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 LAW JUDGE RICHARD C. GOODWIN 

!2 /~ '1: 2b 

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) of the Hazardous Materials 

Regulations, as charged in the Complaint; 

2) Respondent is assessed a civil penalty of $2,500. 

I. Background 

The Complaint of the 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 of hazardous 

materials for air transportation from Anchorage, AK, to Seattle, W A. The hazardous materials 

("hazmats"), described on the 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 of Gamache'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 shipment not properly classed, described, marked, and labeled); 2) §172.200(a) 

(offering hazmats which were not described on the shipping paper in the manner prescribed); 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 on the shipping papers); 8) 

§ 172.204( c )(2) (offering hazmats lacking two copies of the 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 in a package not marked with proper 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 on August 14, 2012, in Seattle. Respondent failed to appear. At the 

conclusion of the 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 of its 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 on the parties set the start of the hearing for 9:00am in 

Seattle. See Hearing Notice, served June 11, 2012. I stated on the record that the agency was present at that 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 her bus and planned to catch the next one. Ms. Gamache also told my assistant that she 

expected to arrive in Seattle in "about" two hours. That would have been sometime between 11 :00 am and noon 

(local time). Tr. 5. 

No further communication of any kind was received from Respondent. I began the hearing at 3:00 pro. This 

was six hours after Respondent was obligated to appear, and at least three hours after she had promised to appear 

after she telephoned my office in Washington, D.C. to explain that she had missed her bus. Tr. 5-6. When the 

hearing concluded, I noted that the local time was 3:35pm. Respondent had yet to appear or to communicate in any 

fashion, directly or indirectly, with me or with my staff. I then found- and reiterate here- that Respondent thereby 

waived her right to present any evidence, including testimony, based on her failure to appear despite being given 

more than sufficient time to do so. Tr. 39-40. 
3 

B. Summary and Review of the 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. 9-1 0). I found him to be a credible witness. 

Agent Meaders testified that an individual identified as Lisa Gamache, of Seward, AK, 

tendered fourteen packages for shipment on Alaska Airlines on May 14, 2009. Most of the 

shipment consisted of frozen fish. However, it also contained two Orion Sky blazer red aerial 

flares and one package of five Remington-brand 20-gauge shotgun shells. Gamache had 

certified on the air waybill to Alaska Air Cargo, a unit of Alaska 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 Skyblazer flares 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 on passenger aircraft. Their presence would create an unreasonable risk of fire (Tr. 

25-27; Exhs. C-4 and C-7). 

The shotgun shells are properly marked and labeled as Cartridges, Small Arms, ORM-D 

(other regulated 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 of their package 

(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 or notice of the 

hazardous nature of its contents. Midtown Neon Sign Corporation, FAA Order No. 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 of the HMRs. 3 As such, I find that she violated each of the 

regulations charged in the Complaint. 

III. Penalty 

I find and conclude that a civil penalty of $2,500 is justified 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 and Hazardous 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 in 49 C.F .R. § 171.8. 

3 "Knowingly" means that Respondent knew that she had performed the act under review -that is, that she knew she 

had tendered aerial flares and shotgun shells for air transportation. See 49 U.S.C. §5123(a)(l). It does not mean that 

she knew that these acts violated the law. Persons are liable even if they do not know they are breaking the law. 

Congress intended to prevent individuals from relying on ignorance of the law as an excuse in civil hazardous 

materials cases. Scott H. Smalling, FAA Order No. 94-31 (October 5, 1994), p. 7. 
4 

Determination of an appropriate civil penalty involves a number of factors. The 

decisionmaker must weigh ''the nature, circumstances, extent, and gravity of the violation[s]," 

and, with respect to the violator, ''the degree of culpability, any history of prior violations, [and] 

the ability to pay" as well as "other matters that justice requires." These include mitigating and 

aggravating circumstances (49 U.S.C. §5123(c); Tr. 24-25). The principal elements in the 

analysis are the nature of the 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 in hazardous-materials cases. The guidance is found 

in the agency's published Penalty Guidelines (''the Guidelines"). The Guidelines are found in 

FAA Order 2150.3B and in this proceeding as Exhibit A-8, of which I took judicial notice (Tr. 

