04/:l3/2Pll 09:30 7B123B7055 

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U5. Department 

of Tronapoftotton 

fedsror Avfoffon 

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Mew England Region 

Offbe of [he RagppDBl Counul 

FAA WE REGIONAL GNSL PAGE 62/16 

:^RTMtNlOl-

.SPORTATICN 

^ 20 'J; 4 

12 New En^lancf Ei«cutive Psrtf 

Bunin?ton, MA 01803-5209 

Telephone; (781)238-7043 

FAX; frai)230-7D93 

April 19.2011 

SENT VIA FACSIMILE AND U.S. FIRST C^ASS UAlL 

Hearing Docket 

Federal Aviation Administration 

SOO Independence Avenue. SW 

Wilbur Wright Building, Suite 2W1OO0 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Tn the Matter of CaroJe M. Berotte Joseph. Ph.D. 

Docket No. C?-

FAACaseNo. 2OnNE7OO058 

Dear Sir or Madam; 

Enclosed are the original and one copy of the Motion to Dismiss Respondent's Request for 

Hearing in the above-referenced proceeding. 

Please serve all documents in this matter on ihe undersigned FAA attorney at 12 New England 

Executive Park, ANE-7» Burlington, Massachusetts 01S03. 

SirtcercJy, 

MATTHEW J. ZAPPALA 

Enclosures 

cc; Carole M. Berotte Joseph. PhD. 

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04/.19/2011 03:30 7312337055 FftA NE REGICWAL CHSL PAGE 33/16 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

CAROLE M. BEROTTE JOSEPH, Ph.D. 

FAADocVctNo.CPDaied: April 19,2011 

FAA Case # 2011NE700058 

Hazardous Materials 

MOTION TO DISMISS RESPONDENT'S REQUEST FOR HEARING 

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

hereby files Complainant's Motion to Dismiss Respondent's Request for Hearing, 

pursuant to §§ 13.20S(a) and \ 3.21S(f!)(2)(i) of the Rules of Practice in Federal Aviation 

Administration Ctvil Penalty Actions ("Rules of Practice"), and in support thereof states 

the following: 

L On February 14^ 2011, the Complainant issued a Notice of Proposed Civil Penalty to 

Respondent in the amount of SI ,000 based upon violating several Department of 

Transportation Hazardous Material Regulatioris (Title 49 of the Code of Federal 

Regulations}-

2. Enclosed with the Notice of Proposed Civil Penalty was information concerning 

Respondent's options to respond. 

3. The Respondent did not respond to the Notice of Proposed Civil Penalty. 

4. On March 23, 2011, after still not receiving a response to the Notice of Proposed 

Civil Penalty, the Complainant issued a Final Notice of Proposed Civil Penalty. (See 

Final Notice of Proposed Civil Penalty attached hereto as "Exhibit 1"). 

5- On page 4 of the March 23. 2011, Final Notice of Proposed Civil Penalty, in 

accordance with §13.16(gX2) of the Rules of Practice, Respondent was specifically 

advised the following (emphasis added): 

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"Urjiessyou mail or personally deliver, in yvriting, your request for a hearing in ikis 

matter on or before 15 days afttryou receive this final notice, we •will issue an 

Ord^r Assessing Civil Penalty andyov M-UI /icrve no further right to a hearing. " 

6. The March 23,2011 Final Notice of Proposod Civil Penalty was sent to Respondent 

via First Class US. Mail and Certified Mail, retvmv-receipt requested. 

7. According to the United States Postal Service, the Certified mail was delivered on 

March 2$, 1011. (See USPS Track and Confirm attached hereto as "Exhibit 2^. 

S, Based on the date of delivery, and in accordance with §13.16(g)(2) of the Rules of 

Practicej Respondent could request a hearing no later than April 12,2011. 

9. Responde^l's^cqucstforhearing^^'as postmarked April 15,2011 and, additionallyj 

Respondent's request forbearing specificaHy states. "Sertt via Friority Mail IS Aprii 

2011.'" (See photocopy of envelope, attached hereto as "Exhibit 3"). 

WHEREFOR£» the Complainant respectfully requests dismissal of Respondent's request 

for a hearing. 

