UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

IN THE MATTER OF: TRANS TIME EXPRESS Respondent Wednesday, October 26, 2016 FDMS No. FAA-2012-1260

:; 1

The teleconference convened, pursuant to notice, at 2:00 p.m. BEFORE: THE HONORABLE RONNIE A. YODER, Administrative Law Judge

(202) 234-4433 NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-4433APPEARANCES: On Behalf of the Respondent: CAMERON NIAKAN, ESQ. 10101 Grosvenor Place Suite #620 Rockville, MD 20852 (202) 276-4726 cn@Niakanlaw.com

On Behalf of the Complainant: ANDREW LAMBERT, ESQ. Enforcement Division, AGC-300 Department of Transportation Office of the Chief Counsel, FAA 800 Independence Ave, S.W. Washington, D.C. 20591

(202) 267-3357

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(202) 234-44333

1 P-R-0-C-E-E-D-I-N-G-8 2 (2:06p.m.) 3 JUDGE YODER: This is a pre-hearing 4 conference in the matter of Trans Time Express, 5 Docket Number FAA-2012-1260. And on the phone we 6 have Mr. Lambert for Complainant, and Mr. Niakan 7 for Respondent and we have a court reporter who 8 will transcribe the proceeding. 9 Gentlemen, do you want to enter your 10 appearances? First, for Complainant. 11 MR. LAMBERT: Yes, Your Honor. This 12 is Andrew Lambert. That's A-N-D-R-E-W, L-A-M-B13 E-R-T, on behalf of the Complainant, the 14 Administrator, and the FAA. 15 JUDGE YODER: Excuse me. I understood 16 what you just said but you don't really think 17 that you appear on behalf of the Administrator, 18 do you? 19 MR. LAMBERT: I'm sorry. Did I 20 misspeak, Your Honor? 21 JUDGE YODER: You said that you were 22 appearing on behalf of the Administrator of the

(202) 234-4433 NEALR. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-44334 1 FAA. 2 MR. LAMBERT: I'm sorry. I'm

-- 3 JUDGE YODER: If anyone can appear on 4 behalf of the Administrator, it is I. 5 MR. LAMBERT: On the, I 'm here on 6 behalf of the Complainant, Your Honor. 7 JUDGE YODER: Okay. That's of course 8 with the Division Office of Chief Counsel? 9 MR. LAMBERT: Yes, Your Honor. 10 JUDGE YODER: Yes, okay. It 1s perhaps 11 not known to everybody, but it's quite 12 understandable that FAA counsel from time to time 13 is confused about precisely whom they represent 14 because in many such enforcement cases they do in 15 fact represent the Administrator. Not before us 16 but when they're at NTSB they represent the 17 Administrator. 18 So it's a confusing situation but in 19 any event, Mr. Lambert does not represent the 20 Administrator in this case. Indeed it would be 21 improper for him to do so because that's the 22 reviewing authority.

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1 MR. NIAKAN: Well, that's a relief, 2 Your Honor. Your Honor, my name is Cameron 3 Niakan. I represent Trans Time Express in this 4 matter. 5 JUDGE YODER: All right, fine. Thank 6 you. There used to be a provision in the rules 7 that I had to determine the amount of time in 8 which the transcript should be provided. I'm not 9 sure whether that's still in the rule or not. Do 10 you know, Mr. Lambert? 11 MR. LAMBERT: I'm not aware of such a 12 rule. 13 JUDGE YODER: Well, in any event I'll 14 determine the 15 day transcript is necessary and 15 required for the proper conduct of the 16 proceeding. 17 A copy of the transcript automatically 18 goes to Complainant's counsel and to dockets. 19 Mr. Niakan, if you want a copy of the transcript, 20 you need to order that from the reporter or you 21 can obtain a copy from the 22 regulations.gov when it's posted.

(202) 234-4433 NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 docket at

(202) 234-44336 1 It's never entirely clear when it will 2 get posted because sometimes there is a delay 3 between the receipt of the transcript here and 4 its actual posting which I gather occurs after 5 it's transferred from the FAA docket to the DOT 6 docket section, and from there to 7 regulations.gov. 8 Now Mr. Lambert, I don't know if you 9 can do anything about expediting that process or 10 assuring that the transcript actually gets into 11 regulations.gov. 12 Is that something that you can pursue 13 with your docket section? 14 MR. LAMBERT: I can certainly walk 15 over there and ask them about it but I've never 16 had any personal involvement with getting 17 anything put onto regulations. 18 JUDGE YODER: Yes. I know it should 19 be automatic but it, in our experience of late it 20 has often been somewhat less than automatic. 21 So I just mention that, Mr. Niakan, 22 because it could result in a delay in your

(202) 234-4433 NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-44337 1 getting it if you wait to try to get it from the 2 public docket. 3 MR. NIAKAN: Yes, Your Honor. My 4 question would be, do you have to pay for this if 5 you get it? 6 JUDGE YODER: If you order it from the 7 reporter they normally require that you pay them, 8 yes. 9 MR. NIAKAN: But we can -- 10 JUDGE YODER: And that's a per page 11 charge. 12 MR. NIAKAN: Right, right. But

-- 13 JUDGE YODER: I don' t know what the 14 charge is. You'd have to talk with them about 15 that. 16 MR. NIAKAN: I see. If you get it 17 from the website it would be

-- 18 JUDGE YODER: To get it from the 19 website you just download it. 20 21 pay for it. 22

(202) 234-4433 MR. NIAKAN: We just, we don't have to

JUDGE YODER: Right.

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1 MR. NIAKAN: Okay. That's good. I'm 2 going to get the court reporter's name and 3 information if 4 JUDGE YODER: Yes. 5 MR. NIAKAN:

-- you don't mind, at the 6 end so I'll get a copy. 7 JUDGE YODER: Okay. All right. Let 8 me see. 9 MR. NIAKAN: One of these cases 10 expired in 2011, I believe. 11 JUDGE YODER: I'm sorry? 12 MR. NIAKAN: This case goes back to 13 2011. 14 JUDGE YODER: I think that's correct. 15 Yes. Now the motions to correct the transcript 16 are supposed to be filed within 30 days after the 17 pre-hearing conference. So if you don't get a 18 transcript within that time then you will need to 19 apply for additional time. 20 MR. NIAKAN: Yes. 21 JUDGE YODER: Okay. Now this 22 proceeding arises from a Notice of Civil Penalty,

(202) 234-4433 NEALR. GROSS COURT REPORTERSANOTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-44339 1 served November 7, 2012, and then a Request for a 2 Hearing November 18, 2012, and a complaint 3 December 10, 2012. 4 The complaint alleges violations of 5 various regulations because of a hazardous 6 material shipment which didn't comply allegedly 7 with labeling and packaging and other 8 requirements for sending hazardous materials by 9 air. And it seeks a civil penalty in the amount 10 of $33,950. 11 Mr. Lambert, I know that there are 22 12 regulations allegedly involved, but can you tell 13 me how many alleged violations there are on what 14 you calculated this proposed penalty? 15 MR. LAMBERT: I believe when using the 16 Sanction Guidelines there were six sort of core 17 categories of violations, and that the 22 or 18 however many individual ones fall within those 19 six. 20 JUDGE YODER: Well, I trust you will 21 appreciate that we're going to need more 22 specificity than that?

