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 AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
APPEARANCES: 

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 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 

2 

(202) 234-4433 
3 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
4 

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 1 s 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. 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
5 

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 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 

docket at 

(202) 234-4433 
6 

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 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
7 

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. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
8 

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 

NEAL R. GROSS 

COURT REPORTERS ANO TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
9 

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? 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS ANO TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
10 

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 AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234·4433 
11 

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 

(202} 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202} 234-4433 
12 

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 REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
13 

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 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
14 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
15 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
16 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
17 

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 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
18 

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 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
19 

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. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
20 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
21 

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 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
22 

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 REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
23 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
24 

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 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
25 

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 REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
26 

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? 

(202) 234·4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
27 

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 REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
28 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
29 

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 REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
30 

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 REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202} 234-4433 
31 

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 ANO TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
32 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
33 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
34 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
35 

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 penal ties, 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 AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
36 

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 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 '(202) 234-4433 
37 

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. 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
38 

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 AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
39 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
40 

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 REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
41 

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. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
42 

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 AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
43 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
44 

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 REPORTERS AND TRANSCRIBERS 

1323 RHOOE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
45 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202} 234-4433 
46 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
47 

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 AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 

So my 

(202) 234-4433 
48 

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 REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
49 

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. 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
50 

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 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
51 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
52 

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. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
53 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
54 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
55 

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. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
56 

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 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
57 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
58 

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 REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
65 

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) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 wmv.nealrgross.com 
59 

A 14:16 21:18 37:3 25:17,18 company 18:1 ,3,6, 11 

A-N-0-R-E-W 3:12 answers 24: 1 0 business 31:20 32:7,13 20:7 33:7 37:12 

ability 36:1,5,22 37:11 anybody 29:4 32:13 33:1 '15 34:2,6 company's 36:1 

39:15,21 40:13,20 appear 3:17 4:3 34:6 35:9 37:13,20 compared 32:13 

41:7,11,15 47:12,17 appearances 2:1 3:10 39:14 41:6 42:4,6,8 Complainant 2:13 3:6 

