be 

inappropriate to remand the case to tlie ALJ, it was more efficient for the Administrator 

to determine the sanction). 

The FAA issued the sanction guidance in FAA Order No. 2150,3A, Appx. 6, on 

April 21,1999, At that time, the Federal hazardous materials transportation law (now 

found at 49 U.S,C, § 5123) provided for a minimiun civil penalty of $250 and a 

maximum civil penalty of $25,000, 64 Fed. Reg, 19443,19443 (April 21, 1999). Willi 

the adjustment for inflation found in 14 C.F.R. Part 13, Subpart H, the maximum civil 

penalty per violation al the time was $27,500. Id. 

In 2007, when Mole-Masicr offered the hazardous materials for shipment, ihe 

minimum civil penally for general hazardous materials violations under 49 U.S.C. § 5123 

was still $250, but the minimum civil penalty for training violations had risen to $450. 

14 C.F.R. Fart 13, Subpart H, Table 3 - Table of Minimum and Maximum Civil 

Monetary Penalty Amounts for Hazardous Materials Violations Occurring on or after 

August 10,2005. The maximum penalty per violation had risen to $50,000. Id 

"* She did testify that "wc" - apparently meaning special agents - all calculate civil penalties in 

the same way. (Id.) 
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•In determining the amount of a civil penalty in hazardous materials cases, the 

following statutory factors must be considered*. (1) the nature, circumstances, extent, and 

gravity of the Yiolation(s); (2) with respect to the violator, the dcgi'ee of cialpabiliiy, any 

history of prior violations, the ability lo pay, and any effect on the abilily lo conrinue to 

do business; and (3) other matters that justice requires. 49 U.S.C. § 5123(c). The FAA's 

sanction guidance in FAA Order No. 2150.3A, Appx. 6, takes into account the .rtatutory 

factors. The guidance states that it "provides agency persormel with u systematic way to 

evaluate a case and arrive at an appropriate penalty, considering all the relevant statutory 

criteria including any mitigating and aggravating circumstances." 64 Fed. Reg, 19443, 

19444. 

The sanction guidance "contains a scries of questions designed lo assist special 

agents and attorneys in evaluating a particular case." Id, These questions are based on 

the statutory factors. In response to the question *ls the matcrial(s) offered, transported, 

or accepted in Category A," the answer is "yes" because tl)e material at issue in thi.s case 

is a flammable liquid in HaTiai'd Class 3, Packing Group 11. FAA Order No. 2150.3A, 

Appx. 6, Figure 2. The guidance slates, "If yes, assign a Maximtim weight."" 

All of the other que,"5tions"' in the hazardous materials sanction guidance in FAA 

Order No. 2150.3 A, Appx. 6, are answered "no" and therefore, under the guidance, do 

'' Ihe ALJ placed the material in Category B although the material, a Class 3, Packing Group 11 

material, is clearly in Category A, according to Figure 2. 

'^ (1) Did the pQckagc(s) exceed the authorized quantity limitfttions by a significajit amount? 

(2) Were there multiple packages in the shipment? (3) Did the shipment cause damage or harm to 

persons or property, or interfere with commerce? (4) Is the violator the manuracturci- of the 

hazardous material? (5) Did someone other than the violator prepare the shipmcnL for 

transportatjon? (6) Did the violator reasonably rely on incorrect information from ai^other 

source? (7) Does the violator have a history of previous HMR violationsV 

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not affect the weighting of the case. As a result, the final, aggregate weight of the case :is 

maximum. 

The next step is lo use the Mattix in FAA Order No. 2150.3A, Appx. 6, MoleMaster falls into the category of "Business entity." For a "Business entity" tliat ships aji 

"Undeclared Shipment Within Hazmat Quantity Limitalions," the range in tlie Matrix in 

$1,500 to $7,500 for each of the six violation categories appUcable in this case - i.e., 

shipping papers, labels, raoikings, packaging, training, and emergency response 

inforriiarion. Note that release into the environment is not one of the violation categories 

at issue in this case. The evidence was ihai the hazardous materials offered by MoleMaster for shipment did not leak. 

In light of the factors described above, a civil penally of as much as $45,000 

would be appropriate. But the analysis under the sanction guidance is not complete. 

Regarding "other matters that justice requires [lo be considered]," it must be determined 

whether Mole-Master look corrective action warranting a reduction in the civil penalty. 

Mole-Master's General Manager testified tliat Mole-Master conducted a 2-day traiiiing 

course for its employees. In addition, Mole-Mastei" now has a safely manager. (Tr. 147,) 

Mole-Master's General Manager testified that Mole-Master's shipping person is no 

longer a basic laborer but is a much higher paid individual with significant experience in 

handling hazardous materials. (Tr, 149.) 

