## SERVED: OCTOBER 11, 2012

UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

) FEDERAL AVIATION ADMINISTRATION, ) ) Complainant, ) FAA DOCKET NO. CPIOALOOOS )
v. ) (Civil Penalty Action) ) LISA GAMACHE-WORTMAN, ) ) Respondent. ) OMS No. FAA-2010-1081 )



### INITIAL DECISION OF ADMINISTRATIVE LAWJUDGE RICHARD C. GOODWIN 

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Found: 1) Respondent violated 49 C.F.R. §§171.2(e); 172.200(a); 172.201(d); 172.202(a)(l); 172.202(a)(2); 172.202(a)(3); 172.204(a) or (c)(l); 172.204(c)(2); 172.204(c)(3); 172.300 and 172.30l(a); 172.400(a); and 172.600(c)(l) and (c)(2) oftheHazardous Materials Regulations, as charged in the Complaint; 2) Respondent is assessed a civil penalty of$2,500.

I. Background

The Complaint ofthe Federal Aviation Administration ("Complainant," "FAA," or ''the agency") alleges that on May 14, 2009, Respondent Lisa Gamache-Wortman ("Gainache" or "Respondent") knowingly offered to Alaska Airlines an undeclared shipment ofhazardous materials for air transportation from Anchorage, AK, to Seattle, WA. The hazardous materials ("hazmats"), described onthe air waybill as (in part) household goods, consisted, it is charged, of aerial flares and shotgun shells. Hazardous materials tendered for air transportation obligate the offeror to inform and protect those who might come in contact with the package(s) through detailed marking, labeling, and other informational requirements. Respondent's tender assertedly failed completely in this respect.2

As a result ofGamache's conduct, the agency charged her with twelve Hazardous Materials Regulations ("HMRs") violations, namely: 49 C.F.R. 1) §171.2( e) (offering hazardous material for shipmentnotproperly classed, described, marked, and labeled); 2) §172.200(a) (offering hazmats which were not described onthe shipping paper inthe mannerprescribed); 3) §172.201(d) (offering hazmats without an emergency response number); 4) §172.202(a)(l) (offering hazmats without the proper identification number for the material); 5) §172.202(a)(2) (offering hazmats without the proper shipping name); 6) §172.202(a)(3) (offering hazmats lacking the hazard class or division number prescribed for the material); 7) §172.204(a) or (c)(1) (offering hazmats without printing the proper certification onthe shipping papers); 8) §172.204(c)(2) (offering hazmats lacking two copies ofthe shipper's certification); 9) §172.204( c)(3) (offering hazmats without the required certification declaration); 1 0) §172.300 and 172.301(a) (offering hazmats ina package not marked withproper shipping names and identification numbers); 11) §172.400(a) (offering a package containing hazardous material improperly labeled); and 12) §172.600(c)(1) and (c)(2) (offering a hazmat when emergency response information was not immediately available).

The agency asked for a civil penalty of$2,500. Respondent denied the charge.

I held a hearing onAugust 14, 2012, in Seattle. Respondent failed to appear. Atthe conclusion ofthe hearing I determined that a written decision would be reasonable and appropriate. 1

II. Discussion
A. Decision

I find and conclude that the agency proved every element ofits case. Further, I find and conclude that a civil penalty against Respondent in the amount of$2,500 is appropriate and warranted, and I will assess a civil penalty in that amount.