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1 MR. LAMBERT: Oh, sure. I wasn't 2 sure. 3 JUDGE YODER: You said six general 4 reg, six general categories, but how many 5 individual violations, do you know? 6 MR. LAMBERT: I'm sorry, Your Honor, 7 I'm a little confused on, how many violations? 8 JUDGE YODER: Yes, sir. The penalties 9 are normally assessed for individual violations. 10 The question is, how many violations are you 11 seeking a penalty for? 12 MR. LAMBERT: I'm trying to get there 13 in my materials. There shipment itself failed 14 under the first violation being the

-- 15 JUDGE YODER: Well, that's all right. 16 I don't want you to try to make this up as we go 17 along. You're going to need to submit something 18 that identifies the number of violations you're 19 seeking penalties for, and what penalty you're 20 seeking for them, and how the penalty that you've 21 proposed to collect has been calculated. 22

(202) 234-4433 MR. LAMBERT: Yes, Your Honor, I know

NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234·443311 1 I •ve seen that material so I •m just trying to 2 locate it here in this stack. 3 JUDGE YODER: Right. Well, if you 4 come up with it as we go along, we have to have 5 you provide it now. Failing that you'll need to 6 provide it after the pre-hearing. 7 MR. LAMBERT: Of course, Your Honor. 8 JUDGE YODER: Now this involved 9 allegedly ten 22 ounce bottles of Master Jack 10 drain opener. And I see in the complaint that 11 it's alleged that this is basically sulfuric 12 acid. Is that your contention? 13 MR. NIAKAN: I will know the chemicals 14 15 JUDGE YODER: Oh, no, no. I'm asking 16 the Complainant. 17 MR. LAMBERT: Oh, according to the 18 MSDS, the safety data sheet, I'm no chemist, Your 19 Honor, but I believe it's something along those 20 lines. 21 JUDGE YODER: Well, something along 22 those lines isn't going to get us very far down

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1 the road. As a matter of fact, there are two 2 references in the DB-MSDS drain, in that document 3 that refers to it as sodium hypochlorite. 4 I don't know that there's any 5 confusion there but it seems those documents were 6 generated by FedEx. And I think sodium hydroxide 7 is, hypochlorite, is also a hazardous material. 8 But I just want you to be aware of the fact that 9 I received documents which pointed two different 10 directions on precisely what it was. 11 MR. LAMBERT: Yes, Your Honor. I'm 12 sorry. I was referring to the material safety 13 data sheet provided by the manufacturer and it 14 does point to sulfuric acid. 15 I'm not remembering the other chemical 16 that you just referred to but I'll have to refer 17 to that. But I am seeing the sulfuric acid. 18 JUDGE YODER: Well, those references 19 to sodium hypochlorite are in the incident report 20 of ISPA (phonetic). I don't know who filled that 21 out. It might have been FedEx but I'm not sure. 22 In any event that was one of the documents you

(202} 234·4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443313 1 sent me. 2 And then there is one by FedEx which 3 is titled, Undeclared Dangerous Goods Shipment 4 Notification. And that one also refers to sodium 5 hypochlorite, okay? 6 MR. LAMBERT: Yes, Your Honor. 7 JUDGE YODER: All right. So that's 8 something you'll want to sort out. 9 Then let's see, when the complaint was 10 first served there was an answer filed denying a 11 good many of the allegations and in particular, 12 denying knowledge or information sufficient to 13 answer some of the allegations. 14 Later there were admissions filed in 15 response to request for admissions. And I wanted 16 to get some clarification as to what the parties 17 feel is still at issue in this case. Mr. Niakan? 18 MR. NIAKAN: Yes? 19 JUDGE YODER: Can you tell me which of 20 these allegations are still in dispute as far as 21 you know? 22

(202)234-4433 MR. NIAKAN: Your Honor, this delivery

NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443314 1 was done by a driver who no longer is employed by 2 my client. So some of these 3 JUDGE YODER: I got that from the 4 papers. That's not what I asked. Do you know 5 which of these allegations in the complaint are 6 still in dispute? 7 MR. NIAKAN: I do not, Your Honor, on 8 this. 9 JUDGE YODER: Well, are you familiar 10 with the request for admissions and the answer to 11 those requests? 12 MR. NIAKAN: I do have it in a stack 13 of papers in front of me, Your Honor. I'm just 14 going to try to get to the issue at hand. 15 JUDGE YODER: Well, let me see. Mr. 16 Lambert, do you have an answer to that question? 17 MR. LAMBERT: Your Honor, as far as I 18 can tell, I'm not sure how many of the material 19 facts are on dispute. 20 I appreciate that the driver no longer 21 works for the Respondent and that the Respondent 22 does not typically ship hazardous materials. I

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443315 1 mean, I appreciate those facts but as far as the 2 complaint and the subject facts go, I'm not sure 3 which ones are still in dispute. 4 Perhaps maybe just the amount of the 5 penalty which, I am still looking for the 6 calculation of which but directly to your 7 question, no, Your Honor. I'm not sure what the 8 Respondent is still denying given their 9 admissions to their requests. 10 JUDGE YODER: Well, it strikes me that 11 that's something that both of you should want to 12 know. Otherwise, you aren't going to know what 13 we're going to try if there's a hearing. 14 MR. NIAKAN: That's a great idea, Your 15 Honor. 16 JUDGE YODER: Was it your intention to 17 go into a hearing without knowing what was in 18 dispute? 19 MR. NIAKAN: No. 20 JUDGE YODER: At each of you. Well, 21 the whole purpose of this is to narrow the 22 issues, find out what is in dispute and see

