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'i 

UNl'ltD STATES DEPARTMENT OF TRANSPORTATION ''^npfATim' 

OFFICE OF HbARrNGS -^ ''\Pp'^(l'\oli-: 

WASHINGTON, D.C. ^' '"'"'' ' 

IN THE MATTER OF 

SMITH CABLE SYSTEMS, INC. 

FAA DOCKET NO. CP09AL0012 

(Civil Penally Action) 

DMS NO. FAA-2(K)9-0976 

? 1 P 9: 7 

ADMINISTRATOR'S CLOSING ARGUMENT 

I. Introduction. 

Complainant Federal Aviation Administration ("Administrator"), through counsel, 

hereby presents its elosing argument. 

IL Allegations and Defenses. 

Respondent Smith Cable Systems, Inc. ("Smith Cable") violated mimerous regulations by 

offering undeclared hazardous materials for transportation by air, violations that warrant a 

$60,000 civil penalty. 

As alleged in the complaint and proven by the preponderance of the evidence at hearing, on 

September 10, 2008 in Ketchikan, Alaska, employees of Smith Cable, acting within the scope 

and duties of their employment, offered on behalf of Smith Cable a large shipment of goods for 

transportation to Fairbanks, Alaska by passenger-carrying aircraft of Ala.ska Airlines. Concealed 

within the shipment were two 16.4 ounce cylinders of Coleman Propane Fuel ("the propane") 

and one 12 ounce can of Premium Decor spray paint ("the spray paint"). Each are cla.s.sified SA 

hazardous materials by the Department of Transportation's Hazardous Materials Regulations (40 

CER Parts 171-80) ("HMRs"). 

Smith Cable ("ailed to meet its obligation, as a shipper, to ensure the safety of its shipment and 

needlessly placed passengers, crew, cargo handlers, and others in peril. In fact, not only did 

Smith Cable fail to declare the hazardous materials. Smith Cable actually declared on the waybill 

that the shipment did not contain hazardous materials. 

Smith Cable's fundamental failure to alert others to the presence of the hazardous materials 

violated numerou.s regulatory requirements. Smith Cable failed to prepare proper shipping 

papers, failed to properly mark or label the shipment, and failed to provide an emergency 

response telephone number for Alaska Airlines to use should a spill or other accident occur, hi so 
05/27/201 1 11:55 FAX 2024935142 FAA .QM S @002/01 2 

doing. Smith Cable denied Alaska Airlines personnel the opportunity to take the precautions 

necessary to properly transport these hazardous materials. Moreover, the propane that Smith 

Cable offered is so hazardous that it is absolutely forbidden for transport aboard passengercarrying aircraft. In shon. Smith Cable's shipment was dangerous and warrants a substantial civil 

penalty. 

As set fordi in the complaint and demonstrated at hearing, Smith Cable violated the following 

HMRs; 

a) Section 171.2(e) in that Smith Cable offered hazardous materials for transportation in 

commerce when each material was iiot properly classed, described, packaged, marked, 

labeled, and in condition for shipment as required or authorized by applicable 

requirements of the HMRs, or an exemption or special permit, approval, or registration 

issued under the HMRs or Subchapter A of Chapter 1 of Title 49, Code of Federal 

Regulations; 

b) Section I72.2()0(a) in that Smith Cable offered hazardous materials for transportation 

without describing the materials on the shipping paper in the manner required by 49 CFR 

172 Subpart C; 

c) Section 172.201(d) in that Smith Cable offered hazardous materials for transportation 

without including in shipping papers an emergency re.sponse telephone number as 

prescribed by 40 CFR 172 Subpart G; 

d) Four paragraphs of Section 172-202(a) in that Smith Cable offered hazardous materials 

lor transportation without including on the shipping paper for each material 

i) the identification number (172.202(a)(l)); 

ii) the proper shipping name (172.202(a)(2)); 

iii) the hazard classes or division number (172.202(a)(.3)); or 

iv) the total net mass per package or total gross mass per package, as applicable 

(172.202(a)(6)); 

e) Section 172.203(r) in that Smitli Cable offered hazardous materials for transportation by 

air without stating on the shipping paper that the shipment is within the limitations 

prescribed for either passenger and cargo aircraft or cargo aircraft only; 

f) Section 172.204(a) in that Smith Cable offered hazardous materials for transportation by 

air without certifying on the shipping paper that the materials were offered for 

transportation in accordance with the HMRs: 

g) Two paragraphs of Section 172-204(e) in that Smith Cable offered hazardous materials 

for transportation by air 

i) without providing two copies of the certification required by Section 172.204 

(172.204(c)(2)); and 

il) without adding to the certification required by Section 172.204(a) the statement "f 