1 Tr. 40; see 14 C.F.R. §13.232(c). A Notice duly served onthe parties setthe start ofthe hearing for 9:00am in Seattle. See Hearing Notice, served June 11, 2012. I stated on the record that the agency was present atthat time. I further noted that at about that same time, Respondent telephoned my legal assistant in Washington, D.C., to inform
me that she had missed herbus and plannedto catch the next one. Ms. Gamache also told my assistantthat she expected to arrive in Seattle in "about" twohours. That wouldhave been sometime between 11 :00 am andnoon (local time). Tr. 5. No further communication ofany kind was received from Respondent. I began the hearing at 3:00 pro. This
was six hours after Respondent was obligatedto appear, and at leastthree hours after she hadpromisedto appear after she telephoned my office in Washington, D.C. to explain that she had missed herbus. Tr. 5-6. When the hearing concluded, I noted that the local time was 3:35pm. Respondent had yet to appear orto communicate in any fashion, directly or indirectly, with me or with my staff. I then found- andreiterate here- that Respondentthereby waived herright to present any evidence, including testimony, based on her failure to appear despite being given
more than sufficienttime to do so. Tr. 39-40.3

B. Summary and Review ofthe Incident

FAA special agent Gary Meaders appeared as the agency's witness. He had conducted the investigation into this matter. He testified as an expert in hazardous materials investigations (Tr. 9-10). I found him to be a credible witness. Agent Meaders testified that an individual identified as Lisa Gamache, ofSeward, AK, tendered fourteen packages for shipment on Alaska Airlines on May 14, 2009. Most ofthe shipment consisted offrozen fish. However, it also contained two Orion Sky blazerred aerial flares and one package offive Remington-brand 20-gauge shotgun shells. Gamache had certified on the air waybill to Alaska Air Cargo, a unit ofAlaska Airlines, that the shipment did not contain dangerous goods. The flares and shotgun shells, however, are hazardous materials and are regulated as such.2
Agent Meaders explained that the Orion Skyblazerflares Gamache offered are properly marked and labeled as Flares, Aerial, Hazard Class 1.4G (explosives) (see Hazardous Materials Table following 49 C.F

### .R. §172.101). Aerial flares are considered so dangerous that they are forbidden onpassenger aircraft. Their presence would create an unreasonable risk offire (Tr. 25-27; Exhs. C-4 and C-7).

The shotgun shells are properly marked and labeled as Cartridges, Small Arms, ORM-D (otherregulated material) (see Hazardous Materials Table following 49 C.F

### .R. 

### §172.101). They required, among other information, a blue ORM-D label affixed to the exterior oftheirpackage (Tr. 28; Exhs. C-5 and C-7). But this product (as well as the flares) was tendered undeclared (Tr. 29). "Undeclared" means that the tendered material contained no warning ornotice ofthe hazardous nature ofits contents. Midtown Neon Sign Corporation, FAA OrderNo. 96-26 (August 13, 1996), p. 2.

The agency proved that Respondent Lisa Gamache-Wortman knowingly offered hazardous materials, namely aerial flares and shotgun shells, in air transportation lacking any of the informational requirements ofthe HMRs.3 As such, I find that she violated each ofthe regulations charged in the Complaint.



### III. Penalty
I find and conclude that a civil penalty of$2,500 isjustified by all the circumstances and I will assess it on Respondent.

2 Tr. 10-24, 30; Exhs. C-1 through C-6; 49 C.P.R. §172.101 andHazardous Materials Table immediately following §172.101. The term "dangerous goods" as used in the International Civil Aviation Organization ("ICAO") Technical Instructions is interchangeable with the term "hazardous material" as defined in49 C.F.R. §171.8. 3 "Knowingly" means that Respondent knew that she hadperformed the act underreview -that is, that she knew she had tendered aerial flares and shotgun shells for airtransportation. See 49 U.S.C. §5123(a)(l). Itdoes not mean that she knew that these acts violated the law. Persons are liable even ifthey do not know they are breakingthe law. Congress intended to prevent individuals from relying on ignorance ofthe law as an excuse in civil hazardous materials cases. ScottH. Smalling, FAA Order No. 94-31 (October 5, 1994), p. 7.4

Determination ofan appropriate civil penalty involves a number offactors. The decisionmakermust weigh ''the nature, circumstances, extent, and gravity ofthe violation[s]," and, withrespect to the violator, ''the degree ofculpability, anyhistory ofpriorviolations, [and] the ability to pay" as well as "other matters thatjusticerequires." These include mitigating and aggravating circumstances (49 U.S.C. §5123(c); Tr. 24-25). The principal elements inthe analysis are the nature ofthe respondent's conduct and the totality ofthe circumstances. 

