### SERVED: September 24, 2014

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC

IN THEMATTER OF

THOMAS BRAY FAA DOCKETNO. [TO BE ASSIGNED] (Civil Penalty Action) FDMS NO. FAA 

### 2013-0621

INITIAL DECISION OF ADMINISTRATIVE LAWJUDGE 

### 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, SpiritAirlines Station Manager Material Safety Data Sheet Notice ofProposed Civil Penalty Andrew

### J. Pipping, FAAwitness Transportation Security Agency undeclaredhazardous material

The Federal Aviation Administration (hereinafter "FAA") advised Respondent, Thomas Bray, (hereinafter "Bray"), through aNotice ofProposed Civil Penalty (hereinafter "NPCP") dated June 7, 2013, and through a Final Notice ofProposed 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 of49 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 ofthis subchapter or an exemption or special permit,approval, or registration issued under this subchapter or subchapterA 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 ofthe 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 ofa 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 writtenrequest for a hearing. Thereafter Bray submitted a handwritten response written on the FAA's Complaint which was treated as Bray's Answerto the Complaint. IV. Jurisdiction TheFAAhasjurisdictionpursuantto 49 C.F.R. §171 et seq. and49 U.S.C. Section 5123(a).



### V. Burden ofProof The Burden ofProofis onthe agency (14 C.F.R. § 13.224).VI. Issues: WhetherBray 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 SandraDay O'Connor Courthouse, Courtroom 406, 401 West Washington Street,Phoenix, Arizona 85003. The FAA appeared atthe appointed time. Bray failed to appear, eventhoughthe court waited mitil 1030 hours to commence the hearing in case Bray was delayed. The matter is nowready for decision. VIII. Summary ofFacts FAA's recitation offacts: On or about February 11,2013,Bray offeredhazardous 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, attotal approximate weight of3.25 pounds and two (2) unlabeledplastic receptacles ofPotassiumhydroxide, solid, at total approximate weight of 10.0 pounds. Potassium hydroxide, solid is ahazardous material, in accordance withthe Hazardous Materials Table in Title 49 ofthe Code ofFederal 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 authorizedby applicable requirements in Subchapter C of Chapter I of49 C.P.R., .or an exemption or special permit, approval, or registration issued under Subchapter C or SubchapterA ofChapter 

### I. To wit:

a. The hazardous material was not declared; b. Respondent's baggage was notproperly marked; andc. Respondent's baggage was not properly labeled. Respondent offeredhis baggage for transportation in commerce withoutproviding the required emergencyresponse information immediately available for use at all times. Bray'srecitation offacts: Bray'sresponse was handwritten on the FAA'spleadings 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 ofTestimony All admitted testimonial and documentary evidence was reviewed and considered. Only briefhighlights are summarizedherein. A. Agency'sCase AndrewJ. Pipping Atthe time ofthe incident AndrewJ. Pipping (hereinafter "Pipping") was a hazardous material special agent with the Phoenix SecurityField Office, inPhoenix, Arizona. Pipping's duties and responsibilities included ensuringthe safetransport of hazardous materials byinspectingthe processes and procedures for air carriers, certificate holders, various shippers, repair stations; and also respondingto any incidents, or incidents reported bycertificate holders and/or discoveries at locations such as FedEx, offering locations, etcetera. OnFebruary 11, 2013, Pippingreceived aphone call from the SpiritAirlines stationmanager, Ron Fohlmeister (hereinafter "Fohlmeister"),reporting an incident involving undeclared hazardous material (hereinafter "UHM"). On February 12, 2014, Pipping traveledto Mesa Williams Gateway Airport where he met Fohlmeister. Pipping learned that the UHM was discovered by Catherine Delamore (hereinafter "Delamore"), a contractor for SpiritAirlines. Duringthe course of the investigation Pipping examinedthe UHM, took photos ofthe UHM1 and interviewed and took a statementfrom Delamore.2 Delamore retrieved the UHM from the Transportation Security Agency (hereinafter "TSA") baggage collection area. Afterretrieving the UHM, Delamore found Bray and informedhim the UHM could not travel with him and Bray would have to find