Respectfully sx\bnnittcd, 

MAtTHE W J.^APPALA 

Attorney 

Federal Aviation Administration 

Office of the Regional Counsel 

12 New England Executive Park 

Burlington. Massachusetts 01803-5299 

TEL: (781)238-7046 

FAX; ('78l)23»-7055 

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Rd/19/2011 09:30 7812337055 FAA NE REGIONAL CNSL PAGE 05^16 

EXHIBIT 1 

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34/19/2011 09:36 79123B7055 FAA NE RESIONAL CMSL PAGE 0&/16 

O 

W, Depomrrent ^^j^j^ ^ ^ ^ Chief Counsel 12 Nev England BteoJtiwe P*rtc 

of ffansportattcr NCW England Ragten Burtingicn, MA Oieos 

Federal AvJaf/en 

AdmlnWroFHon 

March 23, 2011 

CERTIFIED MAIL > RETURN RECEIPT REQUESTED & HRST CLASS U.S.MAIL 

7008 0500 0000 8386 9224 

Carole M. Berotte Joseph, Ph. D. 

8 Howe Street 

Ashland, MA 01721 

CaseNo.2011NE700058 

FINAL ?JOTICE OF PROPOSED CIVIL PENALTY 

You were advised through a Notice of Proposed Civil Penalty, dated February 14.2011, that 

the FAA proposed to assess a civil penalty in the amount of S1,000. Wc have received no 

response to that Notice. 

After considering all the evidence in this matter, it appears thait: 

1. On or about December 23,2010 you were a ticl;eted passenger on Delta Airlines 

Flight 1383, a passenger-carrying flight, departing from Logan International Airport 

in Boston, Massachmetts. 

2. On or about December 23,2010, you offered checked baggage for transportation in 

air commerce on Delta Airlines Flight 1383» including bag tag #DL967062. 

3. Before the above-descdbtsd baggage had been transported via aircraft. Transportation 

Security Administratioii (TSA) personnel at Logan International Airport initiated an 

iiispectioii of the baggiage and observed that it contained one (1) container of 

Hydrogen Peroxide, Food Gfrade h2o2. The container was approximately 1 -liter. 

4. The above-referenced containers of Hydrogen Peroxide (the "shipment") is classified 

as hazardous materials under section 172.101 of the Department of Transportation 

Hazardous Materials Regulations (HMR) (49 C.F.R. Parts 171 st seg.). 

5. The proper shipping name for the container of Hydrogen Peroxide is Bydragen, 

peroxide, aqueous solutions wUh not less than 20percent bsa not mere than 40 

percent hydrogen peroxide. It is in Hazard Class 5.1 (oxidizer). Packing Group 11, 

and has an assigned identification number of UN2014 when offered for 

transpoitation in air commerce. 

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6. At all times mentioned herein, the above-referesced shipnaent was not accompanied 

by a Shippcr*5 Certification or Declaration for Dangerous Goods. 

7. You offered the above-described shipment of hazardous material for transportation 

by air when the material was not properly classed, described, packaged, marked, 

labeled, or in the proper condition for shipment. 

8. You offered the above-described shipment of hazardous material for transportation 

by air when the shipping papers did not contain the proper shipping name prescribed 

for the hazardous material, ihe hazard class or division prescribed for the hazardous 

material, the assigned identification number of the hazardous material, and the 

packing group in Roman numerals, as designated for the hazardous material, all 

shown in sequence witlt no additional information interspersed. 

9. You offered the above-described shipment of hazardous material for transportation 

by air without placing the total quantity of the material covered by the hazardous 

materials description, on the shipping paper before or after, or both before and after, 

the description. 

] 0. You offered the above-described shipment of hazardous material to an aiiciail 

operator for transportation by air and did not provide two (2) copies of the required 

shipper's certitication, 

11. You offered the above-described shipment of hazardous material for transportation 

by air when the packf^e containing ^ e hazardous material was not marked with the 

proper shippmg name and identification numbers, preceded by "UN" or "N A" as 

appropriate, of the hazardous materia] contained therein, and without the required 

markings being durable, in English and printed on or a£&xed to the surface of the 

package, or on a label, tag or sign 

12. You ofiEered the above-described shipment of hazardous materia) for transpoitation 

by air without making emergency response information immediately available for 

use at all times the hazardous material was present. 

13. Based upon the foregoing facts and circumstances, you violated the following 

Department of Tiansportation Hazardous Materials Regulations (Title 49 of the Code 

of Federal Regulations): 

a. Section 171.2(e) (49 C.F.R. § 171.2(e)), in that you offered hazardous 

material for transportation in commerce when the material was not properly 

classed, described, packaged, marked, labeled, and in the condition jbr 

shipment required by the HMR (49 C.F.R. parts 171, ^ seg.). 

b. Section 172.200(a) (49 C JF.R. §§ 172.200(a)), in that you offered hazardous 

material for transportation without properly describing the material on the 

shipping paper. 