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

(172.204(c)(3)); 

Smith Cahli! Svszenn: Inc. DMS No. FAA-2009-0976 

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h) Section 172.300(a) in that Smith Cable offered hazai'dous materials for transportation 

without marking each package containing the materials in the manner required by 

Subpart D of Part 172 of the HMRs; 

i) Section 172.301(a) in that Smith Cable offered hazardous materials in non-bulk 

packaging for transportation without marking the package with the proper shipping name 

and identification number for the materials as shown in the Hazardous Materials Table in 

Section 172.101 ("Hazardous Materials Table") of the HMRs; 

j) Section 172.400(a) ixi thai Smith Cable offered hazardous materials in non-bulk 

packaging for transportation without labeling the packaging with labels specified for the 

materials in the Hazardous Materials Table and Subpart E of Part 172 of the HMRs; 

k) Section 172.604(a) in that Smith Cable offered hazardous materials for transportation 

without entering on the shipping paper an emergency response telephone number as 

described in the section: and 

I) Section I73.27(b)( 1) in that Smith Cable offered hazardous materials for transportation 

by air aboard passenger-carrying aircraft when column 9A of the Hazardous Materials 

Table indicates the material is forbidden for transportation aboard passenger-currying 

aircraft. 

Complaint. 

Smith Cable admits it made the shipment in question, but defends by claiming it did not .ship any 

hazardous materials. Smith Cable admits that it offered a shipment to Alaska Airlines, that on the 

waybill it described the shipment as '"tools", that the shipment was not accompanied by a 

Shipper'.? Declaration for Dangerous Goods, that the waybill was marked to indicate that no 

dangerous goods were included, and that the propane and spray paint are classified as hazardous 

materials under the HMRs. Answer at 1-2. Nevertheless Smith Cable denies that its shipment 

included the propane or the spray paint and a.sserts several affirmative defenses. Answer at 2-3. 

III. Evidence. 

The testimony and evidence presented through the following witnesses, read fairly and 

completely, demonstrates Smith Cable's culpability for each of the violations as alleged. 

A. Stephen CamPStephen Camp testified by telephone from Ketchikan as follows. Mr. Camp works for Alaska 

Airlines in Ketchikan. (Tr. 41) At the time of the shipment, he had been working for Al'a,.ska 

Airlines as a Ramp Service Agent for over two years, working the ramp loading and unloading 

aircraft. (Tr. 41-42) Mr. Camp was trained to screen cargo for hazardous materials, (Tr. 42). 

Mr. Camp recalled discovering a camp stove in the Smith Cable shipment as he moved the 

shipment to the warehouse. (Tr. 44) Specifically, Mr. Camp testified that, using a small forklift, 

he lifted a pallet of Smith Cable shipment pieces to the warehouse. (Tr. 47, 75-76) Along the 

way, he hit a bump, causing a camp stove within the shipment to fall. (Tr, 48) Tlic fall caused the 

stove to open. (Tr. 48) Two green tanks of propane spilled out of the stove. (Tr. 48) 

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After discovering the propane tanks, Mr. Camp told a warehouse person what happened. (Tr. 49) 

Together they decided they'd better "go through the whole shipment and see if there was 

anything else in there." (Tr. 49) During that search, they opened up every box and tote in the 

shipment and found spray paint. (Tr. 49-50, 75-76) Mr. Camp identified Exhibits C-1, C-2, C-3, 

and C-4 as photos of the propane and spray paint found in the Smith Cable shipment. (Tr. 53-

55) The shipment had no hazardous materials markings or labels. (Tr. 52) After removing the 

•'restricted stuff from the shipment, the remainder of the shipmen.t was sent on its way to 

Fairbanks. (Tr. 77) 

B- Timothy Cook. 

Timothy Cook testified by telephone from Ketchikan as follows. Mr. Cook works as a ramp 

agent for Alaska Airlines in Ketchikan, loading and unloading cargo on passenger aircraft. 