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443316 1 whether the case can be settled or whether it 2 needs to go to a hearing. 3 And what I'm hearing told now is that 4 neither of you know what's in dispute. Let me 5 see if I can elicit some responses. 6 I know that at one point Respondent 7 indicated that it did not knowingly ship 8 hazardous materials. Do you know whether that's 9 still your contention? 10 MR. NIAKAN: I believe that's our 11 contention, Your Honor. 12 JUDGE YODER: Well, do you deny that 13 what you shipped was a hazardous material? 14 MR. NIAKAN: We probably won't deny 15 that. 16 JUDGE YODER: Do you deny that you 17 knew that what you were shipping was what you 18 were shipping? You knew what you were shipping, 19 is that right? 20 MR. NIAKAN: They knew what they were, 21 the driver did know what he was shipping. 22 Whether the driver knew that this was, falls

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443317 1 under hazardous materials is not. 2 JUDGE YODER: Now that's a question of 3 law that really doesn't matter. Knowingly, means 4 that you shipped something and you knew what you 5 were shipping. 6 It does not mean that you knew the 400 7 pages identifying all the hazardous materials 8 there are or that what you were shipping was 9 within their regulations. 10 It requires that you knew that you 11 were shipping what you were shipping. 12 MR. NIAKAN: Well

-- 13 JUDGE YODER: And if you knew that 14 then you knowingly shipped hazardous materials. 15 MR. NIAKAN: I can't speak for the 16 driver, Your Honor, but my 17 JUDGE YODER: I'm not talking about 18 the driver, I'm talking about the Respondent, 19 generally. If the Respondent knew what it was 20 shipping then he knowingly shipped it. 21 MR. NIAKAN: Your Honor, the 22 Respondent in this case is my client who is the

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1 manager of this company. So she would have came 2 across this material. The driver

-- 3 JUDGE YODER: It's the company that is 4 the Respondent, not your manager. 5 MR. NIAKAN: Right. 6 JUDGE YODER: And the company is 7 liable if we find that it's liable. 8 MR. NIAKAN: Correct. 9 JUDGE YODER: Okay. 10 MR. NIAKAN: But so your question is, 11 did the company know that 12 JUDGE YODER: No, that's not the 13 question. My question is, are you contending 14 that you did not knowingly ship hazardous 15 materials. 16 And if you are, that's a question of 17 law and you're going to wind up filing a brief 18 with me supporting the contention that even 19 though you knew what it was and you knew you were 20 shipping, that it wasn't knowingly shipped. 21 And if you want to brief that you 22 might well look at William A. Luker, FAA Docket

(202) 234-4433 NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443319 1 Number CP09SW0008, an order which I issued in 2 2010 which says, the statute requires that the 3 alleged violator must have known the facts giving 4 lies to the violation. Knowledge of the law is 5 unnecessary and alleged violators are liable even 6 if they did not know they were breaking the law. 7 That's what I said in 2010. 8 MR. NIAKAN: Your Honor, would you 9 remind repeating the Case Number? CPO

-- 10 JUDGE YODER: CP09SW0008. It's got an 11 FDS number, and FDNS number. So you should be 12 able to get it off with that number which is FAA13 2009-1044. 14 MR. NIAKAN: Yes. 15 JUDGE YODER: The two other cases were 16 the same proposition. There's Riverdale Mills 17 Corp, which is FAA Order Number 2003-10 at 5, 18 that was September 12, 2003. 19 And that one cites Scott H. Smalling, 20 8-M-A-L-L-I-N-G, which is FAA Order Number 1994- 21 31 at 7, October 5, 1994. Okay? 22

(202) 234-4433 MR. NIAKAN: Yes, Your Honor.

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1 JUDGE YODER: I just don't want to see 2 us making wrong assumptions about what's at issue 3 here. And if you think this case is about 4 whether your manager knew what was happening, 5 that's not the issue. 6 And if you think, your question is 7 whether your company knew that sulfuric acid was 8 a hazardous material. That is not the issue 9 here. Are you understanding me? 10 MR. NIAKAN: Yes, Your Honor. 11 JUDGE YODER: The issue is whether you 12 in fact sent sulfuric acid in a package through 13 the air and I don't think that's really an issue. 14 You did that. DR. FOROUD: So unless you're going 15 to come up with some theory I've never seen, then 16 I don't think that's the issue in this case. Are 17 you following me? 18 MR. NIAKAN: Yes, I am, Your Honor. 19 Your Honor, we have been in negotiation with Mr. 20 Lambert regarding coming up with an agreement to 21 settle this case. 22

(202) 234-4433 JUDGE YODER: Well, that would be

NEALR. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443321 1 definitely a good idea and I saw words to that 2 effect in a letter dated January 22, 2013. 3 That's kind of slow negotiating. 4 MR. NIAKAN: Well, we just picked up 5 where we left off. 6 JUDGE YODER: Yes, I'm sure you did 7 but there's no point in negotiating about 8 something when you don't what is at issue. Do 9 you understand what I'm saying? 10 MR. NIAKAN: Yes, Your Honor. 11 JUDGE YODER: Yes, okay. And that's 12 true on both sides, not just on your side. So 13 let's move into the next question I had about 14 what is at issue. And that has to do with the 15 training. 16 There was an allegation that you did 17 not provide training concerning the proper 18 handling of hazardous materials. And your answer 19 and subsequently your response to request for 20 admissions stated that you didn't know. Well, 21 you did or you didn't. Is that still your 22 position?

(202) 234-4433 NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443322 1 MR. NIAKAN: There was some training 2 provided, Your Honor, as far as I know. And they 3 added some since this incident happened. 4 JUDGE YODER: Well, we're talking 5 about at the time of the incident. Was there 6 training with respect to hazardous materials of 7 the type that's specified in the complaint? 8 MR. NIAKAN: My understanding is, Your 9 Honor, that there was some training. I'm not 10 sure what kind of training and how comprehensive 11 it was but there was some training. 12 JUDGE YODER: Okay. If this case is 13 not settled I want you to provide a statement as 14 to what that training was. 15 And what you need to do is find that 16 out and discuss it with the Complainant to see 17 whether that is going to wind up being an issue. 18 If it is not an issue then we don't 19 need to worry about it. 20 MR. NIAKAN: I see. 21 JUDGE YODER: Do you understand what 22 I'm saying?