Training and other changes to ensure compliance with the regulations arc strongly 

encouraged. Swift, comprehensive, and positive corrective action may warrant a 

reduction in an otherwise reasonable civil penalty. See, e.g., Whitley. FAA Order 

No. 2009-4 at 10 (January 14,2009), In the instant case, however, Mole-Master's 

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'^"'^ * DMS 21012/02 8 

training was not swift - - it did not occur until 1 year and 7 months after the violations, 

Moreover, the ALJ fotmd that the General Manager's description of the training was 

"sketchy," (Initial Decision at 7.) Under the circumstances, no more than a minimal 

adjustment for training is warranletl. A minor adjustment for the other correclive action -

appointing a safety manager and haying a shipping person with significant hazardous 

materials experience - is also warranted." 

The Administrator is constrained by the amount sought in the complaint, 

Section 13.16<j) of the FAA Rules of Practice, 14 C.F.R. § 13.16(j), provides that"[fjhc 

FAA decisionmaker may assess a civil penalty but shall not asses.$ a civil penalty in an 

amount greater than that sought in the complaint.'" (Emphasis added.) Here, the FAA 

sought $30,000, so a civil penally above that may not be assessed. Further, the FAA did 

not file a cross-appeal challenging the ALJ's $25,000 civil penalty as too low; therefore, 

the ALJ's penalty amount will not be disturbed in this dcci.sion. 

Mole-Master argues thai it is likely that the FAA based its proposed penalty 

largely on the aggravating factor of a leak, which did not exist. Mole^Master points out 

that ihc FAA did not move to strike the word "leaking" from the complaint vmtil the 

hearing, If, however, the FAA had based its propo,sed civil penalty on a leak, the penalty 

it sought would have been much higher. Note loo that the proposed penalty is not at 

i,s.sue any longer. The $25,000 civil penalty assessed in this decision takes into account 

that there was no leak. 

" Testimony bethru the ALJ suggested that die civil penalty sought in the complaint was arrived 

at by averaging the higliest and lowest ends of the civil penalty range for the number of violation 

categories involved in this ease. The Administrator does not encourage the use of a mathematical 

formula to set a civil penalty, Further, in this decision, the Administrator did not use a 

mathomatical formula to arrive at the civil penalty. Instead, tlie civil penalty assessed in this 

decision is based on a consideration of all relevant factors. 

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Mole-Master also argues that the $25,000 civil penalty assessed by the ALJ is loo 

high compared with that assessed in a previous case, Phillips Building Supply. FAA 

Order No. 2000-20 (August 11, 2000), reconsideration denied, FAA Order No. 2000-27 

(December 21, 2000). Phillips, which had no history of violations, shipped five 1-gallon 

cans of Formica glue, which had the proper shipping name of Halogenatcd Irritating 

Liquid, NOS. One of the cans leaked. In Phillips, the Administrator assessed a $14,000 

civil penalty. Phillip.s is inapposite, however. 'l"hc glue was in Hazard Class 6.1, Packing 

Group in - indicating a material tliat was less ha^-ardous than the material offered by 

Mole-Masler for shipment, which was in Hazard Class 3, Packing Group II, The lower 

the Hazard Class, the more hazardous tlie material is. Ha:;iard Class 6,1, Packing Group 

in materials fall within Risk Category C and therefore receive a minimum weight, in 

contrast to Hazard Class 3, Packing Group II materials, which fall within Risk Categorj^ 

A and warrant a maximumn weight, FAA Order No. 2150,3A, Appx. 6, Figure 2. Further, 

Phillips was decided almost a decade ago, and the shipment in Phillips took place prior to 

the publication of F/ ^ Order No. 2150.3A, Appx. 6, on April 21, 1999. 64 Fed, Reg. 

19443 (April 21, 1999). 

Mole-Master argues that its conduct was not egregious because die product at 

issue is found in any hardware or home improvement store While Mole-Master's 

conduct could have been worse, iht material was flammable (and was clearly labeled as 

such), which makes this a very serious matter. Mole-Master also argues that its conduct 

was not egregious because it had nol used tlie product before. However, the civil penalty 

would have been higher under the sanction guidance if Mole-Master had used or handled 

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hazardous materials in the course of business or if Mole-Master regularly offered, 

accepted, or transported hazardous materials, 

Mole-Masler argues that there is a "piling on" of violations, that it was a single 

act of shipping materials, that it did not know the materials were hazardous, and that the 

other violations were primarily paperwork violations. There was no piling on. Although 

this may have been a single event, it was not a single violation. Under the sanction 

guidance, Mole-Master violated six different categories of violations. Had Mole-Master 

known and intentionally shipped the hazardous material, it would have been subject to 

criminal penalties under 49 U,S.C. § 5124, which provides for criminal fines under 