48:4,17 51:2 55:6 appearing 3:22 35:15 44:17,20 47:9 48:18 3:10,134:611:16 

able 19:12 26:10 33:22 application 53:15,16 51:2 55:5 22:16 35:16 36:15 

53:7 applied 38: 18 businesses 33:17 Complainant's 5:18 

above-entitled 58:7 apply 8:19 buy 56:9 complaint 9:2,4 11:1 o 

absence25:14 appreciate 9:21 14:20 13:9 14:5 15:2 22:7 

Absolutely49:14 15:1 58:1 c 31:12,15 41:10 43:20 

account27:9, 12 area 33:11 calculated 9:14 10:21 comply9:6 

accrue 33:17 argument 25:14 51:2,3 calculation 15:6 comprehensive 22:1 0 

acid 11:1212:14,17 arises 8:22 Call46:6 computation 47:13 

20:7,12 arose 50:14 calling 55:10 49:16 51:19 52:15,16 

act31:21 32:2,8,10 34:8 asked 14:4 25:2 Cameron 2:3 5:2 55:4 57:3 

35:19 37:20 42:4 asking 11:15 43:10 care46:13 computations 49:6,7 

44:17,20 aspect 37:2 case4:20 8:12 13:17 concerned 47:9 

actual6:4 aspects 35:9 16:1 17:22 19:9 20:3 concerning 21:17 

add 45:21 asserted 28:3 20:16,21 22:12 24:4 concludes 58:3 

added 22:3 asserting 36:5 27:10 32:17 34:17,20 condition 39:16 

additional8:19 assess 30:18 35:19 40:21 41:2 conduct 5: 15 

address 41:22 57:14 assessed 10:9 42:11,22 46:3 51:14 conference 3:4 8:17 

addressed 42:12 assignments 34:4 57:6,21 47:7 55:3 58:4 

adequate 24:1 assume 49:11 cases4:14 8:919:15 conferences 29:17,21 

Administrative 1:21 assuming 31:3 categories 9:17 10:4 confused 4:13 10:7 

Administrator 3:14,17 assumption 49:13 30:8 confusing 4:18 

3:22 4:4,15,17,20 assumptions 20:2 certain 29:12 52:18 confusion 12:5 

admission 23:6 assuring 6:10 certainly 6:14 39:15 connection 36:6 39:13 

admissions 13:14,15 authority 4:22 48:849:11 47:13,17 48:3 49:9 

14:1015:9 21:20 automatic 6:19,20 certified 23: 19 consequently 25:17 

23:20 27:21 automatically 5:17 37:6 chance 34:16 33:15 

admitted 23:7 available 53:6 charge7:11,14 conservative 32: 14 

AGC-300 2:16 Ave2:19 checked 40: 16 consider 32:22 37:7,7 

agency28:8 aware 5:1112:8 chemical12:15 37:10 

ago44:15 chemicals 11:13 consideration 31:19 

agree 38:12 B chemist 11:18 35:9 39:12 47:12 48:3 

agreement 20:20 back 8:12 46:2 Chief2:18 4:8 55:6 

air 9:9 20:13 balance 36:16 Christmas 55:21 considerations 39:1 

alert42:10 bankrupt 39:7,9,10 cited 32:21 considered 32:5,17 

allegation 21:16 25:7 based 27:16 29:9 39:16 cites 19:19 35:18 41:16 

27:6 basically 11: 11 civil 8:22 9:9 40:21 considering 48:20 

allegations 13:11,13,20 basis 25:9 31:10 46:17 44:19 51:19 contact 53:13 

14:5 50:20 52:15 claiming 29:3 47:12 contacting 53:19 

alleged9:1311:1119:3 Bear45:9 clarification 13:16 contend 50:17 51:7 

19:5 24:17 27:22 behalf2:2,13 3:13,17 clarifications 37:19 contending 18:13 

30:13 31:8 3:22 4:4,6 35:15 clear 6:1 contention 11:12 16:9 

allegedly 9:6,12 11:9 believe8:10 9:1511:19 client 14:2 17:22 16:1118:18 50:21 

alleges 9:4 16:10 23:16 24:5,7 cn@Niakanlaw.com contentions 51: 17 

alleging 27:18 30:5 25:4 44:6,11 2:8 context 24:15 

31:7,7 binding 43:19,20,21 collect 10:21 continue 45:18 

AMERICA 1:1 bottles 11 : 9 come 11:4 20:15 24:21 controlled 43:16 

amount 5:7 9:9 15:4 breaking 19:6 25:15,19 26:12 29:2 convened 1: 14 

29:10 30:19 32:12,19 brief 18:17,21 26:2 29:20 39:1 54:19 copy 5:17,19,21 8:6 

33:9 50:20 51:4,18 55:2,13 coming 20:20 52:8 

Andrew2:15 3:12 57:8 committed 38: 17, 19 core 9:16 

annual33:8,9 42:2 briefs 51:16 55:17 57:8 communication 46:8 Corp19:17 

answer 13:10,1314:10 burden 24:17,21 25:1 47:2 correct8:14,15 18:8 

Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
60 

34:9 35:11 37:17 discuss 22:16 29:19,22 Express 1:5 3:4 5:3 48:16 52:6 

53:21 30:4 23:19 following 20:17 43:22 

correspondence 47:1 discussed 55:3 expression 43:15 force 37:12 

costly 34:21 discussing 27:9 33:21 extension 54:1 format 52:18 

counsel2:18 4:8,12 discussion 57:21 FOROUD 20:14 

5:18 46:12 discussions 33:22 F ------ forth 51:21 

couple 45:17 49:10 FAA2:18 3:14 4:1,12 forward 24:22 25:16,19 

course 4:7 11:7 31:14 dispute 13:2014:6,19 6:5 18:22 19:17,20 26:13 57:20 

44:1 47:6 54:9 15:3,18,22 16:4 FAA-19:12 framing 41:16 

court 3:7 8:2 29:13 Division 2:16 4:8 FAA-2012-1260 1:5 3:5 front 14:13 

52:13 docket 3:5 5:21 6:5,6 face 26:12 function 46:17 

CPO 19:9 6:13 7:2 18:22 fact4:15 12:1,8 20:12 further 23:9 57:13,16 

CP09SW0008 19: 1,1 0 dockets 5:18 23:4,11 27:14 35:4 57:17 

creating 26:11 document 12:2 38:16 ----'" 

