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UNITED STATES OFAMERICA FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. 

# RECEIVED JUN- 

# 32013 

# HEARING DOCKET In the matter of FEDERAL AVIATION ADMINISTRATION,


### v. SCOTTNOVAK ) ) ) ) ) 

### ) ) ) ) FAA DocketNo. TBA
FDMS No. FAA-20012-0206



### COMPLAINANT'S APPEAL BRIEF ,·, ·--· .'**r;.:.~:.**

Pursuant to 14 C.P.R. § 13.233(d), Complainant submits this Appeal Briefwhich perfects Complainant's appeal ofthe Initial Decision ofAdministrative Law Judge Richard C. Goodwin (the "ALJ") issued on April 11, 2013, in the above captioned matter. 

### I. STATEMENT OFTHE CASE Complainant served Scott Novak ("Respondent") with a Notice ofProposed Civil Penalty on March 19, 2012, in the amount of$2,700, for violations ofthe Department of Transportation Hazardous Materials Regulations ("HMR"). Respondent requested a hearing on April6, 2012 and Complainant filed the Complaint on April10, 2012. In the Complaint, Complainant requested that the ALJ assess a civil penalty in the amount of $2,700 for Respondent's violations ofthe HMRs. Respondent filed his Answer on May 8, 2012. On May 7, 2012, a Notice ofAssignment ofProceeding was issued naming the ALJto preside overthe hearing. On September 25, 2012, a hearing for this matter was held in Juneau, AK, before the ALJ. Complainant filed its Closing Argument onNovember23, 2012. Respondent filed his PostHearing Briefon January 8, 2013, and Complainant filed its Rebuttal Briefon January 30, 2013. The ALJ served his Initial Decision onApril11, 2013 and Complainant filed its Notice ofAppeal on April19, 2013. 

### II. STATEMENT OF FACTS OnDecember22, 2011, Respondent offered several items for transportation by air viaAlaskaAirlines. Tr. 179: 6-9. Respondenthad travelled to Anchorage, AK, in orderto assist his daughter and son-in-law in their move to Juneau, AK, and planned on carrying their goods in his truck. Tr. 184-16-19; 185-86: 3-14. Respondent's daughterpacked household items, including hazardous materials, in several boxes. Tr. 176: 6-9. Respondent was presentwhenRespondent's daughter sealedthe boxes. Tr. 180: 9-11. Respondentnever asked his daughterwhat was contained in the shipment and he never looked into the contents ofthe shipment. Tr. 176: 12-22; 179-80: 22-11. Respondent realized thatthe amount ofitems exceededthe capacity ofhistruck so he inquired with AlaskaAirlines about shippingthe items by air. Tr. 185-86: 19-8. He was informed that AlaskaAirlines could ship household goods by air freight so he elected to drop the items atthe AlaskaAirlines' cargo facility in Anchorage, AK. 

### Id. The shipment consisted ofeleven piecesthat were placed on four pallets. Tr. 60: 12-18. The eleven pieceswere made up ofseveral boxes, a mattress, and a grill. /d. The grill was not covered orboxed. Tr. 186: 2-8; 194: 1-20. When Respondent was asked by
an AlaskaAirlines employee what was in the shipment, he stated that it contained "furniture and household stuff." Tr. 191-92: 21-2. He then filled outpaperwork for the shipment and checked a box indicatingthere were no "dangerous goods" in the shipment.

2Tr. 192: 13-17. Respondent then began the process ofpaying for the shipmentby credit card which included several questions presented in the credit card machine, including a
screen requesting that the offeror initial that the shipment "[ d]oes not contain any hazardous materials,"to which Respondent answered "no and initialed." Tr. 199: 17-22; 200: 8; 201: 11-15; Ex. A-19. AlaskaAirlines has posters alerting persons in the intake
area ofthe dangers ofhazardous materials and what may be considered as hazardous materials. Tr. 63: 9-16; 83-84: 10-17; Ex. A-27; Ex. A-28; Ex. A-29. Subsequentto Respondent offering the items for shipmentby air transportation,
an employee for AlaskaAirlines screenedthe grill that was part ofRespondent's shipment and discovered lighter fluid and bug spray contained therein. Tr. 30-31: I2-7; Ex. A-3; Ex. A-4. This necessitated a full screening ofthe entire shipment, which uncovered hairspray, nail polish, nail polish remover, and shaving cream in addition to what was found in the grill. Tr. 31-31: 8-I1; Ex. A-5; Ex. A-6. Neitherthe air waybill nor the accompanying documents contained a declaration as to the hazardous materials being included in the shipment. Tr. 51-52: 17-9; Ex. A-7; Ex. A-8; Ex. A-9. Further, an employee for AlaskaAirlines indicated that they had checked the shipment for dangerous goods markings and "wentover [dangerous goods] trigger terms with customer." Ex. A

