UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

SCOTT NOVAK 

FAA DOCKET NO. [TO BE ASSIGNED] 

(Civil Penalty Proceeding) 

FDMS NO. FAA·2012·0206 

COMPLAINANT'S REBUTTAL BRIEF 

RECEIVED 

FEB- 6 2013 

HEARING DOCKET 

The issue is whether Respondent knowingly violated the HMR. On that 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 

in the meaning of 49 U.S.C. § 5123(a)(l)(B) which provides in relevant part, "A person acts 

knowingly when-... (B) a reasonable person acting in the circumstances and exercising 

reasonable care would have that knowledge." 

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 that requires 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 been taken. 2 In simple terms, a person has a duty to know what he is 

shipping. 3 Because the Respondent did not conduct any sort of inquiry to learn what was in the 

shipment, he clearly breached his duty, and, hence, was not a reasonable person acting in the 

circumstances and exercising reasonable care. And because pretty much any sort of inspection 

would have revealed the presence of the items in question, Respondent knowingly violated the 

HMR as that term is defined in 49 U.S.C. § 5123(a)(l). 

1 In the Matter of Interstate Chemical Company, Inc., FAA Order No. 2002-29 (December 2, 2002). 2 See, e.g.,§§ 171.2(f) and 172.204(c)(3)(i)(B) of the HMR. 3 In the Matter of Riverdale Mills Corporation, FAA Order No. 2003-10 (September 10, 2003). 

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While it is clear from his brief that the Respondent disagrees-at least with the ultimate 

conclusion, it is not entirely clear where in the analysis he contends the Complainant is wrong. 

His basic position is that there 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 of the statute, the Complainant must prove 

Respondent intended to ship hazardous or dangerous materials. Alternatively, he argues that 

there is nothing in the record that shows Respondent acted in an unreasonable manner or failed to 

exercise reasonable case. In support of these contentions he indicates, in essence, that it is 

inappropriate to place the entire burden of compliance 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 that he 

contends either Alaska Airlines or the Complainant failed to meet, and he does not claim he was 

somehow affirmatively mislead either by Alaska Airlines or the 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't take much imagination to conjure up 

things that airlines and the Complainant could do--especially with unlimited budgets, the fact 

something could be done does not necessarily mean it should be done. More importantly 

however, this is not the proper forum to debate what the regulations should require or on whom 

certain duties should be imposed. The statutory and regulatory scheme that is in place clearly 

place duties on persons who offer hazardous materials for transportation regardless of whether 

they realize that the 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 in the circumstances and exercising reasonable care is not an issue for this case. When the 

Respondent decided to ship by air the things that had been packed for private carriage by pickup, he made absolutely no effort to find out what was actually in the shipment. While the 

Respondent baldly states that there is nothing in the 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 Riverdale Mills Corporation, supra; In the Matter of Smalling, FAA Order No. 94-31 (September 30, 1994). 

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with such a clear duty to know what he was shipping could, nonetheless, be found to have acted 

reasonably. 

This case is about Respondent's actions and whether he complied with the duties imposed by 

the statute and the regulations. The statutory definition of knowingly includes both actual 

knowledge of the facts as well as what a reasonable person acting in the circumstances and 

exercising reasonable care would know. This is not some amorphous reasonable person standard 

that we claim is embedded in legal doctrine. It is the wording of the statute! 

Ultimately, it appears Respondent is arguing that in his case, ignorance of his duties as a 

shipper and the hazardous nature of the items should be a defense. In his view, under these 

circumstances, it should not have been his duty to know what he was shipping. We disagree. By 

their terms the statute and regulations at issue here apply to everyone who offers hazardous 

materials for transportation, regardless of whether or not they 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 consideration by Complainant in 

determining the sanction to seek in this case. Respondent does not even address the matter of 

sanction in his brief, so, presumably, he does not dispute the appropriateness of Complainant's 

calculations or the amount sought as set forth in Complainant's Closing Argument. 

The Respondent should, therefore, be found to have violated the regulations alleged in the 

complaint and assessed a civil penalty in the amount of $2700. 

Respectfully submitted this 30th day of January 2013. 

HOWARD L. MARTIN, JR. 

Regional Counsel 

By:)jl_~ Glenn H. Brown ...... 

Senior Attorney 

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CERTIFICATE OF SERVICE 

Re: ScottNovak 

FAA Docket No.-:-:-,--,-,--:-:-

FDMS NO. FAA-2012-0206 

I hereby certify that on this date I have served a copy of the Complainant's Rebuttal Brief by 

postage-prepaid, certified mail, return receipt requested to the following: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20; 

U.S. Department of Transportation 

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 of the Complainant's 

Rebuttal Brief by postage-prepaid, certified mail, return receipt 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 i/ J 

Office of Regional Counsel "

1 

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

Anchorage, Alaska 99513-7587 

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