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443323 1 MR. NIAKAN: Yes, Your Honor. 2 JUDGE YODER: All right. Do you have 3 any information, Mr. Lambert, as to whether in 4 fact there was any training? 5 MR. LAMBERT: No, Your Honor. There 6 are the only requests for admission that were 7 neither admitted nor denied. 8 JUDGE YODER: Yes, I know. 9 MR. LAMBERT: The only further 10 information I've gotten from is just about their 11 after the fact remedial measures. 12 JUDGE YODER: Right. Can you tell me 13 how you would propose to prove that someone has 14 not done training? How do you prove this 15 negative? 16 MR. LAMBERT: I believe we would plan 17 to talk to I don't know how to pronounce the 18 name. But the manager at the time for Trans Time 19 Express. He was the one who certified those 20 responses to the request for admissions. 21 22

(202) 234-4433 JUDGE YODER: Yes. MR. LAMBERT: And establish the lack

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1 of adequate training. 2 JUDGE YODER: Well, you mean you would 3 depend on him to testify that there wasn't 4 training to prove your case? 5 MR. LAMBERT: I believe we also 6 requested that information in other discovery and 7 the notice of investigation as well as, I believe 8 some interrogatories to which no satisfactory 9 responses were given. 10 So between those answers and the 11 testimony and the lack of any other evidence, 12 yes, Your Honor. 13 14 JUDGE YODER: Well, let me see if we 15 can try to put some of that in a legal context, 16 Mr. Lambert. You understand that it's your 17 burden of proof to prove these alleged 18 violations? 19 MR. LAMBERT: Yes, Your Honor. 20 JUDGE YODER: Are you suggesting that 21 there is a burden on the Respondent to come 22 forward with evidence on this subject, even

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1 though it's your burden of proof? 2 MR. LAMBERT: Only when asked if 3 through discovery but not a trial, Your Honor, 4 but I believe we explored that through written 5 discovery and we hadn't received anything 6 satisfactory so that would take away that 7 allegation. 8 JUDGE YODER: Unless you have a legal 9 basis for turning that into evidence against the 10 Respondent, you still don't prove anything. Do 11 you understand what I'm saying? 12 MR. LAMBERT: Yes, Your Honor. 13 JUDGE YODER: So you would need to 14 present argument that in the absence of their 15 providing evidence they have failed to come 16 forward with the evidence with respect to 17 training and consequently the burden of proof is 18 satisfied because they failed in their burden to 19 come forward with evidence. Are you 20 understanding what I'm saying? 21 22

(202) 234-4433 MR. LAMBERT: Yes, Your Honor. JUDGE YODER: Okay. You didn't say

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443326 1 that. So if it goes to hearing you're going to 2 need to present a brief on that subject. Do you 3 understand? 4 MR. LAMBERT: Yes, Your Honor. 5 JUDGE YODER: Because what you have 6 told me is that you're going to try to prove they 7 didn't have training and get their people to 8 testify that they didn't have training. 9 You don't really know whether you're 10 going to be able to do that or not. So the only 11 way you're going to prove this is by creating a 12 presumption in the face of their failure to come 13 forward with evidence. 14 And if you're going to ask for such a 15 presumption then you're going to have to justify 16 that legally. 17 MR. LAMBERT: Yes, Your Honor. 18 JUDGE YODER: Are you with me? 19 MR. LAMBERT: Yes, Your Honor. 20 JUDGE YODER: All right. Now Mr. 21 Niakan, did you understand what that was all 22 about?

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1 MR. NIAKAN: I did, Your Honor, I did. 2 JUDGE YODER: Well, that's good. 3 Okay. So we don't really know where we are on 4 the training issue except that their people who 5 might know something about it don't seem to be 6 around any longer, at least the allegation is 7 they aren't around any longer. 8 So those are things that you folks 9 should take into account in discussing the 10 possibility of settling this case. 11 Now the next thing we need to take, 12 you need to take into account is how many 13 violations there are. 14 And the fact that there are 22 15 regulations doesn't necessarily mean that that 16 gives rise to 22 violations. And based on what 17 you've said so far, I can't tell how many 18 violations you're alleging. 19 For instance, in I think it's 20 Paragraph 21(m), there's a reference to, this is 21 in the response to, the request for admissions. 22 There's an alleged violation with respect to

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443328 1 ensuring each hazmat employee trained in 2 accordance with the requirements in Subpart 172. 3 And that's asserted as a violation for not 4 ensuring that. 5 But then there's a separate one 6 ensuring that each hazmat employee trained in 7 accordance with the requirements of the HMRs, and 8 that each officer, agency, and employee having 9 any responsibility for preparing hazardous 10 materials for shipment had been instructed as to 11 handle HMRs. 12 Mr. Lambert, maybe you can tell me 13 whether that is one violation or two? 14 MR. LAMBERT: That would be one 15 violation, sir. That would fall under the 16 violation of improper training, just generally. 17 JUDGE YODER: Okay. It's set out as 18 if it were two different ones and the second one 19 of those would seem to be inclusive of everything 20 in the first one of those. Do you understand 21 what I'm saying? 22

(202) 234-4433 MR. LAMBERT: Yes, Your Honor. A lot

NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443329 1 of

-- 2 JUDGE YODER: So until you can come up 3 with the number of violations you're claiming and 4 what those violations are, there's no way anybody 5 can look at the propriety of your proposed 6 penalty. 7 MR. LAMBERT: Yes, Your Honor. I 8 mean, I know that there are seven violations 9 based on the Sanction Guidance Table. I see the 10 numbers in terms of the amount per violation and 11 I know that there are seven. I'm just not 12 certain of the exact title to give these 13 violations so I don't want to mislead the court 14 reporter. 15 JUDGE YODER: You cannot be surprised 16 to learn that that's why we have pre-hearing 17 conferences. 18 MR. LAMBERT: Sure. 19 JUDGE YODER: To discuss precisely 20 that and we expect people to come to the pre21 hearing conferences knowledgeable of the facts of 22 the law and prepared to discuss them.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443330 1 So what we've got here is a situation 2 where the only, what you've described as the only 3 issue to the level of penalty, we're going to be 4 hard pressed to discuss because you don't know 5 what violations you're alleging. Do you 6 understand what I'm saying? 7 MR. LAMBERT: I understand, sir. I 8 don't, there are seven categories. For instance 9 the improper labeling, packaging, marking, 10 failure to include

-- 11 JUDGE YODER: No, that's all very 12 interesting but you've got to tie that into 13 specific regulations and specific alleged 14 violations or you don't get anywhere. Do you 15 understand what I'm saying? 16 You can't just say you improperly 17 shipped this, you improperly labeled it and so 18 I'm going to assess seven violations in the 19 amount of, what is it, $33,000.00? 20 MR. LAMBERT: 33,950, yes, Your Honor. 21 JUDGE YODER: Yes. Do you understand 22 what I'm saying?