Title 18 of the U.S. Code and imprisonment or both. That Mole-Master argues that some 

of the violations were "primarily paperwork violations" suggests that it still does not 

understand the gravity of its offenses. If it is referring to the violations involving 

shipping papers, labels, markings, or emergency response information, it does not 

comprehend that compliance wi'di these requirements helps to ensure that hazardous 

materials are properiy handled, so that the risk of an incident is diminished, and so that 

there is emergency help if an incident does occitr. 

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Conclusion 

A civil penalty of $25,000 is not excessive; consequently, for the reasons stated 

above, this decision affirms the civil penalty assessed by the ALL''' 

^ —I RANDOLPH BABBITf 

ADMINISTRATOR 

Federal Aviation Administration 

'" This deeision .shall be considered an order assessing civil penally unless Respondent iilcs a. 

petition for reviuw within 60 days of serviee of this decision with the U.S. Court of Appeals for 

the District of Columbia Circuit or the U.S. court of appeals for the circuit in which the 

respondent re.s-idca or has its principal place of business. 14 C.F.R. §§ 13.16(d)(4), 13.233(j)(2), 

13-235 (2009). See 71 Fed. Reg. 70460 (Dec. 5, 2006) (regarding petitions for review of final 

agency decisions in civil penalty cases). 

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APPENDIX 

Section 171.2(e)'^provides; 

(c) No person may offer or accept a hazardous material for 

transportation in commerce uidess the hazardous materia] is properly 

classed, described, packaged, marked, labeled, and in condition for 

shipment as required or authorized by applicable requirements of this 

subchapter .... 

Section 172.200(a) provides: 

(a) De,scripiion of hazardous materials required. .., [KJach person 

vdio offers a hazardous material for transportation shall describe the 

hazardous material on the shipping paper in the manner required by this 

subpart. 

Sections 172.202(a)(l)-(6) provide: 

(a) The shipping description of a hazardous material on the 

shipping paper must include: 

(1) The proper shipping name prescribed for the material in 

Column 2 of the § 172.201 table; 

(2) The hazard class or division number ... as shown in Column 

(3) of the § 172.101 Tabic.... 

(3) The identification number prescribed for the material as shown 

in Column 4 of the § 172.201 table; 

(4) The packing group in Roman numerals, as designated for the 

hazardous material in Column 5 of the § 172.101 Table ...; and 

(5) The total quantity of hazardous materials ...; 

(6) The number and type of packages .... 

Section 172,204(a)(l)-(2) provides: 

(a) [Ejach person who offers a hazardous material for 

transportation shall certify ihat the material is offered for transportation in 

accordance with this subchapter by printing ... on die shipping paper ... 

the certification contained in paragraph (a)(1) of this section or the 

certification ,., in paragraph (a)(2) of this section. 

(1) "This is to certify that the above-named materials are properly 

classified, described, packaged, marked and labeled, and are in proper 

condition for transportation according to the appUcable regulations of the 

Department of Transportation." .... 

'* All citjitjons are to the October 1, 2006, edition of Title 49 of the Code of Federal Regulation,-;. 

The regulations at issue were not revised again until October 1,2007. 
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(2) "I hereby declare thai the contents of this consigimicnt arc fully 

and accurately described above by the proper shipping name, and are 

classified, packaged, marked and labelled/placarded, and arc in al) respects 

in proper condition for transport according to applicable international and 

national governmental regulations." 

Section 172.204(c)(]) provides: 

(c) Transportation by air -(1) .,. Certification containing the 

following language may be used in place of the certification required by 

paragraph (a) of this section; 

I hereby certify that the contents of this consignment are fully and 

accurately described above by proper shipping name and arc classified, 

packaged, marked and labeled, ond in proper condition for carriage by air 

according to applieable nalional governmental regulations 

Section 172.204(c)(2) provides: 

(2) Certificate in duplicate. Each person who offers a hazardous material 

to an aircraft operator for transportation by air shall provide two copies of the 

certification required in this section 

Section 172.204(c)(3) provides: 

(3) Additional certification requirements. ... [EJach person who offers a 

hazardous material for ti-ansportation by air must add to the certification required 

in this section ...: 

"1 declare that all of the applicable air transport requirements have been 

met." 

Section 172.300(a) provides: 

(a) Bach person who offers a hazardous material for transportation 

shall mark each package ... containing the hazardous material in the 

manner required by this subpart. 