33-34). The Guidelines assess all relevant statutory criteria, including mitigating and 

aggravating circumstances. The Guidelines further aid Complainant's penalty 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 of the respondent, the extent of the 

respondent's typical dealings with hazmats, and the relative risk of harm posed by the substances 

involved. The Guidelines are intended to indicate the Administrator's "general views" about the 

civil penalty ranges appropriate for different types of violations. Folsom's Air Service, Inc., 

FAA Order No. 2008-11 (November 6, 2008), 2008 WL 4948488, p. 13. They are not binding. 

Each situation, being dependent on so many variables, is unique. "Evaluation of the case," the 

FAA has emphasized, "is based on the totality of the facts and circumstances."4 

Complainant asked for a levy of$2,500. It bears the burden of proving the 

appropriateness of this amount by a preponderance of the evidence. Phillips Building Supply, 

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

In support of its suggested fine, special agent Meaders noted that flares are considered a 

moderate-risk hazardous material, and that shotgun shells carry a minimum risk. Respondent, as 

an individual, is properly slotted in the maximum-weight Category A. The agency also stressed 

the undeclared nature of the shipment and the fact that flares are completely forbidden on 

passenger aircraft. Taken together, 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. It took 

the midrange point of the range of fines suggested by the Matrix, $3,000, applied it to four 

violation categories - shipping papers, labels, markings, and packaging - and ignored the 

violations respecting the shotgun shells altogether. A civil penalty of up to $12,000 would have 

been justified, 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. Order 2150.3B, effective October 1, 2007, updated and superseded the 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, in particular her tender of aerial 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 on passenger aircraft at all. Moreover, 

Gamache was not forthcoming about the nature of the materials she intended to ship. She 

declared on the air waybill that the shipment "does not contain dangerous goods" (emphasis in 

original) and described the packages as "household goods." Of course, 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 of their unknown nature. Emergency response information also was lacking. 

Such information could have proven critically important. 

I think Respondent also could be charged with constructive knowledge of the HMRs. 

The materials she offered carry significant risks to large numbers of passengers by their very 

nature (see Jan G. Koblick, FAA Order No. 92-51 (July 23, 1992), p. 3). As the Supreme Court 

of the United States has stated, when dangerous products are involved, "the probability of 

regulation is so great that anyone who is aware that he is in possession of them ... must be 

presumed to be aware of the regulation" (United States v. International Minerals & 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, it is even somewhat on the low side. This assessment is abundantly 

warranted by the totality of the circumstances. The penalty, substantial for an individual, also 

will act as a deterrent to Respondent and to other passengers in similar situations. It will suitably 

fulfill the statutory purpose. 
6 

On the basis of the foregoing, I hereby assess a civil penalty of $2,500 against 

Respondent Lisa Gamache-Wortman for a violation of 49 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 

in this Initial Decision. 6 

.~ .... 

Attachment - Service List 

6 This decision may be appealed to the Administrator of the FAA. The notice of appeal must conform to sections 

13.210, 13.21l(e) and 13.233 of the Rules of Practice, which require that a notice ofappeall) be filed not later than 

10 days (plus an additional five days if mailed) from the service date of this decision, and 2) be perfected with a 

written brief or memorandum not later than 50 days (plus an additional five, if mailed) from the service date of this 

decision. The notice of appeal and brief or memorandum must either be 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) delivered personally or via expedited courier service to the 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 of appeal and brief or memorandum also 

must be sent to agency counsel. Service upon the presiding judge 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 

Wilbur Wright Building-Suite 2WI0001 

Lisa Marie Wortman, Respondent 

141 Barnacle St., NW, Apt. B 

Ocean Shores, W A 98569 

ONE COPY 

Kyle E. Lomazow, Complainant's Counsel 

Attorney, Office of the Regional Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Administration 

1601 Lind Avenue, S.W. 

Renton, WA 98057 

TEL: 425-227-1847 

FAJ(: 425-227-1007 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

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

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Staff Assistant 

FAJ(: 202-366-7536 

1 Service was by U.S. Mrul. For service in person or by expedited courier, use the following address: 

Federal Aviation Administration, 600. Independence Avenue, S. W., Wilbur Wright Building-Suite 

2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430. 
t