(Tr.85-86) By the time of Uic Smith Cable shipment, he'd been with Alaska Airlines for roughly 

17 months. (Tr. 86) Mr. Cook has received dangerous goods awareness training. (Pr. 87) 

Mr. Cook worked on September 10, 2008 and specifically recalls Smith Cable's shipment on that 

date. (Tr. 88-89) The shipment contained 24 pieces. (Tr. 94) Mr. Cook testified that, on that day, 

Mr. Camp reported to him that, while bringing pieces of the Smith Cable siiipmeni back to the 

warehouse, a stove fell off a pallet, broke open, and exposed a couple of propane cylinders. (Tr. 

90,93-94) Mr. Cook described the stove found within the Smith Cable shipment as a green selfstanding barbecue. (Tr. 98) It works by having a bottle of propane screwed into it for fuel. (Tr. 

98-99) 

When Mr. Camp told him about the hidden propane he found. Mr. Cook decided to go through 

the entire shipment. (Tr. 90) At this point, Mr. Cook took possession of the shipment from Mr. 

Camp, (Tr. 96) While doing that full screen, Mr. Cook discovered a can of spray paint in one of 

the boxes or crates of the shipment. (Tr. 90, 94-95) Upon completing his full screen and 

removing the hazardous materials, the shipment cleared and likely continued on. (Tr. 96, 100-01) 

A cargo agent wrote up a report of the hazardous materials he and Mr. Camp discovered. (Tr. 

100) Mr. Camp identified Exhibits C-1, C-2, C-3, and C-4 as photos of the propane and spray 

paint found in the Smith Cable shipment. (Tr. 102-06) The photos were taken by Kyle Forbes, an 

intern. (Tr. 103-06) 

Alter discovering the propane and the spray paint. Mr. Cook obtained the waybill for the 

shipment. (Tr. 106-09) Mr. Cook testified that he sougjit the waybill in order to determine who 

coffered the shipment containing the dangerous goods. (Tr. 110) During the hearing, Mr. Cook 

was presented with Exhibit C-5. (Tr. 106) Mr, Cook recalled seeing Exhibit C-5 on the date in 

question, September 10, 2008. (Tr. 107) He testified that Exhibit C-5 was the waybill that 

matched the shipment thai the propane and spray paint were discovered in. (Tr. 106-09). Mr. 

Cook staled that the eight digit number on Exhibit C-5, 74712632, matched tlic lot labels on the 

Each photo was admilied into evidence. (Tr. 173-76) 

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24 pieces of the shipment that contained the dangerous goods, telling him that this was the 

waybill for the shipment, (Tr. 109)" 

C. Special Agent Jeffrey Deitz.. 

Special Agent Jeffrey Deitz testified in person as follows. Agent Deitz is a ha?.ardous materials 

specialist/enforcement agent for the FAA. (Tr. 149) He has held that position for 13 years. (Tr. 

150-51) He is a trained investigator. (Tr. 153-54) Among Agent Deitz's responsibilities is the 

invcstigaiiim of hazardous materials offered by shippers to air carriers. (Tr. 149-50) 

Agent Deitz first learned of the shipment at issue in this matter when he received a faxed 

hazardous materials discrepancy report (Ex. C-6) from Alaska Airlines in Ketchikan. (Tr. 154-

55) Agent Deitz first saw the report on September 11, 2008. (Tr. 161) Agent Deitz contacted 

Ala.ska Airlines in Ketchikan and asked for funher information, including the waybill and 

photographs of the hazardous materials. (Tr, 163) Agent Dciiz received the waybill and 

phoUjgraphs from Alaska Airlines. (Tr, 166-177-78) 

With the photographs and the waybill. Agent Deitz turned to determining just what the 

hazardous materials were. (Tr. 179-80) He obtained material safety data sheets for the propane 

and the spray paint. (Tr. 179-80) Based on what he learned, Agent Deit/ drafted a letter of 

investigation ("LOI"). (Ex. C-9) Agent Deitz sent the LOT, which is addressed to Smith Cable, 

on September 17. 2008. (Tr. 181) 

Agent Deitz received a phone call from Ronald Smith of Smith Cable on October 1, 2008. (Tr, 

! 82) Mr. Smith asked about the LOI. told Agent Deitz tJiat he would investigate the matter, and 

gel back in touch with Agent Deitz. (Tr. 182-83) However, when a couple weeks passed with no 

contact from Smith Cable, Agent Deitz called Mr. Smith on October 27, 2008. (Tr. 184) During 

their brief conversation, Mr. Smith told Agent Deitz that Smith Cable "did have a shipment and 

that they had a grill." (Tr. 185) Mr. Smith also told Agent Deitz that he would put his findings in 

writing and send ihcm to Agent Deitz, but Mr. Smith never did. (Tr. 185, 187)' 