Section 172.301(a) provides: 

(a) [E]ach person vt^ho offers a hazardous material for 

transportation in a non-bulk packaging must mark the package with the 

proper shipping name and identification number (preceded by "UN" or 

"NA, " as appropriate) for the material as shown in the § 172.101 Table.,,, 
06/24/201 0 09:4 6 FAX 202493514 2 FAA •> DMS @i018/02£ 

Section 172.312(a)(2) provides: 

(a) ... [E]ach non-bulk combination package having inner 

packagings containing liquid hazardous materials must be .,, 

(2) Legibly marked with package orientation markings .., .on two 

opposite vertical sides of the package with the arrows pointing in the 

correct upright direction. 

Section 172,400(a) provides: 

(a) fRlach person who offers for transportation or transports a 

hazardous material in any of the follov^^ing packages or containment 

devices, shall label ihe package or containment device witli the labels 

specified for the material in the § 172.101 table and in this subpart .... 

Section 172.600(c) provides; 

(c) ... No person to whom this subpart applies may offer for 

transportation, accept for transportation, transfer, store or otherwise handle during 

transportation a hazardous material unless: 

(1) Bmergcncy response information conforming to this subpart is 

immediately available for use at all times the hazardous material is present; and 

(2) Emergency response information ... is immediately available lo any 

person who, as a representative of a Federal, state or local government agency, 

responds to an incident involving a hazardous material, or is conducting an 

investigation which involves a hazardous material. 

Section 172.602(b)(3) provides: 

(b) Form of information. Ihe information required for a hazardous 

material ,,. must be ,.. 

(3) Presented—• 

(i) On a shipping paper; 

(ii) In a document, other than a shipping paper, that includes both the basic 

description and technical name of the haziirdous material as required by 

§§ 172.202 and 172,203(k), the ICAO Technical Instructions, the IMDG Code, or 

ihe TDG Regulations, as appropriate, and the emergency response information 

required by this subpart (e.g., a material safety data sheet); or 

(iii) Related to the information on a shipping paper, a written notification 

to pilot-in-command, or a dangerous cargo manifest, in a .separate document (e.g., 

an emergency response guidance document) in a manner ihat cross-references Ihe 

description of the haTardous material on the shipping paper with the emergency 

response information contained in the documeni 

ui 

l-im 
06/24/201 0 09:4 6 FAX 2024935142 FAA * DMS @l019/028 

Section 172.604(a)(3) provides: 

j " (a) A person who offers a hazardous material for transportation must 

provide an emergency response telephone number, including the area code or 

( international access code, for use in the event of an emergency involving the 

hazardous material. The telephone number must be -

\ (3) Emercd on a shipping paper, as follows: 

j (i) Immediately following the description of the hazardous material... 

! (ii).., in a clearly visible location .... 

f Section 173.1(b) provides; 

j (b) A shipment of hazardous materials thai is not prepared in 

j accordance with this subchapter may not be offered for transportation by 

r air, highway, rail, or water. It is the responsibility of each hazmat 

I employer ,.. to ensure that each ha/anat employee is trained in accordance 

I with the requirements prescribed in this subchapter. It is the duty of each 

f person who offers hazardous materials for transportation to instruct each 

j of his officers, agents, and employees having any responsibility for 

preparing hazardous materials for shipment as to applicable regulations in 

I this subchapter, 

[ Section 173.202 provides: 

f (a) When § 172.101 of this subchapter specifies that a hquid 

j hazardous material be packaged under (his section, only non-bulk 

packagings prescribed in this section may be used for its transportation. 

f Each packaging must conform to tlic general packaging requirements of 

j subpart D of part 173, to the requirements of port 178 of this subchapter at 

j the Packing Group I or II performance level (unless otherwise excepted), 

i and lo the particular requirements of the special provisions of colvimn 7 of 

the § 172,101 table. 

IV 
06/24/2010 09:46 FAX 2024935142 FAA 

^ QMS li020/028 

SERVED FEBRUARY 10,2009 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

FEB \ I 2009 

MOLE-MASTER SERVICES CORPORATiq^ARIMG DOCKET 

DOCKET NO. CP08SO0012 

(Civil Penalty Action) 

DMS NO. FAA-2008-0691 

INITIAL DECISION ASSESSING 

CIVIL PENALTY OF S25,000 

Mole-Master Services Corporation, the Respondent in this case, is a 

business headquartered in Marietta, Ohio that performs cleaning and repair 

services for ownei-s and operators of dry storage facilities such as grain silos. 