### 9. Jeffery Dietz, special agent and dangerous goods specialist for the FAA, was notified by AlaskaAirlines ofthe hazardous materials found in Respondent's shipment. Tr. 96: 6-14. Special Agent Dietztookpictures ofthe shipment and compiledthe paperwork associated with the shipment. Tr. I04: 1 O-I6; I05: 8-11. Among the documents that Special Agent Dietz collected was the air waybill, which did not include

3an associated declaration ofdangerous goods. Tr. 105:4-16. He also compiled the relevant Material Safety Data Sheets ("MSDS") for the hazardous materials found in the shipment. Tr. 105-07: 17-18; Ex. A-20; Ex. A-21; Ex. A-22; Ex. A-23; Ex. A-24; Ex. A25. On December27, 2011, Special AgentDitz sentRespondent a letter of investigation notifying him ofthehazardous materials found in the shipment. Tr. 111-15: 8-19; Ex. A-15. Special AgentDietzrecommended a sanction based on the violations of the HMRby using FAA Order 2150.3B and applying the sanction matrix contained therein. Tr. 120-21: 4-2; Ex. A-26. Special Agent Dietz evaluated the evidence and determined that it supported the conclusion that Respondent had committed violations in the following offense categories contained in FAA Order 2150.3B, Appendix C, Figure C-1: shippingpapers, labeling, marking, packaging, and emergency response. Tr. 126-28: 14-2. In his Answer, Respondent admitted thathe received and responded to the Notice ofProposed Civil Penalty. Answer at 1. Respondent "conditionally" admitted that a shipmentwith AirWaybill No. 027-8385-7546 was described as consisting of "FURNITURE, MATTRESS," and the block declaring that the shipmentdid notcontain hazardous materials was initialed. Id. In his Answer, Respondent used the phrase "conditionally admitted" in his responses to the allegations contained in the Complaint. The rules ofpractice in FAA civil penalty proceedings contained in 14 C.F.R. part G, do notrecognize such a response as appropriate. 14 C.F.R. 

### § 13.209(e) requires that a "person filing an answer shall admit, deny, or statethat the person is without sufficient knowledge or informationto admit or deny, each numbered paragraph ofthe complaint."

4Further, "[a]ny statement or allegation contained in the complaintthat is not specifically denied in the answer may be deemed an admission ofthe truth ofthat allegation."

### !d. As such, the responses contained in the Answerthat use the phrase "conditionally admitted" should be deemed as admitted. Respondent admitted that nail polish is classified as a hazardous material under the HMR, its proper shipping name is "Paint", it is in hazard class 3 (Flammable liquids) and packing group II, and has an assigned identification number ofUN1263. Answer atl. See also Ex. A-20; 14 C.P.R.§ 172.101. Respondent admitted that nail polish remover is classified as a hazardous material under the HMR, its proper shipping name is "Acetone Solutions", it is in hazard class 3 (Flammable liquids) and packing group II, and has an assigned identification number ofUN1090. Answer at 1. See also Ex. A-21; 14 C.F.R. § 172.101. Respondent admitted that charcoal lighter fluid is classified as a hazardous material underthe HMR, its proper shipping name is "Petroleum Distillates, N.O.S.", it is in hazard class 3 (Flammable liquids) and packing group II, and has an assigned identification number ofUN1268. Answer at1. See also Ex. A-22; 14 C.P.R.§ 172.101. Respondent admitted that Moroccanoil Hairspray, Gillette Fusion Hydra Gel, and Repel Insect Repellant are classified as hazardous materials under the HMR, their proper shipping name is "Aerosols, flammable", they are in hazard class 2.1 (Flammable gas), and have an assigned identification number ofUN1950. Answer atl. See also Ex. A-23; Ex. A-24; Ex. A-25; 14 C.F.R. § 172.101. Respondent also admitted that lighter fluid, insectrepellant, hairspray, fingernail polish, and fingernail polish remover are household items. Tr. 206: 8-19.

