SERVED: September 24, 2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

THOMAS BRAY 

FAA DOCKET NO. [TO BE ASSIGNED] 

(Civil Penalty Action) 

FDMS NO. FAA 2013-0621 

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE 

I. Key terms 

Bray 

Delamore 

FAA 

Fohlmeister 

MSDS 

NPCP 

Pipping 

TSA 

UHM 

II. Introduction 

Thomas Bray, Respondent 

Catherine Delamore, contractor for Spirit Air 

Federal Aviation Administration, Complainant 

Ron Fohlmeister, Spirit Airlines Station Manager 

Material Safety Data Sheet 

Notice of Proposed Civil Penalty 

Andrew J. Pipping, FAA witness 

Transportation Security Agency 

undeclared hazardous material 

The Federal Aviation Administration (hereinafter "FAA") advised Respondent, Thomas 

Bray, (hereinafter "Bray"), through a Notice of Proposed Civil Penalty (hereinafter "NPCP") dated 

June 7, 2013, and through a Final Notice of Proposed Civil Penalty dated July 25,2013 that the FAA 

proposed to assess a civil penalty in the amount of $1,000.00 for the following violations of 49 

C.P.R.: 

Section 171.2(e): No person may.offer or accept a hazardous material 

for transportation in commerce unless the unless the hazardous 

material is properly classed, described, packaged, marked, labeled, 

and in condition for shipment as required or authorized by applicable 

requirements of this subchapter or an exemption or special permit, 
approval, or registration issued under this subchapter or subchapter A 

ofthis chapter. 

Section 172.200(a): Except as otherwise provided in this subpart, 

each person who offers a hazardous material for transportation shall 

describe the hazardous material on the shipping paper in the manner 

required by this subpart. 

Section 172.300(a): Each person who offers hazardous material for 

transportation shall mark each package containing the hazardous 

material in the manner required by this subpart. 

Section 172.400(a): Except as specified in § 172.400a, each person 

who offers for transportation or transports a hazardous material in any 

of the followif).g packages or containment devices, shall label the 

package or containment device with labels specified for material in 

the §172.101 table and in this subpart ... 

Section 172.600(c): No person to whom this subpart applies may 

offer for transportation, accept for transportation, transfer, store or 

otherwise handle during transportation a hazardous material unless: 

(1) Emergency response information conforming to this subpart is 

immediately available for use at all times the hazardous material is 

present; and 

(2) Emergency response information, including the emergency 

response telephone number, required by this subpart is immediately 

available to any person who, as a representative of a Federal, State or 

local government agency, responds to an incident involving a 

hazardous material, or is conducting an investigation which involves a 

hazardous material. 

III. Procedural History 

The FAA filed a Complaint dated August 7, 2013. 

On July 28, 2013, Bray submitted a written request for a hearing. 

Thereafter Bray submitted a handwritten response written on the FAA's 

Complaint which was treated as Bray's Answer to the Complaint. 

IV. Jurisdiction 

The FAA has jurisdiction pursuant to 49 C.F.R. §171 et seq. and 49 U.S.C. Section 

5123(a). 

V. Burden ofProof 

The Burden of Proof is on the agency (14 C.F.R. § 13.224). 
VI. Issues: 

Whether Bray violated Title 49, C.F.R, Part 171, Section 171.2(e), Section 

172.200(a), Section 172.300(a), Section 172.400(a), and/or Section 172.600(c). 

VII. Hearing: 

A hearing was held Friday, May 30, 2014, at the Sandra Day O'Connor 

Courthouse, Courtroom 406, 401 West Washington Street,Phoenix, Arizona 85003. 

The FAA appeared at the appointed time. 

Bray failed to appear, even though the court waited mitil 1030 hours to commence 

the hearing in case Bray was delayed. 

The matter is now ready for decision. 