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c. Section 172.202(a)(3) (49 C.F,R. § 172.202(aXl)), in that you offered 

hazardous material for transportation when the required hazardous material 

description on the shipping paper did not include the proper identification 

number prescribed for the material in Column (4) gf the §172.101 table (49 

C.F.R.§ 172-101)-

d. Section 172.202(aX2) (49 C.F.R. § 172.202(aX2)), in that you offered 

hazardous material for transportatioQ when the required hazardous material 

description on the shipping paper did not include tiie proper shipping name 

pnsscribed for the material in Column (2) of the §172.101 table (49 C.K.R. § 

I72J01). 

e. Section 172.202(a)(3) (49 C.F.R. § 172.202(aX3)). inthatyou offered 

hazardous material for transportation when the required hazardous material 

description on the shipping p^e r did not include the hazard class or division 

number prescribed for the material, as sho\vn in Column (3) of the §172.101 

tablc(49C.F.R.§ 172,101). 

f. Section 172,202(aX4) (49 C.F.R- § 172.202(aX4)), in that you offered 

hazardous material for transportation when the required hazardous material 

description on the shipping paper did not include tiie packing group, in 

Roman nizmerals, as designated for the material in Column (5) of the 

§172.101 iaWe(49C.F.R. § 172.101). 

g. Section 172^02(c) (49 C.F.R. § 172.202(c)), in that you offered hazardous 

material for transportation v/heo the total quantity of the material covered by 

the dcifcription did not appear before or after, or boih before and after, the 

description required by subpart C of the HMR. (49 C,F,R. §§ 172.200 et 

seg,). 

h. Sections 172.204(a} or (c)(I) (49 C.F.R. §§ 172.204(a) or (c)(l)), in that you 

offered hazardous material for transportation without printing the required 

certiticaticn on the shipping paper as staced in § 172.204(a)(1) or (aX2) (49 

C.F.R. § 172.204(a)(1) or (a)(2)). 

i. Section 172.204(c)(2) (49 CF.R. § 172,204(c)(2)), in that you offered 

hazardous mat^al to an aircraft operator for transportation by air and did not 

provide two copies of the required shipper's certification. 

j . Sections 172.300(3) and 172.301(a) (49 C.F.R. §§ 172.300(a) and 

172.301(a)), in that you offered hazardous material for transportation when 

the package was not marked with the proper shipping name and identification 

number for its conumts. 

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k. Section 172,304(aXl) (49 CRR. § 172.304(aXl», m that you offered 

hazardous maxeri^ for transpcfftation when liie required markings were not 

durable, in English and printed on or affixed to the surface of the package or 

on a label, tag or sign. 

1. Section 172.400(a) (49 C.F.R. § 172.400(a)), in that you offered a package 

containing hazardous material for transporution by air when the package was 

not properly labeled as specified in Section 172.101 (49CJ^Jt. | 172.101). 

m. Section 372.600(cXl>(49 C.F.R. § 172.600(c)(l)X in that you offered a 

package containing hazardous material for tramportation by air without 

making cmeTgency response information immediately available for use ai all 

times the hazardous material was present. 

n. Section 173.1(b) (49 C.F.R. § 173.1(b)), in that you offered shipmetrts of 

hazardous materials for transportation by air witiiout properly preparing the 

shipment. 

In accordance with Section 5123(a) of Chapter 51, Title 49 of the United States Code 

of Tj^nspoitation, [49 U.S.C. § 5123(a)l, Carole M. Berotte Joseph is liable for a 

civil penalty of not less than $250 ($450 for training violations), nor greater than 

$50,000 (or S100,000 for violations resulting in death, serious illness, severe ic«ury 

to ariy person, or substamial destruction of property), for each violation of the 

regulations. By reason of the foregoing ^t s and circiunstances we propose to 

assess a civil penalty for all of the violations noted in the total amoitnt of $1,000, 

Unless you mail or personally deliver, in writing, your request for a hearing in this matter, 

on or before 15 days after you receive this final notice, we will issue an Order Assessing 

Civil Penalty and you will have no further right to a heating. If you do not submit a written 

request for a hearing, you must pay the proposed civil penalty. 