5

### III. ALJ's WRITTENDECISION TheALJ dismissed the Complaint. Initial Dec. at 2. The ALJ found Respondent offered six items ofhazardous materials for transportation by air. /d. The hazardous materials that were discovered consisted of 16 bottles ofnail polish, a 32-ouncebottle of charcoal lighter fluid; a 10-ounce can ofhairspray, a 7-ounce can ofshaving cream, and a 6.5-ounce can ofinsectrepellant. /d. The ALJ found the items are classified as hazardous materials underthe HMRs and that "the shipment was offered undeclared-that is without any warning ornotice ofthehazardous nature ofits contents."/d. at 3-4. The ALJ also found that the parties agreed that Respondent was not aware ofthe contents ofthe shipment. Jd; The ALJ addressed the issue ofwhether Respondent "knowingly offered" the hazardous materials for shipment by air within the meaning ofSection 5123(a)(1) ofthe Federal hazardous materials law, 49 U.S.C. § 5123(a)(1). /d. He found that Respondent did not. /d. Section 5123(a)(l) providesthat a person acts knowingly when- (A) the person has actual knowledge ofthe facts giving rise to the violation; or (B) a reasonable person acting in the circumstances and exercising reasonable care would have that knowledge. /d. Addressingthe first prong ofreasonable care under the statute, the ALJ found that Respondenthad no actual knowledge that he offeredhazardous materials. /d. Upon analyzingthe second prong ofreasonable care, the ALJheld thatthe statute created
a duty upon Respondent "to make a reasonable inquiry into the material he was shipping" and that "thenature ofthe inquiry depended on the surrounding circumstances."/d. The ALJ ultimately found that Respondent made a sufficient inquiry. /d.

6In making this determination, the ALJ stated that Respondent was moving his daughter's personal effects and that the "goods customarily associated with a household move" such as this, constitute "furniture, bedding and the like," and "are considered innocuous from an airtransport standpoint." 

### !d. The ALJ found that Respondent had "the right to rely onhis daughter's general description ofthe contents ofthe shipment", and had "noreason to inquire or look further." 

### Id. The ALJnoted that liability cannotbe imputed in this case becauseto do so would be to enforce a standard ofstrict liability for the violations. 

### Id. at 5. In support, the ALJ stated that Respondent had no reason for further inquiry as Respondent testified that he did not see any warning signs posted and no employee for AlaskaAirlines asked him ifhe was tendering such goods. 

### !d. Finally, the ALJ statedthatthe hazardous materials thatwere involved here are "customarily characterized as household orconsumer goods."

### Id. He noted that the items
were flammable and that they "could produce a grave situation aboard an aircraft."

### Id. However, in this case, the ALJ believed that the Respondent "reasonably did notknow what he was shipping."

### Id. 

### IV. STANDARD OFREVIEW On appeal, the FAA Decisionmakerconsiders whether each finding offact is supported by a preponderance ofreliable, probative, and substantial evidence, and whether each conclusion oflawis made in accordance with applicable law, precedent, and public policy. 14 C.F.R. 

### § 13.233(b)(l)-(2).

7

### V. STATEMENT OFTHE ISSUE I 

### Whetherthe ALJerred in finding thatRespondent did not knowingly offer a shipmentcontaining hazardous materials for transportation by air. VI. ARGUMENT 

### TheALJerred in finding thatRespondent did not knowingly offer a shipment containing hazardous materials for transportation by air. The ALJ found that Respondent offered six items ofhazardous materials for transportation by airbutthatRespondent did notknowingly offer said materials. Initial Dec. at 2, 6. Complainant submitsthat the ALJ erred in dismissing the Complaint because his finding that Respondent did notknowingly offerthe hazardous materials for transportation by airwas not supported by a preponderance ofthe reliable, probative, and substantial evidence. 

### A. Thetest for determiningwhetherRespondent acted knowingly when he offered hazardous materials for transportation by airis contained in 49 U.S.C. 