D. Ronald Smith. 

Ronald Smith testified in person as follows. Mr. Smith is president of Smith Cable, a company 

he began in 1984. (Tr. 294) hi the summer of 2008, Smith Cable employees Todd Linnc and 

TomFialek worked cable projects throughout southeast Alaska, finishing in Keichikan. (Tr. 296-

97, 303) When their work in Ketchikan concluded, Mr. Linne and Mr. Fialek were to fly to 

Fairbanks. (Tr. 304) Their work tmck was scheduled for shipment by fcny dcpaning on 

September 15. 2008, five days after Mr. Linnc and Mr. Fialek were to fly, meaning September 

10, 2008, (Tr. 305-06) 

' Exhibit C-5 wa.s not utcepced inlo evidence. An Alaska Airlines waybill liearing rhe same eight digits wa.s accepted 

into evidence A.^ Defendant'.*, Exhibit B. (Tr. 3^9-401) 

•' Agent Deiiz's notes of his conversations with Mr. Smith appear as F.xhibiL C-10, 

Smith Cable Svsti;)».<;. Inc. DMS No. FAA-2009-0976 

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Turning to the hazardous materials in this case, Mr. Smith was asked if it was uncommon for 

Smith Cable einpioyces 'Ho purchase a small stove when they're on the roads on business 

ventures like this?" (Tr. 307) Mr. Smith responded that it was "Injot at all uncommon", that it 

peitnits them to prepare a hot meal without going to a restaurant. (Tr. 307) In fact, Mr. Smith 

asked his Ketchikan crew whether they had a stove in Ketchikan and they told him they did. (Tr, 

313) Mr. Smith later contradicted this testimony, however, saying the crew told him they weren't 

sure if they had il in Ketchikan or had left it in a prior community, (Tr. 320) 

Mr. Smith testified that, for the job they were performing, Mr. Linne and Mr. Fialek would have 

L\o need for spray paint (Tr. 307-08), but conceded that did not mean that his crew did not in fact 

have a can of spray paint in Ketchikan- (Tr. 334) 

E. Annie Afusia. 

Annie Afusia testified by telephone as follows. Ms. Afusia worked for Smith Cable for two and 

a half years beginning in September 2006.(Tr. 389-90) Among her duties were making travel 

arrangements for Smith Cable work crews and their equipment. (Tr. 39-91) As Mr. Linne and 

Mr. Fialek concluded their work in Ketchikan in September 2008, Ms. Afusia arranged for them 

to ship two or three pallets of equipment and luggage by air from Ketchikan via Alaska Airlines. 

(Tr. 394-95) She also arranged for a courier" to take these items from the crew to Ala.ska 

Airlines. Ms. Afusia had no knowledge of a propane stove or a barbeeue being shipped. (Tr. 398) 

Ms. Afusia arranged for an Alaska Airlines waybill for the Ketchikan crew to use in shipping the 

Smith Cable items KJ Fairbanks. (Ex. B; Tr. 399-400) Ms. Afusia acknowledged that Smith 

Cable expected that some of the items that the crew would include in the shipment would be 

crewmember personal items. (Tr. 404-06) Ms. Afusia never saw the actual shipment. (Tr. 406) 

F. Todd l-inne. 

Todd Linne testified by telephone as follows, Mr. Linne worked cable projects for Smith Cable 

from April 2008 to January or February 2009. (Tr. 411) He did not use spray paint as pan of the 

job. (Tr. 414-15) However, while working this job, he purchased a small propane stove in 

Petersburg, Alaska. (Tr, 415) The stove was dark colored, perhaps black or gray or green. (Tr. 

430) It works by having a bottle of propane screwed into it for fuel. (Tr, 415-16) When the 

crew's work truck was shipped by barge within ihe villages, the stove would be on the truck. (Tr. 

416) When they completed the job in Ketchikan and prepared the Alaska Airlines shipment, the 

air shipment was placed on shrink-wrapped pallets. (Tr. 417-18) However, the courier could not 

put the pallets on the courier's tmck, so Mr. Linnc. Mr. Fialek, and the courier disassembled the 

palleLs and loaded everything into the courier's truck by hand. (Tr. 418-419, 421, 428-29) Mr. 

