UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF JOHN CROFT FAA DOCKET NO. 2012-AWA-CPP-13423 (Civil Penalty Action) DMS NO. FAA-2012-0903 

# RECEIVED FEB 26

## 2013 

## HEARING DOCKET

COMPLAINANT'S MOTIONS TO DEEM ADMITTED EACH ALLEGATION IN THE COMPLAINT, AND FOR A DECISION AS TO THE VIOLATIONS The Complainant moves for an Order deeming admitted each allegation in the Complaint. The basis for this motion is that Respondent has failed to submit an answer to the Complainant as required by§ 13.209(a) ofthe Rules ofPractice, 14 C.F.R. § 13.209. This motion is based on the following facts: 1. On September 10, 2012, the Complaint in this matter was served on Respondent by certified mail, return receipt requested, at the address indicated in his request for a hearing. Included inthe Complaint is a notice to the Respondent regarding the requirement for an answer

as well as the effect offailing to timely submit an answer. 2. The return receipt indicates receipt at Respondent's address on September 12, 2012. Exhibit A is a copy ofboth sides ofthe PS Form 3811, Domestic Return Receipt. 3. On September 28, 2012, the assigned lawjudge issued a Procedural Order in which he specifically reiterates the requirement for an answer as well as the consequences offailing to file

an answer. 4. To date, Respondent has not filed an answer. 

# 7

1Section 13.209(a) ofthe Rules ofPractice clearly requires that Respondent submit an Answer within 30 days ofthe service ofthe Complaint. FederalAviationAdministration v. Playter, FAA Order No. 90-15 (March 19, 1990). The 30-day time limit is an absolute requirement that may not be enlarged absent a showing ofgood cause for the failure to timely submit an answer. In the Matter of Pierre A. Robinson, FAA Order No. 97-18 (May 23, 1997); In the Matter of Atlantic WorldAirways, Inc., FAA Order No. 95-28 at 3-4 (December 19, 1995). Further, in In the Matter of DonaldM Missirlian, FAA Order No. 97-19 (May 23, 1997), the FAA Decisionmaker finds the explanation insufficient to establish good cause, and he affirms the assessment ofthe civil penalty requested inthe complaint. Based on the foregoing and pursuant to § 13.209(f) ofthe Rules ofPractice, the Respondent's failure to timely submit an answer without good cause must be deemed an admission ofthe truth ofeach allegation inthe complaint. The Complainant further moves, pursuant to § 13.218(£)(5) ofthe Rules ofPractice, for a decision finding that Respondent violated the regulations as alleged in the complaint and limiting the hearing inthis matter to the consideration ofan appropriate sanction. This motion is based

onthe deemed admissions ofthe allegations inthe complaint as well as the statements Respondent made in his response dated February 24, 2012, to Complainant's Notice dated February 17, 2012. (Exhibit B) In his written response, Respondent acknowledges that he was supposed to have transported his boss's bags onthe Alaska Ferry, but forgot them. He then called the Skagway Police and asked for someone to collect the bags and have them delivered to

a local air carrier for transportation by air to Sitka, Alaska. These statements clearly establish that through an agent, Respondent offered the bags for transportation by air, and there is no dispute that the bags contained signal and aerial flares.

2Respondent may well not have known that the flares were inthe bags. Such a lack of knowledge as to the facts, however, does not meanthat he did not knowingly violate the regulations. Under 49 USC§ 5123(a)(l), "Aperson acts knowingly when-

...(B) a reasonable person acting in the circumstances and exercising reasonable care would have that knowledge." As the shipper Respondent had a duty to know what was inthe bags that he, either directly or through an agent, offered to Wings ofAlaska for transportation by air. In the Matter of Riverdale Mills Corporation, FAA Order No. 2003-10 (September 10, 2003); In the Matter of Interstate Chemical Company, Inc., FAA Order No. 2002-29 (December 2, 2002); 49 C.F.R. §§ 171.2(f) and 172.204( c)(3)(i)(B). Because a reasonable search would have revealed the presence ofthe flares, Respondent knowingly violated the regulations as that term is defined in 49 USC § 5123(a). WHEREFORE, the Complainantrequests that the Law Judge enter an order deeming the allegations admitted and finding that Respondent violated the regulations as alleged in the complaint, 1 and limiting the hearing in this matter to the consideration ofan appropriate sanction. Respectfully submitted this the 19'h day ofFebruary 2013. HOWARD L. MARTIN, JR Regional Counsel