It has been accused by the Complainant, the Federal Aviation 

Administration (FAA), of violating the Department's Hazardous Materials 

Regulations (HMR) by tendering to United Parcel Service (UPS) for air 

transportation a cardboard box containing nine eleven-ounce tubes of Black 

Lap Sealant, a box that was not labeled, paclcaged, marked or identified as 

containing hazardous materials and that was not accompanied by the 

requisite shipping papers or emergency response information. The FAA's 

complaint sought a civil penalty of $30,000. In the complaint, the FAA 

identified 17 separate violations of the HMR that Mole-Master was alleged 

to have committed. 

Mole-Master filed an answer, generally denying that it had committed 

the violations knowingly and demanded a hearing. In its answer, and at the 

hearing, Mole-Master never seriously contested the FAA's position that the 

Black-Lap Sealant had been correctly classified as a hazardous material. A 

hearing was held before me in Louisville, Kentucky on January 29,2009. 

Both parties were represented by counsel, and the testimony of two 
06/24/2010 08:47 FAX 2024335142 FAA 

witnesses was presented. At the conclusion of the testimony, both parties 

elected to make an oral presentation in lieu of post-hearing briefs. The 

Complainant offered for the record seven documentary exhibits (labeled C-l 

through C-7), all of which were received in evidence. The Respondent 

identified a single docianentary exhibit but withdrew it and declined to offer 

it, or any other document, for the record. 

The FAA's witness was-Sp«eial Agent Beverley Farris, a Hazardous 

Materials Specialist in the agency's Louisville. Kentucky office. On 

February 14, 2007, she received a Hazardous Materials Incident Report from 

a UPS employee in the carrier's Louisville sorting facility.' The report 

indicated that a package containing "adhesives" had been opened and found 

to contain undeclared hazardous materials. See Exh. C-l AT 1. On February 

22, 2007, Ms. Farris went to the UPS facility and was shown the box in 

question. The cardboard container had been wet, reducing its structural 

integrity. This prompted the UPS personnel to open it in order to ascertain 

whether the source of the liquid was inside the box. It was being held in a 

special room where UPS kept questionable packages. Inside the box were 

nine 11-ounce tubes of Black Lap sealant inside a clear plastic bag. The 

mbes had been labeled by their manufacturer with a warning to the effect 

that the sealant and its vapor were both flammable. The box itself bore a 

label indicating it had been shipped by the Respondent to a Mole-Master 

branch office located in Moscow Mills, Missotiri with instructions to convey 

it by "Next-Day Air.'* Documents furnished by UPS indicated that the box 

had traveled by ground transportation from the Mole-Ma-ster facility in 

Marietta, Ohio to the UPS sorting station in Louisville. 

There were no hazardous materials markings or labels on the package 

and no shipper's declaration or other hazardous material documentation 

accompanying the shipment. Emergency response information was also 

absent. See Exh. C-2. Ms. Farris took photographs of the package and its 

contents. They are in the record as Exh. C-3, A Material Safety Data Sheet 

(MSDS) for the Lap Sealant was obtained fi-om UPS, An identical MSDS as 

later provided by the Respondent and sent to the FAA. The MSDS indicates 

that the material is hazardous both in contact with human skin or eyes or as 

inhaled or ingested and because it is extremely flammable. The MSDS also 

states that the U.S. Department of Transportation has placed the material in 

' UPS, as an air carrier, is required to make such reports under die Federal Avidtion Kcgulalion.-!. See 49 

C-K.R.§ 175J1, .See.al3fi.CaiyRiitner, FAA Order No. 2009-2, Dockei>Jo.CP0GEA0009 at 4 (Jan. 12, 

2009). 
06/24/2010 09:47 FAX 2024935142 FAA 

^^'^ " DMS @l022/028 

hazard class 3, packing group II and requires a red caution "flarrunable" 

label on shipments of this substance. See Exh. C-5. Special Agent Farris 

testified — based on her seven years of experience with UPS prior to her 

employment with the FAA - that if the shipper had identified the contents as 

a flammable hazardous material, UPS would have taken special steps, such 

as loading it in a segregated manner, to ensure it would be safely 

transported. However, UPS had no idea the contents were hazardous 

because Mole-Master did not provide that information. 

Ms. Farris identified the Respondent's answer to the Letter of 

Investigation one of her colleagues had sent to the Respondent (Exh, C-l 0), 

In that response, the Respondent said that it had "taken the necessary actions 

to see tliat this will not happen again. Please accept our apologies for any 

inconvenience this may have caused." Id fhc letter also addressed the 

safety training that had been provided to Mole-Master employees, training 

that Agent Farris testified did not meet DOT requirements. 