Linne did not recall placing the stove in the courier's truck. (Tr. 419) 

// 

' The tran.'icripi varioiwly refers to rhe courier as ""Arrow Services" or "Aerl Transporiuilon". Tt likely is in fact 

"Aero Services". 

Smith Cable SvsTem.':. Inc. DMS No. FAA'2009-0976 

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G. Tom Fialek. 

Tom Fialek testified by telephone as follows. Mr, Fialek worked with Mr. Liime for Smith Cable 

during the summer and eariy fall of 2008 building coaxial cable for GCI Cable. (Tr. 439) They 

had no use for spray paint on the job. (Tr. 440) They had a propane grill; Mr. Fialek recalled it 

being black, and that the propane bottle screws into it to fuel h. (Tr. 443,448) Mr. Fialek and 

Mr. I,inne prepared the shipment for the courier, who titcy expected to arrive around 10;()0 a.m. 

or so. (Tr. 418) When the courier which Ms, Afusia arranged arrived at the crew's hotel in 

Ketchikan and could not load the pallets of Smith Cable items into the courier's truck, Mr. 

Fialek, Mr, Linne, and the courier loaded the items into the courier's tiuck. (Tr. 441-44, 452) Mr. 

Fialek testified that they did not ship the propane grill, and that it was not in rhe shipment when 

he met it in Fairbanks. (Tr. 444-46) 

IV. Argument. 

A. The Shipment Contained Ilaziitrdous Materials. 

As the party with ihc burden of proof, ilie Administrator is obliged lo prove his case by a 

preponderance of the reliable, probative, and substantial evidence. 14 CFR 13,223. In this case, 

the central question is whether Smith Cable offered two propane cylinders and a can of spray 

paint for shipment by air aboard passenger-cairying airciafi. In light of the testimony and 

evidence before the administrative law judge, the answer to that question is yes. 

With regard to the propane, both Mr, Fialek and Mr. Linnc testified that they purchased and used 

a dark-colored, tabletop-sized propane grill during their summer journey tlu'oughout Southeast 

Alaska, It was fueled by screw-in type propane bottles. When the job concluded. Smith Cable 

arranged for its crew lo ship their work tmck nonh on a ferry, and arranged for a laige palletized 

load of gear and personal effects to be .shipped by air aboard Alaska Airlines to the company's 

next job in Fairbanks. 

On the morning of September 10, 2008, an unnamed courier arrived with a tmck that could not 

easily accept the palletized shipment as initially prepared. So the crew and the courier broke the 

pallets down and the three of them loaded the items piece by piece into the courier'.s truckAccording to the waybill prepared by Smith Cable and dated September 10, 2008 al 1:32 p.m., a 

24 piece Smith Cable .shipment weighing 1,213.0 pounds was delivered to Ala.ska Airlines in 

Ketchikan for shipment to Fairbanks. The shipper's certification bears an unknown signature, but 

relates that it was made "For; SMITH CABLE SYSTEMS INC". Below Smith Cable's name and 

beside the unknown signature, a box is marked stating that "THIS SHIPMENT DOES NOT 

CONTAIN DANGEROUS GOODS". 

While moving the shipment with a small forklift, Mr. Camp hit a bump, causing a camp stove 

within ilic shipment to fall and spill its contents. Concealed within were two propane cylinders. 

Alarmed by his discovery, Mr, Camp promptly notified his coworker Mr. Cook. Together, they 

decided to search tiic entire shipment and sec what else might be hidden in the Smith Cable 

shipment. During that search, Mr. Cook found a can of spray paint. An Alaska Airlines intern 

Smith Cable System.^. Inc. DMS No. FAA-2009-0976 

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photographed the propane and the spray paint, photographs that both Mr. Camp and Mr. Cook 

recognized in Exhibits C-1 through C-4. 

As part of his own investigation, Mr. Cook took note of the tracking tags on the items that 

contained the pnjpanc and the spray paint. Using the tag numbers, which matched the number of 

the waybill that Smith Cable prepared for the shipment, Mr. Cook determined that the items were 

part of the Smith Cable shipment. 