VIII. Summary of Facts 

FAA's recitation of facts: 

On or about February 11,2013, Bray offered hazardous materials in checked 

baggage to Spirit Airlines, for transportation from Phoenix-Mesa Gateway Airport, Mesa, 

Arizona, to Fort Lauderdale, Florida, then to Medellin, Columbia. 

The hazardous materials were thirteen (13) four (4) ounce plastic bottles of 

Potassium hydroxide, solid, at total approximate weight of 3.25 pounds and two (2) 

unlabeled plastic receptacles of Potassium hydroxide, solid, at total approximate weight 

of 10.0 pounds. 

Potassium hydroxide, solid is a hazardous material, in accordance with the 

Hazardous Materials Table in Title 49 of the Code of Federal Regulations ( 49 C.P.R.), 

Section 172.101. It is "Potassium hydroxide, solid," Hazard Class 8, UN1813, Packing 

Group II. 

Bray offered his baggage for air transportation in commerce when it was not 

properly classed, described, packaged, marked, labeled, and/or in condition for 

transportation as required or authorized by applicable requirements in Subchapter C of 

Chapter I of 49 C.P.R., .or an exemption or special permit, approval, or registration issued 

under Subchapter C or Subchapter A of Chapter I. To wit: 

a. The hazardous material was not declared; 

b. Respondent's baggage was not properly marked; and 
c. Respondent's baggage was not properly labeled. 

Respondent offered his baggage for transportation in commerce without providing 

the required emergency response information immediately available for use at all times. 

Bray's recitation of facts: 

Bray's response was handwritten on the FAA's pleadings and submitted to the 

FAA and the court. The pleadings were not offered into evidence. Pleadings are not 

evidence and were not considered. 

IX. Summary of Testimony 

All admitted testimonial and documentary evidence was reviewed and considered. 

Only brief highlights are summarized herein. 

A. Agency's Case 

Andrew J. Pipping 

At the time of the incident Andrew J. Pipping (hereinafter "Pipping") was a 

hazardous material special agent with the Phoenix Security Field Office, in Phoenix, 

Arizona. 

Pipping's duties and responsibilities included ensuring the safe transport of 

hazardous materials by inspecting the processes and procedures for air carriers, certificate 

holders, various shippers, repair stations; and also responding to any incidents, or 

incidents reported by certificate holders and/or discoveries at locations such as FedEx, 

offering locations, etcetera. 

On February 11, 2013, Pipping received a phone call from the Spirit Airlines 

station manager, Ron Fohlmeister (hereinafter "Fohlmeister"), reporting an incident 

involving undeclared hazardous material (hereinafter "UHM"). 

On February 12, 2014, Pipping traveled to Mesa Williams Gateway Airport where 

he met Fohlmeister. Pipping learned that the UHM was discovered by Catherine 

Delamore (hereinafter "Delamore"), a contractor for Spirit Airlines. During the course of 

the investigation Pipping examined the UHM, took photos of the UHM 1 and interviewed 

and took a statement from De lam ore. 

2 

Delamore retrieved the UHM from the Transportation Security Agency 

(hereinafter "TSA") baggage collection area. After retrieving the UHM, Delamore found 

Bray and informed him the UHM could not travel with him and Bray would have to find 

1 Agency Ex. 2 and 3. 2 Agency Ex. 4. 
another means of shipping the UHM. Delamore said she gave Bray her personal cell and 

asked him to call within 24 hours to let her know what he intended to do with the items, 

but Bray never called. 3 

Pipping then talked to Fohlmeister, who provided him with an email Fohlmeister 

sent to Spirit Airlines4 outlining the UHM. Spirit's Hazardous Materials Discrepancy 

Report set forth the UHM: 