current 39:3 documents 12:5,9,22 factors 42:7 G --------

--------·- DOT6:5 facts 14:1915:1,2 19:3 gather6:4 

.D download 7: 19 29:21 general1 0:3,4 

D.C2:20 DR20:14 56:11 failed 10:13 25:15,18 generally 17:19 28:16 

Dangerous 13:3 drain 11:1012:2 Failing 11:5 38:18 42:22 

data 11:1812:13 39:22 driver14:1,20 16:21,22 failure 26:12 30:10 generated 12:6 

40:10 52:7,11 17:16,18 18:2 fair49:13 gentlemen 3:9 44:22 

date 48:9,10 50:8,10 dropped 54:12 Fairness 31:21 32:9 45:13 46:1 57:14 58:3 

dated 21:2 due 54:3 34:8 37:20 getting 6:16 7:1 

dates47:4 54:10 56:6 fall9:18 28:15 give29:12 34:16 48:10 

day 5:14 E falls 16:22 49:1 55:21 

days 8:16 45:18 56:16 E-R-T3:13 familiar14:9 36:18 given 15:8 24:9 31:18 

DB-MSDS 12:2 effect 21:2 37:13 35:8 

deal41:1 either 37:3 47:2 53:9 far11:2213:20 14:17 gives27:16 

December 9:3 55:1,1 54:10 15:1 22:2 27:17 33:22 giving 19:3 

55:16,20 57:7,8 elicit 16:5 FDMS 1:4 Goods 13:3 

decide 38: 12 employed 14:1 FDNS 19:11 gotten 23: 1 0 

deciding 37:11 employee 28:1,6,8 FDS19:11 Government46:12 

defense 37:2 enforcement 2:16 4: 14 FedEx 12:6,21 13:2 Government's 51:18 

definitely 21: 1 31:21 32:9 34:8 37:20 54:11 gross 33:7 

delay 6:2,22 engage 46:22 feel13:17 Grosvenor 2:4 

delivered 54:11 ensuring 28:1,4,6 figure 39:5 40:21 42:3 guess45:4 

delivery 13:22 enter 3:9 50:7 guidance29:9 32:12 

demonstrates 36:15 entirely 6:1 file 31:5 34:5 50:20 55:2 Guideline 36:18,21 

demonstrating 31:6 entitled 33:16 57:7 Guidelines 9:16 

denied 23:7 entity 31:20 filed 8:16 13:10,14 52:1 

deny 16:12,14,16 equal33:7 filing 18:17 H 

denying 13:10,12 15:8 ESQ 2:3,15 filings 46:19 H 19:19 

Department 1:1 2: 17 establish 23:22 filled 12:20 hand 14:14 

36:17,20 event 4:19 5:13 12:22 financial36: 14,15 39:3 handle 28:11 

depend 24:3 44:19 47:4 39:4,22 40:10 47:16 handling 21:18 

described 30:2 everybody 4:11 48:11,15 52:11,12,18 hands 54:10,15 

determine 5:7,14 evidence 24:11,22 25:9 financials 47:14 56:21 happened 22:3 

determined 39:16 25:15,16,19 26:13 find 15:22 18:7 22:15 happening 20:4 

determiner 42:5 exact29:12 44:17 hard 30:4 44:9 

determining 32:18 exactly 51:10 fine 5:5 43:1 45:15 50:5 hazard 45:4 

38:22 exceed 33:7 finish 31:4 hazardous 9:5,8 12:7 

different 12:9 28:18 Excuse 3:15 finished 35:3 14:22 16:8,13 17:1,7 

diminished 33:16 exercise 36:13 first3:10 10:14 13:10 17:14 18:14 20:8 

directions 12:10 expect 29:20 28:20 34:16 44:11 21:18 22:6 28:9 

directly 15:6 45:17 expediting 6:9 50:13 hazmat 28:1,6 44:5,12 

