UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF SCOTT NOVAK FAADOCKETNO. [TO BE ASSIGNED] (Civil Penalty Proceeding)
FDMS NO. FAA·2012·0206

COMPLAINANT'S REBUTTAL BRIEF 

# RECEIVED FEB- 62013 

# HEARING DOCKET

The issue is whether Respondent knowingly violated the HMR. Onthat the parties agree. The parties also agree there is no indication Respondent had actual knowledge that the shipment contained the various items identified in the complaint. Where it appears the parties disagree is inthe meaning of49 U.S.C. § 5123(a)(l)(B) which provides inrelevantpart, "Aperson acts knowingly when-

...(B) a reasonable person acting inthe circumstances and exercising reasonable care would have thatknowledge." The Complainant's position is quite simple. A person who offers a shipment to an airline for transportation by air has a duty to know what he is shipping. This duty is imposed by the above statute, which is a statute thatrequires inquiry, 1 and the HMR, which require each shipper of hazardous materials to properly package, classify, describe, mark, and label the shipment or ensure these actions have beentaken.2 In simple terms, a person has a duty to know what he is shipping.3 Because the Respondent did not conduct any sort ofinquiry to learn what was inthe shipment, he clearly breachedhis duty, and, hence, was not a reasonable person acting inthe circumstances and exercising reasonable care. And because pretty much any sort ofinspection wouldhave revealed the presence ofthe items in question, Respondent knowingly violated the HMR as that term is defined in49 U.S.C. 

### § 5123(a)(l).

1In the Matter of Interstate Chemical Company, Inc., FAA OrderNo. 2002-29 (December 2, 2002). 2 See, e.g.,§§ 171.2(f) and 172.204(c)(3)(i)(B) ofthe HMR. 3In the Matter of Riverdale Mills Corporation, FAA OrderNo. 2003-10 (September 10, 2003).
1While it is clear from his briefthatthe Respondent disagrees-at least with the ultimate conclusion, it is not entirely clear where inthe analysis he contends the Complainantis wrong. His basic positionis thatthere is insufficient evidence to establish that Respondent knowingly violated the regulations. It appears he is basing this conclusion on the contention that notwithstanding the above-quoted language ofthe statute, the Complainant mustprove Respondent intended to ship hazardous or dangerous materials. Alternatively, he argues that there is nothing inthe record that shows Respondent acted in an unreasonable manner or failed to exercise reasonable case. In support ofthese contentions he indicates, in essence, that it is inappropriate to place the entire burden ofcompliance on the individual shipper, and that neither Complainant nor Alaska Airlines fulfilled its respective obligations in advising Respondent of his obligations. He does not, however, identify any specific duty or responsibility thathe contends eitherAlaska Airlines orthe Complainant failed to meet, and he does not claim he was somehow affirmatively mislead either by Alaska Airlines orthe Complainant. Respondent's position in this matter ignores the duties placed on him as a shipper by the statute and regulations, and attempts to shift to others what under the statute and regulations are clearly his duties. As an initial matter, while it doesn'ttake much imagination to conjure up things that airlines and the Complainant coulddo--especially with unlimited budgets, the fact something could be done does not necessarily mean it shouldbe done. More importantly however, this is nottheproper forum to debate what the regulations should require or on whom certain duties should be imposed. The statutory andregulatory scheme that is in place clearly place duties onpersons who offer hazardous materials for transportation regardless ofwhether they realize thatthe items being offered are regulated by the HMR.4 Whether there could ever be a factual scenario under which a person could offer a shipment containing undeclared hazardous materials yet still be found to have been a reasonable person acting inthe circumstances and exercising reasonable care is not an issue for this case. Whenthe Respondent decided to ship by air the things thathadbeen packed for private carriage bypickup, he made absolutely no effort to find out what was actually in the shipment. While the Respondent baldly states that there is nothing inthe record that shows he acted in an unreasonable manner, he doesn't even attempt to explain how one who made no effort to comply

4 RiverdaleMills Corporation, supra; In the Matter of Smalling, FAA Order No. 94-31 (September 30, 1994).
2with such a clear duty to know whathe was shipping could, nonetheless, be found to have acted reasonably. This case is about Respondent's actions and whetherhe complied withthe duties imposed by the statute and the regulations. The statutory definition ofknowingly includes both actual knowledge ofthe facts as well as what a reasonable person acting inthe circumstances and exercising reasonable care would know. This is not some amorphous reasonable person standard that we claim is embedded inlegal doctrine. Itis the wording ofthe statute! Ultimately, it appears Respondent is arguing thatinhis case, ignorance ofhis duties as a shipper and the hazardous nature ofthe items shouldbe a defense. Inhis view, under these circumstances, it should nothave beenhis duty to know whathe was shipping. We disagree. By their terms the statute andregulations at issue here apply to everyone who offers hazardous materials for transportation, regardless ofwhether ornotthey realize that many common household items are hazardous materials. We recognize that Respondent did not deliberately violate the regulations. That and the other matters he has raised, however, have been given appropriate considerationby Complainant in determining the sanction to seek inthis case. Respondent does not even address the matter of sanction inhis brief, so, presumably, he does not dispute the appropriateness ofComplainant's calculations orthe amount sought as set forth in Complainant's Closing Argument. The Respondent should, therefore, be found to have violated the regulations alleged inthe complaint and assessed a civil penalty inthe amount of$2700.
Respectfully submittedthis 30th day ofJanuary 2013. HOWARD L. MARTIN, JR. Regional Counsel

# By:)jl_~ Glenn H. Brown

...... Senior Attorney

3CERTIFICATE OF SERVICE Re: ScottNovak FAA DocketNo.-:-:-,--,-,--:-:- FDMS NO. FAA-2012-0206 I hereby certify that onthis date I have served a copy ofthe Complainant's Rebuttal Briefby postage-prepaid, certified mail, return receipt requested to the following: The Honorable Richard C. Goodwin Office ofHearings, M-20; U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. East Building Ground Floor, Room E12-320 Washington, DC 20590 Joseph W. Geldhof 2 Marine Way, Suite 207 Juneau, AK 99801 I further certify that on this date I have served the original and two copies ofthe Complainant's Rebuttal Briefby postage-prepaid, certified mail, returnreceipt requested and facsimile, addressed as follows: Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000 DATED:

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# Jd/f:r:L'a~;~~./£.faL,.rt: ;:>t:/r: Federal Aviation Administration 

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# J Office ofRegional Counsel "1 222 West 7th Avenue, Box 14, AAL-7 Anchorage, Alaska 99513-7587



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