Both Mr. Linne and Mr. Fialek testified that ihcy did not include their propane grill in the Smith 

Cable shipment aboard Alaska Airlines. However, because both were employed by Smith Cable 

and because it is their conduct on behalf of Smith Cable that is in question, their testimony must 

be discounted to some degree when weighed again.st the disinterested testimony of the Alaska 

Airlines employees. Mr. Camp and Mr. Cook had nothing lo gain by claiming thai Smith Cable's 

shipment included hazardotis materials. In the end. the unequivocal, disinterested testimony of 

Mr. Camp and Ml'. Cook that propane was found in the Smith Cable shipmeni, combined with 

the photographic evidence, and the admissions by both Mr. Smith, Mr. Linne, and Mr. Fialek 

that the Ketchikan crew had a propane grill and propane of the sort later discovered within the 

Smith Cable shipmeni outweighs the denials of Mr. Linnc and Mr. Fialek and requires a finding 

that the shipment did indeed contain forbidden propane as alleged. 

Both Mr. Liime and Mr. Fialek denied that llicy used any spray paint as part of their work in 

Southeast Alaska that summer. However, neither ol them testified thai tlicir equipment was 

devoid of spray paint. They merely testified that their work didn't require spray paint, not that 

there wasn't any spray paint around. Mr. Camp and Mr. Cook, however, testified that, upon 

discovering the concealed propane, they performed a full search of the entire 1,213 pound 

shipment, found one concealed can of spray paint, and photographed it. Again, on balance, the 

disinterested, imchecked lestitnony of the two Alaska Airlines employees about their discovery 

of the spray paint and their photographic proof, when weiglicd against the relatively interested 

testimony of Mr. Linne and Mr, Fialek that they didn't need spray paint for their work and their 

failure to testify thai no spray paint was present within all their gear, gear that shipped in 24 

pieces and weighed well over a half ton, compels a finding that the shipmeni also contained the 

spray paint as alleged. 

During the hearing, counsel for Smith Cable routinely asked questions suggesting that the Smith 

Cable shipment may have been adulterated after it was given to the courier for delivery to Alaska 

Airlines. 'Ihese exchanges should be disregarded. None of the witnesses ever testified that they 

observed any actual adulteration. At best, they merely left open the possibility, at tlie suggestion 

of counsel for Smith Cable, that because Smith Cable used a courier, it may have been possible 

for the courier to hide items within the shipmeni. For that to be trtie for the propane would 

require a tremendous coincidence, that the courier would adulterate the Smith Cable shipment 

not with jiist some random hazardous material, but by the addition of propane cylinders of a type 

and kind matching the ones that Smith Cable's employees actually used to fuel their propane 

grill. Moreover, given Mr. Conk's testimony that he found the spray paint within one of the 

boxes or crates in the shipment, one would have to believe that the courier opened up one of the 

boxes or crates and hid a can of spray paint inside. While Mr. Linne and Mr. Fialek testified that 

they were forced to break down their pallets to fit the shipment wiihin the courier's truck, tliey 

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did not testify that doing so required them to open any of the shipment's crates or boxes. 

Functionally, adulteration is an affirmative defense, and Smith Cable presented no testimony or 

evidence that any adulteration actually occorrcd here. The suggestive questioning by Smith 

Cable's attorney is not evidence and should be disregarded. 

B. Smith Cable Committed Sixteen Regulatory Violations. 

Smith Cable defense again.st the sixteen cited regulatory violations has been limited solely to 

whether its shipmeni contained hazardous materials; Smith Cable admits its shipmeni was not 

accompanied by a Shipper's Declaration for Dangerous Goods and that the waybill was marked 

to indicate thai no dangerous goods were included. Answer at 1-2. In offering undeclared 

hazardous materials for transportation by air, Smith Cable violated each of the HMRs as alleged: 

Smith Cable made ilic offer (Section 171.2(c)), failed to properly describe the hazardous 

materials in the shipping papers (172 Subpart C), failed to properly mark the pieces containing 

hazardoiLs materials (172 Subpart D), failed to properly label the pieces containing hazardous 

materials (172 Subpart F), failed to provide emergency response infonnation (172 Subpart G), 

and offered propane, which is forbidden for transportation aboard passenger-carrying aircraft 

(173.27(b)(1)). 

C. Smith Cable Should Be Assessed a $60,000 Civil Penalty. 

The administrative law judge has taken judicial notice of the Administrator's Hazardous 

Materials Sanction Guidance (Tr. 225-26), found at Appendix C to Order 2150.3B. 'fhe 

Administrator has applied that guidance to propose Smith Cable's civil penalty as follows. 

The guidance provides: 

Although the notice of proposed civil penalty may cite numerous violations of a 

particular part or subpart of the HMR, unless upward departure is justified, a 

single penalty amount for each violation group is ordinarily used lo reach the lull 

sanction. 