Your request for a hearing must be made to the Hearing Docket, Federal Aviation 

AdininistTBtion, by following the appropriate mailing procedures: For Hand-carried 

personal detrvery or expedited deliveries such as UTS or Federal Express; Federal 

Aviation Administration, GOO Independence Avenue, S.W., Wilbur Wright Building - Suite 

2W10OO, Washington, D.C. 20591, Attetition: Hearing Docket Clerk, AOC-430. - AU 

envelopetf and packages sent by UwS. ^f ail: Federal Aviation Admimstration, «00 

Independence Avenue, S.W., Wilbur Wright Building - Suite 2W1000, Washington, V C 

20591; Attention: Hearing Docket Clerk, A(jC-*30. Your request must be dated and signed, 

in accordance with 14 CFR §13.16, sent to you with the Notice of Proposed Civil Penalty. 

Please be odvtsed that due to security concerns, rruiil sent to the FAA's Washington 

Headquarters by U.S. Mail may be delayed ttp to several weeks before delivery. 

Regardless of liow you seud it, however, yon linust mail a copy of your request for a 

hcarfag to the FAA attorney tumdllug this case at the address indicated below. 

flLo/eoog) SHQ VVi 

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0^/19/2011 y9:3B 7fil23B7055 FAA NE REGIONAL CNSL PAGE 10/16 

5 

You may pay the proposed penalty by submitting a certified check or money order, payable 

to the "Federal Avjalion Administration," to the FAA, Mike Monroney Aeronautical Center, 

AMZ-350, P.O. Box 25770, Oklahoma City, OK 73125-4915 

In the alternative, you may pay yoxir civil penalty with a credit card or a bank account debit 

over the Internet. To pay electronically, visit the web site at https://www.nav,eov. Under 

the Search Public'Forms option type in "FNE-FINE1-" Click on "FAA Civil Penalty 

Payments - New England Region." You must then complete the requested information and 

click "Continue." You will then be directed to enter your credit card or bank account debit 

information. To use the bank account debit you will need your bank routing number, 

account number, and cheek number. 

Please direct all communications in this matter to Marthew J. Zappala, Office of the 

Regional Counsel, ANE-7, Federal Aviation Administration, 12 New England 

Executive Park, Burlington, MA 01S03, telephone number (781) 238-7046. 

CHRISTOPHER POREDA 

Regional Counsel 

MATTHEW J. ZAPPALA 

FAA Attorney 

CERTIFICATE OF SERVICE 

I certify that this Final Notice of Proposed Civil Penalty has been sent this date by 

Certified Mail, return receipt requested and First Class US mail, to: 

Carole M. Berotte Joseph, Ph. D. 

« Howe Street 

Ashland, MA 0)721 

Michelle MuUarkey; Dated March 23,2011 

Paralegal/Management Program Analyst 

bcc: ANE-700 (S. Redeker) (K. ZampareIli)(copie3 emailed to them) 

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EXHIBIT 2 

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Your Item was deliverM at 9:^A em on March 2S, 2D1-T in ASHLAND, MA 

01721. ' 6a> 

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Track & Canfinn by vmalt 

G«t current «veot intomwtlon or updates for your item aant to yoy or others by errail. C.***^.-

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EXHIBIT 3 

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0^/19/2011 09:30 7812387t)55 FAA NE REGIONAL CNSL PAGE 1&/16 

CERTTHCATE OF SERVICE 

I hereby cettily that I sent by Facsimile and First Class M'ail the CompJainant*s 

Motion To Dismiss Respondent's Request for Hearing in the matter of FAA v. Carole M. 

Berotte Joseph. FAA Case # 2011NE70005? addressed to the following: 

Hearing Docket (original and one) 

Federal Avtation Administration 

800 Independence Avenue, SW 

Attn: Hearing Docket Clerk, A(JC-430 

Wilbur Wright Building-Suite 2W1000 

Washington, DC 20591 

Fax: (202-493-5142) 

I also hereby certiiy that I have sent by Certified Mail, Return Receipt Requested a 

copy of the foregoing addressed to: 

Carole JVf. Berotte Joseph, Ph-D. 

8 Howe Street 

Ashland. MA 01721 

lartce/TDated: Apriri9,20r'l 

t'aralegal/Management Program Analyst 

910/910 0 SNO ^ VVd 2tLSGSt?Z0 2 XVd S1?:5L lLOS/02/fr O