discouraging 40:19 experience 6: 19 flush 39:8,9,9 hear 32:7 

discovery 24:6 25:3,5 expired 8:1 0 focus 39:5 45:11 hearing 9:215:13,17 

37:4 explored 25:4 folks27:841:2142:10 16:2,3 26:1 29:21 

Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
61 

46:447:7 51:14,15 J letters46:17 motion 53:17,18 

57:9 ""~~···--~-- level30:3 37:11 38:22 motions 8:15 Jack 11:9 

hearings 1:2 51:8,9 January 21:2 levels 33:16 move21:13 54:1 57:20 

helpful 57:22 Justice 36:17,21 liable 18:7,7 19:5 MSDS 11:18 

HMRs 28:7,11 justify 26:15 lies 19:4 

holiday 56:3 lines 11:20,22 N 

HONORABLE 1:20 K little 10:7 40:18 N'est-ce 44:22 

hope45:18 54:12 57:20 keep 44:9 locate 11:2 name 5:2 8:2 23:18 

hydroxide 12:6 keeps 44:8 long 44:14 narrow 15:21 

hypochlorite 12:3,7,19 knew 16:17,18,20,22 longer 14:1,20 27:6,7 necessarily 27:15 

13:5 17:4,6,10,13,19 18:19 look 18:22 29:5 39:6 necessary 5:14 47:17 

18:19 20:4,7 42:17 need 5:20 8:18 9:21 

knowing 15:17 33:14 looked48:7 10:1711:5 22:15,19 

idea 15:14 21:1 35:21 50:18 51:9 looking 15:5 32:18 25:13 26:2 27:11,12 

identifies 10:18 knowingly 16:7 17:3,14 42:19 31:10 36:11,17 39:12 

identifying 17:7 17:2018:14,20 50:15 lot28:22 44:14 40:2 46:1 47:5,8,11 

immediately 40:17 50:17 55:7 lower44:21 47:1549:550:11,19 

implications 48:17 knowledge 13: 12 19:4 Luker 18:22 51:1156:16,1757:13 

implicit40:20 42:11 knowledgeable 29:21 needing 31:5 

improper4:21 28:16 known 4:1119:3 M needs 16:2 40:12 51:22 

30:9 mail54:12 55:14 

improperly 30:16, 17 L making 20:2 negative 23: 15 

incident 12:19 22:3,5 L-A-M-8- 3:12 manager 18:1,4 20:4 negotiate 33:14 41:5 

include 30:10 38:5 labeled 30:17 23:18 negotiating 21:3,7 45:6 

including 55:4 labeling 9:7 30:9 manufacturer 12:13 negotiation 20:19 

inclusive 28:19 lack 23:22 24:11 marking 30:9 neither 16:4 23:7 

Independence 2:19 Lambert 2:15 3:6,11,12 Master 11:9 never6:1,15 20:15 37:2 

indicated 16:7 50:22 3:19 4:2,5,9,19 5:10 material 9:6 11:1 12:7 normally 7:7 10:9 40:15 

indicating 34:5 50:20 5:116:8,14 9:11,15 12:12 14:18 16:13 46:13,16 

indication 47:8 10:1,6,12,2211:7,17 18:2 20:8 NORONHA 56:11 

individual 9:18 10:5,9 12:1113:614:16,17 materials 9:8 10:13 notice 1:15 8:22 24:7 

information 8:3 13:12 20:20 23:3,5,9,16,22 14:2216:817:1,7,14 40:15 

23:3,10 24:6 36:14 24:5,16,19 25:2,12,21 18:15 21:18 22:6 notices 46:20 

41:4 47:10,16 48:2,12 26:4,17,19 28:12,14 28:10 Notification 13:4 

48:15 49:22 50:7 52:2 28:22 29:7,18 30:7,20 matrix 42:19 43:8,13,13 November 9:1,2 50:9 