Ms, Farris sponsored a copy of Appendix C to the FAA's Order No. 

2150.3B (Exh. C-7). This document provides guidance on how civil 

penalties should be developed in cases of violations of the HMR, According 

to Ms, FairiSj these violations fell under item IT on the matrix (Figure C-l at 

p. C-l2) as an "Undeclared Shipment Within Hazmat Quantity Limitations." 

There were, she said, six categories of violations committed by the 

Respondent: (t) shipping papers; (2) labels; (3) markings; (4) packaging; (5) 

training; and (6) emergency response information. The violations, she said, 

fell into the "moderate" range, Le^, a Category B material, prepared by an 

alleged violator with no history of prior violations. As of the date of Ms. 

Farris' report to her main office in Atlanta, Mole-Master had not instituted a 

satisfactory program to train its employees in the proper handling of 

hazardous materials intended for transportation. Using the Figure C- \ 

matrix in Order No. 2150.3B, Special Agent Farris categofized Mole-Master 

as a business entity that did not use or handle hazardous materials in the 

course of its business (Column B) ^ and thereby derived a penalty range of 

$1,500 - $8,200 for each of the six categories of violations, According to 

her testimony, she determined that in light of the "moderate" character of the 

violations, the applicable penalty should rest in the middle of that range, ie^ 

S4,850 per violation. For six violations, the total penally would amount to 

$29,100, a figure which, it appeared, the FAA "rounded" up to $30,00Q, 

' This finding wais based on Respondent's reply to the Letter of fnvesugatioti. 
06/24/201 0 09:4 7 FAX 2024935142 FAA 

* DMS g|023/02 8 

The sole witness for Mole-Master was David Lang, its General 

Manager. According to his testimony, the Respondent has 35-40 employees, 

many of whom are on the road servicing job sites, and it had about the same 

number when the incident in question took place. Respondent had 

approximately $4 million in amiual sales at that time; its profit margin was 

in the range of six to eight percent before taxes, Mr. Lang said. 

Mr. Lang testified that the Respondent generally does not use the 

Black Lap Sealant in its work. Instead, when sealant is required, the 

company uses a silicon-based substance that is not classified as a hazardous 

material. In this instance, however, the Respondent's field office in 

Missouri was installing a silo roof opening and needed a weather-proof 

sealant. A neighboring company in the same building where Mole-Master 

was headquartered suggested that Black Lap was the product needed and 

sold the nine tubes of Black Lap to the Respondent. One of the 

Respondent's employees, a sliop technician and machinist named Jamie 

Francis, placed the tubes of Black Lap into a box of non-hazardous 

components being sent to the Missouri office. Mr. Lang professed ignorance 

as to whether the package or its contents ever reached their intended 

destination. Mr. Francis, said witness Lang, did not know that the adhesive 

was classified as a hazardous material; il can be purchased at any hardware 

store, he noted, and hence the violations were not committed "knowingly," 

The company had never previously been accused of violating a Department 

of Transportation regulation, Mr. Lang testified, and its trucking fleet had 

been rated "Satisfactory" by the Department's Federal Motor Carrier Safety 

Administration. 

Mr. Lang testified that in 2008, the Respondent contracted for, and 

held, a two-day training session, led. by an outside consultant, in complitince 

with the HMR. All headquarters shop and office employees were required 

to take the training program, which was held in September 2008. 

Certificates of training were issued, although none was presented for the 

record. Nor was a copy of the course curriculum offered as an exhibit. 

According to Mr. Lang, the company has now hired or designated a safety 

manager. A Mr. Smithburger has been given responsibility for compliance 

with DOT regulations. A new employee with military experience in 

handling hazardous materials has been hired. 
06/24/201 0 09:4 7 FAX 202493514 2 FAA i QMS il024/028 

At the outset, it seems apparent that the Complainant has sustained its 

burden of proving that the Respondent committed violations of the HMR 

that render Mole-Master liable for a civil penalty. The fact that Ms, Farris 

did not personally see the package tendered to UPS or inspect it when it v/as 

first opened does not detract fi-om the weight of the uncontested facts as to 

which she was a competent witness. The package in question bore the 

Respondent's fingerprints in ample measure, It carried a label indicating 

that it had been tendered by Mole-Master to UPS, an air carrier, for 

transportation by "Next-Day Air." There is no evidence that the contents of 

the package had been tampered with by UPS or anyone else. The 

Respondent in its response to the LOI did not deny that its employees had 

placed nine tubes of a hazardous material in the box for transportation by air 

without marking or labeling the box or its accompanying shipping papers to 

alert UPS and its employees (including those who were to load and fly the 

aircraft) to the fact that hazardous materials originatmg with Mole-Master 

were to be placed aboard and flown in an aircrafl in domestic air commerce. 