### Envirosolve, LLC, FAA Order No. 2006-2 (February 7, 2006), p. 13.

The Administrator has provided policy guidance for agency employees to follow when recommending an appropriate civil penalty inhazardous-materials cases. The guidance is found inthe agency'spublished Penalty Guidelines (''the Guidelines"). The Guidelines are found in FAA Order 2150.3B and inthis proceeding as Exhibit A-8, ofwhich I tookjudicial notice (Tr. 33-34). The Guidelines assess all relevant statutory criteria, including mitigating and aggravating circumstances. The Guidelines further aid Complainant'spenalty determination through a Sanction Guidance Matrix (''the Matrix"). The Matrix sets out specific penalty ranges for each input, cross-referencing such factors as the size ofthe respondent, the extent ofthe respondent's typical dealings with hazmats, and the relative risk ofharm posedby the substances involved. The Guidelines are intended to indicate the Administrator's "general views" about the civil penalty ranges appropriate for different types ofviolations. 

### Folsom'sAirService, Inc., FAA OrderNo. 2008-11 (November 6, 2008), 2008 WL 4948488, p. 13. They are notbinding. Each situation, being dependent on so many variables, is unique. "Evaluation ofthe case," the FAA has emphasized, "isbased onthe totality ofthe facts and circumstances."4 Complainant asked for a levy of$2,500. It bears the burden ofproving the appropriateness ofthis amount by a preponderance ofthe evidence. 

### Phillips BuildingSupply, FAA Order No. 2000-20 (August 11, 2000), p. 8.

In support ofits suggested fine, special agent Meaders noted that flares are considered a moderate-risk hazardous material, and that shotgun shells carry a minimumrisk. Respondent, as an individual, is properly slotted inthe maximum-weight Category A. The agency also stressed the undeclared nature ofthe shipment and the fact that flares are completely forbidden on passenger aircraft. Takentogether, the Matrix suggests a civil penalty in a range between $500 and $5,500 per violation per hazmat. Special agent Meaders further testified that the agency attempted to be lenient. 

### Ittook the midrange point ofthe range offines suggested by the Matrix, $3,000, applied itto four violation categories

- shipping papers, labels, markings, and packaging

- and ignored the violations respectingthe shotgun shells altogether. A civilpenalty ofup to $12,000 wouldhave beenjustified, Mr. Meaders explained. The agency asked for only $2,500. 5

4 FAA Policy on Enforcement ofthe Hazardous Materials Regulations: Penalty Guidelines, 64 Fed.Reg. 19443, 19444, 1999 WL 226610 (F.R.) (April21, 1999), also published on April14, 1999, as Change 26, Appendix 6, to FAA Order 2150.3A. Order2150.3B, effective October 1, 2007, updated and supersededthe original guidelines. See 72 Fed.Reg. 55853. FAA Order 2150.3B may also be found at www.airweb.faa.gov. 5 See Exh. A-8, p. C-17; Tr. 35-38. The figure of$12,000 is derived from multiplying the number ofvio1ation categories (four) by the Matrix' midrange penalty ($3,000).5

A penalty assessment in a case such as this must weigh a respondent's behavior and evaluate its effect. Ms. Gamache's behavior, inparticularhertender ofaerial flares, merits a significant sanction. These flares are designed to shoot upward up to one thousand feet, explode, and burn for 20 to 30 seconds with a flame in excess of 1,700 degrees Celsius. As noted, they
are considered so dangerous that may not be carried onpassenger aircraft at all. Moreover, Gamache was not forthcoming about the nature ofthe materials she intended to ship. She declared onthe air waybill that the shipment "does not contain dangerous goods" (emphasis in original) and described the packages as "household goods." Ofcourse, the shipment did contain hazmats, and they most definitely could not be reasonably described as "household goods" 