... four ounce bottles of potassium hydroxide; five 16 ounce bottles of 

diesel gasoline fuel cleaner; one gallon unknown substance; 32 

ounces unknown substance ... 5 

Pipping also determined, by reviewing the TSA screening logs that the UHM was 

all in the same checked baggage. Pipping identified photographs of the UHM which 

were received into evidence. Pipping discussed the hazmat classifications for the items in 

the photographs.6 Pipping testified the routing of the checked luggage would have 

required several instances of loading and unloading the bags which increased the risk of 

release of the UHM. Additionally, Spirit Airlines does not accept UHM. 7 

Pipping testified the UHN was hazardous material according to the Material 

Safety Data Sheet (hereinafter "MSDS"). 8 The MSDS outlines emergency measures, 

conditions to avoid and other important information. As a part of his investigation 

Pipping talked to a representative of one of the products who indicated some of the UHM 

was reactive to water which could pose a serious hazard. Pipping then described some of 

the proper labeling, shipping and other requirements associated with UHM. 9 

Evidence 

The FAA offered Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, and 14. 

Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 10, 11 and 14 were received into evidence. 

The court took Judicial Notice of Exhibit 13. 

B. Respondents' Case 

Bray failed to appear for the hearing. 

3 Tr. p. 21, I. 2 top. 25, I. 6. Agency Ex. 4. 4 Agency Ex. 1. 5 Tr. p. 26, I. 7 top. 29, I. 3. 6 Tr. p. 29, I. 9 top. 46, I. 1. Agency Exs. 1, 2 and 3. 7 Tr. p. 46, I. 10 top. p. 49, I. 1. 8 Agency Ex. 5. 9 Tr. p. 60, I. 3 top. 89, I. 9. 
Testimony 

Bray presented no testimony. 

Evidence 

Bray presented no evidence. 

X. Summary of Evidence 

FAA evidence established the violations alleged. 

Bray offered no defense or mitigation. 

XI. Analysis of facts: 

Agency allegations: 

The evidence and testimony supports the FAA's allegations that Bray violated 49 C.F.R. 

Section 171.2(e), Section 172.200(a), Section 172.300(a), Section 172.400(a) and Section 

172.600( c). 

XII. Analysis of Evidence: 

The FAA's testimony and evidence supports the FAA's allegations that Bray violated 49 

C.F.R. Section 171.2(e), Section 172.200(a), Section 172.300(a), Section 172.400(a) and Section 

172.600( c). 

We find the FAA's witness to have been truthful and credible. 

XIII. Conclusions with respect to whether Bray committed the violation(s) alleged. 

Taking the totality of the evidence and testimony as a whole we find the FAA established by 

a preponderance of the evidence and testimony that Bray violated 49 C.F.R. Section 171.2(e), 49 

C.F.R. Section 172.200(a), 49 C.F.R. Section 172.300(a), 49 C.F.R. Section 172.400(a) and 49 

C.F.R. Section 172.600(c). 

XIV. Law: 

The violations alleged are governed by 49 C.F .R. Section 171.2( e), Section 

172.200(a), Section 172.300(a), Section 172.400(a) and Section 172.600(c). 

5 U.S.C. Section 5123, et seq. 
XV. Findings of fact: 

After consideration and review of all the evidentiary facts, testimony and 

evidence herein, by a preponderance of the evidence standard, we make the 

following findings: 

a. On or about February 11, 2013, Bray offered hazardous materials in 

checked baggage to Spirit Airlines, for transportation from Phoenix-Mesa 

Gateway Airport, Mesa, Arizona, to Fort Lauderdale, Florida, then to 

Medellin, Columbia. 

b. The hazardous materials were thirteen (13) four (4) ounce plastic bottles 

of Potassium hydroxide, solid, at total approximate weight of 3.25 pounds 

and two (2) unlabeled plastic receptacles of Potassium hydroxide, solid, at 

total approximate weight of 10.0 pounds. 

c. Potassium hydroxide, solid is a hazardous material, in accordance with the 

Hazardous Materials Table in Title 49 ofthe Code of Federal Regulations 

(49 C.P.R.), Section 172.101. It is "Potassium hydroxide, solid," Hazard 

Class 8, UN1813, Packing Group II. 

d. Bray offered his baggage for air transportation in commerce when it was 

not properly classed, described, packaged, marked, labeled, and/or in 

condition for transportation as required or authorized by applicable 

requirements in Subchapter C of Chapter I of 49 C.F .R., or an exemption 

or special permit, approval, or registration issued under Subchapter C or 

Subchapter A of Chapter I. To wit: 

a. The hazardous material was not declared; 

b. Respondent's baggage was not properly marked; and 

c. Respondent's baggage was not properly labeled. 

e. Respondent offered his baggage for transportation in commerce without 

providing the required emergency response information immediately 

available for use at all times. 