Order 2150.3B, Appendix C, at C-9. As noted above, this case involve.s sixteen violations in six 

violation groups: 

• 171.2(e) (improper offering of hazardous material); 

• 172 Subpait C (shipping papers); 

• 172 Subpart D (marking); 

• 172 Subpart E (labeling); 

• 172 Subpart G (emergency response): and 

• 173.27(bX 1) (forbidden on passenger-carrying aircraft). 

Smith Cable offered undeclared propane for shipment aboard passenger aircraft. Because 

propane is forbidden aboard such aircraft, that offense falls within Offense Category III of Figure 

C-1 of Appendix C. Smith Cable also offered undeclared spray paint, which i.s not prohibited for 

shipment aboard such aircraft: that material would have placed Smith Cable's offenses into 

Smith Cable ,Sv.ytem.v. Inc. DMS No. FAA-2009'0976 

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Offense Category II. However, for purposes of calculating sanctions, Ihe Administrator does not 

seek additional penalties for the spray paint and instead calculates the entire penally under 

Offense Category HI. 

Smith Cable is a business entity. For sanction purposes, the Administrator has not classified 

Smith Cable as a business ihai uses or handles hazardous materials in the course of its business, 

or as a business that regulai'ly offers, accepts, or transports hazardous materials. As a result. 

Smith Cable faces the lowest penalty range applicable to a business under Figure C-1. 

Under Figure C-1, a business entity that commits Offense Category III violations faces a penalty 

of $5,000 to $16,200 for each violation group. Here, the Administrator had determined that, 

given the absence of identified aggravating and mitigating factors in this case, the aggregate 

weight of this case is moderate, indicating that a penaUy in ilic middle of the range is 

appropriate. The midpoint between $5,000 lo $16,200 is $10,600- For this ca.se, the 

Administrator has rounded this number down to $10,000 per violation group. With six violation 

groups in this case, then, the appropriate civil penalty to be imposed is $60,000. 

V. ConcIuNion, 

For the foregt>ing reasons, the administrative law judge should enter an order finding the 

violations as alleged in the complaint and impose a $60,000 civil penalty. 

DATED this I y day of May, 2011. 

HOWARD L. MARTIN, JR. 

Regional Counsel 

/ • y 

• ^-.Jv ~ wr. J i>lX-i-..' ^ Craite Wm. Blkfc 

SjtagP Attomey 

Smith Cable Systems. Inc. DMS No. FAA-2009-0976 

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CERTIFICATE OF SERVICE 

Re: Smith Cable Systems, IncFAA Docket No. CP09AL0012 

DMS No. FAA-20n9-0976 

I HEREBY CERTIFY that on this ditie I have served a copy of the foregoing by postage-prepaid, 

certified mail, return receipt requested, facsimile, and email to: 

The Honorable Richard C Goodwin 

Administrative Law Judge 

Office of Hearings. M-20 

U.S. Dcpartmeni of Transportation 

1200 New .(erscy Avenue, S.E. 

East Building Ground Floor, Room El 2-320 

Washington, DC 20590 

Fax: (202) 366-7536 

Email: Richard.Goodwin@dol.gov 

I HEREBY FURTHER CERTIFY that on this date I have served the original and two copies of 

ihe foregoing by postage-prepaid, certified mail, return receipt requested and facsimile to: 

Federal Aviation Administration 

ATTN; Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000 

800 Lidependence Avenue, SW 

Washington, DC 20591 

FAX: (202) 493-5020 

1 HEREBY FURTHER CERTIFY that on this date I have served copies of the foregoing by 

postage-prepaid first-class mail to; 

Brent R. Cole 

Marslon & Cole, P.C. 

821 N Streel, Suiic 208 

Anchorage, AK 99501 

Fax: (907) 277-8002 

DATED: ^<^^ ^ /- ? ^^/ / 

T 

Federal Aviation Administration 

Smith Cable Systems. Inc. DMS No. FAA-2009-0976 

Administrator's Closing Argument Page It 
05/27/2011 11:57 FAX 2024935142 FAA DMS 0012/01 2 

Office of Regional Counsel 

222 West 7ih Avenue, Box 14, AAL-7 

Anchorage, AK 99513-7587 

Smith Cable Systems. Inc. 

Administrator's CUmng Argument 

DMS No. FAA 2009-0976 

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