52:12,18 56:21 31:1 '13 32:4,6,11 '16 43:14,16,18 52:6 54:4,7,8,16 

inquiring 41:1 33:2 35:7,12,17 36:19 matter 1:4 3:4 5:4 12:1 56:18,21 57:4,5 

instance 27:19 30:8 36:20 37:140:1,10,14 17:3 58:7 NTSB4:16 

instructed 28:10 41:1342:15,18,19 maximum 42:17,20 number 3:5 10:18 19:1 

intention 15:16 43:2,5,9,12,17 44:1,6 43:1 ,8,8, 11 44:4,18 19:9,11 '11 '12, 17,20 

interested 49:9 44:10 45:3 47:16,19 44:19,21 29:3 31:6 39:13 51:20 

interesting 30:12 47:21 48:1 '16 49:6,13 MD2:6 numbers 29:10 38:5 

interference 50:12 49:14,18 55:10,19 mean 15:1 17:6 24:2 

interrogatories 24:8 27:15 29:8 35:12 39:7 0 56:1 57:12,17 58:6 

investigation 24:7 large 32:13 45:14 obtain 5:21 

40:15 late6:19 means 17:3 40:9 50:17 occurs 6:4 

involved9:1211:8 law 1:2117:3 18:17 meant35:12 October 1:10 19:21 

involvement 6: 16 19:4,6 29:22 37:22 measures 23:11 52:5 

!SPA 12:20 38:3,8,11,18 43:15,16 mention 6:21 Office 1:2 2:18 4:8 

issue 13:17 14:14 20:2 43:21 45:10 mentioned 47:6 officer 28:8 

20:5,8,11,13,16 21:8 learn 29:16 method 51:19 ones 9:18 15:3 28:18 

21:14 22:17,18 27:4 left21:5 Mills 19:16 opener 11:10 

30:3 37:2 40:20 41:17 legal 24:15 25:8 mind 8:5 45:9 order 5:20 7:6 19:1,17 

issued 19:1 legally 26:16 mislead 29:13 19:20 40:12 50:14 

issues 15:22 34:21 let's 13:9 21:13 31:17 misspeak 3:20 51:1155:14 

42:10 45:11 35:5 42:1 '16 45:8 misunderstood 44:11 ounce 11:9 

items47:5 46:2 50:5 Monday54:8 

letter 21:2 month 46:2 50:7 54:6 p 

Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
62 

P-R-0-C-E-E-D-1-N-G-S preparing 28:9 reason 53:7 27:22 

3:1 present25:14 26:2 reasons 49:20 respondent 1:6 2:2 3:7 

p.m 1:15 3:2 58:8 presents 39:8,10 recall 50: 13 14:21,21 15:8 16:6 

package 20:12 pressed 30:4 receipt6:3 17:18,19,22 18:4 

packaging 9:7 30:9 presumption 26:12,15 receipts 33:7,8,9 42:2 24:21 25:10 43:20 

page 7:10 previous 39:3 receive 49:20 54:9 56:5 47:8 

pages 17:7 probably 16:14 49:16 received 12:9 25:5 response 13:15 21:19 

papers 14:4,13 problem 53:5,12 record 51:9 58:8 27:21 52:3 

Paragraph 27:20 proceeding 3:8 5:16 refer 12:16 responses 16:5 23:20 

pardon 43: 15 8:22 36:2 43:15 56:8 reference 27:20 24:9 46:20 

part 36:1 process 6:9 34:21 references 12:2,18 responsibility 28:9 

particular 13:11 pronounce 23:17 referred 12:16 result6:22 

parties 13:16 proof 24:17 25:1,17 referring 12:12 returns 36:16 

pas 44:22 proper5:15 21:17 refers 12:3 13:4 reviewing 4:22 

pay7:4,7,21 36:1,5,22 propose 23:13 reg 10:4 rise27:16 

37:12 39:15,21 40:13 proposed 9:14 10:21 regarding 20:20 Riverdale 19:16 