### § 5123(a)(l). Thetest for determining whetherRespondent acted knowingly when offering, accepting, ortransporting hazardous materials in commerce is set forth in 49 U.S.C. 

### § 5123(a)(l). Section 5123(a)(l) provides, "[a] person acts knowingly when: (A) the personhas actual knowledge ofthe facts giving rise to the violation; or (B) a reasonable person acting in the circumstances and exercising reasonable care would have that knowledge." Section 5123(a)(1) "is a statute that 'requires inquiry andtreats a person as possessing whateverknowledge inquiry wouldhave produced
... .

### "In re Interstate Chemical Comp., Inc., FAA OrderNo. 2002-29,2002 WL 31957045 at *7 (Dec. 6, 2002) (citing 

### Contract CourierServices, Inc. v. Research & 

### SpecialProgramsAdmin., US. Dep 't ofTransp., 924 F.2d 112,114 (7th Cir. 1991).

8B. The ALJerred in finding that Respondent made a sufficient inquiry as to the contents ofthe shipment. The critical issue under Section 5123 (a)(l), as framed by the ALJ, is whether Respondent, as a reasonable person acting in the circumstances, would have known that in the exercise ofreasonable care he was offering hazardous materials for transportation by air. Initial Dec. at 4. Asthe ALJheld, "[t]he statutory mandate to exercise 'reasonable care' created a duty on [Respondent] to make some kind ofinquiry into the material he
was shipping. The nature ofthe inquiry required depended on the surrounding circumstances." Jd Therecord in this proceeding demonstrates that Respondent failed to satisfy the requirementto exercise reasonable care, in that he made no inquiry into the materials he
was shipping. Respondent knew that his daughter was moving all ofherhousehold goods from Anchorage, AK, to Juneau, AK, and was present when his daughter was sealing the boxesthatcontained her household goods. Tr. 184: 15-22; 180: 3-11. Respondent also
was aware that lighter fluid, insect repellant, hairspray, fingernail polish, and fingernail polishremover are considered household items and he was not surprisedthat they were included in the shipment. Tr. 206: 8-19. Moreover, the ALJ acknowledged that these items regularly constitute "household goods." Initial Dec. at 5. Respondent also was
awarethathe was offering a propane grill for transportation by air as he unloaded an unwrapped, unboxed, and unconcealed grill at AlaskaAirlines. Tr. 186: 2-12. DespiteRespondent's knowledge thathe was shipping the entire contents ofhis daughter's home, thathe was not surprised that hazardous materials-lighter fluid, insect repellant, hairspray, fingernail polish, and fingernail polish remover-were included in the household items he offered to Alaska Airlines, and that he was offering an
9unpackaged grill toAlaskaAirlines, Respondent never asked his daughterwhatwas contained in the shipment and he never looked into the contents ofthe shipment. Tr. 176: 12-22; 179-80: 22-11. Respondent's daughter testified that "(h]e didn't look inside any of the boxes orask what was inside them." Tr. 180: 9-11. She further testified that "
...he
never asked me, and I never told him ifthere was hairspray or any kind offlammable or hazardous material in there." Tr. 176: 20-22. Even when offering an unpackaged propane grill, the sole purpose ofwhich is to use flammable materials to produce flame, he chose to abandon his duty to exercise reasonable care and blindly offered the shipment for air transportation. Far from a performing a reasonable inquiry into the contents ofthe shipment, Respondentperformed no inquiry at all, thereby demonstrating a conscious disregard for the dangers thatreadily were apparentto a reasonable person under the circumstances discussed above. The above-described facts and circumstances demonstrate that Respondent made a conscious decision notto perform any inquiry into the contents ofthe shipment. Eventhough the record is bereft ofevidence establishingthat Respondent made any inquiry at all into the contents ofthe shipment, the ALJ found that Respondent was reasonable in believingthat "goods customarily associated with household moves, such
as furniture, bedding, and the like, constituted the contents ofthe shipment." Initial Dec. at 4. TheALJ found that Respondent was reasonable in believing "thathe was shipping household goods", thathe had "theright to rely on his daughter's general description of the contents ofthe shipment," and he had "no reason to inquire or look further."