XVI. Analysis of Findings of Fact and Conclusions of Law: 

a. Taking the totality of the evidence and testimony as a whole we find the FAA 

established, by a preponderance of the evidence and testimony, that Bray violated 

the following 49 C.P.R. Section 171.2(e): 

No person may offer or accept a hazardous material for transportation 

in commerce unless the unless the hazardous material is properly 
classed, described, packaged, marked, labeled, and in condition for 

shipment as required or authorized by applicable requirements of this 

subchapter or an exemption or special permit, approval, or 

registration issued under this subchapter or subchapter A of this 

chapter. 

b. Taking the totality of the evidence and testimony as a whole we find the FAA 

established, by a preponderance of the evidence and testimony, that Bray 

violated 49 C.P.R. Section 172.200(a): 

Except as otherwise provided in this subpart, each person who offers 

a hazardous material for transportation shall describe the hazardous 

material on the shipping paper in the manner required by this subpart. 

c. Taking the totality of the evidence and testimony as a whole we find the FAA 

established, by a preponderance of the evidence and testimony, that Bray violated 49 

C.P.R. Section 172.300(a): 

Each person who offers hazardous material for transportation shall 

mark each package containing the hazardous material in the manner 

required by this subpart. 

d. Taking the totality of the evidence and testimony as a whole we find the FAA 

established, by a preponderance ofthe evidence and testimony, that Bray 

violated 49 C.P.R. Section 172.400(a): 

Except as specified in § 172.400a, each person who offers for 

transportation or transports a hazardous in any of the following 

packages or containment devices, shalllable the package or 

containment device with labels specified for material in the § 172.101 

table and in this subpart ... 

e. Taking the totality of the evidence and testimony as a whole we find the FAA 

established, by a preponderance ofthe evidence and testimony, that Bray 

violated 49 C.P.R. Section 172.600(c): 

No person to whom this subpart applies may offer for transportation, 

accept for transportation, transfer, store or otherwise handle during 

transportation a hazardous material unless: 

(1) Emergency response information conforming to this subpart is 

immediately available for use at all times the hazardous material is 

present; and 

(2) Emergency response information, including the emergency 

response telephone number, required by this subpart is immediately 

available to any person who, as a representative of a Federal, State or 

local government agency, responds to an incident involving a 

hazardous material, or is conducting an investigation which involves a 

hazardous material. · 
WHEREFORE, evidence and testimony having been heard and considered it be 

and is hereby ORDERED as follows: 

Thomas Bray be and is hereby assessed a civil penalty in the amount of $1,000. 

Richard C. Goodwin 

U.S. Administrative Law Judge 

Attachment - Service List 
SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W10001 

ONE COPY 

Lisa J. Toscano, Complainant's Counsel 

Attorney, Office of Regional Counsel, AWP-7 

Western-Pacific Region 

Federal Aviation Administration 

P.O. Box 92007 

Los Angeles, CA 90009-2007 

TEL: 310-725-7110 

FAX: 310-725-6816 

Thomas H. Bray, Respondent 

30382 U.S. Highway 60-89, #11 

Wickenburg, AZ 85390 

TEL: 901-226-0142 

E-MAIL: multigrainscpt@msn.com 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office ofHearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-5121 Staff Assistant 

FAX: 202-366-7536 

FDMS No. FAA-2013-0621 

(Civil Penalty Action) 

I Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430. 

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