40:20 41:7,11,15 29:5 41:10 49:7 51:19 regulation 31:11 32:21 road 12:1 

47:12,17 48:4,17 51:2 55:4 50:15 Rockville 2:6 

55:6 proposition 19:16 regulations 6:17 9:5,12 RONNIE 1:20 

penalties 10:8,19 35:1 o propriety 29:5 17:9 27:15 30:13 rule 5:9,12 

57:3 prove 23:13,14 24:4,17 31:16 37:6 44:12 rules 5:6 

penalty 8:22 9:9,14 25:10 26:6,11 55:11 regulations.gov 5:22 

10:11,19,2015:5 29:6 55:14,14,15 6:7,11 s ··--

30:3 31:7 33:14,16 proved 55:9 regulatory 31:10,20 S-M-A-L-L-1-N-G 19:20 

36:1,6 37:11 38:22 provide 11:5,6 21:17 32:8 37:20 43:8,11 S.W2:19 

40:2141:1042:18 22:13 36:14 39:22 relate42:7 50:13 51:18 safety 11:1812:12 

44:4,20,21 47:13 40:2,9,12 47:15 48:11 release 41:17 sanction 9:16 29:9 

48:20 49:6,7,16 51:20 49:12,21 50:6 52:6,10 relevance 45:5 32:19 

52:16 55:5 52:14 56:20 57:3 relied 43:12,13 sanctions 32:12 

people 26:7 27:4 29:20 provided 5:8 12:13 22:2 relief 5:1 satisfactory 24:8 25:6 

55:10 49:17 remedial 23:11 satisfied 25:18 

period 39:6 providing 25:15 52:8 remembering 12: 15 Saturday 54:7 

person 35:15 provision 5:6 remind 19:9 saw21:1 

personal6:16 public 7:2 repeating 19:9 saying 21:9 22:22 

personally 35:13 purpose 15:21 reply 55:17 57:8 25:11,20 28:21 30:6 

phone 3:5 pursuant 1:14 report 12:19 48:10 49:3 30:15,22 31:12 32:21 

phonetic 12:20 pursue 6:12 54:16 33:18 34:22 40:4,6,19 

picked 21:4 put6:17 24:15 53:5 reporter 3:7 5:20 7:7 40:22 41:12 42:12 

picture 39:8,11 56:15 29:14 46:1154:13 56:13 

Place2:4 putting 43: 19 reporter's 8:2 says 19:2 42:20 

plan 23:16 ---·-- represent 4:13,15,16 Scott 19:19 

play 39:1 Q 4:19 5:3 season 56:3 

point12:1416:6 21:7 qualification 55:5 request9:1 13:1514:10 second28:18 52:5 

38:21 56:8 question7:410:10 21:19 23:20 27:21 section 6:6, 13 

pointed 12:9 14:16 15:7 17:2 18:10 40:15 41:16 seeing 12:17 

position 21:22 18:13,13,16 20:6 requested 24:6 seeking 10:11,19,20 

possibility 27:1 o 21:13 32:5,22 34:11 requests 14:11 15:9 seeks 9:9 

posted 5:22 6:2 35:21,22 36:4,5 37:9 23:6 seen 11:120:1548:7 

posting 6:4 38:4 39:21 41:8,12 require 7:7 37:6 send40:1146:7,11 

posture 36:16 47:18 50:13 55:6,8,13 required 5:15 48:3 47:2 48:15 52:21,22 

practice 37:22 questions 38:3 41:22 requirements 9:8 28:2 53:1 

practicing 38:3 quite 4:11 32:7 28:7 sending 9:8 48:2 

pre- 29:20 47:6 --------··-- requires 17:10 19:2 sense 39:18 

pre-hearing 3:3 8:17 R. reserve 36:7 sent 13:1 20:12 

11:6 29:16 55:3 58:3 raise 37:9 39:20 40:5,7 reserving 36:11 separate 28:5 

precisely4:1312:10 raised 35:22 37:3,5 resettlement 48: 1 0 September 19:18 