### Id. The ALJ's findings, however, are not supported by the evidence and are contrarytothe requirement in Section 5123 (a)(1) that the exercise ofreasonable care requires

10Respondentto make some kind ofinquiry into the material he was shipping. Respondent's beliefthathe was shipping household goods does not satisfy the test under Section 5123(a)(l), articulated by the ALJ, that "[t]he statutory mandate to exercise 'reasonable care' created a duty upon [Respondent]tomake some kind ofinquiry into the material he was shipping."

### Id. In view ofthe foregoing, the ALJ erred in finding that Respondent did notknowingly offerthe hazardous materials to AlaskaAirlines for transportation by air. C. There is no duty to warn regarding violations ofthe HMRs. The ALJ further supported his finding that Respondent did notknowingly offer thehazardous materials for air transportation by stating that Respondent did not see any warning signs at AlaskaAirlines and thatthere was no evidence that AlaskaAirlines employees inquired as to whether the shipment contained such materials. Initial Dec. at 5. However, there is no duty to warn associated with these violations. 

### Fed AviationAdmin.
v. ToddKaden, 2006 WL 1748267 at *3 (June 22, 2006). Notwithstanding thatAlaska Airlines did nothave a duty to warn, the evidence clearly shows that signs warning offerors about shipping hazardous materials were posted within the area ofthe Alaska Airlines facility where Respondent dropped his shipment off, and that Respondent also
was prompted regarding the existence ofhazardous materials during the process offilling out paperwork for the shipment. Tr. 63: 9-:-16; 83-84: 10-17; 192: 13-17; 199: 17-22; 200: 8; 201: 11-15; Ex. A-9; Ex. A-19; Ex. A-27; Ex. A-28; Ex. A-29. 

### VII. CONCLUSION Respondent clearly did not make any attempt at a reasonable inquiry into the contents ofthe shipmenthe offered for air transportation. He was well aware thathe was

11movingthe entire contents ofhis daughter's house and thathazardous materials are among the types ofmaterialsthat are considered household goods. He also did not askhis daughter aboutthe contents ofthe shipment although he was present during the packing and sealing ofthe packages that comprised the shipment. Even a minimum amount of inquiry, such as openingthe drawer ofthe unpackaged grill or asking his daughter whether she packed such items as nail polish remover, hairspray, shaving cream, etc., would have revealed the existence ofthe hazardous materials. Further, he was asked aboutthe existence ofhazardous materials in the shipmentbyAlaskaAirlines and responded that they were not included in the shipment when he never examined or inquired into the contents ofthe shipment. The evidence shows thatRespondent exhibited
a conscious disregard ofhis duty to attempt even a minimum inquiry into the contents of the shipment he offered for airtransportation. Therefore he did not act as a reasonable person acting in the circumstances and exercising reasonable care. 49 U.S.C. 

### § 5123(a)(l). In view ofthe forgoing, the ALJ erred in finding that Respondent did not act knowingly under Section 5123(a)(l) becausethis determination is not supported by the preponderance ofthe reliable, probative, and substantial evidence. For all ofthe foregoing reasons, Complainantrespectfullyrequests the FAA Decisionmakerto reverse the ALJ's Initial Decision and affirm the Administrator's Complaint in its totality.
[Signature Page Follows}

12Dated: May 31,2013 Respectfully submitted, PeterLynch Assistant ChiefCounsel

for Enforcement 

# By:CJ!2

Charles Raley, Attorney EnforcementDivision, AGC-300 Office ofthe ChiefCounsel Federal Aviation Administration 800 IndependenceAvenue, S.W. Washington, DC 20591 Phone: (202) 267-3357 Facsimile: (202) 267-5106

13Certificate ofService I hereby certifythat on this date I have served by certified mail, one original and two copies ofComplainant'sAppeal BriefIn re ScottNovak, FDMS No. FAA-2012- 0206, to: Federal Aviation Administration 800 IndependenceAvenue, S.W. Washington, D.C. 20591 Attn: FAADecisionmaker, AGC-430 Wilbur Wright Building- Suite 2W1000 In addition, I hereby certifythat on this date I have sent one copy ofthe foregoing document by certified mail to: Joseph W. Geldhof, Esq. 2 Marine Way, Suite 207 Juneau, AK 99801

Dated: May 31,2013