(202}234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202} 234-443331

1 MR. LAMBERT: Yes, Your Honor. 2 JUDGE YODER: So when we get through 3 here today, assuming we don't get this 4 straightened out before we finish today, you're 5 going to be needing to file with me something 6 demonstrating the number of violations you're 7 alleging and the penalty you're alleging for each 8 alleged violation. 9 And those violations are going to be 10 need to be tied to a specific regulatory basis, a 11 specific regulation, not just as something in the 12 complaint. Do you understand what I'm saying? 13 MR. LAMBERT: Yes, Your Honor. 14 JUDGE YODER: It of course will have 15 to be in the complaint but the violation will 16 have to be tied to regulations. 17 All right. Let' s see where we are 18 now. Now, Mr. Niakan, have you given any 19 consideration as to whether Trans Time is a small 20 entity under the Small Business Regulatory 21 Enforcement Fairness Act? 22

(202) 234-4433 MR. NIAKAN: No, Your Honor.

NEAL R. GROSS COURT REPORTERS ANOTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443332

1 JUDGE YODER: Do you know what that 2 act is? 3 MR. NIAKAN: No. 4 JUDGE YODER: Mr. Lambert, have you 5 considered that question? 6 MR. LAMBERT: I'm sorry, Your Honor, 7 I didn't quite hear you. The Small Business 8 Regulatory Act? 9 JUDGE YODER: Enforcement Fairness 10 Act, yes. 11 MR. LAMBERT: Is that the one that 12 sets up the guidance for the amount of sanctions 13 for a small business compared to a large business 14 conservative? 15 JUDGE YODER: Yes, sir. 16 MR. LAMBERT: That's, I hadn't 17 considered that for this case except for when 18 looking at 2350 3(b) and in determining the 19 sanction amount. 20 JUDGE YODER: Well, I'm sorry. Are 21 you saying that under the regulation you cited 22 you did consider the question of whether it was a

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443333 1 small business? 2 MR. LAMBERT: I think, I'm not sure, 3 Your Honor. 4 JUDGE YODER: Mr. Niakan? 5 MR. NIAKAN: Yes, Your Honor? 6 JUDGE YODER: Do you know whether the 7 gross receipts of this company equal or exceed 8 $750,000 a year? Annual receipts. Do you know 9 whether the annual receipts amount to $750,000? 10 MR. NIAKAN: I'm not sure, Your Honor. 11 It sounds like it could be in that area but I'm 12 not sure. 13 JUDGE YODER: Well, I don't know how 14 you could negotiate a penalty without knowing 15 whether you're a small business and consequently 16 entitled to the diminished penalty levels that 17 accrue to small businesses. Do you understand 18 what I'm saying? 19 MR. NIAKAN: Yes, Your Honor. 20 JUDGE YODER: So having been 21 discussing this at least since 2013, those 22 discussions might not be able to get very far

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443334 1 unless both of you know whether you're a small 2 business or not. 3 So when we get through here today, 4 another one of your assignments is going to be to 5 file something with me indicating whether or not 6 you are a small business under the Small Business 7 8 MR. NIAKAN: Enforcement Fairness Act, 9 correct? 10 JUDGE YODER: Okay. Good. 11 MR. NIAKAN: Your Honor, my question 12 would be at the time or today? 13 JUDGE YODER: No, not today. We're 14 going to set a time within which you will do 15 these various things. 16 First we're going to give you a chance 17 to settle this case. 18 MR. NIAKAN: Yes. 19 JUDGE YODER: So you can get out from 20 under of this case and what's going to be a 21 costly process just to resolve these issues. Do 22 you understand what I'm saying?

(202) 234-4433 NEALR. GROSS COURTREPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443335 1 MR. NIAKAN: Yes, Your Honor. 2 JUDGE YODER: Okay. So we'll get 3 there when we're finished here. 4 So the fact is that no one, well, 5 let's see. 6 MR. NIAKAN: Your Honor, may I ask

-- 7 JUDGE YODER: Mr. Lambert, you said 8 you didn't know whether they had given 9 consideration to the small business aspects of 10 this when they set up the penalties, is that 11 correct? 12 MR. LAMBERT: I mean, I meant I 13 haven't personally, Your Honor. 14 JUDGE YODER: Well, you're the only 15 person who's appearing here on behalf of the 16 Complainant. 17 MR. LAMBERT: Yes, Your Honor. I 18 hadn't, but yes, Your Honor, I had not considered 19 that act specifically in this case. 20 JUDGE YODER: Yes, well that would be 21 a good idea. So then the next question is, Mr. 22 Niakan, have you raised the question of your

(202) 234·4433 NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443336 1 company's ability to pay this penalty as part of 2 the proceeding? 3 MR. NIAKAN: No, Your Honor, not yet. 4 JUDGE YODER: Well, the question is, 5 are you asserting a question of ability to pay in 6 connection with this penalty? 7 MR. NIAKAN: We reserve that right, 8 Your Honor. 9 JUDGE YODER: I know you have that 10 right but you -- 11 MR. NIAKAN: I'm reserving it. I need 12 to talk to my -- 13 JUDGE YODER: As you exercise that 14 right, is you provide financial information to a 15 Complainant that demonstrates your financial 16 posture, that is, balance sheets, tax returns, 17 whatever they need. There's a Justice Department 18 Guideline on this. Are you familiar with that, 19 Mr. Lambert? 20 MR. LAMBERT: The Department of 21 Justice Guideline on -- 22

(202) 234-4433 JUDGE YODER: Ability to pay.

NEAL R. GROSS COURTREPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 '(202) 234-443337 1 MR. LAMBERT: Yes, Your Honor. And 2 that issue, that defense or that aspect has never 3 been raised to us to either any answer on any 4 discovery or 5 JUDGE YODER: Well, it's raised 6 automatically by the regulations which require 7 that we consider it. And so we have to consider 8 it unless Mr. Niakan tells us that he doesn't 9 want to raise the question. 10 One of the things we have to consider 11 in deciding the level of penalty is the ability 12 to pay and whether it might force the company out 13 of business. Are you familiar with that, Mr. 14 Niakan? 15 MR. NIAKAN: Not as much as I should 16 be, Your Honor. 17 JUDGE YODER: I think that's correct. 18 MR. NIAKAN: Your Honor, may I ask you 19 something about the clarifications for the Small 20 Business Regulatory Enforcement Fairness Act? 21 JUDGE YODER: You can ask me but I'm 22 not here to practice law.