1Agency Ex. 2 and 3. 2 Agency Ex. 4.another means ofshippingthe UHM. Delamore said she gave Bray her personal cell and asked him to call within 24 hours to let her know whathe intendedto do with the items, butBray never called.3 Pippingthentalkedto Fohlmeister, who provided himwith an email Fohlmeister sentto Spirit Airlines4 outliningthe UHM. Spirit's Hazardous Materials Discrepancy Report set forth the UHM:

...four ounce bottles ofpotassium 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 thatthe UHM was all in the same checked baggage. Pipping identified photographs ofthe UHM which were received into evidence. Pipping discussedthe hazmatclassifications for the items in thephotographs.6 Pippingtestifiedthe routing ofthe checked luggage would have required several instances ofloading and unloading the bags which increasedthe risk of release ofthe UHM. Additionally, Spirit Airlines does not accept UHM. 7 Pipping testifiedthe 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 ofhis investigation Pipping talked to a representative ofone ofthe products who indicated some ofthe UHM was reactive to waterwhich could pose a serious hazard. Pipping then described some of the proper labeling, shipping and otherrequirements 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 ofExhibit 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 Braypresented no testimony. Evidence Braypresentedno evidence. 

### X. Summary ofEvidence FAA evidence establishedthe violations alleged. Bray offered no defense or mitigation. XI. Analysis offacts: 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 ofEvidence: The FAA'stestimony 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 beentruthful and credible. XIII. Conclusions with respect to whether Bray committed the violation(s) alleged. Taking the totality ofthe evidence and testimony as a whole we find the FAA established by a preponderance ofthe 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 offact: After consideration and review ofall the evidentiary facts, testimony and evidenceherein, by apreponderance ofthe 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 ofPotassium hydroxide, solid, at total approximate weight of3.25 pounds andtwo (2) unlabeledplastic receptacles ofPotassium hydroxide, solid,at total approximate weight of 10.0 pounds. c. Potassium hydroxide, solid is ahazardous material, in accordance with the Hazardous Materials Table in Title 49 ofthe Code ofFederal 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 notproperly classed, described, packaged, marked, labeled, and/or in conditionfor transportation as required or authorizedby applicable requirements in Subchapter C ofChapter I of49 C.F.R., or an exemption or special permit, approval, or registration issued under Subchapter C or Subchapter A ofChapter 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 offeredhis baggage for transportation in commerce without providingtherequired emergency response information immediately available for use at all times. XVI. Analysis ofFindings ofFact and Conclusions ofLaw:

a. Takingthe totality ofthe evidence and testimony as a whole we find the FAA established, by a preponderance ofthe evidence and testimony, that Brayviolated 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 properlyclassed, described, packaged, marked, labeled, and in condition for shipment as required or authorized by applicable requirements ofthis subchapter or an exemption or special permit, approval, or registration issued under this subchapter or subchapter A ofthis chapter. b. Takingthe totality ofthe evidence and testimony as a whole we find the FAA established, by a preponderance ofthe evidence andtestimony, 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. Takingthe totality ofthe evidence andtestimony as a whole we find the FAA established, by a preponderance ofthe evidence and testimony, that Bray violated49 C.P.R. Section 172.300(a): Each person who offers hazardous material for transportation shall mark each package containingthe hazardous material in the manner required by this subpart. d. Takingthe totality ofthe 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 ofthe following packages or containment devices, shalllablethe package or containment device with labels specified for material in the §172.101 table and in this subpart

... e. Takingthe totality ofthe evidence and testimony as a whole we find the FAA established, by a preponderance ofthe evidence andtestimony, that Bray violated 49 C.P.R. Section 172.600(c): No person to whom this subpart applies may offer for transportation, acceptfor 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 availableto any person who, as a representative ofa 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 itbe and is hereby ORDERED as follows: Thomas Braybe and is hereby assessed a civil penalty in the amount of$1,000.

Richard C. Goodwin U.S. Administrative Law Judge

Attachment

- Service ListSERVICE LIST ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W1000 1 ONE COPY Lisa J. Toscano, Complainant's Counsel Attorney, Office ofRegional 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 ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-5121 StaffAssistant 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. 10