### (Exh. C-2; see I.D., 

### p. 1).

The packages presented an indefinite

- and therefore inherently perilous

- risk in any event because oftheirunknown nature. Emergency response information also was lacking. Such information could haveproven critically important.
I think Respondent also could be charged with constructive knowledge ofthe HMRs. The materials she offered carry significant risks to large numbers ofpassengers bytheirvery nature (see Jan G. Koblick, FAA OrderNo. 92-51 (July 23, 1992), p. 3). As the Supreme Court ofthe United States has stated, when dangerous products are involved, "theprobability of regulation is so great that anyone who is aware thathe is in possession ofthem

... must be presumed to be aware ofthe regulation" (UnitedStates v. InternationalMinerals 

### & Chemical Corp., 402 U.S. 558, 565 (1971)). Complainant, I find, has met its burden. It has shown that a civil penalty of$2,500 is appropriate. Indeed, 

### itis even somewhat onthe low side. This assessment is abundantly warranted bythe totality ofthe circumstances. The penalty, substantial for an individual, also will act as a deterrent to Respondent and to other passengers in similar situations. 

### Itwill suitably fulfill the statutorypurpose.6

Onthe basis ofthe foregoing, I hereby assess a civil penalty of$2,500 against Respondent Lisa Gamache-Wortman for a violation of49 C.P.R. §§171.2(e), 172.200(a), 172.201(d),172.202(a)(l), 172.202(a)(2), 172.202(a)(3), 172.204(a) or (c)(l), 172.204(c)(2), 72.204(c)(3), 172.300 and 172.301(a), 172.400(a), and §172.600(c)(l) and (c)(2) as described inthis Initial Decision.6**.~**....

Attachment

- Service List

6 This decision may be appealed to the Administrator ofthe FAA. The notice ofappeal must conform to sections 13.210, 13.21l(e) and 13.233 ofthe Rules ofPractice, which require that a notice ofappeall)be filed not laterthan 10 days (plus an additional five days ifmailed) from the service date ofthis decision, and 2) be perfected with a written brieformemorandum not later than 50 days (plus an additional five, ifmailed) from the service date ofthis decision. The notice ofappeal and brieformemorandum must eitherbe a) mailed to the Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, DC 20591, Attn: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite 2W1000, or b) deliveredpersonally or via expedited courier service tothe Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, D.C. 20591, Attn: Hearing Docket Clerk, AGC-430. A copy ofthe notice ofappeal andbriefor memorandum also must be sentto agency counsel. Service upon the presidingjudge is optional.

### 7

FAADocketNo. CP10AL0005 (Civil Penalty Action) 

### SERVICE LIST
ORIGINAL & 

### ONE COPY
Federal Aviation Administration

· 800 Independence Avenue, S.W.

Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 WilburWright Building-Suite 2WI000 1



### LisaMarie Wortman, 

### Respondent 141 Barnacle St., NW, Apt. B 

### Ocean Shores, WA 98569 

### ONE COPY

Kyle E. Lomazow, 

### Complainant's Counsel Attorney, Office ofthe Regional Counsel Northwest Mountain Region, ANM-7 Federal Aviation Administration 1601 Lind Avenue, S.W. Renton, WA98057 TEL: 425-227-1847 FAJ(: 425-227-1007

The Honorable Richard C. Goodwin,

### Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant FAJ(: 202-366-7536

1 Service was by U.S. 

# Mrul. For service inperson orby expedited courier, use the following address: Federal Aviation Administration, 600.Independence Avenue, S.W., Wilbur WrightBuilding-Suite 2W1000, Washington, DC 20591; Attention: HearingDocket Clerk, AGC-430.t

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