29:19 raising 38:3 resolve 34:21 serve49:22 

prepared 29:22 real50:1 0 respect 22:6 25:16 served 9:1 13:10 

Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
set28:17 34:14 35:10 

41:9 47:4 57:9 

sets 32:12 

settle 20:21 34:17 

45:14 46:4 47:3 

settled 16:1 22:13 46:3 

46:10,12 47:3,5 49:3 

50:6 57:6,21 

settlement 41:5 45:6 

49:10 52:3 54:17 

settling 27:10 

seven 29:8,11 30:8,18 

sheet11:1812:13 

sheets 36:16 

ship 14:22 16:7 18:14 

shipment 9:6 10:13 

13:3 28:10 

shipped 16:1317:4,14 

17:20 18:20 30:17 

shipping 16:17,18,18 

16:2117:5,8,11,11,20 

18:20 50:18,19 

show40:12 

side21:12 51:16 

sides21:12 

sir 10:8 28:15 30:7 

32:15 50:4 

situation 4:18 30:1 39:3 

39:4 

six9:16,1910:3,4 

slow21:3 

small31:19,20 32:7,13 

33:1,15,17 34:1,6,6 

35:9 37:19 39:14 41:6 

42:4,5,8 44:17,20 

47:9 48:18 51:2 55:5 

Smalling 19:19 

sodium 12:3,6,19 13:4 

somewhat 6:20 

sorry 3:19 4:2 8:1110:6 

12:12 32:6,20 43:12 

sort9:1613:8 

sounds 33:11 

speak 17:15 

speaks 38:17 

specific 30:13,13 31:10 

31:11 

specifically 35:19 

specificity 9:22 

specifics 40:17 

specified 22:7 

stack11:214:12 

start48:19 

started 44:14 

stated 21:20 

statement22:13 

STATES 1:1 

statute 19:2 

(202) 234-4433 

straightened 31:4 

strikes 15: 1 0 39:11 

stuff 51:8 

subject 15:2 24:22 26:2 

38:18 

subjects 55:2 

submissions 50:11 

submit 10:17 

Subpart 28:2 

subsequently 21:19 

substantially 44:21 

substantiates 47:10 

sufficient 13: 12 

suggesting 24:20 45:10 

Suite2:5 

sulfuric11:1112:14,17 

20:7,12 

support 47:14 

supported 51:3 

supporting 18:18 

suppose 51:22 

supposed 8:16 38:9 

41:16 48:9 49:2 

surprised 29:15 

T 

Table29:9 

taken 39:12 

talk 7:14 23:17 36:12 

45:13 48:16 

talked 52:7 

talking 17:17,18 22:4 

45:5 48:7,19 55:10 

talks45:17 

tax 36:16 

teleconference 1: 14 

Telephonic 50:12 

tell9:12 13:19 14:18 

23:12 27:17 28:12 

38:8,11 39:2 40:1 

44:4 54:20 56:9,17 

57:6 

telling 45:9 

tells 37:8 

ten 11:9 

term 42:3 

terms29:1047:13 

testify 24:3 26:8 

testimony 24:11 

thank 5:5 57:18,19 58:2 

58:5,6 

Thanks 55:22 

theory 20: 15 

things 27:8 34:15 37:10 

39:1150:12 51:1 53:8 

54:3 56:16 

throw 51:8 

tie 30:12 

tied 31:10,16 

timing 53:6 

title 29:12 

titled 13:3 

today31:3,4 34:3,12,13 

38:6 47:20 48:2 52:4 

53:2 54:5,6 57:14 

told 16:3 26:6 

touch 46:5 

track44:9 

trained 28:1,6 

training21:15,17 22:1,6 

22:9,10,11,14 23:4,14 

24:1,4 25:17 26:7,8 

27:4 28:16 55:8,11 

Trans 1:5 3:4 5:3 23:18 

31:19 