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1 MR. NIAKAN: You said the

-- 2 JUDGE YODER: You're the one who's 3 practicing law. I'm just raising questions. 4 MR. NIAKAN: My question was, the 5 numbers must include them at the time or is it 6 today, $750,000? 7 JUDGE YODER: Well, I'm not sure that 8 I want to tell you what the law is because that's 9 what you're supposed to do. 10 MR. NIAKAN: Yes, Your Honor. 11 JUDGE YODER: You tell me what the law 12 is and then we decide whether we agree or not. 13 MR. NIAKAN: Yes, Your Honor. 14 JUDGE YODER: Do you understand? 15 MR. NIAKAN: Yes, Your Honor. 16 JUDGE YODER: The fact is that the 17 violation speaks at the time it's committed and 18 is generally subject to the law that applied at 19 the time it was committed. 20 MR. NIAKAN: Yes, Your Honor. 21 JUDGE YODER: When we get to the point 22 of determining the level of penalty, there are

(202) 234-4433 NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443339 1 other considerations that may come into play but 2 I'm not going to try to tell you whether it's 3 your previous financial situation or your current 4 financial situation. That's something you're 5 going to have to focus on, both of you and figure 6 out what time period you're going to look at. 7 I mean, if you were bankrupt then but 8 you're flush now, that presents one picture. If 9 you're flush now and bankrupt, you were flush 10 then and bankrupt now, that presents another 11 picture. All of those things, it strikes me, 12 might need to be taken into consideration in 13 connection with, number one, whether you're a 14 small business. 15 Certainly the ability to pay would 16 have to be determined based on your condition 17 now. 18 MR. NIAKAN: Yes. That makes sense, 19 Your Honor. 20 JUDGE YODER: So if you want to raise 21 the question of ability to pay you're going to 22 have to provide your financial data to Mr.

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443340 1 Lambert and he's going to have to tell you what 2 that is, what you need to provide. 3 MR. NIAKAN: Yes, Your Honor. 4 JUDGE YODER: What you're saying is 5 you don't know whether you want raise it or not. 6 Is that what you're saying? 7 MR. NIAKAN: We're going to raise it. 8 JUDGE YODER: Okay. Well, then that 9 means that you're going to have to provide the 10 financial data so, Mr. Lambert, you're going to 11 have to send him and you can do that right away, 12 what he needs to provide in order to show what 13 his ability to pay is. 14 MR. LAMBERT: Yes, Your Honor. And we 15 normally request that in Notice of Investigation 16 and I just checked and we did not ask for the 17 specifics so I will do that immediately. 18 JUDGE YODER: Well, that's a little 19 discouraging. I understand what you're saying. 20 Ability to pay is an implicit issue in 21 every civil penalty case. So unless you figure 22 that by not saying anything about it you won't

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443341 1 have to deal with it, you should be inquiring 2 about it in every case. 3 Otherwise we have what we've got now. 4 No information. And I don't know how you 5 negotiate a settlement when you don't know 6 whether you've got a small business and you don't 7 know whether you've got an ability to pay 8 question. 9 I don't know how you can set a 10 proposed penalty in the complaint if you don't 11 know whether you've got an ability to pay 12 question. Do you understand what I'm saying? 13 MR. LAMBERT: Yes, Your Honor. 14 MR. NIAKAN: Yes, Your Honor. 15 JUDGE YODER: Ability to pay is 16 supposed to be considered in framing the request 17 for release unless it's not an issue. 18 19 20 21 22 going to

(202) 234-4433 MR. NIAKAN: Yes. JUDGE YODER: All right? MR. NIAKAN: Yes, Your Honor. JUDGE YODER: Okay. So you folks are have to address those questions.

NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443342 1 Let's see what else we've got here. 2 I don't know what annual receipts are but you'll 3 have to figure that out. That's the term that 4 the Small Business Act uses that is the 5 determiner whether or not you're a small 6 business. 7 There may be other factors that relate 8 to whether you're a small business. I'm not 9 going to try to get into that. All I'm trying to 10 do is alert you folks to the issues that are 11 implicit in this case which no one seems to have 12 addressed. Do you understand what I'm saying? 13 MR. NIAKAN: Yes, Your Honor. 14 JUDGE YODER: All right. 15 MR. LAMBERT: Yes, Your Honor. 16 JUDGE YODER: Yes. All right. Let's 17 look on here. What do you understand the maximum 18 penalty per violation is, Mr. Lambert? 19 MR. LAMBERT: I'm looking. The matrix 20 says that the maximum will be 8200, Your Honor, 21 per violation. 22

(202) 234-4433 JUDGE YODER: In every case generally

NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443343 1 what is the maximum fine per violation? 2 MR. LAMBERT: 82,000, $8200.00 per 3 violation. 4 JUDGE YODER: $8200.00? 5 MR. LAMBERT: Per violation. Yes, 6 Your Honor. 7 JUDGE YODER: That's not the 8 regulatory maximum, that's your matrix maximum? 9 MR. LAMBERT: Oh, yes, Your Honor. 10 JUDGE YODER: I'm asking you for the 11 regulatory maximum. 12 MR. LAMBERT: I'm sorry. We relied on 13 the matrix, I relied on the matrix when

-- 14 JUDGE YODER: Well, the matrix is not 15 law, pardon the expression, but this proceeding 16 is controlled by law, not by the matrix. 17 MR. LAMBERT: Yes, Your Honor. 18 JUDGE YODER: And the matrix may be 19 binding on you in putting something into a 20 complaint but it is not binding on a Respondent 21 and it's not binding on me because it's not law. 22 Are you following me?

(202) 234-4433 NEALR. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443344 1 MR. LAMBERT: Yes, of course, Your 2 Honor. 3 JUDGE YODER: Yes, okay. Good. Now 4 can you tell me what the maximum penalty is for a 5 violation of hazmat? 6 MR. LAMBERT: I believe it's $50,000, 7 Your Honor. 8 JUDGE YODER: It keeps going up all 9 the time. It's hard to keep track of. 10 MR. LAMBERT: Yes, Your Honor. I 11 misunderstood at first, but I believe under the 12 hazmat regulations it's 50,000 per violation. 13 JUDGE YODER: It's now 50,000. When 14 I started it was a lot less but that was a long 15 time ago. 16 So that's $50,000 per violation and 17 under the Small Business Act you may find that a 18 maximum is more like 11,000. 19 In any event there is a maximum civil 20 penalty under the Small Business Act which is 21 substantially lower than the maximum penalty 22 otherwise.