The Respondent is a corporation. Consequently, it can act only through its 

officers and employees. Their transgressions must, therefore, be attributed 

to the company. See Westair Commuter Airlines, Inc.. FAA Order No. 93-

18 at 2 (June 9, 1993); USAir. Inc., FAA Order No. 92-48 (July 22, 1992). 

The fact that the shipment traveled by ground to the sorting facilit)^ 

and was never loaded onto an aircraft is iirelevant. The Respondent's act of 

offering for transportation in commerce is sufficient to require Molc-Ma^iteito comply with the HMR- See NL Industries v. Department of 

Transportation, 901 F.2d 141 (D.C. Cir. 1990); 49 C.F.R, § I71,2(b). 

It is well-settled that the scienter needed to prove a violation of the 

HMR consists merely of knowledge of the character of the substance that is 

being tendered for transportafion. See 49 U.S.C. § 5123(a)(1). See also 

United States v. Int'l Minerals & Chem.. 402 U.S. 558, 564-65 (1971). 

Knowledge of the fact tliat tlie substance is classified as a hazardous material 

need not be established and is, indeed, irrelevant. Aero Continents S.A., 

FAA Order No. 2003-8 at 14 n.22 (Sept. 12, 2003); Scott H. Smalling. FAA 

Order No. 1994-31 at 6-7 (Oct. 5, 1994); TCljCorp., FAA Order No. 1992-

77 at 8 (Dec. 22, 1992) (noting that the administrative law judge has 

"concluded that Respondent knowingly violated the alleged sections of tlie 

HMR because Respondent knew that PAP was a flammable Hquid). Mr. 

Francis knew what he was putting into the box for shipment to the 
06/24/201 0 09:4 7 FAX 2024935142 FAA + DMS 2)025/02 8 

company's field office. So far as the evidence shows, he was not under the 

illusion that he was shipping something other than Black Lap Sealant. 

So I find that the Respondent committed the violations with which it 

was charged in the FAA's complaint,^ did .';o knowingly and is liable for a 

civil penalty under 49 U.S.C. § 5123(a). 

Tliis brings us to the question of the amount of the civU penalty for 

which the Respondent should be held liable. I find that Special Agent Farris 

accurately applied the rules in FAA Order No, 2150.3B, Appendix C to 

calculate the appropriate civil penalty for Mole-Master's violations of the 

HMR at the time she made her recommendation to the agency's Atlanta 

office. The upward "rounding" adjustment that apparently took place after 

her report was rendered is disapproved, however, on the ground that it was 

baseless so far as this record shows, litis leaves us with a tentative figure of 

$29,100. Order No. 2150-3B does allow adjustment of that amount to take 

account of specified matters in mitigation, See, e.g.. Order No. 2150,3B, 

para, 3.c at p, B-2 ("Note that the middle of each recommended sanction 

range would be for a single violation without aggravating or mitigating 

factors.") Some of these factors have been cited by the Respondent during 

its counsel's opening and closing arguments. As we have seen, however, the 

Respondent has placed on the record little or no "hard" evidence to support 

its position and upon which one could rely to reduce the penalty in any 

significant way. Arguments of counsel arc not evidence. See Delaware 

Skvwavs. LLC. FAA Order No. 2005-6 at 6 (Mar. 18,2005); Watts Agric. 

Aviation, Inc., FAA Order No. 1991-8 at 13-14 (Apr. 11, 1991), pet, for 

review denied 977 F.2d 594 (9* Cir. 1992). 

The statute, 49 U.S.C. § 5123(c), provides that the FAA must consider 

the Respondent's ability to remain in business and, what may amotint to the 

same thing, tlie Respondent's ability to pay the penalty tliat otherwise would 

be merited. But before the Administrator can consider these factors, 

someone must supply the evidence upon which such consideration would be 

based. It is well-established that the burden of coming forward with such 

evidence rests upon the Respondent. Sec 14 C.F.R. § 13.224(c). It is 

equally well-established that to be successful the Respondent cannot rest 

^ Except for the allegation that the adhesive leaked while in transit. Counsel for the FAA made an oral 

molion at the hearing to strike the aliegatjon of leakage from the complaint, I gitmted tlie motion, Ms. 

Farris teatified that Icukage of the commodity into the environment was not a factor in urriving al the 

FAA's claim for a S30,000 civj] penalty 

kirn 
06/24/2010 09:47 FAX 2024935142 FAA * DMS 2)026/029 

Upon mere generalizations of the type that formed much of Mr. Lang's 

testimony. Instead, the Respondent must come forward with audited 

financial statements and other data showing its financial position in detail. 