transcribe 3:8 

transcript 5:8,14, 17,19 

6:3,10 8:15,18 56:8 

56:10 

transferred 6:5 

Transportation 1:1 

2:17 

trial25:3 

true21:12 

trust 9:20 

try 7:1 10:16 14:14 

15:13 24:15 26:6 39:2 

42:9 51:10,11 

trying 10:12 11:1 42:9 

turning 25:9 

two 12:1,919:15 28:13 

28:18 48:13,14 49:2 

49:12,19 52:1,4 53:4 

53:8 54:4,22 

type22:7 

typically 14:22 

---~--~ ~_l) ____ _ 

Undeclared 13:3 

understand 21:9 22:21 

24:16 25:11 26:3,21 

28:20 30:6,7,15,21 

31:12 33:17 34:22 

38:14 40:19 41:12 

42:12,17 45:1 52:10 

54:13 55:9 56:12 

understandable 4:12 

understanding 20:9 

22:8 25:20 48:1 

understood 3: 15 

UNITED 1:1 

unnecessary 19:5 

uses 42:4 

--~-~ ~-~-y_ ~- ~ ----~--

various 9:5 34:15 47:5 

Neal R. Gross and Co., Inc. 

Washington DC 

63 

violate 50:15 

violation 10:14 19:4 

27:22 28:3,13,15,16 

29:10 31:8,15 38:17 

42:18,21 43:1,3,5 

44:5,12,16 52:15 

violations 9:4,13,17 

10:5,7,9,10,18 24:18 

27:13,16,18 29:3,4,8 

29:13 30:5,14,18 31:6 

31:9 51:20,21 

violator 19:3 

violators 19:5 

w 

wait 7:1 

walk 6:14 

wanted 13:15 

Washington 2:20 

wasn't 10:1 18:20 24:3 

way 26:11 29:4 

website 7:17,19 

Wednesday 1:9 

week 55:17 

weeks 48:13,14 49:2,12 

52:1,4 53:4,8 54:4 

55:1 

went 58:8 

William 18:22 

wind 18:17 22:17 45:14 

winds 50:8 

words 21:1 

work 55:12 

works 14:21 

worry 22:19 

wouldn't 53:9 

writing 56:5,6,17 

written 25:4 

wrong 20:2 

X 

y -- ·-·- ·- -·-

year 33:8 

---- - ---' ---- ~ -~~--~-- ~ ... 

z - -------

0 

1 

10 9:3 

10101 2:4 

11,00044:18 

1219:18 55:1,2,16 57:7 

15 5:14 

172 28:2 

18 9:2 

19 55:21 

www.nealrgross.com 
199419:21 

1994-19:20 

19th 57:8 

____ 2 _____ _ 

2:001:15 

2:06 3:2 

200319:18 

2003-1019:17 

2009-104419:13 

201019:2,7 

20118:10,13 

2012 9:1,2,3 

2013 21:2 33:21 

20161:10 

202 2:7,21 

20591 2:20 

208522:6 

21(m) 27:20 

229:11,1711:921:2 

27:14,16 

2350 32:18 

261:1050:9 

267-3357 2:21 

26th 54:7 

276-4726 2:7 

28 54:8 

28th 54:16 57:5 

____ 3_ 

3(b) 32:18 

3:10 58:8 

30 8:16 56:16 

3119:21 

33,000.00 30:19 

33,950 9:10 30:20 

-~----~-------

40017:6 

___ __§____ __ _ 

519:17,2152:5 

50,000 44:6,12,13,16 

- ~---~-6 _____ _ 

620 2:5 

-~ ____ 7__ _ 

7 9:1 19:21 

750,000 33:8,9 38:6 

-~-8-

800 2:19 

82,000 43:2 

8200 42:20 

8200.00 43:2,4 

_____ 9__ ~-

(202) 234-4433 

9 52:6 54:4 56:18,21 

57:4 

9th 52:6 

Neal R. Gross and Co., Inc. 

Washington DC 

64 

www.nealrgross.com 
65 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 WNW.nealrgross.com