(202) 234-4433 N'est-ce pas? Do you gentlemen

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHOOE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443345 1 understand that? 2 MR. NIAKAN: Yes, Your Honor. 3 MR. LAMBERT: Yes, Your Honor. 4 JUDGE YODER: I would hazard to guess 5 that that might be of some relevance in talking 6 about negotiating a settlement. Okay? 7 MR. NIAKAN: Yes, Your Honor. 8 JUDGE YODER: All right. Now let's 9 see. Bear in mind, I'm not telling you what the 10 law is here. I'm just suggesting that these are 11 issues you should focus on. 12 All right. So is there anything else 13 that you gentlemen want to talk about before we 14 wind this up? I mean, if you'd like to settle it 15 right now that would be fine. 16 MR. NIAKAN: You know, Your Honor, 17 we've been in talks directly in the last couple 18 of days and I hope we continue to do so. 19 JUDGE YODER: Yes. 20 MR. NIAKAN: So as of right now, no, 21 I don't have anything to add. 22

(202} 234-4433 JUDGE YODER: Okay. Well, then what

NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202} 234-443346 1 I'm going to need is for you gentlemen to get 2 back to me, let's say in a month and let me know 3 whether this case is settled or it's going to 4 settle or we're going to hearing. All right? 5 MR. NIAKAN: How do we get in touch 6 with you, Your Honor? Call you or? 7 JUDGE YODER: You send me 

### a 8 communication. 9 MR. NIAKAN: Okay. 10 JUDGE YODER: If it's settled all you 11 got to do is send me something saying it's 12 settled and the Counsel for the Government will 13 normally take care of that. 14 MR. NIAKAN: I see. 15 JUDGE YODER: But you can do it 16 together. That's up to you, okay? Normally we 17 do not function on the basis of letters. 18 MR. NIAKAN: Yes. 19 JUDGE YODER: We get filings of 20 notices or responses or something, okay? 21 22

(202)234-4433 MR. NIAKAN: Yes. JUDGE YODER: And we don't engage in

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1 correspondence. But what you'll want to do is 2 send some communication to me, either that it's 3 settled or it's going to settle or, but in any 4 event we're going to set up some dates because if 5 it isn't settled then I need the various items 6 that we have mentioned in the course of this pre7 hearing conference. 8 I need an indication from respondent 9 as to whether they're small business concerned 10 and the information that substantiates that. 11 I need to know whether they're 12 claiming an ability to pay consideration in 13 terms, in connection with a penalty computation 14 and the financials that support that. 15 I need to know when you can provide 16 Mr. Lambert with the financial information that's 17 necessary in connection with the ability to pay 18 question. 19 20 him today? 21 22

(202) 234-4433 Mr. Lambert, can you get that out to

MR. LAMBERT: Yes, Your Honor, I will. JUDGE YODER: Okay.

NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 So my

(202) 234-443348 1 understanding is, Mr. Niakan, that Mr. Lambert 2 will be sending you today, the information that's 3 required in connection with a consideration of 4 your ability to pay. 5 MR. NIAKAN: Yes. 6 JUDGE YODER: Now I know you haven't 7 looked at, you haven't seen what he is talking 8 about but I would want that in, certainly before 9 the date when you're supposed to make a 10 resettlement report. Can you give me a date by 11 which you could provide that financial 12 information? 13 MR. NIAKAN: Two weeks, Your Honor. 14 JUDGE YODER: Okay. Two weeks for the 15 financial information and you can just send that 16 to Mr. Lambert and then you folks can talk about 17 the implications of that for ability to pay and 18 for small business. 19 And then you can start talking about 20 what kind of penalty you should be considering, 21 okay? 22

(202) 234-4433 MR. NIAKAN: Yes.

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443349 1 JUDGE YODER: And that'll give you 2 another two weeks before you're supposed to 3 report to me on whether it's settled, all right? 4 MR. NIAKAN: Yes, Your Honor. 5 JUDGE YODER: All right. Then I need 6 from Mr. Lambert the penalty computations, the 7 proposed penalty computations. 8 And I'm sure that Mr. Niakan will also 9 be interested in those in connection with any 10 settlement discussions you have. 11 So I would assume that you certainly 12 could provide that within the next two weeks, Mr. 13 Lambert. Is that a fair assumption? 14 MR. LAMBERT: Absolutely, Your Honor. 15 JUDGE YODER: All right. So I think 16 that probably the penalty computation should be 17 provided to me as well. 18 MR. LAMBERT: Yes, Your Honor. 19 JUDGE YODER: Yes. So we have two 20 reasons I want to receive that from you and I 21 think, Mr. Niakan, you should also provide the 22 other information and serve it.

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1 MR. NIAKAN: Yes, Your Honor. We'll do 2 that. 3 JUDGE YODER: Okay? 4 MR. NIAKAN: Yes, sir. 5 JUDGE YODER: Fine. Now let's see. 6 Then if it hasn't settled after you provide that 7 information at the end of the month, we'll figure 8 out what date that winds up being. It would be 9 about November 26 or something like that and 10 we'll make sure that's a real date. 11 Then we need some submissions. 12 (Telephonic interference) what those things 13 relate to. As I recall the first question that 14 arose was what you have to do in order to 15 knowingly violate this regulation. 16 And Mr. Niakan, if you're going to 17 contend that knowingly means anything other than 18 knowing that you're shipping something and what 19 it is you're shipping, then you're going to need 20 to file a brief indicating your basis for that 21 contention. 22 And I think I indicated several other

(202) 234-4433 NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443351

1 things. I know that if you're going to make an 2 ability to pay argument or a small business 3 argument, that that should be supported by a 4 brief. 5 MR. NIAKAN: Yes. 6 JUDGE YODER: So we'll know what 7 you're going to contend. We don't go into 8 hearings and just throw as much stuff in the 9 record as we can. We go into hearings knowing 10 exactly what we're going to try and what it is 11 that we need in order to try it, okay? 12 MR. NIAKAN: Yes, Your Honor. 13 JUDGE YODER: So if there's going to 14 be a hearing in this case, that's the kind of 15 hearing it's going to be. All right. 16 So those briefs on each side as to 17 your contentions. And I know that the 18 Government's brief would relate at least to the 19 method of computation of the proposed civil 20 penalty, and the number of violations, and which 21 violations and so forth. 22 So that needs to be, I would suppose

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443352

1 that that could be filed within two weeks after 2 we get that other information, after the 3 settlement response. 4 So we have two weeks from today and 5 that is This is October 5, the second would be 6 9th. On November 9 you folks will provide to 7 each other the data we talked about your 8 providing and a copy to me. Okay? 9 MR. NIAKAN: Yes, Your Honor. I 10 understand we have to, we will provide 11 JUDGE YODER: The financial data. 12 MR. NIAKAN:

-- financial information 13 to the Court and to the 14 JUDGE YODER: They will provide you 15 with the basis for the violation computation, the 16 penalty computation. 17 MR. NIAKAN: Your Honor, does 18 financial information has to be a certain format 19 that the 20 JUDGE YODER: Yes, they're going to 21 send that to you. 22

(202) 234-4433 MR. NIAKAN: They're going to send it.