Mole-Master did none of this. It contented itself with simply the general 

argument that it was a small business and, hence, should qualify for special 

treatment. That is not sufficient. As Order No. 2150.3B plainly states, 

"[i]he FAA does not reduce or waive the penalty of an alleged violator 

solely because il is a small business entity." Id^ at App. C, para. 5c. 

It is also important to bear in mind that violations of the HMR fall into 

a special category. Major catastrophes and significant loss of life may occur 

because seemingly iimocuous household items are placed in the stream of air 

commerce without adequate warning to the carrier, its employees or 

emergency rescue persormel. As the Administrator has said, "hidden 

shipments pose a special danger." Envirosolvc, Inc., FAA Order No, 2006-2 

(February 7, 2006) at 14. Undeclared shipments, such as the one under 

consideration here, are especially dangerous. See Seven's Paint and 

Wallpaper Co., FAA Order No, 2001-6 at 9 (May 16, 2001); Phillips 

Building Supplv. FAA Order No. 2000-20 at 11 (Aug. 11, 2000); Tovota 

Motor Sales. USA. Inc., FAA Order No. 1994-28 at 13 (Sept. 30, 1994). 

The garden-variety adhesive containers, nine of which the Respondent 

tendered to UPS, contained a flammable substance that would have been 

transformed into a powerful accelerant if a fire had broken out in the cargo 

compartment of the aircraft, The FAA's mission is to ensure that such 

mishaps do not occur and, if by mischance they do, to reduce the threat to 

life and limb to a minimum. 

In this context, only one matter turns in Mole-Master's favor. That is 

its investment in better training in hazardous materials transportation for its 

headquarters shop, management and clerical personnel. There is ample 

precedent for reducing the amount of a civil penalty to reflect the alleged 

violator's investment in better training for its employees who may need to 

handle hazardous materials in the course of their duties. See Interstate 

Chemical Co.. FAA Order No. 2002-29 at 18 (Dec. 6, 2002); Tovota Motor 

Sales. FAA Order No. 1994-28 at 10-11; TCI Corp, FAA Order No, 1992-77 

at 21-22.. In his closing argument, the FAA's attorney indicated that, in his 

view, Mole-Master made its investment in training rather late in the day - in 

September 2008, a year and seven months after the violations took place. It 

is also true that Mr. Lang's rather sketchy description of the training effort 
06/24/201 0 09:4 8 FAX 2024935142 FAA ^ DMS @|027/028 

left a great deal of doubt about how thorough it was, what subjects were 

taught and what were the qualifications of those who taught the course. 

All of this is relevant, of course, but the fact remains that the 

Respondent did make the effort to remedy the fundamental cause of the 

violations: ignorance and carelessness on the part of those employees 

responsible for shipping materials via an air carrier. Taking this factor into 

account, I have concluded that a reduction in the penalty fi-om $29,100 to 

$25,000 is called for. 

In consideration of the foregoing, IT IS ORDERED, subject to appeal 

to the Administrator a^ provided in section 13.233 of the Rules of Practice 

and Procedure, 14 C.F.R, § 13.233, that1. Respondent Mole-Master Services Corporation is liable to the 

United States of America as represented by the Federal 

Aviation Administration for a civil penalty in the amotint of 

twenty-five thousand dollars ($25,000.00); and 

2- Respondent Mole-Master Services Corporation shall pay the 

amotmt of the civil, penalty for which it has been held liable 

herein to the Federal Aviation Administration forthwith. 

i^^Ui^ 

Isaac D. Benkin 

Administrative Law Judge 

Attachment-Service List 

(Note: This decision may be appealed to the Administnitor of the FAA. The Noiticc 

of Appeal mast be filed aof later than 10 days after service of this decision. The 

appeal must be perfected with a written brief or memorandum not later than 50 

days after service of this decision. The Notice of Appeal and brief or memorandum 

mast either be mailed to the Federal Aviation Administration, Wilbur Wright 

Building, 800 Independence Avenue, S.W., Washington, D.C. 20591, Attention; 

Hearing Docket Clerk or delivered personally or via expedited courier service to the 

Federal Aviation Administration, 600 Independence Ave., S.W. Washington^ D.C. 

20591, Attention: Hearing Docket Clerk, AGC-430. A copy of the Notice of Appeal 
06/24/201 0 09:4 8 FAX 2024935142 FAA + DMS 0028/02 8 

and brief or memorandum should also be sent to counsel for the FAA in this 

proceeding.]