# By:2PJL~ Glenn H. Brown Senior Attorney

1 Alternatively, Complainant asks that the lawjudge enter an order deeming admitted the factual allegations. Based on Respondent's failure to file an answer as well as the statements in his response to the original Notice, there is no genuine issue as to a material fact such that testimony from apercipient witness is necessary. 3CERTIFICATE OF SERVICE Re: John Croft FAA DocketNo. 2012-AWA-CPP-13423 DMS No. FAA-2012-0903 I hereby certifY that on this date I have served a copy ofthe Complainant's Motions to Deem Admitted Each Allegation in the Complaint, and For a Decision as to the Violations by facsimile transmission and by postage-prepaid, certified mail, return receipt requested, as indicated to the following: The Honorable Richard C. Goodwin Administrative Law Judge Office ofHearings, M-20; Room 5411 400 Seventh Street, S.W. Washington, DC 20590 FAX: (202) 366-7536 John Croft (via certified mail only) 134 Lincoln Street Sitka, AK 99835 I further certify that onthis date I have served the original ofthe Complainant's Motions to Deem Admitted Each Allegation in the Complaint, and For a Decision by postage-prepaid, certified mail, return receipt requested, addressed as follows: Federal Aviation Administration ATTN: Docket Clerk 800 Independence Avenue, SW., Room 924A Washington, DC 20591 DATED: 

# J-&6.**/~** ;l0/3

Federal Aviation Administration Office ofRegional Counsel 222 West 7th Avenue, Box 14, AAL-7 Anchorage, Alaska 99513-7587



### 4SENDER: COMPLETE THIS SECTION, · • Complete Items '1, 2, and 3. Also complete

item 4 If Restrict8d De!iv6ry Is desired. • Print your name and address on the reverse

so that we can return the card to you. • Attach this card to the back of the mailplece,

or on the front if space permits. 1. Article Addressed to: Mr. John Croft 134 Lincoln Street Sitka, AK 99835

2. Article Number (Transfer from**~** 

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## ~~e.**addres~+;flnthl~b~;;-.** FEDERAL AVIATION ADMINISTRATION Alaskan Region Headquarters Office of the Regional Counsel 222. W. 71h Avenue #14 Anchorage, AK 99513-7587

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## 'UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF JOHN CROFT FAA DOCKET NO. 2012-AWA-CPP-13423 (Civil Penalty Action)
DMS NO. FAA-2012-0903

DECLARATION OF CHERYL M. JONES I, CHERYL M. JONES, declare as follows: 1. I am an attorney for the Federal Aviation Administration in the Office ofRegional Counsel for the Alaskan Region. I have been in my presentposition since September 1990. As part of my duties, prior to February 1, 2013, I was handling the above-styled matter on behalfof Complainant. 2. After reviewing the file, I issued the Notice ofProposed Civil Penalty in this matter on February 17, 2012. The Attachment to this declaration, which consists ofa total ofthree pages, is a copy ofwhat I received on March 12,2012, in response to the Notice. The first two pages are a statement by Respondent, and the third page is a statement by Douglas Borland, who indicates he was the owner ofthe bags that contained the flares. 3. Based onthe statements in the Attachment as well as similar statements during and after the informal conference on July 9, 2012, I issued a Superseding Notice ofProposed Civil Penalty on July 24, 2012. The purpose ofthe Superseding Notice was to clarify that Respondent's offer of the three bags to SeaPort Airlines, Inc., d!b/a Wings ofAlaska, was through an agent. I declare under penalty ofperjury that the foregoing is true and correct. Dated this 19th day ofFebruary 2013.

# ~~~ CHERYL M. JONES

I

### Feb. 24, 2012 US DepartmentofTransportation FAA Alaska Region 222 W. 7th Avenue, #14 Anchorage, AK 99513 RE: Case No. 2011NM730130 "Notice ofProposed Civil Penalty" Dear Sir orMadame: ------



### Please acceptthis letter as partial submission ofinformation for your consideration in my response to the above referenced case. Although admitting thatthere may have been a technical violation, circumstances leading up to the alleged violation should be considered; and for sure I objectto the penalty proposed ($12,000) as unnecessary and excessive as there was no knowledge or intentto transporthazardous materials on my or any one else's part; no hazardous materials actually made it onto the Alaska Airlines plane, and the materials (several marine flares) were notknown by me to be in the freight when it was shipped, in fact I did not "knowingly offer" or even actually physically ship the freight myself! Please let me explain in some detail the event as it occurred: On or about September 26, 2011, as an employee ofthe Russian American Store, I was responsible for closing up for the winter our Skagway store and Skagway employee housing; and then shipping our inventory and some ofour worker's personal gear backto Sitka (my home and the homebase ofRussian American Co, my employer). Atthattime, all ofthis inventoryand personal gear was being tal<en byme to the Alaska Marine Lines docktobe putonthe barge to Sitka which departed that evening as didthe Alaska Ferrywhich was my passage home to Sitka. In the rush to make the barge; close up the store, and for me to make my Alaska State Ferryhome, Iaccidently overlooked 3 bags ofmy boss's personal gear, which were subsequentlyleft outside on the streetin Skagwayin a staging area. These bags were supposed to be included by me as partofa huge shipment on the Alaska Marine Lines barge that I was loading outto bebarged to Sitka that night. Iwas long gone from Skagway, as were all ofour company employees, a daylater, when I discovered myerrorwith the bags, --thatI had accidently left them behind!. So I called the Skagway police departmentto alertthem thatthere were 3 bags of valuable personal gear left on the street; and theywere nice enough to find them, pick them up, and permy instructions (since the Alaska Marine Lines barge had alreadyleft) they physicallytookthem to Wings ofAlaska and putthem onAir