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1 JUDGE YODER: He's going to send it to 2 you today. 3 MR. NIAKAN: Okay. Great. 4 JUDGE YODER: You'll have two weeks to 5 put that together. And if you have a problem 6 with timing, I'm available but I don't know of 7 any reason why you shouldn't be able to do these 8 things in two weeks, okay? 9 MR. NIAKAN: I wouldn't know either, 10 Your Honor. 11 JUDGE YODER: All right. 12 MR. NIAKAN: If there is a problem I 13 would contact you. 14 JUDGE YODER: Yes. So you'll make an 15 application. 16 MR. NIAKAN: I'll make an application. 17 JUDGE YODER: Yes, that's a motion. 18 MR. NIAKAN: Motion, yes. 19 JUDGE YODER: Right. Just contacting 20 me is not going to get it done. 21 22

(202) 234-4433 MR. NIAKAN: Correct. JUDGE YODER: You're going to have to

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1 move for an extension, all right? 2 MR. NIAKAN: Yes. 3 JUDGE YODER: So those things are due 4 by each of you on November 9. That's two weeks 5 from today. 6 And then a month from today is 7 November 26th which is a Saturday, so we'll make 8 it November 28, which is a Monday. 9 And these of course for me are receive 10 dates. That's in my hands. So they either get 11 FedEx delivered or whatever, but they don't just 12 get dropped in the mail and hope I get them. Do 13 you understand what I'm saying? 14 MR. NIAKAN: Yes, Your Honor. 15 JUDGE YODER: These are in my hands. 16 Okay. So November 28th we '11 get a report on 17 settlement. 18 MR. NIAKAN: Yes, Your Honor. 19 JUDGE YODER: We'll come up with that 20 together and you can tell me whether you've got 21 it, whether you haven't. 22

(202) 234-4433 And if you don't have it, then two

NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443355 1 weeks after that, which is December 12, December 2 12 you will file a brief on the subjects that 3 we've discussed in the pre-hearing conference, 4 including the computation of the proposed 5 penalty, the small business qualification, the 6 ability to pay consideration and the question of 7 knowingly. 8 And also the question of training and 9 how that's going to be proved. I understand that 10 Mr. Lambert was talking about calling your people 11 to prove that you didn't do training but I don't 12 know whether that's going to work. So he's going 13 to have to brief the question, how he's going to 14 prove that and what he needs to prove in order to 15 prove it. 16 So that's December 12. And then, 17 well, you want a week for reply briefs after 18 that? 19 MR. LAMBERT: Yes, Your Honor. 20 JUDGE YODER: That would be December 21 19. And then we'll give you Christmas off. 22

(202) 234-4433 MR. NIAKAN: Thanks, Your Honor.

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1 MR. LAMBERT: All right. 2 JUDGE YODER: Or whatever it is. The 3 holiday season we'll take off, okay? 4 MR. NIAKAN: Your Honor, will we 5 receive something in writing in, about these 6 dates or I'm just writing down whether 7 JUDGE YODER: Well, you'll have the 8 transcript of this proceeding at some point. But 9 I can't tell you when that is if you don't buy a 10 transcript. 11 DR. NORONHA: Yes, Your Honor. 12 JUDGE YODER: Do you understand what 13 I'm saying? 14 MR. NIAKAN: Yes, Your Honor. 15 JUDGE YODER: That's why we put these 16 things out 30 days. You don't need anything in 17 writing to tell you that you need to do something 18 by November 9. 19 MR. NIAKAN: Yes. 20 JUDGE YODER: You're going to provide 21 information on your financials by November 9, 22 right?

(202) 234-4433 NEAL R. GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443357

1 MR. NIAK.AN: Yes, Your Honor. 2 JUDGE YODER: And they're going to 3 provide you their computation of the penalties by 4 November 9 . 5 And then by November 28th you're going 6 to tell me whether you've settled the case or not 7 and if you haven't, on December 12 you'll file 8 briefs and December 19th a reply brief. 9 And then we will set a hearing for 10 some time thereafter. Okay? 11 MR. NIAK.AN: Yes, Your Honor. 12 MR. LAMBERT: Yes, Your Honor. 13 JUDGE YODER: Anything further we need 14 to address today gentlemen? 15 MR. NIAK.AN: I don't have anything 16 further, Your Honor. 17 MR. LAMBERT: Nothing further, Your 18 Honor. Thank you very much. 19 JUDGE YODER: Well, thank you both and 20 I hope this will move you forward in your 21 discussion and perhaps this case can get settled. 22 MR. NIAK.AN: This was very helpful,

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443358 1 Your Honor. We appreciate it. 2 JUDGE YODER: Good. All right. Thank 3 you, gentlemen. That concludes the pre-hearing 4 conference. 5 MR. NIAKAN: Thank you, Your Honor. 6 Thank you, Mr. Lambert. 7 (Whereupon, the above-entitled matter 8 went off the record at 3:10p.m.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443365 C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Trans Time Express

Before: USDOT/OH

Date: 10-26-16

Place: teleconference

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

Court Reporter

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____ 2 _____ _ 2:001:15 2:063:2 200319:18 2003-1019:17 2009-104419:13 201019:2,7 20118:10,13 20129:1,2,3 201321:2 33:21 20161:10 2022:7,21 20591 2:20 208522:6 21(m)27:20 229:11,1711:921:2

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Neal R. Gross and Co., Inc. Washington DC 64

www.nealrgross.com65 C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Trans Time Express Before: USDOT/OH

Date: 10-26-16

Place: teleconference

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

Court Reporter

(202)2344433 NEALR. GROSS COURTREPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE.,N.W. WASHINGTON,D.C. 20005-3701 WNW.nealrgross.com