### Freightto Sitka under myname. So, first ofall, Iwas notthe onewho physically tookthese 3 bags to Wings to ship them on Air Freight! Secondly, since these pieces were knownto me only as duffle bags and a suitcase of clothing and personal gear, it did not occurto me thatthere mightbe any kind of "hazardous materials" involved. Further, since the actual owner ofthe bag in question assumed that his gearwas going home bybarge, he was 0 Kin having the marine flares in the bag, so he did not have any intention ofbreaking the rules either! At thattime, I wasjustthankful that the bags wererecovered; and happythatthe police found them intact, and happythatthe Skagwaypolice departmentwas kind enough to shipthem home to us byair-freight. We all had the best ofintentions. Thus, a fine of$12,000 seems completely unreasonable and unfair, considering the circumstances; and I am alreadyworking ata minimumwage, living onthe edge of my abilities, and mostlikely would have to file bankruptcy iffaced with a $12,000 fine! I cannot afford an attorneyto fight this; and do not understand whythis could possibly generate such a fine. I am ex-military and ex law-enforcement myself, and I certainly respectthe rules and would never intentionally break any law. The Skagway police department, air service, myboss and fellow employees all are available and willing to attest to the facts and circumstances faced leading up to the inadvertent and accidental shipping ofthe marine flares in the bag. There was certainly no intentto knowingly break any rule; and no reasonable way I personally could have checked the bags or declared the contents., as theywere in the possession ofthe police dept. and I was out oftown! (Also, I understand that marine flares routinely can be transported on passenger planes ifdeclared and accompanied bythe owner; this wasjustimpossible due to the circumstances). It also occurs to me that at our airport here in Sitka, manyhunters and mariners travel through everyyear, and Iknow ofseveral times passengers have inadvertently failed to declare marine flares orrifle ammunition in their luggage or even in their carry-on bag; these passengers are not fined, so singling me out seems particularly arbitrary and excessive. Irespectively requestthat the proposedfine and penalty action against me be waived; as anyfine orpenaltyis notwarranted due to the circumstances. Ifthis cannot be done administratively upon consideration ofthe above facts, then ! 

### also am requesting an informal telephone discussion with your FAA attorney permy attached reply, and Iwould have to request further action ifthis cannotbe resolved. Sincerely,

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## f-o**-.Decl~""+"l'l** o'f

## c~l'!ry( 

## .**~n<'.,S** ;l. 

### of::

### TO WHOM IT MAY CONCERN: My name is Doug Borland and Iwas the owner of 

### 3bags of personal gear left behind in Skagway last September to be shipped via Alaska Marine Lines back to my home in Sitka 

### by the Russian American 

### Co. The bags were left**acciden~y** 

### behind in Skagway, and did not make the barge as scheduled, so they were picked up by the Skagway police who dropped them off at Wings of Alaska to be shipped to Sitka via Air Freight. John Croft is an employee of Russian Amelican Company here in Sitka
- he was closing our Sl<agway store, and he was the one who forgot the bags and then, because he had left Skagway, he phoned the Skagway police who found them, and it was the police personnel who actually did the shipping to us through Wings ofAlaska and Alaska Air Lines. I understand that an incident occurred when the bags were x-rayed at the Juneau airport and they found some marine flares that I had in the pocket of my vest in one bag. (While in Skagway, we lived on the outskirts oftown and had some beartroubles; I had the flares with me there to scare the bears!) John had no idea that they were in my bag; we had no communication about the bags until afterthe flares had been discovered at the airport. Iwas of course underthe impression that my bags would be included on the barge shipment from Skagway, so the marine flares were perfectlyfine traveling thatway. 

### It seems unreasonable to hold John responsible due to the circumstances - the Skagway police actually put the bags 

### on Wings; the bags belonged to me; and John was just doing his best to take care of aproblem. He was not physically present when the bags were shipped so he could not examine the contents; he naturally assumed that the bags contained only my clothing and items of a personal nature. I certainly apologize for any inconvenience !hatthis incident may have caused, and Iwant this letter to be used as an affidavit of support and an explanation ofwhat happened so John is not unjustly punished. Iam available at any time for further explanation or discussion. Tha you, ,I 

# I

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